Last Update: November 12, 2019

The services provided to the Customer (“you” or “Client” or “Customer”) identified in the Order Form are subject to your assent to the terms and conditions contained in the Order Form and the terms and conditions of this Service Agreement entered into between Affiliated Acceptance Corporation and any of its direct or indirect affiliates (“Company” or “AAC”) and you, together with any other terms and conditions which may be incorporated by reference herein or therein (collectively, the “Agreement”), which together constitute a binding legal agreement between the Client and Company.

YOU ACCEPT THESE TERMS AND CONDITIONS BY (1) SIGNING THE ORDER FORM BETWEEN YOU AND COMPANY INTO WHICH THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE OR (2) ACTUALLY ACCESSING OR USING THE SERVICES. THE TERMS AND CONDITIONS STATED HEREIN MAY BE UPDATED AND REVISED FROM TIME TO TIME. YOU AGREE THAT SUCH UPDATED AND REVISED TERMS OF USE SHALL BE EFFECTIVE AS OF THE DATE YOU ARE PROVIDED NOTICE OF THE UPDATED AND REVISED TERMS AND ACCEPT THE SAME IN ACCORDANCE WITH THE PRECEDING PROCESS.

1. Services

1.1. AAC agrees to provide Services for all acceptable membership agreements of the Client that have been delivered to AAC from time to time under this Agreement.

1.2. Upon receipt of an acceptable membership agreement or account information and such membership agreement or account information becomes an active account; AAC will maintain appropriate account information during the time AAC is actively collecting the account on behalf of the Client.

2. Merchant and Bank Account Set-up/Power of Attorney

2.1. Client hereby appoints AAC to act as its attorney-in-fact as follows:

2.1.1. To establish and maintain a bank account and credit card processing merchant agreement on Client’s behalf with such bank and credit card processor as AAC may designate;

2.1.2. To receive sales data from Client and tender it to a credit card processor, for processing; and

2.1.3. In connection with such bank account and this Agreement, to execute any and all documents and take any and all other actions, on behalf of Client, that AAC deems necessary or appropriate without further authorization or consent of Client.

2.2. Such bank account shall be maintained for the purpose of receiving and accepting proceeds of the card transactions processed pursuant to this Agreement and other related activity, including adjustments, chargebacks and payment fees, all on Client’s behalf.

2.3. Client hereby irrevocably directs such bank to transfer, on each banking day, the closing balance of such account to a separate AAC account, as designated by AAC, to facilitate the transactions contemplated in this Agreement.

2.4. The Power of Attorney created hereby is coupled with an interest and shall be irrevocable.

2.5. Client hereby authorizes AAC to submit Client information to government agencies or other organizations, such as Office of Foreign Assets Control (OFAC) and Member Alert to Control High-risk Merchants (MATCH), as necessary to facilitate screening and monitoring required by bank and credit card processors.

3. Client Service Fees

3.1. The Client agrees to pay AAC for services provided herein according to the fee schedule.

3.2. AAC reserves the right, from time to time, to change the fees and charges provided for herein without prior notice. Client must provide notice in writing to AAC within sixty (60) days of Client’s receipt of the first monthly report reflecting such change. If Client disputes such changes, the parties may negotiate a mutual agreement regarding fees or either party may terminate this Agreement by providing thirty (30) days notice.

4. Customer Service Fees

4.1. The Client agrees that AAC may add additional fees to the customer accounts as required for services provided herein.

4.2. AAC has no control on the financial practices of responsible persons who sign up for services in Client’s facilities. Client understands that AAC will not absorb any expense created because of any customer of Client.

5. Legal Fees

5.1. Any legal fees incurred by AAC in collecting or defending membership agreements arising out of negligence, lack of due diligence or illegal activity on behalf of Client will be assessed and paid by Client.

6. Account Assignment

6.1. All contractual member agreements are assigned to AAC for the payment duration of the agreement.

6.2. Member agreements that have reached or exceeded the Statute of Limitations for the respective jurisdiction will be terminated by AAC without prior authorization. AAC will not provide services or further pursuit or other activity on such accounts.

