EULA

TERMS AND CONDITIONS OF MERCHANT SERVICE AGREEMENT

Revision 5.0  5/26/2021

1. INTRODUCTION AND DEFINITIONS.

This document, “Terms and Conditions of Merchant Service Agreement” (“Terms and Conditions”) accompanies the document “Motionsoft Payments Merchant Application” (“Merchant Application”). The Merchant Service Agreement (“Agreement”) includes these Terms and Conditions and the terms and conditions of the Merchant Application. Motionsoft (“Motionsoft”) provides card processing services to Merchant under its Wholesale ISO Service Agreement with Wells Fargo Bank, N.A. (“Bank” or “Member”).  Wells Fargo Bank, N.A. is a member of Visa USA, Inc. (“Visa”) and Mastercard International, Inc. (“Mastercard”). The Agreement is between Motionsoft, the merchant, and Wells Fargo Bank, N.A. identified in the Merchant Application (“Merchant”). Under the terms of the Agreement, Merchant will be furnished with the services and products described herein and in the Merchant Application, and selected by Merchant therein (collectively and individually, as applicable, the “Services”). Any Merchant accepted by Motionsoft for card processing services agrees to be bound by the Agreement, including the terms of the Merchant Application and these Terms and Conditions as may be modified or amended in the future. A Merchant’s submission of a transaction to Motionsoft shall be deemed to signify Merchant’s acceptance of the Merchant Service Agreement, including the Terms and Conditions herein. Except as expressly stated in the first three paragraphs of Section 13, all terms and conditions of this Merchant Service Agreement shall survive termination to the extent necessary to protect Motionsoft, Wells Fargo Bank, N.A. and anyone acting on Motionsoft or Member’s behalf’s rights herein.

2. SERVICE DESCRIPTIONS.

Credit Card processing services: Motionsoft’s actions to the appropriate card associations and/or issuers (e.g., Visa, Mastercard, Diners, Discover); settlement; dispute resolution with cardholders’ banks; and transaction-related reporting, statements and products. Debit/ATM Processing Services: Motionsoft has connected to the following debit card networks (“Networks”): Accel, AFFN, Interlink, MAC, Maestro, NYCE, Pulse, Star, and Tyme. Motionsoft will provide Merchant with the ability to access the Networks that Motionsoft has connected to for the purpose of authorizing debit card transactions at the point of sale from cards issued by the members of the respective Networks. Motionsoft will provide connection to such Networks, terminal applications, settlement and reporting activities. With respect to Visa and Mastercard products, Merchant agrees to pay, and Merchant’s account(s) will be charged pursuant to Section 5 of this Agreement for any additional fees incurred as a result of Merchant’s subsequent acceptance of transactions with any Visa or Mastercard product that it has not elected to accept.

