TRICE ORIGINATION AGREEMENT

UPDATED: 10-13-2023

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This agreement is made between: Trice Inc. and the entity or sole proprietor (the “Customer”) on whose behalf a Trice account (“Trice Account”) is created.  This Agreement is effective upon the date you first access or use the Services (“Effective Date”) and continues until you or Trice terminates it (this period, the “Term”).

Customer wishes to initiate credit and/or debit (Request for Payment) Instructions through Customer’s accounts maintained at Customer’s depository financial institution and other financial institutions by means of the Real Time Payments Network and the FedNow Payments Network (collectively “RTP”) pursuant to the terms of this Agreement and the rules of the The Clearing House (“TCH”) and The Federal Reserve Bank (“FED”) and Trice’s operating rules and procedures for electronic instructions, including any exhibits or appendices thereto now in effect, or as may be amended from time to time, (the "Rules"), and Trice is willing to act as Third-Party Sender with respect to such Instructions.  This Agreement sets forth the terms and conditions pursuant to which Trice will provide to Customer the RTP Services outlined herein (“Services”).  Customer hereby requests Trice to provide the Service described in this Agreement.  By executing this Agreement and/or using the Services described in this Agreement, Customer accepts and agrees to all terms, conditions, and provisions of this Agreement and agrees that this Agreement sets forth the terms and conditions pursuant to which Trice will provide to Customer the Service outlined herein. Terms not otherwise defined in this Agreement shall have the meaning ascribed to those terms in the Rules.  The term "Instruction" shall have the meaning provided in the Rules and shall also mean the data received from Customer hereunder from which Trice initiates each Instruction.

Therefore, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Trice and Customer, intending to be legally bound, do hereby agree as follows:

AGREEMENT

1. COMPLIANCE WITH RULES AND LAWS.  Customer acknowledges it has a copy or has access to a copy of the Rules.  The Rules may also be available online at www.theclearinghouse.org under the RTP document library section.  Customer agrees to comply with and be subject to all Rules of TCH in existence at the date of this Agreement, and any amendments to these Rules made from time to time.  It shall be the sole responsibility of the Customer that the origination of RTP transactions complies with all applicable state and federal U.S. laws, including but is not limited to, sanctions enforced by the Office of Foreign Assets Control (“OFAC”).  It shall further be the sole responsibility of the Customer to obtain information regarding such OFAC enforced sanctions.  (This information may be obtained directly from the OFAC Compliance Hotline at 800-540-OFAC or from the OFAC’s home page site at www.ustreas.gov/ofac.)  Customer agrees that the performance of any action by Trice to debit or credit an account or transfer funds otherwise required by the Rules is excused from the performance of such action to the extent that the action is inconsistent with state or federal law, including the obligations of Trice under OFAC or any program administered by the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”).  Customer agrees generally and warrants to Trice that all actions by Customer contemplated by this Agreement, including the preparation, transmittal, and settlement of Instructions and payment orders, shall comply in all material respects with all applicable state and federal laws, regulations, regulatory guidelines and guidance, and official commentaries, including without limitation all such regulations, guidelines, and commentaries issued by the Board of Governors of the Federal Reserve and the Federal Financial Institutions Examination Council (“FFIEC”).  Trice will charge the Customer with any fines or penalties imposed by OFAC, TCH, FED or any organization which are incurred as a result of non-compliance by the Customer and the Customer agrees to fully reimburse and/or indemnify Trice for such charges or fines.   The specific duties of the Customer provided in the following paragraphs of this Agreement in no way limit the foregoing undertaking.  The duties of the Customer set forth in the following paragraphs of this Agreement in no way limit the requirement of complying with the Rules.

2. AUTHORIZATION.  Customer authorizes Trice and Trice’s ODFI to Originate Instructions on behalf of Customer to Receiver’s accounts

3. UNDERWRITING.  Customer approval for use of this Service may be subject to underwriting criteria established by Trice from time to time.  If Trice requires application of underwriting criteria to Customer approval for use of this Service, Trice will communicate to Customer the nature and content of that criteria and the information Customer will be required to provide to Trice.  Customer agrees to provide Trice such financial, business, and operating information as Trice may reasonably request in connection with Trice’s underwriting and approval process.  

