Credit Card Processor - ConnexPay Terms and Conditions

ConnexPay is one of the Primary Card providers within Private Tabs - Mobile, the following are there terms, for full license license agreement or list of Private Tabs terms of service please visit http://privatetabs.com/terms otherwise you'll see the specific terms to ConnexPay below. 

HEREAS: ConnexPay works with a network of partners to allow ConnexPay clients to facilitate payments to suppliers of goods and services (the “Payment Service” as further defined below), andWHEREAS, Client has entered into an agreement for the administration of Supplier payments with an organization that provides services ancillary to the Payment Services but that does not directly provide payment services (“Referral Partner”); and

WHEREAS ConnexPay has partnered with Referral Partner so that Referral Partner may refer Referral Partner client to ConnexPay for Payment Services;

NOW THEREFORE, the Parties hereby agree as follows:

Section 1. Definitions.

For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:

Agreement: This agreement and the Application, which is incorporated herein by reference.

AML: policies and procedures relating to the prevention of money laundering and the financing of terrorism.

Ancillary Fees: Any service-related assessments, fees, fines, penalties, or other charges ancillary to the Payment Services that are imposed on ConnexPay by the Card Brands, a Member Bank, a regulator or other third-party providers and incurred as a result of the processing of Client transactions or Client’s actions or inactions including but not limited to, any amounts due as a result of Chargebacks, settled and unsettled authorizations, refunds or PCI fines.

Applicable Law: In respect of a Party, all applicable laws, treaties, regulations, and conventions (including any laws governing the holding or transmitting of money) and all applicable rules, regulations, and requirements of any regulatory authorities (including, if and to the extent applicable, Card Brand Rules and the PCI DSS) in any jurisdiction to which that Party is subject.

Application: ConnexPay’s request for Client information which shall include a statement of Client’s financial condition, a description of the Client’s business or organization, and any other financial, organizational, or credit-related information requested by ConnexPay or Member Bank, and provided in a form acceptable to them, which may be updated from time to time.

Card Brand: A payment method provider whose payment method is accepted by ConnexPay for processing, including, but not limited to, Visa, U.S.A., Inc., Mastercard International, Inc., and Discover Financial Services, LLC. Card Brand shall also include the Payment Card Industry Security Standards Council.

Card Brand Rules: The bylaws, operating regulations, rules, policies and procedures as defined by the Card Brands.

Chargeback: A disputed card transaction resulting in a withdrawal of funds from a Client Account.

Client Account: The Collection Account and/or the Operating Account.

Collection Account: A subledger account established on behalf of Client within a bank account in the name of the Member Bank, each created for the purpose of settling funds associated with the Payment Services in this Agreement.

Confidential Information: The confidential information of Party, including (i) any data or information that is a trade secret or competitively sensitive, any commercial, marketing, technical or other information relating to the business activities of the Parties; (ii) any other information made available to a Party by another Party which would reasonably be understood to be confidential, whether or not such information is reduced to a tangible form or marked in writing as “confidential”, such as, information included in Client’s Application; and (iii) any and all information which has been or which may be derived or obtained from any of the information detailed in (i) or (ii).

ConnexPay Platform: The ConnexPay software, APIs and related documentation made available to Client for the purposes of accessing the Payment Service.

Data Incident: Any suspected or actual unauthorized access, disclosure, theft, or unauthorized use of Personal Data.

Effective Date: The date the Agreement is fully executed by the Parties.

Electronic Payments Regulator: National Association Clearing House (NACHA) or other applicable governing body or regulator having jurisdiction over the electronic funds transfer Payment Method elected by Client on Exhibit A.

Fines and Penalties: Fines, penalties and other non-compliance assessments of any kind imposed by a Member Bank, Card Brand, Electronic Payment Regulator, or other applicable governing or regulatory body having jurisdiction over a Party or a Partner as a result of Clients use of the Payment Services, except to the extent caused by ConnexPay’s gross negligence.

Force Majeure Event: Force Majeure Event: Forces beyond the reasonable control of a Party including, without limitation, labor disputes, fire, weather or other casualty or natural catastrophes or acts of God, power outages, however caused, governmental orders or regulations, acts of war or terrorism, civil or military disturbances, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware,) or any other cause, whether similar or dissimilar to the foregoing, beyond the Parties’ reasonable control.

Issued Cards: Any virtual cards or physical cards as may be offered by ConnexPay as part of the Payment Services from time to time.

Issuing Bank: A financial institution licensed by a Card Brand to sponsor third-party organizations to issue Issued Cards on behalf of the Client to Suppliers.

