ThesePayment Acceptance Terms of Service (“Payment Terms” or “Agreement”)are entered into between LendARR Inc. (dba FlexPoint) (“Provider”) andthe business entity set forth in the Order (“Merchant” or “you”)and will govern Merchant’s receipt of payment services from Processor and ACHPartner (collectively, “Payment Services”). You will be bound by thesePayment Terms as of the date of your acceptance and they will become effectiveas to Provider as of the date that Processor approves Merchant for such PaymentServices (“Effective Date”). Each of Provider and Merchant are, fromtime to time, individually referred to herein as a “Party,” andcollectively as the “Parties.” Capitalized terms used but not defined inthe body of this Agreement or in Section 7.7 (Definitions) will have themeanings given to them in the “Terms of Service” (located at https://www.getflexpoint.com/terms-of-service) or in the Processor Agreements, each ofwhich are incorporated herein by reference.

1.1 Processor.  Payment Services that are accessible through an integration with Provider’s platform are provided by Provider’s designated third party processors and providers, as Provider may designate or modify from time to time in its sole discretion (collectively “Payment Partners”). ThePayment Partner that is providing processing services with respect to card transactions will be referred to as “Processor” and the Payment Partner that is providing services with respect to ACH transactions will be referred to as “ACH Partner.” As of the Effective Date of these Payment Terms, theProcessor is Payrix Solutions, LLC (“Payrix”). Provider may suspend, modify, or terminate its relationship with any Payment Partner in its sole discretion, at any time and without notice, and without affecting the Parties’ relationship under these Payment Terms. Merchant acknowledges that each Payment Partner, not Provider, has the ultimate decision whether to approve Merchant for the irrespective Payment Services.

‍1.2 Processor Agreements. As of theEffective Date of these Payment Terms, Merchant’suseof the Payment Services is subject to: (i) the “Payrix Sub-Merchant Agreement" located at https://portal.payrix.com/terms and any other terms and conditions of Payrix as each may be updated or modified by Payrix from time to time (collectively, “ProcessorAgreements”); and (ii) the terms of service and privacy policy of the ACHProvider presented to you during sign up (collectively, “ACH PartnerAgreements”). Merchant may not use any Payment Services until Merchant agrees to the Processor Agreements and ACH Partner Agreements, and BY AGREEING TO THESE PAYMENT TERMS, MERCHANT EXPRESSLY (A) ACCEPTS AND AGREES TO BE BOUND BY THE PROCESSOR AGREEMENTS AND THE ACH PARTNER AGREEMENTS; AND(B) AUTHORIZES PROVIDER TO CAPTURE MERCHANT’S ELECTRONIC OR DIGITAL ACCEPTANCE OF THE PROCESSOR AGREEMENTS AND ACH PARTNER AGREEMENTS AND TO PROVIDE PROOF OF SUCH ACCEPTANCE TO PROCESSOR AND ACH PARTNER, AS APPLICABLE, ASMAY BE REQUESTED BY THEM. Merchant acknowledges and agrees that (i) theProcessor Agreements are solely between Merchant and Processor; (ii) the ACHPartner Agreements are solely between Merchant and ACH Partner; (iii) the PaymentServices are provided solely by Processor and ACH Partner, respectively, and not provided by Provider; (iv) Merchant is solely responsible for its own relationship with Processor and ACH Partner; (iv) Provider is not a party to the Processor Agreements nor the ACH Partner Agreements, has no control over the Payment Services, the Processor Agreements, nor the ACH Partner Agreements and Partner will have no liability under such agreements with the PaymentPartners or in any way relating to the Payment Services, including for any action or inaction by the Payment Partners; (v) Merchant is responsible for tracking applicable updates to the Processor Agreements and the ACH PartnerAgreements as may be amended by Processor or ACH Partner, respectively, from time to time.

‍1.3 Merchant Information and Onboarding. Merchant will follow the onboarding procedures and policies provided by Provider and Payment Partners (as may be amended from time to time), including by providing all requested information. All information provided by Merchant to Provider, including but not limited to the information provided on the Order, must be truthful and accurate. If any information disclosed to Provider or a Payment Partner becomes untrue or not accurate, Merchant must notify Provider and each Payment Partner of such change, as applicable. Merchant represents and warrants that it has obtained written instruction and authorization from each beneficial owner (or other required individual) for Provider to obtain information from such individuals’ credit profile (including consumer reports) from a credit reporting agency for the purpose of identification verification and fraud and credit risk evaluation.

‍1.4 Transaction Processing and Settlement. By accepting these Payment Terms, Merchant agrees to establish an account with each Payment Partner (each an “Account”) to receive Payment Services from the respective Payment Partners. Such account can be accessed and managed through Provider’s systems/platform and Provider will provide necessary customer support with respect to Account activity, including payment activity and dispute resolution. Merchant will receive notifications regarding the Accounts (including payment activity notifications) through Provider. Transactions are processed by Payment Partners, not Provider. Each Payment Partner (itself or through its financial institution partners) will settle proceeds of Transactions (as defined below) to the Merchant Bank Account in accordance with the respective Processor Agreements and ACH Partner Agreements. Merchant expressly authorizes Payment Partners and their financial institution partners to originate credit and debit transfers to the Merchant Bank Account.  Merchant acknowledges and agrees that its processed Transactions may, in each Payment Partner’s discretion, be deposited into a pooled account held for the benefit of Merchant and other merchants of Provider or Payment Partner held at any financial institution so that such funds may be combined and aggregated with other funds that are ultimately settled to Merchant by such financial institution. The funds will be held by financial institution partners in accordance with the terms of the Processor Agreements and the ACH Partner Agreements, respectively. Merchant understands and agrees that Provider does not process, receive, or hold Merchant funds at any time and that Provider is not a bank, money transmitter, or other money services business (as such terms are defined by the Bank Secrecy Act or any state law). To the extent Provider is deemed to hold or receive funds (constructively or otherwise) of any Customer of Merchant at any point in time, Merchant hereby irrevocably appoints Provider as its non-fiduciary agent for the limited purpose of collecting, receiving, holding, and settling funds from Merchant’s Customer (the cardholder) on Merchant’s behalf. In such event, such funds shall be deemed received by Merchant upon receipt by Provider and shall satisfy the Customer’s obligation to Merchant in connection with the Transaction for the goods or services sold by Merchant. If Provider fails to remit such funds to Merchant, Merchant’s sole recourse for such event is solely against Provider and not against the Customer or the Customer’s financial source.