4. SECURITY INTEREST.  To secure the payment and performance of Customer’s obligations set forth herein, Customer grants to Trice a security interest in and pledges and assigns to Trice all of Customer’s right, title, and interest in the following described property, whether now owned or hereafter existing or acquired and wherever located:  (a) all monies, instruments, savings, checking and other accounts of Customer (excluding IRA, Keogh, trust accounts and other accounts subject to tax penalties if so assigned) that are now or in the future in Trice’s custody or control; (b) any other collateral described in any security instrument securing the obligations of Customer to Trice under this Agreement or any other obligation of Customer to Trice; and (c) all proceeds and products of the property as well as any replacements, accessions, substitutions, and additions to any of the above.

5. Designation of Administrator.  In order to originate RTP Instructions, Customer must designate at least one Administrator.  Administrator(s) shall be responsible for designating “Users” who Customer authorizes to issue Instructions on its behalf.  For the purposes of this Agreement, the term User shall also include the Administrator.   Customer agrees that any such online Instructions shall comply with Trice’s Security Procedures, which are subject to change without notice to Customer.  

6. TRANSMISSION OF INSTRUCTIONS BY CUSTOMER.  User(s) shall initiate the debit or credit Instructions in Schedule A hereunder on behalf of and selected by Customer and approved by Trice.  Trice shall be entitled to deem any person having knowledge of any Security Procedure, defined below in Section 8 of this Agreement, and required to initiate Instructions under this Agreement, to be a User.  User(s) shall transmit Instructions to Trice via the Trice portal or API’s.  The dollar amount of Instructions transmitted by Customer to Trice on shall not exceed the RTP Processing Limit(s) set forth in Schedule D or as subsequently requested by Customer and approved in writing by Trice.  Customer may not reinitiate Instructions except as prescribed by the Rules.

CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS Trice for any losses, damages, fines, assessments, costs and expenses incurred by Customer arising from any suspended or unprocessed Over Limit Instructions or any In-Process Instructions that may be suspended PURSUANT to this Section.

7. THIRD-PARTY SERVICE PROVIDERS. Customer may be using special equipment, services or software provided by a third-party to assist it in processing Instructions hereunder (“Service Provider”).  Customer (a) agrees that Service Provider is acting as Customer’s agent in the delivery of Instructions to Trice, and (b) agrees to assume full responsibility and liability for any failure of Service Provider to comply with state and federal, the Rules, and this Agreement.  Trice will not be liable for any losses or additional costs incurred by Customer as a result of any error by Service Provider or a malfunction of equipment provided by Service Provider.  Customer is solely responsible for maintaining compliance with the requirements of Service Provider, including obtaining any software updates.  Trice’s sole responsibility shall be to transmit Trice approved transactions to Trice’s ODFI and Trice shall not have any responsibility for any Instruction handled by Service Provider until that point in time when Trice accepts and approves a Instruction from such Service Provider for processing.  If Trice authorizes Customer to use a Service Provider, the terms and conditions governing the relationship between Customer and the Service Provider shall be governed by a separate agreement between Customer and Service Provider (“Service Provider Agreement”).  All of Customer’s obligations and responsibilities under this Agreement will apply to the Service Provider, and Customer’s separate agreement with the Service Provider must so provide.  At Trice’s request, Customer will provide to Trice a true and exact copy of such agreement.  Customer shall designate the Service Provider as a User and the Service Provider must also enter into a Service Provider Agreement with Customer before the Service Provider sends Instructions to Trice.  Notwithstanding the foregoing, Customer hereby authorizes Trice to accept any Instruction submitted by the Service Provider even if the Service Provider has not been designated as a User or if the Third-Party Service Provider has not executed the Service Provider agreement.  Customer hereby indemnifies and holds Trice harmless for any losses, damages, fines, assessments, costs, and expenses incurred or suffered by Trice or any other person as a result of or arising from Customer’s use of Service Provider, including fines or assessments incurred under or pursuant to the Rules and attorneys' fees.

If Customer is an active party to the Trice Services Aggregated Account Agreement, the Trice Account that is created on behalf of the Customer is an aggregated account (“Aggregated Account”) to any Service Provider that is an active party to the Trice Aggregator Agreement and has onboarded the Customer to their Service Provider Platform.

