Client Services Terms And Conditions

By completing and signing the Client Services Application and Agreement (“Application”) the client designated in the Application (“Client”, “Originator”, “you”, “your”) agrees to, and shall be bound by, the terms, conditions and provisions in these Client Services Terms and Conditions. Actum Processing, LLC (“Company”), in its sole discretion, may not permit Client to use the Service until Company has determined that Client has accepted or executed the applicable documentation and otherwise provided appropriate information and specifications for the use of the Service, and until Company has had a reasonable opportunity to review the Application and activate the Service. In any event, Client agrees that the use by Client of any Service shall, without any further action or execution or acceptance of any documentation on the part of Client, constitute Client’s acceptance of and agreement to terms and conditions for the use of such Service as may be in effect as of the time of such usage, whether set forth in this Agreement or otherwise prescribed by Company.

Therefore, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Company, intending to be legally bound, do hereby agree as follows:

1. GENERAL

Company is in the business of providing transaction processing services including but not limited to Automated Clearing House (“ACH”), account verification and consumer authentication services to Company merchant clients. Terms used in this Agreement are defined in Exhibit A attached hereto and made a part hereof. Under the terms of this Agreement, Client will be furnished with the products and services described herein and on Exhibit B, which are selected by Client (collectively and individually, as applicable, the “Services”).

2. PROCESSING SERVICES

2.1 Description of ACH Services. Client shall designate its selection of the ACH Services by executing Exhibit B ACH Services attached hereto and made a part of this Agreement. Company shall use information provided by Client to send Client’s ACH Transactions to the ACH Network on Client’s behalf. All funds collected on behalf of the Client will be scheduled for settlement to Client.

2.1.1 For a Credit Entry subject to UCC Article 4A (a) such Entry may be Transmitted through ACH; (b) credit given by the RDFI to Receiver for the Entry is provisional until the RDFI has received final settlement through a Federal Reserve Bank or otherwise has received payment as provided for in UCC Article 4A; and (c) if the RDFI does not receive such payment for the Entry, the RDFI is entitled to a refund from the Receiver in the amount of the credit to the Receiver’s account, and Originator will not be considered to have paid the amount of the Credit Entry to the Receiver.

2.2 Fees; Changes in Fees.

2.2.1 Processing Fees: Client agrees to pay Company fees (“Transaction Fees”, “Processing Fees” or “Fees”) in connection with this Agreement in an amount that is in accordance with the Processing Fee table in the applicable Exhibit B of the Agreement and in accordance with the remaining provisions of this Agreement. Unless indicated differently, a Transaction Fee applies to ACH transactions and Paper Drafts. The Transaction Fees shall be applied to Client’s Transactions during each applicable “Payment Period.”

2.2.2 The Fees for the services may be changed by Company at any time, from time to time, with 30 days prior notice to Client. Upon receipt of any notice of price increase, Client may by written notice to Company, given prior to date such price increase becomes effective, terminate this Agreement.

2.2.3 Per Occurrence Fees. Client agrees to pay Company Per Occurrence Fees as listed on Exhibit B and more fully described at www.actumprocessing.com/fees. Client acknowledges and agrees such fees may change immediately upon posting such changes to the website referenced in the preceding sentence without the need for any notice to Client.

2.3 Reserves.

2.3.1 Company may require a security deposit or “Reserve Amount” to process transactions for Client. The Reserve Amount may be used by Company to offset any returned items, unauthorized returns, fees/fines, billing or other Client obligations to Company that Company is unable to collect from Client. Client hereby grants Company a security interest in all said accounts, deposits and reserves and authorizes Company to make such withdrawals or debits at such times and in such amounts as may be necessary under this Agreement.

2.3.2 The Reserve Amount may be revised based on periodic review of Client’s transaction volumes, transaction amounts and return ratios, resulting in a greater or lesser Reserve amount. The Reserve Amount may be funded through any or all of the following: (a) Direct payment by Client; or (b) a percentage of the transactions processed on Client’s behalf.

