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specifically to the ACH Services Reserve Account: (a) Merchant acknowledges and agrees that the ACH Services Reserve Account may be
<br />commingled by Company with reserve funds held for other providers and merchants; (b) amounts will remain in the ACH Services Reserve Account
<br />for a period of two (2) years following the last debit Entry initiated by Merchant; (c) Merchant acknowledges and agrees that the ACH Services
<br />Reserve Account may be used by Company to fund any and all returned items; (d) Company shall have the right to offset and pay themselves
<br />from the ACH Services Reserve Account for all returned Entries, fees, damages, or other costs and expenses (inclu ding attorneys’ fees and costs)
<br />that may arise out of ACH Services for Merchant and for which Merchant has agreed to pay pursuant to the terms of the Agreement and this ACH
<br />Exhibit; (e) Merchant acknowledges and agrees that, until such time as all of the amounts owed by Merchant and its obligations, including its
<br />obligation to pay all returns, are paid to Company in full, all funds in the ACH Services Reserve Account shall be considered to be held by Company
<br />for Company’s sole interest, benefit, and protection, shall be considered to be the property of Company, and shall not be considered to be held for
<br />the benefit of Merchant, Merchant’s bank, Member Bank, or Processor or be considered to be an asset for or property of Merchant, Merchant’s
<br />bank, Member Bank, or Processor; (f) if Company reasonably believes that Merchant will in the future owe any amounts to Company under the
<br />Agreement or this ACH Exhibit for returns, anticipated returns, fines, fees, and if Company reasonably believes that Merchant will be unable or
<br />unwilling to pay such amounts when due, Company may also sequester, segregate or transfer to itself (including its own bank acc ount(s)) any
<br />portion of the ACH Services Reserve Account that Company reasonably believes is needed to pay such amounts and may hold and use such
<br />amount for its own benefit and protection (as opposed to any such amount being held for Merchant’s benefit or the benefit of any third party); and
<br />(g) if Company determines Merchant’s business is operating in a manner that Company reasonably believes could cause a financial or legal risk,
<br />or if Merchant ceases to do business with Company for any reason, Company shall have the right at any time to place all of the provisional or final
<br />credit for each Debit Entry originated by Company on Merchant’s behalf into the ACH Services Reserve Account. Merchant shall not have any
<br />possessory or equitable interest in any funds sequestered, segregated or transferred by Company pursuant to this Section. The aforementioned
<br />rights and remedies are not intended to be exclusive and are intended to be cumulative of all of Company’s other rights and remedies under th e
<br />Agreement, this ACH Exhibit and applicable law.
<br />
<br />VIII. Claims by or against Company; Choice of Law; Jurisdiction; Venue. With respect to any and all claims directly or indirectly related to the
<br />ACH Services by, against or involving Company as a party, in any capacity, the Agreement and this ACH Exhibit shall be governed by, and
<br />construed and enforced in accordance with, the laws of the State of Arizona without regard to conflicts of law provisions. Merchant hereby consents
<br />and submits to service of process, personal jurisdiction, and venue in the state and federal courts in Phoenix, Arizona or Maricopa Count y, Arizona,
<br />and selects such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to claims directly or
<br />indirectly related to the ACH Services by, against or involving Company as a party, in any capacity under the Agreement, this ACH Exhibit and/or
<br />pertaining in any way to the relationship between Company, Merchant and Processor. MERCHANT, COMPANY, AND PROCESSOR HEREBY
<br />WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF CLAIMS UNDER THE SCOPE OF
<br />THIS ACH EXHIBIT OR ANY ENTRIES OR OTHER TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED IN THIS ACH EXHIBIT.
<br />
<br />IX. Notice to and from Company.
<br />
<br />A. All notices, requests, demands and other communications to be delivered by Merchant to Company, unless specified otherwise in the
<br />Agreement, shall be in writing and shall be delivered by nationally recognized overnight carrier, registered or certified mail , postage prepaid,
<br />to 1375N Scottsdale Rd, Suite 400, Scottsdale, Arizona 85257, Attention: Legal Department.
<br />
<br />B. All notices, requests, demands and other communications to be delivered to Merchant by Company, unless specified otherwise in the
<br />Agreement, shall be in writing and shall be delivered by or through the Service Delivery Process, which shall include Company’s merchant
<br />payment portal, email, facsimile, statement message, nationally recognized overnight carrier, or registered or certified mail, postage prepaid,
<br />to Merchant at the Merchant address provided in the Agreement or otherwise on file with Company or Processor.
<br />
<br />C. Notices so delivered shall be effective when sent unless notice is provided by registered or certified mail, which shall be effective upon receipt.
<br />
<br />X. Review of Entries and Notice of Unauthorized Transfers:
<br />Merchant shall be liable for all transactions on its account, including fraudulent transactions processed by third parties th at use the merchant’s
<br />credentials or password, or who otherwise unlawfully access Merchant’s account. Merchant is strictly responsible to establish and maintain t he
<br />procedures to safeguard against unauthorized transmissions. Merchant represents and warrants that no individual will be allow ed to initiate
<br />transfers in the absence of proper supervision and safeguards and agrees to take reasonable steps to maintain the confidentiality of any passwords,
<br />codes, security devices, and related instructions provided by Company or Processor. If Merchant believes or suspects that any such information
<br />or instructions have been known or accessed by unauthorized persons, Merchant agrees to notify Company and Processor immediately followed
<br />by written confirmation. The occurrence of unauthorized access will not affect any transfers made in good faith by Company, Processor, or an
<br />ODFI prior to receipt of such notification and within a reasonable time period to prevent unauthorized transfers. The Merchan t’s obligations in
<br />Paragraph 22 of the Agreement to review settlement activity and provide notice of a failure to properly settle funds to Merchant shall include an
<br />obligation on Merchant to promptly and regularly review all Entries and other communication received from Company and to imme diately notify
<br />Company if there are any discrepancies between Merchant’s records and those provided by Company, the ODFI or Merchant’s bank, or with
<br />respect to any transfer not authorized by Merchant. If Merchant fails to notify Company within five (5) business days of the date Company or
<br />Processor e-mails, mails or otherwise provides a statement of account or other report of activity to Merchant relating to the ACH Services, then
<br />Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.
<br />
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<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
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