‍1.5 Data Usage and Sharing; Customer Interactions. . Merchant authorizes Provider to (a) access and receive data relating to Merchant’s Account, including Transaction and usage data and other data about the Account; (b) share data regarding the Account, related activity and other Merchant data with Payment Partners in connection with the Payment Services; and (c) issue instructions to Payment Partners regarding Transactions and funds processed by the respective Payment Partner. You authorize Provider to collect and share with Payment Providers your personal information including full name, date of birth, social security number, physical address, email address and financial information, as applicable, and you are responsible for the accuracy and completeness of that data.   Merchant agrees to complete and submit any additional authorization forms or other such documentation as requested by Provider or Payment Partners from time to time. The Parties acknowledge that Merchant, not Provider nor Payment Partners, is responsible for providing the necessary disclosures to, and obtaining the required consents from, Customers or other data subjects regarding the processing of personal information by Provider and Payment Partners. Additionally, Merchants are responsible for fulfilling any other obligations associated with required disclosures or consents when interacting directly with the consumer Customer or data subject and must comply with the Data Processing Addendum (“DPA”), attached hereto as Schedule A.

2.1 Fees. The fees for the Payment Services (“Payment Processing Fees”) will be as set forth in the application, order forms, statements of work, ordering documents, or other fee schedule or disclosure provided as part of the onboarding process (each, an “Order”), and will be set off from processed funds as they are processed or automatically debited via ACH from the Merchant Bank Account when due. Merchant hereby authorizes Provider, each Payment Partner, their financial institutions, and any of their assignees to collect amounts owed under these Payment Terms (including, but not limited to, the Payment Processing Fees, any liabilities arising under these Payment Terms, and any fees Merchant owes Payment Partners pursuant to the Processor Agreements or ACH Partner Agreement) by setting off such amounts from amounts otherwise due to Merchant under the such agreements and by debiting funds from the Merchant Bank Account (“ACH Debit Authorization”). All payments are non-refundable.. All fees owed pursuant to these Payment Terms are exclusive of any applicable taxes, unless otherwise provided. Merchant agrees that all ACH transactions authorized pursuant to the ACH Debit Authorization will comply with all Applicable Law and with the Network Rules, and that Customer is bound by the Nacha rules with respect to each such transaction. Notwithstanding anything to the contrary, Payment Processing Fees may be amended upon thirty (30) days’ prior notice to Merchant, and Merchant’s continued use of the Payment Services after such notice period shall constitute Merchant’s consent to the amended Payment Processing Fees.
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‍2.2 Disputes. If Merchant believes that there is an error in any statement provided by Provider or any information reported by Provider regarding a Transaction, or any error made in the amount of a payment or settlement, Merchant must notify Provider within thirty (30) days of Merchant’s receipt of the statement or payment containing the error or it will waive such claim.

‍2.3 Tax Reporting. Provider or Payment Partners, as determined by between them, may send documents to Merchant and the Internal Revenue Service (“IRS”) or other tax authority for Transactions processed using the Payment Services. Provider may have tax reporting responsibilities in connection with the Payment Services such as an Internal Revenue Service report on Form 1099-K (which reports Merchant’s gross transaction amounts each calendar year to the IRS), or state or other taxing authority requirements. Merchant acknowledges that Provider or Payment Partners (as determined in their sole discretion) will report the total amount of Transactions received by Merchant in connection with the Payment Services each calendar year as required by the taxing authorities. Merchant will cooperate with Provider and Payment Partners in providing accurate and complete tax reporting information, including any other information that may be required by the taxing authorities to fulfil tax reporting described herein. Merchant represents and warrants that all information that it submits for tax reporting purposes is complete and accurate to the best of its knowledge, and that Provider and Payment Partners may rely on all such information submitted by Merchant. Merchant agrees that neither Provider nor Payment Partners will be liable for any penalty or other damages stemming from any 1099-K form that is issued incorrectly if it comports with the information provided by Merchant, and neither Provider nor Payment Partners will have any obligation to verify the legal name or tax ID number for reporting purposes. Merchant understands and agrees that Provider and Payment Partners may submit tax reporting information exactly as provided by Merchant. Notwithstanding the foregoing, Provider and Payment Partners may in their sole discretion investigate or validate any tax reporting information or other information submitted by Merchant.

