Merchant Agreement

This MERCHANT AGREEMENT (including all exhibits, addendum, schedules, and attachments) (the “Agreement“) is made by and between MOMNT TECHNOLOGIES, INC., a Delaware corporation (“Momnt“), and you (“Merchant“). This Agreement sets forth the terms between Merchant and Momnt relating to the Program (as defined in Section 33). Capitalized words not otherwise defined herein have the meanings set forth in Section 33 of this Agreement.

WHEREAS, Momnt is in the business of administering a program under which current or prospective customers of merchants, in connection with such customers’ purchase of goods or services from merchants, may receive Loans.

NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Program.

Momnt is the administrator of the Program and, among other things, provides administrative, technical, and ministerial services to Lenders. Merchant’s participation in the Program is subject at all times to Momnt’s approval—which is at Momnt’s discretion and subject to Merchant’s satisfaction of Momnt’s enrollment and ongoing diligence requirements. Subject to the foregoing, Momnt grants Merchant access to, and Merchant agrees to participate in the Program as a Merchant in accordance with the terms and conditions identified in this Agreement, including the Operating Instructions, with said Program allowing Merchant’s current or prospective customers to apply for and, if approved by Lender, obtain Loans for the purpose of financing purchases of eligible Offerings offered by Merchant.

2. Loans.

The Loans are offered by Lenders to Merchant’s qualified current or prospective customers using technology provided by Momnt for the purpose of financing purchases of Offerings. Each Loan will be evidenced by a consumer entering into a Loan Agreement with Lender as the creditor. The Merchant shall not enter information into, suggest information, sign, or otherwise assist or help any consumer complete any Application, any forms, or terms intended for the consumer (including onscreen forms or terms) or Loan Documents in lieu or on behalf of the consumer. The terms and conditions of all Loans offered will be determined solely by, and all Applications will be subject to review and approval by Lender. Merchant will have no discretion with respect to any of the terms and conditions of the Loans or the approval or rejection of any Application, and Lender will be under no obligation to approve or accept an application or request for a Loan. To the extent originated, all Loans will be originated and funded by Lender and serviced by Momnt, Lender, or a third-party loan service provider selected by Momnt from time to time. Merchant acknowledges that Lender will, at the time of origination, own the Loans contemplated in this Agreement and Merchant will have no ownership interest whatsoever. For the avoidance of doubt, Merchant expressly agrees that the Lender has sole authority to reject or approve any Application, update or revise credit and underwriting standards, and prescribe the terms and conditions of Loans, including the Application, the Loan Agreement, and any related Loan Documents.

3. Merchant’s Obligations and Responsibilities under the Program.

(a) Operating Instructions. Additional obligations and responsibilities of Merchant under the Program are detailed in the Operating Instructions in effect from time to time, which are available on Momnt’s website at www.momnt.com/operating-instructions. Merchant shall satisfy all obligations and requirements in the Operating Instructions and all other requirements as otherwise may be required from time to time by Momnt and communicated to Merchant. The terms of the Operating Instructions are incorporated by reference into this Agreement. In the event there is any inconsistency between any Operating Instructions and this Agreement, this Agreement shall govern to the extent of the inconsistency.

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(b) Compliance Responsibilities. In its participation in the Program, Merchant must comply with all Applicable Laws and fulfill all obligations to its customers and prospective customers.

~(1) Consumer Protection Laws. Merchant’s obligation to comply with Applicable Laws includes without limitation the following (collectively, referred to as “Consumer Protection Laws”): all federal, state, and local laws related to home improvement contracts, repair or remodeling, medical, dental, ortho, or automotive goods or services or any other good or service financed by any Loan, or profession, occupational, and licensing, federal and state fair credit laws, federal and state anti-discrimination laws, federal and state home solicitation sales laws, federal and state privacy laws (such as Gramm-Leach-Bliley Act), federal and state data protection law, federal and state laws prohibiting unfair, deceptive or abusive acts or practices (UDAAP), the Truth in Lending Act (and its implementing Regulation Z), the Equal Credit Opportunity Act (“ECOA”), the Fair Housing Act, and other consumer communication, consumer disclosure, and consumer protection laws and regulations.
~(2) UDAAP. Merchant agrees not to engage in any false, misleading, unfair, deceptive, discriminatory, or abusive acts or practices in connection with the Applications, Loans, Loan Documents, Program, or Offerings.
~(3) Cooling Off Periods. To the extent required by Applicable Law, Merchant agrees to provide Merchant’s customers with any required notices, “cooling off” period and associated right, required under Applicable Law, to cancel or rescind the sales contract, such as those rights that may be required under 16 C.F.R. Part 429, 15 U.S.C. 1635, and analogous state laws.
~(4) ECOA. Merchant must comply with all applicable fair credit and non-discrimination laws, including ECOA, when offering or promoting the Offerings, the Loans, the Program, any financing terms and conditions with respect to the Loans or any other aspect with respect to a credit transaction. ECOA prohibits discrimination in the granting of credit and further states that the applicants for credit will not be discriminated against because of the Person’s race, color, religion, national origin, sex, marital status, or age (provided that the applicant has the capacity to enter into a binding contract), the fact that all or part of the applicant’s income derives from any public assistance program, or the fact that the applicant has in good faith exercised any right under the federal Consumer Credit Protection Act. In addition, ECOA contains rules as to creditor requirements for co-makers or co-applicants on extensions of credit. ECOA also applies to all Persons who regularly refer credit applicants or prospective credit applicants. Merchant agrees to offer the Program in a manner that complies with ECOA and its enacting regulations. State law may also apply to credit products and expand the definition of classes to include, among other things, a Person’s sexual orientation, and Merchant agrees to comply with such laws as well. To help ensure compliance with ECOA, Merchant agrees to comply with the requirements of ECOA and any regulations, policy statements, and guidance promulgated or announced by federal or state agencies, including the Consumer Financial Protection Bureau, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the office of the Comptroller of the Currency, concerning compliance with ECOA or other fair lending requirements. Merchant agrees that it will not discriminate against consumers with respect to the Program in any unlawful or impermissible way, or on any “prohibited basis” described by ECOA or Regulation B thereunder, including discouraging a consumer from applying for a Loan, or not equally promoting the Loan option on any such prohibited basis, or failing to offer participation in the Program to any consumer on any prohibited basis.
~(5) New Jersey. If Merchant offers products or services to any consumer located in New Jersey, Merchant shall comply with the New Jersey Consumer Fraud Act (N.J.S.A. 56:8-1 et seq.), the New Jersey Contractors’ Registration Act (N.J.S.A. 56:8-136 et seq.), the New Jersey Contractor Registration Regulations (N.J.A.C. 13:45A-17.1 et seq.), and the New Jersey Home Improvement Regulations (N.J.A.C. 13:45A-16.1 et seq.).
~(6) Immediate Termination. In the event Momnt learns that Merchant has failed to comply with any of the matters identified in this Section 3(b), Momnt may immediately terminate the Agreement and may seek any other remedies available under the Agreement or otherwise.
(c) Merchant’s Agents. Merchant agrees to comply, and to cause Merchant’s Agents to comply, with all the terms and conditions under this Agreement, including specifically the Operating Instructions and Applicable Law. Merchant will implement and maintain the appropriate controls, policies, and procedures necessary to ensure Merchant and Merchant’s Agents comply with Merchant’s obligations under this Agreement. Merchant will be responsible for any breach of this Agreement caused by any of Merchant’s Agents. In the event Merchant terminates the agency or employment status of any of its Merchant’s Agents, Merchant will take reasonable steps to ensure that such former employee or agent no longer has access to the Program systems (including changing any passwords necessary to access such information or system or any confidential information relating to, or arising from, the Program).
(d) Merchant’s Cooperation