3. PROCEDURES.

Merchant will permit holders of valid cards bearing the symbols of the cards authorized to be accepted by Merchant hereunder to charge purchases and services and the debt resulting there from shall be purchased hereunder on a provisional basis in accordance with Section 5 below, provided that the transaction complies with the terms of this Agreement. All indebtedness submitted by Merchant for purchase will be evidenced by an approved sale. Merchant will not present for purchase any indebtedness that does not arise out of a transaction between a cardholder and Merchant. Merchant agrees to be bound by the operating regulations and rules of Visa, Mastercard, Discover, American Express, and any other card association or network organization covered by this Agreement, as any of the above referenced documents may be modified and amended from time to time. Without limiting the generality of the foregoing, Merchant agrees to comply with and be bound by, and to cause any third party who provides Merchant with services related to payment processing or facilitates Merchant’s ability to accept credit and debit cards and who is not a party to this Agreement to comply with and be bound by the rules and regulations of Visa, Mastercard, Discover, American Express, and any other card association or network organization related to cardholders and transaction information security, including without limitation, Payment Card Industry Data Security Standards(“PCI DSS”), (https://www.pcisecuritystandards.org/) Visa’s Cardholder NInformation Security Program (https://www.visa.com/splisting/viewSPDetail.do?spId=5080&coName=Motionsoft), American Express’s Merchant Guide( www.americanexpress.com/merchantopguide), and Mastercard’s Site Data Protection Program (https://www.mastercard.us/en-us/merchants/start-accepting/payment-facilitators.html and select ‘North America’ tab). Furthermore, Merchant is required to annually validate PCI DSS compliance, with the initial validation required to be completed within ninety (90) days of the effective date of the Agreement. Merchant also agrees to cooperate at its sole expense with any request for an audit or investigation by Motionsoft, Member, a card association or network organization in connection with cardholder and transaction information security. Without limiting the generality of the foregoing, Merchant agrees that it will use information obtained from a cardholder in connection with a card transaction solely for the purpose of processing a transaction with that cardholder or attempting to re-present a chargeback with respect to such transaction. Merchant will indemnify and hold Motionsoft, Member and anyone acting on Motionsoft or Member’s behalf harmless from any fines and penalties issued by Visa, Mastercard, Discover or any card association or network organization and any other fees and costs arising out of or relating to the processing of transactions by Motionsoft at Merchant’s location(s) and will reimburse Motionsoft for any losses incurred by Motionsoft with respect to any such fines, penalties, fees and costs. Motionsoft may, from time to time, issue written directions (via mail or Internet) regarding procedures to follow and forms to use to carry out this Agreement. These directions and the terms of the forms are binding as soon as they are issued and shall form part of these Terms and Conditions of the Agreement. Such operating regulations and rules may be reviewed upon appointment at Motionsoft’s designated premises and Merchant acknowledges that it has had the opportunity to request a review and/or review such operating regulations and rules in connection with its execution of this Agreement.

4. MARKETING.

Merchant shall adequately display the card issuer service marks and promotional materials as supplied by Motionsoft. Merchant shall cease to use or display such service marks immediately upon termination of this Agreement.

5. PAYMENT, CHARGES AND FEES.

Fees and charges payable by Merchant shall be as set forth in the Merchant Application and these Terms and Conditions. Merchant will be paid for indebtedness purchased under this Agreement by credit to Merchant’s account(s). Each purchase of indebtedness shall be funded on a provisional basis until all chargebacks, fees, fines, penalties and other adjustments are identified and implemented in respect of such purchase under this Agreement and/or the rules and regulations of a card association or network organization. Accordingly, any such provisional funding is subject to reversal and recoupment with regard to any such chargebacks, fees, fines, penalties and other adjustments. Merchant’s account(s) will be credited for the gross amount of the indebtedness deposited less the amount of any credit vouchers deposited. Merchant shall not be entitled to credit for any indebtedness that arises out of a transaction not processed in accordance with the terms of this Agreement or the rules and regulations of a card association or network organization. Availability of any such funds shall be subject to the procedures of the applicable financial institution. Chargebacks and adjustments will be charged to Merchant’s account(s) on a daily basis. Merchant agrees to pay, and Merchant’s account(s) will be charged for the discount, fees, chargebacks and other fees and charges described in this Agreement. Merchant also agrees to pay and Merchant’s account(s) will be debited for all fees, arbitration fees, fines, penalties, etc. charged or assessed by the card associations or network organizations on account of or related to Merchant’s processing hereunder, including without limitation with regards to any third party who provides Merchant with services related to payment processing or facilitates Merchant’s ability to accept credit and debit cards and who is not a party to this Agreement. If any type of overpayment to Merchant or other error occurs, Merchant’s account(s) may be debited or credited, without notice, and if Merchant’s account(s) do not contain sufficient funds, Merchant agrees to remit the amount owed directly to Motionsoft. Merchant agrees not to, directly or indirectly, prevent, block or otherwise preclude any debit by Motionsoft or Member to Merchant’s account which is permitted hereunder. Merchant represents and warrants that no one other than Merchant has any claim against such indebtedness except as authorized in writing by Member and Motionsoft. Merchant hereby assigns to Member and Motionsoft all of its right, title, and interest in and to all indebtedness submitted hereunder and agrees that Member and Motionsoft have the sole right to receive payment on any indebtedness purchased hereunder. Merchant acknowledges and agrees, notwithstanding anything set forth in this Agreement to the contrary, that each purchase of indebtedness under this Agreement is of such a nature that the price to be paid by the Member and Motionsoft cannot be equitably determined until the respective periods permitted for chargebacks, fees, fines, penalties and other adjustments to be assessed or implemented have all expired under this Agreement and/or the rules and regulations of the applicable card association or network organization. These chargebacks, fees, fines, penalties and other adjustments are an integral part of the purchase transaction, and the final price that is to be paid for such indebtedness by the Member and Motionsoft. To the extent that any chargeback, fee, penalty, fine or other adjustment is assessed or implemented, the Member and Motionsoft may exercise their right of recoupment with regard to the price provisionally paid for the respective indebtedness that was purchased. In the absence of this remedy, the Merchant acknowledges that it would be overpaid for the indebtedness purchased, and such overpayment shall be held in trust by the Merchant as the legal and equitable property of Motionsoft.