KYC: policies and procedures appropriate to verifying the identity, suitability, and risks involved with maintaining a business relationship with a particular customer, (whether an individual or a business), including but not limited to review against OFAC Sanctions Lists.

Laws: The laws, rules, or regulations of a governing body with authority over a Party, the Card Brand Rules and PCI-DSS.

Member Bank: Issuing Bank or other partner bank, providing bank accounts for purposes of delivering the Payment Services, as jointly or individually referenced.

Minimum Cash Balance: The cash balance which is required to be retained in the Collection Account in an amount equal to ConnexPay’s reasonable estimate of Payment Service Liabilities.

Net Settled Issued Card Volume: The total money volume of issued transactions that have settled, less all returns or any other reduction to gross monthly settlement volume.

Operating Account: A checking or similar account established in Client’s name, held at a regulated financial institution acceptable to ConnexPay and which Client has authorized, ConnexPay, or ConnexPay’s agent to access via the ACH system (or a suitable alternative) for the purposes of transferring Client funds.

Payment Method: Forms of payment made available to Client by Referral Partner for Supplier payments (examples may include, Issued Cards, ACH Transactions (or other forms of electronic funds transfer payment method made available by ConnexPay) or Push to Card Transactions.

Payment Services Funds: The amount of Client funds needed to cover Supplier Payment instruction amounts expected to be paid to Client Suppliers and any Ancillary Fees.

Payment Services Liabilities: The Payment Services Funds, Fees, Amounts paid to Suppliers hereunder, Chargebacks, Fees, Fines and Penalties, Taxes, or other expenses and costs incurred by ConnexPay or its Partners on Client’s behalf, or imposed directly upon Client by a Partner, pursuant to the Payment Services, including but not limited to Ancillary Fees.

PCI-DSS: The Payment Card Industry Data Security Standard.

Personal Data: Information that can be used to identify, locate, or contact an individual, alone or when combined with other personal or identifying information, or in the case of data processed by ConnexPay relating to data subjects in the United Kingdom or the European Union, as set forth in the ConnexPay Data Processing Addendum at https://connexpay.com/legal-regulatory-and-privacy-dpa/.

Secured Assets: has the meaning ascribed to the term in Section 9 of this Agreement.

Secured Obligations: has meaning ascribed to the term in Section 9 of this Agreement.

Supplier: A third-party supplier of the goods or services to whom Client makes payments on behalf of its customers or from whom Client makes purchases on its own behalf under this Agreement.

Supplier Payment Instructions: Instructions for payment via Issued Cards or otherwise issued by a Client under this Agreement for the distribution of funds from the Collection Account to Suppliers, provided in a manner acceptable to ConnexPay.

Taxes: Any applicable taxes and other fees, charges, penalties, interest, and other additions thereto levied by a governmental body with authority over Client, ConnexPay or its Partners, the Payment Service, or over any funds transferred under this Agreement.

Vendor: A third-party service provider (other than ConnexPay or its Partners) used by Client in connection with the Payment Service received hereunder, including but not limited to, Client’s software providers, equipment providers, and/or third-party payment processors, or gateways.

Other capitalized defined terms in this Agreement shall have the meaning ascribed to them herein.

Section 2. Payment Services.

1. ConnexPay Obligations:

a. ConnexPay shall, directly or through its network of Partners:

i. provide Client with access to ConnexPay’s application program interface (“API”) and user interface (“UI”) so that Client may access the ConnexPay Platform to issue instructions and view and manage account status and reporting;

ii. establish a Collection Account at Member Bank on behalf of Client;

iii. communicate Client instructions for execution by the Member Bank in relation to the disposition of Client funds from the Client Account as follows:

1. accept Client funds by deposit into the Collection Account;

2. cause funds in the Collection Account to be remitted to Suppliers in amounts solely determined by Client, using the Payment Method elected by Client;

3. refund cancelled Issued Card amounts from the Collection Account back to the Operating Account;

4. cause settlement of Payment Services Liabilities in accordance with the Agreement; and

iv. provide timely Reporting to Client.

