Merchant Agreement

CRYPTOCURRENCY MERCHANT SERVICES AGREEMENT

1.           DEFINITIONS

• 1.1.         “Applicable Law” means all local, state, federal, or foreign laws, regulations, rules, and policies of any governmental bodies having jurisdiction or regulatory authority over the Services.
• 1.2.         “Conversion Rate” means the rate to convert Cryptocurrency to Fiat Currency or FiatCurrency to Cryptocurrency. The Conversion Rate applies on a per-transaction basis, and the Conversion Rate applied for buying Cryptocurrency may be different from the Conversion Rate applied for selling Cryptocurrency at any given time.
• 1.3.         “Cryptocurrency”means any cryptocurrency supported by the Services, including but not limited to Bitcoin, Ethereum, and other current or future cryptocurrencies designated by Company.
• 1.4.         “Fiat Currency” means a currency issued by any sovereign government, such as the United States dollar (USD), the Canadian dollar (CAD), the Euro (EUR) and theBritish Pound Sterling (GBP).
• 1.5.         “IP Rights” means any and all intellectual property rights of any kind, including all trademarks, trade names, trade dress, logos, patents, copyrights, trade secrets, domain names, and any derivatives made of any of the foregoing.
• 1.6.         “Marks” means Company’s name, logo, and any other trademarks, service marks, or trade dress elements.
• 1.7.         “Merchant Data” means data relating to the Merchant Account and use of the Services, including without such limitation information provided on Merchant’s application or registration for the Services (such as Merchant’s name, address, email, phone number, and other contact information), and information regardingCryptocurrency transactions.
• 1.8.         “MerchantProgram” means the operations, policies and procedures of Company for the provision of the Services.
• 1.9.         “Services” means the services offered by Company and provided to Merchant under this Agreement, including Cryptocurrency transaction processing services, Company’s platform through which Merchant accesses such services, application programming interfaces (“APIs”), and other tools and technology related to the foregoing, and any other products and services as Company may make available to Merchant from time to time.
• 1.10.         “Vendors” means third party providers that may be utilized by Company in connection with its provision of the Services.  

2.           MERCHANT PROGRAM

• 2.1.   Program Application and Acceptance. If Company approves Merchant’s application and accepts Merchant into the Merchant Program, Company will provide Merchant with access to the Services. The determination whether to accept Merchant into the Merchant Program will be based on Company’s credit guidelines, background checks, and/or verification of Merchant’s compliance with Applicable Law (including without limitation anti-money laundering rules), and will be made in Company’s sole and absolute discretion. Company reserves the right to reject an application for Services for any reason, including without limitation for companies in high-risk industries or who sell goods or services that are illegal or restricted in any jurisdiction. Merchant authorizes Company to, directly or through third parties, make any inquiries and/or conduct background or credit checks that Company deems necessary to verify Merchant’s information contained in its application and will execute any other authorization request that may be presented by Company to obtain such information. Merchant further authorizes any third parties to whom such inquiries may be directed to provide full and complete responses. This Agreement will not be valid or binding on Company unless and until Merchant receives written confirmation of Merchant’s acceptance into the Merchant Program.
• 2.2.   Merchant Account. Upon acceptance into the Merchant Program, and as part of the Services provided to Merchant, Merchant will be assigned an electronic account (“Merchant Account”). The Merchant Account allows Merchant to access information relating to Merchant’s use of the Services, for example, regarding Merchant’s transaction history and Merchant Account balances. In connection with the Services, Merchant authorizes Company to receive, hold, and disburse Cryptocurrency and Fiat Currency on Merchant’s behalf, and to take such actions with respect to Merchant’s Cryptocurrency that Company reasonably believes are necessary or useful to provide the Services and to comply with Applicable Law. Merchant acknowledges that Merchant Account access requires certain credentials (such as a username and password combination) that will be issued to Merchant upon registration of the Merchant Account, as further described in Section 5.3 below. The Merchant Account is personal to Merchant and Merchant shall not use the Services on behalf of any third party nor allow any other person to use the Merchant Account, or give or disclose Merchant’s credentials to any other person. Merchant acknowledge and agrees that Company may utilize Vendors to perform any portion of the Services.  
• 2.3.   Services. Company grants Merchant a limited, non-exclusive, non-transferable, nonsublicenseable right to access and use the Services during the term of this Agreement, subject to the terms and conditions of this Agreement. Merchant agrees to use the Services only in accordance with the applicable specifications, documentation, guidelines, and policies made available by Company, as may be amended or modified from time to time in Company’s sole discretion. Company may only use the Services in connection with the bona fide sale of the products and services identified in the merchant application. Furthermore, Merchant’s use of the Services is subject to Merchant’s full compliance with the terms and conditions of this Agreement, including payment of all applicable fees.
• 2.4.   Hardware. Merchant may be required to use certain hardware provided or approved by Company to use the Services and process Cryptocurrency transactions. Subject to availability, Merchant may lease or purchase any such devices from Company pursuant to a separate agreement, on terms mutually agreed to by Company and Merchant.
• 2.5.   Updates. Company may release new or modified versions of its Services from time to time, as determined by Company in its sole discretion, with or without notice to Merchant. These updates and releases may include, without limitation, additional features, removal of existing features, functionality modifications, security updates, modifications necessary to cause the Services to comply with Applicable Law, modifications to the API and integration methods, changes to the user interface, content enhancements, or other modifications. If Company releases updates to the API or developer framework used by Merchant, Merchant shall promptly update to the latest version, as required by any updated documentation or notices issued by Company. Company will have no liability for any losses, damages, Service failures, settlement issues, improper data routing, improper transaction approval, improper transaction rejection, or other errors or failures resulting from the failure of Merchant to update its hardware, software, procedures, or other operations in accordance with the latest version of the API or developer framework, and Merchant assumes all such risk and liability.
• 2.6.   Currency Conversion. The Conversion Rate in effect at the time of each Cryptocurrency transaction will apply to such transaction and will be identified on the transaction receipt. Merchant acknowledges that the Conversion Rate may change at any time with or without notice, and that Company is not responsible for any such volatility. Merchant authorizes Company to quote a conversion rate to its clients in order to process transactions. Furthermore, Merchant understands and agrees that Cryptocurrency transactions are final and unreversible. Therefore, if Merchant initiates a return or refund transaction at a later time or date, this may be processed as a separate, independent transaction and therefore a different Conversion Rate may apply. Merchant agrees that Company’s determination of the Conversion Rate that applies to each transaction will be final and binding.
• 2.7.   Trademarks. Solely in connection with Merchant’s authorized use of the Services during the term of this Agreement, Company grants Merchant the right to use and display the Marks (for example, on Merchant’s website or printed marketing material), subject to the limitations of Section 6.4 below and any guidelines or policies issued by Company from time to time. Each use of the Marks by Merchant must receive Company’s prior written approval, which may be provided or withheld in Company’s sole discretion.