6.3. AAC may determine that an account is no longer serviceable, and in doing so it may elect to consider only its own interests and will not be required to consider the effect on Client of terminating servicing of the account. All accounts that are determined as no longer serviceable will be returned to the Client for any further pursuit or activity. AAC will be released from any further responsibility with respect to such accounts.

7. Current Accounts Only

7.1. AAC only accepts membership agreements under which the member is not in default or past due for any amount.

8. Direct Payments

8.1. Direct payments on membership agreements to the Client are discouraged. In order to assure proper credit to each account, the Client agrees to promptly notify AAC of any direct payments, including account number and correct name in which the account is held.

9. Member Cancellation

9.1. The Client may cancel the membership agreement of any member, and such membership agreement will be removed from the active list and the Client will be notified.

9.2. Cancellations will not be accepted from individual members, only from the Client itself, unless prior authorization is received from Client.

9.3. Client Cancellations (including client requested automated cancellations) are subject to service fees.

9.4. Client agrees to pay to AAC any remaining debt balance on account after cancellation including all chargebacks and returns.

10. Term and Termination

10.1. Unless otherwise specified on Client’s Order Form, this Agreement is for term. The term will commence on the date that the order form accompanying this Agreement is executed and continue for one-year (1) thereafter (“Initial Term”). After the expiration of the Initial Term and each renewal term thereafter, this Agreement will be automatically renewed at the then-current standard AAC pricing for successive renewal terms, each with a duration equal to the duration of the Initial Term, unless either party gives written notice to the other party of its intent not to renew at least sixty (60) days prior to the expiration of the then current term (the Initial Term and each renewal term are collectively the “Term”).

10.2. AAC may immediately suspend services and/or cancel this Agreement without notice to Client if AAC has reason to believe any of the following occur:

10.2.1.Any violation of FinCen regulations, including, but not limited to, payment of illegal goods or services, pyramid schemes, or money laundering;

10.2.2.Attempts to falsify the identity of any individual;

10.2.3.Providing AAC with false documents;

10.2.4.Providing AAC with false account information; and

10.2.5.Attempt to defraud AAC, AAC Client’s, or Client accounts in any way.

10.3. Reserve amount will be held up to 45 days to offset returned payment or excess fees.

10.4. Funds will be held up to 45 days from last draft date.

11. Fund Transfer

11.1. AAC reserves the right to transfer funds between facility locations (i.e. client numbers) of the same guarantor to cover debt balances that may occur.

12. Bank Delay

12.1. AAC will not be liable for delays caused by third-party bank delays. Depending on the type of transfer (Wire, ACH, or Check), funds may not be available until the second business day after AAC initiates the transfer. Each bank has its own funding procedures and funding times may vary.

13. Chargebacks

13.1. You understand that AAC does not warrant the payment transactions and that these transactions are subject to ACH return and/or credit card chargeback processes. Each processor has its own chargeback procedures and AAC will work on Client’s behalf to defend Client chargebacks. If Client is found liable for an ACH return and/or chargeback, Client will be charged the full amount of the ACH return and/or chargeback.

14. Set-Off Rights

14.1. To the extent permitted by law, AAC may set off against your balances for any obligation you owe AAC under this Agreement, including, without limitation, any chargebacks or refunds.

15. Accounts Receivable Management

15.1. AAC does not guaranty collection of Client’s accounts receivables and AAC will make reasonable efforts to collect any monies outstanding.

15.2. Client understands that nothing contained within this Agreement shall be interpreted as any guaranty of collection.

16. Taxes

16.1. The Client shall pay any and all federal, state or local excise, sales or use taxes or similar taxes imposed in respect to all membership agreements services by AAC for the Client under this Agreement, or the services involved with respect to such membership agreement (“Taxes”), and complete and file all required tax reports related thereto, all in a timely manner, and hereby agrees to indemnify and hold AAC, its officers, directors, shareholders and employees harmless from any loss, including attorneys’ fees, resulting from its failure to do so.

