ZIRTUE® ENTERPRISE PARTNER TERMS
AND CONDITIONS

1.1 Subject to and conditioned on Enterprise Partner’s compliance with the terms and conditions of this Agreement, Zirtue hereby grants Enterprise Partner a non-exclusive, non-transferable license to:

1.2 Delivery. Zirtue shall deliver access to the Services to Enterprise Partner within three (3) days following the Effective Date.

1.3 Zirtue reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Zirtue’s services to its customers; (ii) the competitive strength of or market for Zirtue’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided, however, any changes shall not materially diminish the features or functionality of the Services.

1.4 Zirtue APIs. If APIs are available on the without a separate license agreement, Zirtue hereby grants Enterprise Partner a non-exclusive, non-sublicensable, non-transferable limited license to use the APIs exclusively for the benefit of Zirtue Account Holders. Enterprise Partner hereby assumes all liability as a result of any use of the APIs. Zirtue makes no commitment to continued availability of APIs and Enterprise Partner has no rights to version enhancement or support of any kind. Zirtue may revise or cease to provide APIs without notice at any time in Zirtue's sole discretion. NOTWITHSTANDING THE FOREGOING, COPYING OR REPRODUCTION OF THE APIS FOR FURTHER REDISTRIBUTION IS EXPRESSLY PROHIBITED.

1.5 Zirtue Obligations. During the Term, Zirtue shall (a) provide to Enterprise Partner such information and marketing support as Enterprise Partner may reasonably request regarding the marketing of the Zirtue Payment Services; and (b) provide, free of charge, such marketing materials as Zirtue, in its reasonable discretion, may deem appropriate for Enterprise Partner's marketing of the Zirtue Payment Services in accordance with this Agreement.

1.6 Support and Training. Zirtue shall provide Enterprise Partner with support and training services in support of the Services during the Term in accordance with the Order Form.

1.7 No Implied Rights. Zirtue reserves all rights not expressly granted to Enterprise Partner in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Enterprise Partner or any third party any intellectual rights or other right, title, or interest in or to any of the Services or other Zirtue intellectual property. Nothing in this Agreement grants or conveys, or permits Enterprise Partner to grant or convey, any ownership right in any of the Services or other Zirtue intellectual property.

1.8 Location of Account Holders. Zirtue limits its Zirtue Payment Services to individuals residing in the United States. Enterprise Partner agrees that it will not offer or market the Zirtue Payment Services to any Account Holders that are outside of the United States.

1.9 Enterprise Partner’s use of the Services are governed by this Agreement, as well as the Zirtue Enterprise Partner portal terms of service for use by Authorized Users (the “Terms of Service”), which may be updated from time to time by Zirtue without notice to Enterprise Partner. The Terms of Service are incorporated into this Agreement by this reference and made a part hereof. In the event of any inconsistency or conflict between the Terms of Service and this Agreement, the terms of this Agreement shall prevail.

2.1 Account Holder Provision and Services. Enterprise Partner shall take all steps deemed necessary to market and promote the Zirtue Payment Services for Account Holders as an alternative payment solution. Enterprise Partner shall have ultimate responsibility for Account Holders that it elects to bill directly and offer Zirtue Payment Services as an alternative payment solution. Zirtue will perform, schedule, automate and manage all Zirtue Payment Services. Any engagement to perform Zirtue Payment Services shall be on such terms and conditions as Zirtue may approve in its sole discretion.

2.2 License for Enterprise Partner Trademarks. Enterprise Partner agrees to provide to Zirtue images and logos of Enterprise Partner’s trademark for Zirtue to use to offer Zirtue Payment Services and for use in marketing Zirtue’s platform. Enterprise Partner grants to Zirtue a limited, revocable license to use Enterprise Partner’s name and logo throughout the Term.

2.3 Restrictions. Enterprise Partner shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Except as otherwise expressly set forth in this Agreement, Enterprise Partner shall not at any time, directly or indirectly: (A) copy, modify, or create derivative works of the Services, in whole or in part; (B) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (C) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the platform, in whole or in part; or (D) remove any proprietary notices from the Services.

2.4 Trademark Use Restrictions. All uses of the Zirtue Marks, and all goodwill associated therewith, will inure solely to the benefit of Zirtue. Enterprise Partner shall not use any Zirtue Marks (whether individually or in combination, or in whole or in part): (A) in or in connection with the advertising, promotion, marketing, or distribution of any goods, services, or technologies other than the Zirtue Payment Services as components of the Services; (B) as part of Enterprise Partner's corporate or trade name or any domain name; (C) in any way that is likely to cause confusion, mistake, or deception; or (D) in any way that is likely to dilute, tarnish, or otherwise diminish the Zirtue Marks' distinctiveness, or jeopardize the reputation of or goodwill associated with the Zirtue Marks or Services or the validity of Zirtue’s ownership of the Zirtue Marks or the registrations therefor.