8. SECURITY PROCEDURES.

(a) The Customer shall comply with the “Security Procedures” described in Schedule C attached hereto and made a part hereof, and Customer acknowledges and agrees that the Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with a Security Procedure (“Security Devices”) used in connection therewith, constitute commercially reasonable security procedures under applicable law for the initiation of RTP Instructions.  Customer authorizes Trice to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until Customer has notified Trice, according to notification procedures prescribed by Trice, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than User(s) and until Trice has had a reasonable opportunity to act upon such notice. Customer agrees that the initiation of a transaction using applicable Security Procedures constitutes sufficient authorization for Trice to execute such transaction and Customer agrees and intends that the submission of transaction orders and instructions using the Security Procedures shall be considered the same as Customer’s written signature in authorizing Trice to execute such transaction.  Customer acknowledges and agrees that Customer shall be bound by any and all Instructions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by User(s), to the fullest extent allowed by law.  Customer further acknowledges and agrees that the Security Procedures are not designed to detect error in the transmission or content of communications or Instructions initiated by Customer and that Customer bears the sole responsibility for detecting and preventing such error.  

(b) Customer agrees to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to User(s).  Customer agrees to instruct each User not to disclose or provide any Security Procedures or Security Devices to any unauthorized person.  Trice shall distribute Security Devices to the Administrator and Trice shall otherwise communicate with the Administrator regarding Security Procedures.  Customer’s Administrator shall have responsibility to distribute Security Devices to User(s) and to ensure the proper implementation and use of the Security Procedures by User(s).  Where Customer has the ability to change or modify a Security Device from time to time (e.g., a password or PIN), Customer agrees to change Security Devices frequently in order to ensure the security of the Security Device.  Customer agrees to notify Trice immediately, according to notification procedures prescribed by Trice, if Customer believes that any Security Procedures or Security Device has been stolen, compromised, or otherwise become known to persons other than User(s) or if Customer believes that any RTP transaction or activity is unauthorized or in error.  In the event of any actual or threatened breach of security, Trice may issue Customer a new Security Device or establish new Security Procedures as soon as reasonably practicable, but Trice shall not be liable to Customer or any third-party for any delay in taking such actions.

(c) Customer agrees to notify Trice immediately, according to notification procedures prescribed by Trice, if the authority of any Administrator(s) shall change or be revoked.  Customer shall recover and return to Trice any Security Devices in the possession of any User(s) whose authority to have the Security Device has been revoked.  

(d) Trice reserves the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Device, at any time and from time to time in Trice’s discretion.  Trice will endeavor to give Customer reasonable notice of any change in Security Procedures; provided that Trice may make any change in Security Procedures without advance notice to Customer if Trice, in its judgment and discretion, believes such change to be necessary or desirable to protect the security of Trice’s systems and assets.  Customer’s implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute Customer’s agreement to the change and Customer’s agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.

9. PHYSICAL AND ELECTRONIC SECURITY.  

(a) Customer is solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in Customer’s possession or under Customer’s control.  Without limiting the generality of the foregoing, Customer specifically acknowledges and agrees that as part of the foregoing obligation Customer shall comply with the provisions within Article One of the Rules, entitled “Security Requirements,” for the safeguarding of Protected Information, as that term is defined in the Rules.  Trice is not responsible for any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” and/or “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system or any RTP Origination services.  Any material downloaded or otherwise obtained is obtained at Customer’s own discretion and risk, and Trice is not responsible for any damage to Customer’s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise.  Customer is solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to Customer’s operating systems, and for protecting, securing, and backing up any data and information stored in or on Customer’s operating systems.   Trice is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Customer’s operating systems or accessed through an Internet connection.

(b) Customer acknowledges and agrees that it is Customer’s responsibility to protect itself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”).  Customer agrees to educate User(s), agents, and employees as to the risks of such fraud and to train such persons to avoid such risks.  Customer acknowledges that Trice will never contact Customer by e-mail in order to ask for or to verify account numbers, Security Devices, or any sensitive or confidential information.  In the event Customer receives an e-mail or other electronic communication that Customer believes, or has reason to believe, is fraudulent, Customer agrees that neither Customer nor its User(s), agents, and employees shall respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail.  Customer agrees that Trice is not responsible for any losses, injuries, or harm incurred by Customer as a result of any electronic, e-mail, or Internet fraud.

