SERVICE AGREEMENT

Welcome to OpenPymts

This OpenPymts Services Agreement (“Agreement”) is a legal agreement between OpenPymts Inc. (“OpenPymts”, “us”, or “we”) and the entity or person (“you”, “your”, or “user”) who registered on OpenPymts to receive certain payment, analytics and benchmarking, and other business services that may be offered by OpenPymts and its affiliates (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services.

If there is a need to further understand or clarify any of the terms of this Agreement, please contact us before using the Services. We strongly advise to not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.

General Terms

1. Overview of this Agreement

This Agreement provides a general description of the Services OpenPymts may provide to You, including those allowing You to accept payments from purchasers of your goods or services or donors to your organization (your “Customers”). The Service includes a platform that enables You to make payments to third parties (Your “Vendors”), receive payments from third parties (Your “Customers”), and manage (on your own behalf or on behalf of third parties who authorize you to do so) accounts payable and accounts receivable electronically. Your level of access to the features and functions offered through the Service will depend on Your OpenPymts account type, if any, and/or how You interact with the Service. Before using the Services, you must register with OpenPymts and create an account (an “OpenPymts Account”).

Eligibility to Use the Service. You represent and warrant that: (a) all Users are at least 18 years of age; (b) You have not previously been suspended or removed from the Service; and (d) You will provide any and all documentation as requested by OpenPymts, included as needed to verify identity and creditworthiness.

Third Party Service Providers. You grant to Us and OpenPymts reserves the right to use third parties to provide or facilitate the Service. If OpenPymts uses third parties to provide or facilitate the Service, We will remain responsible to You for providing the Service under this Agreement.

Account Administrators. Each account registered with OpenPymts (a “OpenPymts account”) must have at least one User in the “Administrator” and/or “Signing Officer” (“Administrator”) role to manage and control access to the OpenPymts account. The Administrator may invite and authorize other Users to access, establish Login Credentials for, and use the OpenPymts account. The Administrator may revoke access and authorization of a User. Information about User(s) and their use of the Service may be provided by us to the Administrator. If you are an Administrator, you understand and agree that you are responsible for any actions or inactions of a User that are not in compliance with this Agreement.

Updates to the Service. OpenPymts reserves the right to, from time to time to: update the Service; and/or make new applications, tools, features or functionalities available through the Service, the use of which may be contingent upon your agreement to additional Terms and/or Service Fees. OpenPymts reserves the right to discontinue the Service, or certain applications, tools, features or functionalities of the Service, for any reason at any time, in OpenPymts’s sole discretion, without any liability to you.

Changes to Your Business. You agree to keep the information in your OpenPymts Account current. You must promptly update your OpenPymts Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your OpenPymts Account or terminate this Agreement if you fail to keep this information current.

You also agree to promptly notify us in writing no more than 3 days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, bankruptcy, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, or levy against 25% or more of your total assets.

2. Your Relationship with Your Customers

You know your Customers better than we do, and you are responsible for your relationship with them. OpenPymts is not responsible for the products or services you publicize or sell, or that your Customers purchase using the Services; or if you accept donations, for your communication to your Customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your Customers.

OpenPymts provides Services to you but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or correct, or typical for your business. You are responsible for knowing whether a Transaction initiated by your Customer is erroneous (such as a Customer purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur). If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your Customer before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.

3. Restrictions on Use

You acknowledge and agree that You will not use the Service for payment of alimony, child support, taxes or other court-directed or government payments, fines or penalties or payments to settle securities transactions.

No Assignment or Transfer. You may not assign or transfer the Agreement, in whole or in part, without OpenPymts’s written consent. Any attempted assignment or transfer in violation of this Section or this Agreement will be null and void. OpenPymts may assign its rights or delegate its obligations hereunder without Your consent. Subject to these restrictions, the Agreement will inure to the benefit of the successors and permitted assigns of the parties.

No Office of Foreign Assets Control (“OFAC”) Sanctions. You represent and warrant that (i) You are not located in a country that is subject to U.S. Government sanctions, embargos, or that has been designated by the U.S. Government as a Specially Designated National (SDN) or “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

No Marketing. If OpenPymts provides you with information about another user of the Service, You acknowledge and agree that you will not use the information for any purpose other than the purpose for which the information is provided to you. You may not disclose, sell, rent, or distribute another user’s information for any purpose unrelated to your use of the Service. You may not use the information for marketing purposes, unless you separately obtain the appropriate consent of the specific user to do so.