2.3.3 The Reserve Amount shall be held by Company for a minimum of one hundred eighty (180) calendar days beyond the date of the last return received by Company on Client’s behalf. In the event Company has reason to believe that (a) Client has acted in a fraudulent manner; or (b) Client will not be able to meet its obligations to Company; or (c) that Company is at risk of incurring additional expenses due to Client’s actions, Company may extend the hold on Client’s Reserve funds up to two (2) years from the last transaction activity date or the maximum time allowed by law. The remaining Reserves will then be returned to Client less any fees and/or any other amounts owed to Company.

2.3.4 Client acknowledges and agrees that an amount equal to 20% of highest monthly origination total may be held as part of the Reserve Amount by Company. Company shall have the right to offset against amounts owed to Client for all returned Entries, fees, damages or other costs that may arise out of ACH processing for the Client. For the purposes of funding the Reserve Amount, Company agrees to capture the Reserve Amount in accordance with the terms in Exhibit B.

2.4 Settlements and Finality.

2.4.1 At the close of each Business Day, Company will calculate the amount of Client’s settlement (“Settlement Amount”), including all applicable debits, credits, fees and adjustments. If the Settlement Amount is a positive number, Company shall make a credit to Client’s Settlement Account. If the Settlement Amount is a negative number, Company shall make a debit to Client’s Settlement Account.

2.4.2 In the event that a Debit Entry to Client’s Settlement Account is returned for any reason, all Credit Entries initiated by Client may be cancelled or reversed at Company’s discretion.

2.5 Hold Times. The hold time for a Client’s funds settlement shall be according to the Agreement as reflected on Exhibit B. Should Company observe any irregular activity or suspected fraudulent activity by Client, or as required by law, Company reserves the right to place a longer hold time without prior written notice to Client.

2.6 Transaction Authorization.

2.6.1 Receiver Authorization. Client shall obtain authorization from Receiver for ACH transactions prior to originating a Transaction to Receiver’s account. Client warrants that it will use commercially reasonable methods of verifying the identity of the Receiver and will employ commercially reasonable fraudulent transaction detection systems.

2.6.2 Retention. Client shall retain proof of Receiver’s authorization for a period of not less than two (2) years for standard transactions and for a period of five (5) years for health-related transactions from the authorization date or revocation of authorization date and shall provide such proof of authorization to Company upon request within two (2) business days of the request.

2.6.3 Revoked Authorization. Client shall cease initiating Transactions to a Receiver’s account immediately upon receipt of any actual or constructive notice of that Receiver’s termination or revocation of authority. Client may re-initiate Transactions to a Receiver’s account only upon receiving new authorization from Receiver.

2.7 Unauthorized Returns, Excessive Returns; Termination.

2.7.1 Client will be charged an unauthorized return fee as specified in Exhibit B on a per occurrence basis, for every unauthorized return posted to Client’s account.

2.7.2 Using thresholds established by NACHA, Company reserves the right to suspend and/or terminate Client’s access to the Services should Client’s Return ratio exceed the established thresholds as calculated per the Rules. The NACHA return rate thresholds shall be applicable to ACH transactions.

2.7.3 Company has the right, in its sole discretion, to terminate any account, to suspend Net Client Payments and Reserve Payments indefinitely for excessive Returns or Unauthorized Returns, excessive customer fraud, or excessive use of counterfeit or unauthorized debits.

2.7.4 In compliance with the return rate reporting Rules, Client authorizes Company to release to ODFI and or NACHA all information required under the Rules without further notice to Client.

2.7.5 Client acknowledges Company’s right to reimbursement of any Unauthorized Returns or Returns associated with Client’s transactions, Company is unable, for any reason, to debit from Client’s bank account.