~(1) Notices or Inquiries. In the event that Merchant receives any notice of or inquiry (i) from a governmental or regulatory authority that is in any way arising from or relating to the Program or this Agreement, including any Loan, Loan Agreement, Momnt’s relationship with Merchant, or any other matter that may involve Merchant, Momnt, and/or any Lender, or (ii) regarding any commencement or threatening of any lawsuit or other judicial, administrative, or arbitration proceeding against or involving Merchant, then Merchant agrees to (A) immediately notify Momnt upon receiving any such notice or inquiry (and in any event no later than one (1) Business Day from the notice or inquiry) and (B) fully cooperate with Momnt in addressing and responding to such any notice or inquiry (or any related action, investigation, or proceeding, including allowing Momnt and/or any Lender, at their election, to join the proceeding).
~(2) Complaints. In the event that Merchant receives notice of a Complaint, Merchant must promptly (and in any event no later than two (2) Business Days from receipt) provide Momnt with a copy of any written Complaint or a report of any verbal Complaint. To the extent requested by Momnt, Merchant must fully cooperate with Momnt in investigating, remedying, and responding to any Complaints, which cooperation may include providing documents evidencing applicant or Borrower authorization to submit a transaction.

~(3) Additional Cooperation. To the extent requested by Momnt, Merchant must respond to any inquiry from Momnt and provide updates and information that Momnt may request from time to time regarding Merchant’s participation in the Program (including any applicant or Borrower or any investigation of a Complaint by Momnt) in a prompt manner (and in any event no later than five (5) days from Momnt’s inquiry or request).

~(4) Reviews and Audits. Merchant agrees that Momnt may, at any time upon notice to Merchant, review or audit Merchant (including Merchant’s policies, procedures, systems, internal controls, contracts, and other books and records) to verify Merchant’s compliance with this Agreement. Merchant will correct promptly any weakness identified by Momnt in its reviews or audits thereof.
(e) Loan Stacking. Merchant agrees that it will not, by itself or on behalf of the Borrower or any other third party, engage in or permit Stacking or similar behavior.

4. Modification.

Except as provided in Section 5, and notwithstanding the provisions regarding notice in Section 26, Momnt may modify this Agreement or the Operating Instructions by providing written or electronic notice to Merchant or by posting the modified terms and conditions on Momnt’s website, (Merchant Agreement can be found at https://www.momnt.com/merchant-agreement/) (Operating Instructions can be found at www.momnt.com/operating-instructions) Merchant agrees that it has an ongoing obligation to check Momnt’s website on a regular basis for any updates or changes to this Agreement and the Operating Instructions. Momnt’s posting of the modified terms and conditions on Momnt’s website will constitute notice thereof to Merchant. Merchant’s continued referral in the Program of new Applications after the posting or notice of any such modification will constitute Merchant’s acceptance of the modified terms and Merchant’s agreement to be bound by them. If Merchant does not want to accept such modifications, it must not refer any Applications subsequent to such posting or notice and must advise Momnt in writing of its decision.

5. Fees.

For each funded Loan, Merchant will pay Momnt a transaction fee (“Merchant Fee”) in return for access to the Program, including access to the Program technology platform to allow Merchant’s customers to obtain Loans from Lenders. The initial schedule of Merchant Fees applicable to Merchant is listed on the schedule or list of fees presented by Momnt to Merchant during Merchant onboarding to the Program and agreed to by Merchant at execution of this Agreement. Momnt may modify Merchant Fees by providing a 30-day written or electronic notice to Merchant. Merchant’s continued referral in the Program of new Applications after such notice of any such modification of Merchant Fee(s) will constitute Merchant’s acceptance of the modified Merchant Fee(s) and Merchant’s agreement to be bound by them. If Merchant does not want to accept such modifications, it must not refer any Applications subsequent to such notice. The Merchant Fee is due and payable to Momnt upon the funding of a Loan. In the event that Merchant does not pay any Merchant Fee or any other fees when due, Momnt will be entitled to immediately suspend Merchant’s participation in the Program, and, in addition to all other rights and remedies under this Agreement, Momnt may assess Merchant such additional charges (such as late payment or returned payment charges or other charges from the Lenders).

6. Representations and Warranties; Covenants.

(a) Merchant represents and warrants as of the date hereof and covenants for the term of this Agreement that (i) all information provided to Momnt in connection with the Program (including any introductory information submitted in the Merchant Enrollment Application) is and will remain true and correct in all respects, (ii) Merchant is and will remain duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has and will maintain all requisite power and authority to carry on its business as presently conducted and as required to perform its obligations hereunder, is and will remain duly qualified or licensed to do business and in good standing (where such concept is recognized under Applicable Law) in each jurisdiction where the nature of its business or the ownership or operation of its properties makes such qualification or licensing necessary, and has and will maintain all required licenses, permits, bonding, certifications, authorizations, or other approvals required under Applicable Law to perform its obligations hereunder and to its customers and prospective customers and to conduct its business, deliver Offerings, and participate in the Program (iii) Merchant has and will maintain all requisite power and authority to execute and deliver, and perform its obligations under, this Agreement and to consummate the transactions contemplated hereby, (iv) the execution, delivery and performance of this Agreement by Merchant and the consummation by Merchant of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Merchant and do not contravene any governmental or contractual restriction applicable to Merchant, (v) this Agreement has been duly executed and delivered by Merchant (and the Person executing this Agreement has full power and authority to bind Merchant to the terms of this Agreement) and this Agreement constitutes a legal, valid and binding obligation of Merchant enforceable against Merchant in accordance with its terms, (vi) Merchant is in compliance with all Applicable Law, including without limitation Consumer Protection Laws; (vii) Merchant has not filed, or consented by answer or otherwise to the filing against it, of a petition for relief, reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, made an assignment for the benefit of its creditors, or consented to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property or be adjudicated insolvent or liquidated; and (viii) there is no claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity, in each case pending or, to Merchant’s knowledge threatened against or by Merchant (A) relating to or affecting the Offerings; or (B) that challenge or seek to prevent, enjoin or otherwise delay the performance of the services and transactions contemplated hereunder, which in each of (A) and (B) if determined adversely to Merchant would result in a material adverse effect to Merchant’s business or performance of the services and transactions contemplated hereunder.
(b) As to each Application referral, Offering Request or other material presented or delivered in connection with the Program, and the transaction it evidences, Merchant represents and warrants at the time of the presentment or delivery that: (i) Merchant has no knowledge or notice of any fact, event, issue or circumstance that would impair enforceability or collection of the Loan as against Borrower; (ii) there are no liens, mortgages, encumbrances or security interests upon the Offering Request or the rights evidenced by the Offering Request; (iii) there are no present or future unvested or unrecorded rights related to such transaction that could give rise to a mechanic’s, materialman’s or laborer’s lien, except to the extent those rights are in favor of Merchant, in which event Merchant agrees not to assert those rights to the detriment of any Lender; (iv) Borrower has no claim or defense to payment of any amount reflected on such Offering Request based upon materials or workmanship or any act or omission of Merchant or Merchant’s employees, contractors, laborers or representatives; (v) there have been no representations or warranties made to Borrower other than warranties approved by the Lender, as communicated by Momnt, or a third party’s or manufacturer’s standard warranties, and in the event a manufacturer or third party breaches a standard warranty, Merchant will cure such breach within thirty (30) days of notice thereof; (vi) no action or inaction by Merchant or Merchant’s Agents will cause any Loan or Loan Documents to be originated in violation of Applicable Law; and (vii) no Offering, invoice, Loan or Loan Documents will be fraudulent or subject to any claim of illegality, cancellation, rescission, avoidance, breach of contract or offset (including, without limitation, negligence, fraud, misrepresentation, or dishonesty) due to Merchant’s actions or omissions or those of Merchant’s Agents.
(c) Merchant will give Momnt prompt written notice of any representation and warranty made by it in this Agreement that it hereafter learns was inaccurate or incorrect when originally made and any event, change or occurrence arising after the date hereof that would make any representation or warranty of Merchant inaccurate or incorrect as of the time of such event, change or occurrence. The giving of any such notices will not limit or modify any rights of Momnt hereunder—including any rights of Momnt arising in the case of a breach of a representation or warranty by Merchant.