2. Client Obligations:

a. Client hereby authorizes and instructs Connexpay to issue instructions related to the delivery of Payment Services to Client to the Member Banks on Client’s behalf in accordance with the terms of this Agreement.

b. Client shall:

i. complete and maintain the Application with complete and accurate information and promptly notify ConnexPay in writing of any change to the Application on file. Client agrees that ConnexPay or Member Bank may utilize third parties to verify the information provided on the Application. ConnexPay and Member Banks shall be entitled to rely on the information in the Application (including as updated from time to time) to set up and administer the Payment Services to Client and for compliance purposes. Client shall cooperate in good faith to provide reasonable and necessary information requested by ConnexPay or Member Banks for the duration of the Agreement;

ii. notify ConnexPay in writing within three (3) days of any lien, judgement, writ, warrant of attachment, execution or levy against twenty-five percent (25%) or more of Client’s assets;

iii. designate the Client Operating Account and authorize and enable access by ConnexPay and Member Bank for the limited purposes described in this Agreement;

iv. actively monitor the Collection Account and maintain a balance adequate to fund all Payment Services Funds, as set forth in Section 5(2) below.

v. for each purchase of Supplier goods and/or services, identify the Payment Method and direct the disbursement of funds in the Collection Account with corresponding Supplier Payment Instructions; and

vii. review the Reporting and the Client Accounts on a daily basis and immediately notify ConnexPay of any discrepancy regarding the Payment Service.

3. Access and Use:

a. Accessing the Payment Services

i. ConnexPay Platform: If Client will access the Payment Service using the ConnexPay Platform, then, subject to compliance with all the terms and conditions of this Agreement, ConnexPay hereby grants Client a non-exclusive, non-transferable right to access and use the ConnexPay Platform and Intellectual Property during the Term for purposes of receiving the Payment Services. Such right is solely for use by those of Client’s employees, consultants and contractors who are authorized by Client to access and use the Services under the rights granted to Client in this Agreement (“End Users”). Such use is limited to Client’s internal use. Client shall not use the Payment Services for any purposes other than as described in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any End Users to: (i) copy, modify, or create derivative works of the Services (ii) reverse engineer otherwise attempt to derive or gain access to any software component of the Payment Services, in whole or in part; or (iii) use the Payment Services in violation of the Agreement or in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or Applicable Law. Client is responsible for maintaining the security of any access credentials under its control, including those of End Users.

ii. Referral Client Platform: If Client has a separate contract for services with Referral Partner which provides client with a user interface through which Client may access Payment Services (the “Referral Partner Portal”), Client shall issue payment instructions to ConnexPay via the Referral Partner Portal. ConnexPay is not responsible for, and Client shall not make a claim arising from, any delay, inaccurate information or other failure or errors caused by the Referral Partner Platform.

b. Payment Services. Client may use the Payment Service as follows:

i. Client is the only authorized user of the Payment Method and the Payment Services or attempt to designate a third party as the authorized user of the card. Client customers may not further resell ConnexPay services or allow use of the Payment Services or Payment Methods by a third party.

ii. Issued Cards may be issued only for identifiable goods and services in non-sanctioned counties and only to non-sanctioned organizations and individuals and are subject to an approved list of Merchant Category Codes (MCC’s) and businesses determined by ConnexPay, the Member Bank or a Card Brand from time to time.

iii. Consumer transactions must be for the express purpose of buying a product or service from Client directly and payments to Suppliers arising from consumer transactions must align to the purpose for which they were intended in the underlying consumer transaction. Consumer transactions may be subject to a limited list of MCC’s, accordingly. For clarity, Payment Services may not be used to enable consumer-funded transactions that can obfuscate the consumer transaction, e.g., where funds are used to fund a wallet or to convert one form of fiat (cash, ACH) into another form of currency or fiat (cards, cryptocurrency) for any purpose. Example: a consumer funds an account/wallet and then a virtual card is issued and given to either that same consumer or another consumer for the purpose of transacting – even if it is to purchase a product or service. Value loaded Issued Cards may be permitted by ConnexPay in writing, in its sole discretion, if they can only be used at a specific, approved, merchant/retailer.

vi. Payment Services may only be used for business or commercial purposes and not for personal, family, household, or other non-business purposes.

c. Client shall immediately inform ConnexPay of an occurrence or the likelihood of an occurrence pursuant to which the carrying out of its business is in violation of these use parameters or is likely to be considered unlawful under Applicable Laws.

Section 3. Intentionally Omitted.

Section 4. Audit Rights.

Upon request, Client shall grant ConnexPay (and/or a third-party auditor under appropriate confidentiality obligations, on ConnexPay’s behalf) permission to audit, examine, or review relevant books and records solely to verify compliance with the terms and conditions of this Agreement. Each audit will be pre-scheduled in writing with Client reasonably in advance and for a mutually agreeable time period, and, except in the case of a good faith belief by ConnexPay of a material breach of this Agreement by Client, or at the request of a Member Bank or Card Brand, will be performed no more than once each calendar year. Each Party shall bear its own expenses in connection with an audit and both Parties shall be entitled to a copy of the audit findings. All information obtained during any such audit shall be deemed Confidential Information hereunder.