(c) In the event of a breach of the Security Procedure, Customer agrees to assist Trice in determining the manner and source of the breach.  Such assistance shall include, but shall not be limited to, providing Trice or Trice’s agent access to Customer’s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure.  Customer further agrees to provide to Trice any analysis of such equipment, device, or software or any report of such analysis performed by Customer, Customer’s agents, law enforcement agencies, or any other third-party.  Failure of Customer to assist Trice shall be an admission by Customer that the breach of the Security Procedure was caused by a person who obtained access to transmitting facilities of Customer or who obtained information facilitating the breach of the Security Procedure from Customer and not from a source controlled by Trice.

(d) CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS Trice for any losses, damages, fines, assessments, costs and expenses incurred by Customer, arising from any breach of physical or electronic security under customer's control, whether OCCURRING due to any computer virus, malware, spyware, email scheme, or any other related ELECTRONIC breach of the security systems.

10. RECORDING AND USE OF COMMUNICATIONS.  Customer and Trice agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement may be electronically recorded and retained by either party by use of any reasonable means.  Trice shall not be obligated to make such recordings.

11. Processing, Transmittal, and Settlement By TRICE.  Except as otherwise provided for in this Agreement and if Trice elects to accept Instructions, Trice shall: (i) use commercially reasonable efforts to comply with the instructions of Customer, (ii) process Instructions received from Customer, (iii) transmit such Instructions to Trice’s ODFI, and (iv) settle for such Instructions.

12. PAYMENT FOR CREDIT INSTRUCTIONS AND RETURNED DEBIT INSTRUCTIONS.  Customer agrees to pay for all credit Instructions issued by Customer, User(s), or credit Instructions otherwise made effective against Customer.  Customer shall make payment to Trice on the date as determined by Trice in its sole discretion (“Payment Date”).  Customer shall pay Trice for the amount of each debit Instruction returned by a Receiving Depository Financial Institution (“RDFI”) or debit Instruction dishonored by Trice or Trice’s ODFI.  Payment shall be made by Customer to Trice in any manner specified by Trice.  Notwithstanding the foregoing, Trice is hereby authorized to debit the account(s) ("Authorized Account(s)") designated in Merchant Application, as payment for all payments due Trice under this Agreement.  Customer shall maintain sufficient collected funds in the Authorized Account(s) to pay for all payments due Trice under this Agreement on the Payment Date.   In the event a debit Instruction is returned for any reason from the Authorized Account and Customer does not immediately wire into Trice’s account the amount of the returned debit Instruction, Trice may take any of the following actions:

(a) Refuse to process all Instructions Transmitted to Trice after receipt of the returned debit Instruction, in which event Trice shall return the data relating to such Instructions to Customer, whereupon Trice shall have no liability to Customer or to any third-party as a result thereof; or

(b) Refuse to process all credit Instructions Transmitted to Trice after receipt of the returned debit Instruction, and withhold from Customer’s credit settlement the amount of returned debit Instruction, in which event Trice shall return the data relating to such credit Instructions to Customer, whereupon Trice shall have no liability to Customer or to any third-party as a result thereof; or

13. PRE-FUNDING.  Trice reserves the right to require Customer to pre-fund a Trice Account maintained at Trice prior to the Settlement Date of the RTP Instruction.  Trice shall determine whether pre-funding is required based on criteria established from time to time by Trice.  Trice will communicate directly to Customer if pre-funding is required and, if requested by Customer, will provide Customer with an explanation of its pre-funding criteria.  If it is determined that pre-funding is required, Customer will provide immediately available and collected funds sufficient to pay all Instructions initiated by Customer (a) via ACH credit not later than 8:00 a.m. local time 3 banking days before each Settlement Date OR (b) via wire transfer not later than 8:00 a.m. local time 1 banking days before each Settlement Date, and (c) prior to initiating any Instructions for which pre-funding is required.

14. RESERVES.  

(a) From time to time, Trice shall evaluate Customer's transaction activity for the purpose of establishing averages for transaction frequency, amount, returns and adjustments.  These evaluations will occur at least annually and may occur more frequently at Trice’s discretion.  In connection with these evaluations, Trice reserves the right to require Customer to establish reserves with Trice calculated by Trice to cover Customer's obligations to Trice arising from RTP activities under this Agreement ("Reserves").  Reserves may be expressed as a fixed dollar amount or as a "rolling reserve" calculated based on "rolling" averages determined by Trice’s periodic evaluations.  The amount of reserves required by Trice, if any, will be communicated directly to Customer from time to time.  Customer agrees to establish reserves as required by Trice within 1 Banking Day after receipt of a communication from Trice setting forth the amount of required reserves and the basis of calculation used to determine the amount of reserves.  Trice may suspend RTP processing activity for Customer if Customer fails to establish the required amount of reserves within the time period specified by Trice in its communication to Customer.