2.7.6 Company reserves the right to re-evaluate Client’s financial position at its own discretion throughout the course of Company’s business relationship with Client, and Client agrees to promptly provide to Company such information pertaining to Client’s financial condition, as Company may reasonably request. Such re-evaluation may result in modification of the Fee structure, Reserve Amount, applicable discount fees, type of Transactions, Exposure Limits or termination of the agreement between Client and Company in accordance with these Terms and Conditions.

2.8 Transmittal of Entries. Client shall transmit Credit and Debit Entries to Company to the location(s) and in compliance with the formatting and other requirements set forth by Company.

2.9 Exposure Limits. Client acknowledges and agrees that Company shall establish Exposure Limits for ACH files transmitted by Client to Company. Client acknowledges and agrees that Company shall monitor the ACH File(s) to ensure that the total of the ACH File(s) for that processing day received by Company does not exceed the Exposure Limit set for Client. In the event that an ACH File for Client exceeds the Exposure Limit, Company, in its sole discretion, may reject or process the ACH File. Upon request, Company shall provide the ODFI the Exposure Limits set for Client. Client acknowledges and agrees that the ODFI may establish an Exposure Limit for Company, and the ODFI may reject the ACH File if the ACH File exceeds the Exposure Limit established for Company. In the event that the ODFI rejects the ACH File for exceeding the Exposure Limit, Company, in its sole discretion, shall work with the ODFI to resolve the matter.

2.10 Security Procedures.

2.10.1 Client and Company shall comply with the security procedure as set forth by the Company with respect to Entries transmitted by Client to Company. Client acknowledges that the purpose of such security procedures is for verification of authenticity and not to detect an error in the transmission or content of an Entry. No security procedures for the detection of any such error have been agreed upon between Company and Client.

2.10.2 Client is strictly responsible to establish and maintain procedures to safeguard against unauthorized transmissions. If Client believes or suspects that any such information or instructions have been known or accessed by unauthorized persons, Client agrees to notify Company immediately, followed by written confirmation. The occurrence of unauthorized access will not affect any transfers made in good faith by Company prior to receipt of such notification and within a reasonable time period to prevent unauthorized transfers.

2.10.3 If an Entry received by Company purports to have been transmitted or authorized by Client, it will be deemed effective as Client’s Entry and Client shall be obligated to pay Company the amount of such Entry even though the Entry was not authorized by Client, provided Company accepted the Entry in good faith and acted in compliance with the security procedures, with respect to such entry.

2.10.4 Client shall have no right to cancel or amend any Entry after its receipt by Company. However, Company shall use reasonable efforts to act on a request by Client for cancellation of an Entry prior to transmitting it to the ODFI.

2.11 Notice of Returns and Notification of Change (NOC)

2.11.1 Company shall notify Client of the receipt of a returned entry no later than one Business Day after the Business Day of such receipt.

2.11.2 Client understands that it shall not receive NOC instructions and authorizes Company to (i) rely upon the accuracy of NOC data; (ii) make changes to Transactions pursuant to any NOC or Corrected NOC Instructions it receives.

2.11.3 Client shall indemnify and hold Company harmless for Transaction changes pursuant to NOC or Corrected NOC instructions.

2.11.4 Company may but is under no obligation to dishonor Returns as provided for under the Rules.

2.12 Errors in Data.

2.12.1 Company has no obligation to discover and shall not be liable to Client or a Receiver for errors made by Client, including but not limited to errors made in identifying the Receiver, or RDFI or for errors in the amount of an Entry. Company shall likewise have no duty to discover and shall not be liable for duplicate Entries issued by Client.

