25C - AGMT - MERCHANT PAYMENT SRVS

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(b) Furthermore, and with respect to any security interests granted Intent, Bank will have all rights afforded under the Uniform Commercial Code, as the same may, from tune to lime, be in effect in the State of Colorado; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code a in effect in a jurisdiction other than the State of Colorado, then Bank will have all rights afforded mndla the Uniform Commercial Code as in effect from Hine to time in such other jurisdiction for purposes of tire provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law. 14.2 Perfection of Security Interest. Upon request of Bank, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Bank under this Section 14. Merchant shall cooperate with Bank in obtaining any control agreement or similar agreement with a depository bank necessary to perfect the security interests granted herein. to addition, Merchant agrees that its signature on the Merchant Application will be considered Merchant's signature agreeing an any control agreement as defined in Article 9 of the Uniform Commercial Code among Merchant, Bank and any other financial institution under which Bank, Merchant and any other financial institution agree to the disposition of funds in the Settlement Account, tile Reserve Account or any other deposit account without further consent by Merchant. 15, CUSTOMER CLAIMS, To the extent that Bank has paid or may pay a Chargetrack or Credit Transaction Receipt, Merchant will be obligated to reimburse Bank for any sons Bank pays. If Merchant does not reimburse Bank, Bank will have all of the rights and remedies or Cardholders, including the Cardholders' rights under I I U.S.C. §507(a)(6). Bank may assert any claim on behalf of a Cardholder individually or on behalf of all Cardholders as a class. 16. PROCESSING FEES. lit Fee Schedule. Merchant will pay Processing Fees in the amount specified in the Fee Schedule attached to the Merchant Application or as otherwise provided for in this Merchant Agreement or an Addendum thereto. Bank may increase the processing Fees, including, without limitation, introducing new products or services, by giving Merchant fifteen days advance written notice effective for Transactions submitted on and after the effective date of the change. 16.2 Card Association Actions. Bank will not be required to provide the Merchant with fifteen days' notice of an increase in Processing Fees in the event that any Card Association, or any otherentily having such authority increases the Processing Fees and the effective date for implementation of the increase in the Processing Fees is less than fifteen days, In such cases, the Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise, to provide reasonable notification to Merchant. However, failure to provide advance notice Of the increase in Processing Fees will not affect Merchant's obligation to pay the increased Processing Fees. Tire increasers) in Processing Fees shall be effective on the date specified by Bank. 163 Government and Regulatory Actions, Bank will not be required to provide Merchant with fifteen days' notice for any increase in Processing Fees resulting front any fine, charge, fee or cost incurred in connection with any suite, federal or other regulatory action, change in laws or regulations or escheanment of Merchant's funds. Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise to provide reasonable notification to Merchant. However, failure to provide advance notice of the increase in Processing Fees as a result of any government or other regulatory actions will not affect Merchant's Obligation to pay the increased Processing Fees. The increase(s) in the Processing Fees shall be effective on the date specified by Bank. 16A Payment, Processing Fees and other service charges owed by Merchant to Bank may be deducted by Merchant Bank from amounts due Merchant, or from the Settlement Account or from the Reserve Account. Merchant will pay the amounts due by the next Business Day it'sufflcient finds are not available in the Settlement Account 17. INDEMNIFICATION; LIMI'T'ATION OF LIABILITY; WARRANTY. 17.1 Indemnification, Merchant agrees to indemnify Bank, including their respective officers, directors, employees, and agents against and to hold them harndess from any and all claims and demands of any party arising from or based upon any act or omission of Merchant, Merchant's employces, Merchant's designated representatives or agents, Merchant Services, or Merchant's Agents) in connection with or arising out of this Merchant Agreement, the duties to be performed by Memhant pursuant to this Merchant Agreement, any Transactions which Merchant submits to Bank, or Merchant's violation of the Operating Rules or any Requirements of Law. In the event that Bank shall be made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively "Actions ") commenced by any third party, Merchant shall protect and hold Bank harmless from and with respect to the Actions and shall pay all costs, expenses, and allomey's fees incurred or paid in connection with the Action, together with any judgments rendered. Merchant shall indemnify, defend, and hold harmless Bank for any hacking, fi filrmtion, or compromise of Merchant's systems or the system of Merchant, Merchant Services or Merchant's Agmn(a), designated representatives, ar other agents_ 171 Limitation of Liability. Bank will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, Merchant Servicer, Agents, third party suppliers of software, equipment