ServiceMonster Payment Terms and Conditions

These Payment Processing Terms (“Payment Terms”) are entered into between Servicemonster, LLC (“Provider”) and the entity completing the onboarding process and submitting an Application to Provider (“Customer”) and govern the Customer’s receipt of Payment Processing Services as of the date that Processor approves Customer for such Payment Processing Services (“Effective Date”). Each of Provider and Customer are, from time to time, individually referred to herein as a “Party,” and collectively as the “Parties.”

1. Definitions. Capitalized terms have the following meanings in these Payment Terms:

“Account” means an account that Customer sets up with Processor.

“ACH” means the Automated Clearing House.

“Applicable Laws” means all applicable present and future federal and state laws, rules, regulations and orders.

“Application” means the digital or paper applicable form that Customer submits to Provider for review as a condition to receive the Payment Processing Services.

“Shopper” means an individual person or legal entity who wishes to purchase Customer’s goods or services using the Payment Processing Services.

“Customer Bank Account” means the depository account capable of receiving ACH entries which is held at a U.S. or Canadian financial institution in the name of Customer that has been identified by Customer (via routing and account number) on its Application.

“Network Rules” means the rules and regulations of all applicable payment networks, including the rules of any applicable card brand, industry standards such as the Payment Card Industry Data Security Standards (“PCI-DSS”), and the rules and regulations of Nacha.

“Payment Processing Services” means the payment processing services that Customer receives from Processor through an integration with Provider.

“Payout” means a payment made to a third party as instructed by Customer in connection with the Split Payment Service.

“Terms of Use” means the End User License Agreement, Terms and Conditions, or other terms or agreement that Customer has entered into with Provider for the provision of products or services by Provider to Customer.

“Transaction” means a transaction involving Customer’s goods or services which are processed through the Payment Processing Services pursuant to these Payment Terms.

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2. Payment Processing Services

2.1 Payment Processor. Payment Processing Services that are accessible through an integration with Provider’s platform are provided by Provider’s designated third party processor, as Provider may designate or modify from time to time in its sole discretion (“Processor”). As of the Effective Date of these Payment Terms, the Processor is Adyen, N.V. (“Adyen”). Provider may suspend, modify, or terminate its relationship with any Processor in its sole discretion, at any time and without notice, and without affecting the Parties’ relationship under these Payment Terms. Customer acknowledges that Processor, not Provider, has the ultimate decision whether to approve Customer for the Payment Processing Services.

2.2 Processor Agreements. As of the Effective Date of these Payment Terms, Customer’s use of the Payment Processing Services is subject to the “AfP Terms and Conditions" (located at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms-2022) and any other terms and conditions of Processor as each may be updated or modified by Processor from time to time (collectively, the “Processor Agreements”). Customer may not use any Payment Processing Services until Customer agrees to the Processor Agreements, and BY AGREEING TO THESE PAYMENT TERMS, CUSTOMER EXPRESSLY (A) HEREBY ACCEPTS AND AGREES TO BE BOUND THE PROCESSOR AGREEMENTS; AND (B) AUTHORIZES PROVIDER TO CAPTURE CUSTOMER’S ELECTRONIC OR DIGITAL ACCEPTANCE OF THE PROCESSOR AGREEMENTS AND TO PROVIDE PROOF OF SUCH ACCEPTANCE TO PROCESSOR AS MAY BE REQUESTED BY PROCESSOR. Customer acknowledges and agrees that (i) the Processor Agreements are solely between Customer and Processor; (ii) the Payment Processing Services are provided solely by Processor; (iii) Customer is solely responsible for its own relationship with Processor; (iv) Provider is not a party to the Processor Agreements, has no control over the Payment Processing Services and the Processor Agreements, and will have no liability under the Processor Agreements or in any way relating to the Payment Processing Services, including for any action or inaction by Processor; (v) Customer is responsible for tracking applicable updates to the Processor Agreements as may be amended by Processor from time to time.

2.3 Customer Information and Onboarding. Customer will follow the onboarding procedures and policies provided by Provider and Processor (as may be amended from time to time), including by providing all requested information. All information provided by Customer to Provider, including but limited to the information provided on the Application, must be truthful and accurate. If any information disclosed to Provider or Processor becomes untrue or not accurate, Customer must notify Provider and Processor of such change, as applicable. Customer has obtained written instruction and authorization from each Beneficial Owner (or other required individual) for Provider to obtain information from such individuals’ credit profile (including consumer reports) from a credit reporting agency for the purpose of identification verification and fraud and credit risk evaluation.

2.4 Transaction Processing and Settlement. Transactions are processed by Processor, not Provider. Processor (itself or through its financial institution partners) will settle proceeds of Transactions to the Customer Bank Account in accordance with the Processor Agreements. Customer acknowledges and agrees that its processed Transactions may, in Processor’s discretion, be deposited into to a pooled account held for the benefit of Customer and other merchants of Provider or Processor held at any financial institution so that such funds may be combined and aggregated with other funds that are ultimately settled to Customer by such financial institution. Customer understands and agrees that Provider does not process, receive, or hold Customer funds at any time and that Provider is not a bank, money transmitter, or other money services business (as such terms are defined by the Bank Secrecy Act or any state law). To the extent Provider is deemed to hold or receive funds (constructively or otherwise) of any customer of Customer at any point in time, Customer hereby irrevocably appoints Provider as its non-fiduciary agent for the limited purpose of collecting, receiving, holding, and settling funds from Shopper (the cardholders) on Customer’s behalf. In such event, such funds shall be deemed received by Customer upon receipt by Provider and shall satisfy the Customer’s obligation to Shopper in connection with the Transaction for the goods or services sold by Customer. If Provider fails to remit such funds to Customer, Customer’s sole recourse for such event is solely against Provider and not against the Shopper or the Shopper’s financial source.