‍2.4 Electronic Delivery of Tax Documents. In connection with the tax reporting activities described above, Merchant may elect to receive electronic delivery of the referenced tax-related documents from Provider or Payment Partners, including through Provider’s platform or another online portal whereby Merchant can access and download the applicable statements. If Merchant elects to receive tax documents electronically, it will provide such consent by clicking an “I Accept” or similar button or checking a box captioned with acceptance and consent language (“Tax E-Delivery Consent”). The Tax E-Delivery Consent will remain in effect until withdrawn by Merchant. The Tax E-Delivery Consent may be printed or downloaded. If Merchant does not specifically consent to the electronic delivery of tax-related documents, Merchant will receive paper copies of all required tax-related documents, including Form 1099-K. Provider or Payment Partners will notify Merchant once the applicable tax forms become available via the email address Provider has on file for Merchant.

3.1 Laws and Rules. Merchant agrees to comply at all times with all Applicable Law and Network Rules. Merchant must also comply with any additional data protection standards and policies set forth in the Processor Agreements and ACH Partner Agreements. Furthermore, Merchant acknowledges and agrees that it is fully responsible for all acts and omissions of its employees, contractors, and agents and will ensure their compliance with all Applicable Law and Network Rules as well as Merchant’s other obligations under the Payment Terms, the Terms of Service, and the Processor Agreements and ACH Partner Agreements.

‍3.2 Transactions. Merchant understands that any Transactions must be bona fide sales between Merchant and its Customer, and any issues relating to a Transaction are solely between Merchant and such Customer. Merchant is solely responsible for all liabilities associated with Merchant’s payment processing activity and use of the Payment Services, including without limitation with respect to chargebacks, refunds, returns, identity theft, fraud and any assessments or fees imposed by Processor, a sponsor bank, the payment networks or any third party. Merchant is responsible for determining what, if any, taxes apply to the goods and services Merchant provides to its Customers and the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report, and remit the correct tax to the appropriate tax authority. Merchant will comply with any and all applicable tax laws, including those in connection with Transactions.

‍3.3 Prohibited Activities. Merchant will not use the Account or Payment Services for any activity that is illegal, fraudulent, prohibited by Payment Partners or Provider from time to time, or that is otherwise in breach of the Payment Terms, Terms of Service, the Processor Agreements, or ACH Partner Agreements. Merchant agrees to use best efforts to ensure: (a) Merchant does not use the Payment Services for the sale of any product or service which violates Applicable Law or any applicable Network Rules; and (b) that the Payment Services will not be used for any Merchant product or service which appears in the Prohibited and Restricted Products and Services List (except for products or services in the “restricted” category for which an express waiver has been agreed by Payment Partners and Provider). Such a waiver by Payment Partners and Provider should not be interpreted as an opinion or advice of Payment Partners or Provider as to the legality of the relevant Merchant products and services under Applicable Law or the Network Rules and of the use of the Payment Services therefor.

‍3.4 Fraud Monitoring. Provider and Payment Partners may monitor Transactions for the purpose of determining fraudulent activity and whether Merchant is in good standing. Such monitoring, if conducted, will be for the benefit of Provider and Payment Partners, only. Provider does not have any obligation to monitor Transactions on Merchant’s behalf. Based on Provider’s methods, which are subject to change without notice, Provider may decide to suspend Merchant’s access to the Payment Services, or in other ways limit Merchant’s privileges to the extent Provider deems necessary or useful to prevent fraud or losses. Without limiting the foregoing, Provider may, in its sole discretion or at the direction of Payment Partners, delay sending instructions on Merchant’s behalf if Provider reasonably believes that Merchant’s instructions may involve fraud or misconduct, or violate any Applicable Law, Network Rules, these Payment Terms, or other applicable Provider or Payment Partners’ policies, as determined by Provider or Payment Partners in their sole and absolute discretion.

‍3.5 Cardholder Fee Programs. If Merchant elects to impose a fee on Customers with respect to Transactions (including a surcharge for credit cards, a convenience fee, service fee or other similar type of fee) or implement a discount based on the type of payment method used for a Transaction (including cash, check, or ACH) (collectively, “Cardholder Fee Program”), Merchant must first seek approval from Provider. Merchant must comply with, and is solely responsible for its compliance with, all applicable Network Rules and all present and future federal and state laws and regulations relating to any such Cardholder Fee Program and any required consumer disclosures related thereto. Although Provider may, in its discretion, assist Merchant with disclosures and practices relating to such Cardholder Fee Programs, Provider’s provision or approval of any materials or practices shall not be deemed a confirmation that such materials or practices comply with the Network Rules or Applicable Law and shall not in any way relieve Merchant from its responsibility to ensure that all program materials and practices comply with the Network Rules and Applicable Law. Merchant must provide Provider with at least thirty (30) days prior written notice before implementing (or announcing publicly that it intends to implement) any Cardholder Fee Program that would be considered a surcharge program under the Network Rules.

