Schedule C (Member Bank Terms)

This Cross River Bank Acquirer Terms (“Member Bank Terms”) applies to all merchants that (a) use Airwallex US LLC’s (“Airwallex’s”) service (the “Service”) for the acceptance of credit or debit card payments; and (b) surpass certain transaction processing volume thresholds as set by Visa, Inc. and MasterCard International, Inc. (individually a “Network” and collectively, the “Networks”). Contingent and effective upon surpassing the Network Thresholds, the merchant (“Merchant”) enters into this Agreement with Cross River Bank, a New Jersey state-chartered bank, having its principal offices at 2115 Linwood Ave, Fort Lee, NJ 07024 (“Member”),  to govern the authorization, conveyance and settlement of Transactions utilizing the Service. By agreeing to the Payments Terms (to which this Agreement is incorporated by reference)), Merchant is fulfilling the Network Rules requiring a direct contractual relationship between the Member and Merchant, and Merchant is agreeing to comply with Network Rules as they pertain to payments Merchant receives through Airwallex. Certain capitalized terms are defined in Section 12 below. Capitalized terms not otherwise defined herein have the respective meanings given them in the Payments Terms. 

1. Merchant’s Acceptance of Payment Cards.

1.1 Payment Card Acceptance Policies and Prohibitions.

Merchant shall be provided guidelines which prescribe:

(a) accept all categories of Visa and MasterCard Payment Cards,

(b) honor all foreign bank-issued Visa or MasterCard Payment Cards; and

(c) provide the Purchaser with a Transaction Receipt for each Transaction. All Transaction Receipts must conform to applicable law and the Network Rules.

Except to the extent permitted by law or the Network Rules, Merchant must not:

(d) engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand;

(e) set a dollar amount above or below which Merchant refuses to honor otherwise valid Payment Cards;

(f) issue a refund in cash or a cash equivalent (e.g. checks) for any Transaction originally conducted using a Payment Card;

(g) request or use a Payment Card account number for any purpose other than to process a payment for goods or services sold; or

(h) add any tax or surcharge to a Transaction; if any tax or surcharge amount is permitted under the Network Rules and applicable law, such amount shall be included in the Transaction amount and shall not be collected separately.

1.2 Network Rules.

Merchant agrees to comply with:

(a) all applicable Network Rules in effect from time to time; and

(b) such other procedures as Airwallex may from time to time prescribe for the creation or transmission of Transactions.

1.3 Requirements for Certain Transactions.

Merchant represents, warrants, and covenants that, to the best of its knowledge, each Transaction:

(a) represents payment for or refund of a bona fide sale or lease of the goods, services, or both, which Merchant has the legal right to sell and which is provided by Merchant in the ordinary course of its business;

(b) is not submitted on behalf of a third party;

(c) represents a current obligation of the Purchaser solely for the amount of the Transaction;

(d) does not represent the collection of a dishonored check or the collection or refinancing of an existing debt;

(e) represents goods that have been provided or shipped, or services that have actually been rendered, to the Purchaser;

(f) is free from any material alteration not authorized by the Purchaser;

(g) or the amount thereof, is not subject to any dispute, setoff, or counterclaim;if such Transaction represents a credit to a Purchaser’s Payment Card, is a refund for a Transaction previously submitted; and

(h) complies with the terms of this Agreement, applicable laws and all applicable Network Rules.

2. AUTHORIZATIONS.

Merchant is required to obtain an authorization code through Airwallex for each Transaction. Airwallex reserves the right to refuse to process any Transactions presented by Merchant unless it includes a proper authorization.

3. Refund and Adjustment Policies and Procedures; Privacy Policies.

3.1 Merchant must:

(a) maintain a refund policy (e.g. “NO REFUNDS”, “REFUNDS WITH ORIGINAL RECEIPT WITHIN 30 DAYS OFORIGINAL SALE”) in accordance with the Network Rules; and

(b) disclose all refund policies to Airwallex and to Merchant’s Purchasers.