2.5 Data Usage and Sharing; Shopper Interactions. Customer authorizes Provider to (a) access and receive data relating to Customer’s Account, including Transaction and usage data and other data about the Account; (b) share data regarding the Account, related activity and other Customer data with Processor and applicable payment networks in connection with the Payment Processing Services; and (c) issue instructions to Processor regarding Transactions and funds processed by Processor. Customer agrees to complete and submit any additional authorization forms or other such documentation as requested by Provider or Processor from time to time. The Parties acknowledge that Customer, not Provider or Processor, is responsible for providing the necessary disclosures to, and obtaining the required consents from, Shoppers or other data subjects regarding the processing of personal information by Provider and Processor. Additionally, Customers are responsible for fulfilling any other obligations associated with required disclosures or consents when interacting directly with the consumer Shoppers or data subject and must comply with the Data Processing Addendum (“DPA”), attached hereto as Schedule A.

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3. Payment Terms

3.1 Fees. The fees for the Payment Processing Services will be as set forth in the fee schedule pricing profile or other disclosure of fees provided as part of the onboarding process (“Payment Processing Fees”) and will be set off from processed funds or automatically debited via ACH from the Customer Bank Account when due. Customer hereby authorizes Provider, Processor, their financial institutions, and any of their assignees to collect amounts owed under these Payment Terms (including, but not limited to, the Payment Processing Fees, any liabilities arising under these Payment Terms, and any fees Customer owes Processor pursuant to the Processor Agreements) by setting off such amounts from amounts otherwise due to Customer under the Processor Agreements and by debiting funds from the Customer Bank Account (“ACH Debit Authorization”). All payments are non-refundable. All fees owed pursuant to these Payment Terms are exclusive of any applicable taxes, unless otherwise provided. Customer agrees that all ACH transactions authorized pursuant to the ACH Debit Authorization will comply with all Applicable Laws and with the Network Rules, including the rules and regulations of the National Automated Clearing House Association (“Nacha”). The Payment Processing Fees may be amended upon thirty (30) days’ notice to Customer.

3.2 Disputes. If Customer believes that there is an error in any statement provided by Provider or any information reported by Provider regarding a Transaction, or any error made in the amount of a payment or settlement, Customer must notify Provider within thirty (30) days of Customer’s receipt of the statement or payment containing the error or it will waive such claim.

3.3 Tax Reporting. Provider or Processor, as determined by between them, may send documents to Customer and the Internal Revenue Service (“IRS”) or other tax authority for Transactions processed using the Payment Processing Services. Provider may have tax reporting responsibilities in connection with the Payment Processing Services such as an Internal Revenue Service report on Form 1099-K (which reports Customer’s gross transaction amounts each calendar year to the IRS), or state or other taxing authority requirements. Customer acknowledges that Provider or Processor (as determined in their sole discretion) will report the total amount of Transactions received by Customer in connection with the Payment Processing Services each calendar year as required by the taxing authorities. Customer will cooperate with Provider and Processor in providing accurate and complete tax reporting information, including any other information that may be required by the taxing authorities to fulfil tax reporting described herein. Customer represents and warrants that all information that it submits for tax reporting purposes is complete and accurate to the best of its knowledge, and that Provider and Processor may rely on all such information submitted by Customer. Customer agrees that neither Provider nor Processor will be liable for any penalty or other damages stemming from any 1099-K form that is issued incorrectly if it comports with the information provided by Customer, and neither Provider nor Processor will have any obligation to verify the legal name or tax ID number for reporting purposes. Customer understands and agrees that Provider and Processor may submit tax reporting information exactly as provided by Customer. Notwithstanding the foregoing, Provider and Processor may in their sole discretion investigate or validate any tax reporting information or other information submitted by Customer.

3.4 Electronic Delivery of Tax Documents. In connection with the tax reporting activities described above, Customer may elect to receive electronic delivery of the referenced tax-related documents from Provider or Processor, including through Provider’s platform or another online portal whereby Customer can access and download the applicable statements. If Customer elects to receive tax documents electronically, it will provide such consent by clicking an “I Accept,” “Agree” or similar button or checking a box captioned with acceptance and consent language (“Tax E-Delivery Consent”). The Tax E-Delivery Consent will remain in effect until withdrawn by Customer. The Tax E-Delivery Consent may be printed or downloaded. If Customer does not specifically consent to the electronic delivery of tax-related documents, Customer will receive paper copies of all required tax-related documents, including Form 1099-K. Provider or Processor will notify Customer once the applicable tax forms become available via the email address Provider has on file for Customer.