7. Term, Suspension and Termination.

(a) This Agreement shall initially become effective on the date on the date of Momnt’s notice to Merchant of Merchant’s approval to participate in the Program and shall remain effective until either party gives the other party written notice of its decision to terminate this Agreement. Notwithstanding the termination of this Agreement, the termination of this Agreement shall not affect the rights of either party to recover for breaches occurring (or with respect to matters relating to Loans originated) prior thereto or with respect to provisions of this Agreement that by the nature of their terms continue after termination, including, but not limited to, Section 14.
(b) In addition to the right of termination under this Section 7, Momnt may suspend Merchant’s ability to refer new funding transactions on approved Loans or new Applications pursuant to this Agreement for any reason, including but not limited to due to a dispute, complaint or investigation relating to Merchant, Loans, or the Program. Such suspension will be for so long as Momnt deems appropriate.
(c) Notwithstanding termination of this Agreement, the provisions of this Agreement and the Operating Instructions will continue in full force and effect as to all Offering Requests accepted or approved by a Lender under the Program prior to termination; provided, however, that if an authorization number for an Offering Request is no longer valid, neither Momnt nor any Lender will be obligated to accept such Offering Request. In the event that Momnt has provided any equipment to Merchant in connection with the Program, Merchant agrees to return such equipment to Momnt upon termination of this Agreement. In addition, upon any such termination, Merchant shall destroy or return to Momnt all documentation or materials relating to the Program without retaining any copies.
(d) In the event of breach of this Agreement by either party, the non-breaching party will be entitled to exercise any and all rights and remedies as shall be available to it at law or in equity. The non-breaching party may exercise remedies concurrently or separately, and the exercise of one remedy will not be deemed either an election of such remedy or a preclusion of the right to exercise any other remedy.

8. Reserve Account; Chargebacks and Refunds; Additional Limitations.

(a) Reserve Account. Merchant authorizes Momnt to establish a Reserve Account to be held in Momnt’s name at a financial institution selected by Momnt pursuant to the terms and conditions set forth in this Section. The amount of funds retained in such Reserve Account will be determined by Momnt and may be adjusted from time to time in Momnt’s sole and absolute discretion. Merchant agrees and acknowledges that Momnt shall have the exclusive right to withdraw funds from, direct the disposition of, and close any Reserve Account. At Momnt’s election, (i) the Reserve Account must be fully funded by Merchant within three (3) Business Days of Momnt’s notice to Merchant; and/or (ii) Momnt may withhold, on behalf of itself or Lenders, from any amounts owed to Merchant in respect of any Offering Request in order to fund the Reserve Account. Momnt may, at its sole and absolute discretion, direct and use funds held in the Reserve Account, and charge to the Reserve Account, any amount Merchant owes Momnt or Lenders or that is otherwise due from Merchant under this Agreement. Momnt may, at its sole and absolute discretion, direct and use funds held in the Reserve Account to recover chargebacks, fines, and fees associated with the Loans (including those assessed regarding a Borrower) or to otherwise provide refunds to consumers or Borrowers who dispute amounts owed to Merchant for Offerings. Merchant’s obligations to Momnt and Lenders shall not be limited by the amount held in the Reserve Account. The Reserve Account does not excuse Merchant from paying any amount that Merchant would otherwise owe under this Agreement. Merchant shall not be entitled to any interest on amounts held in the Reserve Account. Momnt will return to Merchant any amount remaining, if any, in the Reserve Account when Momnt determines a Reserve Account is no longer necessary. If sufficient funds are not available from the Reserve Account to pay all amounts owed to Momnt under this Agreement, Merchant must pay to Momnt the amount of any deficiency promptly.
(b) Chargebacks and Refunds.

~(1) Merchant agrees that it will refund within five (5) Business Days of Momnt’s demand, and Momnt, either on its own or at the direction of Lenders, may charge back against Merchant within ten (10) days of the event giving rise to a charge back as determined by Momnt, the amount of any Loan affected, plus any finance or other charges related to the Loan under the Borrower’s Loan Agreement, in each of the following events:

~~(a) Momnt determines that (A) Merchant has breached or failed to fulfill any of its obligations under this Agreement or the Operating Instructions (including failing to fulfill Merchant’s obligation to render any goods and/or services to Merchant’s customers in compliance with all Applicable Laws and any agreement with, disclosures provided to, and consents obtained from Merchant’s customers), or has breached any of its representations or warranties under this Agreement, (B) the invoice or Offering Request or the transaction to which such invoice or Offering Request relates, Application or sale of Offerings is fraudulent or is subject to any claim of illegality, cancellation, rescission, avoidance or offset, including negligence, fraud, misrepresentation or dishonesty on the part of the Borrower or Merchant, its agents, employees, representatives or franchisees, or (C) the contact information for Borrower supplied by Merchant is incorrect and results in Momnt not being able to contact the Borrower;
~~(b) the Borrower disputes or denies the transaction, the execution of the transaction authorization, Application or Loan Agreement, or the delivery, quality, or performance of the Offerings purchased or any warranties thereto, or the Borrower has not authorized the transaction, or alleges that a credit adjustment to which Borrower was entitled was requested and refused by Merchant or that a credit adjustment was issued by Merchant but not posted to the Loan due to Merchant’s failure to submit the credit adjustment to the Program; or
~~(c) Borrower asserts any claim or defense against Momnt or the Lender as a result of any act or omission of Merchant that could give the Borrower a right to recovery (including any right of the Borrower under the Federal Trade Commission’s Holder Rule (16.CF.R. Part 433)).
~(2) With respect to any chargeback or refund:

