Merchant Services Agreement - Hiker Payments · C The Merchant wishes to use the GMS Cross-Border Payment Services provided by the Supplier for receiving payments from the Merchant’s

Global Merchant Services, Inc.

1210 Central Ave Suite 201 Wilmette, IL 60091 USA Telephone: +1 833 888 8467 (8GMS) Email: [email protected]

Merchant Services Agreement

GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * * * GMS * * * Rev. SP2018.09.01 Confidential Page 2 of 31

MERCHANT SERVICES AGREEMENT

DATE

This Merchant Services Agreement is made on the day it is signed by all parties.

PARTIES

The Supplier The Merchant

Name: Global Merchant Services, Inc. dba GMS.Cash (FEIN 320544287)

Address: 1210 Central Ave Suite 201 Wilmette, IL 60091 USA

INT RODUCT ION

A The Supplier is a leading USA financial technology company dedicated to providing mobile payment platforms to facilitate simple and efficient cross-border payments and for purposes of this Agreement is a third-party service provider to The International Bank of Chicago’s WeChat Pay and Alipay program.

B To this end, the Supplier has developed or has access to a certain software application and platform which provides Merchants (who have web-based gateway APIs (being application programming interfaces) and point-of-sale payment processing and settlement capabilities in the Chinese currency) with a payment integration system, which:

1. utilizes the WeChat Pay payment technology that is owned by Tencent Holdings Limited (China) and that is licensed to the Supplier to facilitate third party payments in the United States;

2. utilizes the Alipay payment technology that is owned by Ant Financial Services Group and that is licensed to the Supplier to facilitate third party payments in the United States;

3. processes payments from users of the Alipay and WeChat Pay payment technologies in Chinese Yuan, converts such payments to the USA Dollar equivalent and then sends such payments to the Merchant by utilizing settlement functions forming part of the software application;

4. allows the Merchant to access the merchant management portal feature of the software application which facilitates transaction management, reporting and provides transactional analytics; and

5. provides the Merchant with opportunity to access to additional unique Alipay and WeChat Pay marketing features such as but not limited to ‘WeChat Lucky Money’ (an incentive program where payers randomly receive cashbacks) and ‘WeChat Moment’ (being social media advertising aimed at enhancing a Merchant’s brand awareness).


C The Merchant wishes to use the GMS Cross-Border Payment Services provided by the Supplier for receiving payments from the Merchant’s customers, for the Merchant’s own goods and/or services provided by the Merchant to its customers at the Merchant’s own retail outlets and/or through the Merchant’s own website.

D The parties agree that the Supplier will supply the Merchant with the GMS Cross-Border Payment Services in accordance with the terms of this Agreement.

OPERAT IVE PROVIS IONS

The Parties agree as follows:

1. Agreement

1.1 The Supplier agrees to provide the GMS Cross-Border Payment Services (and to provide the Merchant with any applicable documentation or guidance pertaining to the Merchant’s use of the GMS Cross-Border Payment Services) subject to the terms of this Agreement.

1.2 The Merchant agrees to pay to the Supplier the Fees and charges for the GMS Cross-Border Payment Services as set out in Schedule B.

1.3 This Agreement shall apply to the supply and provision of any and all GMS Cross-Border Payment Services to the Merchant during the Term.

2. Contract Manager

2.1 The Merchant may nominate a manager in Schedule B or otherwise in writing from time to time to act as the Merchant’s contract manager in dealing with the Supplier under this Agreement (Contract Manager).

2.2 If the Supplier appoints a Contract Manager, the Contract Manager will be the authorized representative of the Supplier for the purposes of this Agreement.

3. Term

3.1 This Agreement commences on the Commencement Date and continues for the Initial Term (Term), unless extended under clause 3.2 or otherwise terminated earlier in accordance with clause 15.

3.2 The Term of this Agreement will automatically extend beyond the Initial Term for subsequent rolling 12-month periods (Renewed Term), unless:

(a) either party notifies the other of termination in writing, at least thirty (30) calendar days before the end of the Initial Term or any Renewed Term (as the case may be); or

(b) this Agreement is terminated earlier pursuant to clause 15.

4. Acceptance Testing

4.1 The Merchant shall conduct and complete all Acceptance Testing as soon as practicable but within five (5) Business Days of the delivery of the GMS Cross-Border Payment Services by the Supplier. The Merchant will allow the Supplier to be present at any Acceptance Testing, provided that the Supplier gives the Merchant sufficient notice of its wish to be present.


4.2 Where, during Acceptance Testing and for a reasonable period after Acceptance Testing is completed, the Merchant encounters any malfunction, defect or suspected error in the Supplier’s GMS Cross-Border Payment Services, the Supplier will correct any such malfunction, defect and suspected errors as soon as practicable.

4.3 If the Supplier disputes the validity of the Acceptance Testing, the parties agree to resolve the dispute as set out in clause 17.

4.4 In the event of a malfunction, defect or suspected error relating to the integration of a product or service

supplied to the Supplier by a third party, the Supplier will provide reasonable and prompt assistance to the Merchant to identify the problem and who is responsible for resolving it.

5. Delivery and Provision of GMS Cross - Border Payment Services

5.1 The Merchant engages the Supplier to provide the GMS Cross-Border Payment Services and the Supplier agrees to use reasonable endeavors to provide the GMS Cross-Border Payment Services (together with any applicable documentation or guidance pertaining to the Merchant’s use of the GMS Cross-Border Payment Services) to the Merchant, in accordance with the terms and conditions of this Agreement.

5.2 The Supplier shall endeavor to provide a reasonably commercial level of availability of the GMS Cross- Border Payment Services for twenty-four (24) hours a day, seven (7) days a week, with at 99.98% up time (annualized), excluding:

(a) any planned maintenance periods of which the Supplier will endeavor to provide the Merchant with at least seven (7) Business Days’ prior written notice of;

(b) any unscheduled maintenance periods which the Supplier will endeavor to perform outside of the

Supplier’s normal business hours. In situations where unscheduled maintenance is required, the Supplier shall use its best efforts to provide the Merchant with at least six (6) hours’ notice in advance of such maintenance taking place; and

(c) any communications, banking, terminal and external systems failures which are outside of the control of the Supplier.