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4. Compliance

4.1 Laws and Rules. Customer agrees to comply at all times with all Applicable Laws and Network Rules. Customer must also comply with any additional data protection standards and policies set forth in the Processor Agreements. Furthermore, Customer acknowledges and agrees that it is fully responsible for all acts and omissions of its employees, contractors, and agents and will ensure their compliance with all Applicable Laws and Network Rules as well as Customer’s other obligations under the Payment Terms, the Terms of Service, and the Processor Agreements.

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4.2 Customer’s Business.

3.2.1 Transactions. Customer understands that any Transactions processed through the Payment Processing Services must be bona fide sales between Customer and Shopper, and any issues relating to a Transaction are solely between Customer and such Shopper. Customer is solely responsible for all liabilities associated with Customer’s payment processing activity and use of the Payment Processing Services, including without limitation with respect to chargebacks, refunds, identity theft, fraud and any assessments or fees imposed by Processor, a sponsor bank, the card networks or any third party. Customer is responsible for determining what, if any, taxes apply to the goods and services Customer provides to its Shoppers and the payments Customer makes or receives, and it is Customer’s responsibility to collect, report, and remit the correct tax to the appropriate tax authority. Customer will comply with any and all applicable tax laws, including those in connection with Transactions.

3.2.2 Split Payment Service. Provider may, but is in no way obligated to, provide Customer with the ability to split settlement amounts from Transactions and remit a portion of the funds to parties other than Customer as designated by Customer pursuant to instructions provided by Customer (“Split Payment Service”). Provider and Processor reserve the right to terminate the Split Payment Service and to decline any particular Payout requested by Customer, each in its sole discretion. Customer is solely responsible for the accuracy and sufficiency of the information it provides to Provider in the furtherance of each Payout, and Provider will provide the Split Payment Service entirely in reliance on the information provided by Customer. Customer agrees that with respect to each Payout, Customer shall be deemed to have received settlement payment for the amount of the Payout.  In the event that Customer determines that it has transmitted erroneous information to Provider regarding the amount of any Payout, Customer will notify Provider promptly of the error, including such the erroneous amount and any transaction identifying information as required by Provider and Processor. Customer will be responsible for funding the amount necessary to correct any errors in funding and for any fees related to any supplemental Payout. If the error results from actions of Provider or Processor, such parties will be responsible to correct the amount of the underpayment or overpayment to Customer and will process the corrective Payout without charge to Customer, which shall be Customer’s sole remedy for Provider or Processor’s error in connection with a Payout. Without limiting any other indemnities provided by Customer in these Payment Terms, Customer shall indemnify Provider with respect to all claims arising from Customer’s use of the Split Payment Service. In the event Customer wishes to receive reports from Provider regarding the Split Payment Service or Payouts, then Provider reserves the right to charge additional fees, to be agreed upon with Customer, based on the type of reports requested.

4.3 Prohibited Activities. Customer will not use the Account or Payment Processing Services for any activity that is illegal, fraudulent, prohibited by Processor (including, without limitation, as reflected on the Prohibited and Restricted Products and Services List on Processor’s site at: https://www.adyen.com/legal/list-restricted-prohibited) or Provider from time to time, or that is otherwise in breach of the Payment Terms, Terms of Service, or the Processor Agreements. User agrees to use best efforts to ensure: (a) Customer does not use the Payment Processing Services for the sale of any product or service which violates Applicable Law or any applicable Network Rules; and (b) that the Payment Processing Services will not be used for any Customer product or service which appears in the Prohibited and Restricted Products and Services List (except for products or services in the “restricted” category for which an express waiver has been agreed by Processor and Provider). Such a waiver by Processor or Provider should not be interpreted as an opinion or advice of Processor or Provider as to the legality of the relevant Customer products and services under Applicable Law or the Network Rules and of the use of the Payment Processing Services therefor.

4.4 Fraud Monitoring. Provider and Processor may monitor Transactions for the purpose of determining fraudulent activity and whether Customer is in good standing. Such monitoring, if conducted, will be for the benefit of Provider and/or Processor, only. Provider does not have any obligation to monitor Transactions on Customer’s behalf. Based on Provider’s methods, which are subject to change without notice, Provider may decide to suspend Customer’s access to the Payment Processing Services, or in other ways limit Customer’s privileges to the extent Provider deems necessary or useful to prevent fraud or losses. Without limiting the foregoing, Provider may, in its sole discretion or at the direction of Processor, delay sending instructions on Customer’s behalf if Provider reasonably believes that Customer’s instructions may involve fraud or misconduct, or violate Applicable Law, Network Rules, these Payment Terms, or other applicable Provider or Processor policies, as determined by Provider or Processor in their sole and absolute discretion.

4.5 Cardholder Fee Programs. If Customer elects to impose a fee on Shoppers with respect to Transactions (including a surcharge for credit cards, a convenience fee, service fee or other similar type of fee) or implement a discount based on the type of payment method used for a Transaction (including cash, check, or ACH) (collectively, “Cardholder Fee Program”), Customer must first seek approval from Provider. Customer must comply with, and is solely responsible for its compliance with, all applicable Network Rules and Applicable Laws relating to any such Cardholder Fee Program and any required consumer disclosures related thereto. Although Provider may, in its discretion, assist Customer with disclosures and practices relating to such Cardholder Fee Programs, Provider’s provision or approval of any materials or practices shall not be deemed a confirmation that such materials or practices comply with the Network Rules or Applicable Law and shall not in any way relieve Customer from its responsibility to ensure that all program materials and practices comply with the Network Rules and Applicable Law. Customer must provide Provider with at least at thirty (30) days prior written notice before implementing (or announcing publicly that it intends to implement) any Cardholder Fee Program that would be considered a surcharge program under the Network Rules.