“Business Associate” under HIPAA. OpenPymts may, upon request , operate as, a “business associate” of certain users of the Service, including You, for the purposes of The Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). You agree that you will not send or transmit any electronic “Protected Health Information” (“ePHI”, as defined in HIPAA) to OpenPymts or otherwise in any manner through the Service unless and until you have a Business Associates Agreement (“BAA”) with OpenPymts. You are solely responsible for ensuring that Your use of the Service complies with all applicable laws and regulations, including HIPAA. If We become aware that You have sent or transmitted ePHI in any manner through the Service in violation of this Agreement or the BAA, We may delete the ePHI without any liability or notice to You, and You agree to pay any costs or fees associated with that ePHI deletion.

Service for Authorized and Lawful Purposes Only.

You agree that you will use the Service only as permitted by applicable law and exclusively for authorized purposes, consistent with this Agreement. You will not, and you will not allow any third party, to:

access, monitor, or attempt to access or monitor any OpenPymts materials, systems, programs, or data that are not available for your or public use, or in any way not expressly permitted under this Agreement;
copy, reproduce, republish, upload, post, transmit, or distribute in any way material or content from the Service, excluding User Data and relevant transactional information OpenPymts makes available to you in connection with Your payment transactions using the Service (example: limited third party customer or vendor information in connection with Your payment transactions);
work around any technical limitations in the Software or Service, or decompile, disassemble, or otherwise reverse engineer the Software or Service;
perform or attempt to perform any actions that could interfere with the proper operation of the Software or Service, prevent access to or use of the Software or Service by OpenPymts’s other licensees or users, or impose an unreasonable or disproportionately large load on OpenPymts’s infrastructure;
intentionally distribute malware, viruses, worms, Trojan horses, corrupted files, spyware, adware, or other items of a destructive or deceptive nature through the Service;
perform any fraudulent activity, including but not limited to impersonating any person or entity, claiming a false affiliation accessing any other Service account without permission, or falsifying Your information;
export the Service, which may be subject to export restrictions imposed by US law;
use or upload any harmful, obscene, abusive or offensive language through the Service;
use or alter any intellectual property of OpenPymts, except as permitted under this Agreement;
transfer or assign the rights granted to You under this Agreement; or
otherwise use the Service except as expressly allowed under this Agreement.

4. Rights You Grant to Us

You grant to Us and OpenPymts reserves the right to limit or to refuse to make, process or issue any payment initiated or requested through the Service, in Our reasonable discretion, without any liability to You. OpenPymts will use commercially reasonable efforts to provide notice promptly if We decide to limit or to refuse to make, process or issue a payment. This notification is not required if the payment is prohibited by law or this Agreement.

Transaction Limits. When You use the Service, You grant to Us and We reserve the right, in Our sole discretion, the right to impose limits on the amount of money sent through the Service, on a per transaction or a cumulative basis, and to change those limits at any time, without any liability to You. If We impose or change such limits, We will use commercially reasonable efforts to provide notice to You, but will not be required to do so.

Right of Set Off. To the extent permitted by law, You grant to us the right to apply or set off any money or credit balance in which You have an interest and which is in our possession, custody or control, in satisfaction of any amounts or liabilities that You owe to Us.

Account Termination. OpenPymts reserves the right to suspend or terminate Your account or Your access to the Service at any time, for any reason (including for a violation of this Agreement, the failure to pay applicable Service Fees, or inactivity), in Our reasonable discretion, without any liability to You. If We suspend or terminate Your account or access to the Service, We will use commercially reasonable efforts to provide notice to You, but will not be required to do so.

Feedback. If You provide any feedback to OpenPymts concerning the functionality and performance of the Service (including by identifying potential errors and improvements), You agree to assign to OpenPymts all rights, title, and interest in and to such feedback, and OpenPymts is free to use such feedback without payment or restriction.