5.3 The Supplier shall, as part of the provision of the GMS Cross-Border Payment Services, provide to the Merchant (at no additional cost to the Merchant) standard customer support during the Supplier’s normal business hours in accordance with the Supplier’s Service Level Agreement (SLA) which is operative during the Term. In particular, the Supplier shall provide the Merchant with ‘Level 1, 2 and 3 support’ (as detailed in the SLA) as part of the provision of the GMS Cross-Border Payment Services.

5.4 Further to clause 5.3, the Merchant may (in its sole discretion) elect to purchase additional and/or enhanced support services which shall be provided by the Supplier at the Supplier’s hourly rate applicable at the relevant time.

5.5 The Merchant acknowledges that the Supplier is providing the GMS Cross-Border Payment Services to the Merchant on a non-exclusive basis and that the Supplier may provide services of the same or a similar nature to any third party without limitation or restriction.

5.6 The Supplier may provide the GMS Cross-Border Payment Services in the manner determined by it in its absolute and sole discretion, so long as in doing so, it does not breach any material provision of this Agreement.

5.7 The parties acknowledge that the Supplier has entered this Agreement with the Merchant on the basis that the GMS Cross-Border Payment Services utilize the Alipay and WeChat Pay payment technologies licensed to the Supplier by, respectively, Ant Financial Services Group and Tencent Holdings Limited (China) (“Tencent”). The parties agree that, should the Alipay or WeChat Pay payment technology become unavailable to the Supplier (for any reason whatsoever) or specifically unavailable to the Merchant, as determined by Ant Financial or Tencent, the Supplier shall be entitled, without penalty, to immediately terminate this Agreement by providing written notice of


such termination to the Merchant.

5.8 The Merchant acknowledges that:

(a) the GMS Cross-Border Payment Services consists of complex software which may never be wholly free from defects, errors, bugs and compatibility issues and, in this respect, the Supplier gives no warranty or representation that the software pertaining to the GMS Cross-Border Payment Services will be wholly free from such defects, errors, bugs or compatibility issues;

(b) complex software may be applied by the Supplier when upgrading existing functionalities of t h e GMS Cross-

Border Payment Services and, where this occurs, the Merchant shall not be subject to any additional fees or charges as a result of such upgrade, except where such upgrade introduces new functionalities to the GMS Cross-Border Payment Services for which the Merchant will be notified in advance; and

(c) the Supplier will not, and does not, purport to provide any legal, accountancy, taxation or any other

financial advisory services under this Agreement or in relation to the GMS Cross-Border Payment Services, except as otherwise expressly provided herein.

5.9 The Supplier has no obligation to the Merchant to rectify any defect or fault in the GMS Cross-Border Payment

Services caused or contributed to by:

(a) the acts or omissions of the Merchant or the Merchant’s Personnel; or

(b) faults or defects that arise in telecommunication services provided to the Merchant by a third-party supplier other than such suppliers engaged or contracted by the Supplier, regardless of whether the costs associated with such services are paid or reimbursed by the Merchant or relate specifically to the GMS Cross-Border Payment Services provided to the Merchant.

6. GMS Cross - Border Payment Services Fees, Settlement Terms and Refunds

6.1 The details relating to Fees pertaining to the GMS Cross-Border Payment Services, as well as the settlement terms for remittance of payments to the Merchant that have been made by the Merchant’s customers and the terms and conditions regarding refunds are described in Schedule B.

6.2 In the event of any amount owed by either party due to its failure to perform or violation of its obligation under this Agreement, the party in breach is liable to pay the non-breaching party:

(a) interest at the interest rate set out under any applicable statute or as otherwise provided by applicable law from time to time, calculated daily, on all outstanding amounts from the date upon which payment was due until payment is received by the non-breaching party in full; and

(b) all reasonable costs and expenses incurred by the non - b reach i ng pa r t y (including reasonable legal costs on a full indemnity basis) in relation to the recovery of the amount and interest owed to the non-breaching party.

6.3 For the avoidance of doubt, the Merchant will not be liable for Fees which are not described in Schedule B, unless otherwise agreed in this Agreement.

6.4 Unless otherwise agreed by the parties in writing, all expenses incurred by the Supplier in the provision of the GMS Cross-Border Payment Services are to be borne by the Supplier.

6.5 The Supplier may reissue an invoice if any error in the invoice is later discovered. Where:

(a) the Merchant has overpaid any Fees as a result of such an error, the Merchant’s account will be credited with the overpayment or, if the Merchant has stopped utilization of the GMS Cross-Border Payment Services


from the Supplier, the Supplier will refund the overpayment promptly after the Merchant’s request, but after deduction of any other amounts due by the Merchant; or

(b) the Merchant has underpaid any charges as a result of the error, the Merchant will be required to pay the correct amount to the Supplier after the invoice is reissued in accordance with the Payment Terms.

6.6 In the event that the Merchant fails to promptly notify the Supplier of any changes to, or termination of, its business or contact method which materially impacts the Supplier’s settlement process for remittance of payments to the Merchant, and where the Supplier receives no response from the Merchant within three (3) Business Days after contacting the Merchant to ascertain this information, then the Supplier may, upon a customer’s request and in relation to payments already made by a customer but not yet settled with the Merchant, disburse or refund such payment directly to the customer’s nominated account.

7. SALES TAX

7.1 Unless otherwise stated in Schedule B, the charges and other amounts payable by the Merchant under this Agreement are calculated or expressed exclusive of SALES TAX.

7.2 Without limiting clause 7.1, if SALES TAX is or becomes payable by the Merchant for a supply under, or in connection with, this Agreement, the Supplier must provide the Merchant with a Tax Invoice in order to charge the Merchant SALES TAX. The Merchant shall indemnify Supplier for any imposition of SALES TAX.

