PAYMENT PROCESSING DISCLOSURE & RULES

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Last Update: August 26th, 2024

These Payment Processing Terms and Conditions (these “Terms”) govern your access to, and use of certain payment processing services offered through Burton Consolidated, LTD (these Rights & Rules extend to all affiliated companies or non-for-profit entities associated with Burton Consolidated, LTD).

Credit/Debit Card Processing Permission. Customer hereby authorizes Software Provider to initiate credit, debit, Automated Clearing House (ACH), PayPal, gift card and other payment transactions for authorized transactions (“Transactions”) on Customer’s behalf to settle the same utilizing the ACH network or such future network as Software Provider shall utilize. Customer acknowledges and agrees that the Transactions may be processed by one or more third party transaction processors of Software Provider’s choosing, which Software Provider may change in its sole discretion from time to time, including the Payment Facilitator defined below (the “Processor”).

Demand Deposit Account/ACH Permission. Customer will establish and maintain one or more demand deposit accounts (“DDA”) to facilitate the provision of the Processing Services and the funding of Transactions. Customer will at all times maintain sufficient funds in the DDA to accommodate all Transactions and all chargebacks, returns, adjustments, fees, penalties and other amounts due. Customer must provide at least two (2) business days’ advance written notice before changing the DDA, and in such event, the authorization given below will apply to the new account, and Customer will provide Software Provider such information regarding the new DDA as Software Provider deems necessary to effect payments to and from such new DDA. In accordance with the NACHA Operating Rules and the NACHA Operating Guidelines, Customer hereby irrevocably authorizes Software Provider to initiate credit and debit entries to the DDA and to credit and debit the same. The foregoing authorization will remain in effect after termination of these Terms until all of Customer’s obligations to Software Provider, and Software Provider’s obligations to the Processor with respect to Transactions, have been paid in full. Customer will indemnify and hold harmless Software Provider, Processor, and Payment Facilitator and their respective financial institutions for any action Customer takes against the DDA pursuant or related to these Terms, and Customer will also indemnify and hold harmless the depository institution at which it maintains the DDA for acting in accordance with any instruction from Software Provider, Processor, Payment Facilitator or their respective financial institutions regarding the DDA.

Processor and Sponsoring Banks. Software Provider may share Customer’s name, financial data and credit data with the Processor, Payment Facilitator and their respective Sponsoring Bank(s) solely for the purposes of processing transactions under these Terms and to comply with applicable law. Additionally, the Processor, Payment Facilitator and their respective Sponsoring Bank(s) are hereby designated as third-party beneficiaries to these Terms. Software Provider may change the Processor, Payment Facilitator or their respective Sponsoring Bank(s) at any time without notice to Customer.

Refunds. Customer authorizes Software Provider to initiate refunds for Transactions in accordance with Software Provider’s refund policy, as amended from time to time, and to deduct such refunds from Customer’s DDA.

Settlement of Transactions. Customer acknowledges that all settlements between Software Provider and Customer are provisional and are subject to the Customer’s right to dispute the charges against the applicable obligor’s account. Upon notification of a chargeback or retrieval request, Customer agrees to supply Software Provider with all supporting documentation regarding a specific transaction. Software Provider shall, at its sole discretion, be entitled to debit the Customer’s DDA or invoice Customer for the amount of any chargeback or unpaid return. Customer authorizes the depositary institution(s) at which the DDA is held (a) to grant Software Provider, the Processor, and/or the Payment Facilitator any and all information to records regarding the DDA, (b) to hold funds in the DDA in amounts which Software Provider deems sufficient to protect its rights under the Agreement and (c) to immediately comply with any such demand for payment and direction from Software Provider, the Processor, and/or Payment Facilitator.

PCI Compliance. At all times for the duration of the Term, Customer will comply with the Payment Card Industry Data Security Standard (“PCI DSS”) and the payment card brands’ rules and regulations, including without limitation (i) providing data security reports as may be required by the credit card issuer; (ii) paying any fines and penalties in the event Customer fails to comply with requirements; and (iii) fully cooperating with, and providing access to, the credit card issuer or credit card brand to conduct a security review of Customer policies and procedures. Customer will at its own expense undergo a PCI DSS compliance audit on no less than an annual basis and provide the results of such audit to Software Provider. If Customer does not employ an approved PCI Compliance program, Software Provider will enroll Customer into Software Provider’s PCI program at Customer’s expense.

Termination of Terms for Cause. Customer agrees that if Customer materially breaches any of these Terms or the card organization rules that are applicable to Customer, Software Provider has the right to provide Customer with written notice of its intent to terminate these Terms and cease all payment processing activities covered under these Terms unless Customer remedies its material breach within 30 days of receipt of the notice. Customer further agrees Software Provider may immediately terminate these Terms and exercise all of Software Provider’s rights and remedies under applicable law and these Terms if any of the following events occur: (i) a material adverse change in Customer’s business or financial condition including bankruptcy or insolvency proceedings commenced by or against Customer; (ii) any sale of all or a substantial portion of Customer’s assets, merger, amalgamation, assignment or transfer of Customer or Customer’s parent’s voting control unless otherwise permitted pursuant to Section 11 herein; (iii) fraud; (iv) irregular card sales, excessive chargebacks or any other circumstances which, in our judgment, may increase Software Provider’s risk of loss; (v) any improper use or presentation of the Marks; (vi) Customer’s breach or misrepresentation of any of Customer’s warranties or representations with respect to these Terms; or (vii) Customer cancels or revokes its authorization for Software Provide to make deposits or initiate withdrawals from Customer’s DDA.

Indemnity for Third Party Actions. To the fullest extent permitted by applicable law, you agreed to indemnify, defend, and hold Software Provider harmless from and against (i) all claims, actions, lawsuits and any other legal action brought by any third party against Software Provider arising from or relating to (a) your access and use of the Processing Services, (b) your violation of the terms, and (c) and violation of any law or the rights of any third party (collectively, “Third Party Actions”), and (ii) any and all losses, damages, settlements, and judgments (including reasonable attorneys’ fees and expenses) incurred by Service Provider, or made by Service Provider, relating to or arising from any such Third Party Actions.

LIMITATION OF LIABILITY. IN NO EVENT SHALL SERVICE PROVIDER OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE PROCESSING SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. SERVICE PROVIDER’S TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO PROCESSING SERVICES SHALL BE LIMITED TO TWELVE MONTHS OF FEES PAID BY YOU FOR THE PROCESSING SERVICES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.

Compliance. Customer covenants and agrees that it shall conduct its business or operations at all times in compliance with all (a) applicable laws rules, and regulations of the United States and other relevant jurisdictions; (b) standards, bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any entity formed to administer and promote ACH, credit, debit and other cards, such as NACHA, MasterCard International, Inc., Visa, Inc., Discover Financial Services, LLC, and any applicable debit networks; and (c) industry standards and rules that govern the payments industry generally, including, without limitation, the Payment Card Industry Data Security Standard (PCI-DSS) and Payment Application Data Security Standard (PA-DSS), that are promulgated by industry authorities. Except for software, systems and payments gateways provided by Software Provider, Processor or Payment Facilitator, Customer is responsible for ensuring all software, systems and payment gateways utilized by Customer are compliant with this section.