6. SUPPLIES/THIRD PARTY SERVICES.

Merchant agrees that it will not acquire any title, copyrights, or any other proprietary right to any advertising material; software; unused forms; and Merchant deposit plastic cards provided by Motionsoft in connection with this Agreement.  Merchant will indemnify Motionsoft against any loss arising out of damage to or destruction of any item of equipment for any cause whatsoever. Merchant also agrees to hold harmless and indemnify Motionsoft for any costs, expenses, and judgments Motionsoft may suffer, including reasonable attorney’s fees, as a result of Merchant’s use of any equipment. Merchant further agrees that it has no contractual relationship with any third party providing services under this Agreement and that Merchant is not a third party beneficiary of any agreement between Motionsoft to any other party. Notwithstanding the forgoing, Merchant confers on American Express, as applicable, the beneficiary rights, but not obligations, to the this Agreement and subsequent addendums and, as such, American Express has the express right to enforce the terms of the Agreement against Merchant.

7. FINANCIAL INFORMATION.

Merchant agrees to furnish Motionsoft such financial statements and information concerning Merchant, its owners, principals, partners, proprietors, and any direct or indirect owner with beneficial interest of 25% or more, or its affiliates as Motionsoft may from time to time request. Motionsoft, or its duly authorized representatives, may examine the books and records of Merchant, including records of all indebtedness previously purchased or presented for purchase. Merchant agrees to retain copies of all paper and electronic sales slips and credit slips submitted to Motionsoft for a period of two years from submission, or such longer period of time as may be required by the operating rules or regulations of the card associations or network organizations, by law, or by Motionsoft as specifically requested in writing in individual cases. Merchant agrees that Motionsoft, Member and anyone acting on Motionsoft behalf may seek injunctive relief with respect to Merchant’s failure to furnish financial or other information upon request.

8. CHANGE IN BUSINESS.

Merchant agrees to provide Motionsoft 60 days prior written notice of its intent to (a) transfer or sell any substantial part (10% or more) of its total stock, assets and/or to liquidate; or (b) change the basic nature of its business, or (c) convert all or part of the business to mail order sales, telephone order sales, or to other sales where the card is not present and swiped through Merchant’s terminal. Upon the occurrence of any such event, the terms of this Agreement may be modified to address issues arising there from, including but not limited to requirements of applicable card associations or network organizations.

