This Merchant Processing Agreement (this "Agreement") is for merchant card payment processing services between the Merchant that signed the Merchant Application ("Merchant") and Commercial Bank of California ("Bank"). Bank is the principal party to this Agreement and is responsible for enabling the Merchant to accept payments.

Definitions

"ACH" means the Automated Clearing House paperless electronic funds transfer (EFT) system controlled by the Federal Reserve Board and governed by the National Automated Clearing House Association ("Nacha").

"Affiliate" means a Person that, directly or indirectly, (i) owns or controls a party to this Agreement or (ii) is under common ownership or control with a party to this Agreement.

"Agreement" means the Merchant Application, the Guaranty and these Terms and Conditions, and any supplementary documents referenced herein, and schedules, exhibits and amendments to the foregoing.

"American Express" means the Cards bearing the Marks of, and Card Brand operated by, American Express Travel Related Services Company, Inc., or its Affiliates.

"Authorization" means a computerized function or a direct phone call to a designated number to obtain approval from the Card Issuer to charge the Card for the amount of the sale in accordance with the terms of this Agreement and the Rules.

"Card" means (i) a Credit Card, (ii) a Debit Card; or (iii) any other valid credit card or debit card; such as but not limited to a prepaid card, gift card or stored value card, or other payment device approved by Bank and accepted by Merchant.

"Card Brand" means Visa U.S.A., Inc., Mastercard International, Inc., American Express Travel Related Services Company, Inc., DFS Services LLC (the owner of Discover) and their Affiliates, or any other payment networks issuing Credit Cards or Debit Cards, approved by Bank that provide Cards accepted by Merchant.

"Card Issuer" means the financial institution or company which has provided a Card to a Cardholder.

"Card Not Present" or "CNP" means that an Imprint of the Card is not obtained at the point-of-sale or it is an eCommerce transaction.

"Cardholder" (sometimes referred to as "Card Member" in certain Card Brand materials) shall mean any person authorized to use the Cards or the accounts established in connection with the Cards.

"Cardholder Information" means any non-public, sensitive information about a Cardholder or related to a Card, including, but not limited to, any combination of Cardholder name plus the Cardholder's social security number, driver's license or other identification number, or credit or debit card number, or other Bank account number, Card Verification Value (CVV) code, track data contained in the magnetic stripe, Personal Identification Number (PIN), PIN Block, and Europay, MasterCard, and Visa (EMV) chip data.

"Chargeback" means the procedure by which a Transaction (or disputed portion thereof) is returned to Bank by a Card Issuer for any reason, including, but not limited to, cases where such item does not comply with the applicable Rules.

"Credit Card" means any card validly issued by a Card Brand, other than Debit Cards.

"Credit Voucher" means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account.

"Debit Card" means a debit card validly issued by the debit card networks and a card in the form validly issued under license from a Card Brand that accesses a consumer's asset; i.e., checking account within 14 days of purchase, including but not limited to stored value, prepaid, payroll, EBT, gift, and Visa consumer check cards.

"Discover Card" means a Card bearing the Discover Marks and accepted as part of the DFS Services Network.

"Dispute" is the process by which a Cardholder does not recognize a charge on their account and requests a chargeback, which may be granted by their issuing Bank.

"Guarantor" has the meaning set forth on the Merchant Application.

"Guaranty" has the meaning set forth on the Merchant Application.

"Imprint" means (i) an impression on a Transaction Record manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal and electronically capturing Card data and printing a Transaction Record.

"Law" means all applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding laws, as the same may be enacted or amended from time to time.

"Merchant Application" means the Application for Merchant Card Processing.

"Operating Account" means a commercial checking or demand deposit account maintained by Merchant for the crediting of collected funds and the debiting of fees and charges under this Agreement.

"Person" means an individual, corporation, partnership, sole proprietorship, trust, association or any other legally recognized entity or organization, other than Merchant or Bank.

"Rules" means all rules, regulations, by-laws, standards, and procedures adopted and/or amended from time to time by the Card Brands (including, without limitation, the Payment Card Industry Data Security Standard), Bank and each relevant Card Issuer and Nacha, when applicable.

"Services" means the activities undertaken by Bank or third party processor to authorize, process and settle Card transactions undertaken by Cardholders at Merchant's location(s), and all other services provided by Bank under this Agreement.

"Transaction" means any sale of products or services, or credit for such, from a Merchant for which the Cardholder makes payment through the use of any Card and which is presented to Bank for collection.

"Transaction Record" means evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, Merchant using a Card, including preauthorized orders and Recurring Transactions, regardless of whether the form of such evidence is in paper or electronic form or otherwise.

"Voice Authorization" means a direct phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems.

Card Acceptance

Honoring Cards

Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to applicable Rules requiring Merchant to elect whether it will accept credit only, debit only or both debit and credit cards (also referred to as limited acceptance). Merchant's election is set forth in the Merchant Application. Except to the extent explicitly provided by the Rules, Merchant may not establish minimum or maximum amounts for Card sales as a condition for accepting any Card. Merchant shall not engage in any acceptance practice that discriminates against or discourages the use of a Card Brand's Cards in favor of any other Card Brand's Cards, or favor any particular Card Issuer over any other Card Issuers.

Surcharges

Except to the extent permitted by both Law and the Rules, and as authorized in writing by Bank, Merchant shall not apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a "surcharge"). It is a material breach of this Agreement to assess surcharges in violation of Rules or Law. Merchant is advised to consult with its own legal counsel regarding the implementation of a surcharging program. Bank expressly disclaims any liability arising out of or relating to the implementation of any surcharge program by Merchant.