~~(a) Chargebacks for purchases of Offerings made by Borrowers will be paid by Merchant in a manner as consistent as practicable with the original funds transfer.
~~(b) In its reasonable discretion but upon prior notice to Merchant, the Lender, as communicated by Momnt, may compromise and settle any claim made by any Borrower if such claim may give the Lender a right to chargeback (or a right to a refund) in accordance with the Agreement. The Lender, as communicated by Momnt, may settle such claim in an amount equal to the amount paid for the disputed Offerings, not to exceed the face amount of any Offering Request.
~~(c) If a Lender exercises its right of chargeback (or seeks a refund) in accordance with the Agreement, such Lender may set off or recoup amounts charged-back or subject to refund against any sums due to Merchant under the Agreement and, if the amount of such chargeback or refund exceeds the sums due to Merchant, such Lender may demand payment from Merchant for such amount (or set off or recoup such amount up to the amount of sums due to Merchant and demand payment from Merchant for such excess amount).
~~(d) If the full amount due with respect to any Loan is charged back or otherwise refunded by Merchant, Merchant shall be entitled to recover the unpaid amount of the Offering Request from the customer as if the financing had not occurred, although Merchant shall have no rights under the Loan Agreement or to the proceeds of the Loan. In such event, Merchant shall bear all liability and risk of loss associated with such Offering Request without warranty by, or recourse or liability to, Momnt or any Lender.
~~(e) Momnt shall promptly notify Merchant of all requests by Borrowers for a chargeback or refund. Merchant is required to address any dispute or other circumstance described in this Section to the reasonable satisfaction of the Lender and to Momnt, on behalf of the Lender, within five (5) days of notice of any such chargeback or refund.
~~(f) Where a chargeback or refund occurs within thirty (30) days following initial funding and Momnt determines that such chargeback or refund was not due in any way to Merchant’s bad faith, Momnt will refund to Merchant the amount of the Merchant Fee paid with respect to the relevant portion of the Loan to which such chargeback or refund relates. Otherwise, Momnt will have no obligation to refund any Merchant Fees.
(c) Additional Limitations. Momnt may impose additional limitations on Merchant’s participation in the Program, or take such other action, as Momnt deems appropriate if Momnt believes, in its sole discretion, that such an action is necessary or appropriate, including: (i) requiring Merchant to pay Momnt, on behalf of itself or Lenders, upon demand, (ii) Momnt withholding, on behalf of itself or Lenders, from any amounts owed to Merchant in respect of any Offering Request, (iii) Momnt debiting, on behalf of itself or Lenders, Merchant’s bank account, an amount Momnt deems necessary to fund the Reserve Account; or (iv) Momnt suspending Merchant’s ability to refer new funding transactions on approved Loans or new Applications pursuant to this Agreement. For example, Momnt may believe such action is necessary or appropriate if (A) Merchant’s financial condition has deteriorated or is deemed, in the sole discretion of Momnt, to be unacceptable, (B) Merchant is in breach of this Agreement, (C) the Program has experienced unusual levels of Borrower disputes or complaints from consumers, including applicants or Borrowers, or third parties, including regulatory authorities, relating to Merchant, (D) Merchant, any of Merchant’s Affiliates, or any of Merchant’s Agents commits or becomes involved in any activity, situation, or occurrence, either before or after this Agreement goes into effect, or there is any allegation of any such commission or involvement by Merchant, any of Merchant’s Affiliates, or any of Merchant’s Agents that in the opinion of Momnt causes or would cause offense, outrage, ridicule, or contempt or reputational, legal, or compliance risks, (E) the number of Offering Requests presented to the Program by Merchant is substantially different from historical trends, or there is any indication of fraud, misuse or abuse by Merchant (or any of Merchant’s Agents) in connection with the Program, (F) a notice of termination has been provided by either party to the other in connection with this Agreement, or (G) if Momnt or a Lender is unable to recover amounts owed by Merchant (for example, if a chargeback fails; in which case, Merchant remains liable for amounts owed).

9. Authorization for Automatic Direct Deposits (ACH Credits) and Direct Debits (ACH Debits).

(a) Merchant authorizes Momnt, on behalf of itself and Lenders (as applicable), to initiate credit entries for amounts that Momnt or Lenders may owe Merchant or that may otherwise be due to Merchant under the Agreement. Merchant authorizes Momnt to initiate debit entries for (i) any credit entries in error, (ii) Merchant Fees or (iii) the amount which Merchant owes under the Agreement. Such credit and debit entries will be to the bank account identified by Merchant. Merchant and Momnt acknowledge that the origination of ACH transactions described in this Section 9 must comply with Applicable Law and NACHA rules.
(b) The authorizations set forth in Section 9(a) will remain in effect until the date on which no Loans remain outstanding. Merchant must notify Momnt within three (3) Business Days of any change to the bank account for such ACH credits and ACH debits. Momnt agrees to comply with written notifications from Merchant that alter Merchant’s bank account information (i.e., name and address of the bank or financial institution, transit/routing number or account number), provided that Momnt receives such notification in sufficient time and manner to give Momnt and the bank or financial institution reasonable opportunity to act on it.

10. Merchant Ineligible for Loan.

Merchant acknowledges and agrees that neither it nor any of its owners, directors, officers, members, managers, representatives, employees or any member of their immediate families is eligible for a Loan.

11. Assignment.

(a) Merchant may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Momnt; any purported assignment without such consent shall be void. For purposes of this Section 11(a), a transfer or sale, whether direct or indirect, of a majority interest in Merchant shall be deemed an assignment. Momnt and Lenders may assign this Agreement and any of the rights or obligations hereunder at any time. In the event of such assignment, the assignee thereof shall have the same rights and remedies as any assignor under this Agreement, provided that such assignor shall not be relieved of its obligations hereunder arising prior to such assignment unless such assignment is part of an assignment of all or substantially all of its assets and the assignee assumes its obligations hereunder. Otherwise, this Agreement is binding upon the parties and their successors and assigns.
(b) Merchant acknowledges that Momnt may enter into agreements with Lenders to provide financing under the Program and that Lenders will originate and/or hold title and/or economic rights to Loans originated through the Program. Each Lender shall be a third party beneficiary of the obligations of Merchant hereunder and shall have the benefit of such obligations and the right to enforce (but not to the exclusion of Momnt for its own account) such obligations with respect to any Loan(s) with respect to which the Lender holds title and/or economic rights to the Loan.

12. Merger and Integration.

Except as specifically stated otherwise herein, this Agreement, together with the Operating Instructions, sets forth the entire understanding of Momnt and Merchant relating to the subject matter hereof, and all prior understandings, written or oral, relating to the subject matter hereof are superseded by this Agreement and the Operating Instructions. This Agreement may not be modified, amended, waived or supplemented except as provided herein. All exhibits, schedules and addendums hereto and any documents or instruments delivered pursuant to any provision hereof are expressly made a part of this Agreement as fully as though completely set forth herein.

13. Merchant Obligations Unaffected.

Merchant’s obligations under this Agreement and the Operating Instructions are not affected by any release, settlement, extension, forbearance, or variation in terms that Lender may grant in connection with any Loan or by the release of the obligations of any Borrower by a court or by operation of law.