3.           SETTLEMENT;   FEES

• 3.1.   Settlement. Company or its Vendors will use commercially reasonable efforts to complete requested Cryptocurrency transactions, and after such payment is confirmed, convert such transaction to Fiat Currency and fund the net transaction funds to Merchant, less applicable fees. Merchant authorizes Company to accept Notwithstanding the foregoing, however, Company makes no representations or warranties that all transactions will be completed as requested, and Company will not be held responsible for any failures in transaction processing that may result in the non-fulfillment of any requested transaction. Company reserves the right to hold debits and credits temporarily until the relevant funds are settled to that depository bank account designated in writing by Merchant to Company (“Bank Account”). No interest pay ments will be made to Merchant on payments temporarily held. Merchant understands that Cryptocurrency transactions are final and cannot be reversed or charged back by Merchant, and therefore Merchant may not be able to recover any losses resulting from any inadvertent or fraudulent transactions. [Merchant agrees that it has irrevocably authorized Company as its non-fiduciary agent for the limited purpose of receiving and disbursing such settlement funds on its behalf. Subject to the terms of this Agreement, any such funds received by Company will be deemed payment to the Merchant at the time received by Company. Merchant may not seek recourse against its customer in the event Company does not disburse such funds to Merchant in accordance with this Agreement. In such event, Merchant’s recourse is solely against Company. Merchant will not withhold any products or services from its customer for Company’s failure to disburse the any portion of the settlement funds to Merchant.]
• 3.2.   Fees. The fees for the Services are set forth in the attached ScheduleA (Fee Schedule), which is incorporated into this Agreement by reference. Any such fees are subject to change from time to time in Company’s sole discretion, upon thirty (30) days’ written notice to Merchant. Company shall have the right to increase fees, immediately upon notice to Merchant, as necessary to offset any direct or indirect increase to Company in the costs of providing the Services hereunder, including not limited to due to changes in rules, regulations, operating procedures, or any additional requirements imposed by any federal or state governmental agency, regulatory authority, Cryptocurrency network, banking network, or industry standards group.
• 3.3.   Payment Terms. Company will settle transaction payments to Merchant and Merchant will pay fees due to Company through setoffs of settlement amounts due to Merchant pursuant to processed transactions. For other amounts which may be due, Merchant authorizes Company to initiate Automated Clearing House (ACH) credits and debits to and from the Bank Account for all amounts due or owing to Company, whether pursuant to this Agreement, another agreement, or for any other reason, without prior notice to Merchant, including but not limited to the fees incurred for the Services, fines, penalties, assessments, and amounts charged by Company’s Vendors and other third-party service providers. Merchant will maintain the Bank Account at a financial institution which accepts ACH transactions and is acceptable to Company, and will at all times ensure that sufficient funds are in the Bank Account to pay all amounts due. Entries initiated to or from the Bank Account will be in accordance with the rules of Nacha or any other applicable regulatory body or agency. Merchant agrees to promptly update Company as to any changes to the Bank Account information, and in any event within fifteen (15) days of any such change. Merchant will complete, execute, and return to Company those ACH authorization forms Company requests in connection with Merchant’s application or this Agreement. Company will not be liable for any delays in receipt of funds or errors in bank account entries caused by the bank, service providers, or any other third party. Merchant is solely liable for all fees and costs associated with the Bank Account. Merchant will not, and will not cause its financial institution to, issue a stop-payment, reject any ACH transaction initiated by Company, or otherwise cancel, block, charge back, or return any ACH transaction or other transaction initiated by Company pursuant to this Agreement. If any type of overpayment to Merchant or other error occurs, the Bank Account may be debited or credited without notice, and if the Bank Account does not contain sufficient funds, Merchant agrees to remit all amounts owed to Company promptly. The foregoing rights are in addition to any other rights Company may have under this Agreement or Applicable Law.