Section 5. Establishment and Use of Client Accounts.

1. Client hereby expressly authorizes ConnexPay and/or Member Bank to establish a Collection Account on its behalf. By law, all financial institutions must obtain, verify, and record information that identifies each person or business entity that establishes an account. Upon request by ConnexPay or a Member Bank, Client shall provide the Member Bank with Client’s legal entity name, principal and local (if different) address, date of establishment, employer identification number and other information and any other reasonable documentation requested by Member Bank from time to time. Client agrees that ConnexPay and Member Bank may seek information about Client from third parties for KYC purposes and for other Client Account related purposes.

2. Client shall fund the Collection Account in a manner approved by ConnexPay as follows:

a. Prefunding: Client shall prefund the Collection Account in the amount necessary to cover all Payment Services Funds. ConnexPay shall not be required to fulfill all or part of any Supplier Payment Instructions if adequate funds are not available in the Collection Account to complete the payment in full. Clients using prefunding shall not direct ConnexPay or its Partners to distribute funds to any Supplier in excess of the amount then held in the Collection Account.

b. Funding on Settlement: At ConnexPay’s sole discretion, in lieu of prefunding, Client may fund the Collection Account upon settlement. Settlement activity will be made available daily to Client via the ConnexPay Platform and via email. For purposes of this Section 5(2)(b), Client shall, at all times, maintain a Minimum Cash Balance and shall fund the Collection Account in an amount equal to the settlement activity and any Ancillary Fees each day.

3. Client hereby expressly authorizes ConnexPay to issue instructions on its behalf related to the disposition of funds to and from the Client Account as set forth in this Agreement. Client shall not direct ConnexPay to distribute or utilize funds in the Collection Account for any purpose other than providing the Payment Service.

4. Except as set out in this Agreement, Client shall not convey, pledge, or assign any interest in the funds held in any Collection Account except as expressly authorized in advance in writing by ConnexPay. Any attempted conveyance, pledge, or assignment of the Client interest in funds in the Collection Account without ConnexPay’s prior written authorization, shall be deemed null and void.

5. Client shall not be entitled to collect interest on any funds held in the Collection Account.

Section 6. Sufficiency of Funds.

1. Payment relating to the funding of the Collection Account is due daily by 11am Eastern Standard Time through either ACH debits or through a wire to the Collection Account. If the Collection Account is not funded by 11am Eastern Standard Time, ConnexPay may settle any amounts due from a Client Account as set forth in Section 5.2. Client shall pay interest in an amount equal to the lesser of an annualized rate of 18% and the rate allowed by applicable law for failure to timely fund the Collection Account.

2. If the funds in the Collection Account are insufficient to satisfy the Payment Services Funds, ConnexPay, or its Member Banks, shall be entitled to debit the Operating Account in an amount equal to such deficiency. Should ConnexPay receive an ACH debit rejection from the Operating Account bank, ConnexPay shall inform Client of the deficiency in writing and Client shall promptly transfer any outstanding funds to the Collection Account. In addition to the late funding interest in section 5.1, ConnexPay may charge an administrative fee for any ACH debit or credit rejects.

Section 7. Compensation.

1. Compensation for the Payment Services to Client is set forth in the Agreement between Referral Partner and ConnexPay wherein ConnexPay is entitled to deduct its fees and other processing costs from interchange earned on transactions processed under this Agreement. Any remaining Rebate shall be paid by ConnexPay to Referral Partner directly. Rebates to be paid to Client shall be determined by Client and Referral Partner pursuant to the agreement between and Client and Referral Partner and Client shall bring any claims or disputes that arise as a result of Referral Partner distribution of payments to Clients directly against Referral Partner.

2. Client shall be responsible for its own direct and indirect costs in connection with and/or related to (i) Client’s initial connection to the ConnexPay system or a Referral Partner’s system, as applicable; (ii) receipt of the Payment Service; or (iii) Client’s conversion from ConnexPay upon the termination or expiration of this Agreement.

Section 8. Term and Termination.

1. This Agreement shall be effective as of the Effective Date and shall continue for a period of three (3) years (the “Initial Term”), after which it shall automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless either Party provides written notice of its intent not to renew ninety (90) days prior to the expiration of the then-current Renewal Term.