5. Customer Losses. Customer is solely responsible for chargebacks, fines, assessments, penalties, Payment Processing Fees, currency conversion differences and other losses otherwise owed or incurred by Customer pursuant to or in connection with these Payment Terms and the Processor Agreements, as applicable (collectively, “Customer Losses”). If Provider determines in its sole discretion that Customer is incurring excessive Customer Losses, Provider may establish controls or conditions governing Customer’s use of the Payment Processing Services, including without limitation, by (a) establishing new fees (including but not limited to Payment Processing Fees); (b) instructing Processor to require a Customer reserve in an amount determined by Provider or Processor; (c) instructing Processor to delay payouts; and/or (d) terminating these Payment Terms and access to the Payment Processing Services. Additionally, Customer authorizes Provider and Processor to withhold, deduct, or debit the amount of any Customer Losses assessed or incurred by a third party from the Customer Bank Account or offset from any amounts otherwise due to Customer. Further, if Provider reasonably believes that a chargeback is likely with respect to any Transaction, Provider may instruct Processor to withhold the amount of the potential chargeback from payments otherwise due to Customer until such time that: (i) a chargeback is assessed, in which case Provider will retain the funds; (ii) the period of time under Applicable Law or the Network Rules by which the cardholder may dispute the Transaction has expired; or (iii) Provider determines that a chargeback on the Transaction will not occur, in which case Provider will instruct the release of the withheld funds to Customer. Provider is not obligated to intervene in any dispute arising between Customer and Shoppers. Notwithstanding anything to the contrary herein, if Provider or Processor choose to conduct an investigation or resolve any pending dispute related to Customer Losses, Customer will assist Provider or Processor when requested, at Customer’s expense, to investigate such Customer Losses. Customer will timely submit all applicable information, documentation, or evidence related to such chargeback to Provider or Processor, within the timeframe instructed by Provider or Processor, necessary for them to meet card network timelines for submitting evidence and responding to a chargeback. Customer authorizes Provider to share information about a chargeback with the Shoppers, the Shopper’s financial institution, and Customer’s financial institution in order to investigate or mediate a chargeback. Customer acknowledges that its failure to assist Provider or Processor in a timely manner when investigating a Transaction, including providing necessary documentation within the time period specified in Provider or Processor’s request, may result in an irreversible chargeback. Provider or Processor may charge a fee as set forth in the Application or Processor Agreements for mediating or investigating chargeback disputes, in addition to any other chargeback fees set forth in the Payment Terms or the Processor Agreements, if applicable. Provider and Processor reserve the right to change such fees at any time. If Provider reasonably suspects that the Customer’s access to the Provider platform or Payment Processing Services has been used for an unauthorized, illegal, or criminal purpose, Customer gives Provider express authorization to (but understands that Provider is not obligated to) share information about Customer and any Transactions with law enforcement Customer will pay all costs and expenses, including without limitation attorneys’ fees, other legal expenses, and handling fees incurred by or on behalf of Provider in connection with the collection of Customer Losses. Customer understand and agrees that additional terms related to Customer Losses may be set forth in the Processor Agreements. This Section will survive termination of these Payment Terms.

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6. Liability

6.1 Indemnification.

6.1.1 In addition to the indemnification obligations under the Processor Agreements and the Terms of Service, Customer will indemnify and hold harmless Provider and its officers, affiliates, and representatives from and against any and all losses, damages, costs (including legal fees), claims, and assessments, incurred arising out of or in any way related to: (a) Customer’s breach of any of its obligations, representations, warranties or covenants in these Payment Terms; (b) the Processor Agreements or Customer’s use of the Payment Processing Services, including all activity on the Account; (c) Customer’s violation or non-compliance with any Applicable Law or Network Rules (including non-compliance of PCI-DSS); (d) all Customer Losses; (e) Customer’s implementation of a Cardholder Fee Program; and (f) Customer’s fraud, gross negligence, or willful misconduct.

6.1.2 Provider will indemnify and hold harmless Customer and its officers, affiliates, and representatives from and against any and all losses, damages, claims, and other amounts incurred resulting from third party claims to the extent directly and solely arising out of: (a) Provider’s violation or non-compliance with any Applicable Law or (b) Provider’s gross negligence, fraud, or willful misconduct.