• 3.4.   Reserve Accounts. At any time, Company may, at its option, establish a reserve account to secure the performance of Merchant’s obligations to Company (“Reserve Account”). The Reserve Account shall be funded, at Company’s sole discretion, through any or all of the following: (a) at the request of Company, Merchant will directly deposit funds in the Reserve Account; (b) Company may use the proceeds of submitted transactions to fund the Reserve Account; or (c) Company may withdraw funds from the Bank Account or any other accounts of Merchant, including but not limited to certificates of deposit, maintained by Merchant or Merchant’s guarantor, if any, with any depositary or other financial institution and deposit such amounts into the Reserve Account. Merchant hereby grants Company a security interest in the Merchant Account, the Bank Account the Reserve Account, and all other accounts, including but not limited to certificates of deposits, maintained by Merchant or Merchant’s guarantor, if any, with any depository or other financial institution. Merchant authorizes Company to make withdrawals from all or any of the accounts described in the previous sentence at such times and in such amounts as it may deem necessary hereunder, including as necessary to pay fees, fines, penalties, and other amounts due to Company under this Agreement, under a separate agreement, or for any other reason, without prior notice to Merchant. Merchant and Merchant’s guarantor hereby instruct said financial institutions to honor any requests made by Company under the terms of this provision. Merchant and Merchant’s guarantor will hold harmless the financial institutions and indemnify them for any claims or losses they may suffer as a result of honoring withdrawal requests from Company. Merchant authorizes Company to deduct from the Reserve Account any amount owed to Company, whether under this Agreement, a separate agreement, or for any other reason. Any funds in the Reserve Account may be held until the period necessary to secure the performance of Merchant’s obligations, which holding period may extend beyond termination of this Agreement. Merchant will not receive any interest on funds being held in a Reserve Account and Merchant has no right to access the funds being held in the Reserve Account or otherwise transfer, pledge or use these funds for its own purposes. Without limiting the generality of the foregoing, Merchant shall, upon termination of this Agreement, maintain the sum of at least five percent (5%) of gross sales for the ninety (90)-day period prior to termination to be held in a Reserve Account in accordance with the terms of this Agreement. Company may, at its discretion upon termination of this Agreement, require that the Merchant maintain more than five percent (5%) of gross sales for the ninety (90)-day period prior to termination in a Reserve Account.
• 3.5.   Taxes. Merchant shall pay all taxes related to this Agreement, and Company will not be responsible for withholding or paying any tax on behalf of Merchant. Merchant shall, in connection with each Cryptocurrency transaction, charge its customer all appropriate taxes required by applicable taxing authorities for such transaction, and remit all such taxes due to the applicable governmental agency. Company shall have no obligation to determine whether any taxes apply, or to calculate, collect, report, or remit any taxes to any taxing authority. Company will not provide Company with any tax advice, and Company makes no representations as to how the U.S. Internal Revenue Service or any other governmental agency will treat Cryptocurrency for tax or other regulatory purposes. Merchant shall indemnify and hold Company harmless from any tax paid by Company on behalf of or due to the actions of Merchant, including without limitation regarding any withdrawal, sale, or transfer of Cryptocurrency, or any conversion between Cryptocurrency and Fiat Currency (in either direction).
• 3.6.   Delinquencies. Failure to pay for Services when due will incur an interest charge of two percent (2%) per month or the highest rate allowable by law (whichever is less), compounded daily until paid, in addition to any late fees, service charges, or other fees and penalties set forth in the applicable fee schedule. In the event that a check is returned or an ACH debit is rejected by Merchant’s bank, a $25.00 (USD) service fee will be imposed. Without limiting any other remedies available to Company under this Agreement or Applicable Law, Company may immediately suspend access to the Services for any delinquent or overdue payments. Company may also deduct any amounts owed to Company from Merchant’s Merchant Account balance (whether held in Cryptocurrency or Fiat Currency) available in the Bank Account or the Reserve Account, or set off any amounts due to Merchant for settlement of transactions.
• 3.7.   Disputes. If Merchant believes that any amounts or fees settled to the Bank Account are in error, Merchant must dispute such amounts or fees in writing within thirty (30) days after the actual date of the transaction associated with the amounts or fees, in order to receive any adjustment thereto, if Company determines in its sole discretion after a reasonable investigation that an adjustment is warranted. All settlement amounts and fees shall be deemed accepted by Merchant if not disputed in writing within such thirty (30)-day period, and Merchant’s failure to dispute any fees or amounts settled within such period shall constitute a full waiver of any claim, loss, expense, or error related thereto.