2. Subject to Paragraph 8.4 below, ConnexPay may suspend any or all of the Payment Services where any of the following occur (each a “Event of Default“) or terminate any or all of the Payment Services | the Event of Default is not cured within 30 days of written notice of the Event of Default:

a. Client is in breach of its representations, warranties or obligations under this Agreement, including but not limited to its obligations under Section 2.3

b. Client is holding insufficient funds in the Client Accounts to settle its obligations under this Agreement, is over-indebted or is otherwise unable to, or fails to or is likely to fail to, meet its financial obligations under this Agreement;

c. Client is not using the Payment Services as intended, or is using the Payment Services in a manner that is reasonably likely to cause reputational damage to ConnexPay or its Partners;

d. ConnexPay knows or reasonably suspects that fraud has occurred, is occurring, or is likely to occur with regard to Client or the Payment Service;

e. Client or the Supplier Payment Instructions are in violation, or reasonably likely to be in violation, of Applicable Laws;

f. ConnexPay receives an instruction from Member Bank or a Card Brand to suspend all of the Payment Services;

g. Client becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, which involuntary proceeding is not dismissed or stayed within thirty (30) days, or a receiver is appointed for Client, or Client makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due; or

h. Client commences a dissolution or the winding up of business or ceases to do business.

3. Where ConnexPay suspends the Payment Services as a result of an Event of Default, ConnexPay shall be entitled to continue any such suspension until the Event of Default has been resolved to ConnexPay’s satisfaction.

4. Notwithstanding anything to the contrary herein, if ConnexPay determines that (i) an Event of Default cannot be or has not been cured within a reasonable time; or (ii) termination is required by Applicable Law, the Member Bank or a Card Brands for any reason; then ConnexPay may terminate the Agreement immediately upon written notice.

5. Client may terminate this Agreement for cause upon written notice if ConnexPay is in breach of its obligations, representations, or warranties under this Agreement, and fails to cure such breach within thirty (30) days of written notice of breach by Client.

Section 9. Security Interest.

1. Grant of Security Interest. Client hereby grants a first priority lien and security interest in and to any Collection Account and all funds, deposits and proceeds at any time held in the Collection Account (the “Secured Assets”), whether now or hereafter existing or arising, to secure any and all amounts at any time due or owing to ConnexPay and ConnexPay’s Partners, including, without limitation, as follows: (i) to Member Bank in an amount equal to any outstanding payments issued in accordance with the Supplier Payment Instructions which have not been settled; and (iii) to ConnexPay for any unpaid Payment Services Liabilities other than those amounts in Sections (i) and (ii) herein. (All rights set forth here in Section 9(a), together, the “Secured Obligations”).

2. Representations and Warranties. Client represents and warrants that no other person or entity has a security interest in the Secured Assets. Client agrees that ConnexPay and Member Bank shall have all rights afforded under the Uniform Commercial Code, any/or other Applicable Law, and in equity with regard to the Secured Assets and the Secured Obligations. Client must obtain ConnexPay’s written consent prior to granting a security interest of any kind in the Secured Assets to a third party. ConnexPay and Member Bank may enforce these security interests without notice or demand. ConnexPay and Member Bank’s interest in the Secured Assets shall survive termination of this Agreement until all obligations to ConnexPay and Member Banks are satisfied.

3. Information and Perfection of Security Interest. Upon request of ConnexPay or Member Banks, Client will provide one or more financial statements, outside bank account information, or other financial documents requested under this Section 9. Client acknowledges ConnexPay’s security interest in the Secured Assets, including the funds, deposits and proceeds held in the Collection Account and that ConnexPay has, and at all times during the term of this Agreement, exclusive access to and control of the Collection Account. Client shall timely cooperate with ConnexPay in obtaining any control agreement or similar agreement with a depository bank necessary or desirable to perfect or better perfect the security interests and liens granted herein. In addition, Client agrees that its signature on this Agreement is an acknowledgement and evidence of ConnexPay’s control over the Secured Assets and will be considered Client’s signature agreeing to any control agreement as addressed by Article 9 of the Uniform Commercial Code (or equivalent applicable local rule, if applicable) among Client, ConnexPay, and Member Banks without further consent by Client.

4. Bankruptcy Matters. Client agrees that ConnexPay and Member Bank are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets or effectuate any recoupment. Client further agrees not to contest or object to any motion for relief from any such automatic stay filed by ConnexPay or Member Bank.