If Merchant wishes to assess surcharges, Merchant must abide by the following requirements: (i) at least 30 days prior to implementing any surcharge program, Merchant must inform Bank of the intent to surcharge; (ii) Merchant may assess surcharges only on credit cards; (iii) the surcharge may not be greater than 3% of the transaction value or the cost of card acceptance, whichever is lower; (iv) the surcharge must be clearly and conspicuously disclosed at the point of sale and at the point of entry; (v) the disclosure must state that the surcharge is assessed on credit cards only, identify the surcharge amount, and confirm it does not exceed the cost of acceptance; (vi) the Cardholder must be given the opportunity to cancel the transaction prior to being assessed the surcharge; (vii) Merchant must not assess a surcharge in any jurisdiction that prohibits surcharging; (viii) Merchant must prominently display its name and physical address at all times; (ix) Merchant shall maintain a written refund policy and disclose it to Bank and all customers; (x) Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years; (xi) Bank reserves the right to block, discontinue, or otherwise require modifications to any surcharge program if necessary to comply with Rules or Law.

Advertising

Subject to the Rules, Merchant will prominently display the promotional materials provided by Bank in its place(s) of business. Merchant's use of promotional materials and Marks associated with a Card is limited to informing the public that the Card will be accepted at Merchant's place(s) of business. Upon notification by any Card Brand or Bank, or upon termination of this Agreement, Merchant shall discontinue the use of such Card Brand's Marks and return any inventory or promotional materials to Bank. Merchant may not use any promotional materials or Marks in any way which suggests or implies that a Card Brand endorses any goods or services other than Card payment services. Merchant's website, if any, must prominently display the name of the Merchant and the name that will appear on the Cardholder statement.

Card Acceptance Procedures

Merchant may only accept transactions within the United States in which the Bank is licensed to operate. When accepting a Card, Merchant will: (a) determine in good faith that the Card is valid on its face; (b) obtain Authorization from the Card Issuer to charge the Cardholder's account; (c) comply with the additional terms set forth in this Agreement with respect to Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Installment Orders and with respect to any Card Not Present Transactions; (d) document the approved Transaction in accordance with this Agreement and the Rules; and (e) deliver a true and completed copy of the Transaction Record to the Cardholder at the time the goods are delivered or services performed.

Each Transaction Record must contain: (i) Merchant's legal name and/or registered trade name, Merchant's location, and the Merchant's merchant identification number; (ii) the truncated Card number as provided in the Rules; (iii) a brief description of the goods or services involved; (iv) the selling price, together with applicable taxes, other charges or gratuities, and the total Transaction amount; (v) Cardholder signature or authorized user signature, as applicable, date of Transaction, and the Transaction approval number; (vi) any additional requirements of the Card Brands applicable to specific merchant or transaction types; and (vii) such additional information as may be required by Bank, the Card Brands, or Card Issuers.

Authorization

Merchant will obtain an Authorization for all Transactions using a means approved by Bank. If Merchant cannot obtain an electronic Authorization, Merchant will request a Voice Authorization and will legibly print the authorization number on the Transaction Record. Merchant may not divide a single Transaction between two or more Transaction Records on a single Card to avoid Authorization limits. Merchant acknowledges that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback and does not warranty the Cardholder's identity. Merchant may not attempt to obtain an authorization by successively decreasing the sale amount.

Bank may refuse to process any Transaction Record: (a) unless a proper authorization number or approval code has been recorded; (b) if Bank determines the Transaction Record is or is likely to become uncollectible; or (c) if Bank has reason to believe the Transaction Record was prepared in violation of this Agreement or the Rules. Merchant will use, and may not circumvent, fraud identification tools requested by Bank, including address verification system processing and CVV2 processing.

Multiple Transaction Records; Partial Consideration

Merchant may not prepare more than one Transaction Record for a single sale or for a single item, but will include all goods and services purchased in a single Transaction in the total amount on a single Transaction Record except: (a) for purchases in separate departments of a multiple department store; (b) for partial payment, installment payment, delayed delivery or an advance deposit; or (c) for delayed or amended charges governed by Rules for travel and entertainment merchants.

Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Installment Orders

Unless Merchant has been approved by Bank to accept mail, internet or telephone orders, Merchant warrants that it is a walk-in trade business located in a retail business place where the public moves in and out freely. If Merchant is not approved by Bank for Card Not Present Transactions and Bank determines Merchant has accepted unapproved Card Transactions, this Agreement may be immediately terminated by Bank and the value of all Transaction Records collected from the first day of processing may be charged back to Merchant. Regardless of whether Merchant has been approved for Card Not Present Transactions, Merchant assumes all responsibility for identification of the Cardholder and the validity of the Card information for Card Not Present Transactions.

Lodging and Vehicle Rental Transactions

For lodging and vehicle rental Transactions, Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder's intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. The Transaction Record amount must include only that portion of the sale evidencing a bona fide rental of real or personal property by Merchant to the Cardholder and may not include any consequential charges.

Returns and Adjustments; Credit Vouchers

Merchant's policy for the exchange or return of goods sold and the adjustment for services rendered will be established and posted in accordance with the Rules of the applicable Card Brands. Merchant will disclose to a Cardholder before a Transaction is made if: (a) no refund, or less than a full refund, will be given; (b) returned merchandise will only be exchanged for similar merchandise of comparable value; (c) only a credit toward purchases will be given; or (d) special conditions or circumstances apply to the sale. If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholder's Card account must be given. Merchant must not refund the customer with cash or a different Card than the original Transaction was made on. Any change in Merchant's return or cancellation policy must be submitted in writing to Bank not less than 14 days prior to the change.