(b) Trice is hereby authorized to charge the Reserves as payment for all payments due Trice under this Agreement.

15. Rejection of Instructions.  Customer agrees that Trice has no obligation to accept Instructions and therefore may reject any Instruction issued by Customer.  Trice shall notify Customer of the rejection of an Instruction within two (2) Banking Days.  Trice shall have no liability to Customer for rejection of an Instruction and shall not be liable to pay interest to Customer even if the amount of Customer's payment order is fully covered by a withdrawable credit balance in an Authorized Account of Customer or Trice has otherwise received full payment from Customer.  Customer hereby indemnifies Trice from and against any and all resulting claims, demands, losses, liabilities, or expenses, including attorneys’ fees and costs, resulting directly or indirectly from financial institution's rejection of an entry.‍

16. Cancellation or Amendment by Customer.  Customer shall have no right to cancel or amend any Instruction after its receipt by Trice.  However, Trice may, at its option, accept a cancellation or amendment by Customer.  If Trice accepts a cancellation or amendment of an Instruction, Customer must comply with the Security Procedures provided in Section 8 of this Agreement.  If such a request is received by Trice before the affected Instruction has been transmitted to the respective RTP networks, Trice will use reasonable efforts to cancel or amend the Instruction as requested, but Trice shall have no liability if the cancellation or amendment is not effected.   If Trice accepts a cancellation or amendment of an Instruction, Customer hereby agrees to indemnify, defend all claims and hold Trice harmless from any loss, damages, or expenses, including but not limited to attorney's fees, incurred by Trice as the result of its acceptance of the cancellation or amendment.‍

17. Reversals of Instructions.‍

(a) General Procedure.  Upon proper and timely request by the Customer, Trice will use reasonable efforts to effect a reversal of an Instruction.  To be "proper and timely," the request must (i) be made within five (5) Business Days of the Effective Instruction Date for the Instruction or File to be reversed; (ii) be made immediately, not to exceed ten (10) hours, upon discovery of the error; and (iii) be accompanied by a Reversal/Cancellation Request form and comply with all of the Rules. In addition, if the Customer requests reversal of a Debit Instruction, it shall concurrently deposit into the Trice Account an amount equal to that Instruction or File.  The Customer must make a reasonable attempt to notify the Receiver of any reversing Instruction initiated to correct any Instruction it has initiated in error.  The notification to the Receiver must include the reason for the reversal and be made no later than the Settlement Date of the reversing Instruction.

(b)   No Liability: Reimbursement to Trice.  Under no circumstances shall Trice be liable for interest or related losses if the requested reversal of an Instruction is not effected.  The Customer shall reimburse Trice for any expenses, losses, or damages it incurs in effecting or attempting to effect the Customer's request for reversal of an Instruction.‍

18. ERROR DETECTION.  Trice has no obligation to discover and shall not be liable to Customer for errors made by Customer, including but not limited to errors made in identifying the Receiver, or an Intermediary or RDFI or for errors in the amount of an Instruction or for errors in Settlement Dates.  Trice shall likewise have no duty to discover and shall not be liable for duplicate Instructions issued by Customer.  Notwithstanding the foregoing, if the Customer discovers that any Instruction it has initiated was in error, it shall notify Trice of such error.  In the event that Customer makes an error or issues a duplicate Instruction, Customer shall indemnify, defend all claims, and hold Trice harmless from any loss, damages, or expenses, including but not limited to attorney's fees, incurred by Trice as result of the error or issuance of duplicate Instructions.‍

19. Prohibited Transactions.  Customer agrees not to use or attempt to use the Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, notwithstanding, (b) to breach any contract or agreement by which Customer is bound, (c) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement, see Schedule F for a list of prohibited and restricted activity.  Customer acknowledges and agrees that Trice has no obligation to monitor Customer’s use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Trice reserves the right to decline to execute any transaction or activity that Trice believes violates the terms of this Agreement.‍

