INTRODUCTION

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

COLLECTION OF PERSONAL INFORMATION

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

USE OF PERSONAL INFORMATION

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

SHARING OF PERSONAL INFORMATION

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

PROTECTION OF PERSONAL INFORMATION

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

DATA RETENTION

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

YOUR PRIVACY RIGHTS

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

THIRD-PARTY PROCESSORS

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

INFORMATION FOR CHILDREN

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

OPT-IN CONSENT

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

CHANGES TO THIS PRIVACY POLICY

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

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

1.1 ACH PROCESSING

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

1.2 ACCOUNT AND AUTHORIZATION

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

1.3 CANCELLATION

Either party may cancel this Agreement with 60 days’ written notice to the other party, subject to the terms and limitations set forth in the TERM AND TERMINATION paragraph of this Agreement. ACHQ may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’S ODFI or any regulatory agency, regardless of the reason for the request; (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Rules or Regulations and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’S control or ACHQ no longer has the ability to process transactions for Merchant.

1.4 CONSUMER CREDIT INQUIRIES

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

2.0 MERCHANT RESPONSIBILITIES

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2.1 AUTHORIZATION

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

2.2 AUTHENTICATION

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

2.3 REPRESENTATIONS REGARDING AUTHORIZATION

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

2.4 IDENTIFYING NUMBERS

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

2.5 INTENTIONALLY OMITTED

2.6 REGULATORY COMPLIANCE

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

2.7 TAX NAME AND ID

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

2.8 TAX REPORTING OBLIGATIONS

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

2.9 RECORDKEEPING REQUIREMENTS

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

2.10 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER

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

2.11 INDEMNITY

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

3.0 ACHQ RESPONSIBILITIES

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3.1 ACCEPTING TRANSACTIONS

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

3.2 ORIGINATING TRANSACTIONS

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

3.3 RETURNED ENTRIES AND NOCS

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

3.4 SETTLEMENTS AND FINALITY

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

3.5 NO WARRANTY

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

3.6 LIMITS OF LIABILITY

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

4.0 ADDITIONAL TERMS AND CONDITIONS

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4.1 FEES AND PAYMENT

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

4.2 VOLUME ANALYSIS

ACHQ will routinely analyze Merchant origination and return activity. In the event Merchant exceeds a return rate outside the maximum return rates determine by NACHA Rules, ACHQ shall have the right to place all of the provisional or final credit provided to Merchant for each Debit Entry originated by it into an account held by ACHQ for a period of 2 years from the last Debit Entry. In addition to all other Merchant accounts from which ACHQ is authorized under this Agreement to obtain payment of funds owed by Merchant, ACHQ shall have the right to offset and pay itself from the account described in this paragraph for all returned Entries, chargebacks, refunds or credits issued, fees, damages (including liquidated damages), or other costs and expenses (including attorneys’ fees and costs) that may arise out of ACH processing for Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement.

4.3 CONFIDENTIALITY

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

4.4 GOVERNING LAW AND VENUE

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

4.5 JURY TRIAL WAIVER

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

4.6 AGREEMENT MODIFICATION

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

4.7 NOTICES

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

4.8 EXCLUSIVE AGREEMENT

Intentionally Omitted

4.9 TERM AND TERMINATION

This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by ACHQ at any time with sixty (60) days’ written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give ACHQ sixty (60) days written notice of Merchant’s intent to terminate the Agreement. ACHQ must approve the Merchant’s request for early termination in writing, which approval will not be unreasonably withheld. Notwithstanding ACHQ’S rights to cancel this Agreement as stated elsewhere in this Agreement, ACHQ may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’S ODFI or any regulatory agency (regardless of the reason for the request); (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’s control or ACHQ no longer has the ability to process transactions for Merchant. Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, ACHQ’S obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, ACHQ will place all unsettled funds due to be settled into a Reserve Account to be released in accordance with the RESERVE ACCOUNT paragraph of this Agreement.

4.10 DAMAGE WAIVER

ACHQ will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party knew or should have known the likelihood of these damages in any situation. ACHQ makes no representations or warranties other than those expressly made in this Agreement.