‎‎4. Merchant Losses. Merchant is solely responsible for chargebacks, fines, assessments, penalties, Payment Processing Fees, currency conversion differences, and other losses otherwise owed by Merchant pursuant to or in connection with these Payment Terms and the Processor Agreements and ACH Partner Agreements, as applicable (collectively, “Merchant Losses”). If Provider determines in its sole discretion that Merchant is incurring excessive Merchant Losses, Provider may establish controls or conditions governing Merchant’s use of the Payment Services, including without limitation, by (a) establishing new fees (including but not limited to Payment Processing Fees); (b) instructing Payment Partners to require a Merchant reserve in an amount determined by Provider or Payment Partners; (c) instructing Payment Partners to delay payouts; and/or (d) terminating these Payment Terms and access to the Payment Services. Additionally, Merchant authorizes Provider and Payment Partners to withhold, deduct, or debit the amount of any Merchant Losses assessed or incurred by a third party from the Merchant Bank Account or offset from any amounts otherwise due to Merchant. Further, if Provider reasonably believes that a chargeback is likely with respect to any Transaction, Provider may instruct Payment Partners to withhold the amount of the potential chargeback from payments otherwise due to Merchant until such time that: (i) a chargeback is assessed, in which case Provider will retain the funds; (ii) the period of time under Applicable Law or the Network Rules by which the cardholder may dispute the Transaction has expired; or (iii) Provider determines that a chargeback on the Transaction will not occur, in which case Provider will instruct the release of the withheld funds to Merchant. Provider is not obligated to intervene in any dispute arising between Merchant and Customers. Notwithstanding anything to the contrary herein, if Provider or Payment Partners choose to conduct an investigation or resolve any pending dispute related to Merchant Losses, Merchant will assist Provider or Payment Partners when requested, at Merchant’s expense, to investigate such Merchant Losses. Merchant will timely submit all applicable information, documentation, or evidence related to such chargeback to Provider or Payment Partners, within the timeframe instructed by Provider or Payment Partners, necessary for them to meet card network timelines for submitting evidence and responding to a chargeback. Merchant authorizes Provider to share information about a chargeback with the Customer, the Customer’s financial institution, and Merchant’s financial institution in order to investigate or mediate a chargeback. Merchant acknowledges that its failure to assist Provider or Payment Partners in a timely manner when investigating a Transaction, including providing necessary documentation within the time period specified in Provider or Payment Partners’ request, may result in an irreversible chargeback. Provider or Payment Partners may charge a fee as set forth in the Order, Processor Agreements, or ACH Partner Agreements for mediating or investigating chargeback disputes, in addition to any other chargeback fees set forth in the Payment Terms, Processor Agreements, or ACH Partner Agreements, if applicable. Provider and Payment Partners reserve the right to change such fees at any time. If Provider reasonably suspects that the Merchant’s access to the Provider platform or Payment Services has been used for an unauthorized, illegal, or criminal purpose, Merchant gives Provider express authorization to (but understands that Provider is not obligated to) share information about Merchant and any Transactions with law enforcement. Merchant will pay all costs and expenses, including without limitation attorneys’ fees, other legal expenses, and handling fees incurred by or on behalf of Provider in connection with the collection of Merchant Losses. Merchant understand and agrees that additional terms related to Merchant Losses may be set forth in the Processor Agreements or the ACH Partner Agreements. This Section will survive termination of these Payment Terms.

5.1 Indemnification.

       5.1.1 In addition to the indemnification obligations under the Processor Agreements, the ACH Partner Agreements, and the Terms of Service, Merchant will indemnify and hold harmless Provider and its officers, affiliates, and representatives from and against any and all losses, damages, costs (including legal fees), claims, and assessments, incurred arising out of or in any way related to: (a) Merchant’s breach of any of its obligations, representations, warranties or covenants in these Payment Terms; (b) the Processor Agreements, ACH Partner Agreements, or Merchant’s use of the Payment Services, including all activity on the Account; (c) Merchant’s violation or non-compliance with any Applicable Law or Network Rules (including non-compliance of PCI-DSS); (d) all Merchant Losses; (e) Merchant’s implementation of a Cardholder Fee Program; and (f) Merchant’s fraud, gross negligence, or willful misconduct.

       55.1.2 Provider will indemnify and hold harmless Merchant and its officers, affiliates, and representatives from and against any and all losses, damages, claims, and other amounts incurred resulting from third party claims to the extent directly and solely arising out of: (a) Provider’s violation or non-compliance with any Applicable Law, rule, regulation, or order; and (b) Provider’s gross negligence, fraud, or willful misconduct.

‍5.2 Warranty Disclaimer & Limitation of Liability. MERCHANT AGREES THAT MERCHANT’S USE OF THE PAYMENT SERVICES SHALL BE AT MERCHANT’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PAYMENT SERVICES AND MERCHANT’S USE THEREOF. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF THE PAYMENT SERVICES. PROVIDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY IN CONNECTION WITH THE PROCESSING SERVICES, AND PROVIDER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN MERCHANT AND THIRD-PARTY PROVIDERS (INCLUDING PROCESSOR AND ACH PARTNER) OF PRODUCTS OR SERVICES, INCLUDING THE PAYMENT SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, MERCHANT SHOULD USE MERCHANT’S BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO MERCHANT OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROVIDER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PROVIDER’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 5.1.2, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PAYMENT TERMS EXCEED IN THE AGGREGATE THE TOTAL PAYMENT PROCESSING FEES MERCHANT PAID TO PROVIDER UNDER THE PAYMENT TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. FOR THE AVOIDANCE OF DOUBT, MERCHANT AGREES AND ACKNOWLEDGES THAT ANY ASSESSMENT, FINE, PENALTY, FEE, OR COST OTHERWISE IMPOSED BY PROCESSOR, ACH PARTNER, A BANK, A PAYMENT NETWORK, A GOVERNMENT AGENCY, OR A REGULATOR WILL BE DEEMED TO BE A DIRECT DAMAGE AND NOT INDIRECT, CONSEQUENTIAL, OR INCIDENTAL FOR WHICH MERCHANT IS SOLELY LIABLE.

‍5.3 Force Majeure. Provider is not responsible for any delay or failure in performing its obligations under these Payment Terms, in whole or in part, for any cause or circumstance outside its reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, failures of Payment Partners or other third party provider, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.