9. TRANSFERABILITY.

This Agreement is not transferable by Merchant without the written consent of Motionsoft and Member. Any attempt by Merchant to assign its rights or to delegate its obligations in violation of this paragraph shall be void. Merchant agrees that the rights and obligations of Motionsoft hereunder may be transferred by Motionsoft without notice to Merchant. Merchant agrees that the rights and obligations of Member hereunder may be transferred to any other member without notice to Merchant. Merchant acknowledges that the transferable rights of Motionsoft hereunder shall include, but shall not be limited to, the authority and right to debit the Merchant’s account(s) as described herein. In the event that Merchant’s Estimated Annual Charge Volume becomes $1,000,000 USD or greater, Sponsored Merchant will become a direct Card-accepting merchant under the standard American Express acceptance program and cease to be a Merchant under Payment Service Provider.   As a direct Card-accepting merchant, Merchant will be bound by the then-current American Express Card acceptance agreement.

10. WARRANTIES AND REPRESENTATIONS.

Merchant warrants and represents to Motionsoft: (a) that each sales transaction delivered hereunder will represent a bona fide sale to a card holder by Merchant for the amount shown on the sales slip as the total sale and constitutes the binding obligation of the card holder, free from any claim, demand, defense, setoff or other adverse claim whatsoever; (b) that each sales slip or other evidence of indebtedness will accurately describe the goods and services which have been sold and delivered to the card holder or in accordance with his instructions; (c) that Merchant will comply fully with all federal, state and local laws, rules and regulations applicable to its business; (d) that Merchant will fulfill completely all of its obligations to the cardholder and will resolve any customer dispute or complaint directly with the card holder; (e) that the signature on the sales slip will be genuine and authorized by cardholder and not forged or unauthorized; (f) that the sales transaction shall have been consummated and the sales slip prepared in full compliance with the provisions of the Wells Fargo Merchant Services Program Guide and the operating regulations and rules of the applicable card association or network organization, as amended from time to time; (g) that none of the sales transactions submitted hereunder represent sales by telephone, or mail, or Internet, or where the card is not physically present at the Merchant’s location and swiped through Merchant’s terminal, unless Merchant is specifically authorized in writing by Motionsoft to submit such sales slips for purchase, (h) that none of the sales transactions submitted hereunder for purchase represent sales to any principal, partner, proprietor, or owner of Merchant, (i) that, without limiting the generality of the foregoing, each sales transaction submitted hereunder and the handling, retention, and storage of information related thereto, will comply with the rules and regulations of Visa, Mastercard, Discover and any other card association or network organization related to card holder and transaction information security, including without limitation Payment Card Industry (PCI) Data Security Standards, Visa’s Cardholder Information Security Program and Mastercard’s Site Data Protection Program, and (j) that all of the information contained in this Merchant Application and Service Agreement is true and correct. In the event that any of the foregoing warranties or representations is breached, the affected sales slips or other indebtedness may be refused, or prior acceptance revoked and charged back to the Merchant. Furthermore, if Merchant submits for purchase hereunder a sales transaction that is not the result of a sale of Merchant’s goods or services offered to the general public or if Merchant submits any sales transactions for purchase hereunder which represents a sale to any principal, partner, proprietor, or owner of Merchant, such sales transaction may be refused or charged back. Merchant must notify Motionsoft if Merchant elects to use the terminal service of American Express, or any other third party provider. If Merchant elects to use a third-party terminal provider, that provider becomes Merchant’s agent for the delivery of card transactions to Motionsoft via the applicable card processing network. Merchant agrees to assume full responsibility and liability for any failure of such agent to comply with the operating regulations and rules of the applicable card association or network organization, including without limitation any violation, which results in a chargeback to the Merchant. Merchant also agrees that the obligation hereunder to reimburse the Merchant for the value of the card transactions captured by an agent is limited to the value of the transactions (less applicable fees) received by the card processing network from the agent. NEITHER MEMBER, NOR MOTIONSOFT, NOR ANY SUPPLIER MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY TERMINAL, ANY EQUIPMENT FURNISHED IN CONNECTION THEREWITH, OR ANY OF THE SERVICES FURNISHED HEREUNDER.