or services; or, banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated and/or authorized. Bank will not be responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Bank. Bank undertakes no duties to Merchant other than the duties expressly provided for in this Merchant Agreement, and any and all other or additional duties that may he imposed open Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, Bank's cumulative liability to Merchant, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of $10,000 or, an amount equal to the aggregate of monthly net Processing Fees paid by Merchant in the three month period prior to the month that the incident giving rise to liability creation. IN NO EVENT SHALL. BANK BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUP'T'ION Olt LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR BANK. WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL. PURPOSE, BANK SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCIL)NTABILIIY OR FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT OF AN) INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WIIEIOUT LIMITING THE GENERALITY OF THE FOREGOING, BANK DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROH-FREE. 18, NOTICES. Each notice required by this Merchant Agreement will be in writing (hard copy or electronic), except as otherwise stated in this Merchant Agreement, and will be effective when delivered, (a) to Merchant Bonk at the address designated on the Merchant Application, and the return address on the Merchant's Card processing statements, (b) to Processor at the address designated on the Merchant Application and (c) to Merchant at Merchant's address to which Bank mails Merchant's statements or at the electronic mail address provided by Merchant in the Merchant Application, or at such other address as any party may provide by written notice to the other parties. Any address Merchant designates may also be the address to which Bank mails Merchant's statements. Delivery by facsimile transmission or electronic mail will be considered effective when the sender receives electronic confirmation of the transmission 19. COLORADO LAW; JURISDICTION; VENUE. Merchant's offer to enter into this Merchant Agreement is made in Boulder, Colorado; this Merchant Agreement shall be performed by Merchant in Boulder, Colorado and governed by Colorado law, excluding its conflict of laws rules. Merchant and Guarantor agree to bring any claim or action relating to this Merchant Agreement in binding arbitration as set forth in Section 202 below Any matters not otherwise subject to arbitration (such as, by way of example only, imuncl'ive reclier or claims to enforce an arbitration award), shall be brought in the state or federal courts located in Boulder County, Colorado. All parties irrevocably and unconditionally submit m thejurisdictlon of such courts with respect to any such action. In the event that Bank is required to resolve a dispute with Merchant that requires any action under this provision, Merchant hereby agrees and consents to receive service of process by certified mail, 20.ATTORNEY FEES; ARBITRATION. 201 Attorney Fees. Merchant and/or Guarantor will be liable for and will indemnify and reimburse Bank for all attorneys' fees and other costs and expenses paid or incurred by Bank in the enforcement of this Merchant Agreement or in matters relating to this Merchant Agreement, or arising from any breach by Merchant of this Merchant Agreement, or any other wrongdoing by Merchant or Guarantor. [n the event Bank must collect may amounts due from Merchant to Bank, Merchant will reimburse Bank for all fees and expenses incurred in such collection, plus reasonable administrative fees. 201 Arbitration. Merchant, Bank and any Guarantor will settle any dispute or controversy concerning or relating to this Merchant Agreement through binding arbitration before a single arbitrator, held of Denver or Boulder, Colorado in accordance with the provisions of the Federal Arbitration Act or any successor statute. In interpreting the Merchant Agreement, which the arbitrator must do, the arbitrator shall be limited from revising, altering, or amending any tern of the Merchant Agreement without the express written consent of the Back and the Merchant Claims hereunder will be arbitrated on an individual basis and, as such, the arbitrator's authority is limited to claims between the Bank and the Merchant (rand any Guarantor) alone. Merchant and Bank expressly agree that the arbitrator may not consolidate orjoin more than one person's or party's claims, and may not otherwise preside over any form of a consolidated or class proceeding or over claims brought in a purported representative capacity on behalf oftlre general public, other merchants or other persons or entities similarly started. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief air<[ only to the extent necessary to provide relief necessitated by that party's Individual claim(s). 2LFINAL AGREEMENT; EFFECTIVE DATE. This Merchant Agreement is the complete and final agreement between Merchant and Bank for the Card Program services covered by this Merchant Agreement and supersedes all prior or contemporaneous negotiations, stipulations or agreements. If any provision of this Merchant Agreement is invalid or unenforceable, the other provisions remain effective This Merchant Agreement becomes effective on the date Bank processes the first T1'antection for Merchant (including a test Transaction). 22. CON "IINUING GUARANTY. Page 6 nf7 25C -17 UNIVMERAGMT v10.1013