Marketing. To the extent permitted by law, You agree and consent that OpenPymts may list or identify You as a customer of OpenPymts, including through the use of Your brand or logo, for Our marketing or promotional purposes. You may revoke this consent at any time by changing Your account profile settings, or by contacting OpenPymts Customer Support through customer support.

Right to Contact You. As permitted by law, Your use of or interaction with the Service provides Your consent to receive informational calls and text messages from OpenPymts at any telephone number provided to Us in connection with Your OpenPymts account. We may place these calls or texts for any purpose consistent with this Agreement or Our Privacy Notice, including to provide multi-factor authentication or a one-time password, notify You regarding Your account, help You with Your OpenPymts account, or resolve a dispute. Standard rates and text charges may apply. You can opt out of receiving calls from OpenPymts at any time by contacting OpenPymts Customer Support through customer support.

5. Taxes and Other Expenses

You are solely responsible (i) for determining what, if any, Taxes apply to your Transactions; and (ii) assessing, collecting, reporting, or remitting Taxes to the appropriate tax authority. We are not obligated to nor will we determine the applicability of any Taxes, or calculate, collect, report, or remit any Taxes to any tax authority arising from any Transaction, but we may withhold any amounts that we deem appropriate to cover such Taxes if we cannot validate any tax-related identification information you provide us. We may send documents to you and tax authorities for Transactions processed using the Services. You agree that we may send you any tax-related information electronically.

6. Suspicion of Unauthorized or Illegal Use

We may refuse, condition, or suspend any Transactions that we believe may violate this Agreement or other agreements you may have with OpenPymts; or that expose you, OpenPymts, or others to risks unacceptable to OpenPymts. If we suspect or know that you are using or have used the Services for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your OpenPymts Account, your Customers, and Transactions made through your use of the Services. Refer to Appendix.

7. Disclosures and Notices; Electronic Signature Consent

By registering for an OpenPymts Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from OpenPymts (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.

Methods of Delivery: You agree that OpenPymts can provide Notices regarding the Services to you through our website or through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your OpenPymts Account. Notices may include notifications about your OpenPymts Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.

SMS and Text Messages: You authorize us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your OpenPymts Account (such as through two-step verification), and to provide you with other critical information about your OpenPymts Account. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications in the Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security procedures and controls intended to reduce the risk of fraud to you and your Customers (“Security Controls”) on your OpenPymts Account and may increase the risk of loss to your business.

Requirements for Delivery: It should come as no surprise to you that you will need a computer or mobile device, Internet connectivity, and an updated browser to access your Dashboard and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.

Withdrawing Consent: Due to the nature of the Services, You will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your OpenPymts Account.

8. Making International Payments

Currency Conversion Rates. You understand and agree that (i) International Payments may require the conversion of currency, and (ii) when making International Payments, the applicable rate of currency conversion may vary from the indicative rate displayed when you request the payment and You will be bound by the applicable rate of currency conversion.

Third Party Service Providers. You understand and agree that OpenPymts may use one or more third-party service provider(s) to process or execute International Payments, to convert currency, and/or to transmit and distribute funds to Vendors.

Applicable Rules. You understand and agree that International Payments may be governed by rules of payment networks used to process such payments, OFAC regulations, and may be subject to the laws of jurisdictions outside the United States and Canada, including the jurisdictions where the Vendors are located. The application of foreign laws or regulations to Your International Payments may impact the rights and remedies that You have with respect to the International Payments.

Void Payment Requests. You acknowledge and agree that OpenPymts cannot stop or void an International Payment after the payment has begun to process.

Business Payments Only. Our International Payments Service is intended for business payments or payments made by business entities.

9. Termination

This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or OpenPymts. You may terminate this Agreement by contacting us. If you use the Services again or register for another OpenPymts Account, you are consenting to this Agreement. We may terminate this Agreement or close your OpenPymts Account at any time for any reason by providing you Notice. We may suspend your OpenPymts Account and your ability to access funds in your OpenPymts Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your OpenPymts Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; or (iii) any Law or Financial Services Provider requires us to do so.

Effects of Termination: Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) complete all pending Transactions, (ii) stop accepting new Transactions through the Service, and (iii) immediately remove all OpenPymts or payment network logos from your website (unless permitted under a separate licence with the payment network). Your continued or renewed use of the Services after all pending Transactions have been processed serves to renew your consent to the terms of this Agreement.