11. INTERNAL REVENUE SERVICE (“IRS”) REPORTING

Merchant herby warrants and certifies that: (i) the taxpayer identification number (“TIN”) provided on the Merchant Application is Merchant’s true and correct TIN; (ii) Merchant is not subject to backup withholding because (a) Merchant is exempt from backup withholding, (b) Merchant has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Merchant that it is no longer subject to backup withholding, and (iii) Merchant is a citizen of the United States of America (“U.S.”) or other U.S. person. (For federal tax purposes, Merchant is considered a U.S. person if Merchant is: an individual who is a U.S. citizen, or U.S. resident alien, partnership, corporation, company or association created or organized in the United States or under the laws of the United States, and estate (other than a foreign estate), or a domestic trust (as defined in the Internal Revenue Code section 301.7701-7.)

12. INDEMNITY.

Merchant agrees to satisfy directly with the card holder any claim or complaint arising in connection with the card sale. Merchant agrees to indemnify and hold Motionsoft and/or Member harmless from and against any and all liabilities, losses, claims, damages, disputes, offsets, claims or counterclaims made by a cardholder or any other person or entity with regard to indebtedness sold by Merchant hereunder or any other Service provided hereunder.

13. LIMITATION OF LIABILITY.

Motionsoft shall be liable for failure to provide the Services if such failure is due to any cause or condition beyond such party’s reasonable control. Such causes or conditions shall include, but shall not be limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, communication failures, unavoidable delays, or other similar causes beyond such party’s control. The liability of Motionsoft for any loss hereunder, including but not limited to damages arising out of failure of equipment to operate, the unavailability or malfunction of the Services, personal injury, or property damage, shall, in the aggregate, be limited to actual, direct, and general money damages in an amount not to exceed one (1) month’s average charge paid by Merchant hereunder (exclusive of interchange fees, assessments, and any other fees or costs that are imposed by a third party in connection with Merchant’s payment processing) for Services during the previous twelve (12) months or such lesser number of months as shall have elapsed subsequent to the effective date of this Agreement. This shall be the extent of Motionsoft’s and Member’s liability in the event of any alleged default by Motionsoft or Member arising out of or relating in any way to this Agreement, including alleged acts of negligence, breach of contract, or otherwise and regardless of the form in which any legal or equitable action may be brought against Motionsoft or Member, whether contract, tort or otherwise, and the foregoing shall constitute Merchant’s exclusive remedy. Under no circumstances shall Motionsoft be liable for any lost profits, lost interest, or for special, consequential, punitive or exemplary damages, including but not limited to, damages arising out of placement of a Merchant’s name on any terminated merchant list for any reason, even if Motionsoft has been advised of the possibility of such damages. It is agreed that in no event will Motionsoft or Member be liable for any claim, loss, billing error, damage, or expense caused by Motionsoft’s or Member’s performance or failure to perform hereunder which is not reported in writing to Motionsoft by Merchant within 60 days of such failure to perform or, in the event of a billing error, within 90 days of the date of the invoice or applicable statement. Merchant expressly waives any such claim that is not brought within the time periods stated herein. MERCHANT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS AFFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO MERCHANT FOR ANY DAMAGES, LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.

