This Merchant Agreement (“Agreement”) sets forth terms under which Cherry Pay LLC, a Delaware limited liability company (“Cherry”) facilitates payment services made by customers of a participating provider of goods or services identified during registration (“Seller”) (collectively, the “Parties”). This Agreement is effective upon Seller’s electronic acceptance of these terms. In the event of any conflict between this Agreement and any other agreement, terms, documents (“Documents”) provided by Cherry, this Agreement shall control. Nothing in this Agreement is intended to terminate or modify the Documents.

1. Cherry’s Role. Cherry facilitates the provision of payment card terminals (“Terminals”) for Seller to provide lending-related disclosures and agreements to Seller’s customers (“Customers”) and to accept card payments from Customers initiated with cards bearing the trademarks of Visa U.S.A., Inc., and Visa International (collectively, “Visa”), MasterCard International Incorporated (“MasterCard”), American Express or any other applicable card networks (such networks being, collectively, the “Payment Networks”), as applicable (collectively, the “Services”). Cherry is not a financial institution or a money transmitter.

Cherry utilizes a payment service provider (“Processor”) to facilitate payments via the Services. Cherry reserves the right to remove or add Payment Networks that it accepts at any time.

2. The Processor. Seller agrees to the creation of an account with the applicable Processor for payment processing (the “Processor Account”). Cherry reserves the right to change any Processor at any time at its sole discretion. If Cherry changes the Processor, Seller may need to sign new agreements or terms and submit a new application.

The Processor’s role is to accept and process credit card, debit card, prepaid card, general purpose gift cards, and other types of payments (collectively “Payment Methods”) for sales of Seller’s products or services or loans through Terminals (“Transactions”).

3. Seller’s Role. Seller is responsible to obtain Customers’ consent to be billed for each Transaction or, as the case may be, on a recurring basis, subject to additional terms and approvals by Cherry, in compliance with applicable legal requirements and the Payment Networks’ payment rules (the “Payment Network Rules”).

Seller is required to comply with all applicable Payment Network Rules. Insofar as the terms of this Agreement and/or the Processor’s terms are inconsistent with the Payment Network Rules, the Payment Network Rules shall prevail.

4. Payment Methods. Seller assumes sole and exclusive responsibility for Transactions under the Processor’s terms, including but not limited to, any Chargebacks (defined below), unauthorized use, or fraudulent Transactions. Seller is solely responsible for verifying the identity of Customers and the eligibility of a presented Payment Method used to purchase Seller’s products, offers, and services, and none of Cherry, its affiliates, and their respective employees, Processors and service providers (each a “Cherry Entity”) guarantee or assume any liability for any Transactions that may later be reversed, or charged back unless otherwise provided on Cherry’s site, app, terminal, or other online access (the “Site”), or otherwise in the agreement with a Processor. Seller is solely responsible for all reversed or charged back Transactions regardless of the reason for, or timing of the reversal or Chargeback. Cherry or the Processor may add or remove one or more types of Payment Networks or Payment Methods, in their sole discretion, at any time, without prior notice to Seller.

5. Identity Verification. At the time Seller signs up for the Services, and upon Cherry’s request, Seller agrees to provide Cherry and the Processor with all information, including valid and current license(s) issued to provide services and goods by Seller, Employer Identification Number (EIN), W-9s, owner information, beneficial owner information, financial statements (collectively, “Seller Information”), reasonably necessary for Cherry or the Processor to verify Seller’s information, including Seller’s identity, licensing status, financial standing and other requirements for Seller’s use of the Services. Seller further authorizes Cherry and the Processor to request information about Seller from third parties. Cherry and the Processor may periodically obtain additional reports to determine whether Seller continues to meet the requirements for a Processor Account and use of the Services. Cherry will treat Seller Information as Seller’s Confidential Information in accordance with this Agreement; provided, however, that Seller authorizes Cherry to share information about Seller, including Seller’s application with Processor (“Merchant Application”) (including whether Seller is approved or declined), Processor Account, Transactions made via the Services, and information from third parties, with the Processor, and as otherwise specified in Cherry’s Privacy Policy, available at https://withcherry.com/privacy, as may be updated from time to time. Seller further authorizes the Processor to share information with Cherry about Seller and Seller’s Transactions with such Processors, in order for Cherry to provide the Services, service Seller’s Processor Account, and market related products and services. If Cherry is unable to verify Seller’s identity or if Seller makes any misrepresentations about Seller’s identity (including providing falsified/counterfeit documents), Cherry may immediately terminate Seller’s account without further notice. Cherry reserves the right to modify, change, or add new requirements in order to verify Seller’s identity at any time.

6. Requests for Additional Information, Inspection, and Audit. (a) Cherry and the Processor may request additional information from Seller at any time to ensure Seller remains eligible to receive the Services. For example, Cherry may ask Seller to present invoices from Seller’s suppliers, a government issued identification such as a passport or driver’s license, a business license, medical license, or other information. Cherry may also ask for permission to inspect Seller’s business location. If Seller refuses any of these requests, Seller’s access to the Services may be suspended or terminated. (b) Processor and all of Seller’s records, recordings and reports relating to the Services provided under this Agreement shall be subject to annual review, audit and copying by Cherry, its designated representatives, assigns, and external and internal auditors, upon no less than three (3) business days’ notice to Seller, except that such prior notice shall not be required when Cherry’s request is made for cause, as determined by Cherry in good faith. Cherry shall arrange for such review, audit and copying to be conducted remotely, although at its option Cherry may elect to conduct such review, audit and copying at Seller’s office.  Any regulatory body or supervisory agency having jurisdiction over Cherry or any Processor of Cherry shall have access to Seller’s books and records, systems, controls, processes and procedures relating to the Services when they deem necessary without prior notice.  Seller will designate a sufficient number of liaison personnel so as to be able to respond timely to audit questions.

