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B) Furthunnore, and with respect to any security interests granted herein, Bank will have all rights afforded ureter the Uniform Commercial Code, as the same may, from time to time, be in effect in the State of Colorado, provided, however, in the event that, by reason of mandatory provisions of law, any oral] of the anitchtnent, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Colorado, then Batik will have all rights afforded under the Uniform Commercial Cede as in effect from tune to time in such other Jurisdiction for purposes of the provisions relating to such attachment, perfection or priority Of life security interesting, us well as any other applicable law. 14.2 Perfection of Security In lei-est. Upon request of Bank, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Book tinder this Section Id. 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. In addition, Merchant agrees that its signature on the Merchant Application will be considered Merchant's signature agreeing to any control agreement as defined in Article 9 or 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 Ponds in the Settlement Account, the Reserve Account or any other deposit account without further consent by Merchant. 15. CUSTOMER CLAIMS To the extent that Batik has paid or may pay a Chmgeback or Credit Transaction Receipt, Merchant will be obligated to reimburse Bank for any stairs Bank pays. If Merchant does not reimburse Bank, Bank will have all of the rights and remedies of Cardholders, including the Cardholders' rights front II U.S.C. p507(a)(6), Bank may assert any claim on behalf of a Cardholder individually or on behalf of NI Cardholders as aclass. 16. PROCESSING FEES. 16.1 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 thurcto. Bank may Increase the Processing Fees, including, without limitation, introducing nary products or services, by giving Merchant fifteen days advance written notice effective for Transactions submitted on slid after the effective date ofthe change. 162 Card Association Actions. Bank will not be required to provide the Meehan with fifteen days' notice of an increase in Processing Pees in die event that any Card Association, or any other entity having site[, authority increases the Processing Fees slid the effective date for implementation of the increase in the Processing Fees is less than fifteen days. In such cases, [lie Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on smtenims, 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. The increase($) in Processing Fees shat l be effective on the date specified by Blink_ 16.3 Government and Regulatory Actions. Bank will not be required to provide Merchant with fifteen days' notice for any increase in processing Fees resulting from any fine, charge, fee or cost incurred in connection with any state, federal or other reguhnory action, change in laws or regulations or escheatmem efMerchant's funds. Bank shall make reasonable efims; including, but not limited to, written correspondence, notification on statements, website installation, email, fax and direct conmer via the telephare 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 increases) in the Processing Fees shall be effective on the date specified by Bank. 16.A 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 il'snfficieni funds are not available in the Settlement Account. 17. INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY. 17.1 Indemnification. Merchant agrees to indentoifv Bank, Including their respective officers, directors, employees, and agents against and to hold then harmless front any and all claims mad demands of any party raising From or based upon any act or omission of Merchant, Merchant's employees, Merchant's designated representatives or agents, Merchant Servicers or Merchants Agents) in connection with or arising out of this Merchant Agreement, the duties to be partitioned by Merchant 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 tcollectively 'Actions') commenced by any third patty, Merchant shall protect and Bold Batik harmless from and with respect to the Actions mid shall pay all costs, exleoses, and attorney'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, infiltration, or compromise of Merchant's systems or the systems of Merchant, Merchant Servicers or Merchant's Agengs), designated representatives, or other agents. 17.2 Limitation of Liability. Bank will not accept responsibility for errots, acts, or failure to act by others, including but not limited to. Merchant Servicers, Agents, third parry suppliers of software, equipment or services; or, barks, communication common carnets data processors or clearinghouses tluough which transactions may be passed, originated anNor authorized. Book will not be responsible for any loss, liability or delay caused by Gres, 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- Bak undertakes no duties to Merchant other than the duties expressly provided for in this Merchant Agreement, and any and all that or additional duties that may be imposed upon Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, Bark'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 -mount t 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 tine to liability occurred. IN NO EVENT SRALL. BANK DE LIABLE FOR SPECIAL, INCIDEN "UAL, INDIRECT, CONSEQDEN'IIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR 13ANK WAS ADVISED OF THE POSSIBILITY 'THEREOF AND REGARDLESS OF WHETHER ANY LIMI I ED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. BANK SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRAN'T'Y OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT OF ANN' INTELLECTUAL PROPERTY' RIGHT WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WIT'HOITI' LIMITING THE GENERALITY OFTFIE FOREGOING, BANK DOES NOT GUARANTEE OR WARRANT 'THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE. 18. NOTICES. Each notice required by this Merchant Agreement will be in writing Unin copy or electronic), except as otherwise stated in this Merchant Agreement, and will be effective when delivered, (a) to Merchant Bank at the address designated tat the Merchant Application, and the forum 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 lire 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 ofdte transmission. 19, COLORADO LAW; JURISDICTION; VENUE. Merchant's offer to enter into this Merchant Agreement is twee in Boulder, Colorado; this Merchant Agreement shall be performed by Merchant in Boulder, Colorado and governed by Colorado law, excluding its cons ict of laws rales. Merchant and Guarantor agree to bring any claim or action relating to this Merchant Agreement in binding arbitration as set forth in Section 20.2 below. Any matters not otherwise subject to arbitration (such as, by way of example onl), inamicaho relief. 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 to the jurisdiction ofsttoh 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; .ARBITRAT'ION. 20.1 Attorney Fees. Merchant aod7or Guarantor will be liable for and will indemnify nod reimburse Bank for all attorneys' fees and other costs and expenses paid or incurred by Blank in the enforcement of tills Merchant Agreement or in matters relating to this Merchant Agreement, or arising Flom any breach by Merchant of this Merchant Agreement, or any other wrongdoing by Merchant or Guarantee In the event Bank must collect any amounts due from Merchant to Bank, Merchant will reimburse Bank for ail fees and expenses inured in such collection, plus reasonable administrative fees. 20.2 Arbitration. Merchant. Bank and any Gummier will settle any dispute or controversy concerning or relating to this Merchant Agreement though binding arbitration before is single arbitrator, held at 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 most do, the arbitrator shall be limited from revising, aloring, or amending any term of the Merchant Agreement without the express written consent of the Bank and the Merchant. Claims hereunder will be arbitrated on an individual basis and, is such, the arbitrator's authority is limited to claims benreen the Burk and the Merchant (and any Guarantor) alone- Merchant and Bank expressly agree that the arbitrator may not consolidate or join more than one person's or party's claims, mid may not otherwise preside over any form of if consolidated or class proceeding or over claims brought in a pmpoi ed representative capacity on behalf fiCthe general public, other merchants or other persons or entities similarly stumted. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that patty's individual strands). 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 Transaction for Merchant (including .tear Transactiorn 22, CONTINUING GUARANTY. Page 6 Oft UNIVMERAGMT v10.1013