7.3 The Supplier warrants that it is registered for SALES TAX and will remain so registered for the duration of the Agreement.

7.4 The Merchant warrants that it is registered for SALES TAX and will remain so registered for the duration of the Agreement.

8. Supplier Obligations, Warranties and Representations

8.1 The Supplier shall be solely responsible for the establishment, integration, operation and management of the GMS Cross-Border Payment Services in accordance with established administrative rules, system functionalities and other applicable terms and conditions, and shall provide all necessary training and documentation to facilitate the understanding and operation of Supplier's products and services provided.

8.2 In addition, the Supplier shall be responsible for receiving, addressing and resolving any complaints that may arise from defects pertaining to the GMS Cross-Border Payment Services.

8.3 The Supplier represents and warrants that the GMS Cross-Border Payment Services:

(a) do not infringe the Intellectual Property Rights of any third party, other than with respect to permitted use of the WeChat Pay payment technology that is owned by Tencent Holdings Limited (China) and of the Alipay payment technology that is owned by Ant Financial Services Group; and

(b) will be supplied:

(i) in accordance with the terms of this Agreement,

(ii) in a professional and timely manner, in accordance with best industry practices, and with reasonable care and skill; and

(iii) in accordance with all relevant Laws.

8.4 The Supplier warrants that it will provide necessary customer support functions relating to business and system enquiries and relating to the GMS Cross-Border Payment Services to the Merchant in accordance with the terms


of the SLA.

8.5 The Supplier is fully authorized in all commercial and technical capacities by Tencent Holdings Limited (China) to offer the WeChat Pay payment gateway to users in the United States, and the Supplier is also fully authorized in all commercial and technical capacities by Ant Financial Services Group to offer the Alipay payment gateway to users in the United States.

8.6 The Supplier:

(a) does not represent, warrant or guarantee that any Service will be free of interruptions, delays, faults or errors; and

(b) except as expressly provided in this Agreement, is not liable to the Merchant or any other third party for any

interruptions, delays, faults or errors in connection with the supply of the GMS Cross-Border Payment Services (in part or in full).

8.7 The Supplier agrees that it will not employ any reverse engineering method aimed at deciphering any computer

system or procedures operated by the Merchant and the Supplier further agrees that it will not copy, amend edit, consolidate, or alter the said computer systems or procedures (including, without limitation, any source programs, object programs, software files, data processing in local computer storage devices, data from the Merchant’s terminals which is transmitted to servers, server data, etc.).

8.8 The parties agree that the Supplier may, provided the Merchant has given its express written consent to do so, promote the GMS Cross-Border Payment Services and its business association with the Merchant by using the Merchant’s name, trademark, marketing materials and any such like details.

8.9 The Supplier represents and warrants, as at the date of this Agreement, that:

(a) it has the power and has taken all corporate and other action required, to enter into this Agreement and to authorize the execution and delivery of this Agreement and the performance of the Supplier’s obligations under this Agreement;

(b) this Agreement constitutes a valid and legally binding obligation of the Supplier in accordance with its terms except to the extent of discretions of courts regarding the availability of equitable remedies and Laws affecting creditor’s rights generally; and

(c) the execution, delivery and performance of this Agreement does not violate any existing Law or any document or agreement to which the Supplier is a party, or which is binding on the Supplier or any of its assets.

8.10 The Supplier acknowledges that all representations, covenants and warranties in this Agreement are provided on an ongoing basis and will survive the execution, performance and termination of this Agreement.

8.11 The Supplier is a USA company incorporated in Delaware and is classified as a third-party service provider to The

International Bank of Chicago’s Alipay and WeChat Pay programs. It is also registered as a Money Services Business (MSB) with FinCEN (registration number 31000119095872) and is legally bound by various compliance regimes for the delivery of services such as the GMS Cross-Border Payment Services.

9. Merchant Obligations, Warranties and Representations

9.1 The Merchant must:

(a) ensure that, in respect of the GMS Cross-Border Payment Services, the Merchant meets and continues to meet all pre-requisites or conditions for supply of the GMS Cross-Border Payment Services;


(b) provide information on the qualifications of the Merchant for the Supplier, including but without limitation to basic information on business and operation, business license (or an identification documentation issued by a competent administrative certifying that the company is legally registered in accordance with the laws of its place of registration), identification of the contact person or authorized representative, the letter of settlement bank account information, corporate e-mail address (other than personal e-mail account). Moreover, if the Merchant is engaged in the business which needs to obtain special license in accordance with the laws or regulations of relevant country or region where the Merchant is located, the Merchant should also provide the relevant qualification documents.

(c) ensure that its network and systems comply with the relevant specifications provided by the Supplier from

time to time and, in this respect, the Merchant shall be solely responsible for procuring and maintaining its network connections and telecommunications link from its systems to the Supplier’s system. The Merchant is required to notify the Supplier of any system changes that might impact the GMS Cross- Border Payment Services and allow the Supplier to perform any necessary system testing to ensure the full integrity of GMS Cross-Border Payment Services is maintained.

(d) use the GMS Cross-Border Payment Services for its intended purpose. Without the Supplier's prior written consent, the Merchant shall not to transfer, rental, lend, mortgage, pledge, lien or in any other way to allow any third party to receive payments with the Payment Services;

(e) provide the Supplier’s customer services telephone number for the Merchant’s customers;

(f) release information and conduct commercial activities in compliance with the applicable laws and regulations,

foreign exchange policy of People Republic of China and the country or region where the Merchant is located.

(g) keep properly the original receipts and relevant transaction records for each transaction performed through the Payment Services for at least five years from the date of transaction.