5. Set-off and Recoupment. ConnexPay and Acquiring Bank shall have the right of recoupment and set-off such that Acquiring Bank or ConnexPay may offset and recoup any outstanding or uncollected amounts owed to Acquiring Bank, or ConnexPay (or its Partners), from any amounts owed to Client that ConnexPay or Acquiring Bank would otherwise be obligated to deposit into the Operating Account.

Section 10. Representations and Warranties.

1. Client represents and warrants

a. that the business carried on by the Client is a legitimate, lawful business and Client is not engaged, and will not engage, in any conduct or transaction which may be considered unlawful according to Applicable Law;

b. that, if applicable to Client’s business, is has and shall maintain an AML/KYC program appropriate to its business which program can be demonstrated and audited;

c. That it does not violate laws prohibiting human trafficking and that it has reviewed and to the extend applicable to its business, will comply with ConnexPay’s Anti-Human Trafficking policy found at: https://connexpay.com/trafficking/

d. it will use the Payment Services in accordance with the terms of the Agreement and Applicable Law;

e. it will not knowingly do nor omit to do anything which is disreputable, or which is capable of damaging the reputation or goodwill of ConnexPay, a Member Bank or a Card Brand;

f. as of the Effective Date, it is in good financial standing and able to perform its obligations under this Agreement.

2. Each Party represents and warrants that

a. it complies with all Applicable Laws;

b. it has all necessary power and authority to enter into this Agreement and has and will maintain all certificates, licenses, authorizations and approvals, to perform all of their respective obligations required under this Agreement and Applicable Law; and

c. to the best of its knowledge, there is no claim, or any litigation, proceeding, arbitration, investigation or material controversy pending, against or affecting it that will have a material adverse effect on its ability to perform its obligations under this Agreement.

3. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, CONNEXPAY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE PAYMENTS METHODS AND CLIENT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.

Section 11. Limitation of Liability.

1. No Party shall be liable to any other Party for indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever arising from or related to this Agreement, including without limitation loss of business, lost profits or lost goodwill and whether based on breach of any express or implied warranty, breach of contract, tort or strict liability, regardless of whether the Party has been advised of the possibility of such damage or if such damage could have been reasonably foreseen.

2. Except for (i) Party’s financial obligations to another Party under this Agreement; (ii) a breach of a Party’s compliance with Applicable Laws; or (iii) a Party’s indemnification obligations as provided herein, the maximum liability for Client, and the maximum cumulative liability for ConnexPay and its Partners, shall not exceed one hundred thousand dollars.

3. The Parties agree that the rights conferred upon ConnexPay in this Agreement are not intended to be exclusive of each other or of any other rights and remedies of available to a Party under this Agreement, at law or in equity. Each and every right of a Party under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.

Section 12. Indemnification.

1. Subject to the other limitations, terms and conditions of this Agreement, ConnexPay shall indemnify, defend, and hold harmless Client, and its directors, officers, employees, affiliates and agents from and against all third-party proceedings, claims, losses, and damages incurred by Client, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of ConnexPay’s gross negligence or willful misconduct or breach of its representations under Section 10 or 15.

2. Client shall indemnify, defend, and hold harmless ConnexPay and each of their directors, officers, employees, affiliates and agents from and against all third-party proceedings, claims, losses, damages and all reasonable collection costs, incurred by ConnexPay, its directors, officers, employees, affiliates and agents resulting from or arising out of Client’s gross negligence, willful misconduct, breach of its representations under Section 10, Section 15 or breach of Section 2.3.

3. The indemnification of each party shall survive the termination of the Agreement. The indemnified Party shall (i) provide prompt written notice of any claim to the indemnifying Party; (ii) cooperate with all reasonable requests of the indemnifying Party; and (iii) surrender exclusive control of the defense and settlement of any third party claim to the indemnifying Party provided that the indemnifying party will obtain the indemnified Party’s written consent prior to agreeing to any settlement or agreement that requires the indemnified Party to make any admission of fault or to pay any amounts in connection with such settlement or agreement that are not fully paid for by the indemnifying Party. The indemnified Party shall not unreasonably withhold or delay any consent required under this Section 12. The indemnified Party may elect to participate in the action with an attorney of its own choice at its own expense.

Section 13. Confidentiality.