3.2 Policies for Ecommerce Merchants. Merchant must (subject to subsection (c) below):

(a) display the following on each electronic commerce website:

i. all refund policies;

ii. its Purchaser data privacy policy;

iii. a description of its security capabilities and policy for transmission of Payment Card Information; and

iv. the address of Merchant’s fixed place of business (regardless of website or server locations); and

(b) offer its Purchasers a data protection method such as 3-D Secure or Secure Sockets Layer (SSL).

(c) Subsections (a) and (b) of this Section shall apply in the event that Merchant is an Electronic Commerce Merchant (as defined in the Network Rules and such Merchant engages in Electronic Commerce Transactions (as defined under the Network Rules).

4. Chargebacks.

4.1 Chargeback Reasons. Merchant is liable for all chargebacks.

4.2 Responding to Chargebacks. If Merchant has reason to dispute or respond to a chargeback, then Merchant must do so by the date provided on the applicable chargeback notice. If Merchant misses the chargeback due date, Airwallex has no obligation to investigate or attempt to obtain a reversal or other adjustment to any chargeback on Merchant’s behalf. Upon receiving a chargeback Merchant may resubmit the applicable Transaction for a second presentment if permitted by the Network Rules.

4.3 Excessive Chargebacks. If Merchant is receiving an excessive amount of chargebacks, in addition to Airwallex’s other remedies under this Agreement, Airwallex may terminate this Agreement and cease providing processing services.

5. Display of Card Brand Marks.

Merchant is authorized to use the Visa and MasterCard names, logos, or marks only at the point of sale, on Merchant's promotional materials, and on Merchant’s website to indicate that Visa and MasterCard cards are accepted payment methods for the purchase of goods or services from Merchant through its use of the Service.

6. Term and Termination.

6.1 Term. This Agreement is effective upon the date Merchant surpasses the Network Thresholds and continues so long as Merchant uses the Service or until sooner terminated by Merchant or Airwallex. This Agreement will terminate automatically upon any termination or expiration of Merchant's agreement with Airwallex. This Agreement may be terminated by Airwallex at any time (a) based on a breach of any of Merchant's obligations under this Agreement; or (b) based on a breach of any of Merchant’s obligations under Merchant’s agreement with Airwallex.

6.2 Post Termination. If this Agreement is terminated by Airwallex, Merchant acknowledges that Airwallex may be required to report Merchant’s business name, and information about its principals, to the Card Brands, and Merchant expressly agrees and consents to such reporting. The termination of this Agreement will not affect either party’s rights or obligations with respect to Transactions submitted prior to termination. Therefore, the provisions governing processing and settlement of Transactions, all related adjustments, fees, and other amounts due from Merchant, and the resolution of any related chargebacks, disputes, or other issues involving Transactions, will continue to apply for all Transactions made prior to termination.

7. Indemnification.

Airwallex agrees to indemnify and hold Merchant harmless from and against all losses, liabilities, damages and expenses arising from our or our employee's gross negligence or willful misconduct in connection with this Agreement. Merchant agrees to indemnify Airwallex, Member, the Card Brands, and their respective affiliates, officers, directors, employees, agents, and sponsoring banks from any losses, liabilities, and damages of any and every kind (including, without limitation, Airwallex’s costs, expenses, and reasonable attorneys’ fees) arising out of:

(a) any breach of any warranty, covenant or agreement or any misrepresentation by Merchant under this Agreement;

(b) Merchant's or its employees' negligence or willful misconduct;

(c) any assessment, fine, or penalty imposed on Airwallex or the Member, and any related loss, cost, or expense incurred by Airwallex or the Member; and(d) any claim, complaint, or chargeback:

i. made or claimed by a Purchaser with respect to any Transaction submitted by Merchant, Merchant’s provision of goods and services to Purchasers, or Merchant’s use of the Service;

ii. caused by Merchant’s noncompliance with this Agreement, applicable law, or the Network Rules (including, without limitation, any breach of a representation or warranty made by Merchant or Merchant’s failure to comply with PCI-DSS);

iii. resulting from any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; or

iv. related to Airwallex’s reporting of Merchant, or any person owning or controlling Merchant’s business, to the Card Brands for inclusion in one or more databases of terminated or high risk merchants maintained by the Card Brands.