14. Indemnification; Related Matters.

(a) Merchant (on behalf of itself, Merchant’s Agents and its Affiliates, each a “Merchant Indemnifying Person”) agrees to indemnify, defend (at Merchant’s sole expense and with counsel reasonably acceptable to Momnt), and hold harmless Momnt and any Lender that funds or owns a Loan (or the economic rights thereto) to a customer of Merchant (and their respective officers, directors, shareholders, members, partners, managers, employees, representatives, agents, successors and assigns) (each a “Momnt Indemnified Person”) from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges, failures to pay, actions, suits, injunctions, judgments, hearings, settlements, charges, demands, penalties, fines, costs, and expenses (including attorneys’ fees) of any kind whatsoever (collectively a “Loss”) directly or indirectly arising out of or related to: (i) Merchant’s breach of any obligation, including any legal or contractual obligation, owed to any third party; (ii) breach of any representation, warranty, obligation, or covenant of Merchant contained in this Agreement or the Operating Instructions; (iii) failure of Merchant to comply with any Applicable Law; (iv) in whole or in part to the negligence, recklessness, fraud, error (whether negligent or not), omission, or misconduct of a Merchant Indemnifying Person; (v) in whole or in part to, Merchant’s failure to perform any of its obligations, or discharge any of its responsibilities, to any person, including failure to pay fees when due; (vi) any defect, shortcoming, or flaw in any Offerings sold or provided by Merchant or any breach of any express or implied warranty in connection with such Offerings or another dispute relating to such Offerings or any Losses related to Merchant’s business practices; (vii) a Merchant Indemnifying Person’s failure to properly describe or deliver goods or services or comply with a Merchant Indemnifying Person’s legal or contractual obligations to third parties (including customers of Merchant); (viii) Borrower asserting any claim or defense against Momnt or the Lender as a result of any act or omission of Merchant that could give the Borrower a right to recovery (including any right of the Borrower under the Federal Trade Commission’s Holder Rule (16.CF.R. Part 433)); and (ix) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; provided that Merchant shall have no obligations or liability under this Section 14(a) to the extent a Loss results solely from the gross negligence or willful misconduct of a Momnt Indemnified Person. Merchant further agrees to reimburse each Momnt Indemnified Person upon demand for all legal and other expenses (including expenses related to investigation, settlement, compromise, or satisfaction) incurred by any such Momnt Indemnified Person in connection with any of the foregoing.
(b) Merchant agrees that if it breaches any representation, warranty, covenant, or obligation herein or if a Borrower or applicant asserts any claim or defense (regardless of the validity thereof) arising out of any transaction evidenced by any Loan Agreement or Offering Request or cancels any transaction evidenced by any Loan Agreement or Offering Request, Merchant will refund within five (5) Business Days of Momnt’s demand the amount of any Loan affected, plus any finance or other charges related to such Loan. Merchant also agrees to indemnify and hold Momnt Indemnified Persons harmless for any and all breaches of warranties, damages, and costs, including attorneys’ fees, which any Momnt Indemnified Person may sustain as a result of any such event. Momnt, on its own behalf or on behalf of Lenders (as applicable), may, at its option, deduct any amount Merchant owes Momnt or Lenders pursuant to this paragraph (b) or any other provision of this Agreement from any amount Momnt or Lenders may owe Merchant. Momnt and Lender are not responsible for any amounts claimed to be owed to Merchant by Merchant’s customers, including amounts for payment transactions that were authorized but that were subsequently rejected or reversed.
(c) Momnt shall indemnify, defend (at Momnt’s sole expense and with counsel reasonably acceptable to Merchant) and hold harmless Merchant (and Merchant’s officers, directors, shareholders, members, partners, managers, employees and agents) (each a “Merchant Indemnified Person”) from and against any Loss directly or indirectly arising out of (i) the gross negligence or willful misconduct of Momnt, and (ii) its failure to comply with the terms of this Agreement or any applicable federal, state, or local law, rule, regulation or ordinance; provided that Momnt shall have no obligations or liability under this Section 14(c) to the extent a Loss results solely from the gross negligence or willful misconduct of a Merchant Indemnified Person.
(d) In the event that a Merchant Indemnified Person or Momnt Indemnified Person shall receive any claim or demand or be subject to any suit or proceeding in connection with which a claim may be made against such Person under this Section 14, the indemnified party shall give prompt written notice thereof to the indemnifying party and the indemnifying party will be entitled to participate in the settlement or defense thereof; provided that the failure to give such notice in a timely manner shall not impact the availability of indemnification except to the extent that it materially and adversely impacts the defense of any such claim or demand. In any case, the indemnifying party and the indemnified party shall cooperate (at no cost to the indemnified party) in the settlement or defense of any such claim, demand, suit, or proceeding.
(e) In the event and for so long as any Momnt Indemnified Person is actively contesting or defending against any Loss in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction involving a Merchant Indemnifying Person, then Merchant will ensure that any such Merchant Indemnifying Person will cooperate with such Momnt Indemnified Person and its counsel with respect thereto, make available any personnel under its control, and provide such testimony and access to its books and records, including allowing copies to be made by such Momnt Indemnified Person or its representatives, as shall be reasonably necessary in connection therewith, all at the sole cost and expense of Merchant.

15. Nonwaiver and Extensions.

The parties shall not by any act, delay, omission, or otherwise be deemed to have waived any rights or remedies hereunder. Each party agrees that the other party’s failure to enforce any of its rights under this Agreement or the Operating Instructions shall not affect any other right or the same right in any other instance.

16. Marks.

Merchant hereby grants Momnt and Lenders a nonexclusive license to use its name, trademarks, logos, and other marks in connection with the administration and operation of the Program during and after the term of the Agreement.

17. Press Release.

Merchant agrees not to issue any announcement concerning the Program or Merchant’s relationship with Momnt or any Lender in a press release or other similar communication to the general public without Momnt’s prior written consent.

18. Call Monitoring.

With respect to any calls Momnt may make to Merchant or Merchant may make to Momnt, Merchant acknowledges that such calls may be monitored or recorded by Momnt for quality assurance or other purposes.

19. Ownership of Program; Intellectual Property.

(a) Ownership of Program. Neither Merchant nor any parent, subsidiary, or other Affiliate of Merchant shall by virtue of this Agreement or otherwise secure any title to or other ownership interest in any elements of the Program, including the Loans, Operating Instructions, written specifications, training materials, programs, systems, screens, or any documentation or materials relating thereto, which as between Momnt and Merchant, are Momnt’s exclusive property. Merchant agrees to use the elements of the Program and information about the Program only for the purpose of enabling Merchant to participate in the Program as provided under this Agreement and for no other purpose. Momnt has the right to use and disclose any information received from Merchant in relation to this Program.
(b) Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other Program Confidential Information, trade dress, trade names, logos, corporate names, and domain names, including any marketing materials or training and operational materials, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to or accessed by Merchant for its use under this Agreement or otherwise in connection with the Program are and will continue to be owned by Momnt. Merchant hereby grants Momnt and Lender and their respective Affiliates a nonexclusive and royalty-free license to use Merchant’s name, contact information, trademarks, tradenames logos, other branding, and other marks in connection with the administration and operation of the Program, including for Momnt’s and Lender’s purpose of Program promotion and administration.

20. Right to Set-Off.

Notwithstanding any other provision of this Agreement to the contrary, Merchant agrees that Momnt may, in its sole discretion, set-off any amounts owing to Merchant—whether in association with a Loan and/or with any other amounts Momnt may otherwise owe to Merchant from time to time—against amounts in the Reserve Account and/or against any amounts Merchant owes or will owe to Momnt (including any amount Merchant owes Momnt pursuant to the indemnification provisions provided in this Agreement). Notwithstanding the foregoing, Merchant is not excused from paying any amount that Merchant would otherwise owe pursuant to this Agreement.

21. Rights of Persons Not a Party.

Except as expressly provided herein, this Agreement shall not create any rights on the part of any person not a party hereto, whether as a third party beneficiary or otherwise.

22. Governing Law; Severability.

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without reference to the conflict of laws provisions thereof. If any provision of this Agreement is found to be illegal, unenforceable, or contrary to Applicable Law, such provision shall be deemed ineffective without invalidating the remaining provisions hereof and this Agreement may be reformed giving the effect to the greatest extent possible to the intentions of the parties as reflected by the ineffective provision.

23. Independent Contractor.

This Agreement does not (and shall not be construed to) establish a partnership, joint venture, agency relationship, or other form of business association between Merchant and Momnt or any Lender. Momnt and Merchant are independent contractors, and neither party shall have the authority to speak for, commit, or bind the other party.