4.           TRANSACTION PROCESSING AND COMPLIANCE

• 4.1.   Compliance. Merchant represents, warrants, and agrees that it will at all times comply with—and will ensure that all of its vendors, terminals, software, and systems comply with—all Applicable Laws (including without limitation regarding data protection, anti-bribery, and anti-money laundering, rules and regulations relating to cryptocurrencies promulgated by the Financial Crimes Enforcement Agency (FinCEN), and all applicable tax laws), and the rules and procedures applicable to the particular Cryptocurrency used, all applicable security standards, and all Company security protocols, policies, notices, and safeguards in effect during the term of this Agreement, as they may be updated from time to time in Company’s sole and absolute discretion. In addition, Company may issue from time to time (on Company’s website or otherwise) written directives regarding new or updated procedures for Merchant to follow in connection with the Services, and such directives and procedures will be binding on Merchant immediately upon issue. Company will under no circumstances be held liable for any damages resulting from Merchant’s (or Merchant’s employees, contractors, or agents’) noncompliance with any of the above, andMerchant will defend, hold harmless, and indemnify Company against all damages resulting from such noncompliance by Merchant or its employees, contractors, or agents, unless the noncompliance directly and solely results from Company’s gross negligence or willful misconduct or failure of the Services to comply with Applicable Law.
• 4.2.   Merchant Data. Merchant authorizes Company to act on behalf of Merchant and to accept and transmit transaction data and other Merchant Data as necessary for Company to deliver the Services and fulfill its obligations under this Agreement. Company will collect, retain, use, process, and transfer Merchant Data collected from Merchant and/or Merchant’s customers in accordance with this Agreement and Company’s then-current privacy policy available on Company’s website. Merchant acknowledges and agrees that: (a) Merchant is solely responsible for verifying the accuracy and completeness of all transactions and associated data submitted to Company, and for verifying that all corresponding funds associated with each transaction are accurately processed; (b) the fees associated with transactions and associated data submitted to Company are earned by Company and shall not be reimbursed; (c) Company shall not be liable for any transactions, including without limitation those that are unauthorized, improperly processed or approved, fraudulent, wrongfully declined, or otherwise; and (d) Company shall not be liable for access by any third party to any Merchant Data, transaction data, the Bank Account, the Merchant Account, or Merchant’s customers’ personal data, including without limitation unauthorized, illegal or fraudulent access. Merchant agrees that Company may use Merchant Data to provide the Services, and share such Merchant Data with third parties, including without limitationCompany’s Vendors, service providers, and financial institutions: (i) as necessary or helpful for completing a transaction or administering the Services; (ii) in order to verify the existence and condition of the MerchantAccount for a third party; (iii) in order to comply with any law or to comply with requirements of any government agency or court order; (iv) to Company’s service providers who administer the Services or perform data processing, records management, collections, and other services in connection with the Services; (v) in order to prevent, investigate or report possible illegal or fraudulent activity; (vi) in order to issue authorizations for transactions on the Merchant Account; (vii) to the extent Merchant consents in writing to the requested usage or sharing the of Merchant Data; and (viii) as otherwise required or permitted by law.
• 4.3.   Transaction Limits, Monitoring. In accordance with Applicable Law and/or Company risk policies, Company reserves to right to impose daily transaction volume limits and/or limits on transaction dollar amounts, in its sole discretion. Merchant may not make transactions that in the aggregate exceed Merchant’s aggregate daily limit, unless otherwise pre-authorized by Company in writing. If Merchant attempts to process a transaction for more than such limits, then the transaction may be declined. If not declined, then Merchant will be solely liable for any penalties or losses arising for such noncompliance. In addition, transactions may be monitored for unusual activity and potentially fraudulent transactions, so unusual or multiple transactions, or transactions above certain dollar limits, may prompt a Merchant inquiry or temporary Merchant Account suspension to allow Company to investigate such transactions. Company reserves the right not to process transactions or provide Services in connection with such transactions that Company believes violates the terms of this Agreement or any Applicable Law, or that Company believes may be fraudulent or unauthorized, in each case in Company’s sole determination and discretion. In addition, Merchant acknowledges and agrees that Company may be required to report certain transactions to regulatory authorities (such as Suspicious Activity Reports (SARs) for transactions above certain amounts determined by FinCEN or other applicable regulatory authorities). Merchant consents to such reporting and will hold Company harmless for any such reporting or disclosures that Company believes is required by Applicable Law.
• 4.4.   Suspension of Services. Company may restrict, suspend, or disable Merchant’s ability to conduct any Cryptocurrency transactions or to convert Cryptocurrency to Fiat Currency, if: (a) Company has reason to believe the requested funds are fraudulent; (b) Company has reason to believe Merchant is likely to charge back or otherwise reject or reverse a purchase after the withdrawal of the funds; (c) the Merchant Account is subject to (or likely to be subject to, in Company’s sole discretion) any investigation, inquiry, inspection, audit, or other regulatory request; (d) Company is required to do so by law or court order or Company’s Cryptocurrency Vendors; (e) Company believes that such action is necessary or appropriate to prevent harm to Company, Merchant, or any third party. Without limiting the foregoing, Company reserves the right, in its sole and absolute discretion, to limit Merchant’s use of the Services in any way, or to suspend or terminate Services with or without notice, other than as prohibited under Applicable Law.
• 4.5.   Record Retention. Merchant is solely responsible for compiling and retaining temporary and permanent records of all applicable data in accordance with Applicable Law, Cryptocurrency network requirements, and Company policies, including without limitation transaction details and receipts, information regarding Merchant’s customers and sales, and information regarding Merchant’s business operations, practices, financial condition, ownership, and other business information. If Merchant has any legal or regulatory requirements to obtain any information from its customers (including without limitation regarding identity verification), Merchant is solely responsible for obtaining such information and any applicable consent or authorization from Merchant’s customers from whom it obtains such information.
• 4.6.   Audits and Information Requests. All records and data which Merchant is required to compile and/or store shall be retained for the term of this Agreement and for a period of three (3) years thereafter. During this period Merchant agrees to provide any such items to Company promptly upon request, at no charge. Furthermore, during the term of this Agreement and for three (3) years thereafter, Company is authorized to audit and inspect the agreements and business records of Merchant relating to transactions conducted under this Agreement, including without limitation in order to verify Merchant’s compliance with this Agreement, at no charge to Company. Merchant is responsible for obtaining any consent from Merchant’s customers necessary to permit Merchant to deliver any requested information to Company. While conducting any audit or inspection, Company and its representatives will be entitled to photocopy and retain any document or item for evidentiary purposes. Merchant will notify Company in writing within ten (10) days if Merchant’s ownership changes in whole or in part, whether through a sale of stock or equity, merger, or other change-of-control transaction.
• 4.7.   Dormant Accounts. If the Merchant Account is dormant or unclaimed following termination or expiration of this Agreement or termination of the Merchant Account for the amount of time specified in applicable escheat laws, such escheat laws may apply to the Merchant Account, and if so, the then-current value of the funds in the Merchant Account may be required to be remitted to the applicable state as unclaimed property. Company reserves the right to deduct a dormancy fee or other administrative charges from such unclaimed funds, as permitted by Applicable Law.