2.12.2 If any Entry transmitted by the Company to the ODFI on behalf of Client is rejected by the ACH Operator as being unreadable or out-of-balance, or otherwise contains errors which cause it to be unable to be processed, the Company shall, if the error was caused by Company, remake the file containing such Entry and transmit it to the ODFI in accordance with the Rules. If, however, the error was contained in the data furnished by Client, Company will promptly notify Client by telephone of such error. Client shall then be responsible for furnishing to Company a remake of the data which the Company will process on a reasonable efforts basis but without any responsibility for complying with any time limits otherwise applicable as set forth in this Agreement. In the event Client discovers errors in any data furnished to Company, Client may submit instructions to delete any erroneous Entry, and Company shall use reasonable efforts to delete such erroneous Entry. Client may submit a substitute Entry for the erroneous Entry deleted within the time limit set forth elsewhere in this Agreement or the Rules for the submission of data. Client acknowledges and agrees that Company has no obligation to process deletions and/or substitutions of Entries, and Client shall remain liable for all such errors. At its sole discretion, Company may assist Client in notifying RDFIs of any deletions and substitutions, but shall not be responsible to Client if Company fails to provide such assistance.

3. VERIFICATION & AUTHENTICATION SERVICES

3.1 Representation by Client. Each request for data through the Verification and Authentication Services shall constitute a representation, warranty and certification by Client that the data (i) shall be used and disclosed only in accordance with the terms of the Agreement, and in accordance with any applicable Rules or laws; (ii) shall be used solely for the intended use as stated by Client on the Agreement and that use is in compliance with the permissible uses under the FCRA; (iii) Client will follow proper procedures for adverse action notification to its customers, as provided under the FCRA; and (iv) Client acknowledges it has implemented security measures to prohibit the unauthorized access to the information provided.

3.2 PERMISSIBLE USES. CLIENT SHALL USE THE VERIFICATION SERVICES ONLY IN CONNECTION WITH PAYMENTS PRESENTED TO CLIENT BY ITS CUSTOMERS IN EXCHANGE FOR GOODS OR SERVICES. CLIENT SHALL NOT RESELL THE VERIFICATION DATA OR SERVICES TO ANY THIRD PARTIES.

3.3 No Retention of Data. Client acknowledges and agrees that it shall not retain, store, compile or aggregate the results of verification or authentication inquiries received from Company except as required by applicable law or to perform its obligations under this Agreement.

4. OBLIGATIONS

4.1 Client Responsibility. Client is fully responsible for its business practices and for the content of all advertising. Client shall be responsible for providing Company with appropriate authorization from Client’s Customers for Transactions originated to Customer’s accounts for the amounts instructed by Client. Client understands and acknowledges that (i) all Transactions to Customers will reflect Client’s name and customer service phone number (and not that of Company), and (ii) Client is responsible for all customer service matters with the Customers.

4.2 Regulations; Applicable Law. Any terms used herein (including defined terms), which are defined in the Rules, shall have the same meaning herein as they have under the Rules. Client agrees to comply with and be bound by the Rules. The Rules constitute a part of this Agreement as if fully set forth herein. Any conflict or inconsistency between the Rules and any provision of this Agreement shall be controlled by the Rules. In the event of inconsistency between any provision of this Agreement and the Uniform Commercial Code as in effect in the State of Texas (the “UCC”), the provisions of this Agreement shall prevail.

4.3 It shall be the responsibility of Client that the origination of ACH Entries complies with U.S. law, including but not limited to sanctions enforced by the Office of Foreign Assets Control (“OFAC”). It shall further be the responsibility of Client to obtain information regarding such OFAC enforced sanctions. (This information may be obtained directly from the OFAC Compliance Hotline at (800) 540-OFAC). Company will charge Client with any fines incurred as a result of non-compliance by Client or any Originator, and Client agrees to fully reimburse and/or indemnify Company for such charges or fines. The specific duties of Client provided in the following paragraphs of this Agreement in no way limit the foregoing undertaking. The duties of Client set forth in the following paragraphs of this Agreement in no way limit the requirement of complying with the Rules. Client agrees to follow all regulations regarding the use of Company’s sales of Services and any other applicable regulatory body. Company has the right but not the obligation to immediately cease serving any Customers (a) who are known or reasonably assumed to be minors, as defined by applicable State Law and (b) who are acting unlawfully, including but not limited to those that misrepresent their identity, misuse the Client’s services in a way that may or could cause harm to another, Company, or any other person. Company also reserves the right but not the obligation to suspend or terminate this Agreement if Company suspects that Client’s services are illegal or would cause reputational or financial risk to Company, its ODFI, NACHA, or the ACH Network.