24. Confidential Information.

(a) Merchant agrees to keep all Consumer Information private and confidential, and agrees not to release such information to, or allow such information to be accessed by, any third party for any purpose whatsoever, except in compliance with this Agreement.
(b) Merchant will keep confidential and not disclose to any person or entity (except to Merchant’s Agents who are engaged in the implementation and execution of the Program, have a need to know, and are bound by confidentiality obligations substantially similar, but in no event less restrictive, to those contained herein) all information, whether tangible or intangible and whether oral, in writing, or in any other medium and whether or not designated as confidential, including but not limited to product terms and information, compliance standards, processes and procedures, training or operational materials, marketing and sales strategies, trade secrets, know-how, any materials shared during negotiations, business plans, analyses, forecasts, pricing, proposals, terms of this Agreement (including the Operating Instructions), software, systems, any information that Merchant may receive (directly or indirectly) from Momnt, any consumer, or from any other source relating to the Program or this Agreement, including consumer names, addresses, Applications and information contained therein, Loan Agreement information (including the terms thereof), and other nonpublic financial information or Consumer Information, and any other information that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential (collectively, “Program Confidential Information”), except that Merchant: (i) will use, and cause its Merchant’s Agents to use, any such Program Confidential Information (A) solely as needed and for the purposes of the performance of Merchant’s obligations under the terms of this Agreement or (B) as expressly permitted in writing by Momnt; or (ii) may disclose as required by applicable federal, state, or local law or regulation, in which case: (A) before making any such disclosure, Merchant will, to the extent legally permissible, provide Momnt with prompt written notice of such requirement so that Momnt may seek a protective order or other remedy and Merchant will provide reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (B) if, after providing notice and assistance as required herein, Merchant remains subject to the requirement by said law or regulation, Merchant will disclose no more than that portion of the Program Confidential Information that, on the advice of Merchant’s legal counsel, such law or regulation specifically requires Merchant to disclose and use commercially reasonable efforts to obtain assurances that such information will be afforded confidential treatment. Merchant will maintain the confidentiality of all Program Confidential Information by establishing and utilizing physical, electronic and administrative procedures to protect the security and confidentiality of the information.
(c) Notwithstanding the foregoing, Merchant certifies that it understands and will comply, and cause Merchant’s Agents to comply, with the following:

~(1) Merchant will not, and will cause Merchant’s Agents not to, disclose any Program Confidential Information (including Consumer Information) to any other third-party purchase money lender or any other third-party provider of consumer financing without the prior written approval of Momnt.
~(2) Merchant will maintain Consumer Information in compliance with Applicable Law. Merchant will not, and will cause Merchant’s Agents to not, (i) collect, retain, use, disclose, or otherwise process any Consumer Information for any purpose other than only for the specific purpose of performing Merchant’s obligations under this Agreement in compliance with Applicable Law, and (ii) sell any Consumer Information.
~(3) Merchant will not, and will cause Merchant’s Agents to not, store or access Consumer Information outside the United States and will provide access to Consumer Information only to its employees and agents who are located within the United States.
~(4) Upon written request at any time by Momnt or upon termination of the Agreement, Merchant agrees to return to Momnt or destroy (with certificate of destruction provided by a duly authorized representative of Merchant, if requested by Momnt) all information, documentation, or materials relating to the Program including Program Confidential Information, in Merchant’s custody, control, or possession without retaining any copies.
(d) Merchant agrees to immediately notify Momnt, and in all events within forty-eight (48) hours unless earlier required by Applicable Law, upon becoming aware of any actual, threatened, or alleged breach of the security, confidentiality, or integrity of Consumer Information or its confidentiality obligations hereunder. Merchant further agrees to assist and cooperate with Momnt in order to respond to any valid consumer requests under Applicable Law.

25. Information Security.

(a) Merchant shall not disclose, and shall take all commercially reasonable measures to protect, Borrower Information, including any nonpublic personal information (as defined in the Gramm-Leach-Bliley Act, its implementing regulations, and other similar laws and regulations), to (i) any third party or (ii) any employee, officer, shareholder, member, partner, director, manager, or representative of Merchant who is not engaged in the implementation and execution of the Program and having a need to know such information for Merchant to perform its obligations and responsibilities under the Agreement. Merchant shall not retain in any format, electronic or otherwise, any Borrower Information beyond what is required pursuant to the Agreement. Without by implication limiting the foregoing, if Merchant allows individuals to submit personal identifying information via the Internet, Merchant shall adopt and maintain a comprehensive privacy policy with respect to its handling of such personal information and Merchant’s privacy policy shall be available on Merchant’s Internet websites.
(b) Merchant shall keep confidential and not disclose to any person (except to employees, officers, shareholders, members, partners, directors, managers, or representatives of Merchant who are engaged in the implementation and execution of the Program) all information, software, systems, and data that Merchant receives from Momnt or from any other source relating to the Program and matters that are subject to the terms of the Agreement and shall use, and cause to be used, such information solely for the purposes of the performance of Merchant’s obligations under the terms of the Agreement.
(c) Momnt will keep confidential and not disclose to any person (except Lenders or the employees, officers, shareholders, members, partners, directors, managers, agents, or representatives of Momnt, its subsidiaries, Affiliates, or its designees who are engaged in the implementation and execution of the Program) any information that Momnt receives from Merchant that is designated confidential by Merchant. However, nothing in the Agreement shall limit Momnt’s or Lenders’ rights to (i) report information regarding Borrowers to consumer and commercial credit reporting agencies and credit bureaus to the extent permitted by the Loan Documents and other agreements with the Borrower or by Applicable Law, (ii) share Borrower Information with third-party service providers in the ordinary course of business for the purposes of administering the Program, (iii) disclose Borrower Information or any segment thereof to actual and potential third-party lenders that are bound by customary confidentiality obligations with respect to such data, or (iv) in the event a Loan or any part thereof is sold or assigned, disclose any information reasonably necessary or required to effectuate such sale or assignment.
(d) Merchant and, as administrator of the Program, Momnt each agrees that it has developed, implemented and will maintain at all relevant times contemplated by the Agreement effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of Borrower Information, (ii) protect against anticipated threats or hazards to the security or integrity of Borrower Information, (iii) protect against unauthorized access or use of Borrower Information, and (iv) ensure the proper disposal of Borrower Information. All personnel handling Borrower Information shall be appropriately trained in the implementation of such information security policies and procedures. Each party shall regularly audit and review its information security policies and procedures and systems to ensure their continued effectiveness and determine whether adjustments are necessary in light of circumstances, including changes in technology, customer information systems, or threats or hazards to Borrower Information.
(e) Merchant shall promptly notify Momnt of any unauthorized access to Borrower Information or any breach in security measures or systems for the protection of Borrower Information and take appropriate action to prevent further unauthorized access or cure such breach. Merchant shall cooperate with Momnt with respect to its investigation or inquiry as to any such unauthorized access or breach, provide any notices regarding such unauthorized access or breach to appropriate law enforcement agencies and government regulatory authorities, affected applicants, Borrowers and customers as Momnt, as administrator of the Program, in its sole discretion, deems appropriate, and pay all expenses related thereto.

26. Notices.

(a) Written Notices. All demands, notices, and other communications between the parties hereto shall be in writing.
(b) Notices to Merchant. All demands, notices, and other communications to Merchant may be provided by Momnt by: (i) electronically posting on Momnt’s Online Platform or other Momnt website or application used to communicate to the Merchant; (ii) the manner set forth in Section 4 for modifications; (iii) sending to Merchant’s postal or street address, fax number, or e-mail address set forth in the Merchant Enrollment Application; or (iv) sending to such other address, fax number, or e-mail address as Merchant may advise Momnt in writing. By entering into this Agreement, Merchant consents to the electronic provision of demands, notices, and other communications from Momnt, including any notices that may be required by Applicable Law, and such electronic provision will be considered to have the same effect as if it were provided in a physical/written copy. Merchant agrees that it has an ongoing obligation to check the emails it receives from Momnt and postings on the Online Platform or other Momnt website or application used to communicate to the Merchant, for any such demands, notices, and other communications.
(c) Notices to Momnt. All demands, notices, and other communications to Momnt hereunder shall be sent to the following address or to such other address, fax number, or e-mail address as Momnt may advise Merchant in writing:

By Mail:

Momnt Technologies, Inc.
PO Box 28619
Sandy Springs, GA 30328
Attention: Legal

OR
By Email:

27. Execution.

This Agreement, through execution of the Merchant Enrollment Application, may be executed by facsimile or some other electronic signature (such as a clickwrap or browsewrap), which shall be deemed an original.