Cash Payment

Merchant may not receive any payments from a Cardholder for charges included in any Transaction resulting from the use of any Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of effecting a deposit to the Cardholder's account.

Cash Advances; Scrip Purchases

Unless otherwise approved in advance by Bank, Merchant may not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant's Card or the Card of any other party and may not accept any Card at a scrip terminal. Either action will be grounds for Bank's immediate termination of this Agreement.

Duplicate Transactions

Merchant may not deposit duplicate Transactions. Bank may debit Merchant for any adjustments for duplicate Transactions and Merchant is liable for any Chargebacks resulting therefrom.

Deposit of Fraudulent Transactions

Merchant may not accept or deposit any fraudulent or unauthorized Transactions and may not under any circumstances present for processing or credit, directly or indirectly, a Transaction which originated with any other merchant or any other source other than Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved. If Merchant deposits any such fraudulent or unauthorized Transaction, Bank may: (a) immediately terminate this Agreement; (b) withhold funds and demand an escrow as provided in this Agreement; or (c) report Merchant to the applicable Card Brand. Merchant's employees' and agents' actions are chargeable to Merchant under this Agreement.

Data Security; Personal Cardholder Information

Except as otherwise provided by the Rules, Merchant may not, as a condition of sale, impose a requirement on Cardholders to provide any personal information as a condition for honoring Cards unless such information is required to provide delivery of goods or services or Merchant has reason to believe the identity of the person presenting the Card may be different than that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise disclose any Cardholder Information to any person other than Bank or the applicable Card Brand, except as expressly authorized in writing by the Cardholder, or as required by Law or the Rules.

Safeguards

Merchant will maintain appropriate administrative, technical and physical safeguards for all Cardholder Information. These safeguards will (i) ensure the confidentiality of Cardholder Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (iii) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder; and (iv) properly dispose of all Cardholder Information to ensure no unauthorized access. Merchant will maintain all such safeguards in accordance with applicable Laws and the Rules including Privacy Laws.

Compliance with Rules

Merchant represents, warrants and covenants that it is and will remain throughout the Term of this Agreement in compliance with (i) Rules related to data security, data integrity and the safeguarding of Cardholder Information, including PCI DSS, Discover Information Security Compliance ("DISC"), MasterCard's Site Data Protection Program ("SDP"), the American Express Data Security Requirements ("DSR"), and Visa's Customer Information Security Program ("CISP"); and (ii) any data security guidelines or operating guide that Bank may provide to Merchant. Merchant will cause all of its service providers, subcontractors, and agents to comply with PCI DSS, SDP, DISC, DSR and CISP requirements at all times. Merchant will report any non-compliance immediately to Bank. To accomplish the foregoing, Merchant will encrypt all debit, credit, or stored value card numbers whether in storage, transport or backup and will not store data security codes on its systems, network, or software. Merchant may not store in any system or in any manner discretionary Card read data including without limitation CVV data, PIN data, address verification data or any other information prohibited by Rules.

Annual Certification

Merchant will provide an annual certification to Bank certifying compliance with the data security provisions of this Agreement, including compliance with applicable Card Brand requirements such as PCI DSS, SDP, DSR and CISP. Merchant will provide annual certifications for Merchant's service providers, subcontractors, and agents upon request.

Information Use Limitations

Merchant may not sell, disclose, or otherwise make Cardholder Information available, in whole or in part, in a manner not provided for in this Agreement, without Bank's prior written consent. Merchant may, however, disclose Cardholder Information to its service providers, subcontractors and agents who have a need to know such information to provide the services described in this Agreement, provided that those individuals or entities have assumed confidentiality obligations in accordance with this Agreement, or when such disclosure is required by legal process or applicable Law.

Response to Unauthorized Access

Merchant will notify Bank within twenty-four (24) hours after it becomes aware of any actual or potential breach in security resulting in an unauthorized access to Cardholder Information. Merchant will provide any assistance that Bank, Card Issuer, regulators, governmental authority, or any Card Brand deems necessary to contain and control the incident to prevent further unauthorized access to or use of Cardholder Information. Such assistance may include preserving records and other evidence, and compiling information to enable Bank and the issuing Bank(s) or the Card Brand to investigate the incident. Unless the unauthorized access was due to Bank's acts or omissions, Merchant will bear the cost of notifying the affected Cardholder.

Miscellaneous

Merchant may not make a claim against Bank or hold Bank liable for the acts or omissions of other merchants, service providers, Card Issuers, Card Brands, financial institutions, or others that do not have a written contractual relationship with Bank or over which Bank has no control. Merchant agrees that Bank may disclose to any Card Brand information regarding Merchant and Merchant's Transactions to any Card Brand, and that such Card Brand may use such information to perform its responsibilities, promote the Card Brand, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of Card Brand Card acceptance, and transactional or relationship communications from a Card Brand.

Merchant Obligations

Compliance with Laws and Rules

Merchant will comply with and conduct its Card activities in accordance with all Laws and Rules. Merchant may not: (a) accept Cardholder payments for previous Card charges incurred at the Merchant location; (b) require a Cardholder to complete a postcard or similar device that includes the Cardholder's account number, card expiration date, signature, or any other card account data in plain view when mailed; (c) add any tax to transactions, unless applicable Law expressly requires it; (d) enter into interchange any Transaction Record for a Transaction that was previously the subject of a Chargeback to Bank and subsequently returned to Merchant; (e) request or use an account number for any purpose other than as payment for its goods or services; (f) disburse funds in the form of cash, unless specifically permitted by the Rules; (g) accept a Card for manual cash disbursement; (h) accept a Card to collect or refinance existing debt deemed uncollectible; (i) enter into a Transaction representing collection of a dishonored check; (j) accept a Card for an unlawful Internet gambling transaction (Reg GG); (k) accept a transaction that does not result from an act between the Cardholder and the Merchant (Transaction Laundering); or (l) accept Cardholder payments for debt repayment that do not comply with the Rules. Merchant will pay all Card Brand fines, fees, penalties and all other assessments levied by Card Brand to Bank which are attributable to Merchant's Transaction processing or business.