14. TERM AND TERMINATION.

This Agreement shall remain in full force and effect for an initial and successive terms as defined in the Agreement.   Notwithstanding anything to the contrary set forth herein, in the event Merchant terminates the Agreement in breach of this Section, all monthly fees assessed to Merchant under the Agreement and due to Motionsoft for the remainder of the then existing term of the Agreement, including all minimum monthly fee commitments, shall be immediately due and payable to Motionsoft, and Merchant hereby authorizes Motionsoft to deduct the greater of (a) $295 and (b) all remaining monthly fees (provided in no event shall either such amount exceed the maximum amount permitted by applicable state law) from Merchant’s account referenced in Section 5, or to otherwise withhold the total amount from amounts due to Merchant from Motionsoft, immediately on or after the effective date of termination. If the Merchant’s account does not contain sufficient funds for the debit or the amount cannot be withheld by Motionsoft from amounts due to Merchant, Merchant shall pay Motionsoft the amount due within ten (10) days of the date of Motionsoft’s invoice for same. The payment of accelerated monthly fees as described here is not a penalty, but rather is hereby agreed by the parties to be a reasonable amount of liquidated damages to compensate Motionsoft for its termination expenses and all other damages under the circumstances in which such amounts would be payable. Such amounts shall not be in lieu of but in addition to any payment obligations for Services already provided hereunder (or that Motionsoft may continue to provide), which shall be an additional cost, and any and all other damages to which Motionsoft may be entitled hereunder. Notwithstanding the foregoing, Motionsoft or Member may terminate this Agreement or any portion thereof upon written notice to Merchant. Furthermore, Motionsoft or Member may terminate this Agreement at any time without notice upon Merchant’s default in performing under any provision of this Agreement, upon an unauthorized conversion of all or any part of Merchant’s activity to mail order, telephone order, or to any activity where the card is not physically present and swiped through the Merchant’s terminal, or any operating regulation or rule of a card association or network organization, upon any misrepresentation by Merchant, upon commencement of bankruptcy or insolvency proceedings by or against the Merchant, or in the event Motionsoft reasonably deems itself insecure in continuing this Agreement. In the event that Motionsoft breach the terms and conditions hereof, the Merchant may, at its option, give written notice to Motionsoft of its intention to terminate this Agreement unless such breach is remedied within 30 days of such notice. Failure to remedy such a breach shall make this Agreement terminable, at the option of the Merchant, at the end of such 30 day period unless notification is withdrawn. Any Merchant deposit of sales or credit slips that is accepted by Motionsoft or by a designated depository after the effective date of termination will be returned to Merchant and will not be credited (or debited) to its account(s). If the deposit has already been posted to Merchant’s account(s), said posting will be reversed and the deposit returned to Merchant. Termination of this Agreement shall not affect Merchant’s obligations which have accrued prior to termination or which relate to any indebtedness purchased hereunder prior to termination, including but not limited to charge backs even if such charge backs come in after termination.

15. RETURNED ITEMS/CHARGEBACKS.

If a card holder disputes any transaction, if a transaction is charged back for any reason by the card issuing institution, or if Motionsoft, the cardholder, or Member has any reason to believe an indebtedness previously purchased is questionable, not genuine, or is otherwise unacceptable, the amount of such indebtedness may be charged back and deducted from any payment due to Merchant or may be charged against any of Merchant’s accounts or the Reserve Account (as defined below). Merchant acknowledges and agrees that it is bound by the rules of the card associations and network organizations with respect to any chargeback. Merchant further acknowledges that it is solely responsible for providing Motionsoft with any available information to re-present a chargeback and that, regardless of any information it provides or does not provide Motionsoft in connection with a chargeback, or any other reason, Merchant shall be solely responsible for the liability related to such chargeback If any such amount is uncollectible through withholding from any payments due hereunder or through charging Merchant’s accounts or the Reserve Account, Merchant shall, upon demand by Motionsoft, pay Motionsoft the full amount of the charge back. Merchant understands that obtaining an authorization for any sale shall not constitute a guarantee of payment, and such sales slips can be returned or charged back to Merchant like any other item hereunder.

16. DEFAULT/SECURITY INTEREST.

Upon failure by Merchant to meet any of its obligations under this Agreement (including funding the Reserve Account), any of the accounts referred to in Section 5 or any other accounts belonging to Merchant or Merchant’s guarantor held by any designated depository (or by any other financial institution) may be debited without notice to Merchant, and Merchant and Merchant’s guarantor gives Member and Motionsoft a security interest in all such accounts for these purposes. The scope of the security interest, and Merchant’s and Merchant’s guarantor’s instructions to its financial institutions to accept withdrawal requests from Motionsoft, and Merchant’s agreement to hold such institutions harmless and to indemnify them are described above in Section 15. Merchant also agrees that, in the event of a default by Merchant, and in furtherance of its rights under Section 5 above and otherwise, Motionsoft has a right of setoff and may apply any of Merchant’s deposit balances or any other monies due Merchant towards the payment of amounts due from Merchant under the terms of this Agreement. The rights stated herein are in addition to any other rights Motionsoft may have under applicable law.