2.5 Compliance with Applicable Laws. Enterprise Partner represents, covenants, and warrants that Enterprise Partner will use the Services only in compliance with all applicable laws and regulations. Although Zirtue has no obligation to monitor Enterprise Partner’s use of the Services, Zirtue may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.6 Enterprise Partner Equipment. Enterprise Partner shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Enterprise Partner shall also be responsible for maintaining the security of the Equipment, Enterprise Partner account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Enterprise Partner account or the Equipment with or without Enterprise Partner’s knowledge or consent; provided, however, Enterprise Partner will not be responsible for uses of Enterprise Partner’s account after Enterprise Partner has notified Zirtue of a security incident with respect to such account or a particular password.

2.7 Enterprise Partner Systems. Enterprise Partner shall at all times during the Term: (a) set up, maintain, and operate in good repair all Enterprise Partner Systems (as defined below) on or through which the Services are accessed or used; (b) provide Zirtue with such access to Enterprise Partner’s premises and Enterprise Partner Systems as is necessary for Zirtue to perform the Services; and (c) provide all cooperation and assistance as Zirtue may reasonably request to enable Zirtue to exercise its rights and perform its obligations under and in connection with this Agreement.

2.8 Enterprise Partner Data. Zirtue will use Enterprise Partner Data (as defined in Section 4.1) that Enterprise Partner submits through the Services only to provide the Services. Enterprise Partner shall have the sole responsibility and liability for the accuracy, quality, and legality of Enterprise Partner Data.

2.9 Effect of Failure or Delay. Zirtue is not responsible or liable for any delay or failure of performance caused in whole or in part by Enterprise Partner’s delay in performing, or failure to perform, any of its obligations under this Agreement.

2.10 Non-Compete. During the Term, and for a period of one year thereafter, Enterprise Partner shall not, at any time, develop, produce, market, distribute, license, sell, or otherwise make available in stand-alone, bundled, or any other form, any products or services, or any product or service components, that may or do compete with any Zirtue’s Services or enter into any agreement or transaction, or engage in any act or practice, to the detriment or the competitive or commercial disadvantage of Zirtue.

2.11 Non-Solicitation. While this Agreement is in effect and for a period of one (1) year after its termination, neither party will solicit, engage, employ or contract with any employee of the other party, whether on such party's behalf or on behalf of a third party; provided, however, the foregoing shall not prohibit either party from soliciting, employing or engaging any current officer or employee (i) who responds to any general solicitation of employment not directed or targeted primarily toward the other party's employees, or (ii) who has not been involved in services being provided by the hiring party and who contacts the hiring party on his or her own initiative without any direct or indirect solicitation by the hiring party.

3.1 Standards. Zirtue will employ security measures in accordance with applicable industry practice and standards, applicable laws, rules, and regulations.

3.2 Enterprise Partner Data and Systems. Enterprise Partner has and will retain sole responsibility for: (a) all Enterprise Partner Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Enterprise Partner in connection with the Services; (c) Enterprise Partner’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Enterprise Partner or through the use of third-party services (“Enterprise Partner Systems”); (d) the security and use of Enterprise Partner’s access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Enterprise Partner Systems or its access credentials, with or without Enterprise Partner’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

3.3 Enterprise Partner Security Standards. Enterprise Partner shall employ all commercially reasonable physical, administrative, and technical controls, screening, and security procedures and other safeguards designed to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Enterprise Partner Data, including the uploading or other provision of Enterprise Partner Data for processing by the Services.

4.1 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, pricing information, compensation information, know-how, compilations, processes, data protection, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Zirtue includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Enterprise Partner includes non-public data provided by Enterprise Partner to Zirtue to enable the provision of the Services, including data relating to Account Holders provided by Enterprise Partner to Zirtue (“Enterprise Partner Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge (except in performance of the Services or as otherwise permitted herein) to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Enterprise Partner Data Ownership. Enterprise Partner shall own all right, title and interest in and to the Enterprise Partner Data. Enterprise Partner hereby permits Zirtue such limited rights and permissions in or relating to Enterprise Partner Data as are necessary to Zirtue to enforce this Agreement and exercise Zirtue’s rights and perform Zirtue’s obligations hereunder.

4.3 Zirtue Intellectual Property. Zirtue, or its third-party licensors, shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Services whether expressly, by implication, estoppel, or otherwise.

4.4 Resultant Data. Notwithstanding anything to the contrary, Zirtue shall have the right collect and analyze data and other information relating to and solely for the purpose of the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Enterprise Partner Data and data derived therefrom such as usage reports and user statistics (“Resultant Data”)), and Zirtue will be free during and after the Term hereof to (i) use Resultant Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zirtue offerings, and (ii) disclose Resultant Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5.1 Collections of Payments to Enterprise Partner. Zirtue collects payments from Account Holders on behalf of Enterprise Partner. Upon authorization from Account Holder, Zirtue shall transmit Account Holder’s funds to Enterprise Partner and Enterprise Partner shall credit the Enterprise Partner’s Account Holder account for the amount of funds transferred and the Success fee. Prior to transmitting approved funds from Account Holder to Enterprise Partner, Zirtue shall collect the Success Fee in the amount defined in the Order Form.