Employees

Merchant is responsible for the actions of all of its employees while in Merchant's employ.

PCI DSS Compliance

Merchant must be in compliance with the PCI DSS and have the ability to demonstrate compliance.

Merchant's Business

Merchant will notify Bank immediately if it intends to (a) transfer or sell any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change ownership or transfer control of its business; (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant or Merchant's business; (e) alter in any way Merchant's approved monthly volume, average, or maximum ticket; (f) change its return policies or to another fulfillment house different from those identified in Merchant Application; or (g) make changes to its Operating Account. Merchant will notify Bank promptly in writing if it becomes subject to any voluntary or involuntary Bankruptcy or insolvency petition or proceeding.

Merchant's Representations and Warranties

Merchant represents and warrants that: (a) all information contained in the Merchant Application or any other documents delivered to Bank in connection therewith is true and complete and properly reflects Merchant's business, financial condition and principals; (b) Merchant has power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of Law, or conflict with any other agreement to which Merchant is subject; (c) Merchant holds all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; and (d) there is no action, suit or proceeding at law or in equity now pending or, to Merchant's knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted.

Merchant's Covenants

Merchant covenants that: (a) each Transaction Record presented to Bank for collection is genuine and is not the result of any fraudulent activity, or a Transaction prohibited by a Card Brand, or is not being deposited on behalf of any business other than Merchant; (b) each Transaction Record is the result of a bona fide purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Transaction Record; (c) Merchant will perform all of its obligations to the Cardholder in connection with the Transaction evidenced thereby; (d) Merchant will comply with Bank's procedures for accepting Cards, and the Transaction itself will not involve any element of credit for any other purposes other than as set forth in this Agreement; and (e) any Credit Voucher which Merchant issues represents a bona fide refund or adjustment on a Transaction by Merchant with respect to which a Transaction Record has been accepted by Bank.

Third Parties

Merchant shall not utilize any third-party service providers unless Merchant has disclosed such use to Bank previously in writing, and unless such third party is fully compliant with all Laws and Rules and certified as compliant with the PCI DSS or a similarly established data security standard. Any third party used by Merchant must be registered with the Card Brand prior to the performance of any contracted services on behalf of Merchant. As between the parties to the Agreement, Merchant will be bound by the acts and omissions of any third-party service provider, and Merchant will be responsible for compliance by such third-party service provider with this Agreement, all Laws and Rules. Merchant will indemnify and hold harmless Bank from and against any loss, cost, or expense incurred in connection with or by reason of Merchant's use of any third parties. Bank is not responsible for any third-party service provider used by Merchant.

Recurring Transactions

If Merchant agrees to accept a recurring transaction from a Cardholder for the purchase of goods or services which are delivered or performed periodically (a "Recurring Transaction"), the Cardholder shall complete and deliver to Merchant a paper or online order form containing a written request for such goods or services to be charged to the Cardholder's account, the frequency of the recurring charges and the duration of time for which such Cardholder's permission is granted. In the event a Recurring Transaction is renewed, the Cardholder shall complete and deliver to Merchant a subsequent order form. A Recurring Transaction may not include partial payments made to Merchant for goods or services purchased in a single Transaction, nor may it be used for periodic payments of goods or services on which Merchant assesses additional finance charges. Merchant must not complete an initial or subsequent Recurring Transaction after receiving a cancellation notice from the Cardholder, the Card Issuer, Bank or other party or a response that the Card is not to be honored.

Forensic Investigations

The merchant, if undergoing a forensic investigation at the time the Agreement is signed, must fully cooperate with the investigation until completed.

Merchant Prohibitions

Merchant may not submit any transaction into the payment system that is illegal or that the merchant knows or should have known was illegal. Transactions must be legal in both the Cardholder's and Merchant's jurisdiction. A merchant or its agent may not request or store the Card Verification Value (CVV) data on any paper order form.

Visa-Specific Rules

Visa has the right to require Bank to limit or terminate this Agreement with the Merchant. Bank will not prohibit a Merchant from using terminal processing services offered by competitors to deliver Visa transactions captured at the point-of-transaction directly to VisaNet for clearing and settlement. Merchant may designate a third-party processor as its agent for the direct delivery of transactions to VisaNet for clearing and settlement, provided that Merchant advises Bank of such designation, acknowledges that Bank will reimburse Merchant only for Visa transactions delivered by that third party processor to VisaNet, and assumes responsibility for any failure by its third party processor to comply with the Visa rules.

Presentment; Payment; Chargebacks

Acceptance

Bank will accept from Merchant all Transaction Records deposited by Merchant under the terms of this Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts. Merchant must transmit Transaction Records and Credit Vouchers to Bank or its processing vendor on the same or next business day immediately following the day that such Transaction Records and Credit Vouchers have been originated. Bank will only provisionally credit the value of collected Transaction Records to Merchant's Operating Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges, reserve deposits, negative Transaction Record batch deposits and items for which Bank did not receive final payment. The Bank will hold and control all funds related to Merchant acceptance, including settlement funds, reserves, suspended settlement, and other funds. No other entity is permitted to directly access or hold Merchant funds, whether from settlement or reserves.