(h) perform all tasks and provide all materials required of it, and by the dates specified, in this Agreement;

(i) co-operate with the Supplier to allow the Supplier to provide the GMS Cross-Border Payment Services and ensure that the Merchant’s procedures for handling orders and delivering goods and/or services are compatible with the settlement process that forms part of the GMS Cross-Border Payment Services;

(j) provide the Supplier with accurate information regarding the commercial aspects of the Merchant such as changes to company ownership, corporate structure, business domicile and website details and details of products and/or services offered by the Merchant which may materially affect the scope of the GMS Cross-Border Payment Services;

(k) provide the Supplier with all information in the Merchant’s possession, custody or control that the Supplier reasonably requires in order to provide the GMS Cross-Border Payment Services and ensure that all information it gives to the Supplier is correct, current and complete;

(l) comply with all applicable Laws, regulations, codes and standards (including any technical standards o f any Government Agency);

(m) comply with all requirements, documentation, user manuals and specifications referred to in the Schedules and any additional documents that are provided by the Supplier to the Merchant and which the Merchant has agreed in writing to be bound by, such agreement not to be unreasonably withheld;

(n) conduct and retain backups of any of the Merchant’s data (whether hosted on the Supplier’s systems or provided to the Supplier in connection with the GMS Cross-Border Payment Services) to the extent reasonable, having regard to the nature of the data;


(o) immediately report to the Supplier, in writing, any unauthorized use of the GMS Cross-Border Payment Services;

(p) use its best endeavors to display (in accordance with directions of the Supplier) relevant visual merchandise items such as tradem arks, logos, branding and advertising materials of the Supplier pertaining to the GMS Cross-Border Payment Services provided pursuant to this Agreement in prominent positions and on the Merchant’s website;

(q) actively take precautions against unauthorized transaction of the Merchant’s customers, and promptly resolve

all problems and issues relating to customer service. In the event that any customer suffers any loss arising from the circumstances in the course of transaction, including but not limited to fake, fraud, theft, disguised transaction, denial of transaction, chargeback, account information leakage, violation of applicable state laws, rules and regulations, breach of commitments to customer, breach duties prescribed in this Agreement, the Merchant shall cooperate with the Supplier to investigate the cause of claims, and shall be responsible for such claims.

(r) The Merchant must not:

(i) employ any reverse engineering method aimed at deciphering any computer system o r procedures operated by the Supplier and the Merchant further agrees that it will not copy, amend edit, consolidate, or alter the said computer systems or procedures (including, without limitation, any source programs, object programs, software files, data processing in local computer storage

devices, data from the Supplier’s terminals which is transmitted to servers, server data, etc.). In addition, the Merchant agrees that it will not alter or amend the original functions of the software pertaining to the GMS Cross-Border Payment Services or add further functions to the software pertaining to the GMS Cross-Border Payment Services;

(ii) unreasonably delay any action, approval, direction, determination or decision which is reasonably required of the Merchant under this Agreement or for the Supplier to provide the GMS Cross- Border Payment Services;

(iii) initiate or assist its customers in engaging in any illegal activity, inter alia, cash advance, money-laundering, or breaking the transaction into several purchases. No acts involved in serious risks, inter alia, false application, skimming, malicious closure are allowed, otherwise, the Supplier shall be entitled to report the suspicious transaction information to the Ant Financial Services Group or Tencent and relevant regulatory authorities in China or in the U.S. The Merchant shall ensure that any transaction initiated through the Payment Services is made in a true and lawful background. Upon the Supplier’s request, the Merchant shall provide sufficient evidence to prove the existence of the trading relationship between the Merchant and its customers;

(iv) without the prior written consent by the Supplier, use or reproduce any of the Supplier’s, Ant Financial

Services Group’s (Alipay’s), Tencent’s Intellectual properties, business names or product names in any written materials published by or on behalf of the Merchant for any purpose;

(v) collect, retain or use its customers' information for any purpose other than performance of this

Agreement;

(vi) use the Payment Services on any types of business not allowed according to the policies of the Supplier, Ant Financial Services Group, or Tencent including, but not limited to, real estate transaction/investment, insurance purchase, mutual fund transaction, etc. Such policies of the Supplier, Ant Financial Services Group, and Tencent may be changed from time to time during the term of this Agreement;

(vii) use the Payment Services to do any type of business without pre-approved by the Supplier;


(viii) engage in, or procure, assist or allow any of its Personnel or any other person to engage in, any fraudulent or unauthorized use of the GMS Cross-Border Payment Services. If the Merchant engages in any such use of the GMS Cross-Border Payment Services, the Merchant must report such use to the Supplier as soon as it becomes aware of such use; or

(ix) engage in unlawful, harmful, threatening, defamatory, infringing, obscene, harassing, sexually explicit or racially offensive activities or facilitate illegal activities, promote unlawful violent or cause damage or injury to any person or property.

9.2 The Merchant shall be solely responsible for:

(a) understanding how to access and use the GMS Cross-Border Payment Services;

(b) each of its Personnel who have access to, or use of, the GMS Cross-Border Payment Services;

(c) any use of the GMS Cross-Border Payment Services, or instruction or direction given, through the Merchant’s login and/or using the Merchant’s passwords;

(d) any use of the GMS Cross-Border Payment Services by the Merchant’s Personnel which is fraudulent or not authorized by the Merchant or the Supplier;

(e) implementing and maintaining the security of the Merchant’s own network and systems. The Merchant is

liable for all Fees resulting from any use of the GMS Cross-Border Payment Services by any person, whether or not authorized by the Merchant, resulting from a virus, trojan, worm or other malicious computer code, denial of service attacks, a hacking incident (including a SIM, PABX, IP PBX or SIP Gateway device hack), or other means of exploiting a weakness in the Merchant’s network, systems or security measures. This excludes implementing and maintaining the security of the Supplier’s network and systems, for which the Supplier is responsible in accordance with the Supplier’s agreements with Ant Financial Services Group, Tencent Holdings Limited (China), and The International Bank of Chicago.

9.3 Upon request from the Supplier, the Merchant must, in accordance with various compliance obligations including, but not limited to, those set out in all applicable Anti-Money Laundering and Counter-Terrorism Financing acts or statutes, duly provide to the Supplier within five (5) Business Days of receiving a request from the Supplier, all necessary documentation relating to ‘Know Your Customer / Know Your Customer’s Business’, including (but not limited to) company ultimate beneficial ownership details and identifications, evidence of incorporation, compliance programs and any licensing registrations(if applicable), etc. Failure by the Merchant to provide such required documentation may result in the immediate termination of this Agreement by the Supplier as determined in the sole discretion of Supplier. Information provided to the Supplier by the Merchant pursuant to this clause shall be retained by the Supplier for a period of at least seven (7) years.