6.1 Term. These Payment Terms will begin on the Effective Date for the Payment Services and will continue for one (1) month (“Initial Term”) unless earlier terminated in accordance with this Section. These Payment Terms will automatically renew for consecutive one (1) month renewal terms (each a “Renewal Term” and together (and individually) with the Initial Term, the “Term”) unless either Party gives the other Party written notice of non-renewal no less than ten (10) days before the end of the then-current Term. For purposes of this Section 6.1, Merchant’s notice of intent not to renew can also be provided by submitting a notice of cancellation through the Merchant portal on Provider’s platform.

‍6.2 Termination by Provider. Provider may terminate these Payment Terms immediately, with or without notice, if: (a) Merchant breaches any provision of the Payment Terms or any Processor Agreements or ACH Partner Agreements; (b) Merchant or its employees or agents use the Payment Services in a manner inconsistent with the intended purpose; (c) Merchant or its employees or agents violate any Applicable Laws or Network Rules; (d) Provider is required to terminate the Payment Terms by a Payment Partner or a government agency, payment network, or other regulator; or (e) Provider’s agreement with a Payment Partner is terminated for any reason. Provider will not be liable to Merchant or any other third party for termination of the Payment Services under this Section 6.2 for any reason. Upon the termination of the Processor Agreements, ACH Partner Agreements, or the Merchant’s Account for any reason, these Payment Terms will automatically terminate.

‍6.3 Effect of Termination. The termination of these Payment Terms will not affect any of Provider’s rights or Merchant’s obligations arising hereunder. After termination of the Payment Terms, the Processor Agreements, ACH Partner Agreements, and/or Merchant’s Account, Merchant will continue to be liable for all chargebacks, refunds, fees, payment network liabilities, credits, and adjustments resulting from or relating to Transactions processed prior to such termination. The termination of Merchant’s access to Payment Services will be effective immediately upon termination of the Payment Terms. Merchant authorizes Provider to notify Payment Partners of any termination of the Payment Terms; however, Merchant is responsible for manually closing its Account separately in accordance with each Payment Partners’ procedures.

7.1 Precedence. Any inconsistency, conflict, or ambiguity between the Payment Terms and Terms of Service will be resolved by giving precedence and effect to these Payment Terms, but only to the extent of the inconsistency, conflict, or ambiguity. Other than as expressly amended by the Payment Terms, all other provisions of the Terms of Service will remain in full force and effect.

‍7.2 Amendments. Except as otherwise expressly stated, the Payment Terms may only be amended with the written consent of both Parties. Notwithstanding the foregoing, Provider reserves the right to amend the Payment Terms immediately and without the consent of Merchant if such amendment is required to comply with Applicable Law, Network Rules, the directives of the Payment Partners or any payment network, or to pass through any increases in third party costs and fees (including but not limited to fees and assessments charged by Payment Partners, payment networks, or Provider’s vendors or service providers). Provider will use reasonable efforts to give Merchant thirty (30) days’ prior notice of any such amendment.

7.3 Choice of Law and Venue; Arbitration Agreement.  

      7.3.1 Choice of Law and Venue. These Payment Terms will be governed by the choice of law and venue provisions set forth in the Terms of Service.

      7.3.2 Arbitration Agreement.  

‍ a) PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

b) If a dispute subject to this Section 7.3.2 (referred to herein as “Arbitration Agreement”), arises between Merchant and Provider in connection with this Agreement, the Parties agree to use their best efforts to settle any such dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either Party initiating arbitration. This requires first providing a description of the dispute to the other Party. For any dispute initiated by Merchant, Merchant agrees to send the written description of the dispute to support@getflexpoint.com or to call Provider’s customer service representative at 415-854-8947 between 9 a.m. – 5 p.m. Eastern time weekdays (other than holidays). For any dispute initiated by Provider, Provider will send its description of the dispute to the email address disclosed on your Order. The communication must be on an individual basis and provide, at minimum, the following information: Merchant’s name; a description of the nature or basis of the claim or dispute; and the specific relief sought. If any dispute is not resolved by such good faith negotiations, the dispute shall be resolved through final and binding arbitration administered by JAMS unless you have otherwise opted out of the Arbitration Agreement (as defined below). The arbitration shall take place in Minneapolis, MN. The term “dispute” means any dispute, action, claim, or other controversy between Merchant and Provider, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under Applicable Law.

c) The Parties agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to the provision or use of the Payment Services, or any other dispute between Merchant and Provider shall be resolved exclusively through binding arbitration in accordance with this Arbitration Agreement. The Federal Arbitration Act ("FAA") shall exclusively govern the interpretation and enforcement of the Arbitration Agreement. In connection with any arbitration proceeding hereunder, the rules of discovery and procedure of the applicable governing state law will apply and supersede the JAMS Arbitration Rules and Procedures unless the Parties mutually agree otherwise. The arbitration will be before a single, party-appointed arbitrator, unless the Parties agree otherwise. During the arbitration proceeding, the claimant shall pay the initial case management fee upon filing and the Parties shall each pay its share of the JAMS fees and expenses as they are periodically billed by JAMS. The prevailing Party, as determined by the arbitrator, shall be entitled to receive recovery of all of its portion of the paid fees as well as reimbursement of its reasonable attorneys’ fees by the non-prevailing Party, including expert witness fees and fees on any appeal.

d) Except as set forth in Section 7.3.2(e) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the Parties nevertheless agree that the arbitrator or court should endeavor to give effect to the Parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

e) The Parties understand that, absent this Arbitration Agreement, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY EACH WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT, ANY SERVICES, ANY TRANSACTIONS, OR ANY RELATIONSHIPS CONTEMPLATED UNDER THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

f) IN ADDITION, THE PARTIES ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) ARBITRATION WILL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY; AND (II) THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE THE INDIVIDUAL PARTY’S CLAIM. If there is a final judicial determination that Applicable Law precludes enforcement of this Arbitration Agreement’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration proceeding and may be sought in court. The Parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

g) Provider will provide Merchant with thirty (30) days’ prior notice of any material changes to this Arbitration Agreement (“Arbitration Amendment”). Merchant may opt out of the Arbitration Amendment in accordance with Section 7.3.2(h).