Endorsement

By presenting Transaction Records to Bank for collection and payment, Merchant agrees to sell and assign all its right, title and interest in each Transaction Record completed in conformity with Bank's acceptance procedures. Merchant's presentment of Transaction Records to Bank constitutes an endorsement by Merchant to Bank of such Transaction Records. Bank may supply such endorsement on Merchant's behalf.

Prohibited Payments

Unless specifically authorized in writing by Bank, Merchant may not collect or attempt to collect any Transaction Record, including Chargebacks, and will hold in trust for Bank and promptly deliver in kind to Bank any payment Merchant receives, in whole or in part, of the amount of any accepted Transaction, together with the Cardholder's name and account number and any corresponding accompanying payment.

Chargebacks

Merchant will accept responsibility for all Chargebacks related to Merchant's Transactions. Accordingly, Merchant will be liable to Bank in the amount of any Transaction disputed by the Cardholder or Card Issuer for any reason under the Rules. Merchant authorizes Bank to offset from funds due to Merchant or to debit the Operating Account or, if applicable, the Reserve Account for the amount of all Chargebacks. Merchant agrees to fully cooperate with Bank in complying with the Rules regarding all Chargebacks. Merchant may not initiate a sale Transaction in an attempt to collect a Chargeback. Merchant will pay the current published fees for each Chargeback as listed on the Merchant Application and any other fines, fees, or assessments imposed by any Card Brand or Card Issuer as a result of Chargeback activity.

Reserve Account

Notwithstanding anything to the contrary in this Agreement, Bank may establish (without notice to Merchant) a non-interest bearing reserve account at Bank (the "Reserve Account") for all future indebtedness of Merchant to Bank, its Affiliates, or the Card Brands that may arise out of or relate to the obligations of Merchant under this Agreement, including, but not limited to, Chargebacks and fees, in such amount as Bank from time to time may determine in its sole discretion.

Bank may fund the Reserve Account by deducting amounts from payments due to Merchant, by effecting a charge against Merchant's Operating Account or against any of Merchant's accounts at Bank, or by demanding payment from Merchant (which payment Merchant shall make within 10 days after receipt of any such demand). The Reserve Account will be maintained for a minimum of nine months after the date on which this Agreement terminates or until such time as Bank determines that the release of the funds to Merchant is prudent. Until the expiration of the period referenced in the preceding sentence, Merchant shall have no ownership interest in or right to the Reserve Account. Any balance remaining after Chargeback rights have expired and all of Bank's other anticipated expenses, losses and damages have been paid will be disbursed to Merchant.

Merchant Statement

At least once each month, Bank shall provide a statement (the "Merchant Statement") to Merchant, which may be made available online. Merchant shall be solely responsible for reviewing each Merchant Statement and for reporting to Bank in writing, within thirty (30) days of receipt, any problems or irregularities appearing on such Merchant Statement — including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected thereon. Merchant Statements provided online shall be deemed received the first day they are available online.

MERCHANT ACKNOWLEDGES AND AGREES THAT BANK SHALL NOT BE LIABLE OR OTHERWISE RESPONSIBLE TO MERCHANT, AND SHALL HAVE NO OBLIGATION TO REIMBURSE MERCHANT, FOR ANY UNDERPAYMENT TO MERCHANT OR OTHER DISCREPANCY THAT IS NOT REPORTED TO BANK IN WRITING WITHIN THIRTY (30) DAYS OF MERCHANT'S RECEIPT OF THE APPLICABLE MERCHANT STATEMENT.

Termination; Effect of Termination

Term

This Agreement will be effective once Bank accepts it and, unless otherwise terminated, will continue for a period of 3 years (the "Initial Term") with automatic 3-year renewal terms thereafter (each a "Renewal Term") unless and until Merchant provides written notice of non-renewal to Bank not less than 90 days before the end of the then-current Term. All existing obligations, warranties, indemnities, and agreements with respect to Transactions processed before such termination shall remain in full force and effect.

Termination Without Cause

Bank may terminate this Agreement, without cause, upon 30 days' advance written notice to Merchant.

Termination For Cause

Bank may terminate this Agreement in its sole discretion, effective immediately, upon written or verbal notice, or by closing Merchant's account, if Bank reasonably determines that any of the following conditions exists: (i) Merchant has violated any provision of this Agreement; (ii) there is a material adverse change in Merchant's financial condition; (iii) any case or proceeding is commenced by or against Merchant under any Law dealing with insolvency, Bankruptcy, receivership or other debt relief; (iv) any information which Merchant provided to Bank was false, incomplete or misleading; (v) Merchant has had a monthly ratio of Chargebacks to total Transactions and/or reported fraud exceeding Card Brand requirements; (vi) an overdraft in the Operating Account exists for more than 3 days; (vii) Merchant or any of Merchant's officers or employees has been involved in processing Transactions arising from fraudulent or unauthorized Transactions; (viii) Merchant is or will be unable or unwilling to perform its obligations under this Agreement or applicable Laws or the Rules; (ix) Merchant has failed to timely pay Bank any amount due; (x) any of Merchant's representations or warranties were not true or accurate when given; (xi) Merchant has defaulted on any agreement it has with Bank; (xii) Merchant appears on any Card Brand's security reporting; or (xiii) Bank's security for repayment becomes impaired.

Effect of Termination; Early Termination Fee

If this Agreement is terminated, regardless of cause, Bank may withhold and discontinue the disbursement for all Cards and other Transactions in the process of being collected and deposited. If this Agreement is terminated for cause, Merchant acknowledges that Bank may be required to report Merchant's business name and the names and other identification of its principals to various Card Brand and industry databases, including the Terminated Merchant File and the MATCH file. Merchant expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring listing on the MATCH file.