9.4 The Merchant acknowledges and agrees that the Supplier is not liable (whether in contract, tort or otherwise) whatsoever for any Loss suffered or incurred by the Merchant as a result, whether directly or indirectly, of any fact, matter or circumstance that is within the responsibility of the Merchant under this clause except to the extent directly caused or substantially contributed to by the Supplier.

9.5 The Merchant acknowledges and agrees that:

(a) if the Supplier acquires products or services from any supplier including a carrier (as defined under any Telecommunications Act) in connection with the supply of the GMS Cross-Border Payment Services, the Merchant will comply with all reasonable directions given by the Supplier as are necessary for the Supplier to comply with its obligations under any agreement with that Supplier;

(b) the Supplier may:


(i) be required by Law, to retain metadata, information and other content in relation to the Merchant’s use of the GMS Cross-Border Payment Services, intercept the Merchant’s communications and pass on details of the Merchant’s use of the GMS Cross-Border Payment Services (including any retained metadata, information and content) to a Government Agency, a law enforcement authority or other authority;

(ii) monitor the Merchant’s usage of the GMS Cross-Border Payment Services including where requested, or directed, to do so by a Government Agency, a law enforcement authority or other authority; and

(iii) investigate any alleged misuse of the GMS Cross-Border Payment Services by the Merchant including where requested, or directed, to do so by a Government Agency, a law enforcement authority or other authority.

If the Supplier is so required to retain, intercept, monitor or investigate, then the Supplier will immediately provide the Merchant with written notice to the extent that the Supplier is permitted to do so by Law.

9.6 The supply of the GMS Cross-Border Payment Services may rely on:

(a) systems, networks, infrastructure and services provided by a third party (whether or not that third party has an agreement or understanding with the Merchant) including a third party who provides carriage services; and

(b) the Merchant’s systems, networks and infrastructure (Third Party Facilities).

9.7 Without limiting any other provision of this Agreement, the Merchant acknowledges and agrees that:

(a) due to reasons beyond the Supplier’s control, a defect or failure in one or more Third Party Facilities may cause a delay, failure or interruption to the GMS Cross-Border Payment Services;

(b) without limiting the Merchant’s entitlements under the SLA, the Supplier is not liable to the Merchant in any way for any Loss (including Consequential Loss) that the Merchant may incur or suffer as a result of any such delay, failure or interruption; and

(c) if the Merchant requires the Supplier to undertake any remedial work to repair the GMS Cross-Border Payment Services affected by such a delay, failure or interruption, the Supplier may charge the Merchant, and the Merchant must pay, an additional charge, the amount of which will be agreed in advance, for the remedial work that the Supplier undertakes. The Merchant acknowledges that in some cases the agreed additional charge will be payable by the Merchant even if the Supplier commences such remedial work and only discovers, after commencing such remedial work, that the delay, failure or interruption to the GMS Cross-Border Payment Services was caused by a defect or failure in Third Party Facilities.

9.8 The Merchant represents and warrants to the Supplier that, as at the date this Agreement is formed:

(a) it has had the opportunity to obtain independent professional advice in relation to the legal, taxation, accounting and financial consequences of this Agreement, and has not relied on the Supplier in relation to any of those matters; and

(b) where the Supplier has provided the Merchant with information about any of the Supplier’s Personnel, each of

the Personnel has consented to the Merchant disclosing the information to the Supplier and for the Supplier to use, or disclose, the information to provide the GMS Cross-Border Payment Services and exercise any rights and perform any obligations in respect of the GMS Cross-Border Payment Services.

(c) it has the power and has taken all corporate and other action required, to enter into this Agreement and to authorize the execution and delivery of this Agreement and the performance of the Merchant’s obligations under this Agreement;


(d) this Agreement constitutes a valid and legally binding obligation of the Merchant in accordance with its terms except to the extent of discretions of courts regarding the availability of equitable remedies and Laws affecting creditor’s rights generally; and

(e) the execution, delivery and performance of this Agreement does not violate any existing Law or any document or agreement to which the Merchant is a party or which is binding on the Merchant or any of its assets.

9.9 The Merchant acknowledges that all representations, covenants and warranties in this Agreement are provided on an ongoing basis and will survive the execution, performance and termination of this Agreement.

10 . Confidential Information

10.1 Subject to clause 10.2 each party must:

(a) keep confidential the Confidential Information of the other party and must ensure that it does not disclose or permit the disclosure of that Confidential Information to any person; and

(b) take all steps and do all things that are reasonably necessary or prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

10.2 A party may disclose the Confidential Information of the other party:

(a) to its Affiliates, employees, agents, advisers or financiers (each a Recipient) if, and only if:

(i) the Recipient reasonably needs to know that Confidential Information in order for that party to comply with is obligations under this Agreement;

(ii) that party has informed the Recipient of the obligations of confidentiality under this Agreement; and

(iii) the Recipient has accepted the obligation to treat the Confidential Information as confidential in the same manner and to the same extent as required of that party;

(b) with the consent of the other party;

(c) in connection with legal or other proceedings relating to this Agreement; or

(d) if compelled by Law or by a Government Agency, court, tribunal or stock exchange.

10.3 Notwithstanding clause 10.1, each party may:

(a) disclose the other party’s Confidential Information to any third party where it is necessary, on a need to know basis, in order to perform this Agreement; and

(b) use or disclose the other party’s Confidential Information to make contact with, or to deal directly with, the Merchant’s end users and other Personnel in connection with the provision and invoicing of t h e GMS Cross-Border Payment Services;

10.4 For the purposes of this clause, the terms of this Agreement will be considered Confidential Information of each party.

10.5 The rights and obligations of each party pursuant to this clause, survive the expiry or termination of this Agreement.