4.11 RESERVE ACCOUNT

For Merchants where Reserve Accounts are required Merchant acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants. This amount will remain in the Reserve Account for a period of 2 years following the last debit, credit, or return Entry initiated on the Merchant Account. Merchant acknowledges and agrees that this Reserve Account will be used to fund any and all returned items. In addition, ACHQ shall also have the right to offset and pay itself from the Reserve Account for all returned Entries, fees, damages, or other costs and expenses (including attorneys’ fees and costs) that may arise out of ACH processing for the Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement. For purposes of funding the Reserve Account, ACHQ agrees to accept the reserve in full by wire transfer or deduct an amount agreed upon in writing by both parties as a percent of each debit origination until such time that the entire 100% percent reserve amount is reached. In the event a reserve is held, it is solely the responsibility of Merchant to notify ACHQ of an impending release based on the 2 year calculation. Merchant acknowledges and agrees that, until such time as all of the amounts owed by Merchant and its obligations, including its obligation to pay all returns, are paid to ACHQ in full, all funds in the Reserve Account shall be considered to be held by ACHQ for ACHQ sole interest, benefit, and protection, shall be considered to be the property of ACHQ, and shall not be considered to be held for the benefit of Merchant or be considered to be an asset for or property of Merchant.

4.12 FUNDING POLICY

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

4.13 AUDIT REQUIREMENTS

ACHQ and its ODFI shall have the right to audit Merchant concerning its compliance with the Rules and applicable Regulations.

4.14 CUSTOMER SERVICE

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

4.15 NON-SOLICITATION

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

4.16 ENTIRE AGREEMENT

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

4.17 SEVERABILITY

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

4.18 INTERPRETATION; WAIVER

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

4.19 ASSIGNMENT

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

4.20 EXECUTION IN COUNTERPARTS’ COPIES

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

4.21 BINDING CONTRACT

This Agreement shall be binding on both parties only upon execution by an authorized representative of ACHQ.

5.0 PERSONAL GUARANTY

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To endure and in consideration of ACHQ’s acceptance of the Merchant Application and this Agreement, the undersigned absolutely and unconditionally guarantees to ACHQ full and prompt payment and performance when due of each any every condition and obligation of Merchant under this Application and Agreement, including all exhibits and amendments thereto. The undersigned guarantor(s) further acknowledges and agrees to pay all expenses of collection on this guaranty, including reasonable attorneys’ fees incurred by reason of the default of the Merchant or the default of the guarantor(s). The undersigned guarantor(s) waives prior demand on Merchant. ACHQ shall not be required to first proceed against Merchant to enforce any other remedy before proceeding against the undersigned personal guarantor(s). This is a continuing and irrevocable guaranty which shall not be discharged or affected by the death of the undersigned, shall bind heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any other successor of ACHQ. The term of this personal guaranty shall be for the duration of the Agreement, and any other addendum or amendment thereto, and shall guarantee all obligations which may arise or accrue during the term thereof although enforcement may be sought subsequent to any termination.

6.0 THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT

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

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

[1] Restricted Activities

 

• Customers Who Pose Reputational Risk:

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

 

• Sexually Oriented and Pornographic Businesses, Materials & Services

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

 

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

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

 

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

[2] [Intentionally Left Blank]

[3] Actions by ACHQ

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

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

[4] Amendments

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

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

Electronic delivery of communications

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

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

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

Hardware and software requirements

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

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

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

How to withdraw your consent

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

Requesting paper copies of electronic Communications

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

Updating your contact information

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

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

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

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

Using the ACHQ Embed Platform Services

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

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

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

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

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

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

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

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

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

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

Onboarding Merchant Accounts

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

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

Basic Onboarding

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

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

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

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

Advanced Onboarding

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

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

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

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

Merchant Acceptance

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

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

Embed Platform Revenue Sharing

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

Privacy and Data Security

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

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

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

Confidentiality

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

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

Term and Termination

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

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

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

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

Representations and Warranties

1. You represent and warrant to ACHQ that you,

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

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

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

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

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

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

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

Other Legal Terms

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

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

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

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

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

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

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

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

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

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

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

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

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

1.0 ACH Agreement Terms and Conditions

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

1.1 ACH PROCESSING

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

1.2 ACCOUNT AND AUTHORIZATION

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

1.3 CANCELLATION

Either party may cancel this Agreement with 60 days' written notice to the other party, subject to the terms and limitations set forth in the TERM AND TERMINATION paragraph of this Agreement. ACHQ may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ'S ODFI or any regulatory agency, regardless of the reason for the request; (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Rules or Regulations and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ'S control or ACHQ no longer has the ability to process transactions for Merchant.