In addition, upon termination you understand and agree that (i) all licences granted to you by OpenPymts under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers within 10 days of termination; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.

10. Anti-Money Laundering and Know Your Customer Requirements

We reserve the right to refuse to allow any User, Vendor or Customer to use or participate in the Service if we are unable to obtain or verify information relating to identity or financial condition, such as identifying information for an Organization’s representatives or beneficial owners. Notwithstanding any steps that we take to verify the information provided to Us, You represent and warrant that all information You provide is complete, truthful, accurate, and up-to-date.

Review of Accounts and Payments. You grant to Us and OpenPymts reserves the right to review or place on hold any OpenPymts account or any payment requested through the Service for any reason, including but not limited to credit and fraud risk or compliance with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws and OFAC sanctions. In Our sole discretion, OpenPymts may place a hold on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding the payment, a OpenPymts account, a User, an Organization or Individual, a Customer, a Vendor, or any related facts or circumstances. Depending on the results of this review, OpenPymts reserves the right to take any appropriate action, including cancelling the payment, reversing the payment, or continuing to hold the payment pending instructions from a government agency.

Reports. You acknowledge that We may make appropriate reports regarding payments made through the Service, including but not limited to financial institutions, regulators, tax agencies and law enforcement authorities, as required or permitted by law, and We will cooperate with the appropriate authorities in any resulting investigation or prosecution.

11. User Data

If You upload, store, share, or otherwise process documents, information, data and other content ("User Data") or synch User Data from Your accounting software to the Service, You consent to OpenPymts’s access and processing of User Data in accordance with Our Privacy Notice, this Agreement, the settings on Your OpenPymts account, or the features of the Service You elect to use. OpenPymts reserves the right to remove or delete User Data from the Service for any reason, including if the User Data violates this Agreement or applicable law, in OpenPymts’s reasonable discretion, without any liability to you. Except as otherwise provided in this Agreement, We do not claim ownership of any User Data.

No Monitoring. You acknowledge and agree that OpenPymts has no responsibility to monitor or police your use of the Service, including but not limited to communications, information or data transmitted through the Service, such as User Data, and OpenPymts will not be responsible for the content of any such communications, data or transmissions. However, OpenPymts reserve the right, at all times, to review, retain and disclose any such information as necessary to ensure compliance with this Agreement or as required or permitted by law.

OpenPymts Access to Technical Data. You agree that OpenPymts may collect and use technical data and related information (including but not limited to information about Your device, system and application software, and peripherals), to provide You with the Service, Software updates, product support, risk and fraud management and other services related to the Service, and to track and report Your activity inside of the Service. You understand that OpenPymts may use aggregated and anonymized data for analytics purposes. Please see Our Privacy Notice for more details on how OpenPymts collects, uses, shares and protects Your information.

No Liability. Subject to Our Privacy Notice, You agree that OpenPymts will have no responsibility or liability with respect to any User Data that You request or choose to have processed, transmitted, disclosed, or stored in connection with the Service, including with respect to any User Data that Your request to have deleted from the Service, other than as provided under this Agreement.

12. Fees and Payment Terms

Access to the Service, or to certain features of the Service, may require You to pay certain fees (individually and collectively, “Service Fees”), including but not limited to account subscription fees, transaction fees, payment processing fees, and other special services fees. Information on Service Fees can be found on the OpenPymts Website. You agree to pay when due all Service Fees applicable to your use of the Service. You agree that you are responsible for the full amount of applicable Service Fees for each billing cycle in which you use the Service or maintain an OpenPymts account, even if you don’t use the Service during the billing cycle or use the Service for only a portion of the billing cycle. OpenPymts reserves the right to refuse to cancel Your OpenPymts account if your account is not in good standing or has any overdue Service Fees.

Changes to Service Fees. OpenPymts reserves the right to change the Service Fees from time to time, in its sole discretion. OpenPymts will provide advanced notice of any material increase of a change in Service Fees. If the increase in Service Fees is not acceptable, your sole and exclusive remedy will be to stop using the Service and/or cancel Your OpenPymts account, as applicable. By continuing to use the Service after notice of the new Service Fees, You accept all changes in Service Fees. All Service Fees are non-refundable, except in the sole discretion of OpenPymts.