7. Changes to Services. Cherry may make changes to the Services, including any feature, functionality or Payment Method. Cherry will provide prior notice of such changes where reasonably possible, but may make changes without notice in some cases, including emergencies and to comply with applicable law, Payment Network Rules and government authorities.

8. Customer Service. Seller is solely responsible for all customer service issues relating to such Seller’s goods or services, including without limitation, any services performed or offered, pricing, order fulfillment, order or appointment cancellation, returns, refunds and adjustments, rebates, functionality and warranty, and feedback concerning experiences with such Seller, any personnel, or Seller’s policies or processes. In performing customer service, Seller must present itself as a separate entity from Cherry.
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As between Seller and Cherry, Cherry will handle customer service issues with the Processor relating to any Processor Account, payment, card processing, debiting or crediting, or the Terminals.

9. Taxes. Seller has sole and exclusive responsibility to determine what, if any, taxes apply to the sale of Seller’s products and services or the payments Seller receives in connection with Seller’s use of the Services (“Taxes”). It is Seller’s sole responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority. Cherry is not obligated to, nor will it, determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Transaction. Cherry retains the right, but not the obligation, at Cherry’s sole discretion, to complete and file tax or related reports with tax authorities regarding Transactions in those jurisdictions where Cherry deems such reporting necessary.
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Seller is obligated to pay all applicable taxes, fees, and other charges imposed by any governmental authority, including, without limitation, any value-added tax, goods and services tax, harmonized sales tax, and/or provincial or territorial sales tax. If Seller is tax-exempt, Seller must provide Cherry with an appropriate certificate or other evidence of tax exemption that is satisfactory to Cherry.
Seller agrees to receive all tax statements in an electronic format and acknowledges that paper tax statements will not be provided.
In the event Seller terminates this Agreement, Seller will receive all electronic tax-related statements for the duration of time the Agreement was authorized. 

10. Customers. Seller will not impose any fee or surcharge on a Customer that seeks to use an eligible Payment Method except as provided by applicable Payment Network Rules and applicable law, as available and as approved by Cherry. Seller will provide an informational slip or receipt to a Customer after the Transaction that includes all information required under Payment Network Rules and applicable law

11. Restricted Use. Seller is required to obey all laws, rules, and regulations applicable to Seller’s use of the Services, including, but not limited to, applicable Payment Network Rules. In addition to any other requirements or restrictions set forth in this Agreement, Seller shall not: (i) utilize the credit available on any Payment Method to provide cash advances to cardholders; (ii) submit any Transaction for processing that does not arise from Seller’s sale of goods or service to a Customer; (iii) act as a payment intermediary or aggregator or otherwise resell the Services; (iv) send what Seller believes to be potentially unauthorized or fraudulent authorizations or unauthorized or fraudulent Transactions; (v) use the Services in a manner that a Payment Network reasonably believes to be an abuse of the Payment Network or a violation of the Payment Network Rules; or, (vi) work around any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the Services.

12. Cherry’s Fees. Seller agrees to pay the fees for the Services indicated in the fee schedule as provided in the Seller’s Merchant Application, which are incorporated herein by reference (the “Processing Fees”). Processing Fees may be collected from Seller by the Processor on Cherry’s behalf per the Processor’s terms or Processing Fees may be collected directly by Cherry.

In addition to the Processing Fees, Seller is also responsible for any penalties and fines imposed on Seller or Cherry by any money services business, Payment Network, Processor, financial institution, or other financial intermediary resulting from Seller’s use of the Services in a manner not permitted by this Agreement, the Processor’s agreement with Seller, or applicable laws, rules or regulations.