Upon termination of the Agreement, Merchant will immediately cease requesting Authorizations. Further, Merchant will return all Bank property, forms, or equipment. All obligations for Transactions prior to termination survive termination. Bank is not liable to Merchant for damages (including prospective sales or profits) due to termination. The parties agree that if this Agreement is terminated before completion of the Term for any reason other than a material uncured breach by Bank, Merchant will pay Bank an early termination fee in the amount set forth in the Merchant Application as liquidated damages.

Effect of Bankruptcy

Any account or security held by Bank will not be subject to any preference, claim or stay by reason of Bankruptcy or similar Law. The parties expressly agree that the acquisition of Transactions hereunder is a financial accommodation and if Merchant becomes a debtor in any Bankruptcy or similar proceeding, this Agreement may not be assumed or enforced by any other person and Bank will be excused from performance hereunder.

Miscellaneous

Account Monitoring

Merchant acknowledges that Bank will monitor Merchant's Transaction activity. Bank may upon reasonable grounds suspend disbursement of Merchant's funds for any reasonable period of time required to investigate suspicious or unusual Transaction activity. Bank will make good faith efforts to notify Merchant promptly following such suspension. Bank is not liable to Merchant for any loss, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement.

Forms

Merchant will use only the forms or modes of transmission of Transaction Records and Credit Vouchers that are provided or approved in advance by Bank, and Merchant may not use such forms other than in connection with Transactions.

Indemnification

Merchant will defend, indemnify and hold Bank, its Affiliates and each of its/their officers, directors, members, shareholders, partners, employees, agents, subcontractors and representatives (collectively, the "Indemnified Parties") harmless from and against any and all fines, penalties, claims, damages, expenses, judgments, liability assessments, costs, liabilities or fees of any nature whatsoever, including attorneys' fees and costs, arising out of, relating to or resulting from: (a) a breach of the security of the system safeguarding Cardholder Information resulting in unauthorized access; (b) Merchant's Transactions, performance of its obligations under this Agreement, or use of the Services; (c) breach of this Agreement by Merchant or any service provider, subcontractor or agent of Merchant; (d) any violation of Law or Rules by Merchant; (e) the state or configuration of Merchant's equipment; (f) Merchant's use of third-party services or service providers; (g) any proceeding, litigation, or arbitration commenced by a third party arising out of or relating to any actual or alleged act or omission by Merchant; (h) any demands, investigations, or subpoenas received related to Merchant or its Transactions; and (i) all third-party claims arising from the foregoing.

Notwithstanding the preceding, Merchant is not liable to Bank to the extent damages are caused by, related to or arise out of Bank's gross negligence or willful misconduct. Bank shall have the right to select and retain counsel of its choosing to represent it in connection with any of the foregoing events.

Records

In addition to any records Merchant routinely furnishes to Bank under this Agreement, Merchant will preserve Transaction Records and Credit Vouchers and any written authorization of the Cardholder for 6 years, or as required by law or legal subpoena, whichever is longer.

Request for Copies

Immediately after Merchant receives the request by Bank, Merchant will provide to Bank either the original or a legible copy of the paper Transaction Record, digital Transaction Record, and any other documentary evidence available to Merchant that Bank reasonably requests to meet Bank's obligations under Law or otherwise to respond to questions concerning Cardholder accounts.

Exclusivity

Merchant agrees that during the Term, Merchant will use Bank as its exclusive provider of all Services.

Fees and Charges

Merchant will pay to Bank the fees and charges set forth on the Merchant Application, this Agreement or any Addenda thereto, as same may be amended from time to time pursuant to this Agreement, including any additional charges applied to transactions that fail to meet Card Brand requirements for the lowest interchange levels. Merchant is responsible for payment of refunds, Chargebacks, fees, indemnified losses, and other amounts payable to Bank or the Card Brands related to or associated with its use of the Services. Bank at any time, with or without notice, may collect such amounts due by demanding immediate payment, by debiting the Operating Account or the Reserve Account, or by subtracting such amounts from future settlements.

Security Interest

To secure payment of Merchant's obligations under this Agreement, Merchant grants to Bank a security interest in all now existing or hereafter acquired: (a) Transactions, Transaction Records, Credit Vouchers and other items submitted to Bank for processing; (b) accounts receivable and payment rights relating to or arising from this Agreement; (c) accounts maintained with Bank or any institution other than Bank, including without limitation the Operating Account and the Reserve Account; and (d) proceeds of the foregoing. With respect to any security interests granted herein, Bank will have all rights afforded under the Uniform Commercial Code, as in effect in the State of California. Bank may fully or partially prohibit withdrawal by Merchant of funds from Merchant's Operating Account pending Bank's determination to exercise its rights as a secured party against such accounts. Merchant prohibits any sale or assignment of future Transaction receivables to any third party without Bank's prior written consent.

Right of Set Off

If Bank reasonably determines that Merchant has breached any obligation under this Agreement, or that proceeds of Merchant's future Transactions are unlikely to cover anticipated Chargebacks, credits, fees and adjustments, Bank may setoff or otherwise exercise its security interest without notice or demand by immediately withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under the Rules, applicable Laws, or in equity.

Modifications to Agreement

From time to time Bank may amend any provision or provisions of this Agreement, including, without limitation, those relating to the discount rate or to other fees and charges payable by Merchant, by providing written notice to Merchant of the amendment at least 30 days prior to the effective date of the amendment. The amendment will become effective unless Bank receives Merchant's written notice of termination of this Agreement before such effective date. If Merchant continues to submit Transaction Records to Bank after such 30-day period, Merchant shall be deemed to have accepted and agreed to such amendment. Amendments required due to changes in the Rules, Law, or judicial decision may become effective on such shorter period of time as Bank may specify, if necessary, to comply with the applicable Rule, Law, or decision.