1. The recipient of Confidential Information (“Recipient”) shall take care to prevent the publication and distribution of the Confidential Information with at least the same degree of care which the Recipient takes to protect its own confidential information of a similar nature, but in any case, no less than an appropriate and reasonable degree of care. The Parties shall be permitted to disclose Confidential Information to those of its subsidiaries, affiliates, Partners, and lenders who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those under this Agreement, including, but not limited to, disclosure and/or utilization of Confidential Information:

a. when necessary to perform the Payment Service;

b. when required by law;

c. to solicitors, barristers, attorneys, accountants, or other professional advisers; and

d. to bankers or other financial institutions, to the extent required for the purpose of raising funds or maintaining compliance with credit arrangements.

e. to any of Client’s third party service providers (including Referral Partner) used by Client in connection with the Payment Services.

2. The obligations of this Section 13 shall not apply to the existence of the Agreement or to information that (a) is obtained from the public domain without breaching this Agreement; (b) was lawfully and demonstrably in the Recipient’s possession before the Confidential Information was received from the disclosing Party (“Discloser”); (c) is independently developed without using or referencing the Discloser’s Confidential Information; or (d) is learned from a third party that is not subject to a confidentiality obligation.

3. Confidential Information disclosed by the Discloser (including any copies thereof) shall at all times remain the property of the Discloser and the Receiver hereby agrees and acknowledges that no right, property, title, interest, intellectual property rights or license, either express or implied, is hereby granted to the Receiver in respect of the Confidential Information (other than in accordance with this Agreement). At any time, including after termination of this Agreement, Discloser may demand in writing that Receiver return or destroy Discloser’s Confidential Information under its control. Receiver shall comply with this request within 30 days and certify in writing that it has returned or destroyed all Confidential Information. Receiver may keep an archival set of its working papers and copies of Discloser’s Confidential Information as necessary to comply with Applicable Laws and professional standards if the materials are retained and destroyed in accordance with this Agreement.

4. The obligations of this Section 13 will remain in full force and effect after the termination or expiration of this Agreement.

Section 14. Use of Marks.

Client agrees that ConnexPay may use Client’s name, trademarks, service marks, or other commercial or product designations in ConnexPay press releases and in ConnexPay promotional or marketing materials provided, however, that prior to use, ConnexPay shall provide a copy of such use to Client for Client’s approval, such approval not to be unreasonably withheld or delayed.

Section 15. Data Protection.

1. Parties warrant and undertake that (i) they will duly observe their respective obligations under applicable data protection and privacy laws and (ii) Personal Data will be handled with care, in a confidential manner. With respect to any data processed hereunder relating to data subjects in the United Kingdom or European Union, the following terms shall apply https://connexpay.com/legal-regulatory-and-privacy-dpa/, and in the event of conflict between this Section 15 and the Data Protection Addendum, the provisions of the Data Protection Addendum shall apply to such data.

2. Each Party shall take appropriate technical, organizational and administrative measures, which are designed to (i) ensure the security and confidentiality of any information obtained from the other; (ii) protect against any anticipated threats or hazards to the security or integrity of such information; (iii) protect against unauthorized access to or use of such information that could result in substantial harm to the other Party; and (iv) comply with all data security and privacy laws. Such measures shall be commensurate with the risk and harm that might result from unauthorized or unlawful processing or accidental loss, destruction, or damage to Personal Data and to the nature of Personal Data to be protected and shall include taking reasonable steps to ensure the reliability of employees having access to the Personal Data.

3. In the occurrence or the likelihood of an occurrence of a Data Incident, each Party shall immediately notify the other Party of the nature and details of such Data Incident. Each Party shall provide all necessary assistance to the other Party and any Partners to investigate and rectify any issues arising from the Data Incident and prevent future Data Incidents.

4. When applicable to the services delivered to the Client under this Agreement, at all times for the duration of this Agreement and for any period during which it retains information subject to PCI-DSS, each Party represents that it shall comply, and shall ensure, where applicable, that its Partners or Vendors comply, with PCI-DSS rules and regulations. Client will ensure that it, and its applicable Vendors, are validated as a PCI-DSS compliant service providers by a qualified security assessor approved by the PCI Security Standards Council (“QSA”). A copy of the annual PCI-DSS Report on Compliance shall be provided by Client and its applicable Vendors upon ConnexPay’s request, no more frequently than one time per calendar year, or, in the case of a good faith believe by ConnexPay of a material breach of this Agreement by Client, or at the request of a Member Bank or Card Brand. Each Party shall be liable for any for any costs, fees, fines, charges, or penalties, including any PCI-DSS forensic investigation arising from its non-compliance under this Section 15.4.