13. Chargebacks. (a) In the event a Customer contests a Transaction, whether as an unauthorized charge, due to a dispute with Seller regarding provision of any good or service (including the delivery or non-delivery, and performance or non-performance, of goods and services, or where the Seller is investigated by a regulatory or legal agency for goods and services delivered or not delivered), or for any other reason, the amount of the Transaction may be reversed or charged back to Seller’s Processor Account (a “Chargeback”). For any Transaction that results in a Chargeback, Cherry or the Processor may withhold the Chargeback amount from settlement, as well as any associated Processing Fees, fines, and penalties assessed by a Payment Network or Processor. Further, if Cherry reasonably believes that a Transaction is likely to result in a Chargeback, Cherry or Processor may withhold the amount of the potential Chargeback from Settlement until Cherry or the Processor has determined that a Chargeback will not occur for that Transaction.(b) Seller is solely responsible for Chargebacks that arise from use of the Services, including any obligation to dispute the Chargeback under Processor’s terms. Without limiting the foregoing, Cherry or Processor will provide reasonable assistance to Seller in contesting a Chargeback, provided that Seller cooperates in investigating the Chargeback and provides Cherry or Processor sufficient evidence (in their sole, commercially reasonable, determination) that adequately refutes the Chargeback. Such evidence may include records of the goods and services provided to Customer; receipts indicating Customer’s authorization to purchase the goods and services; and/or records of successful delivery or performance of the goods and services. Failing to cooperate or provide information in a timely manner may result in the Chargeback being resolved against Seller.(c) Seller agrees that Cherry may share information with a Customer about Seller’s Transactions, including a Chargeback, the issuer of the Customer’s Payment Method and the relevant Processor, in order to investigate and mediate a Chargeback. If the Chargeback is resolved in Seller’s favor, the corresponding funds will be released to Seller. If a Chargeback dispute is not resolved in Seller’s favor or Seller chooses not to contest the Chargeback, Cherry or Processor may retain or recover the Chargeback amount and any associated Processing Fees.(d) In the event that Seller (in an individual or business capacity) is subject to a regulatory or legal investigation (including pending criminal charges) based on any Transaction, Cherry may issue a Chargeback of the subject Transaction. Such Chargeback shall not be taken as an admission of wrongdoing by Cherry or any other party.(e) If Cherry believes Seller might incur, or Seller is incurring, an excessive amount of Chargebacks, Cherry may establish additional conditions governing Seller’s use of the Services, including (i) revising or establishing new Processing Fees, (ii) requiring Seller to create a Reserve, (iii) delaying settlement, or (iv) terminating or suspending Seller’s access to the Services.(f) If Cherry is unable to recover funds related to a Chargeback for which Seller is liable, Seller shall pay Cherry the full amount of the Chargeback immediately upon demand. Seller shall pay all costs and expenses, including attorneys' fees and other expenses, incurred by Cherry for the collection of all amounts unpaid by Seller.

14. Refunds. Seller agrees to (a) maintain fair and legally compliant refund, return and/or exchange policies, (b) post such policies in a clear and conspicuous manner at the point-of-sale, and (c) comply with such policies with respect to any purchase that is paid for using the Services.
If Customer is eligible for a refund (including as a result of a reduction in the purchase price) in connection with a purchase paid for using the Services, Seller agrees to process the refund (including returns and adjustments) through Seller’s Processor Account. Seller may not offer cash nor any other form of refund except as specifically permitted by Cherry, Processor, or the Payment Network Rules.The amount of the refund must include associated taxes required to be refunded and shall not exceed the amount shown as the total on the original sales receipt. If Seller’s refund policy prohibits returns or is unsatisfactory to the Customer, be aware that Seller may still receive a Chargeback relating to the Transaction.If the funds available in Seller’s Processor Account are insufficient to cover a refund, Cherry may exercise its rights set forth in this Agreement.

15. PCI Compliance. The Services are intended to allow Seller to process payments without the need for collecting and storing sensitive Payment Method information. Nevertheless, if Seller stores, processes or transmits a Customer’s Payment Method information, Seller shall comply with all applicable Payment Method security requirements, including the Payment Card Industry Data Security Standards (PCI-DSS) and all other security requirements under the Payment Network Rules or applicable law or regulation.

16. Confidential Information. “Confidential Information” means information material to the operations of the Parties that cannot be learned outside of that Party’s business. Confidential Information exists in all forms: written, spoken, observed, electronic, and otherwise. Except as provided below, the Party receiving Confidential Information (“RP”) shall keep confidential and not disclose to any third party, the disclosing Party’s (“DP”) Confidential Information, or any of the terms and conditions of this Agreement, without the prior written consent of the DP. The RP shall take care to prevent the disclosure of DP’s Confidential Information with at least the same degree of care that RP takes to protect its own confidential information of a similar nature, but in any case, no less than an appropriate and commercially reasonable degree of care.

RP may disclose DP’s Confidential Information to its employees, service providers, Processors and affiliates who are informed of the confidential nature of the information and have agreed to be bound by confidentiality obligations at least as stringent as those herein and where such disclosure and/or utilization of Confidential Information is solely for the purpose of (a) performing RP’s obligations under this Agreement or (b) when required to be disclosed by law, regulation, court order, or other legal authority, provided that prior to the disclosure of Confidential Information, RP will, as applicable, (x) notify and reasonably cooperate with DP prior to disclosure so that DP has an opportunity to seek a protective order or other relief, (y) disclose only such information as is required by the law or regulation or court order or other legal authority, and (z) use commercially reasonable efforts to obtain confidential treatment of any Confidential Information so disclosed.