Warranty Disclaimer

BANK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THE USE, OPERATION OR PERFORMANCE OR NON-PERFORMANCE OF SOFTWARE OR SYSTEMS UTILIZED FOR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, AND BANK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE FINANCIAL RESPONSIBILITY OF BANK OR ITS AFFILIATES FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO BANK BY MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION. IN NO EVENT WILL BANK, ITS AFFILIATES OR ITS/THEIR AGENTS, OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE TO MERCHANT FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE.

MERCHANT WAIVES ALL CLAIMS AGAINST BANK AND ITS AFFILIATES FOR ANY LOSS, CLAIM, DEMAND, PENALTY, ACTION, DELAY, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY KIND UNLESS MERCHANT PROVIDES WRITTEN NOTICE TO BANK OF THE OCCURRENCE THAT GAVE RISE TO THE ALLEGED LIABILITY WITHIN 30 DAYS AFTER MERCHANT KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE. ANY LIABILITY OF BANK OR ANY OF ITS AFFILIATES UNDER THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE LESSER OF (A) THE FEES PAID BY MERCHANT TO BANK DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY, EXCLUSIVE OF FEES AND VARIABLE COSTS INCURRED BY BANK TO PROCESS TRANSACTIONS; OR (B) $25,000.

Waiver

Bank's failure to enforce one or more of the provisions of this Agreement will not constitute a waiver of the right to enforce the same or other provision in the future.

Notices

Notices and communications given under this Agreement to Bank must be in writing and given by (a) deposit in the United States mail, addressed to the Bank at the address designated in the Merchant Agreement, postage prepaid and registered or certified with return receipt requested, or (b) delivery in person, or by courier service, providing evidence of delivery and will be deemed effective upon receipt. Bank may provide Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to the fees, via mail, through electronically available Merchant Statements, or electronically via any email address designated by Merchant. Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the internet for so long as this Agreement is in effect.

Choice of Law; Jurisdiction; Waiver of Jury Trial

The parties have agreed that any disputes arising out of or relating to this Agreement shall be governed by the laws of the State of Georgia and the federal laws applicable therein, all without regard to choice-of-law rules that might cause the substantive law of another state or jurisdiction to apply.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, MERCHANT AND BANK WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDINGS REGARDING ANY LITIGATION RELATED TO THIS AGREEMENT AND EACH AGREE THAT ANY SUCH ACTIONS OR PROCEEDINGS WILL BE TRIED BY A JUDGE WITHOUT A JURY.

Arbitration

ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED.

Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other preliminary equitable relief. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply.

Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in the State of Georgia; (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties' desire to keep proceedings cost-effective and efficient; (iii) each party shall be entitled to take no more than two depositions and shall be limited to ten (10) requests for production and ten (10) interrogatories; and (iv) the claimant(s) and respondent(s) will bear the cost of arbitration equally, subject to the discretion of the arbitrator(s). Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with Law.

Entire Agreement; Assignability

This Agreement expresses the entire understanding of the parties with respect to the subject matter hereof. This Agreement may be assigned by Bank without Merchant's consent. This Agreement may not be assigned, directly or by operation of law by Merchant, without Bank's prior written consent. This Agreement will be binding upon and inure to the benefit of the parties' respective heirs, personal representatives, successors, and assigns.

Operating Account

Merchant will at all times maintain an Operating Account at a Bank that is a member of the Federal Reserve ACH system. Merchant authorizes Bank to initiate debit and credit entries to the Operating Account through the ACH settlement process and agrees that Bank may debit the Operating Account for any amounts owed hereunder or to which Bank may otherwise be entitled for any reason. During the term of this Agreement and for a period of one year after the termination of this Agreement, Merchant may not close or change the Operating Account without prior written approval by Bank. Merchant will maintain sufficient funds in the Operating Account to accommodate all Transactions contemplated by this Agreement and all other fees, charges, credits, or other payments or amounts due under this Agreement.

Credit and Financial Inquiries; Additional Locations; Inspections

Bank may make, at any time, any credit inquiries which it may consider necessary to accept or review acceptance of this Agreement or investigate Merchant's deposit or Card acceptance activities. Such inquiries may include a credit and/or criminal check of Merchant and business including its proprietor, partners, principals, owners or shareholders or officers. Merchant may accept Cards only at locations approved by Bank. Additional locations may be added, subject to Bank's prior consent. Merchant will permit Bank, at any time and from time to time, to inspect locations to confirm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records, and license or permits to conduct its business. Bank, its internal and external auditors, and its regulators may audit compliance with this Agreement, compliance with Laws and Rules, including, but not limited to, relating to Card acceptance and Transaction processing, data security provisions and Card Brand compliance.

Force Majeure

The parties will be released from liability hereunder if they fail to perform any obligation where the failure occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, communications failure, sabotage, war, military operation, terrorism, national emergency, mechanical or electronic breakdown, civil commotion or the order, requisition, request or recommendation of any governmental authority, or either party's compliance therewith, or governmental regulation, or any other similar cause beyond either party's reasonable control.

Services

Subject to the Rules, Services may be performed by Bank, its Affiliates, its agents or other third parties Bank may designate from time to time in connection with this Agreement. Information related to Merchant's Transaction activity or any credit or financial information of Merchant may be disclosed to any such third-party servicers or any referral Bank partner.

Third Party Beneficiary

Bank's respective Affiliates and any Persons Bank uses in providing the Services are third party beneficiaries of this Agreement and each of them may enforce its provisions as if it were a party hereto. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any Person any rights or remedies.