5.           CONFIDENTIALITY AND DATA SECURITY

• 5.1.    Confidential Information Supplied by Company. Merchant acknowledges that Company will be providing Merchant with certain confidential information, including but not limited to the content of this Agreement and information relating to the pricing, finances, systems, methods, techniques, programs, technology, devices, and operations of Company, third-party processors, Vendors, banks, Cryptocurrency networks, and/or credit card associations. Merchant agrees: (a) not to disclose any such confidential information to any person or entity (other than to those employees and suppliers of Merchant who need access to such information to fulfill Merchant’s obligations hereunder and who are legally bound to keep such information confidential); and (b) not to use such confidential information for any purpose other than to exercise its rights or fulfill its obligations under this Agreement. Merchant will fully comply with all applicable confidentiality and security laws, regulations, rules, and requirements issued by governmental agencies or relevant industry authorities. If Merchant is compelled by law or court order to disclose any such confidential information, Merchant will immediately notify Company in writing and cooperate with any efforts by Company to challenge or limit the scope of the compelled disclosure. Upon request by Company or upon any termination or expiration of this Agreement, Merchant will return to Company all materials, in any medium, that contain, embody, reflect, or reference any of Company’s confidential Information.
• 5.2.   Confidential Information Supplied by Merchant. Company acknowledges that Merchant will be providing Company with certain confidential information, including Merchant Data and other information relating to the methods, techniques, programs, devices, and operations of Merchant. Company will not disclose such information about Merchant or any of Merchant’s transactions to any person or entity (other than to those employees, affiliates, Vendors, and agents of Company who participate in the performance of this Agreement and need access to such information). Company’s use of Merchant Data will be subject to Company’s Privacy Policy, which is posted on Company’s website at https://firstpayment.io/privacy-policy/as may be amended by Company from time to time in accordance with the amendment procedures set forth in such Privacy Policy. Notwithstanding anything to the contrary in this Agreement, Company may disclose or share any information about Merchant: (a) to Merchant’s banks and cryptocurrency exchanges including their affiliates, or Company’s Vendors in performance of the Services; (b) if the information is or becomes publicly available; (c) if the information is lawfully disclosed by a third party not under an obligation of confidentiality;(d) to comply with Applicable Law; or (e) in response to a request from law enforcement or other government agencies or a court order.
• 5.3.   Merchant Account Credentials. Merchant is solely responsible for maintaining all necessary security and control of any and all usernames, passwords, or any other credentials issued to or used by Merchant, in connection with the Services, Merchant Account or transaction processing. Company shall be entitled to rely on information it receives from Merchant and may assume that all such information was transmitted by or on behalf of Merchant, including without limitation where such information is received through the use of Merchant’s credentials or from an email address associated with the Merchant Account. Merchant understands and agrees that Company cannot prevent the unauthorized use of the Merchant Account by others and cannot replace funds used or transferred by any unauthorized user. Merchant’s use of the Services shall be restricted to Merchant. Merchant shall not request, introduce, or process transactions using the Services on behalf of any other entity or individual. Any attempt by Merchant to use the Services on behalf of another entity or individual may result in additional fees, charges, fines, or assessments, for which Merchant will be solely liable. Company may disable or revoke the credentials issued to Merchant at any time in its sole and absolute discretion and without notice if Company believes that the credentials may be compromised or used in violation of this Agreement or any Applicable Law or security standards.
• 5.4.   Data Security. Merchant, and not Company or its service providers, is responsible for the security of Cryptocurrency, transaction data or for any other information stored on Merchant’s or any other third party’s servers. Company will not be responsible for the security and safety of the Merchant Account, Cryptocurrency, data and any unauthorized access or use of such Merchant Account, Cryptocurrency, or data while held, hosted, stored, accessible through, or transmitted through the Merchant Account, Merchant’s systems and servers. Merchant agrees to provide notice to its customers (including but not limited to through Merchant’s privacy policy) that discloses how and why personally identifiable data is collected and used in accordance with Applicable Law, including the uses governed by this Agreement. Merchant’s privacy policy shall expressly allow Merchant to share customers’ personal information and transaction information with Company for purposes of processing transactions, investigating fraud, and for other uses permitted under this Agreement. Merchant agrees not to use, disclose, sell, or disseminate any transaction information obtained in connection with a transaction (including customer information) except for purposes of completing or settlement of the transaction or similar issues involving the transaction, unless otherwise required by a court order, governmental agency request or subpoena, or Applicable Law. Merchant represents and warrants that it has taken all precautions necessary to ensure that all transaction data and personally identifiable data are adequately protected and that Merchant’s electronic systems are secure from access, breach, intrusion, or compromise by any unauthorized third parties. In the event that Merchant’s systems are breached or a unauthorized persons have gained access to such systems, Merchant’s credentials, or any personal data or transaction data, Merchant shall promptly:(a) notify Company in writing of such occurrence; (b) notify any affected parties as required under any Applicable Law or industry guidelines; (c)cooperate with all investigation and remediation efforts, (d) take all actions and precautions necessary to prevent any continuous or additional breach; and(e) commence all remedial efforts and other actions required by Company and under the Applicable Law, regulations, and standards.