A RP’s confidentiality obligations shall not apply to (a) information in the public domain, except where such information entered the public domain due to a breach of this Agreement, (b) that RP rightfully possessed before it received the Confidential Information from DP, (c) is furnished to RP by a third party free of any obligation of confidentiality, or (d) is developed by RP wholly independent from the Confidential Information.RP agrees to return or destroy DP’s Confidential Information (in any form and including all summaries, copies and excerpts) promptly following DP’s request. At DP’s option, RP will provide written certification of its compliance with this paragraph within seven days following the date of such request.In the event of any breach of a Party's confidentiality obligations, the Parties agree that the non-breaching Party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching Party from any violation by the breaching party will be difficult or impossible to calculate and will therefore be an inadequate remedy. Accordingly, the Parties agree that the non-breaching Party may obtain temporary and permanent injunctive relief against the breaching Party, in addition to any other rights or remedies that the non-breaching Party may be entitled at law, in equity, and under this Agreement.No Party shall obtain any proprietary rights in any Confidential Information that has been (or at any time after the date of this Agreement is) disclosed, directly or indirectly, to it by another person under this Agreement, except as may be expressly provided in this Agreement.Seller may not, without Cherry’s express written approval, issue any press release or otherwise advertise, make a public statement or disclose to any third party any information about the Parties’ relationship under this Agreement, the existence of this Agreement or payments between Customer and Seller, except as otherwise provided for in this Agreement.Except for information owned by a Processor, Seller acknowledges that Cherry owns all other information concerning the Services (collectively, “Cherry Information”), and that Seller has no ownership rights therein. Seller shall treat such Cherry Information as Cherry’s Confidential Information. For clarity, the foregoing does not prevent Seller from collecting and owning information about a Customer unrelated to the Services (for example, information about a Customer relating to its receipt of Seller’s goods and services), and such information shall not be considered Cherry Information. Transaction and related information arising from the Services not deemed Cherry Information shall be governed by Seller’s agreement with the relevant Processor.

17. Data Protection. Seller is fully responsible for Seller’s collection, storage, disclosure and use of, and access to, Cherry Information under Seller’s control or made available to Seller under this Agreement. Seller shall prevent collection, storage, disclosure, use of, and access to, Cherry Information not expressly authorized by this Agreement. Without limiting Seller’s other obligations hereunder (including Seller’s confidentiality obligations), Seller shall implement and maintain a comprehensive and effective written information security program appropriate to the nature of the Cherry Information that: (a) contains administrative, technical and physical safeguards to identify, assess and protect against any reasonably foreseeable anticipated or actual threats and hazards (whether internal or external) to the security and integrity of Cherry Information, including threats of loss, theft, unauthorized access, use, disclosure and other unauthorized processing of Cherry Information and any failure of security controls protecting Cherry Information, (b) meets industry best practices for such safeguards, and (c) complies with all applicable data protection and privacy laws.Seller shall monitor the sufficiency of Seller’s safeguards. Seller shall review the scope of Seller’s security measures at least annually. Such review shall include risk assessments, regular testing, and otherwise monitoring the effectiveness of key controls, systems and procedures to confirm Seller’s safeguards are operating in a manner that is reasonably calculated to prevent and detect unauthorized access to, use, and disclosure of Cherry Information. Cherry reserves the right to review, upon request, Seller’s policies, procedures and practices used to maintain the privacy, security and confidentiality of Cherry Information.

18. Security Interest. As security for the performance of Seller’s obligations under this Agreement, Seller grants Cherry a lien and security interest in any funds processed using the Services or deposited in any bank account associated with the Services. These security interests and liens will secure payment and performance of Seller’s obligations under this Agreement and any other agreements now existing or later entered into between Seller and Cherry. Seller will execute, deliver and pay the fees for any documents Cherry requests to create, perfect, maintain, and enforce this security interest.

19. Collection Rights. To the extent permitted by law, Cherry may collect any obligations Seller owes to Cherry under this Agreement by deducting from the Reserve (defined below). Fees will be assessed at the time a Transaction is processed and will be first deducted from the funds received for such Transaction. Seller’s failure to fully pay the amounts that Seller owes to Cherry on demand will be a material breach of this Agreement. Seller will be liable for Cherry’s costs associated with collection in addition to the amount owed, including, without limitation, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.

Further, Cherry may deduct, or request that the Processor deduct, from any accounts associated with the Services, including Processor Accounts and any reserve account held with Processor, any amounts that Seller owes to Cherry under this Agreement or the Documents.Additionally, Cherry may require a personal guarantee from a principal of a business for funds owed under this Agreement. If Cherry requires a personal guarantee, Cherry will specifically inform Seller in advance.