Payment of Service Fees. You authorize OpenPymts to use the account details you have provided to Us (as updated from time to time), or the bank account associated with Your OpenPymts account (each a "Billing Account") to automatically charge you for the Service Fees applicable to Your OpenPymts account or Your use of the Service, plus any applicable taxes. If OpenPymts is unable to charge the Billing Account for any reason, you agree to pay all past due Service Fees and taxes within 5 business days of notice of non-payment from OpenPymts. If amounts owed are not paid within 5 days of that notice, interest will accrue on all past due amounts at the rate of 1.5% per month or the highest rate of interest allowed by law (whichever is less), calculated from the date the amount was due until the date that payment is received. If Your OpenPymts account becomes overdue, OpenPymts will be entitled to reimbursement for the reasonable costs of collection, including reasonable attorneys’ fees and expenses.

Inactive Accounts. If Your OpenPymts account becomes inactive because you do not process a payment for an extended period of time, or because you have not linked a valid bank account, you may have a balance that is deemed “unclaimed” or “abandoned” under applicable state law. OpenPymts may transfer any such "unclaimed" or "abandoned" funds in Your OpenPymts account as required or permitted by applicable law. As provided by law, OpenPymts may deduct a dormancy fee from any funds transferred under this paragraph.

13. Limitation of Liability

IN NO EVENT SHALL OPENPYMTS BE LIABLE TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT OPENPYMTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. OPENPYMTS WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL OPENPYMTS’S AGGREGATE LIABILITY TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL FEES PAID BY YOU OR YOUR ORGANIZATION OR INDIVIDUAL TO OPENPYMTS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, OR ONE HUNDRED USD ($100.00), WHICHEVER IS GREATER, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this Agreement. Each of these provisions is severable and independent of all other provisions of this Agreement. All limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.

14. Indemnity

You agree to full liability and responsibility for Your use of the Service, and You will defend and indemnify OpenPymts and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) Your violation of any portion of this Agreement, or any applicable law or regulation; (b) Your violation of any third-party right, including any intellectual property right, or publicity, confidentiality, other property or privacy right; or (c) any dispute or issue between You and any third party. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with Our defense of that claim.

15. Agreement to Arbitrate

In the interest of resolving disputes between you and OpenPymts in the most expedient and cost-effective manner, you and OpenPymts agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The Agreement to Arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. BY ENTERING IN THIS AGREEMENT, YOU AND OPENPYMTS ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. YOU UNDERSTAND AND AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS.

Waiver of Class Actions and Right to Trial by Jury. To the fullest extent permitted by law, You acknowledge and agree that You may bring claims against OpenPymts only in Your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. CLASS ACTIONS, CLASS ARBITRATIONS, REPRESENTATIVE ACTIONS, AND/OR CONSOLIDATION OF ACTIONS OR ARBITRATIONS ARE NOT ALLOWED. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION AND TO A TRIAL BY JURY.

Exceptions to Agreement to Arbitrate. Notwithstanding any other provision of Section 16, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right to: (a) bring an individual (non-class, non-representative) action in small claims court so long as such action remains in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency, if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

16. Other Provisions

If OpenPymts provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.

Force Majeure. OpenPymts will not be liable for any delay or failure to perform any obligation related to the Service if the delay or failure is due to unforeseen events that are beyond OpenPymts’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action.

Waiver. The waiver of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except as otherwise stated in this Agreement, the exercise of any remedy under this Agreement will be without prejudice to other remedies available under this Agreement or otherwise.

Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.

Compliance with Laws. You and OpenPymts each agree to comply with all applicable laws and regulations with respect to the Service and Your use of the Service; including without limitation any export laws and regulations of the United States and Canada.

No Agency. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between you and OpenPymts.

Payments Terms

“Refund” means an instruction initiated by you to return funds to a Customer for an existing Charge.

“Dispute” means an instruction initiated by a Customer with a Financial Services Provider or us to return funds for an existing Charge (including a chargeback on a payment card network; or disputes on a debit network).