6.           INTELLECTUAL PROPERTY

• 6.1.   Ownership. As between Company and Merchant, all right, title, and interest in and to the Services are owned exclusively by Company (or its licensors and suppliers), including without limitation all IP Rights in the Services and in any related software, hardware, source code, or technology. All IP Rights granted hereunder are licensed, not sold, even if for convenience terms such as “purchase” or “sale”are used. Except as expressly provided in this Agreement, all rights in the Services are reserved.
• 6.2.   Restrictions. Merchant agrees that it shall not: (a) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Services or modify or make derivative works of the Services software; (b) modify, sell, lease, timeshare, transfer, create derivative works of, or reverse engineer any portion of the Services or any IP Rights; (c) circumvent any technological measure that controls access to the Services; (d) alter or remove any copyright or other legal notices contained in the Services or related documentation; or(e) use the Services in any manner other than as expressly permitted under this Agreement. Merchant agrees to immediately notify Company if it becomes aware of any unauthorized use of the Services by any person. The parties agree that all improvements, enhancements, modifications, or derivative works made from the Services by any person shall be the exclusive property of Company.
• 6.3.   Third-Party and Open-Source Technologies. Merchant acknowledges and agrees that portions of the Services may be licensed from, and/or owned or controlled by, third parties, and that any such technologies may be subject to additional license terms and conditions imposed by such third parties, including without limitation open-source license agreements. Without limiting the foregoing, Merchant acknowledges that Company does not own or control the underlying protocols and technologies which govern the operation of Cryptocurrencies supported by the Services. The protocols underlying many Cryptocurrencies(including but not limited to Bitcoin) are open source and anyone can use, copy, modify, and distribute them. In addition, such underlying protocols are subject to sudden changes in operating rules, and any such changes may materially affect the functionality or value of the respective Cryptocurrency. Accordingly, Merchant acknowledges and agrees that Company is not responsible for operation of the underlying protocols and that Company makes no guarantee of their functionality, security, or availability.
• 6.4.   Trademarks. To the extent Company permits Merchant to use and display Marks in connection with the Services (for example, on Merchant’s marketing materials), Merchant shall comply with all standards with respect to the Marks furnished by Company from time to time and shall obtain Company’s prior approval in each case. Merchant acknowledges and agrees that all right, title, and interest in and to the Marks belong to Company, and that all usage and goodwill of the Marks shall inure to the benefit of Company. Merchant shall not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Marks or Company’s domain names, nor use the Marks in any manner that would indicate that Merchant has any rights thereto other than as a licensee. Company reserves the right to revoke Merchant’s rights to the Marks at any time in Company’s sole discretion.
• 6.5.   Publicity. Merchant grants to Company a non-exclusive, royalty free, perpetual license to use, reproduce, publish, perform, and display Merchant’s name, logo, and other trademarks, service marks, or other identifying marks in connection with the use, display, publication, and performance of the Services on Merchant’s behalf and in any promotional and marketing materials, whether oral, electronic, or printed, including but not limited to press releases, advertisements, newsletters, mailings, and customer lists.

7.           MERCHANT’S REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION

• 7.1.   Merchant’s Business Operations. Merchant represents, warrants, and agrees that: (a) it is engaged in a lawful business that includes the sale of goods or services, and is duly licensed to conduct such business under the laws of all relevant jurisdictions; (b) all statements made by Merchant or on Merchant’s behalf in connection with this Agreement or related documents are true, accurate, and complete in all material respects; (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against Merchant in the United States in accordance with its terms; (d) it has all necessary right, power, and ability to execute this Agreement and to perform its obligations therein, and no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement; (e) the performance of its obligations under this Agreement will not violate any law or breach any other agreement to which it is bound; (f) Merchant will clearly and conspicuously communicate its return and refund policies to its customers, and Merchant will be wholly responsible for credits, returns, and disputes submitted to Merchant or Company by Merchant’s customers, Merchant’s bank, or Merchant’s customers’ bank, and Company will have no liability for any such credits, returns, or disputes; (g) for each item or transaction for which the Services are used or which is presented to Company, Merchant has truthfully delivered merchandise or completed a service to the customer (as the case may be); (h) it will not be involved in any harmful, obscene, or abusive activity over Company’s networks or systems; and (i) it does not and will not at any time conduct its business or use the Services in any manner that involves any illegal, criminal, or infringing activity, or that violates Applicable Law, including but not limited to storing or distributing illegal or infringing software, “warez” sites, selling, distributing, or buying any illegal contraband, or accepting, initiating, or otherwise being involved in any fraudulent sale or transaction. The foregoing representations, warranties, and covenants will be deemed to be made by Merchant upon execution of this Agreement and registration for the Services, as well as each time Merchant submits a transaction using the Services with respect to such transaction. If, at any time any information in Merchant’s application changes, or any representation made by Merchant ceases to be true or becomes misleading in any respect, Merchant shall promptly notify Company and update its information.
• 7.2.   Merchant’s Goods and Services. Merchant agrees that Company is not responsible for the delivery, quality, safety, legality or any other aspect of goods and services sold by Merchant, or any other interaction or relationship between Merchant and its customers. Company will not be a party to any agreement or engagement between Merchant and its customers. Any disputes between Merchant and any customers must be addressed by and between the parties to such dispute, and Company will have no liability or obligation in connection with any such dispute, including without limitation to mediate between those parties. Merchant must post are turn policy (or a statement that all sales are final) clearly at the point of purchase.  Merchant’s return policy must comply with all Appliable Laws. Merchant must notify its customers that transactions conducted through the Services are not reversable.  If Merchant allows returns of its goods or services it must provide an alternative method to refund the customer for the transaction.
• 7.3.   Indemnification. Merchant agrees to hold harmless and indemnify Company from all claims, causes of action, demands, judicial and administrative proceedings, errors, liabilities, damages, costs, and expenses, including without limitation court costs and reasonable attorney’s fees, relating to the Services, this Agreement, or any transaction service, or losses of any type whatsoever that may arise on account of the Merchant Account, Merchant’s activities or those of Merchant’s employees, banks, or agents in connection with this Agreement, including without limitation arising from: (a) any breach or alleged breach of this Agreement; (b) any negligence, fraud, dishonesty or willful misconduct, non-compliance with Applicable Law, or any other act or omission of Merchant or its employees and agents; (c) Merchant’s business activities including with respect to the provision of goods and services to its customers, and any dispute between Merchant and a customer; (d) the reliability, accuracy, or legitimacy of transaction data processed using the Services; and (e) any data breach caused by the acts or omissions of Merchant or its employees and agents, or from systems and networks controlled by Merchant or its service providers.