20. Reserves. In its sole discretion, Cherry may require Seller to maintain a separate reserve account (a “Reserve”), in an amount reasonably determined by Cherry to cover potential losses to Cherry arising from Seller’s failure or potential failure to perform Seller’s obligations, including Processing Fees, Chargebacks, refunds, levies, liens, and garnishments. The Reserve amount may be raised, reduced or removed at any time by Cherry in its sole discretion.
Cherry may require Seller to fund the Reserve by means of: (i) any funds payouts made or due to Seller for Transactions submitted to Cherry; or, (ii) amounts available in Seller’s bank account by means of ACH debit to Seller’s bank account; or, (iii) other sources of funds associated with the Services; or, (iv) requesting that Seller provide funds to Cherry for deposit to the Reserve. Seller shall maintain the Reserve at the required amount at all times. If any amount is debited from the Reserve, Seller agrees to replenish the Reserve no later than three business days following such debit. If Seller fails to maintain sufficient funds in the Reserve, Seller acknowledges, agrees, understands and authorizes Cherry or the Processor to fund the Reserve by withholding the appropriate amount from Seller’s Settlement.Seller agrees that: (i) Seller is not entitled to any interest or other compensation associated with the funds held in the Reserve; (ii) Seller has no right to the Reserve; (iii) Seller has no legal interest in those funds or the Reserve; and (iv) Seller may not assign any interest in those funds or the Reserve.Cherry may continue to hold or deposit funds in the Reserve after termination of this Agreement, regardless of whether termination is by Seller or Cherry, or the reason for termination. Upon termination of this Agreement by Seller or Cherry, Cherry may retain sufficient funds to satisfy any and all Chargebacks, anticipated Chargebacks, fees, and any other fees owed, fines, penalties, loss allocations, damages, expenses (including, withoutlimitation, attorneys’ fees, investigatory and/or remediation expenses), charges, registrations, certification expenses, payment obligations owed by Seller to Cherry under this Agreement (including, without limitation, indemnity obligations), and any and all or other amounts due to Cherry, the Payment Networks, or any governmental, banking, or regulatory agency, or claimed by third parties, arising out of this Agreement or involving Seller’s business, actions, omissions, or use of the services contemplated under this Agreement. Notwithstanding any of the foregoing, as an additional and cumulative right under this Agreement, if Cherry reasonably believes that due to the circumstances of the termination of this Agreement, the amount of Chargebacks, anticipated Chargebacks, fines, fees, or any other item described above in this Section, may equal or exceed the amount held in the Reserve, Cherry may also identify, sequester, or transfer to itself any portion of the Reserve or other funds held by Processor that Cherry believes are needed to pay such obligation, and Cherry may hold and use such amount for its own benefit and protection (as opposed to any such amount of the Reserve being held for Seller’s benefit or the benefit of any third party). If no funds have been deposited into the Reserve before termination of this Agreement, Cherry, at Cherry’s sole option, may notify Seller to deposit funds into the Reserve (in an amount identified by Cherry in its sole and absolute discretion) upon termination of this Agreement. All provisions which apply to a pre‐termination Reserve will apply after termination, including replenishment of deficiencies. The Reserve will be held by Cherry or its designated agent for a period of not less than three hundred and sixty-five days from the date of the last Transaction processed under the Agreement, plus the period of any warranty, guarantee, and/or return policy on goods and/or services sold, or until such time as Cherry determines, in its sole and absolute discretion, that the release of Reserve funds to Seller is prudent, in the best interest of Cherry, and commercially reasonable and that all of Seller’s payment obligations to Cherry under this Agreement are fully resolved. Upon expiration of this period, except as set forth to the contrary above, Cherry will return the balance in the Reserve to Seller after Cherry reasonably determines that the risk of Chargebacks, anticipated Chargebacks, and any other amounts potentially owed by Seller under the Agreement has ended and after deducting all amounts that Seller owes to Cherry under this Agreement or any other agreement.

21. Term, Termination and Suspension. (a) This Agreement is effective upon the date Seller agrees to it and continues so long as Seller uses the Services or until terminated by Seller or Cherry. Seller may terminate this Agreement by notifying Cherry in accordance with this Agreement at any time. Cherry may terminate this Agreement at any time. Termination of this Agreement shall not affect rights of either Party to recover for breaches occurring (or with respect to matters relating to Transactions occurring) prior thereto.(b) In addition to right of termination under this Section, Cherry may immediately suspend Seller’s ability to submit new Transactions pursuant to this Agreement, and Cherry will use commercially reasonable efforts to notify Seller promptly after such suspension. Such suspension will be for so long as Cherry reasonably determines.(c) Notwithstanding termination of this Agreement, provisions of this Agreement will continue in full force and effect as to all Transactions under this Agreement prior to termination. In event that Cherry has provided Terminals or any other equipment to Seller in connection with the Services, Seller agrees to return such equipment to Cherry upon termination of this Agreement.(d) In 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 exercise of one remedy will not be deemed either an election of such remedy or a preclusion of right to exercise any other remedy.(e) Seller agrees, acknowledges and understands that, notwithstanding anything in this Agreement to the contrary, Cherry may, in its sole discretion, suspend Seller’s access to and use of the Services, if Cherry suspects that Seller is or may be in breach of this Agreement, any Processor’s terms of service, applicable law, regulation or rule, or if a Processor or government authority instructs Cherry to suspend Seller’s use of the Services. If Seller’s access to and use of the Services has been suspended, Seller may still be permitted to use Cherry’s other products at Cherry’s sole discretion.(f) Upon suspension or termination of this Agreement, Seller shall immediately cease using the Services until such suspension is lifted by Cherry. In the case of termination, all licenses or other rights granted to Seller shall immediately and automatically terminate and revert to their owners. Seller shall immediately remove all signage, logos, marketing materials and similar displays relating to Cherry or the use of the Services from Seller’s physical and online locations and all Customer channels. Notwithstanding a suspension or termination, Seller shall remain responsible and liable under this Agreement, and Processors’ terms, for Transactions submitted for processing prior to suspension or termination, including for subsequent refunds and Chargebacks.