6.2 Warranty Disclaimer & Limitation of Liability. CUSTOMER AGREES THAT CUSTOMER’S USE OF THE PAYMENT PROCESSING SERVICES SHALL BE AT CUSTOMER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PAYMENT PROCESSING SERVICES AND CUSTOMER’S USE THEREOF. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF THE PAYMENT PROVIDER SERVICES. PROVIDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY IN CONNECTION WITH THE PROCESSING SERVICES, AND PROVIDER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS (INCLUDING PROCESSOR) OF PRODUCTS OR SERVICES, INCLUDING THE PAYMENT PROCESSING SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, CUSTOMER SHOULD USE HIS/HER BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROVIDER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PROVIDER’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6.1.2, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PAYMENT TERMS EXCEED IN THE AGGREGATE THE TOTAL PAYMENT PROCESSING FEES CUSTOMER PAID TO PROVIDER UNDER THE PAYMENT TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. FOR THE AVOIDANCE OF DOUBT, CUSTOMER AGREES AND ACKNOWLEDGES THAT ANY ASSESSMENT, FINE, PENALTY, FEE, OR COST OTHERWISE IMPOSED BY PROCESSOR, A BANK, A CARD NETWORK, A GOVERNMENT AGENCY, OR A REGULATOR WILL BE DEEMED TO BE A DIRECT DAMAGE AND NOT INDIRECT, CONSEQUENTIAL, OR INCIDENTAL FOR WHICH CUSTOMER IS SOLELY LIABLE.

6.3 Force Majeure. Provider is not responsible for any delay or failure in performing its obligations under these Payment Terms, in whole or in part, for any cause or circumstance outside its reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, failures of Processor or other third party provider, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.

7. Term and Termination

7.1 Term. The term of these Payment Terms will begin on the Effective Date and will continue initially for one (1) year (“Initial Term”). Thereafter, these Payment Terms will automatically renew for consecutive one (1) year renewal terms (each a “Renewal Term,” and together with the Initial Term, the “Term”) unless one Party gives the other Party notice of non-renewal no less than fifteen (15) days prior to the end of the then current Term. For purposes of this Section 7.1, notice of intent not to renew can be provided by submitting a notice of cancellation through the Customer portal on Provider’s platform.

7.2 Termination by Customer. To terminate these Payment Terms, Customer can submitting a notice of cancellation through the Customer portal on Provider’s platform. Due to the fact that the early termination of these Payment Terms by Customer will cause Provider to incur economic damages and losses of types and in amounts which are difficult to ascertain with any certainty as a basis for recovery of actual damages, the Parties agree that any termination by Customer of these Payment Terms other than as permitted under Section 7.1 may be subject to an early termination fee as liquidated damages (“Early Termination Fee”), which each believes to be a fair, reasonable and appropriate estimate of Providers damages and losses. The Early Termination Fee will be calculated as follows: (a) if Customer terminates during the Initial Term, the Early Termination will be equal to the greater of: (i) $500 and (ii) the average fees paid by Customer to Provider for the Payment Processing Services to Customer in the three (3) months prior to the effective date of the termination times the number of months remaining in the Initial Term; and (b) if Customer terminates during a Renewal Term; the average fees paid by Customer to Provider for the Payment Processing Services to Customer in the three (3) months prior to the effective date of the termination times the number of months remaining in the Renewal Term. The Early Termination Fee is intended to represent estimated actual damages as contemplated by the Parties at the time of entering into these Payment Terms, and not a penalty. Any termination by Customer of the Terms of Use shall be deemed an automatic termination by Customer of these Payment Terms, effective as of the same date that the Terms of Use are deemed to be terminated.

7.2 Termination by Provider. Provider may terminate these Payment Terms immediately, with or without notice, if: (a) Customer breaches any provision of the Payment Terms or any Processor Agreements; (b) Customer or its employees or agents use the Payment Processing Services in a manner inconsistent with the intended purpose; (c) Customer or its employees or agents violate any Applicable Laws or Network Rules; (d) Provider is required to terminate the Payment Terms by Processor or a government agency, payment network, or other regulator; or (e) Provider’s agreement with Processor is terminated for any reason. Provider will not be liable to Customer or any other third party for termination of the Payment Processing Services under this Section 7.2 for any reason. Upon the termination of the Processor Agreements or the Customer’s Account for any reason, these Payment Terms will automatically terminate.

7.3 Effect of Termination. The termination of these Payment Terms will not affect any of Provider’s rights or Customer’s obligations arising hereunder. After termination of the Payment Terms, the Processor Agreements, and/or Customer’s Account, Customer will continue to be liable for all chargebacks, refunds, fees, card network liabilities, credits, and adjustments resulting from or relating to Transactions processed prior to such termination. The termination of Customer’s access to Payment Processing Services will be effective immediately upon termination of the Payment Terms. Customer authorizes Provider to notify Processor of any termination of the Payment Terms; however, Customer is responsible for manually closing its Account separately in accordance with Processor’s procedures.

8. General

8.1 Precedence. Any inconsistency, conflict, or ambiguity between the Payment Terms and Terms of Service will be resolved by giving precedence and effect to these Payment Terms, but only to the extent of the inconsistency, conflict, or ambiguity. Other than as expressly amended by the Payment Terms, all other provisions of the Terms of Service will remain in full force and effect.

8.2 Amendments. Except as set forth otherwise in this Section 8.2, the Payment Terms may only be amended with the written consent of both Parties. Notwithstanding the foregoing, Provider reserves the right to amend the Payment Terms without the consent of Customer if such amendment is required to comply with Applicable Laws, Network Rules, the directives of the Processor or any payment network, or to pass through (without markup) any increases in third party costs and fees (including but not limited to fees and assessments charged by Processor, payment networks, or Provider’s vendors or service providers). Provider will use reasonable efforts to give Customer thirty (30) days’ prior notice of any such amendment.