17. Commercial Entity Agreement

17.1. You agree to be bound by the Commercial Entity Agreement found at http://affiliatedacceptance.com/commercial-entity-agreement/ insofar as it applies to you. This agreement is incorporated by reference here as if set forth in full. This section applies once you process over $100,000 in annual sales with AAC because card networks mandate that large merchants (having annual sales greater than $100,000) must enter into a direct agreement with AAC’s processing bank partner. It may also apply should AAC’s bank partner otherwise require the Commercial Entity Agreement. This does not change any transaction arrangements, fees, or fulfillment structures between you and AAC.

18. Franchise Relationships

18.1. Any Client which is part of a franchise, whether de facto franchise or inadvertent franchise, may not cancel, terminate or otherwise modify this agreement without prior authorization by the Franchisor.

18.2. AAC will not be liable to any Client for any delay in cancellation, termination, or other modification of rights or obligations under this agreement which AAC believes or has reason to believe is a franchisee.

19. Fee Splitting

19.1. From time to time, Client may request AAC to split fees between parties, such as a promoter agreement. AAC will not be responsible for the actions of either party and will only make modifications upon written agreement signed by all benefiting parties. If the Client and split arrangement party have a dispute, it is wholly dependent upon the Client to reach a resolution; AAC will not be involved in any disputes or resolutions between said parties.

19.2. From time to time, AAC may, at the behest of a court order, registered judgment, tax lien, or other lien (collectively “Liens”), be required to modify Client’s receivables by a proportion according to the requirements of the Lien. AAC will not be responsible for any monies incorrectly taken at the request of a Lien Holder. Any dispute arising between Lien Holder and Client shall be Client’s sole responsibility and all costs associated with such dispute be borne by the Client or Lien Holder.

20. Force Majeure

20.1. Neither party will be deemed to be in default hereunder, or will be liable to the other, for failure to perform any of its obligations under this Agreement for any period, to the extent that such failure results from any event or circumstance beyond that party’s reasonable control, including acts or omissions of the other party or third parties, natural disasters, riots, war, civil disorder, court orders, acts or regulations of governmental bodies, labor disputes or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines, or other equipment failure.

21. Agreement

21.1 This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.

21.2 If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL.

21.3 The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

21.4 This Agreement may include additional terms not located at a URL. Such additional terms shall be identified in a separate document referencing this URL and are incorporated by reference.

22. Modification

22.1 AAC may modify these terms from time to time without notice.

23. Successors and Assigns

23.1. This Agreement is binding upon the Parties, and inures to the benefit of the Parties and each Party’s respective successors and assigns.

24. Governing Law

24.1. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, without resort to its conflicts of laws rules.

25. Venue

25.1. Any legal action or proceeding relating to this Agreement shall be instituted only in a court of competent jurisdiction in Jackson County, Missouri or in the United States District Court for the Western District of Missouri.

26. Exclusivity.

The customer agrees that no less than ninety-five percent (95%) of Customer’s average contract volume during the Term of this Agreement shall be handled by AAC. Failure to comply with is provision will be considered a material breach of the Agreement and will entitle AAC, in its sole discretion, the right to cancel or modify the Agreement.

27. Severability

In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.

28. Privacy Policy Incorporated

Customer acknowledges that AAC’s Privacy Policy is an integral part of this Agreement and agrees to abide by the terms and spirit of the Privacy Policy, which may be found at http://affiliatedacceptance.com/

29. Limitation of Action.

Any legal action arising out of AAC’s provisioning of Services, including the failure, malfunction or defect in the Services shall be brought within one (1) year of the occurrence or deemed waived.

30. Notices.

Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by either Party pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), or (d) upon confirmation of receipt by email, in each case, addressed to the Party at such Party’s address as set forth on the signature page of this Agreement or as subsequently modified by written notice.