22. Suspected Fraud, Illegal Transactions, Harm. Cherry and the Processor may refuse to process a Transaction or withhold Settlement, if Cherry or the Processor believe that the Transaction is in violation of this Agreement, applicable law, regulation or rule, Payment Network Rules any other agreement with Cherry, or that it exposes Seller, Customers, other Cherry Entities, the Processors or Cherry to harm (including fraud and other criminal acts). If Cherry suspects that Seller’s Processor Account or the Services have been used for an unauthorized, illegal, or criminal purpose, Seller agrees, acknowledges, understands, and authorizes Cherry to share information about Seller, Seller’s Processor Account, and any of Seller’s Transactions with law enforcement and, as deemed necessary by Cherry, the Processors and their financial institution partners. Additionally, Cherry may withhold Seller’s access to Seller’s Processor Account, as necessary to comply with applicable law, Payment Network Rule or court order, or if requested by any governmental entity, Processor or Payment Network.

23. Right to Amend. Cherry has the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services or Site with notice that Cherry, in its sole discretion, deems to be reasonable in the circumstances, including such notice in Seller’s Processor Account, or any other website maintained or owned by Cherry for the purposes of providing the Services. Any use of the Services after Cherry’s publication of any such changes shall constitute Seller’s acceptance of this Agreement as modified.

24. Indemnification. In addition to any right in any of the Documents, by using the Services, Seller acknowledges and agrees that, in the event that it becomes necessary or advisable for Cherry to defend itself, in a court of law or otherwise, Cherry may rely on Seller’s representations and warranties contained herein. To the fullest extent permitted by applicable law, Seller agrees to defend, indemnify, and hold harmless Cherry and its subsidiaries and affiliates, and each of its respective directors, officers, partners, employees, (individually and collectively, the “CherryParties”) from and against any and all losses, claims, liabilities, demands, damages, fines, penalties, costs, and expenses (“Claims”), arising out of or related to (i) Seller’s access to or use of the Services or any Processor Account; (ii) Seller’s violation, infringement, or misappropriation of any rights of another (including intellectual property rights or privacy rights); (iii) Seller’s violation of this Agreement; (iv) Seller’s conduct in connection with the Services or any Processor Account; or (v) taxes and filings made by any Cherry Entity in respect thereof. Seller will promptly notify the Cherry Parties of any third-party Claims, cooperate with the Cherry Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). The Cherry Parties reserve the right, in their sole discretion, to assume the exclusive defense, control, or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between Seller and Cherry or the other Cherry Parties.

25. Representations, Warranties, and Covenants. With each Transaction Seller processes through the Services, Seller represents, warrants and covenants that: (a) the Transaction represents a bona fide sale; (b) the Transaction accurately describes pricing, goods and services provided; (c) Seller shall fulfill all of Seller’s obligations to the Customer and resolve any dispute or complaint directly with the Customer; (d) Seller and the Transaction comply with all applicable federal, state, and local laws, rules and regulations and Payment Network Rules; (e) except in the ordinary course of business, Seller shall not submit a Transaction that represents a sale to any principal, partner, proprietor, or owner of Seller; and (f) Seller shall not submit a Transaction involving Seller’s own payment methods, e.g., corporate cards issued to Seller’s employees.Seller further represents, warrants and covenants to Cherry that:(a) Seller has necessary power and authority to enter into this Agreement and certificates, licenses, authorizations and/or approvals to perform Seller’s obligations hereunder to (i) provide the goods and services for which a payment may be accepted; and that (ii) Seller’s provision of such goods and services do not violate applicable law.(b) There is no claim, litigation, proceeding, arbitration, investigation or material controversy pending, against or affecting Seller that will have a material adverse effect on Seller’s or Cherry’s ability to perform its obligations under this Agreement.(c) To the best of Seller’s knowledge, no such claim, litigation, proceeding, arbitration, investigation or material controversy has been threatened or is contemplated against Seller.(d) Any information furnished by Seller is true and correct in all material respects when furnished; and Seller shall immediately notify Cherry of updates and corrections to such information in the event any portion becomes untrue or incorrect.

26. Disclaimer of Warranties. IN ADDITION TO AND WITHOUT LIMITING ANY DISCLAIMER OF WARRANTIES IN THE DOCUMENTS, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL FEATURES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE SITE, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, DISPLAYABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, THOROUGHNESS, COMPLETENESS OF CONTENT OR INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND CHERRY HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.
CHERRY DOES NOT WARRANT THAT THE SERVICES, CONTENT, TERMINALS, FUNCTIONS OR MATERIALS PROVIDED THROUGH THE SITE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. CHERRY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF THE SERVICES OFFERED OR PROVIDED BY SELLERS OR REQUESTED BY CUSTOMERS THROUGH USE OF THE SERVICES WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY SELLER. CHERRY MAKES NO WARRANTY THAT THE SERVICES WILL MEET A SELLER’S REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SELLER FROM CHERRY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CHERRY ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, THE TERMINALS OR SELLER’S EQUIPMENT FROM USE OF THE SERVICES OR ON ACCOUNT OF SELLER’S ACCESS TO, USE OF, OR BROWSING ON THE SITE OR SELLER’S DOWNLOADING OF ANY MATERIALS, DATA, INFORMATION, TEXT, IMAGES, OR OTHER CONTENT FROM THE SITE.CHERRY RESERVES THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED VIA THE SERVICES OR ON THE SITE AT ANY TIME AND WITHOUT ANY PRIOR WARNING. CHERRY WILL NOT BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE. UNDER NO CIRCUMSTANCES DOES SELLER’S USE OF THE SERVICES FORM ANY RELATIONSHIP (OTHER THAN THE CONTRACTUAL RELATIONSHIP CREATED BY THIS AGREEMENT), WHETHER IMPLIED OR EXPRESS, WITH CHERRY. CHERRY HEREBY DISCLAIMS ANY SUCH RELATIONSHIP AND ANY LIABILITY ARISING AS A RESULT OF SELLER’S USE OF THE SERVICES OR ANY CONTENT CONTAINED ON THE SITE.
IT IS POSSIBLE FOR OTHER USERS OF THE SERVICES TO OBTAIN PERSONAL INFORMATION ABOUT SELLER DUE TO SELLER’S USE OF THE SERVICES, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE SELLER. CHERRY IS NOT RESPONSIBLE FOR THE USE BY OTHER USERS OF THE SERVICES OF ANY PERSONAL INFORMATION THAT SELLER DISCLOSES THROUGH THE SERVICES.