1.4 CONSUMER CREDIT INQUIRIES

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

2.0 MERCHANT RESPONSIBILITIES

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2.1 AUTHORIZATION

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

2.2 AUTHENTICATION

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

2.3 REPRESENTATIONS REGARDING AUTHORIZATION

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

2.4 IDENTIFYING NUMBERS

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

2.5 INTENTIONALLY OMITTED

2.6 REGULATORY COMPLIANCE

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

2.7 TAX NAME AND ID

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

2.8 TAX REPORTING OBLIGATIONS

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

2.9 RECORDKEEPING REQUIREMENTS

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

2.10 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER

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

2.11 INDEMNITY

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

3.0 ACHQ RESPONSIBILITIES

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3.1 ACCEPTING TRANSACTIONS

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

3.2 ORIGINATING TRANSACTIONS

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

3.3 RETURNED ENTRIES AND NOCS

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

3.4 SETTLEMENTS AND FINALITY

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

3.5 NO WARRANTY

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

3.6 LIMITS OF LIABILITY

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

4.0 ADDITIONAL TERMS AND CONDITIONS

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4.1 FEES AND PAYMENT

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

4.2 VOLUME ANALYSIS

ACHQ will routinely analyze Merchant origination and return activity. In the event Merchant exceeds a return rate outside the maximum return rates determine by NACHA Rules, ACHQ shall have the right to place all of the provisional or final credit provided to Merchant for each Debit Entry originated by it into an account held by ACHQ for a period of 2 years from the last Debit Entry. In addition to all other Merchant accounts from which ACHQ is authorized under this Agreement to obtain payment of funds owed by Merchant, ACHQ shall have the right to offset and pay itself from the account described in this paragraph for all returned Entries, chargebacks, refunds or credits issued, fees, damages (including liquidated damages), or other costs and expenses (including attorneys' fees and costs) that may arise out of ACH processing for Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement.

4.3 CONFIDENTIALITY

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

4.4 GOVERNING LAW AND VENUE

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

4.5 JURY TRIAL WAIVER

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

4.6 AGREEMENT MODIFICATION

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

4.7 NOTICES

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

4.8 EXCLUSIVE AGREEMENT

Intentionally Omitted

4.9 TERM AND TERMINATION

This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by ACHQ at any time with sixty (60) days' written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give ACHQ sixty (60) days written notice of Merchant's intent to terminate the Agreement. ACHQ must approve the Merchant's request for early termination in writing, which approval will not be unreasonably withheld. Notwithstanding ACHQ'S rights to cancel this Agreement as stated elsewhere in this Agreement, ACHQ may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ'S ODFI or any regulatory agency (regardless of the reason for the request); (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ's control or ACHQ no longer has the ability to process transactions for Merchant. Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, ACHQ'S obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, ACHQ will place all unsettled funds due to be settled into a Reserve Account to be released in accordance with the RESERVE BALANCE paragraph of this Agreement.

4.10 DAMAGE WAIVER

ACHQ will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party knew or should have known the likelihood of these damages in any situation. ACHQ makes no representations or warranties other than those expressly made in this Agreement.

4.11 RESERVE ACCOUNT

For Merchants where Reserve Accounts are required Merchant acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants. This amount will remain in the Reserve Account for a period of 6 months following the last debit Entry initiated by Merchant. Merchant acknowledges and agrees that this Reserve Account will be used to fund any and all returned items. In addition, ACHQ shall also have the right to offset and pay itself from the Reserve Account for all returned Entries, fees, damages, or other costs and expenses (including attorneys' fees and costs) that may arise out of ACH processing for the Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement. For purposes of funding the Reserve Account, ACHQ agrees to accept the reserve in full by wire transfer or deduct an amount agreed upon in writing by both parties as a percent of each debit origination until such time that the entire 100% percent reserve amount is reached. In the event a reserve is held, it is solely the responsibility of Merchant to notify ACHQ of an impending release based on the 6 month calculation. Merchant acknowledges and agrees that, until such time as all of the amounts owed by Merchant and its obligations, including its obligation to pay all returns, are paid to ACHQ in full, all funds in the Reserve Account shall be considered to be held by ACHQ for ACHQ sole interest, benefit, and protection, shall be considered to be the property of ACHQ, and shall not be considered to be held for the benefit of Merchant or be considered to be an asset for or property of Merchant.

4.12 FUNDING POLICY

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

4.13 AUDIT REQUIREMENTS

ACHQ and its ODFI shall have the right to audit Merchant concerning its compliance with the Rules and applicable Regulations.

4.14 CUSTOMER SERVICE

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

4.15 NON-SOLICITATION

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

4.16 ENTIRE AGREEMENT

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

4.17 SEVERABILITY

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

4.18 INTERPRETATION; WAIVER

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

4.19 ASSIGNMENT

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

4.20 EXECUTION IN COUNTERPARTS' COPIES

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

4.21 BINDING CONTRACT

This Agreement shall be binding on both parties only upon execution by an authorized representative of ACHQ.

5.0 PERSONAL GUARANTY

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Intentionally Omitted

6.0 THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT

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