8. Payment Card Industry Compliance.

Merchant must not:

(a) disclose Payment Card Information, except:

i. to select employees, agents, and contractors on a “need to know” basis, solely for the purpose of assisting Merchant in completing a Transaction or otherwise complying with this Agreement; or

ii. as specifically required by PCI-DSS, Network Rules, or applicable law;

(b) use Payment Card Information, except:i. to complete a Transaction; orii. as specifically permitted by this Agreement, PCI-DSS, Network Rules, or applicable law; and

(c) sell, transfer, or disclose to third parties any materials that contain Transaction or Payment Card Information in the event of Merchant’s failure, including bankruptcy, insolvency, or other suspension of business operations.

Merchant must:

(a) comply with the PCI-DSS, Network Rules, and all applicable laws relating to the security, storage, and disclosure of Transactions and Payment Card Information;

(b) notify Airwallex immediately if Merchant determines or suspects that Transactions or Payment Card Information has been compromised and assist Airwallex in providing notification to all interested parties as may be required by law or Network Rules, or as Airwallex otherwise reasonably deems necessary;

(c) cooperate with any forensic examination or other audit required by the Card Brands,

(d) pay for all costs and expenses related to a forensic examination or other audit required by the Card Brands, Airwallex, or Member (including all of Airwallex’s reasonable attorneys’ fees and other costs related to the forensic exam or audit); and

(e) take all actions necessary to achieve and maintain compliance in accordance with the results of, and in the time frame set forth in, a forensic examination or audit report from Airwallex, the Card Brands, or Member.

Airwallex may:

(a) share Merchant’s financial information, information related to Merchant’s Transactions, and other information provided by Merchant with Airwallex’s affiliates;

(b) use or disclose information related to Merchant’s Transactions:

i. as necessary to process Merchant’s Transactions or otherwise provide Services and maintain Merchant’s account pursuant to this Agreement;

ii. to detect prevent, reduce, or otherwise address fraud, security, or technical issues;

iii. to enhance or improve Airwallex’s products and Services generally; oriv. as required or permitted by the Card Brands or applicable law; and

(c) prepare, use, or share with third parties, aggregated, non-personally identifiable information derived from Transactions of all of Airwallex’s customers or specific segments of Airwallex’s customers.

9. Disclaimer; Limitation of Damages.

Airwallex will, at its own expense, correct any Transaction if errors have been caused by Airwallex or by malfunctions of Airwallex’s processing systems.

PLEASE READ THIS PROVISION CAREFULLY

UNDER NO CIRCUMSTANCES WILL AIRWALLEX’S FINANCIAL RESPONSIBILITY FOR ITS FAILURE OF PERFORMANCE UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO AIRWALLEX BY MERCHANT UNDER THIS AGREEMENT (NET OF NETWORK FEES, THIRD PARTY FEES, INTERCHANGE, ASSESSMENTS, PENALTIES, AND FINES) FOR THE SIX (6) MONTHS PRIOR TO THE TIME THE LIABILITY AROSE.

EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO MERCHANT’S FAILURE TO COMPLY WITH PCI-DSS OR OTHER SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OR ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT.

ANY FINES, FEES, PENALTIES OR ASSESSMENTS IMPOSED BY THE CARD BRANDS RELATED TO MERCHANT’S ACCEPTANCE OF PAYMENT CARDS SHALL NOT BE DEEMED TO BE CONSEQUENTIAL DAMAGES.

ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR COMMERCIAL SERVICES. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY AND AIRWALLEX AND MEMBER HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.

10. Miscellaneous.

10.1 Section Headings. The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement.

10.2 Assignment. Merchant may not transfer or assign this Agreement without the prior written consent of Airwallex. Any transfer or assignment of this Agreement by Merchant, by operation of law, merger, or otherwise, without Airwallex’s prior written consent is null and void, and Merchant is fully responsible with respect to all Transactions submitted by the purported assignee/transferee, and for any and all related liabilities, chargebacks, expenses, costs, fines, fees or penalties arising from such Transactions. Subject to Network Rules, Airwallex may assign or transfer this Agreement and its rights and obligations hereunder and may delegate its duties hereunder, in whole or in part, to any third party, without notice to or consent of Merchant.