20. Account Reconciliation.  The Customer agrees to notify Trice promptly of any discrepancy between the Customer’s records and the information shown on Customer’s periodic statement received from Customer’s financial institution.  If the Customer fails to notify Trice within ten (10) calendar days of receipt of a periodic statement containing such information; the Customer agrees that Trice shall not be liable for any other losses resulting from the Customer’s failure to give such notice or any loss of interest or any interest equivalent with respect to any Instruction shown on such periodic statement.  If the Customer fails to notify Trice within thirty (30) calendar days of receipt of such periodic statement, the Customer shall be precluded from asserting any discrepancy against Trice.‍

21. CUSTOMER REPRESENTATIONS AND WARRANTIES; INDEMNITY.  With respect to each and every Instruction transmitted by Customer, Customer represents and warrants to Trice and agrees that (a) each person or entity shown as the Receiver on an Instruction received by Trice from Customer has authorized the initiation of such Instruction and the crediting or debiting of its Trice Account in the amount and on the Effective Instruction Date shown on such Instruction, (b) such authorization is operative at the time of transmittal for crediting or debiting by Trice as provided herein, (c) Instructions transmitted to Trice by Customer are limited to those types of credit and debit Instructions set forth in Schedule A, (d) Customer shall perform its obligations under this Agreement in accordance with all applicable state and federal laws, with the exception of federal laws related to marijuana, regulations, and orders, including, but not limited to, the sanctions laws, regulations, and orders administered by OFAC; laws, regulations, and orders administered FinCEN; and any state laws, regulations, or orders applicable to the providers of RTP payment services,  (e) Customer shall be bound by and comply with the provision of the Rules (among other provisions of the Rules) making payment of an Instruction by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Instruction, and (f) Customer shall ensure that any and all non-public personal information provided by Customer to Trice shall be secure and will not be disclosed to any unauthorized person.  Customer specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Customer shall not be deemed to have paid the Receiver the amount of the Instruction.  The Customer shall defend, indemnify, and hold harmless Trice, and its officers, directors, agents, and employees, from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney's fees and expenses, resulting from or arising out of (aa) any breach of any of the agreements, representations or warranties of the Customer contained in this Agreement; or (bb) any act or omission of the Customer or any other person acting on the Customer's behalf.  ‍

22. Financial Information and Audit.  Trice or Trice’s ODFI shall have the right to audit the Customer's records and procedures for compliance with this Agreement, and all applicable Rules and state and/or federal law.  Trice may from time to time request reasonable information from Customer in order to evaluate a continuation of the Service to be provided by Trice hereunder and/or adjustment of any limits set by this Agreement.  Customer agrees to provide the requested financial information promptly upon request by Trice, in the form required by Trice.  Customer authorizes Trice to investigate or reinvestigate at any time any information provided by Customer in connection with this Agreement or the Service.  Upon two Banking Days prior written request by Trice, Customer hereby authorizes Trice or Trice’s ODFI to enter Customer’s business premises during regular business hours for the purpose of ensuring that Customer is in compliance with this Agreement and Customer specifically authorizes Trice or Trice’s ODFI to perform an audit of Customer’s operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure.  Customer shall bear all costs and expenses incurred in connection with any such audit.  Customer hereby acknowledges and agrees that Trice or Trice’s ODFI shall have the right to mandate specific, reasonable internal controls at Customer’s location(s) and Customer shall comply with any such mandate.  In addition, Customer hereby agrees to allow Trice or Trice’s ODFI to review available reports of independent audits performed at the Customer location related to information technology, the Service, and any associated operational processes.  Customer agrees that if requested by Trice or Trice’s ODFI, Customer will complete a self-assessment of Customer’s operations, management, staff, systems, internal controls, training, and risk management practices that would otherwise be reviewed by Trice in an audit of Customer.  If Customer refuses to provide the requested financial information, or if Trice concludes, in its sole discretion, that the risk of Customer is unacceptable, if Customer violates this Agreement or the Rules, or if Customer refuses to give Trice or Trice’s ODFI access to Customer’s premises, Trice may terminate the Service and this Agreement according to the provisions hereof.  ‍

23. LIMITATION OF LIABILITY. ‍

(a) In the performance of the services required by this Agreement, Trice shall be entitled to rely solely on the information, representations, and warranties provided by Customer pursuant to this Agreement, and shall not be responsible for the accuracy or completeness thereof.  Trice shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its gross negligence or willful misconduct in performing those services.  Trice shall not be responsible for Customer's acts or omissions (including, without Limitation, the amount, accuracy, timeliness of transmittal or authorization of any Instruction received from Customer) or those of any other person, including, without limitation, any Federal Reserve Bank, RTP Operator or transmission or communications facility, any Receiver or RDFI (including, without limitation, the return of any Instruction by such Receiver or RDFI), and no such person shall be deemed TRICE’S agent.  Customer agrees to indemnify Trice against any loss, liability or expense (including attorneys' fees and costs) resulting from or arising out of any claim of any person that  Trice is responsible for any act or omission of Customer or any other person described in this Section 23(a), INCLUDING CLAIMS BY A CONSUMER UNDER FEDERAL RESERVE BOARD REGULATION E.