28. DAMAGES; ATTORNEYS’ FEES.

MERCHANT SHALL BE LIABLE TO MOMNT INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY MOMNT INDEMNIFIED PERSON MAY BRING AGAINST MERCHANT (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES, AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY MOMNT INDEMNIFIED PERSON BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF PERSONAL PROPERTY, OR ANY OTHER SIMILAR DAMAGE OR LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, STATUTES OR REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR RELATING TO THE PROGRAM OR THIS AGREEMENT, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROGRAM AND ANY SERVICES RELATED THERETO ARE PROVIDED BY MOMNT “AS IS” AND “AS AVAILABLE” AND MOMNT HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

29. DISPUTE RESOLUTION & ARBITRATION.

ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE INTERPRETATION, ENFORCEABILITY, OR VALIDITY OF THIS AGREEMENT, INCLUDING THE SCOPE OR APPLICABILITY OF THE AGREEMENT TO ARBITRATE, THAT CANNOT BE RESOLVED INFORMALLY BY THE PARTIES (“DISPUTE”) WILL BE SOLELY AND FINALLY RESOLVED PURSUANT TO THIS SECTION 29.

(a) DIRECT BUSINESS NEGOTIATION. THE PARTIES WILL USE THEIR BEST EFFORTS TO RESOLVE ANY DISPUTE BY GOOD FAITH NEGOTIATION BETWEEN OFFICERS WHO HAVE AUTHORITY TO RESOLVE THE DISPUTE. UPON THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES WILL ARRANGE FOR THEIR RESPECTIVE SENIOR REPRESENTATIVES TO MEET WITHIN FOURTEEN (14) DAYS FOLLOWING THE REQUEST FOR THE PURPOSE OF RESOLVING SUCH DISPUTE ON AMICABLE TERMS. NO PROCEEDING MAY BE COMMENCED UNDER SECTION 29(b) UNTIL, AT LEAST FOURTEEN (14) DAYS AFTER SUCH MEETING, A PARTY’S SENIOR REPRESENTATIVE COMMUNICATES TO THE OTHER PARTY HIS OR HER GOOD FAITH CONCLUSION THAT AN AMICABLE RESOLUTION OF THE MATTER IS UNLIKELY. ANY DISCUSSIONS UNDERTAKEN PURSUANT TO THIS SECTION 29(a) WILL BE CONFIDENTIAL COMPROMISE AND SETTLEMENT NEGOTIATIONS WITHOUT PREJUDICE TO ANY PARTY’S RIGHT TO ANY OTHER REMEDY IN LAW OR EQUITY OR UNDER THIS AGREEMENT.
(b) ARBITRATION. ANY DISPUTE THAT REMAINS UNRESOLVED FOLLOWING THE NEGOTIATIONS UNDERTAKEN PURSUANT TO SECTION 29(a) WILL BE SOLELY AND FINALLY SETTLED BY CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS AGREEMENT AND WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION, WHICH RULES ARE HEREBY INCORPORATED BY REFERENCE. THE LOCATION OF THE ARBITRATION WILL BE IN ATLANTA, GEORGIA OR, IF BOTH PARTIES AGREE, REMOTELY THROUGH VIDEO CONFERENCE. THE ARBITRATION WILL BE CONDUCTED IN ENGLISH BY A PANEL OF THREE NEUTRAL ARBITRATORS, WITH EACH PARTY SELECTING ONE ARBITRATOR AND THE TWO APPOINTED ARBITRATORS THEN JOINTLY SELECTING THE THIRD. EXCEPT AS MAY BE REQUIRED BY LAW OR EXPRESSLY PERMITTED IN THIS AGREEMENT, THE PANEL IS NOT EMPOWERED TO AWARD PUNITIVE, EXEMPLARY, SPECIAL, SPECULATIVE, INDIRECT, PRE-AWARD INTEREST, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR ANY OTHER SIMILAR DAMAGE OR LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, STATUTES OR REGULATIONS, OR ANY OTHER THEORY) ARISING OUT OF OR RELATING TO THE PROGRAM OR THIS AGREEMENT, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES OR LOSSES. ALL COSTS AND EXPENSES OF THE ARBITRATORS WILL BE BORNE BY THE PARTIES EQUALLY, AND EACH PARTY WILL BEAR ITS OWN ARBITRATION COSTS, INCLUDING ITS ATTORNEYS’ FEES AND TRAVEL EXPENSES. AN AWARD, WITH WRITTEN REASONS, WILL BE ISSUED IN WRITING BY THE PANEL AND WILL BE FINAL AND BINDING UPON THE PARTIES. IF NOT FULLY SATISFIED WITHIN THIRTY (30) DAYS OF THE ANNOUNCEMENT OF THE AWARD, SUCH AWARD MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION AND EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURT FOR THE PURPOSES OF COMPLYING WITH THIS SECTION 29(b) AND THE AWARD GRANTED IN ACCORDANCE WITH IT. NOTHING IN THIS AGREEMENT LIMITS THE RIGHT OF A PARTY TO OBTAIN INJUNCTIVE REMEDIES FROM A COURT OF COMPETENT JURISDICTION BEFORE, AFTER, OR DURING THE PENDENCY OF ANY ARBITRATION. NEITHER PARTY HAS THE RIGHT TO ARBITRATE ON A CLASS OR REPRESENTATIVE BASIS ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE INTERPRETATION, ENFORCEABILITY, OR VALIDITY OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THIS SECTION 29(b).
(c) EXCEPTIONS TO ARBITRATION. NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT THE PROVISIONS OF SECTION 29(a) THROUGH 29(b) WILL NOT APPLY WITH RESPECT TO ANY THIRD-PARTY CLAIM IN THE EVENT SUCH THIRD PARTY: HAS INITIATED A LAWSUIT OR OTHER JUDICIAL, ADMINISTRATIVE, OR ARBITRATION PROCEEDINGS AGAINST OR INVOLVING EITHER OR BOTH OF THE PARTIES IN WHICH A DISPUTE WILL BE RESOLVED; AND IS A NECESSARY PARTICIPANT IN ANY JUDICIAL, ADMINISTRATIVE, OR ARBITRATION PROCEEDINGS TO RESOLVE A DISPUTE AND CANNOT BE JOINED BY EITHER OR BOTH OF THE PARTIES IN A RESOLUTION OF SUCH DISPUTE PURSUANT TO THE PROCEDURES SET FORTH IN SECTION 29(a) THROUGH 29(b) AND AS SUCH THE PROCEDURE SET FORTH IN SECTION 29(a) THROUGH 29(b) IS OR WILL BE INEFFECTIVE AS TO SUCH DISPUTE; PROVIDED, HOWEVER, THAT THE PROCEDURES SET FORTH IN SECTION 29(a) THROUGH 29(b) WILL APPLY IN THE EVENT A DISPUTE IN CONNECTION WITH THE FOREGOING EVENTS SET FORTH IN THIS SECTION 29(c) RELATES TO WHETHER ANY CLAIMS IN CONNECTION WITH SUCH THIRD-PARTY CLAIM IS INDEMNIFIABLE BY EITHER PARTY.
(d) JURISDICTION. SHOULD ANY PORTION OF THE PROVISIONS OF SECTION 29(a) THROUGH SECTION 29(b) BE FOUND TO BE UNENFORCEABLE, SUCH PORTION WILL BE SEVERED FROM THIS AGREEMENT, AND THE REMAINING PORTIONS WILL CONTINUE TO BE ENFORCEABLE. HOWEVER, IF FOR ANY REASON ALL OF THE PROVISIONS OF SECTION 29(a) THROUGH SECTION 29(b) ARE FOUND TO BE UNENFORCEABLE, THEN THE FOLLOWING WILL APPLY INSTEAD: ANY SUIT, COUNTERCLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, MUST BE BROUGHT BY EITHER PARTY EXCLUSIVELY IN THE STATE OR SUPERIOR COURT SITUATED IN FULTON COUNTY, GEORGIA OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION, OR PROCEEDING, OR JUDGMENT THEREON (IT BEING UNDERSTOOD THAT SUCH CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
(e) WAIVER OF JURY TRIAL; NO CLASS ACTION. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM SHALL NOT BE TRIED BEFORE A JURY AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ENTERING INTO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO AGREES THAT ANY SUCH PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.