“Reversal” means an instruction initiated by a Financial Services Provider or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Financial Services Provider; (ii) funds settled to you in error or without authorization; and (iii) submission of a Charge in violation of Network Rules, or where submission of the Charge or your use of Payment Services violates this Agreement.

“Return” means an instruction initiated by you, a Customer, or a Financial Services Provider to return funds unrelated to an existing Charge.

“Transfer” means an instruction to credit funds to or debit funds from an account you designate with a Financial Services Provider.

“Fine” means any fines, levies, or other charges imposed by us or a Financial Services Provider caused by your violation of Laws or this Agreement, or as permitted by Network Rules.

“Network Rules” means the guidelines, bylaws, rules, and regulations imposed by the Financial Services Providers that operate payment networks supported by OpenPymts (including the payment card network operating rules for the Visa, MasterCard, American Express, and Discover networks, and the rules of Payments Canada for Interac).

Payment Accounts. To use the OpenPymts Service, you must associate one or more bank account(s) (individually and collectively, your "Payment Account") with your OpenPymts account. When you enter Payment Account information for purposes of the Payments Service, you represent and warrant:

You have the authority to provide and disclose the Payment Account information to OpenPymts;
You have the authority to and do authorize the initiation of bank account debit and credit, as applicable, to the Payment Account in accordance with any payment instructions provided in connection with Your OpenPymts account or use of the Service, and, as necessary, the initiation of adjustments or reversals as provided under this Agreement, or applicable law, rules or regulations;
You will provide complete and accurate information to OpenPymts about Your Payment Account, including, but not limited to, information on the ownership of the account, and will notify Us promptly if the Payment Account information or ownership changes; and
Each payment that you request through the Service complies with this Agreement and applicable law, regulations and rules.

Authorized Payers. By entitling a User to make payments through the Service (a “Payer”), You represent and warrant to Us that the Payer is authorized to instruct OpenPymts to make payments and to initiate debit or credit entries, as applicable, to or from the Payment Account, as provided under this Agreement, the terms of the financial institution holding the Payment Account, and any applicable laws, regulations or rules. You will be responsible for payments requested or made by a Payer, whether or not authorized by you.

Payment Instructions. When We receive a payment instruction from a Payer, We will use commercially reasonable efforts to make and deliver the payment, subject to this Agreement, and You authorize Us to debit Your Payment Account and remit funds on Your behalf, all in accordance with the payment instructions. You agree to be bound by any payment instructions that a Payer provides to Us, to the fullest extent allowed by law.

Rights We Reserve. OpenPymts reserves the right to limit or cap or to refuse to make any payment transaction requested or initiated through the Bill Payment Service, for any reason, in OpenPymts’s sole discretion, without any liability to You. By using the Bill Payment Service, You grant to Us and OpenPymts reserves the right to suspend or cancel any payments requested or initiated by a Payer, including if Your OpenPymts account is not in good standing. In the event that We suspend or cancel Your payment, OpenPymts will credit the amount of any bank account debit(s) received by Us to fund the payment to Your Payment Account, and You authorize OpenPymts, in its sole discretion, to withhold and collect from any such credit(s) any Service Fees or other amounts owed by You to OpenPymts.

Partner and Program Bank Terms and Conditions. OpenPymts engages with partners and program banks to offer the payment methods. Following terms, available here, apply to the use of Payment Methods. You can decide whether or not to use a Payment Method. However, if you use a Payment Method, you accept and agree to the terms applicable to that Payment Method, which will form part of your agreement with OpenPymts.

Corpay Terms and Agreement. You agree to the following agreement with OpenPymts and its processing partner Corpay.

Customer authorizes and directs Corpay to open a Corpay account in Customer's name for foreign currency exchange and global payment transactions; Customer shall be a principal party to each transaction (i.e., “Order”) associated with Customer's Corpay account.

You hereby acknowledge that the default method for transmitting Client's transaction instructions is and shall be: instruction to Corpay via API (or similar) connecting OpenPymts platform to Corpay. In effect, this means you are consenting to OpenPymts having unlimited authority to book, negotiate and conclude (on Customer's behalf) the terms of each transaction with Corpay on Customer's Corpay account(s).