(b) Trice’S liability hereunder shall be limited to liability for its own gross negligence or willful misconduct.  notwithstanding the foregoing, in no event shall Trice be liable for any consequential, special, incidental, punitive or indirect loss or for any lost or imputed profits or revenues or costs of cover arising from or reLated to the services provided under this agreement, or any other damage which Customer may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by  Trice and regardless of the legal or equitable theory of liability which Customer may assert, including, without limitation, loss or damage from subsequent wrongful dishonor resulting from Trice’s acts or omissions pursuant to this AgreemenT.

(c) Without limiting the generality of the foregoing provisions, Trice shall be excused AND HELD HARMLESS FOR failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond TRICE’S control (a "force majeure event").  In addition, Trice shall be excused AND HELD HARMLESS FOR failing to transmit or delay in transmitting an Instruction if in TRICE’S reasonable judgment would violate any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.  

(d) CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS RELATED TO THE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECOVERABLE BY TRICE OR TRICE’S ODFI FROM THE RDFI, OR ANY OTHER THIRD-PARTY PURSUANT TO THE TCH OR FED RULES OR ANY APPLICABLE INDEMNITY AGREEMENT.  ‍

24. INDEMNIFICATION OF TRICE.  ‍

(a) The Customer will indemnify Trice if Trice incurs any financial loss or liability (including attorneys' fees and associated expenses) due to the breach, with respect to any Instructions initiated by the Customer, of any of the warranties contained in the TCH or FED Rules, except those due to the gross negligence of Trice.  This indemnification includes reimbursement by the Customer to Trice of any fines imposed on Trice due to breaches of the TCH or FED Rules by the Customer or any Third-Party Service Provider.

(b) The Customer will indemnify Trice against any loss, liability or expense (including attorneys' fees and associated expenses) resulting from any claim that Trice is responsible for any act or omission of the Customer or any Third-Party Service Provider or any other person or entity associated with or affected by the services to be performed hereunder, including but not limited to any Receiver, Receiving Depository Financial Institution, or any federal reserve financial institution.‍

25. Inconsistency of Name and Account Number.  The Customer acknowledges and agrees that, if an Instruction describes the Receiver inconsistently by name and account number, payment of the Instruction Transmitted by Trice’s ODFI to the RDFI may be made by the RDFI on the basis of the account number supplied by the Customer, even if it identifies a person different from the named Receiver, and that the Customer’s obligation to pay the amount of the Instruction to  Trice is not excused in such circumstances.  Customer is liable for and must settle with Trice for any Instruction initiated by Customer that identifies the Receiver by account or identifying number or by name and account or identifying number.

26. PAYMENT for Services.  The Customer shall pay Trice the charges for the services provided in connection with this Agreement, as set forth in Schedule E.  All fees and services are subject to change upon thirty (30) days prior written notice from Trice.  Such charges do not include, and the Customer shall be responsible for payment of, any sales, use, excise, value added, utility or other similar taxes relating to such services. ‍

27. Amendments.  Except as provided in Section 25, Trice may amend this agreement from time to time upon written notice to the Customer.  In the event that performance of services under this Agreement would result in a violation of any present or future statute, regulation, or governmental policy to which Trice is subject, then this Agreement shall be amended to the extent necessary to comply with such statute, regulation, or policy.  Alternatively, Trice may terminate this Agreement if it deems such action necessary or appropriate under the circumstances.  Trice shall have no liability to the Customer as a result of any such violation, amendment, or termination.  Any practices or course of dealings between Trice and the Customer, or any procedures or operational alterations used by them, shall not constitute a modification of this Agreement or the Rules, nor shall they be construed as an amendment to this Agreement or the Rules.‍

28. Notices, Instructions, Etc.‍

(a) Except as stated herein, Trice shall not be required to act upon any notice or instruction received from the Customer or any other person, or to provide any notice or advice to the Customer or any other person with respect to any matter.