 h) Merchant may opt out of this Arbitration Agreement within the first thirty (30) days after the Effective Date of the Agreement. Merchant may also opt out of this Arbitration Agreement within thirty (30) days after we notify you regarding a material change to this Arbitration Agreement. To opt out, Merchant must send an email to support@getflexpoint.com or send a letter to Provider in accordance with Section 7.5. The email or letter must include Provider’s printed name, mailing address, and the words “Reject Arbitration.”

i) All claims filed or brought by Merchant contrary to this Arbitration Agreement shall be considered improperly filed and a breach of the Arbitration Agreement. Should Merchant file a claim contrary to the Arbitration Agreement, Provider may recover allowable attorneys’ fees and cost, provided that Provider has notified Merchant in writing of the improperly filed claim and Merchant has failed to promptly withdraw the claim.

‍7.4 Counterparts. The Payment Terms may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An electronic signature shall be accepted as an original for all purposes. The Payment Terms may be executed and delivered by electronic means (including click-to-accept) and the Parties agree that such electronic execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each Party may use such electronic signatures as evidence of the execution and delivery of the Payment Terms to the same extent that an original signature could be used.

‍7.5 Notices. . Unless otherwise indicated, all notices to be made by Merchant to Provider must be in writing and sent to Provider at the following address:
           LendARR, Inc.
‍            14451 Highway 7
           Minnetonka, MN 5534

Notices will be deemed given: (a) upon personal delivery; or (b) when received by Provider if sent by a nationally recognized overnight courier or certified mail via the United States Postal Service (in both instances, receipt requested).

7.6 Survival. All portions of these Payment Terms that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Licensing, Indemnification, and Dispute Resolution sections.

‍7.7 Definitions.  
“ACH” means the Automated Clearing House.
“Applicable Law” means all applicable present and future federal and state laws, rules, regulations and orders.
“Customers” means the clients of Merchant who wish to purchase Merchant’s goods or services using the Payment Services.
“Merchant Bank Account” means the depository account capable of receiving ACH entries which is held at a U.S. financial institution in the name of Merchant that has been identified by Merchant (via routing and account number) on its Order.
“Nacha” means the National Automated Clearing House Association which promulgates the rules of the ACH network.
“Network Rules” means the rules and regulations of all applicable payment networks, including the rules of any applicable card brand (i.e., Visa, Mastercard, American Express, and Discover), industry standards such as the Payment Card Industry Data Security Standards (“PCI-DSS”), and the rules and regulations of Nacha.
“Payout” means a payment made to a third party as instructed by Merchant in connection with the Split Payment Service.
“Transaction” means a transaction involving Merchant’s goods or services which are processed through the Payment Services pursuant to these Payment Terms and the respective Processor Agreements or ACH Partner Agreements.

This Data Processing Addendum (“Addendum”) supplements the Payment Processing Terms of Services (“Agreement”) entered into by and between LendARR Inc. (dba FlexPoint)(“Provider”) and Merchant. Any terms not defined in this Addendum will have the meaning set forth in the Agreement.

‍1 Definitions

1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

1.2 “Applicable Laws” means any applicable laws, rules and regulations in any relevant jurisdiction applicable to the Addendum, the Agreement or the use or Processing of Personal Data, including those concerning privacy, data protection, confidentiality, information security, availability and integrity, or the handling of Personal Data. Applicable Laws expressly include, but are not limited to, as applicable: (i) the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”); (ii) the Virginia Consumer Data Protection Act (“VCDPA”); (iii) the Colorado Privacy Act (“CPA”); (iv) the Utah Consumer Privacy Act (“UCPA”) and (v) in each case, as updated, amended or replaced from time to time.

1.3 “Authorized Person” means an employee of either Party or an employee of a Party’s Affiliate who has a need to know or otherwise access Personal Data to enable a Party to perform its obligations under this Addendum or the Agreement and who has been apprised of the confidential nature of Personal Data before they may access such data and who has undergone appropriate background screening and training.

1.4 “Business” or “Data Controller” means the Merchant which alone determines the purposes and means of the Processing of Personal Data.

1.5 “Consumer” or “Data Subject” means a natural person about whom Merchant holds Personal Data pursuant to the Agreement and who can be identified, directly or indirectly, by reference to that Personal Data.

1.6 “Consumer Rights” or “Data Subject Rights” means the rights recognized and granted to Data Subjects with respect to their Personal Data under Applicable Laws.

1.7 “Personal Data” means any information relating to an identified or identifiable living individual that is transmitted through the use of the Software in connection with, the provision of the Services under the Agreement. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. Aggregated data or encrypted data that Provider cannot reidentify is not considered Personal Data.

1.8 “Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data other than (a) through the use of a Merchant’s or any of Merchant’s Authorized Persons’ generated password that, consistent with the settings and permissions in the respective Service, has rights to access such Personal Data, or (b) access by Provider personnel or Subprocessor personnel whose access to or use of such Personal Data is for the purpose of performance of the Services as permitted under this Agreement and applicable law.

1.9 “Process” or “Processing” means any operation or set of operations performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

1.10 “Service Provider” or “Data Processor” means Provider, which Processes Personal Data on behalf of and pursuant to the instructions of Merchant.