8.           INTELLECTUAL PROPERTY

• 8.1.   Warranty Disclaimer. The Services are provided solely on an“as is” and “as available” basis. Company makes no warranty of any kind, express or implied, related to the Services, and Company expressly disclaims any and all representations, warranties, and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular  purpose, security, availability, and noninfringement. Customer understands and agrees that the Services may not be available, uninterrupted, secure, accurate, complete, error free, or compatible with certain hardware or software platforms. No warranty of any kind, express or implied, is provided for loss of Cryptocurrency, loss of data, unauthorized access to the Merchant Account, performance, or revenue, or for failure to function properly or meet Merchant’s needs. Company does not warrant or guarantee access to its website or Services, and has no liability for any downtime of servers related to processing of transactions. Without limiting the foregoing, Company makes no representation or warrant with regard to, and will not be responsible or liable for, any transaction (including without limitation any sale, refund, return, or credit), including but not limited to the legitimacy of any such transaction, any claims of or labeling of loss, fraud, or risk associated with such transaction, conclusions drawn from the data generated in connection with such transaction(whether generated through the Services or otherwise), limitations associated with the functioning of the Services, or the mislabeling, misclassification, or improper routing of any transaction.
• 8.2.   Limitation of Liability. Company will not be liable for any indirect, incidental, special, or consequential damages, including but not limited to lost data, lost profits, or cost of substitute goods or services, however arising, even if Company has been advised of the possibility of such damages. Company’s total aggregate liability for damages under this Agreement, regardless of the form of action, whether in contract, in tort (including for negligence), or otherwise, shall in no event exceed the amount paid by Merchant to Company for the Services in the three(3)-month period preceding the date on which the claim first arose, with all claims being aggregated to meet this limit. Company is not responsible for fraud, duplicate charges, or disputed charges created or caused by Merchant’s customers, nor can Company refund transactions or processing charges to Merchant.

9.           TERM AND TERMINATION

• 9.1.   Term. This Agreement shall continue for a period of two (2) years, and shall thereafter automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least sixty (60) days before the end of the initial term or any renewal term, or unless this Agreement is otherwise terminated in accordance with this Section 9.
• 9.2.   Termination. Either party may terminate this Agreement upon written notice if the other party fails to observe any material obligation and such failure is not cured within thirty(30) days of written notice of such breach. In addition, Company may immediately terminate this Agreement if Merchant breaches any provision of this Agreement or is or may be involved in any illegal or fraudulent activity, in Company’s sole determination and discretion. Company may also immediately terminate this Agreement if Company’s relationship or contract with its processor or service provider terminates or if changes in law, regulation, or Cryptocurrency network rule makes it impossible or commercially unreasonable for Company to continue to provide the Services, all in Company’s sole and absolute discretion. Company will use reasonable efforts to notify Merchant of any such termination by Company within a commercially reasonable time after termination.
• 9.3.   Early Termination. In the event Merchant terminates this Agreement prior to the end of the then current term, a fee equivalent to the last three months of processing fees (or the maximum amount permitted by Applicable Law, if less) shall immediately become due and payable to Company. Merchant authorizes Company to accelerate the payment of such applicable fee and all other amounts owed to Company under this Agreement or otherwise and to deduct such total amount from the Bank Account, or to otherwise set off or withhold the total amount from those amounts due to Merchant from Company, immediately upon notice to Company of termination, upon Merchant’s failure to submit transactions to Company, or after the effective date of termination. If the Bank Account does not contain sufficient funds for the debit or the amount cannot be withheld by Company from amounts due to Merchant, Merchant shall pay Company the amount due within five(5) days of the date of Company’s invoice for same. The payment as described here is not a penalty, but rather is agreed by the parties to be a reasonable amount of liquidated damages to compensate Company for its termination expenses and all other damages under the circumstances in which such amounts would be payable. Such amounts shall not be in lieu of but in addition to any payment obligations for Services already provided under this Agreement (or that Company may continue to provide and other amounts owed to Company under this Agreement), which shall be an additional cost, and any and all other damages to which Company may be entitled under this Agreement.
• 9.4.   Effect of Termination. Upon termination or expiration of this Agreement, Merchant shall immediately cease using the Services, the Marks, and all other materials of Company. Termination or expiration of this Agreement shall not relieve Merchant from any liability or obligation to Company incurred prior to the effective date of termination, including any interest or finance charges or other accrued fees and penalties. Any authorization by Merchant allowing Company to initiate credits and debits via ACH shall remain in full force and effect until Company has collected all fees due and owing under this Agreement. Sections 4–8, 9.3,9.4, 10, and 11 shall survive termination or expiration of this Agreement for any reason, along with any other terms necessary to protect Company’s rights under this Agreement.

10.           PERSONAL GUARANTY  

• 10.1.   Guaranty. Each of Merchant’s shareholders, members, and partners (“Guarantors”), jointly and severally, irrevocably guarantee to Company, including its successors and assigns, the full, prompt, and complete performance of Merchant and all of Merchant’s obligations under this Agreement, including but not limited to all monetary obligations arising out of Merchant’s performance or nonperformance under this Agreement, whether arising before or after termination thereof. Company shall have immediate recourse against the Guarantors, jointly and severally, for the full and immediate payment of any amount or portion thereof which has not been paid by Merchant to Company, and for any costs incurred by Company in enforcing or collecting under this guaranty (including without limitation reasonable attorney fees). This guaranty shall not be discharged or otherwise affected by any waiver, indulgence, compromise, settlement, extension of credit, or variation of terms of this Agreement made by or agreed to by Company. The Guarantors waive any notice of acceptance of this guaranty, notice of nonpayment or nonperformance of any provision of this Agreement by Merchant, and all other notices or demands regarding this Agreement or any other amounts owed by Merchant to Company for any reason.
• 10.2.   Credit Reports. Each Guarantor authorizes Company to order a consumer credit report, and agrees to promptly provide any information requested by Company from time to time concerning the financial condition, business history, business relationships, and employment information of such Guarantor as permitted by law. Merchant authorizes its depository institutions to release any financial information concerning Merchant or its accounts to Company. Upon the written request of any Guarantor who is the subject of a consumer credit report, Company will provide the name and address of the consumer credit reporting agency furnishing such report, if any. Company may exchange information about Merchant and its Guarantors with other financial institutions and any other party in Company’s sole discretion. Merchant authorizes Company to disclose information concerning Merchant and Merchant’s transactions, disputes, and any other activity to any financial institution or any other party without any liability whatsoever to Merchant.
• 10.3.   Continuing Credit Monitoring. In addition to any consumer credit report ordered in connection with the execution of this Agreement, Company may also order subsequent reports which may be required or used in conjunction with the maintenance, updating, renewal or extension of this Agreement or the Services provided to Merchant, or in conjunction with reviewing, taking collection action on, or other legitimate purposes associated with the Merchant Account, all in Company’s sole and absolute discretion.