11 . Intellectual Property


11.1 Any Intellectual Property Rights owned by either party prior to entry into this Agreement, or developed independently of this Agreement by either party, will continue to be owned by that party. In particular, all Intellectual Property Rights pertaining to the GMS Cross-Border Payment Services will at all times remain the sole and exclusive property of the Supplier and or its licensors.

11.2 None of the Intellectual Property Rights of Supplier or any of its licensors are transferred to the Merchant and, unless specifically authorized by this Agreement, the Merchant cannot and will not use or reproduce such Intellectual Property Rights for any purpose unconnected with this Agreement.

11.3 The rights and obligations of each party pursuant to this clause survive the expiry or termination of this Agreement.

11.4 The Supplier will not infringe the Intellectual Property rights of the Merchant or any other person in the provision of the GMS Cross-Border Payment Services.

11.5 If either party becomes aware of any infringement or potential infringement of the other party’s Intellectual Property

Rights, it must immediately notify the other party.

11.6 Neither party will remove or modify any Intellectual Property Rights labels or ownership designations or symbols from any of the other party’s information or data, including the TM, ® or © symbols.

12 . Privacy

12.1 Each party must comply with all applicable provisions of any Privacy Act in respect of any personal or sensitive information (as those terms are defined in any Privacy Act to which it obtains access as a result of its performance of this Agreement.

13 . Subcontractors

13.1 The Supplier may not sub-contract the whole or any part of its obligations under this Agreement without the prior written consent of the Merchant. Such consent may not be unreasonably withheld b y t h e M e r c h a n t .

13.2 Prior to engaging any approved subcontractor, the Supplier must enter into agreements with that approved subcontractor that must include terms necessary or desirable for the Supplier to comply with all of its obligations under this Agreement.

13.3 The Merchant’s consent to a sub-contract will not relieve the Supplier of any liability, obligation, guarantee or indemnity under this Agreement. The Supplier will be liable to the Merchant for the acts or omissions (including negligent acts or omissions) of all subcontractors and their employees and agents as fully as if they were the acts or omissions of the Supplier or any of its employees or agents.

14 . Restraint

14.1 Neither party will ridicule or disparage the other.

14.2 The Merchant acknowledges that the Supplier has the exclusive right to supply the Alipay and WeChat Pay payment technologies in the United States and consequently the Merchant acknowledges and agrees that it is restrained from entering into any agreement with third parties relating to the provision of a service similar to the GMS Cross-Border Payment Services. The exclusivity shall remain in effect for twelve (12) months from the Commencement Date of this Agreement.

14.3 Notwithstanding the above Section 14.2, the Merchant may engage any third party to supply the Alipay and WeChat

Pay payment technologies if the GMS Cross-Border Payment Services is delayed, suspended or interrupted for more than 48 hours not due to the Merchant’s fault. However, once the problems on GMS Cross-Border Payment Services are resolved and the supply of GMS Cross-Border Payment Services is resumed, the Merchant shall immediately


cease using the third party’s service and comply with Section 14.2 above again.

15 . Termination

15.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party (Terminating Party) may immediately terminate this Agreement without liability to the other (Non-Terminating Party) in the event that the Non-Terminating Party:

(a) commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) calendar days of the Non-Terminating Party being notified in writing of the breach by the Terminating Party; or

(b) an order is made or a resolution is passed for the winding up of the Non-Terminating Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Non-Terminating Party; or

(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the Non-Terminating Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Non-Terminating Party, or notice of intention to appoint an administrator is given by the Non-Terminating Party or its directors; or

(d) a receiver is appointed of any of the Non-Terminating Party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Non-Terminating Party, or if any other person takes possession of or sells the Non-Terminating Party’s assets; or

(e) the Non-Terminating Party makes any bankruptcy related arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(f) the Non-Terminating Party ceases, or threatens to cease, to trade; or

(g) the Non-Terminating Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt, or otherwise becomes insolvent or unable to pay its ongoing financial obligations.

15.2 Upon the termination of this Agreement for any reason:

(a) the supply of the GMS Cross-Border Payment Services provided by the Supplier to the Merchant pursuant to this Agreement shall cease immediately;

(b) each party shall return and make no further use of any equipment, property, documentation and other relevant items (including copies) belonging to the other party; and

(c) each party shall promptly settle all unpaid invoices and expenses incurred under this Agreement.

15.3 The provisions of Clause 15.1 notwithstanding, either party may terminate this Agreement upon 30 days written notice to the other party.

15.4 In the event of the Merchant’s violation of any clause in Clause 9, the Supplier may immediately suspend the Payment Services to the Merchant and notify the violation to the Merchant. If the Merchant fails to correct its violation of Clause 9 within 5 days after the Supplier’s notice, the Supplier may terminate this Agreement without prejudice to any other rights or remedies to the Supplier.

16 . Liability and Indemnity

16.1 Subject to clauses 16.2 to 16.11 (inclusive), each party indemnifies, holds harmless and keeps indemnified the other


party against any Loss incurred or suffered by the indemnified party, resulting directly from any breach by the party providing the indemnity of any provision of this Agreement or any act, omission, misconduct or negligence of the party providing the indemnity, including (without limitation) any costs incurred in enforcing this indemnity.

16.2 Without limiting any other provision in this Agreement, the Merchant shall fully indemnify, hold harmless and defend Global Merchant Services, Inc. and HongKong GlobePay Co., Limited (a key partner of GMS offering of non-cash products and services) and all of their respective directors, officers, employees, agents, shareholders and related bodies corporate from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable legal fees), whether or not involving a third party claim, which arise out of or relate to:

(a) any breach of any representation or warranty of the Merchant contained in this Agreement; or

(b) any breach or violation of any term, covenant, undertaking or other obligation or duty under this Agreement or under applicable Law, in each case whether or not caused by the gross negligence of GMS or any other indemnified party and whether or not the relevant claim has merit.

16.3 The indemnity in this Clause 16 is a continuing obligation and continues after this Agreement ends. It is not necessary for the indemnified party to suffer loss, incur expense or make payment before enforcing its right under this Clause 16.