5. Client assumes full and sole responsibility for the lawful collection, delivery, and use of all Personal Data and for obtaining required consents for the provision of the Payment Service. Without prejudice to the generality of the foregoing, Client shall obtain all necessary consent to (i) disclosure of Personal Data to ConnexPay and (ii) ConnexPay’s processing and disclosure of Personal Data to Partners or to any Client third party service providers used by Client in connection with the Payment Service or compliance with applicable privacy related rules, laws, or regulations.

6. ConnexPay shall use, store, disclose, dispose, and otherwise handle Personal Data in accordance with this Agreement and will only process Personal Data as necessary for the performance of the Payment Service or as required by Applicable Law.

7. Neither Party shall assume responsibility for the other Party for any breach of such Party’s obligations under applicable data protection laws.

Section 15. Taxes.

Each Party will be responsible, as required under applicable law, for identifying and paying all Taxes that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All Fees payable by Client are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes. If ConnexPay or its Partners are compelled to collect and remit Taxes on Client’s behalf, ConnexPay shall promptly notify Client in writing.

Section 16. General Provisions.

1. Each Party will ensure that it and all persons acting on behalf of or associated with that Party shall: (a) comply with the Bank Secrecy Act or equivalent applicable local law and all other applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (the “Relevant Requirements”); (ii) not engage in any activity, practice or conduct which would constitute an offence under any of the Relevant Requirements; (c) not do, or omit to do, any act that may lead the other party to be in breach of any of the Relevant Requirements; (d) promptly report to the other Party any breach of the Relevant Requirements or any request or demand for any undue financial or other advantage received by it in connection with this Agreement. Each Party shall have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate. Each Party shall, at all times during the term of this Agreement, conduct its business in compliance with all applicable sanction laws, regulations and regimes imposed by relevant authorities.

2. Notices. All notices under the Agreement will be in writing and will be delivered or sent by (a) to the physical address below by first class U.S. mail, registered or certified, return receipt requested, postage pre-paid, or, (b) U.S. express mail, or national express courier with a tracking system, or (c) to the email address below containing a subject line reasonable designed to indicate that notice is being made under the Agreement (save that service of any notice of any legal proceedings in connection with this Agreement shall not be effective by e-mail unless also made by hand or post).

If to ConnexPay:

27299 Riverview Center Blvd, Suite 104

Bonita Springs, Florida 34134

Attn: Ben Peters, CEO

bpeters@connexpay.com

With a copy to Legaldept@connexpay.com

If to Client, to the person designated as the contact on the Application at the physical and email addresses for that individual on the Application.

3. Independent Contractors. The relationship of ConnexPay and Client is that of independent contractors. Except as specifically as required for ConnexPay and its Partners to perform the Payment Services, neither Party has any authority to act on behalf of the other Party or to bind it, and in no event will the Parties be construed to be partners, employer employee, or agents of each other.

4. Entire Agreement. This Agreement constitutes the entire agreement between ConnexPay and Client and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made in accordance with the provisions of this Agreement and/or as agreed by both Parties in writing.

5. Assignment. No Party shall assign, novate or otherwise transfer this Agreement or any or all of their rights and/or obligations under this Agreement nor any part of it, nor any benefit nor interest in or under it, to any third party without the prior written consent of the other Party which consent shall not be unreasonably withheld, it being understood that ConnexPay is legally prohibited from performing services for any entity that has not successfully passed ConnexPay’s standard financial due diligence and AML/KYC review. Notwithstanding the forgoing ConnexPay may assign, novate or otherwise transfer this Agreement without the consent or approval of Client to an affiliate, in connection with a merger, reorganization, recapitalization or sale of all of or substantially all of its respective stock, business or assets.

6. Severability. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the Parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect.

7. Waiver. Any failure by a Party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.

8. Force Majeure. Notwithstanding any provision contained in the Agreement, neither Party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or, except with respect to either Party’s financial obligations, prevented by a Force Majeure Event.

9. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to conflicts of law provisions. The parties hereby consent and submit to service of process, personal jurisdiction, and venue in the state and federal courts in Delaware and select such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement, and/or pertaining in any way to the relationship between the Parties. CLIENT HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY.

10. Survival. Any covenant, term or provision of this Agreement which, in order to be effective, must survive the termination or expiration of this Agreement, will survive any such termination or expiration.

11. Amendment. Any alteration, modification, change or revision of the provisions of this Agreement is valid only if made in writing and executed by the Parties hereto, except as otherwise expressly provided herein.

12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument.

Authority the individual executing this Agreement certifies that he/she is an authorized principal, partner, officer, or other authorized representative of the respective Party identified on the Application and is thereby fully authorized to bind the Party to the contractual obligations as defined in this Agreement.