8.3 Choice of Law and Venue; Jury Waiver. The Payment Terms will be governed by same state’s laws, and will be decided in the same jurisdiction, as provided for in the Terms of Use. The Parties hereby waive their right to a jury trial.

8.4 Electronic Signatures. The Payment Terms may be executed and delivered by electronic means (including click-to-accept) and the Parties agree that such electronic execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each Party may use such electronic signatures as evidence of the execution and delivery of the Payment Terms to the same extent that an original signature could be used.

9. Notices

Unless otherwise indicated, all notices required to be made of Customer to Provider must be in writing and sent to Provider at the following address:

Servicemonster, LLC

500 West 5th Street

Austin, TX 78701

Notices will be deemed given: (a) upon personal delivery; or (b) when received by Provider if sent by a nationally recognized overnight courier or certified mail via the United States Postal Service (in both instances, receipt requested).

10. Survival

All portions of these Payment Terms that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Licensing, Indemnification, and Dispute Resolution sections.

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Please read this information carefully and print or download a copy for your files.

Tax E-Delivery Consent

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By executing the Payment Terms or otherwise accepting this Tax E-Delivery Consent (“Consent”), you acknowledge that you have read and understand the terms of this Consent, and you affirmatively elect and consent to receive tax-related documents in connection with the Payment Processing Services (“Tax Documents”), including but not limited to IRS Form 1099-K, via electronic delivery.

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This Tax E-Delivery Consent (“Consent”) is effective until withdrawn in the manner described below. You understand you will NOT receive hard (paper) copies of Tax Documents unless and until such withdrawal.

This is your copy of the Consent. Please print, download, and save a copy of this Consent for your records.

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Electronic Delivery

You agree that Provider may deliver Tax Documents to you in any of the following ways:

(a) via email at the email address Provider has on file for you; and/or

(b) via an online interface which allows you to view and download the Tax Documents. For example, such interface may be provided through your account or profile on the Provider platform, if applicable. If Tax Documents are provided via the Provider services or other online interface, Provider (or its processor or service provider, as applicable) will notify you via email once each Tax Document becomes available.

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Additional or Substitute Paper Copies

In addition to obtaining electronic copies, you may also request paper copies of your Tax Documents by contacting Provider at the contact information provided below. Note that requesting a paper copy of Tax Documents will be considered a one-time request and will not be considered a withdrawal of this Consent. You must formally withdraw this Consent in the manner described below to begin regularly receiving paper copies of Tax Documents on a going-forward basis.

For information that is required by law to be sent to you, including Form 1099-K and other Tax Documents, as applicable, if Provider receives notice that an email is undeliverable due to an incorrect or inoperable email address, or if Provider is otherwise unable to deliver your Tax Documents via electronic means, Provider will attempt to send such information via U.S. Postal Service to the mailing address Provider has on file for you.

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Notification of Change of Tax Information or Email

You must notify Provider promptly if your email address used to receive Tax Documents, notifications, or other account information changes. You must also notify Provider promptly of any relevant change in your information as it appears on your Form W-9, including your name, address, or taxpayer identification number. Provider must have such information exactly as it appears on your Form W-9 in order to properly fill out and issue your Form 1099-K.

By agreeing to this Consent, you agree to notify Provider promptly of any such change, by contacting Provider by mail or email at the contact information provided below.

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Withdrawal or Termination this Consent

You may withdraw this Consent at any time by providing written notice of withdrawal to Provider by mail or email at the contact information provided below. In each case, you must state that you are withdrawing consent to paperless delivery of tax-related documents, and you must provide your name and taxpayer identification number exactly as they appear on your IRS Form W-9.

You understand that withdrawal of this Consent is prospective only; withdrawal ensures that future Tax Documents will be delivered to you in paper, but does not apply to any Tax Document that has already been furnished to you electronically. Provider may take up to ten (10) business days after receipt of your withdrawal to process your request.

In addition, Provider reserves the right to terminate this Consent and stop electronic delivery of Tax Documents at any time by giving notice to you. If Provider does so, Provider will send future Tax Documents as paper copies, via mail.

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System Requirements

To access Tax Documents electronically, you need a computer system or mobile device that, at minimum, has the following features and capabilities:

• internet access;
• browser software (at least 128-bit encryption, JavaScript enabled);
• application that can read and display PDF files;
• sufficient hardware necessary to support the above features, including sufficient storage to download and retails files to keep a copy for your records; and
• printer (if you want to print a hard copy).

By agreeing to this Consent you certify that your computer system or mobile device meets these hardware and software requirements.

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Contact Provider

You may contact Provider by mail or email to update your Form W-9 information or to withdraw this Consent at:

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500 West 5th Street Austin, TX 78701

Payments-support@servicemonster.com

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Schedule A – Data Processing Addendum

Data Processing Addendum

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This Data Processing Addendum (“Addendum”) supplements the Payment Processing Terms  (the “Payment Terms”) entered into by and between Servicemonster, LLC. (“Provider”) and the entity completing the onboarding process and submitting an Application to Provider]( “Customer”). Any terms not defined in this Addendum shall have the meaning set forth in the Payment Terms.