16.4 Subject always to the following clauses, to the maximum extent permitted by Law, the Supplier makes no representation nor gives any guarantee or warranty (including of merchantability, acceptable quality, fitness for any particular purpose or fitness for disclosed result) in connection with the GMS Cross-Border Payment Services.

16.5 There may be non-excludable statutory guarantees, implied conditions, and warranties or liabilities that the Supplier has to the Merchant under the Competition and Consumer Act and other applicable consumer protection laws that may apply to the GMS Cross-Border Payment Services and that cannot be excluded (Non- Excludable Conditions or Liabilities). Nothing in this Agreement removes or limits any of the Non- Excludable Conditions or Liabilities.

16.6 Notwithstanding clause 16.5, to the extent that the Supplier’s liability can be limited under applicable laws that may apply to the GMS Cross-Border Payment Services, the Supplier’s liability for any breach of this Agreement shall not exceed the amount the Supplier has received from the Merchant under this Agreement, and the Merchant acknowledges that this limitation of liability is fair and reasonable in all the circumstances.

16.7 Neither party will be liable to the other for any Consequential Loss suffered or incurred by the other party under, or in connection with this Agreement (whether based in contract, tort (including negligence), statute or otherwise.

16.8 Either party’s total liability to the other for any and all Loss in connection with this Agreement shall be limited to the sum of $50,000.

16.9 The exclusions and limitations of liability in this clause do not apply to any Loss arising from any fraudulent act or

omission of either party or its employees, agents or contractors in connection with the supply or use of the GMS Cross-Border Payment Services.

16.10 The Supplier’s liability for any Loss suffered or incurred by the Merchant under, or in connection with t h i s Agreement (whether based in contract, tort (including negligence), statute or otherwise) is reduced to the extent that:

(a) the acts or omissions of the Merchant or the Merchant’s Personnel;

(b) the use of any Third-Party Facilities (as defined in clause 9.6); or

(c) the acts, omissions or equipment of a third person caused or contributed to that Loss.


16.11 In the event of any party’s failure to perform its obligation under this Agreement, the breaching party’s liability to the non-breaching party will be reduced to the extent that the non-breaching party has not taken reasonable steps to mitigate or avoid the Loss flowing from the event giving rise to the breaching party’s liability to the non-breaching party.

17 . Dispute Resolution

17.1 Any dispute arising in connection with this Agreement should be settled first through negotiations between the parties, during which the Supplier has the right to request the related evidences, both electronic and physical, including but not limited to paper receipts, paper statements etc. Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties in accordance with the procedure detailed in clause 17.2 must be submitted for mediation.

17.2 Prior to referring a matter to mediation, the parties must:

(a) refer the dispute to their respective Contract Managers for consideration who must meet (either in person or via teleconference) and undertake genuine and good faith negotiations with a view to resolving the dispute or difference within five (5) Business Days of referral of the dispute; and

(b) if the respective Contract Managers do not resolve the dispute within five (5) Business Days, the dispute must be referred to the relevant C-level executive (or equivalent) of each party who must meet (either in person or via teleconference) and undertake genuine and good faith negotiations with a view to resolving the dispute or difference within a further ten (10) Business Days.

17.3 If the process in clause 17.2 is unsuccessful or the parties fail or refuse to meet, then either Party may submit the dispute to be resolved by arbitration by one arbitrator (“Arbitrator”) in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (or, if the Parties mutually agree in writing, the then-current arbitration rules of the International Chamber of Commerce), Applicable Law, and the provisions of this Contract. The Arbitrator’s decision(s) shall be final and conclusively binding on the Parties, and judgment upon such award may be entered in any court of competent jurisdiction.

17.4 The arbitration must take place in Illinois, USA.

17.5 The parties must continue to perform their respective obligations under this Agreement pending resolution of a dispute.

17.6 Resolution in a court or tribunal should only be considered as a last resort and failure to institute court or tribunal proceedings does not amount to a breach of this Agreement or this clause 17.

17.7 If, in relation to a dispute, a party breaches any provision of this clause 17, each other party need not comply with this clause 17 in relation to that dispute.

17.8 If a party does not observe the procedure in this clause 17 then this clause 17 may be pleaded as a bar to any

proceeding, pending the outcome of the proper observance of the procedure in this clause 17.

18 . Supplier as Agent for Merchant

18.1 The Merchant and Supplier acknowledge that Supplier is a third-party service provider to The International Bank of Chicago’s Alipay and WeChat Pay programs, and in that capacity, Supplier provides GMS Cross-Border Services and is an Agent for the Merchant pursuant to this Agreement. As an Agent for the Merchant, Supplier agrees to accept and transfer payments from the Merchant’s customer (“payor”) in connection with facilitating a purchase of goods or services from the Merchant (“payee”). Delivery or payment to the Supplier from the Merchant’s customer (“payor”) satisfies or otherwise extinguishes the payor’s obligation to the Merchant (“payee”).


Under no circumstances will the Supplier or any of its employees, agents, officers, advisers or sub-contractors claim or be deemed to be an employee of the Merchant. Further, the parties agree that:

(a) the liabilities and obligations of the parties arising out of or in connection with this Agreement are several and not joint or joint and several; the parties are not in any form of joint venture or partnership and expressly retain all rights to their respective business enterprises; and

(b) a party does not have the authority to pledge the credit of or to otherwise legally act for the other party or to make representations, warranties or undertakings or assume obligations for or on behalf of the other party; neither party may act as an agent for the other party except as stated herein; and

(c) a party is not an employee of the other party and does not have any claim against the other party for termination, vacation, annual leave, public holiday, sick leave, long service leave, or, to the extent permitted by the Law, in respect of any claims under any Workers’ Compensation legislation, or on any other basis; each party respectively retains all liability, without exception or limitation, for income, payroll and all other taxes incident to their respective business, employees, income and sales activity.

19 . Assignment

19.1 A party must not assign its rights or obligations under this Agreement without the prior written consent of the other party (not be unreasonably withheld).