4.4 Sales/Use Taxes. All amounts that Client charges to its Customers include all applicable sales and use taxes (if any). Client is responsible for collecting, reporting and remitting all applicable sales and use taxes owed in connection with the gross amounts charged to its Customers (“Customer Sales/Use Taxes”). The stated price paid to the Company for its services does not include any applicable Sales or Use Taxes. Client is responsible for all sales and use taxes owed in connection with the amounts payable to Company under this Agreement (“Company Sales/Use Taxes”). Client shall pay and remit all applicable Customer Sales/Use Taxes and Company Sales/Use Taxes (if any) to the appropriate taxing authority from its own funds.

4.5 Companies Release of Information. Without the need for additional notification, Client authorizes Company to release Client and Customer information associated with this Agreement to Transaction Network participants contracted with Company at the sole discretion of Company to affect the Services contemplated in this Agreement. If Client utilizes third party gateway or software solutions providers and requests Company to work with such third party providers in connection with this Agreement, Client authorizes Company to send and receive Client’s data and Customer information to and from such third party providers.

5. CLIENT REPRESENTATIONS AND WARRANTIES

Client warrants to Company all the warranties of an Originator and an ODFI. Without limiting the foregoing, Client warrants and agrees that (a) each Entry is accurate, is timely, has been authorized by the party whose account will be credited or debited and otherwise complies with the Rules; (b) each Debit Entry is for a sum which, on the settlement date with respect to it, will be owing to the Client, or is a correction of previously transmitted erroneous Credit Entry; (c) Client has complied with all pre-notification requirements of the Rules; (d) Client shall not originate Entries that violate the laws of the United States; (e) Client will comply with the terms of the Electronic Funds Transfer Act, if applicable, or Uniform Commercial Code Article 4A (UCC4A), if applicable, and shall otherwise perform its obligations under this Agreement in accordance with all applicable laws and regulations including, but not limited to, the sanctions laws, regulations, and orders administered by OFAC; laws, regulations, and orders administered by FinCEN; and any state laws, regulations, or orders applicable to the providers of ACH payment services; the Federal Trade Commission Act of 1914 (the “FTC Act”) and the rules and regulations promulgated thereunder; all contractual obligations and rules and regulations issued by NACHA (National Automated Clearing House Association) or any NACHA member; (f) Client shall be bound by and comply with the provision of the Rules (among other provisions of the Rules) making payment of an entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such entry; (g) Client has full right, authority and power to agree to the terms of this Agreement and that it has been duly authorized by necessary governing bodies or executive officers, as the case may be; (h) Client is duly registered to conduct business in each jurisdiction in which such registration is required; (i) Client is the true owner and provider of its services to its Customers and has the legal right and the authority to use, utilize, and disseminate all information which it forwards to Company pursuant to this Agreement; (j) Client will not during the term of this Agreement, use any of Company’s services in any manner, or in furtherance of any activity, which constitutes a violation of the Unlawful Internet Gambling Enforcement Act; (k) Client warrants and certifies that the funds Company settles to Client’s bank account listed in this Agreement are not destined for settlement outside the United States; and (l) Client agrees to validate ABA Routing numbers prior to transmitting WEB or TEL entries to the Company. Client specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and the Account Owner shall not be deemed to have paid the Receiver the amount of the entry. Client shall indemnify Company against any loss, liability, or expense (including attorneys’ fees and expenses) resulting from or arising out of any breach of any of the foregoing warranties or agreements.

6. INVESTIGATIVE REPORT

Client is on notice that an investigative or Consumer Report may be made in connection with the Agreement. Client authorizes Company or any Credit Bureau or any Credit Reporting Agency employed by Company or any of its agents to investigate the references given or any other statements or data obtained from Client, or any of its principals, in connection with the Agreement or for the purpose of obtaining services from Company. Subsequent Consumer Reports and inquiries may be required or used in conjunction with an update, renewal or extension of the Agreement.