Authorizes Corpay to rely on all orders and instructions (re payments associated with Customer's Corpay account) received from anyone Corpay reasonably believes is an Authorized Representative of the Customer and/or OpenPymts.

Payment Cancellation or Modification

You understand and agree that when You authorize a payment to be made to a Vendor through the Service, Your authorization remains in effect for up to 30 days. Payments that are scheduled but have not yet begun to be processed may be cancelled and, if a change is needed, reissued, through Your OpenPymts account. Once OpenPymts has begun to process a payment, the payment cannot be cancelled, and You must request to void the payment.

Void Payment Requests. To stop a payment after it has begun to process, You must request to void the payment (“Void Payment Request”) through the Service. If You submit a Void Payment Request, OpenPymts will use commercially reasonable efforts to stop the payment, but You understand and agree that OpenPymts may not be able to stop the payment. OpenPymts’s ability to stop a payment depends on a number of factors, including but not limited to the payment method and whether the payment has cleared the Vendor’s account. You agree that OpenPymts will not have any liability for failing to stop a payment that has begun to process. A Void Payment Request may be subject to a fee.

Rights We Reserve. OpenPymts reserves the right to expire, void or cancel any payment if the payment is not deposited or otherwise received and processed by a Vendor within a reasonable amount of time, as determined by OpenPymts in Our sole discretion. If We expire, void or cancel any payment, You authorize and We will credit the amount of the payment to Your Payment Account, less any Service Fees or other amounts owed by You to OpenPymts.

Returned Transactions

You are solely responsible for the accuracy of the payment information or the payment instructions provided to OpenPymts. If a payment is refused or returned, OpenPymts will void the payment, unless OpenPymts in its sole discretion agrees to take other action on the payment such as crediting or reissuing the payment. If a returned or refused payment is voided, You authorize OpenPymts to credit the amount of the payment to Your Payment Account, less any Service Fees or other amounts owed by You to OpenPymts.

Appendix

Restricted Businesses

The following categories of businesses and business practices are restricted from using the OpenPymts Service (“Restricted Businesses”). Restricted Business categories may be imposed through Network Rules or the requirements of our Financial Services Providers. In certain cases, businesses listed below may be eligible for processing with explicit prior approval from OpenPymts. Note, however, that businesses that offer illegal products or services are never eligible to use the OpenPymts Services. The types of businesses listed in the right column are representative, but not exhaustive. If you are uncertain as to whether your business is a Restricted Business, or have questions about how these requirements apply to you, please contact us.

By registering with us, you are confirming that you will not use the Service to accept payments in connection with the following businesses, business activities, or business practices, unless you have received prior written approval from OpenPymts. It is prohibited to use the Service for any dealings, engagement, or sale of goods/services linked directly or indirectly with jurisdictions OpenPymts has deemed high risk, such as Cuba, Iran, North Korea, Crimea Region, and Syria.

Financial and professional services

Investment and credit services

Securities brokers; mortgage consulting or debt reduction services; credit counselling or repair; real estate opportunities; lending instruments

Money and legal services

Money transmitters, check cashing, wire transfers, money orders; currency exchanges or dealers; bail bonds; collections agencies; law firms collecting funds for any purpose other than to pay fees owed to the firm for services provided by the firm (e.g., firms cannot use OpenPymts to hold client funds, collection or settlement amounts, disputed funds, etc.)

Virtual currency or stored value

Virtual currency that can be monetized, resold, or converted to physical or digital products and services or otherwise exit the virtual world (e.g., Bitcoin); sale of stored value or credits maintained, accepted and issued by anyone other than the seller

IP Infringement, regulated or illegal products and services

Intellectual property or proprietary rights infringement

Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; any product or service that directly infringes or facilitates infringement upon the trademark, patent, copyright, trade secrets, or proprietary or privacy rights of any third party; use of OpenPymts intellectual property without express consent from OpenPymts; use of the OpenPymts name or logo including use of OpenPymts trade or service marks inconsistent with the OpenPymts Marks Usage Agreement, or in a manner that otherwise harms OpenPymts or the OpenPymts brand; any action that implies an untrue endorsement by or affiliation with OpenPymts.