1.11 “Services” shall have the meaning set forth in the Agreement.

1.12 “Sensitive Personal Data” means data that is also Personal Data but includes a subsect of Personal Data that constitutes: “sensitive personal information,” “sensitive data,” or any similar category of information subject to Applicable Laws.

1.13 “Subprocessor” means any third party appointed by or on behalf of Provider to process Personal Data. “Processor,” as defined in the Agreement, is Payrix, which is a Subprocessor under this Addendum.

‍2 Processing of Data and Compliance with Applicable Laws

2.1 The Parties shall comply with this Addendum at all times during the term of the Agreement. Any failure by either party to comply with the obligations set forth in this Addendum will be considered a material breach of the Agreement, and the other party will have the right, without limiting any of the rights or remedies under this Addendum or the Agreement, or at law or in equity, to immediately terminate the Agreement for cause.

2.2 The rights and obligations of Provider with respect to Processing are described herein and in the Agreement.

2.3 Provider shall only Process Personal Data for the limited and specified purposes described in the Agreement, the terms set forth in this Addendum and in any written instructions provided by Merchant.

2.4 Provider hereby certifies that it understands its restrictions and obligations set forth in this Addendum and will comply with them.

2.5 Provider shall promptly inform Merchant if, at any time while the obligations of this Addendum remain in effect, Provider is unable to comply with any of the obligations of this Addendum, including Provider’s obligations to comply with Applicable Laws.

2.6 Provider certifies that it understands the restrictions and obligations set forth in this Addendum and will comply with them.

2.7 Merchant represents and warrants that: (i) it will comply with all Applicable Laws; (ii) any written instructions it provides to Provider will comply with all Applicable Laws, and (iii) it will make the required disclosures and obtain the necessary consents for Provider to process Personal Data. Merchant will notify Provider if, in the opinion of Merchant, an instruction it gave Provider violates Applicable Laws.

2.8 If Merchant cannot comply with Applicable Laws in the performance of its obligations to Provider, Merchant agrees to promptly inform Provider of its inability to comply, in which case Provider may suspend the processing of Personal Data, terminate the Agreement, or otherwise stop processing Personal Data and remediate any issues that arise as a result of Merchant’s failure to comply with Applicable Laws.

2.9 Provider acknowledges and confirms that it does not receive any Personal Data from Merchant as consideration for any services or other items provided to Merchant. Except as expressly set forth in the Agreement, Provider shall not have, derive or exercise any rights or benefits regarding Personal Data provided by a Consumer through Merchant (“Consumer Data”) and Provider shall not sell any Consumer Data, as defined by Applicable Laws. Provider shall not retain, use or disclose any Consumer Data except as necessary for the specific purpose of performing the Services for Merchant pursuant to the Agreement. Provider certifies, represents, and warrants that it understands the rules, restrictions, requirements and definitions of Applicable Laws, including without limitation the CPRA, and agrees to refrain from taking any action that would cause any transfers of Consumer Data to or from Provider to qualify as a sale of personal information under Applicable Laws, including without limitation the CPRA. The terms “personal information,” “sale,” and “sell” under the CPRA for the purposes of this Section 2.9 are as defined in Section 1798.140 of the California Consumer Protection Act (“CCPA”).

2.10 Merchant hereby instructs Provider to transfer Personal Data to any country or territory as reasonably necessary for the provision of the Services and consistent with this Addendum.

2.11 For any onward transfers of Personal Data from the European Economic Area and its member states, United Kingdom and/or Switzerland (collectively, “Restricted Countries”) via the Services to a country that does not ensure an adequate level of protection (within the meaning of and to the extent governed by the Applicable Laws of the Restricted Countries), such transfers will be governed by a valid mechanism for the lawful transfer of Personal Data recognized under Applicable Laws. For clarity, for transfers from the United Kingdom and Switzerland, references in the standard contractual clauses under Applicable Laws (“SCCs”) will be interpreted to include applicable terminology for those jurisdictions (e.g., “Member State” will be interpreted to mean “United Kingdom” for transfers from the United Kingdom). Where applicable, each party hereto agrees to abide by and transfer Personal Data from the Restricted Countries in accordance with the EU SCCs and UK Addendum, respectively, and where applicable, which are incorporated into this Addendum by reference, and the parties will cooperate in good faith to amend terms to accomplish this.

‍3. Security of Personal Data.

3.1 Provider shall in relation to the Personal Data implement procedural, administrative and technical data security safeguards consistent with industry standards and Applicable Laws, taking into account the nature and sensitivity of the Personal Data.

3.2 Upon Merchant’s written request, or, upon the termination or expiration of the Agreement for any reason, Provider shall, and shall ensure that all Authorized Persons, promptly and securely dispose of or return to Merchant in an encrypted format, at Merchant’s choice, all copies of Personal Data.

3.3 Where and to the extent disposal of Personal Data in accordance with Section 3.2 is explicitly prevented by Applicable Laws or technically infeasible, Provider or Authorized Persons, as applicable, shall (i) take measures to block such Personal Data from any further Processing (except to the extent necessary for continued Processing explicitly required by Applicable Laws), and (ii) continue to exercise appropriate Technical and Organizational Security Measures to protect such Personal Data until it may be disposed of in accordance with Section 3.2.

‍4. Subprocessing and Authorized Personnel

4.1 Provider shall take reasonable steps to ensure that access to Personal Data is limited to those individuals who need to know/access the Personal Data to provide the Services, and (ii) ensure that all individuals it authorizes to process Personal Data are bound by confidentiality obligations (whether by contract or under Applicable Laws) in respect of the processing of Personal Data.