30. Online Platform.

Some aspects of the Program or Merchant’s participation in the Program may, at Momnt’s election, require Merchant’s enrollment into Momnt’s online or mobile portal and account management platform (the “Online Platform”). Merchant is responsible for any systems required to access the Online Platform and will need a computer or mobile device, Internet connectivity, and an updated browser to access the Online Platform and review the disclosures and notices provided to Merchant. The use of the Online Platform may be subject to additional terms and conditions applicable to the Online Platform as provided by Momnt from time to time, including, without limitation, any applicable terms of use and privacy policy.

31. Miscellaneous.

(a) Further Assurances. Merchant agrees to execute all such additional documents and instruments and to do all such further things as Momnt hereto may reasonably request in order to give effect to and consummate the transactions contemplated hereby.
(b) Subcontracting. Merchant acknowledges that various components of the Program or Momnt’s obligations under this Agreement may be subcontracted by Momnt to third parties. Momnt may share with its subcontractors information and data related to the Program and this Agreement.
(c) Consents to Written or Electronic Disclosures and Notices. Merchant consents to the written or electronic provision of all disclosures and notices from Momnt, including any that may be required by Applicable Law. Merchant agrees that electronic delivery of a disclosure and notice to Merchant has the same legal effect as if Merchant is provided with a physical/written copy.

32. Construction.

For purposes of this Agreement, whenever the context requires:

(a) the singular number includes the plural, and vice versa; the masculine gender includes the feminine and neuter genders; the feminine gender includes the masculine and neuter genders; and the neuter gender includes masculine and feminine genders
(b) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the word “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits”, and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement.
(e) All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.
(f) Any agreement, instrument, or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, or statute as from time to time amended, modified, or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
(g) The word “or”, when used in this Agreement, is not exclusive.

33. Definitions.

For purposes of this Agreement and the Operating Instructions:

“Account Number” is a unique identification number assigned by the Program.

“Affiliate” is a Person that, directly or indirectly, controls, or is controlled by, or is under common control with, a Person. For purposes of this definition of Affiliate, “control” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract, or otherwise.

“Agreement” is defined in the preamble.

“Applicable Law” means any applicable federal, state, local, or other (i) law, statute, regulation, rule, supervisory or administrative guidance, directive, or interpretation published by a governmental authority that is applicable to or binding upon a party or the Program, or (ii) any judicial, administrative, or other governmental order, judgment, decree, decision, permit, or ruling that is binding upon or otherwise applicable to a party or the Program; as any of the foregoing may be amended or modified and in effect from time to time.

“Application” is an application for the extension of credit under a Loan pursuant to the procedures designated by Momnt or Momnt’s selected Lender from time to time.

“Borrower” is a customer of Merchant who has applied for and has been approved for a Loan.

“Borrower Information” is any personal information about any applicant or co-applicant, or any Borrower received in connection with a Loan, or an application for a Loan, whether included in an Application or through use of the Account Number or obtained from the Program, including the applicant or co-applicant’s name, address, social security number, date of birth, income information, Account Number, and Loan information.

“Business Day” is any day that is not a Saturday, a Sunday, or other day on which banks are required or authorized to be closed in Atlanta, Georgia.

“Complaint” is a complaint, escalation, dispute, or any expression of dissatisfaction, whether written or verbal, from any consumer or any third party that is in any way arising from or relating to the Program or this Agreement.

“Consumer Information” is any information regarding an individual received, collected, or otherwise obtained by Merchant or Momnt in connection with the Program, including, without limitation, any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act or its implementing regulations (including Borrower Information) and any “personal information” or “personal data” as such terms are defined under Applicable Law.

“Consumer Protection Laws” is defined in Section 3(b)(1).

“Dispute” is defined in Section 29.

“Intellectual Property Rights” is defined in Section 19(b).

“Lender” is one or more Persons originating and funding Loans pursuant to the Program or other persons holding title and/or economic rights to Loans originated through the Program, in each case as selected by Momnt at Momnt’s sole discretion. This may include, at Momnt’s sole discretion, financial institutions, Momnt, or other legal lending entities.

“Loan” is an extension of credit made to a Borrower from a Lender under a Loan Agreement created pursuant to the Program.

“Loan Agreement” is a written agreement between a Lender and a Borrower containing the terms and conditions of a Loan, including a promise to repay the Loan.

“Loan Documents” are the Loan Agreement, associated Truth-in-Lending Act disclosures and other documentation and communications from a Lender.

“Loss” is defined in Section 14(a).

“Merchant” is defined in the preamble.

“Merchant Enrollment Application” is the Program enrollment application that Momnt makes available for Merchant’s execution.

“Merchant Fee” is defined in Section 5.

“Merchant Indemnified Person” is defined in Section 14(c).

“Merchant Indemnifying Person” is defined in Section 14(a).

“Merchant’s Agents” means Merchant’s owners, directors, officers, advisers, members, managers, representatives, employees, agents, or subcontractors.

“Momnt” is defined in the preamble.

“Momnt Indemnified Person” is defined in Section 14(a).

“Offering Request” is evidence of a sale in paper or electronic form of Offerings purchased from Merchant by a Borrower and shall include any and all information required by this Agreement.

“Offerings” are any goods or services that Merchant offers, sells, distributes, provides, or installs or that are offered, sold, distributed, provided, or installed on behalf of Merchant, other than any goods or services designated by Momnt as not eligible for the Program in the Operating Instructions or otherwise in a notice provided to Merchant.

“Online Platform” has the meaning given to it in Section 30.

“Operating Instructions” are instructions or procedures that Momnt communicates to Merchant and updates from time to time.

“Person” is an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, or other entity.

“Program” is a lending program administered by Momnt on behalf of Lenders that make consumer loans to customers of merchants in connection with their purchases of goods, services or merchandise from merchants.

“Program Confidential Information” is defined in Section 24(b).

“Reserve Account” is a deposit account in the name of Momnt at a financial intuition selected by Momnt, established in accordance with the terms and conditions set out in Section 8.

“Stacking” means permitting or utilizing: (i) more than one, or any combination of an, extension of credit, credit sale, lease-to-own, or any other point of sale finance, lease or similar transaction, arrangement, or program to complete a single purchase; or (ii) a “bridge” loan or other behavior in which the Borrower uses the proceeds of another loan to pay off a Loan under the Program (i.e., (i) a sale is broken down into multiple transactions which are each separately financed or if the funding of the transaction is for an amount that is less than the sales price of the product, then the difference being financed or funded by another extension of credit, credit sale or lease-to-own arrangement; or (ii) a bridge loan, which is a form of short-term financing that can serve as a source of funding and capital until a Person secures longer term financing or removes an existing debt obligation).