27. Limitation of Liability. IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL THE CHERRY PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR LOST DATA. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SELLER. IN NO EVENT SHALL THE CHERRY PARTIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO SELLER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR SELLER’S USE OF THE SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY SELLER TO CHERRY FOR SELLER’S USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IF SELLER IS DISSATISFIED WITH THE SERVICES, SELLER’S SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES.
CHERRY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN SELLERS AND CUSTOMERS RELATED TO OR ARISING FROM USE OF THE SERVICES. SELLER HEREBY RELEASES AND FOREVER DISCHARGES THE CHERRY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER SELLER OR CUSTOMER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF THE SERVICES OR OTHERWISE.SELLER ACKNOWLEDGES AND AGREES THAT CHERRY HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

28. Nonwaiver. The Parties hereto shall not by any act, delay, omission or otherwise be deemed to have waived any rights or remedies hereunder. Each Party agrees that other Party’s failure to enforce any of its rights under this Agreement shall not affect any other right or same right in any other instance

29. Third Party Beneficiaries. Except as expressly provided herein, this Agreement shall not create any rights on part of any person not a party hereto, whether as a third party beneficiary or otherwise; provided however, that Cherry shall have the right to enforce this Agreement fully as against Seller

30. Binding Arbitration. Generally. In the interest of resolving disputes between Seller and Cherry in the most expedient and cost-effective manner, Seller and Cherry agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of whether a claim arises during or after the termination of these Terms. SELLER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, SELLER AND CHERRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.Exceptions. Despite the provisions of this Section, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.Arbitrator. Any arbitration between Seller and Cherry will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cherry. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Cherry’s address for Notice is listed below. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice of Arbitration is received, Seller or Cherry may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by Seller or Cherry must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards Seller an amount higher than the last written settlement amount offered by Cherry in settlement of the dispute prior to the award, Cherry will pay to Seller the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.Fees. If Seller commences arbitration in accordance with this Agreement, Cherry will reimburse Seller for Seller’s payment of the filing fee, unless Seller’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if the claim is for $10,000 or less, Seller may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Seller’s headquarters address. If the arbitrator finds that either the substance of Seller’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Seller agrees to reimburse Cherry for all monies previously disbursed by it that are otherwise Seller’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.No Class Actions. SELLER AND CHERRY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Seller and Cherry agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.Modifications to this Arbitration Provision. If Cherry makes any future change to this arbitration provision, other than a change to Cherry’s address for Notice of Arbitration, Seller may reject the change by sending us written notice within thirty (30) days of the change to Cherry’s address for Notice of Arbitration, in which case Seller’s relationship with Cherry will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Seller rejected will survive.Enforceability. If a portion of this arbitration clause is found to be unenforceable, then the entirety of this arbitration clause will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to this Agreement.

31. Governing Law; Severability. This Agreement shall be governed by and construed in accordance with laws of State of California without reference to its conflict of laws provisions. Seller and Cherry submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under this Agreement. 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 remaining provisions hereof and this Agreement may be reformed giving effect to greatest extent possible to intentions of parties as reflected by ineffective provision.

32. 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 Cherry and Seller. Cherry and Seller are independent contractors, and neither Party shall have authority to speak for, commit or bind the other party.

33. Notices. (a) Any notices which may or shall be given hereunder shall be in writing and shall either (1) be delivered to the party for whom intended; or (2) sent by registered, certified mail, postage prepaid, or by overnight express courier service, with return receipt requested to the address of such party or to such other address provided by notice. Such notices shall be effective upon receipt, except for e-mail notices, which shall be effective upon receipt by the party sending the e-mail of a specific confirmation of receipt by return e-mail from the party to whom the e-mail notice was directed.(b) All notices to Cherry hereunder shall be sent to the address set forth below or to such other address or e-mail address as Cherry may advise Seller in writing:Cherry Technologies, Inc.Attention: Legal Notices2 Embarcadero Center, 8^th Floor, San Francisco, CA 94111E-Mail: compliance@withcherry.com(c) Notices to Seller shall be sent to Seller’s postal or street address, or e-mail address set forth in the Merchant Application or such other address, or e-mail address as Seller may advise Cherry in writing.

34. Assignment. Seller may not assign this Agreement without prior written consent of Cherry; any purported assignment without such consent shall be void. Cherry may assign this Agreement and any of its rights or obligations hereunder at any time. In event of such assignment, 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 assignee assumes its obligations hereunder. Otherwise, this Agreement is binding upon parties and their successors and assigns.