4.2 Merchant acknowledges that Provider may engage Subprocessors in connection with providing the Services. Merchant grants Provider a general written authorization in this DPA to engage Subprocessors for the processing of Personal Data on behalf of Merchant, which includes without limitation, the Subprocessors listed in the attached Exhibit 1. Provider has entered, and for new Subprocessors will enter, into a written agreement with each Subprocessor that offers at least the same protection of Personal Data as Provider is bound to provide and impose the same obligations as those imposed on Provider on the basis of the Agreement and this DPA. Provider will carry out adequate due diligence to ensure Subprocessors are capable of providing the appropriate level of protection for Personal Data.

4.3 Provider will notify Merchant if it appoints a new Subprocessor before authorizing any new Subprocessor to process Personal Data in connection with the Services.

4.4 If Merchant has a reasonable basis to object to the use of a new Subprocessor, then Merchant may object to Provider’s use of the new Subprocessor by notifying Provider promptly in writing within fourteen (14) days after receipt of Provider’s notice. If Merchant reasonably objects to a new Subprocessor and Provider does not resolve Merchant’s reasonable objection within a reasonable period of time not to exceed fourteen (14) days, either Party may terminate the portion of the Agreement relating to the Services involving the objected to new Subprocessor (which may involve termination of the entire Agreement) by providing written notice to the other Party. Termination under this Section 4.4 will be without fault to either party. Each party shall remain responsible and liable for its compliance with Applicable Laws and any obligations ensuing from the Agreement and this DPA.

‍5. Personal Data Breach

5.1 Provider shall notify Merchant of a Personal Data Breach as soon as reasonably practicable, but in any event, not more than forty-eight (48) hours after confirming such Personal Data Breach.

5.2 In the event of a Personal Data Breach, Provider will provide Merchant with such details as Merchant reasonably requires regarding: (i) the nature of the Personal Data breach, including the categories and approximate numbers of data subjects and Personal Data records concerned; (ii) any investigations into such Personal Data Breach; (iii) the likely consequences of the Personal Data Breach; and (iv) any measures taken, or that Provider recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects and prevent the re-occurrence of the Personal Data Breach.

5.3 Provider may give Merchant phased updates as additional information regarding the Personal Data Breach becomes available to Provider; and provide reasonable cooperation and assistance to Merchant in relation to any remedial action to be taken in response to a Personal Data Breach, but will not notify any data subjects of the Personal Data Breach, absent Merchant’s explicit instruction or as required by any law, rule, regulation or binding court order to which Provider is subject.

5.4 Merchant may share any notification and details provided by Provider under this Section 5 with the appropriate governmental/supervisory authority if required to do so under Applicable Laws.

‍6. Rights of Consumers and Assistance with Compliance Obligations.

Provider will provide such assistance as is reasonably required to enable Merchant to comply with Data Subject Rights requests within the time limits imposed by Applicable Laws.

‍7. Recordkeeping.
‍
7.1 Recordkeeping. Provider shall maintain records and information in accordance with Applicable Laws to demonstrate its compliance with this Addendum (“Records”).

7.2 Verification Requirements. On request, Provider shall make available to Merchant all Records necessary to demonstrate compliance with this Addendum and the Applicable Laws, and shall cooperate with verification, including inspections, by Merchant or its third-party auditors in relation to the Processing of Personal Data.

‍8. Government, Law Enforcement, and/or Third-Party Inquiries.

If a party receives a demand to retain, disclose, or otherwise Process Personal Data, including, but not limited to law enforcement or a government authority with appropriate jurisdiction or from a third party pursuant to legal process (“Third-Party Demand”), such party will provide information to the other party and to such third-party concerning the Third-Party Demand, to the extent legally permitted to do so under applicable law, and will allow such second Party or the affected third party to seek a protective order or other appropriate remedy. This section does not diminish either party’s obligations under the SCCs with respect to access by public authorities.

‍9. Data Retention.  

Provider will only retain Personal Data for so long as reasonably necessary to provide the Services and as necessary to comply with its obligations under Applicable Laws.

‍10. Miscellaneous

10.1 This Addendum may be amended or modified only by a writing signed by both Parties. Both parties may disclose this Addendum to third parties (including other businesses, Consumers and regulators) for purposes of demonstrating compliance with Applicable Laws.
‍
10.2 If an amendment to this Addendum is required to comply with Applicable Laws, both parties shall work together in good faith to promptly execute a mutually agreeable amendment.
‍
10.3 If any individual provisions of this Addendum, are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this Addendum shall not be affected.
‍
10.4 This Addendum may be executed in one or more counterparts, each of which shall be deemed to be an original executed copy of the Addendum.
‍
10.5 This Addendum shall automatically terminate upon the termination or expiration of the Agreements under which the Services are provided.
‍
10.6  In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) Applicable Laws; (2) the terms of this Addendum; and (3) the Agreement.

LIST OF SUB-PROCESSORS
Merchant has authorized the use of the following Subprocessors:

Name: Azure, Microsoft Corporation  
Address: One Microsoft Way, Redmond, WA 98052

Name: Tilled Inc.  
Address: 2955 Valmont Road, Suite 220, Boulder, CO 80301

Name: Payrix  
Address: 8500 Governors Hill Drive, Symmes Township, Cincinnati, OH 45249

Name: Skyflow, Inc.  
Address: 195 Page Mill Road, Suite 111, Palo Alto, CA 94306

Name: Dwolla  
Address: 909 Locust Street, Suite 201, Des Moines, IA 50309