Counterfeit or unauthorized goods

Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported

Gambling

Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; games of chance

Regulated or illegal products or services

Marijuana dispensaries and related businesses; sale of tobacco, e-cigarettes, and e-liquid; online pharmacies; age restricted goods or services; weapons and munitions; gunpowder and other explosives; fireworks and related goods; toxic, flammable, and radioactive materials; products and services with varying legal status on a state-by-state basis; goods or services, the sale of which is illegal under applicable law in the jurisdictions to which your business is targeted or directed

Adult content and services

Pornography and other obscene materials (including literature, imagery and other media); sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features

Unfair, predatory, or deceptive practices

Intellectual property or proprietary rights infringement

Counterfeit or unauthorized goods

Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported

Gambling

Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; games of chance

Products or services that are otherwise restricted by our financial partners

Aggregation

Engaging in any form of licensed or unlicensed aggregation of funds owed to third parties, factoring, or other activities intended to obfuscate the origin of funds

Drug paraphernalia

Any equipment designed for making or using drugs, such as bongs, vaporizers, and hookahs

High risk businesses

Bankruptcy lawyers; computer technical support; psychic services; travel reservation services and clubs; airlines; cruises; timeshares; prepaid phone cards, phone services, and cell phones; telemarketing, telecommunications equipment and telephone sales; drop shipping; forwarding brokers; negative response marketing; credit card and identity theft protection; the use of credit to pay for lending services; any businesses that we believe poses elevated financial risk, legal liability, or violates card network or bank policies; any business or organization that a. engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property, or b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic

Multi-level marketing

Pyramid schemes, network marketing, and referral marketing programs

Pseudo pharmaceuticals

Pharmaceuticals and other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body, or make specific claims about weight loss or improved sexual performance

Social media activity

Sale of Twitter followers, Facebook likes, YouTube views, and other forms of social media activity

Substances designed to mimic illegal drugs

Sale of a legal substance that provides the same effect as an illegal drug.

Video game or virtual world credits

Sale of in-game currency or game items, unless the merchant is the operator of the virtual world

Use of OpenPymts in a manner inconsistent with its intended use or as expressly prohibited in the OpenPymts Services Agreement

Use of OpenPymts principally as a virtual terminal (e.g., submitting card transactions by manually inputting card information); processing where there is no bona fide good or service sold, or donation accepted; card testing; evasion of card network chargeback monitoring programs; sharing cardholder information with another merchant for payment cross-sell product or service

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Appendix

SERVICE AGREEMENT

Welcome to OpenPymts

General Terms

1. Overview of this Agreement

2. Your Relationship with Your Customers

3. Restrictions on Use

4. Rights You Grant to Us

5. Taxes and Other Expenses

6. Suspicion of Unauthorized or Illegal Use

7. Disclosures and Notices; Electronic Signature Consent

8. Making International Payments

9. Termination

10. Anti-Money Laundering and Know Your Customer Requirements

11. User Data

12. Fees and Payment Terms

13. Limitation of Liability

14. Indemnity

15. Agreement to Arbitrate

16. Other Provisions

Payments Terms

Payment Cancellation or Modification

Appendix

Restricted Businesses

Financial and professional services

IP Infringement, regulated or illegal products and services

Unfair, predatory, or deceptive practices

Products or services that are otherwise restricted by our financial partners

Legal

Service Agreement

Social Media

Privacy Policy

SERVICE AGREEMENT

Welcome to OpenPymts

​

General Terms

​

1. Overview of this Agreement

​

2. Your Relationship with Your Customers

3. Restrictions on Use

4. Rights You Grant to Us

​

5. Taxes and Other Expenses

​

6. Suspicion of Unauthorized or Illegal Use

​

7. Disclosures and Notices; Electronic Signature Consent

​

8. Making International Payments

​

9. Termination

​

10. Anti-Money Laundering and Know Your Customer Requirements

11. User Data

12. Fees and Payment Terms

13. Limitation of Liability

14. Indemnity

15. Agreement to Arbitrate

16. Other Provisions

Payments Terms

​

Payment Cancellation or Modification

Appendix

​

Restricted Businesses

​

Financial and professional services

​

IP Infringement, regulated or illegal products and services

Unfair, predatory, or deceptive practices

Products or services that are otherwise restricted by our financial partners