1 Definitions

1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

1.2 “Applicable Laws” means any applicable laws, rules, and regulations in any relevant jurisdiction applicable to the Addendum, the Payment Terms, or the use or Processing of Personal Data, including those concerning privacy, data protection, confidentiality, information security, availability and integrity, or the handling of Personal Data. Applicable Laws expressly include, as applicable: (i) California Consumer Privacy Act (“CCPA”)(as amended by the California Privacy Rights Act), (ii) Colorado Privacy Act ("CPA"), Connecticut Data Privacy Act ("CTDPA"), (iii) Florida Digital Bill of Rights (“FDBR”), (iv) Indiana Consumer Data Protection Act (“ICDPA”), (v) Iowa Data Protection Act (“IDPA”), (vi) Kentucky Data Protection Act (“KDPA”), (vii) Montana Consumer Data Privacy Act (“MCDPA”), (viii) Oregon Consumer Privacy Act (“OCPA”), (ix) Tennessee Information Protection Act (“TIPA”), (x) Texas Data Privacy and Security Act (TDPSA”), (xi) Utah Consumer Privacy Act (“UCPA”), and (xii) Virginia Consumer Data Protection Act.

1.3 “Authorized Employee” means an employee of either Party or an employee of a Party’s Affiliate who has a need to know or otherwise access Personal Data to enable a Party to perform its obligations under this Addendum or the Payment Terms and who has been apprised of the confidential nature of Personal Data before they may access such data and who has undergone appropriate background screening and training.

1.4 “Business” or “Data Controller” means the Customer which alone determines the purposes and means of the Processing of Personal Data.

1.5 “Consumer” or “Data Subject” means a natural person about whom a Data Controller holds Personal Data pursuant to the Payment Terms and who can be identified, directly or indirectly, by reference to that Personal Data.

1.6 “Consumer Rights” or “Data Subject Rights” means the rights recognized and granted to Data Subjects with respect to their Personal Data under Applicable Laws.

1.7 “Personal Data” means any information relating to an identified or identifiable living individual that is transmitted, uploaded, created or stored on Provider’s cloud-based multi-tenant platform in connection with, the provision of the Services under the Payment Terms. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. Tokenized data or encrypted data that Provider does not have the ability to reidentify is not considered Personal Data.

1.8 “Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data other than  (a) through the use of a Customer’s or any Users’ generated password that, consistent with the settings and permissions in the respective Service, has rights to access such Personal Data, or (b) access by Provider personnel or Subprocessor personnel whose access to or use of such Personal Data is for the purpose of performance of the Services as permitted under the terms of this Addendum and applicable law.

1.9 “Process” or “Processing” means any operation or set of operations performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

1.10 “Service Provider” or “Data Processor” or “Processor” means the Provider which Processes Personal Data on behalf of and pursuant to the instructions of Customer.

1.11 “Services” shall have the meaning set forth in the Payment Terms.

1.12 “Sensitive Personal Data” means data that is also Personal Data but includes a subsect of Personal Data that constitutes: “sensitive personal information,” “sensitive data,” or any similar category of information subject to Applicable Laws.

1.13 “Subprocessor” means any third party appointed by or on behalf of Provider to process Personal Data.

2 Processing of Data and Compliance with Applicable Laws

2.1 The Parties shall comply with this Addendum at all times during the term of the Payment Terms. Any failure by either party to comply with the obligations set forth in this Addendum will be considered a material breach of the Payment Terms, and the other party will have the right, without limiting any of the rights or remedies under this Addendum or the Payment Terms, or at law or in equity, to immediately terminate the Payment Terms for cause.

2.2 The rights and obligations of Provider with respect to Processing are described herein and in the Payment Terms. The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects involved, are described in Exhibit 1 to this Addendum.

2.3 Provider shall only Process Personal Data for the limited and specified purposes described in Exhibit 1, the terms and conditions set forth in this Addendum and in any written instructions provided by Customer.

2.4 Provider hereby certifies that it understands its restrictions and obligations set forth in this Addendum and will comply with them.

2.5 Provider shall promptly inform Customer if, at any time while the obligations of this Addendum remain in effect, Provider is unable to comply with any of the obligations of this Addendum, including Provider’s obligations to comply with Applicable Laws.

2.6 Provider certifies that it understands the restrictions and obligations set forth in this Addendum and will comply with them.

2.7 Customer represents and warrants that it will: (i) comply with all Applicable Laws; (ii) any written instructions it provides to Provider will comply with all Applicable Laws, and (iii) shall make the required disclosures and obtain the necessary consents for Provider to process Personal Data. Customer shall notify Provider if, in the opinion of Customer, an instruction it gave Provider violates Applicable Laws.

2.8 If Customer cannot comply with Applicable Laws in the performance of its obligations to Provider, Customer agrees to promptly inform Provider of its inability to comply, in which case Provider is entitled to suspend the processing of Personal Data, terminate the Payment Terms, or otherwise stop processing Personal Data and remediate any issues that arise as a result of Customer’s failure to comply with Applicable Laws.