7. TERM; TERMINATION

The term of this Agreement shall be month to month from the effective date of this Agreement and then will be automatically renewed each month on the first day of each month (“Anniversary Date”) for successive one month terms; the Agreement shall continue to automatically renew for one month terms on each applicable Anniversary Date until such time when Company receives a written notification from Client 30 days in advance of any applicable Anniversary Date clearly stating Client’s intention of canceling the contract on the upcoming Anniversary Date.

Company reserves the right to terminate this Agreement without cause upon notification to Client. Company may further terminate this Agreement immediately without any advance notice to Client; suspend Net Client Payments and Reserve Payments, at Company’s sole discretion, if Company reasonably concludes that Client has breached any part of this Agreement. Additionally, Company retains the right to terminate this Agreement immediately without notice to Client for excessive Returns as stated in Section 2.8 herein.

8. INDEMNIFICATION

8.1 Client agrees to indemnify and hold Company harmless from any fines, penalties, losses, sales taxes, use taxes, charges, expenses or other liabilities resulting from or in connection with this Agreement, including without limitation resulting from any and all Customer Sales/Use Taxes and Company Sales/Use Taxes.

8.2 Client will indemnify and hold Company, its principals, officers, directors, agents, employees and servants (the “Company Representatives”) harmless from and against any and all claims, causes of action, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, losses, costs, damages and expenses of whatever kind arising directly from this Agreement or from Client’s breach of this Agreement, including, but not limited to, reasonable attorneys’ fees and court costs. Client agrees to indemnify and hold Company harmless for the results of any acts, omissions or negligence on the part of Client, its principals, officers, directors, agents, employees, and servants (the “Client Representatives”), including, but not limited to, claims of third parties arising out of or resulting from or in any connection with: (i) Client’s operation of its business or its web sites, products, services, messages, programs, caller contracts, promotions, advertising, and/or infringement or any claim for defamation, libel or slander, or for violations of copyrights, patents, trademarks, services marks, or other intellectual property rights; (ii) any breach or default in Client’s performance of its obligations hereunder; (iii) any breach of Client’s Representations and Warranties hereunder, (iv) Clients violation of any law, regulation, or Rule, including but not limited to the Electronic Funds Transfer Act, Regulation E, or the FTC Act, or (iv) the data which client furnishes to Company pursuant to this Agreement, any error in the data so furnished by Client, and any actions taken by Company with respect to data or any such error in the data, pursuant to the provisions of this Agreement, or Company’s operating procedures.

8.3 The provisions of this Section 8 shall survive termination of this Agreement.

9. LIMITATIONS ON LIABILITY AND WARRANTY

a) COMPANY SHALL BE RESPONSIBLE ONLY FOR PERFORMING THE SERVICES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND SHALL BE LIABLE ONLY FOR ITS GROSS NEGLIGENCE IN PERFORMING THOSE SERVICES. COMPANY SHALL NOT BE RESPONSIBLE FOR CLIENT’S ACTS OR OMISSIONS (INCLUDING WITHOUT LIMITATION THE AMOUNT, ACCURACY, TIMELINESS OF TRANSMITTAL, OR DUE AUTHORIZATION OF ANY ENTRY RECEIVED FROM CLIENT) OR THOSE OF ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION ANY FEDERAL RESERVE BANK, ACH OPERATOR OR TRANSMISSION OR COMMUNICATIONS FACILITY, ANY RECEIVER OR RDFI (INCLUDING WITHOUT LIMITATION THE RETURN OF AN ENTRY BY SUCH RECEIVER OR RDFI), AND NO SUCH PERSON SHALL BE DEEMED COMPANY’S AGENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT LOSS OR DAMAGE THAT CLIENT OR ANY ACCOUNT OWNER MAY INCUR OR SUFFER IN CONNECTION WITH COMPANY’S ACTS OR INACTION WITH REGARD TO THIS AGREEMENT.