35. Cherry’s Marks. Subject to the limitations in this Agreement and subject to Cherry’s prior written approval, Cherry grants Seller the non-exclusive right and license to use Cherry’s brands, names, logos, trademarks, trade names or service marks (“Marks”) during the term of this Agreement solely in conjunction with the use of the Services. Cherry grants no rights in the Marks or in any other trademark, trade name, service mark, product designation, business name or goodwill of Cherry, except as licensed hereunder or by separate written agreement of the Parties. Seller agrees that it will not at any time during and after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Marks or any other trademark, trade name, service mark, product designation, business name or goodwill belonging to or licensed to Cherry (including, without limitation registering or attempting to register any Mark or any such other trademark, trade name, service mark or product designation). During the term of this Agreement, Seller agrees not to use any trademark, trade name, service mark, product designation or business name likely to create confusion with a trademark, trade name, service mark, product designation or business name of Cherry, except for the Marks expressly licensed hereunder. Upon expiration or termination of this Agreement, Seller will immediately cease all display, advertising and use of all of the Marks and will not thereafter use, advertise or display any trademark, trade name, service mark, product designation or business name which is, or any part of which is, likely to create confusion with any Mark or with any trademark, trade name or product designation of Cherry.

36. Non-Solicitation. During the term of this Agreement and for a period of two (2) years following its termination or expiration for any reason (the “Restricted Period”), neither Party shall, directly or indirectly, whether on its own behalf or on behalf of any other person or entity, solicit for employment or engagement, or hire, any individual who is, or was within the preceding twelve (12) months, an employee of the other Party and who was involved in or connected with the performance of this Agreement, without the prior written consent of the other Party. For purposes of this section, “solicit” shall mean actively initiating contact with such employee for the purpose of inducing such employee to leave his or her employment; general solicitations of employment not specifically targeted at the employees of the other Party (such as advertisements in newspapers, job boards, or general online postings) shall not be considered a breach of this section.

37. Anti-Corruption. Seller represents and warrants that it is aware of the terms of the Foreign Corrupt Practices Act (“FCPA”) and other anti-corruption laws that may apply in the jurisdictions in which Seller will provide the Services (together, the “Anti-Corruption Laws”) and Seller agrees that at all times during the term of this Agreement, it will refrain from any activity which may constitute a violation of the Anti-Corruption Laws. Without limiting the foregoing, Seller represents and warrants that neither Seller nor any of its officers, directors, employees, agents, sub-contractors or other representatives has performed or will perform any of the following acts in connection with this Agreement, any sale made or to be made hereunder, any compensation paid or to be paid hereunder, or any other transactions involving the business interests of Cherry: pay, offer or promise to pay, or authorize the payment of, any money, or give or promise to give, or authorize the giving of, any services or anything else of value, either directly or through a third party, to any official or employee of any governmental authority or instrumentality, or of a public international organization, or of any agency or subdivision thereof, or to any political party or official thereof or to any candidate for political office for the purpose of (a) influencing any act or decision of that person in his official capacity, including a decision to fail to perform his/her official functions with such governmental agency or instrumentality or such public international organization or such political party; (b) inducing such person to use his/her influence with such governmental agency or instrumentality or such public international organization or such political party to affect or influence any act or decision thereof, or; (c) securing any improper advantage. Cherry may terminate this agreement immediately in the event it reasonably believes Seller has violated or will violate this section any applicable Anti-Corruption Laws. 

38. Survival. Any provision of this Agreement which by its nature extends beyond the termination of this Agreement, will survive the termination of this Agreement.

39. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and is the final expression of the Parties’ understanding. No prior discussions or communications shall form any part of this Agreement, unless expressly noted herein.

40. Force Majeure. Neither Party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its control. Without limiting the generality of the foregoing, such causes include Acts of God, or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, pandemics, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by the Party. A Party claiming force majeure must use commercially reasonable efforts to minimize delay or damages caused by foreseeable events, substantially fulfill all non-excused obligations, and promptly notify the other Party of the likelihood or actual occurrence of such an event. Upon completion of the event of force majeure the non-performing party must as soon as reasonably practicable recommence the performance of its obligations under this Agreement. Should a condition or event of force majeure continue for more than thirty (30) consecutive days, this Agreement may be immediately terminated at the option of Cherry upon written notice to Seller.

41. Construction. (a) For purposes of this Agreement, whenever context requires: singular number includes plural, and vice versa; masculine gender includes feminine and neuter genders; feminine gender includes masculine and neuter genders; and neuter gender includes masculine and feminine genders.(b) The Parties hereto have participated jointly in negotiation and drafting of this Agreement and, in 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 authorship of any provision of this Agreement.(c) As used in this Agreement, 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 word “without limitation.”(d) 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 case of agreements or instruments) by waiver or consent and (in case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.(e) The word “or”, when used in this Agreement, is not exclusive.

42. Electronic Acceptance. By checking the box indicating acceptance of this Agreement, Seller acknowledges that Seller has read, understands, and agrees to be bound by all of the terms and conditions of this Agreement. Seller's electronic acceptance shall have the same force and effect as a manual signature. This Agreement is effective as of the date of Seller’s electronic acceptance.