11.           GENERAL

• 11.1.   Governing Law. The Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Nevada without reference to conflict of laws principles, the laws of any other state, or any rule of construction that would generally favor a particular party. The parties agree that any controversy and all matters of dispute arising under this Agreement or relating to the subject matter thereof shall be resolved exclusively in the state or federal courts located in the State of Nevada. Such state and federal courts shall have exclusive jurisdiction over any dispute concerning this Agreement, and the parties hereby submit to the personal jurisdiction of such courts. Where permitted under Applicable Law, class action lawsuits, class-wide arbitrations, private attorney general actions, and any other proceeding where someone acts in a representative capacity are not allowed, and Merchant agrees that it will bring any claim under this Agreement only in its individual capacity. Unless both Merchant and Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of representative or class proceeding. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN THE EVENT OF ANY LEGAL PROCEEDING.
• 11.2.   Remedies. If Company is the prevailing party in any action brought to enforce or interpret this Agreement, Company shall be entitled to recover from Merchant all its costs and fees. Each party acknowledges that any breach of the confidentiality provisions of this Agreement would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore the non-breaching party will be entitled to seek injunctive relief to enforce this Agreement and such obligations without the need to prove harm. Except as otherwise provided in this Agreement, the remedies set forth herein are cumulative and not exclusive, and each party may exercise any remedies available to it at law or in equity and as are provided in this Agreement.
• 11.3.   Entire Agreement; Right to Amend. This Agreement, including all schedules and attachments incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement is not binding upon Company until executed by an authorized representative of Company. Notwithstanding any other provision in this Agreement Company may update or amend the terms of this Agreement, including any fee schedules or other related attachments or exhibits, at any time upon thirty (30) days’ written notice, including without limitation in response to changes in Applicable Law or rules promulgated by the applicable Cryptocurrency networks. Merchant’s continued use of the services constitutes its acceptance of such amendments. If you elect not to accept the amendments to this Agreement, you must (a) provide written notice to Company;and (b) immediately cease using the Services. Except as otherwise expressly provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties.
• 11.4.   Notices. All notices, requests, demands and other communications to be delivered hereunder, unless specified otherwise herein, shall be in writing and shall be deemed delivered upon receipt. Notices shall be delivered by nationally recognized overnight carrier, registered or certified mail, postage prepaid, to the following addresses (which may be updated with written notice to the other party): To Merchant: to the address provided by Merchant in its application or otherwise to Company, including any email addresses, to which electronic notification may be sent by Company. Merchant must promptly provide Company with any change of address. Notices to Company, must be delivered to the following address:
  
  First Payment USA, Inc:
  6543 South Las Vegas Boulevard
  Las Vegas, NV, 89119, USA
• 11.5.   Assignment. Merchant may not transfer, assign, or delegate this Agreement or any of its rights or obligations, whether by operation of law or otherwise (including in connection with any merger, sale of assets, or change of control), without the prior written consent of Company, and any unauthorized attempted assignment will be null and void. Company may transfer, assign, or delegate this Agreement, or any rights or obligations related thereto, in Company’s sole discretion. Subject to the foregoing, this Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns.
• 11.6.   Financial Accommodation.  The acquisition and processing of transactions under this Agreement is a financial accommodation and, as such, in the event Merchant becomes a debtor in bankruptcy, this Agreement cannot be assumed or enforced, and Company shall be excused from performance.
• 11.7.   Waivers. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.
• 11.8.   Force Majeure. Notwithstanding any other provision in this Agreement, Company will not be liable to Merchant for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control of Company.
• 11.9.   Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents (except as otherwise expressly stated herein), servants, joint venturers, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party shall make any representation or warranty otherwise. Company will have no responsibility for any fee or expense incurred by Merchant in connection with its operations, performance this Agreement, or use of the Services. This Agreement is intended solely for the benefit of Company and Merchant, and will not be deemed to be for the benefit of any third party.
• 11.10.   Severability. If any provision of this Agreement is deemed illegal, invalid, or unenforceable, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal, invalid, or unenforceable provision is not contained. This Agreement will be deemed modified only to the extent necessary to render enforceable the remaining provisions.
• 11.11.   Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. Each party acknowledges and agrees that the language chosen in this Agreement represents the mutual intent of the parties, thus no rule of strict construction will be applied against either party.
• 11.12.   ElectronicAcceptance.  Each party agrees that electronic signatures (whether digital or encrypted) are intended to authenticate this Agreement and to have the same force and effect as manual signatures. Merchant consents to receiving all notices from Company electronically, including any notice required by Applicable Law.  

Attachment:  Schedule A, Fees       DEFINITIONS

Schedule A
Merchant Services  

FirstPayment USA Inc. Crypto to Fiat Merchant Processing  

• Trading and liquidity- Crypto Currency converted to US dollars in realtime.
• Payouts- Direct ACH deposits made from our partner banks.
• Risk Monitoring- All transactions are processed in real time through our blockchain monitoring tool.  
• Platform Management & Historical Transaction Data- All transactional data is captured and stored in our merchant management platform.
• Reporting- merchant statements, and transaction reports through FirstPayment USA’s merchant management portal.

Commissions and Fee Structures  

*** These rates are subject to change.

*** Processing rates are for certain categories of merchants only.  Risk levels determined by our risk andcompliance departments may change processing rates