b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, COMPANY SHALL BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY LEGAL CONSTRAINT, INTERRUPTION OF TRANSMISSION OR COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR, EMERGENCY CONDITIONS OR OTHER CIRCUMSTANCES BEYOND COMPANY’S CONTROL. IN ADDITION, COMPANY SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN TRANSMITTING AN ENTRY IF SUCH TRANSMITTAL WOULD RESULT IN COMPANY’S ODFI HAVING EXCEEDED ANY LIMITATION UPON ITS INTRA-DAY NET FUNDS POSITION ESTABLISHED PURSUANT TO PRESENT OR FUTURE FEDERAL RESERVE GUIDELINES OR IN COMPANY’S OPINION OTHERWISE VIOLATING ANY PROVISION OR ANY PRESENT OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE OF ANY RULE OR REGULATION OF ANY U.S. GOVERNMENTAL REGULATORY AUTHORITY.

c) SUBJECT TO THE FOREGOING LIMITATIONS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT BETWEEN CLIENT AND COMPANY, COMPANY’S LIABILITY FOR LOSS SHALL BE LIMITED TO GENERAL MONETARY DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAID BY CLIENT FOR THE AFFECTED ACH SERVICE AS PERFORMED BY COMPANY OR TRANSACTION FEES RETAINED BY COMPANY UNDER THIS AGREEMENT FOR THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.

d) CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S USE OF THE SERVICES SHALL BE AT CLIENT’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY COMPANY ON AN “AS IS” BASIS.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO CLIENT OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. CLIENT AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY COMPANY EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO.

10. TAXES

Both Company and Client agree to report and pay their own taxes imposed on any income derived in any jurisdiction, including state and federal income taxes. Should Company be required to pay any such taxes based on the income of Client, the amount of such taxes and all related interest, fines, and/or penalties shall become immediately due and payable to Company from Client pursuant to the Indemnification clause in this contract.

11. DEFAULT

In the event Client defaults with respect to any provision of this Agreement or fails to perform any obligation contained in this Agreement, Company shall be entitled to damages, costs, and attorneys’ fees attributable to Client’s default hereunder.

12. SUCCESSORS AND ASSIGNS

This Agreement will be binding upon and inure to the benefit of the parties and their heirs, legal representatives, successors and permitted assigns. Client will not assign this Agreement without the written consent of Company.

Company may assign this Agreement to any affiliate, subsidiary, parent or to any person or entity, who by sale, merger, or otherwise succeeds to all or part of Company’s assets. All assignments by Client without appropriate consent are void.

13. AMENDMENTS AND MODIFICATIONS

Except as hereinafter provided, no amendment or modification of this Agreement shall be valid unless same is in writing and signed by the party against whom enforcement is sought. In the following circumstances, amendments and modifications can be made unilaterally by Company (“Unilateral Amendments”) without consent of Client and without requiring a writing signed by Client: (a) Company is required to amend this Agreement to take into account changes in laws or regulations or industry mandates, (b) Company is required to amend this Agreement to take into account changes imposed on Company by Service Companies, (c) Company determines, in its sole discretion, that the Return Fees and Return ratios should be modified, (d) modification to hold times, (e) modification to Exposure Limits and (f) modification to Processing Fees. In the event Company makes a Unilateral Amendment, Client agrees in advance that: (i) such Unilateral Amendment is binding on Client, (ii) such Unilateral Amendment does not act to terminate or impair this Agreement, and (iii) Client will sign any writing prepared by Company for the purpose of memorializing the Unilateral Amendment. Client’s failure to abide by this term of the Agreement and Client’s failure to abide by any Unilateral Amendment will be defaults under this Agreement and breaches of this Agreement which will be actionable by Company.