31. Indemnification.

Except as provided below, Customer agrees to defend, indemnify, and hold harmless AAC and its directors, shareholders, officers, employees, licensors and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including attorneys’ fees, arising from Customer’s failure to use Services as permitted under this Agreement (or from any violation or breach of this Agreement by Customer) provided that AAC (a) gives Customer written notice of any such claim within fifteen (15) days of AAC’s receipt of such claim, (b) permits Customer to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides Customer all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim, at Customer’s cost and expense.

32. Limitation of Liability

EXCEPT SET FORTH EXPLICITLY HEREIN, AAC PROVIDES, AND CUSTOMER ACCEPTS, THE SERVICES IN “AS-IS” CONDITION; AND AAC DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (STATUTORY, EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, ACCURACY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT AAC KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. AAC SHALL HAVE NO LIABILITY ARISING FROM CARD HOLDER DATA TRANSMISSION WHICH OCCURS PRIOR TO ENCRYPTION AND RECEIPT BY SERVERS OWNED OR CONTROLLED BY AAC. WITHOUT LIMITING THE GENERALLITY OF THE FOREGOING, AAC SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM FRAUD, EMBEZZELMENT, THEFT, IDENTIFY THEFT, OR INVASION OF PRIVACY BY ANY THIRD PARTY. AAC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. AAC EXPRESSLY DISCLAIMS ANY WARRANTY AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTIES. AAC EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES OR ANY PART THEREOF. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY. TO THE EXTENT THAT THIS AGREEMENT MAY BE INTERPRETED UNDER THE LAWS OF A STATE NOT ALLOWING ANY SUCH A LIMITATION ON DAMAGES, THE FOREGOING PROVISION SHALL BE INTERPRETED TO PROVIDE THE MAXIMUM BENEFIT OF THE FOREGOING PROVISION ALLOWED BY THAT STATE’S LAWS. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AAC’s TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID FOR THE MONTH IN WHICH THE BREACH, OUTAGE OR DEFAULT OCCURRED. ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE MADE ON BEHALF OF BOTH AAC AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFIALIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS.

33. Intellectual Property

Customer hereby acknowledges and agrees that the services and concomitant trademarks constitute valuable IP Rights of AAC, including, but not limited to, copyrights and trade secrets, and that except for the rights of use, modification, and copying expressly granted to Customer herein, AAC now holds and shall retain all rights, title, and interest to the services, as well as trade names or trademarks as AAC may from time to time by written notice permit or require Customer to use in connection with the Software (such trade names and trademarks are collectively referred to as the “Product Name”), and any documentation with respect thereto, title to all intellectual property rights, including, without limitation, copyrights, patent rights, trade secrets, trademarks, service marks, trade dress, and other similar property rights (“IP Rights”) with respect thereto. Upon termination of this Agreement, Customer shall retain no rights of any nature with respect to the Software or the Product Name. Customer shall not cause or allow the Product Name to be associated with any product other than the Software and shall not (during the term of this Agreement or at any time thereafter) create, copy, reproduce, use, distribute, promote, sell, or sub-license any product (other than as expressly authorized herein) bearing the Product Name or any name confusingly similar thereto. AAC may, at its own discretion and at its expense, take any steps necessary and proper to protect and preserve its rights and interests in the Software and component parts thereof. At AAC’s request and AAC’s sole expense, Customer shall use reasonable efforts to assist AAC in protecting such rights and interests.

34. Entire Agreement

This Agreement and all order forms, schedules, attachments, and terms and conditions, including, which are incorporated by reference herein, collectively represent the complete agreement and understanding between AAC and Customer with respect to the subject matter herein and supersede any other written or oral agreement. The terms and conditions of this Agreement may only be modified in writing and must be signed by AAC and Customer; provided, however, that from time-to-time, AAC may update and revise this Service Agreement, and such updates and revisions shall become a part of this Agreement upon AAC providing notice of the updated and revised terms