17. AMENDMENTS.

This Agreement may be amended only in writing signed by Motionsoft, and Merchant, except that (a)  fees, charges, and/or discounts (including without limitations non-qualified surcharge rates) may be changed immediately, or (b) Motionsoft may mail or email Merchant either a notice describing amendments to this Agreement or an entirely new agreement, which amendments or new agreement will be binding upon Merchant if it deposits sales or credit slips after the effective date of such amendment or new agreement set forth in Motionsoft’s notice.

18. WAIVER.

No provision of this Agreement shall be deemed waived by any party unless such waiver is in writing and signed by the party against whom enforcement is sought. No failure to exercise, and no delay in exercising on the part of any party hereto, any right, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any right, power, or privilege.

19. EXCHANGE OF INFORMATION.

Merchant authorizes Motionsoft to order a credit report on Merchant or any owner, officer, shareholder, partner, proprietor, managing agent or guarantor of Merchant. Merchant hereby authorizes Member or any depository institution to release any financial information concerning Merchant or its accounts to Motionsoft. Subsequent credit reports may be ordered in connection with updating, renewing or continuing this Agreement. Upon the written request of any individual who is the subject of a consumer credit report, Motionsoft will provide the name and address of the consumer credit reporting agency furnishing such report, if any. Motionsoft may exchange information about Merchant, Merchant’s owners, principals, partners, proprietors, officers, shareholders, managing agents and guarantors with Member, other financial institutions and credit card associations, network organizations and any other party. Merchant hereby authorizes Motionsoft to disclose information concerning Merchant’s activity to any card association, network organizations, or any of their member financial institutions, or any other party without any liability whatsoever to Merchant.

20. GENERAL.

If any provision of this Agreement or portion thereof is held to be unenforceable, such a determination will not affect the remainder of this Agreement. Paragraph headings are included for convenience only and are not to be used in interpreting this Agreement.

21. NOTICES.

All notices required by this Agreement shall be in writing and shall be sent by email telefax, by overnight carrier, or by regular or certified mail. All notices sent to Motionsoft shall be effective upon actual receipt. Any notices sent to Merchant shall be effective upon the earlier of actual receipt or upon sending such notice to the address provided by Merchant in the Merchant Application. The parties hereto may change the name and address of the person to whom all notices or other documents required under this Agreement must be sent at any time by giving written notice to the other party.

22. CHOICE OF LAW/ATTORNEY’S FEES/VENUE/JURY TRIAL WAIVER.

Should it be necessary for Motionsoft or Member to defend or enforce any of its rights under this Agreement in any collection or legal action, Merchant agrees to reimburse Motionsoft and/or Member, as applicable, for all costs and expenses, including reasonable attorney’s fees, as a result of such collection or legal action. Without limiting the generality of the foregoing, Merchant agrees to reimburse Motionsoft and/or Member, as applicable, for all costs and expenses, including reasonable attorney’s fees, incurred by Motionsoft and/or Member in enforcing or defending its rights under this Section 24, without regard to whether there has been an adjudication on the merits in any such action. Merchant waives trial by jury with respect to any litigation arising out of or relating to this Agreement. Motionsoft, Member, and Merchant agree that any and all disputes or controversies of any nature whatsoever (whether in contract, tort or otherwise) arising out, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement, shall be governed by the laws of the State of Maryland, notwithstanding any conflicts of laws rules, and shall be resolved, on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties. Motionsoft, Member, and Merchant agree that all actions arising out, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation or enforceability of the choice of law and venue provision of this Agreement shall be brought in either the courts of the State of Maryland and expressly agree to the exclusive jurisdiction of such courts.