5.2 Payment to Enterprise Partner. All amounts due under this Agreement shall be paid by credit card, ACH, or other payment method agreed to by Zirtue. Account Holder payments via automated clearing house (ACH) shall be paid to Enterprise Partner in approximately 2-4 business days after payment to Zirtue while debit card or credit card payments shall be paid to Enterprise Partner in approximately 1 business day.

5.3 Chargebacks. Any chargebacks or refund requests of all or any portion of a payment intended for Enterprise Partner by an Account Holder made through Zirtue shall not affect any payment that has already been made to Enterprise Partner by Zirtue. Any dispute for chargebacks or refund requests shall be determined only between Account Holder and Zirtue.

5.4 Audit Rights and Required Records. Zirtue agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts paid by Account Holders hereunder. Enterprise Partner may, at its own expense, on fifteen (15) days’ prior notice, periodically inspect and audit Zirtue’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Zirtue has underpaid Enterprise Partner with respect to any amounts collected by Zirtue on behalf of Enterprise Partner during the Term, Zirtue shall promptly pay the amounts necessary to rectify such underpayment at a reduced Success Fee of 1% per transaction. Zirtue shall pay for the costs of the audit if the audit determines that Zirtue's underpayment equals or exceeds 5% of total amounts owed for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two years after the termination or expiration of this Agreement.

6.1 Subject to earlier termination as provided below, this Agreement begins as of the Effective Date and continues in full force until either party terminates the Agreement under Section 6.2 (collectively, the “Term”).

6.2 Termination. Either Party may terminate this Agreement:

6.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement: (i) all licenses granted to then-existing Account Holders survive in accordance with their terms; (ii) all licenses granted to Enterprise Partner hereunder will expire or terminate; and (iii) Enterprise Partner shall cease all use of the Services, in whole and in part, including in any production, marketing, distribution, licensing, sale, maintenance, support, or use of the Services. Upon any termination or expiration, Zirtue will make all Enterprise Partner Data available to Enterprise Partner for electronic retrieval for two (2) years. Thereafter Zirtue shall, unless retention is otherwise required by law, delete stored Enterprise Partner Data.

6.4 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, non-competition, non-solicitation, intellectual property, Enterprise Partner audit rights, confidentiality obligations, warranty disclaimers, and limitations of liability, survival, effect of termination, and the Miscellaneous provisions under Section 11.

7.1 Zirtue Limited Warranties

7.2 Each party represents and warrants to the other party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

7.3 Zirtue shall use reasonable efforts consistent with prevailing industry standards to maintain and perform the Services in a manner which minimizes errors and interruptions in the Services and in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zirtue or by third-party providers, or because of other causes beyond Zirtue’s reasonable control, but Zirtue shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ZIRTUE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ZIRTUE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.4 Enterprise Partner represents, warrants, and covenants to Zirtue that Enterprise Partner owns or otherwise has and will have the necessary rights and consents in and relating to the Enterprise Partner Data so that, as received by Zirtue and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.

To the extent Enterprise Partner provides suggestions, proposals, ideas, recommendations or other feedback regarding improvements to the Services and related resources, Enterprise Partner grants to Zirtue a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into Zirtue’s core technology) without restriction or notice to Enterprise Partner.

9.1 Each of Enterprise Partner and Zirtue, at its own expense, shall indemnify, defend and hold the other, its partners, shareholders, directors, managers, members, officers, employees, and agents harmless from and against any and all third-party suits, actions, investigations and proceedings, and related costs and expenses (including reasonable attorney's fees) resulting solely and directly from the indemnifying party's negligence or willful misconduct. Neither Enterprise Partner nor Zirtue shall be required hereunder to defend, indemnify or hold harmless the other and/or its partners, shareholders, directors, officers, directors, employees and agents, or any of them, from any liability resulting from the negligence or wrongful acts of the party seeking indemnification or of any third-party.

9.2 Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 9.1, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Indemnitor fails or refuses to assume control of the defense of such Action, Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such action after giving notice to Indemnitor, in each case in such manner and on such terms as Indemnitee may deem appropriate. Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve Indemnitor of its obligations under this Section 9, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ZIRTUE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ZIRTUE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY ENTERPRISE PARTNER TO ZIRTUE FOR THE SERVICES UNDER THIS AGREEMENT IN THE ONE-DAY PERIOD PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ZIRTUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party shall assign or delegate this Agreement or any rights, duties or obligations hereunder to any other person and/or entity without prior express written approval of the other party. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Enterprise Partner does not have any authority of any kind to bind Zirtue in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.