2.9 Customer hereby instructs Provider to process Personal Data to any country or territory as reasonably necessary for the provision of the Services and consistent with this Addendum.

2.10 Provider will not attempt to link, identify, or otherwise create a relationship between Personal Data and non-Personal Data or any other data without the express authorization of Customer.

3. Security of Personal Data.

3.1 Provider shall in relation to the Personal Data implement industry standard security safeguards taking into account the nature and sensitivity of the Personal Data and any additional measures required pursuant to Applicable Laws.

3.2 Upon Customer’s written request, or, upon the termination or expiration of the Payment Terms for any reason, Provider shall, and shall ensure that all Authorized Persons, promptly and securely dispose of or return to Customer in an encrypted format, at Customer’s choice, all copies of Personal Data.

3.3 Where and to the extent disposal of Personal Data in accordance with Section 3.2 is explicitly prevented by Applicable Law(s) or technically infeasible, Provider and/or Authorized Persons, as applicable, shall (i) take measures to block such Personal Data from any further Processing (except to the extent necessary for continued Processing explicitly required by Applicable Law(s)), and (ii) continue to exercise appropriate Technical and Organizational Security Measures to protect such Personal Data until it may be disposed of in accordance with Section 3.2.

4. Subprocessing and Authorized Personnel

4.1 Provider shall take reasonable steps to ensure that access to Personal Data is limited to those individuals who need to know/access the Personal Data to provide the Services, and (ii) ensure that all individuals it authorizes to process Personal Data are bound by confidentiality obligations (whether by contract or under Applicable Law) in respect of the processing of Personal Data.

4.2 Customer acknowledges that Provider may engage Subprocessors in connection with providing the Services. Customer consents to Provider’s use of Subprocessors.

4.3 Each party shall remain responsible and liable for its compliance with Applicable Laws and any obligations ensuing from the Payment Terms and this Addendum.

5. Personal Data Breach

5.1 Provider shall notify Customer of a Personal Data Breach as soon as reasonably practicable, but in any event, not more than forty-eight (48) hours after confirming such Personal Data Breach.

5.2 In the event of a Personal Data Breach, Provider will provide Customer with such details as Customer reasonably requires regarding: (i) the nature of the Personal Data breach, including the categories and approximate numbers of data subjects and Personal Data records concerned; (ii) any investigations into such Personal Data Breach; (iii) the likely consequences of the Personal Data Breach; and (iv) any measures taken, or that Provider recommends, to address the Personal Data Breach, including to mitigate its possible adverse effects and prevent the re-occurrence of the Personal Data Breach.

5.3 Provider may give Customer phased updates as additional information regarding the Personal Data Breach becomes available to Provider; and provide reasonable cooperation and assistance to Customer in relation to any remedial action to be taken in response to a Personal Data Breach, but will not notify any data subjects of the Personal Data Breach, absent Customer’s explicit instruction or as required by any law, rule, regulation, or binding court order to which Provider is subject.

5.4 Customer may share any notification and details provided by Provider under this Section 5 with the appropriate governmental/supervisory authority if required to do so under Applicable Laws.

6. Rights of Data Subjects

Provider will provide such assistance as is reasonably required to enable Customer to comply with Data Subject Rights requests within the time limits imposed by Applicable Laws.

7. Recordkeeping.

7.1 Recordkeeping. Provider shall maintain records and information in accordance with Applicable Laws to demonstrate its compliance with this Addendum (“Records”).

7.2 Verification Requirements. On request, Provider shall make available to Customer all Records necessary to demonstrate compliance with this Addendum and the Applicable Laws, and shall cooperate with verification, including inspections, by Customer or its third-party auditors in relation to the Processing of Personal Data.

8. Miscellaneous

8.1 This Addendum may be amended or modified only by a writing signed by both Parties. Both parties may disclose this Addendum to third parties (including other controllers, Data Subjects and regulators) for purposes of demonstrating compliance with Applicable Laws.

8.2 In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the terms of this Addendum; and (2) the Payment Terms.

Exhibit 1

Details of Processing

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Nature and Purpose of Processing: Each Party will Process Customer’s Personal Data as necessary to provide the Services under the Payment Terms, for the purposes specified in the Payment Terms, the Data Processing Addendum, and in accordance with Customer’s instructions as set forth in this Exhibit 1. The nature of Processing shall include:

• The Parties will process Personal Data as necessary to fulfil the Party’s obligations under the Payment Terms and as otherwise set forth in this Addendum.

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Duration of Processing:

• The term of the Payment Terms, unless otherwise required by Applicable Laws.

Categories of Data Subjects: Categories of data subjects whose personal data is transferred include:

• Name
• Address
• Ownership of relevant business
• Last 4-digits of credit card used in a transaction

Categories of Personal Data: Categories of Personal Data include:

• identity information (e.g., name, age/date of birth, gender, photograph)
• contact information (e.g., phone number, address, email address)
• employment information (e.g., employer, job title)
• data that reasonably can be tied to a specific individual or computer, mobile telephone or tablet, such as IP address, MAC address or advertising ID.
• location data (e.g., GPS, Bluetooth, GSM)

Special categories of data / Sensitive Personal Data

The Personal Data transferred concern the following special categories of data (please specify):

• Not applicable

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