Severability; Conflict with Rules

If any provision in this Agreement is for any reason held to be invalid or unenforceable, no other provision shall be affected thereby, and this Agreement shall be construed as if the invalid or unenforceable provision had never been a part of it. In the event of a conflict between this Agreement and the Rules, the Rules shall govern and control.

IRS Reporting Information

Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring entities such as Bank and third-party settlement organizations are required to file an information return reflecting all payment card transactions and third-party network transactions occurring in a calendar year. Merchant will receive a form 1099-K reporting Merchant's gross transaction amounts for each calendar year. In addition, amounts payable under Section 6050W are subject to backup withholding requirements if (a) the payee fails to provide the payee's taxpayer identification number (TIN) to the merchant acquirer; or (b) if the IRS notifies the merchant acquirer that the TIN provided by the payee is incorrect. It is very important that Merchant provides Bank with the correct name and TIN that Merchant uses when filing its income tax return.

Confidentiality

Merchant shall protect all information or other items proprietary to Bank that Merchant obtains knowledge of or access to as a result of Bank's provision of the services pursuant to this Agreement (collectively, "Confidential Information") from unauthorized disclosure, publication, or dissemination with the same standard of care and discretion Merchant uses to protect similar confidential information of Merchant's own, but in no event less than reasonable care. The obligations of non-disclosure provided hereunder shall continue during the Term and for a period of five years thereafter.

E-Sign Consent Agreement

By accessing and using the Services, Merchant hereby consents and agrees that: (a) Bank can provide disclosures required by Law and other information about Merchant's legal rights and duties to Merchant electronically; (b) Merchant's electronic signature (via "click-through" or other method) on agreements and documents relating to use of the Services has the same effect as if Merchant signed them in ink; and (c) Bank can send all communications, billing statements, amendments to the Services or this Agreement, notices, and other disclosures or information regarding the Services to Merchant electronically via e-mail, by access to a designated website, or to the extent permissible by Law, by access to a website that Bank will generally designate in advance for such purpose.

When Bank sends Merchant an email or other electronic notification alerting Merchant that a disclosure is available electronically and makes it available online, that shall have the same meaning and effect as if Bank provided a paper disclosure to Merchant, whether or not Merchant chooses to view or print or download the disclosure.

Special Provisions for American Express

The provisions of this Section apply to American Express Card acceptance ("Program"). With respect to participation in the Program, in the event of a conflict between the terms of this Section and other terms of this Agreement, the terms below shall control with respect to American Express transactions only. Merchant shall be bound by American Express Network Rules, including the Merchant Operating Guide, which may be amended from time to time and is incorporated herein by reference: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf.

Merchant Requirement

Merchant must comply with all Applicable Laws, Rules and regulations relating to the conduct of the Merchant's business.

Transaction Data

Merchant authorizes Bank and/or its Affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express or Bank on behalf of Merchant.

Treatment of American Express Cardholder Information

Merchant must ensure data quality and that Transaction Data and customer information are processed promptly, accurately, completely, and in compliance with the American Express Technical Specifications.

Privacy and Data Security

Merchant is responsible for being aware of and adhering to privacy and data protection laws and providing specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data. Merchant must comply with the American Express Data Security Requirements (DSR) and Payment Card Industry Data Security Standard (PCI DSS). Merchant must report all instances of a Data Incident immediately to the Bank after discovery of the incident.

Disclosure and Use of Data Collected Under Agreement

Bank may collect and disclose to American Express Transaction Data, Merchant Data, and other information about Merchant. American Express may use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics, and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of this Agreement, and important transactional or relationship communications from American Express.

Marketing Message Opt-Out

Merchant may opt out of receiving future commercial marketing communications from American Express by contacting Bank. Opting out of commercial marketing communications will not preclude Merchant from receiving important transactional or relationship messages from American Express.

Conversion to American Express Direct Merchant

Merchant acknowledges that it may be converted from the Program to a direct relationship with American Express if and when its Transaction volumes exceed the eligibility thresholds for the Program ("High CV Merchant"). If this occurs, upon such conversion, (i) Merchant will be bound by American Express' then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by Merchant for Card acceptance.

American Express as Third-Party Beneficiary

Notwithstanding anything in the Agreement to the contrary, American Express shall have third-party beneficiary rights, but not obligations, to the terms of this Agreement applicable to the Program to enforce such terms against Merchant.

American Express Opt-Out

Merchant may opt out of accepting American Express Cards at any time without directly or indirectly affecting its rights to accept other payment products.

Refund Policies

Merchant's refund policies for purchases on the Card must be at least as favorable as its refund policy for purchase on any other payment products, and the refund policy must be disclosed to Cardmembers at the time of purchase and in compliance with Law. Merchant may not bill or attempt to collect from any Cardmember for any American Express purchase or payment on the American Express Card unless a Chargeback has been exercised, the Merchant has fully paid for such Charge, and it otherwise has the right to do so.

Third Party Assignment

Merchant shall not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from Charges will be for bona fide sales of goods and services at its establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Bank, its affiliated entities and/or any other cash advance funding source that partners with Bank or its affiliated entities, without consent of American Express.

Termination

American Express or Bank has the right to terminate a Merchant's right to accept Cards if it breaches any of the provisions in the American Express Merchant Operating Guide or this Agreement. In addition, the Bank has the right to immediately terminate a Merchant for cause or fraudulent or other activity, or upon American Express' request. Merchant must cease all use of, and remove American Express Licensed Marks from its website and wherever else they are displayed upon termination of the Agreement or a Merchant's participation in the Program.