10.3 Parties; Independent Contractor. No agency, partnership, joint venture or employment relationship is created between Merchant and Member by this Agreement. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.

10.4 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Network Rules, such determination will not affect the validity or enforceability of any other provision of this Agreement.

10.5 Waivers. No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced.

10.6 Entire Agreement. This Agreement represents the entire understanding between Merchant and Airwallex with respect to the matters contained herein and supersedes any prior agreements between the parties. Merchant agrees that in entering into this Agreement it has not relied on any statement of Airwallex or its representatives.

10.7 Notices. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed) to Merchant’s legal address, to Airwallex at: Airwallex, 188 Spear Street, 9th Floor, San Francisco, CA 94105 (Attn: Legal Department), or to such other address as either party may from time to time specify to the other party in writing.

10.9 Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in Dallas County, Dallas, Texas.

PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION.

WITH BINDING ARBITRATION MERCHANT ACKNOWLEDGES AND AGREES THAT:

MERCHANT IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST AIRWALLEX, MEMBER, OR RELATED THIRD PARTIES;

MERCHANT IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST AIRWALLEX, MEMBER OR RELATED THIRD PARTIES; AND

MERCHANT IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST AIRWALLEX, MEMBER, AND RELATED THIRD PARTIES.

IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, MERCHANT AND AIRWALLEX MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS). BUT, EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.

Any claim, dispute, or controversy ("Claim") by either Merchant, Airwallex or Member against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Merchant, Airwallex’s or Member’s negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Merchant and Airwallex will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and Airwallex and/or Member. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section shall be non- severable from the remainder of this Section. If either party prevails in the arbitration of any Claim against the other, the non- prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which Merchant appears will take place at a location within Dallas County, Dallas, Texas. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other.

10.10 Force Majeure. Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of Airwallex’s vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 10.10 will affect or excuse Merchant’s liabilities and obligations for chargebacks, refunds, or unfulfilled goods and services.

10.11 Amendment. This Agreement may only be amended by Merchant upon mutual written agreement. Paymentach may amend this Agreement at any time via Airwallex posting a revised version on the Airwallex Website. The revised version will be effective at the time Airwallex posts it. You will be considered as having expressly consented to all changes to this Agreement if you continue to use the Service

11. SURVIVAL.

The following Sections survive termination of this Agreement: 4, 6.3, 7, 8, 10, 11 and 12.

12. Terms Used in this Agreement.

“Card Brand” means is any payment method provider whose payment method is accepted by Airwallex for processing, including, but not limited to, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, electronic check and ACH payments, gift card and other stored value and loyalty program providers.

“Customer” means the person or entity to whom a Payment Card is issued or who is otherwise authorized to use a Payment Card.

“Network Thresholds” means USD $1 million in processed Transactions on a Network within any twelve-month period, unless such threshold is changed by any Network, in which case, the new threshold shall apply.

“Payment Card” means an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that Airwallex or Merchant accepts from Customers as payment for a good or service. Payment Cards include, but are not limited to, credit and debit cards, electronic check and ACH payments, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts.

“Payment Card Information” means Information related to a Purchaser or the Purchaser’s Payment Card that is obtained by Merchant from the Purchaser's Payment Card, or from the Purchaser in connection with his or her use of a Payment Card). Such information may include, but is not limited to:§ the Payment Card account number and expiration date;§ the Customer’s name or date of birth;§ PIN data, security code data (such as CVV2 and CVC2); and§ and any data read, scanned, imprinted, or otherwise obtained from the Payment Card, whether printed thereon, or magnetically, electronically, or otherwise stored thereon.For the avoidance of doubt, the data elements that constitute Payment Card Information are treated according to their corresponding meanings as “cardholder data” and “sensitive authentication data” as such terms are used in the then current PCI DSS.

“Transaction” means a transaction conducted between a Customer and Merchant utilizing a Payment Card in which consideration is exchanged between the Customer and Merchant, and which is processed by Airwallex.

“Transaction Receipt” means a paper or electronic receipt evidencing a Transaction containing the information required by Network Rules applicable to Transaction Receipts.