MERCHANT PLATFORM PROGRAM AGREEMENT

This Merchant Platform Program Agreement (“Agreement”) establishes a legal agreement as of the date accepted by Payblox (the “Effective Date”), and is by and between 33 Operations, Inc., d/b/a PayBlox, with a business address of PO Box 1982, North Eastham, Massachusetts 02651 (“Payblox”) and the business entity or person participating in the Program (defined below) and/or receiving Financial Services (defined below) under this Agreement via the Payblox website and interactive platform (“Merchant”). Payblox has established and agrees to maintain the Program (defined below) in accordance with the terms and conditions set forth in this Agreement. Merchant desires to participate in the Program in accordance with the terms and conditions set forth in this Agreement. In consideration of the foregoing and the covenants and conditions contained herein, Merchant and Payblox agree as follows:

1.         Definitions.  

“Financial Services” shall mean: (i) all services necessary to authorize, data capture and process (and when permitted by the applicable payment brands, banks and processors, settle and reconcile) transactions effected by Merchants with their customers using credit cards, debit cards and other payment instruments; (ii)  check guarantee and electronic check acceptance services; (iii) Automated Clearing House (ACH) transaction processing, (iv) loan origination and management services; (v) crypto currency generation, deployment and management services; and (vi) other related products and services, including point of sale terminal equipment and other electronic payments at the point of sale.    

“Merchant Agreement” means an agreement for Financial Services between Merchant and a Provider, resulting from Merchant having accepted such Provider’s Offer.

“Offers” means written offers submitted through the Program to Merchant from various Providers for Provider-offered Financial Services.

“Program” means the proprietary lead-generating platforms and systems owned, licensed and/or operated by Payblox. The Program provides opportunities for Merchant to review and consider a variety of Offers. The Program will provide Merchant with information about various Providers including their services, pricing, terms, and ratings, and Merchants can decide to seek Offers through the Program. 

“Providers” means Financial Services providers, credit and debit card account providers, other similar entities and businesses, and entities and businesses that solicit business entities on such providers’ behalf, in each case that enter into a marketing agreement with Payblox.

2.         Renewal and Termination. This Agreement shall commence on the Effective Date and continue until terminated as set forth herein.  Either party may terminate this Agreement for any reason or for no reason upon thirty (30) days’ prior written notice to the other party.

3.         Program Operation. Upon the full execution of this Agreement, Merchant shall become a non-exclusive participant under the Program.  As a Program participant, Merchant will have the opportunity to receive and review Offers from Providers. Merchant’s relationship with all Providers and any Offers made or accepted shall be subject to the terms and conditions set forth in this Agreement. Merchant agrees to comply with Payblox’s privacy policy as set forth on Payblox’s website, which may be modified from time-to-time in Payblox’s sole discretion, with regard to its use of and participation in the Program. As a participant in the Program, Merchant understands, acknowledges and agrees to be bound by the Conditions of Use for Payblox Website & Services located at www.payblox.com/terms-and-conditions/.

4.         Merchant Rebate. As a Program participant, Merchant may be entitled to receive a Merchant Rebate each month prior to the termination of this Agreement, provided that during such month Merchant utilizes Financial Services under a Merchant Agreement for which it processes transactions with the Provider that exceed more than $15,000. Each merchant participating in the Program that processes transactions with Providers that exceeds more than $15,000 under a Merchant Agreement for Financial Services utilized in any month shall be deemed an “Eligible Merchant” with respect to such month. For purposes of this Agreement, the “Merchant Rebate” is an amount calculated each month as follows: (a) the total amount of all net revenue actually earned by Payblox for such month from all Providers participating in the Program related to Eligible Merchants; multiplied by 10%; then divided by the number of Eligible Merchants participating in the Program with respect to such month. Each Merchant Rebate may be paid during the month following the month during which such Merchant Rebate was earned. Payblox may refuse to allow participation in Merchant Rebates by an Eligible Merchant at any time and for any reason, and the Merchant Rebate may be discontinued by Payblox at any time upon 30 days’ prior written notice to Merchant. 

5.         Offer Acceptance.  If Merchant decides to accept an Offer from a Provider, Merchant shall complete the steps in the Program related to the Offer acceptance process. Thereafter, Merchant information will be shared by Payblox with the Provider whose Offer was accepted and Merchant will complete the application and boarding process with such Provider. 