23. EFFECTIVE DATE

This Agreement shall become effective only upon acceptance by Motionsoft, or upon delivery of indebtedness at such locations as designated by Motionsoft for purchase, whichever event shall first occur.

24. DESIGNATION OF DEPOSITORY.

The financial institution set forth in the Merchant Application is designated by Merchant as a depository institution (“Depository”) for its credit card indebtedness. Such financial institution must be a member of an Automated Clearing House Association. Merchant authorizes payment for indebtedness purchased hereunder to be made by paying Depository therefore with instructions to credit Merchant’s accounts. Depository, Member, and/or Motionsoft may charge any of Merchant’s accounts at Depository for any amount due under this Agreement. Motionsoft must approve in writing any proposed changes to the account numbers or to the Depository. Merchant hereby authorizes Depository to release any and all account information to Motionsoft or anyone acting on Motionsoft’s behalf as Motionsoft may request without any further authorization, approval or notice from or to Merchant.

25. FINANCIAL ACCOMMODATION.

The acquisition and processing of sales slips hereunder is a financial accommodation and, as such, in the event Merchant becomes a debtor in bankruptcy, this Agreement cannot be assumed or enforced, and Motionsoft shall be excused from performance hereunder.

26. DISCOVER PROGRAM MARKS

Merchant is provided a limited non-exclusive, non-transferable license to use Discover brands, emblems, trademarks, and/or logos that identify Discover cards (“Discover Program Marks”). Merchant is prohibited from using the Discover Program Marks other than is expressly authorized. Merchant shall not use the Discover Program Marks other than to display decals, signage, advertising and other forms depicting the Discover Program Marks that are provided to Merchant by Motionsoft pursuant to this Agreement or otherwise approved in advance in writing by Motionsoft. Merchant may use the Discover Program Marks only to promote the services covered by the Discover Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that all such uses by Merchant must be approved in advance by Motionsoft in writing. Merchant shall not use the Discover Program Marks in such a way that customers could believe that the products or services offered by Merchant are sponsored or guaranteed by the owners of the Discover Program Marks. Merchant recognizes that it has no ownership rights in the Discover Program Marks.

27. MID & NON-QUALIFIED SURCHARGES/CROSS-BORDER FEES

Merchant pricing appears in the Card Services Fee Schedule of the Merchant Application. Some MID or non-qualified surcharges occur on specific types of cards (including without limitation Visa Rewards Card, Visa Signature Card, Visa Signature Preferred Card, Visa Infinite Card, Mastercard Rewards Card. Mastercard World Card, Mastercard World Elite Card and “foreign” cards issued outside the United States), if the merchant accepts credit cards. Unless your Card Services Fee Schedule specifically addresses commercial cards (i.e., Business Cards, Corporate Cards, Fleet Cards, GSA Cards, Purchase Cards), you will be billed back for the higher cost of acceptance of commercial cards; this is also unavoidable based on the card association requirement to accept all types of credit cards, if the merchant accepts credit cards, unless you are primarily a business-to-business supplier with corresponding pricing based on acceptance of commercial cards.

28. ADDRESSES AND CONTACTS FOR WELLS FARGO MERCHANT SERVICES

Motionsoft (“Motionsoft”) provides card processing services to Merchant under its Wholesale ISO Service Agreement with Wells Fargo Bank, N.A.  Wells Fargo Bank, N.A. is a member of Visa USA, Inc. (“Visa”) and Mastercard International, Inc. (“Mastercard”). Motionsoft is a member service provider of Visa, a member service provider of Mastercard, and a registered acquirer for Discover Financial Services LLC (“Discover”).  Day to day support is provided by Motionsoft Customer Support; however, Merchants are never discouraged from escalating any concerns to Wells Fargo Bank, N.A. Contact information is provided below: