A-PAY TERMS AND CONDITIONS

These A-PAY TERMS AND CONDITIONS (these “Terms”) are agreed to by and between Awardco, Inc. (“Awardco” or “we” or “us”) and the entity listed on the Order Form purchasing a subscription to the Awardco A-Pay product (“Customer” or “you”). These Terms supplement the existing Software  as a  Service Agreement or similar customer agreement that Customer has entered into with Awardco (the “SSA”) regarding Customer’s access to and use of Awardco’s cloud-based web platform delivered and accessible through www.awardco.com. These Terms will govern in the event of any conflict with the  SSA  as it relates to the Cards or Program. Any capitalized terms not defined herein will have the meaning set forth in the SSA. Customer’s or its Authorized Users’ acceptance or use of any Cards or participation in the Program constitutes Customer’s acceptance of each of the terms described below.

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1.             DEFINITIONS

“Admin” means the individual(s) designated by Customer with the requisite power and authority to manage and operate Customer’s account with Awardco.

“Authorized User” has the meaning set forth in the SSA or, if not defined therein, means an individual who has been granted access authorization under Customer’s account to use Subscription Services on the Awardco platform and has also been authorized to use a Card in connection with such Subscription Services.

“Card” means the spend card(s) issued by an Issuer and managed through Customer’s account with Awardco.

“Card Networks” means the payment card networks, including Visa or Mastercard.

“Issuer” means Celtic Bank Corporation.

“Issuer Terms” means the agreement between Customer and the Issuer concerning Customer’s and its Authorized Users’ use of the Cards, available at https://stripe.com/legal/celtic-spend-card.

“Charge” means a payment for goods or services made to a merchant that accepts payments on the applicable Card Network.

“Chargeback” means a dispute initiated against a merchant for an unresolved dispute with the merchant or where a Charge is unauthorized.

“Good Standing” means that Customer has a positive Redemption Balance, has not filed for bankruptcy, is not subject to any legal process that would materially impact its ability to repay Awardco, and has not issued any failed payment instruments (e.g. checks) within the prior month.

“Periodic Statement” means, collectively, the various reports, whether issued by Awardco or available on-demand to Customer’s Admin through reporting tools on the Awardco platform, as well as invoices and periodic statements that reflect activity for the Cards issued to Customer, identifying therein Charges, fees, fines, refunds, or other amounts owed or credited to your Redemption Balance during the time covered by that report, invoice, or statement.

“Program” means the program through which Issuer issues Cards to Customer to enable Redemptions by Customer’s Authorized Users through online and brick-and-mortar merchants.

“Redemption Balance” means Customer’s balance of funds within theRedemption Account.

“Unauthorized Charge” means a card transaction initiated on a Card without the cardholder’s authorization where Customer, the cardholder, and/or any Authorized User did not obtain any direct or indirect benefit or where the intended benefit of purchased goods and/or services were significantly not as described by the merchant.

2.             PAYMENT CARDS

2.1           Issuer Terms.

Cards are issued by Issuer through a card program managed and supported by Stripe, Inc. These Terms and the Issuer Terms concurrently govern you and your Authorized Users’ use of the Cards.  By using the Cards, Customer and Authorized Users hereby consent to the applicable Issuer Terms and agree to be bound by them. Please be aware that the Issuer Terms may state that (a) Issuer may update Issuer Terms at anytime, and (b) Customer’s or Authorized Users continued use of the Cards constitutes Customer’s and Authorized Users’ acceptance of such updated Issuer Terms.

2.2           Spending Limits.

When Customer enters into the SSA, Awardco and Customer will establish a Redemption Balance to be used by Customer to pay for Redemptions by Customer’s Authorized Users. The then-current Redemption Balance will be Customer’s “Total Spending Limit” in connection with the Program. The Total Spending Limit will be the maximum aggregate amount that could potentially be made available by Customer’s Admin for Charges across all Cards associated with Customer’s Awardco account. Awardco and Issuer may decrease the Total Spending Limit at any time based on risk, credit, or compliance considerations.

Subject to the Total Spending Limit, Issuer, Awardco, or Customer’s Admin may set and adjust from time-to-time spending limits for any Card (“Card Spending Limit”), as well as overall daily spending limits for any Card (“Daily Spending Limit”). All Authorized Users will have a maximum Card Spending Limit in the amount established by Customer’s Admin, which amount must not, in any event, be greater than the aggregate value of Awardco points associated with such Authorized User’s Awardco account. The amount available for Charges on a particular Card will be subject to the Card Spending Limit and/or Daily Spending Limit (if any) for such Card. In addition, Customer’s Admin may have the ability to set spending controls by merchant category, which are determined by the Merchant Category Codes self-reported by the corresponding merchant. Awardco does not guarantee the accuracy of any such codes or classifications.  Customer will be responsible for all Charges under its Cards regardless of any spending limits or controls.

Authorized Users must not make any Charge that would cause Customer to exceed or violate any of the limits set forth in this Section 2.2. Customers may view these limits through the Awardco platform. All transactions will be declined at the time of merchant authorization if the Charge exceeds the applicable Card Spending Limit or Daily Spending Limit, or if Customer is not in Good Standing, or if Customer does not otherwise have sufficient funds in its Redemption Balance, or if the Charge would otherwise exceed or violate the limits set forth in this Section 2.2. If the Charge ultimately captured by the merchant for the transaction is more than the amount initially authorized (such as in the case of egregious tipping) and such Charge exceeds the applicable Card Spending Limit, the amount that is in excess of the Card Spending Limit is Customer’s responsibility, and Customer hereby authorizes Awardco to deduct such excess from its Redemption Balance.

2.3           Using Cards

Customer agrees that it will only provide and permit use of the Cards by Authorized Users for Customer’s business purpose of providing its Authorized Users with employee perks and rewards and for no other purpose.  Customer understands that its Cards are deemed commercial in nature and that certain consumer protection laws, such as the Credit Card Consumer Accountability, Responsibility, and Disclosure Act of 2009, do not apply to use of the Cards. Customer is responsible for selecting the Authorized Users who are authorized to use Cards. Customer is responsible for all Card transactions and activities, including transactions made by its Authorized Users. Customer agrees to establish and maintain controls designed to ensure that the Cards are only used by Customer’s Authorized Users for purposes permitted by Customer and in compliance with these Terms, the Issuer Terms, and applicable law. Customer is responsible for Charges and transactions made by any person given access to Cards even if they are not the person associated with or named on the Card. Awardco, Issuers, Card Networks, or other intermediary third-party service providers (including merchant acquirers) may deny or reverse Charges for any reason. Awardco is not responsible for any losses, damages, or harm caused by any Charges that are denied or reversed.

2.4           Fees

Customer’s and its Authorized Users’ participation in the Program (including request and use of Cards) may be subject to certain fees (“Usage Fees”) by Awardco, Issuer, and other third-party providers. Usage Fees are separate and distinct from the subscription fees Awardco charges Customer for its access to and use of the A-Pay product as a Subscription Service. Usage Fees may include periodic fees, fees for Card issuance or replacement, fees applicable to certain transactions, usage fees, service fees, fees for late payments, fees for failed payments or returned payments, fees form is use of the Cards, foreign exchange fees, border transaction fees, dispute fees, or other fees we disclose to you.  We or the Issuer may from time to time add new Usage Fees or increase existing Usage Fees. We will disclose Usage Fees and any changes thereto in either these Terms, or through the Subscription Services, or through Issuer Terms, or via Issuer’s website.

Customer is responsible for paying all Usage Fees, and Customer hereby authorizes Awardco to deduct such fees from its Redemption Balance. In the event Customer does not have sufficient Redemption Balance to pay the Usage Fees when required, Customer will be deemed in material breach of these Terms, pursuant to which Awardco may declare the entire balance due immediately, regardless of the current billing cycle. Customer is responsible for all costs or expenses that we or Issuers incur collecting amounts owed but not timely paid, including legal or collections fees and any interest at the maximum rate permitted under law. All monetary amounts owed under these Terms are stated in US Dollars (USD).

2.5           Requesting and Replacing Cards

Authorized Users may request Cards through Authorized Users’ Awardco account. Authorized Users are prohibited from requesting or having more than one active Card at any given time. We may decide in our sole discretion not to grant requests for Cards or limit the number of Cards provided.

In order to request a Card for any Authorized User, we may require Admins or Authorized Users to provide the Authorized User’s full legal name, contact information, and physical address. Additional information may be required, as determined in our sole discretion. Cards may be denied or canceled due to changes in Issuer’s policies, as required by law, or for any other reasons we determine are appropriate in our sole discretion. Admins may request that Authorized Users be issued Cards with specific restrictions made available by Awardco. For example, we may allow Authorized Users to be issued cards with expiration dates set by Customer’s Admin or categorical spending restrictions set by Customer’s Admin.

Customer and its Authorized Users are responsible for securing Cards, account numbers, and Card security features (including the CVV and PIN, if any). Customer will promptly notify Awardco and take appropriate measures to prevent Unauthorized Charges when a Card is lost, stolen, breached, or needs to be replaced. In such cases, Customer’s Admin or Authorized Users may request the issuance of replacement Cards by Issuers through Customer’s Awardco account. Customer and its Authorized Users are solely responsible for updating Card information stored with merchants where account numbers have been changed.

2.6           Settlement Currency and Foreign Exchange

All Charges, Usage Fees, and associated fees for Cards issued by Issuer must be paid in USD (“Settlement Currency”). Some international Charges may clear in a currency other than the Settlement Currency and will undergo a currency conversion. For those transactions, the exchange rate will be selected by the Issuer or Card Network and there may be additional transaction fees charged by the Issuer or a third-party to facilitate the transaction. Customer will be responsible for all foreign exchange fees, border transaction fees or other similar transaction fees, each of which are Usage Fees, and which will be deducted against Customer’s Redemption Balance. The exchange rate applied to Customer’s transactions may vary from time to time or among customers depending on a variety of factors, such as your relationship with us, the terms and policies of the Issuer or Card Network, the local currency, the type of transaction being conducted, the transaction amount, and the date and time of the currency exchange.

2.7           Disputing Charges

Customer is responsible for all Charges under its issued Cards. Customer is responsible for reviewing its Periodic Statements promptly and identifying any Charges that Customer believes are erroneous, unauthorized, or that Customer disputes.

If Customer or any Authorized User and a merchant have a dispute regarding a Charge identified on Customer’s Periodic Statement, such as delivery of incorrect goods or services or being charged the wrong amount, Customer or Authorized Users, as the case may be, should first attempt to resolve the dispute with the merchant. If the dispute is not resolved to your satisfaction or if Customer or Authorized User believes the Charge is unauthorized, Customer or Authorized User, as the case may be, may contact Awardco with your concern. Awardco may impose dispute fees (which are Usage Fees), which will be charged to Customer for becoming involved in any dispute, and which will be payable by Customer regardless of the outcome of such dispute.

Customer understands that the Program is subject to Card Network rules regarding Chargebacks. The Card Networks have established procedures for resolving Chargebacks that may require you to provide details of the disputed Charge or associated documentation. Customer and Authorized Users must be sure to initiate disputes within sixty (60) days of when the Charge posts to Customer’s account, as the Card Networks may not accept, or process disputed Charges reported after this time.

Charges relating to disputed Charges and Chargebacks will be collected on the payment date if they are pending resolution as of the date that payment is due for the applicable Periodic Statement. Chargebacks resolved in favor of Customer will be credited to your Redemption Balance on either the current or a future Periodic Statement. We may impose fees, reduce your spending limits, or suspend access to your Redemption Balance or Cards if you fail to pay Charges relating to Chargebacks that are pending resolution on the payment date.

2.8           Additional Customer Responsibilities

Customer must adhere to the following standards of conduct in order to use the Cards:

(a)   Routine review of card transactions and reporting obligations. Customer must review the Periodic Statement associated with your Cards on no less than a monthly basis. Customer’s Admin may review transactions at any time in your Awardco dashboard and should do so routinely. Customer must promptly notify Awardco of any unauthorized or fraudulent activity.

(b)   Deactivation of cards and cardholder account profiles. Customer’s Admin must routinely audit Customer’s Authorized Users in order to identify any Authorized Users that should no longer be active, including Authorized Users who resign, are terminated, and/or are no longer authorized by Customer to have a Card under its Awardco account. In these cases, Customer must deactivate and delete the Authorized User’s permissions from its Awardco account promptly, no later than forty-eight (48) hours from the change in such Authorized User’s status with Customer.

(c)   Report lost or stolen cards on time. Customer or Authorized User must notify Awardco regarding the loss or theft of any Cards within forty-eight (48) hours of the event. This pertains to Cards issued under your Awardco account that are already received as well as Cards that are in transit and do not arrive.

(d)   Protect accounts, cards, and card information. Customer and its Authorized Users are expected to exercise reasonable care in protecting Cards, including PIN and card information, from loss, theft, and unauthorized access. In addition to the responsibilities set forth above, reasonable care includes: (i) promptly reporting if you suspect account and/or card information has been exposed or is being misused, (ii) protecting accounts, cards and card information from access by any third-parties who are not authorized to use cards, (iii) practicing safe computing (e.g. using unique and complex passwords, antivirus and anti-spyware software, firewalls, and other industry-standard safeguards).

(e)   Respond and participate in investigations. Customer and all relevant Authorized Users must participate in any Awardco investigation related to alleged Unauthorized Charges and must be responsive to ongoing Awardco investigations by providing any supplementary information and/or documentation that Awardco deems necessary to complete an investigation.  

3.             MISCELLANEOUS

3.1           Representations and Warranties

In addition to other representations and warranties provided by Customer under the SSA, Customer represents and warrants that (a) Customer is and will continuously throughout the term of these Terms be duly organized and in Good Standing under the laws of its jurisdiction of incorporation; (b) all of Customer’s Admins have requisite organizational power and authority to conduct business on and manage Customer’s Awardco account in all respects, including delegating access or authority to other Authorized Users; (c) Customer is opening an account on behalf of an entity organized and registered in the United States and that Customer is not opening an account as or on behalf of a consumer, sole proprietor, or unincorporated partnership; (d) Customer and Authorized Users will not engage in activities prohibited by these Terms or any Issuer Terms; and (e) all data and information provided to Awardco is and shall remain complete, accurate, and current, and Customer has all necessary rights, consents and authorizations to provide such data and information available to us for the purposes contemplated hereunder.

3.2           Changes to Program and Terms

We reserve the right, in our sole discretion, to suspend, cancel, or modify the Program at any time and for any reason and without prior notice. Administrative services may be provided by third-party service providers. We reserve the right, in our sole discretion, to add, delete, change, or revise these Terms, including, but not limited to, revising, or adding qualifications for participation in the Program; Program features or procedures; the imposition or discontinuance of special promotions or offers, additions, deletions, revisions, or additional Program terms. We may temporarily or permanently disqualify Customer from participating in the Program as a result of any abusive behavior, fraud, misrepresentation, any violation of law, or any other violation of any of the terms or conditions set forth herein or the SSA, in each case as determined by us in our sole discretion. If we terminate the Program without cause, we will provide Customer with a pro-rata refund of the associated subscription fees prepaid by Customer for the terminated portion of the corresponding subscription term.

If we amend or modify these Terms, the amended version will be effective at the time we post it, unless otherwise noted in such amendment or modification. If any amendments materially reduce your rights or increase your responsibilities, we will provide you with at least thirty (30) days’ advance notice of the amended Terms before the amended terms become effective as to you. Continued use of or access to the Program or any Cards, through the actions of any Customer’s Admin or Authorized User, after any amended Terms becomes effective as to you constitutes acceptance of the amended Terms. If you do not agree with amended Terms, you must cease your participation in the Program and cease use of the Cards before such amended Terms become effective as to you, and we will provide Customer with a pro-rata refund of the associated subscription fees prepaid by Customer for the terminated portion of the corresponding subscription term.

3.3           Data and Privacy

Customer acknowledges, understands, and agrees that Awardco, Issuer, Card Networks and other third-party partners may collect, process and share certain data and information through Customer’s use of Cards and otherwise in connection with the Program. We may use and disclose Customer’s data and information (a) for identity verification and underwriting, establishment and adjustment of spend limits, spend and transaction analysis, fraud and loss prevention, and reporting; (b) to provide, maintain and improve the Program; (c) as required by law or Card Network rules; and (d) to enforce and protect our rights, including as needed in dispute resolution.

3.4           Indemnification

Customer agrees to indemnify, defend, and hold Awardco and our third-party service providers and each of such party’s respective affiliates, directors, officers, employees, agents, and contractors harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from your or an Authorized User’s: (i) participation in the Program; (ii) any fraud or misuse of the Program or any Cards; (iii) violation of these Terms; and/or (iv)violation of any applicable law or the rights of any third-party.

3.5           Limitations of Liability; Disclaimers

Neither we nor our service providers are responsible for any disputes between you and a merchant relating to a transaction or goods or services. To the maximum extent permitted by law, neither we nor any of our third-party service providers, including each of such party’s respective employees, officers, affiliates, or agents, assume any responsibility for, and will not be liable for, any financial loss, personal injury, property loss or damage, other loss, accident, delay, inconvenience, or irregularity which you may suffer by reason of any act, default, non-performance, or wrongful, careless, negligent, or unauthorized act or omission of us or any supplier, including each of such party’s respective employees, officers, affiliates, or agents, or any other third-party. In no event shall we or any of our affiliates or agents be responsible or liable to you, or anyone claiming through you or on your behalf, for any indirect, special, exemplary, punitive, or consequential damages, including, without limitation, lost revenue, lost profits, or lost opportunity arising out of or relating to any of the acts or omissions of Awardco or any of our respective affiliates or agents, or otherwise in connection with or relating to the Program or our administration, or that result from the use of or inability to use the Program, even if we have been made aware of the possibility of such damages. Neither we nor any of our third-party service providers, including each of such party’s respective employees, officers, affiliates, or agents, will be responsible for any damage, loss or expense of any nature resulting from the usage of any Redemption, defects in any Redemption, or from any cancellation irregularity or mishap affecting any Redemptions received through the Program. In addition, we make no warranty or representation either expressed or implied, and expressly disclaim any and all liability and damages with respect to type, quality, or fitness for use of goods or services provided through this Program or otherwise obtained by you in connection with the Program or through the use of any Cards. IN NO EVENT SHALL WE OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, LICENSORS, OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE LESSER OF (A) YOUR AVERAGE REDEMPTION BALANCE IN THE PAST TWELVE MONTHS, AND (B) FIVE THOUSAND DOLLARS.

3.6           Compliance with Court Orders and Legal Process

If we are notified of or become aware of a court order or other legal process or request (e.g., subpoenas, garnishments, levies, warrants) or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may take certain actions, including without limitation providing information in our possession, custody, or control; holding payments to/from Cards; or suspending, terminating, closing, or limiting access to your Cards. We will decide, in our sole discretion, which action is required or appropriate. We do not have an obligation to contest or appeal any court order or legal process involving you or your Cards. We are not responsible to you or Authorized User for any losses or consequences sustained due to actions we may take to comply with a legal order, legal process or request, or applicable law. We may, but are not required to, provide notice of any court order, legal process or requests, or actions we may take in conjunction with them or in an effort to comply with applicable law.

3.7           Headings and Interpretation

Headings in these Terms are for reference only. Except where otherwise specified, all references to sections or provisions refer to this these Terms or the applicable incorporated terms. The phrases including, for example, or such as do not limit the generality of the preceding provision; the word 'or' will be read to mean either ...or...or any combination of the preceding items; words in the singular include the plural and words in the plural include the singular; and provisions listing items and using and require all listed items.

3.8           Assignment; Waiver

You may not transfer or assign (by operation of law or otherwise) these Terms, any of your rights or obligations hereunder, or in connection with the Program, without Awardco’s prior express written consent. Awardco may assign, pledge, or other wise transfer these Terms or any of its rights and powers under these Terms without restriction and without providing notice to you. Any waiver, modification, or indulgence that Awardco provides to Customer, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification, or indulgence under these Terms for any other or future acts, events, or conditions. Further, any delay by Awardco in enforcing our rights under these Terms does not constitute forfeiture or waiver of such rights.

3.9           Entire Agreement

These Terms (including any terms referenced herein) and the SSA constitute the entire understanding of the parties with respect to the subject matter described herein and supersede all other proposals or previous understandings, written or oral, between the parties. No other agreements, representations, or warranties other than those provided in these Terms, and other than any terms, agreements or policies incorporated by reference, will be binding unless in writing and signed by Awardco and Customer. Unless provided otherwise in these Terms, if any provision of these Terms is held by a court or arbitrator to be invalid or unenforceable, that provision will be fully severable, such provision shall be construed and enforced in a manner that reflects the original intentions of the parties as closely as possible and is consistent with applicable law, and the remaining provisions of these Terms shall remain in full force and effect.

3.10        Governing Law

All disputes, claims or controversies arising out of or related to this Program, whether based on contract, tort, or any other legal or equitable theory, shall in all respects be governed by, and construed in accordance with, the laws of the United States of America and the State of Utah, without reference to conflict of laws principles. You irrevocably submit to the exclusive personal jurisdiction and will bring all suits and actions under or in connection with these Terms exclusively, in the state or federal courts located in the State of Utah and here by waive all objections to this jurisdiction and venue.