6.         Confidentiality.  Each of Merchant and Payblox agrees to hold the other party’s confidential or proprietary information and trade secrets (collectively, “Confidential Information”) in trust and confidence and agree that it shall be used only for the contemplated purpose herein and shall not be used for any other purpose or disclosed to any third party under any circumstances whatsoever.  Further, the disclosing party may be referred to as the “Owner” and the receiving party may be referred to as the “Recipient”. Confidential Information (including, without limitation, the terms of this Agreement) shall not be disclosed to any consultant or other third party unless said party agrees in writing to be bound by the terms of this Section 6, and disclosure by Merchant or Payblox is first approved by the other party hereto. It is understood that the Recipient shall have no obligation with respect to any Confidential Information that: (i) is already known by the Recipient; (ii) is independently developed by Recipient; (iii) becomes publicly available through no wrongdoing of the Recipient, or; (iv) becomes available to Recipient on a non-confidential basis from a person, other than Owner, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to Recipient. Merchant also understands that Merchant data regarding its receipt of Financial Services from Providers will not be deemed to be Confidential Information, except to the extent (i) any such information contains personally identified information, or (ii) is otherwise prohibited for use or dissemination by applicable law or regulations. Furthermore, this Agreement shall not prohibit Recipient from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided, that Recipient shall provide Owner with prompt notice thereof, to the extent permitted by law, so that Owner may seek an appropriate protective order or other remedy.  If, in the absence of a protective order or other remedy or waiver of the terms of this Agreement, Recipient determines in its sole but reasonable discretion that it is required by law, regulation, legal process, or regulatory authority to disclose any Confidential Information, Recipient may disclose such Confidential Information upon written notice to Owner. Merchant and Payblox each acknowledge that it has no adequate remedy at law and will be irreparably harmed if the other party hereto breaches or threatens to breach the provisions stated herein, and, therefore, agrees that it shall be entitled to injunctive relief to prevent any breach or threatened breach, and that it shall be entitled to specific performance of the terms of this Section 6 in addition to any other legal or equitable remedy that may be had.  Nothing in this Agreement shall be construed as prohibiting either party hereto from pursuing any other remedies at law or in equity that may be had or any other rights that may be had under any other agreement.

7.         Indemnification; Warranties; Disclaimer. Merchant shall indemnify Payblox and/ its directors, officers, agents, employees, contractors, parent companies, affiliates, and subsidiaries against any claim, suit or proceeding based on or arising out of (i) any Merchant Agreement, or (ii) any breach by Merchant of any of its obligations set forth in this Agreement. THERE ARE NO WARRANTIES GIVEN UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, ANYTHING DEEMED TO BE A WARRANTY UNDER THIS AGREEMENT SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND PAYBLOX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF NON-INFRINGEMENT. PAYBLOX DOES NOT WARRANT THAT THE PROGRAM WILL MEET MERCHANT’S REQUIREMENTS OR THAT USE OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE OR WILL RESULT IN LOWER COSTS INCURRED BY MERCHANT FOR FINANCIAL SERVICES. Use of the Program by Merchant is at Merchant’s own risk and Payblox specifically denies any responsibility for the accuracy or quality of information obtained through its Program. Payblox does not represent or warrant the performance of any Providers under any circumstances. In no event shall Payblox or its third-party vendors be liable to Merchant or any third-party for (a) any special, incidental, indirect or consequential damages or (b) loss of data, loss of profits, business interruption, or similar damages or loss, even if Payblox and its third-party vendors have been advised of the possibility of such damages, except as limited by applicable laws. Regardless of the basis for Merchant’s claim, Payblox’s maximum liability under this Agreement shall be limited to $100.  The foregoing limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. 

8.         Assignment.  Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that either party hereto may assign the Agreement to: (a) an acquirer of all or substantially all of such party’s equity, business or assets; (b) a successor in interest whether by merger, reorganization or otherwise, or; (c) any entity controlling or under common control with such party.

9.         Amendments; Waiver.  This Agreement may be amended, modified or changed by Payblox by written notice to Merchant or by posting such amendment, modification or change to Payblox’s website, and Merchant agrees to be bound thereto. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.  Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of or excuse for any different or subsequent breach.

10.       Notices.  All notices and/or communication required or permitted under this Agreement from PayBlox shall be sent via email or other electronic notice and shall be deemed delivered when sent. Notices from Merchant to Payblox shall be in writing and be deemed delivered when received by personal mail or two business days after being sent by first-class mail, return receipt requested, postage prepaid, to the address set forth in the introductory paragraph of this Agreement.

11.       Severability. The invalidity of any paragraph or subparagraph hereof shall not affect the validity of any other paragraph or subparagraph hereof.

12.       Electronic Signatures.  Merchant understands and agrees that his, her or its signature on this Agreement shall be provided electronically and agrees not to challenge the authenticity of any such electronic signature.  By clicking on the “I agree” button or any similar tab or button on any Payblox electronic form of this Agreement, Merchant understands and agrees that Merchant is contractually bound to comply with all terms and conditions set forth in this Agreement. 

13.       Relationship of the Parties.  This Agreement does not create a relation of principal and agent nor, except as otherwise expressly provided in this Agreement, is either party to be considered to be the agent or legal representative of the other. Neither party is authorized to make any warranty or representation on behalf of the other except as specifically authorized by this Agreement.  It is expressly understood that Merchant and Payblox are in all respects independent parties to a contract.

14.       Governing Law. This Agreement will be governed by and interpreted under the laws of the State of Florida without reference to any rule of conflicts of law.

15.       Survival.  The provisions of Sections 6 and 7 hereof shall survive the termination of this Agreement.

16.       Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof and supersedes all prior agreements, understandings and contracts between the parties with respect to the subject matter hereof. The content herein constitutes the entire Agreement.