(b) Trice shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been signed by an authorized representative of Customer, and any such communication shall be deemed to have been signed by such person.  Such notice shall be effective on the second Business Day following the day received by Trice.

(c) Except as stated herein, any written notice or other written communication required or permitted to be given under this Agreement shall be delivered or sent by US mail, if to Customer, at the address of Customer on the books of Trice and if to Trice, at the following address:

Trice Inc., 7200 Spurlock Dr., Austin, TX 78731

Attn: André Herrera

unless another address is substituted by notice delivered or sent as provided heron.  Except as otherwise stated herein, any such notice shall be deemed given when received.‍

29. Data Retention.  The Customer shall retain data on file adequate to permit the remaking of Instructions for ten (10) Business Days following the date of their transmittal to Trice as provided herein, and shall provide such Data to Trice upon its request.‍

30. Data Media and Records.  All data media, Instructions, security procedures and related records used by Trice for transactions contemplated by this Agreement shall be and remain Trice’s property.  Trice may, at its sole discretion, make available such information upon the Customer’s request.  Any expenses incurred by Trice in making such information available to the Customer shall be paid by the Customer.‍

31. Cooperation in Loss Recovery Efforts.  In the event of any damages for which Trice or Customer may be liable to each other or to a third-party pursuant to the services provided under this Agreement, Trice and Customer will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third-party.‍

32. Termination.    Either party may terminate this Agreement upon 30 calendar days written notice to the other; provided however that Trice or Trice’s ODFI may terminate or suspend this agreement immediately upon its determination that Customer is in violation of this Agreement, the TCH or FED Rules or applicable laws with the exception of federal laws related to marijuana or if Customer initiates any bankruptcy proceeding or is otherwise declared insolvent.  Any termination of this Agreement shall not affect any of Trice’s rights or Customer’s obligations with respect to any Instructions initiated by Customer prior to such termination, or the payment obligations of Customer with respect to services performed by Trice prior to termination, or any other obligations that survive termination of this Agreement.  Customer’s obligation with respect to any Instruction shall survive termination of this Agreement until any applicable statute of limitation has elapsed. ‍

33. Entire Agreement.  This Agreement (including the Schedules attached) is the complete and exclusive statement of the agreement between Trice and the Customer with respect to the subject matter hereof and supersedes any prior agreement(s) between Trice with respect to such subject matter.  In the event performance of the services provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulation or government policy to which Trice is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Trice shall incur no liability to the Customer as a result of such violation or amendment.  No course of dealing between Trice and the Customer will constitute a modification of this Agreement, the Rules, or the security procedures, or constitute an agreement between Trice and the Customer regardless of whatever practices and procedures Trice and the Customer may use.‍

34. Non-Assignment.  The Customer may not assign this Agreement or any of the rights or duties hereunder to any person without Trice’s prior written consent.

‍35. Waiver.  Trice may waive enforcement of any provision of this Agreement.  Any such waiver shall not affect Trice’s rights with respect to any other transaction or modify the terms of this Agreement.‍

36. Binding Agreement; Benefit.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns.  This Agreement is not for the benefit of any other person, and no other person shall have any right against Trice or the Customer hereunder.‍

37. Headings.  Headings are used for reference purposes only and shall not be deemed part of this Agreement.‍

38. Severability.  In the event that any provision of this Agreement shall be determined to be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.‍

39. Privacy.  Customer and Trice have previously entered into a “Mutual Non-Disclosure and Confidentiality Agreement” (the “NDA”), the terms of which are hereby incorporated by reference. The NDA further governs use of the respective intellectual property of Customer and Trice under this Agreement. The termination of this Agreement will not impact the terms of the NDA.‍

40. Governing Law; jurisdiction; arbitration  ‍

(a) This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Texas exclusive of conflict or choice of law rules, and applicable federal law.

(b) Any controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach, or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules.  The tribunal shall consist of a sole arbitrator, who shall be mutually agreed upon.  The place of the arbitration will be at Maricopa County.  Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.

(c) The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.

(d) In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits.

(e) In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs, and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.

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Schedule A

Schedule B

Processing Schedule

Schedule C

Security Procedures

Schedule D

‍RTP Processing Limits

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Schedule E

SERVICE FEES

Schedule F

PROHIBBITED AND RESTRICTED ACTIVITIES