14. NOTICES

All notices under this Agreement must be in writing and must be delivered to either 1) the Client’s address set forth in the Company Information section of this Agreement or 2) the Company’s address set forth below, via hand delivery, delivery by facsimile, by overnight express courier with receipt, by certified mail return receipt requested or by email with read receipt.

To Company:
Actum Processing, LLC
7004 Bee Cave Road, Suite 3-312
Austin, Texas 78746
Fax (512) 263-3099
Email: corporate@actumprocessing.com

15. ENTIRE AGREEMENT; CONFIDENTIALITY

The signature of Client or Client’s authorized representative acknowledges that Client has read, understood, and accepted this Agreement and that this Agreement contains the entire agreement of the parties, supersedes any or all previous and contemporaneous agreements, understandings, negotiations, commitments, representations, and arrangements with respect to the subject matter hereof, whether oral or written, and that Client assumes all obligations under this Agreement and its exhibits. The terms and conditions of this Agreement are confidential and may not be disclosed by Client to any third parties without the prior written consent of Company, except (a) as contemplated by this Agreement, (b) as required by law, or (c) to Client’s employees, owners, investors, lenders, attorneys, accountants, and potential investors.

16. CHOICE OF LAW; VENUE

This Agreement shall be construed and enforced in accordance with the laws of the State of Texas. The venue for any action, dispute, or proceeding with respect to this Agreement shall be in Austin, Travis County, Texas.

17. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, such provisions will not affect in any respect the validity or enforceability of the remainder of this Agreement unless the invalidity materially affects Company’s ability to receive the economic benefits contemplated by this Agreement. If practicable, the parties agree to substitute for any invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.

18. FURTHER ASSURANCES

Client agrees, upon reasonable request, to execute and deliver any additional documents and take such actions as may be reasonably necessary to carry out the terms of the Agreement.

19. OBLIGATION OF ORIGINATOR TO ODFI

19.1 Client recognizes and acknowledges that Company provides services as a Third Party Processor for automated clearing house (ACH) payment transactions between Client and its end user customers. Under applicable NACHA Operating Rules, Client is considered to be the “Originator” in such transactions. If for any reason Company ceases to do business Client (a) shall remain liable to all ODFIs that have been the subject of transactions under the Agreements, (b) shall recognize and attorn to all ODFIs involved in transactions under the Agreements, and (c) shall honor all obligations and liabilities owed to such ODFIs in connection with or related to Client’s Originator role in the Agreement related transactions.

19.2 Originator authorizes ODFI to originate Entries on behalf of the Originator to Receivers’ accounts.

19.3 The ODFI may terminate or suspend this Agreement for breach of the Rules in a manner that permits the ODFI to comply with these Rules.

19.4 Company and or an ODFI associated with Transactions processed pursuant to this Agreement may at its sole discretion audit the Originator’s compliance with this Agreement and the Rules. Client agrees to cooperate in such audit and make itself, its premises, and documentation available during normal business hours upon reasonable request.

19.5 Originator specifically acknowledges it has received notice of the Rules regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Originator shall not be deemed to have paid the Receiver the amount of the Entry.

19.6 Originator agrees to undertake reasonable efforts to cooperate, as permitted by applicable law, in performing loss recovery efforts in connection with any actions that Financial Institution may be obligated to defend or elects to pursue against a third party.

20. RIGHT TO OFFSET

To the maximum extent permitted by applicable law, the Company may without notice, offset any amount owed to it by Client (“Client Offset Amount”) against any and all collected funds that are on hold or pending release to Client without notice (“Offset Right”). The Company shall have the Offset Right regardless of whether the client Offset Amount is joint or individual, direct or contingent, whether now or hereafter existing, and whether arising from overdrafts, returns, reversals, ACH credits, endorsements, guarantees, loans, attachments, garnishments, levies, attorneys’ fees, or other obligations. All parties to this Agreement now and in the future authorize Company to exercise the Offset Right against any and all collected funds that are on hold or pending release, as well as any account made available to Company though any agreements made between Company and Client.