19.2 Any Change of Control of Merchant is deemed to constitute an assignment of this Agreement for the purposes of

clause 19.1 and a party must not effect a Change of Control without the prior written consent of the other party (not to be unreasonably withheld).

20 . Inconsistency with Other Agreements

20.1 This Agreement, together with the attached Exhibits and SLA, constitute the entire agreement between the parties and no alternative agreements, terms, conditions, obligations or other provisions of any nature not contained in this Agreement or the SLA will be of any effect, shall add to or vary the terms and conditions of this Agreement.

21 . Miscellaneous Provisions

21.1 Any notice to be given by any party to the other must be given by delivery to the other party’s address as shown in this Agreement or as notified by any party to the other in writing as the address for notices.

21.2 This Agreement will be governed by, and construed in accordance with, the Laws in force in the State of Illinois.

21.3 The obligations and liabilities imposed and the rights and benefits conferred on the parties under this Agreement will be binding upon and enure in favor of the respective parties and each of their respective successors in title, legal personal representatives and permitted assigns.

21.4 No variation or waiver of any provision of this Agreement, nor consent to any departure by any party from its terms, will be of any effect unless it is confirmed in writing and then such variation, waiver or consent will be effective only to the extent for which it is made or given.

21.5 No failure, delay or indulgence on the part of any party in exercising any power or right conferred upon such party

under this Agreement will operate as a waiver of such power or right, nor will any single or partial exercise of any such power or right preclude any other future exercise of it, or the exercise of any other power or right under this Agreement.

21.6 The Supplier shall have no liability to the Merchant under this Agreement if the Supplier is prevented from or delayed in performing its obligations, or from carrying on its business, or from providing the GMS Cross- border


Payment Services by virtue of a Force Majeure Event.

21.7 If any provision of this Agreement will be invalid or unenforceable in accordance with its terms, it will be read down to the extent of such invalidity or unenforceability or, if incapable of such construction, it will be severed and all other provisions, which are self-sustaining and capable of separate enforcement without regard to the invalid or unenforceable provisions, will be and continue to be valid and enforceable in accordance with their terms.

21.8 The parties will bear their own costs in connection with the preparation, negotiation and execution of this Agreement.

21.9 Time is of the essence in this Agreement.

21.10 This Agreement may be executed in any number of counterparts including by way of a countersigned PDF scanned and emailed between the parties. All counterparts will be taken to constitute one Agreement.

22 2. Glossary

Definitions and Interpretation

Definitions: In this Agreement, unless the context otherwise dictates:

22.1 Acceptance Testing means testing of the GMS Cross-Border Payment Services by the Merchant in order to

determine whether the GMS Cross-Border Payment Services meet the Merchant’s needs and expectations.

22.2 Agreement means these terms and conditions and the Schedules.

22.3 Affiliate means, in respect of a party:

(a) the party’s related bodies corporate (as that term is commonly defined or any other bodies corporate associated with the party (including any body corporate one of whose directors is also a director of the party); and

(b) Without limiting paragraph (a) of this definition, if the Merchant is a franchisee, its franchisor and each of the franchisor’s related bodies corporate.

22.4 Business Day means a day that falls between Monday and Friday (inclusive) and is not public holiday in the relevant jurisdiction.

22.5 Change of Control means a change in the ownership or control (either directly or indirectly) of more than 50% of the voting share capital of the relevant undertaking or the ability to direct casting of more than 50% of the votes exercisable at general meetings of the relevant undertaking;

22.6 Commencement Date means the date of this Agreement.

22.7 Confidential Information means all information related to the Supplier or the Merchant and includes, but is not limited to, this Agreement , any alliances, artwork, budgets, business affairs, Merchant details, colour schemes, concepts, copyrightable work, customer list, data, designs, drawings, expertise, financials, formulae, functionality, human resources, ideas, information, Intellectual Property, intentions, inventions, joint ventures, know-how, layout, logos, literary works, market opportunities, methodologies, operations, partners, passwords, patent, personnel, plans, policies, procedures, processes, production information, projections, questions/answers, research, schematics, shareholders, slogans, software code, specifications, statistics, studies, supplier details, systems, trademarks (registered or otherwise), trade secrets, web developments, written materials, in any form or media, whether in writing or oral.

22.8 Consequential Loss means:


(a) any loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss even if any of that Loss arises naturally (according to the usual course of things) from the fact, matter or circumstance giving rise to the Loss;

(b) any Loss that is suffered or incurred by a party as a result of a fact, matter or circumstance which does not arise naturally (that is, according to the usual course of things) from the fact, matter or circumstance giving rise to the Loss;

(c) any penalties imposed by a Government Agency; but (d) this definition does not include PCI or related Fines.

22.9 Contract Manager is as defined in clause 2.1.

22.10 Fees mean the fees payable in respect of the GMS Cross-Border Payment Services as detailed in Schedule B.

22.11 Force Majeure Event means a circumstance beyond a parties reasonable control, including acts or omissions of third party network operators or service providers, other than the party’s Affiliates, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts other than industrial action, howsoever described of the party or party’s Personnel.

22.12 Government Agency means any governmental, semi-governmental, administrative, fiscal, statutory, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity having applicable operation or jurisdiction.

22.13 SALES TAX means goods and services tax or any similar tax imposed by reason of a supply of goods or services under or in connection with this Agreement;

22.14 Initial Term is as set out in Schedule B.

22.15 Intellectual Property means registered and unregistered business names, copyright, patents, tradem arks, trade names, domain names, social media handles, know how, designs, plans, ideas, trade secrets, concepts, discoveries, inventions, brands, specifications and similar industrial and commercial intellectual property determined on a worldwide basis, whether capable of registration or otherwise, both subsisting now or coming into existence at any time after the Commencement Date and includes the Confidential Information.

22.16 Intellectual Property Rights means all and any patents, trademarks, service marks, trade names, registered designs, unregistered design rights, copyrights and rights in confidential information, and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.

22.17 Law includes any applicable statute, rule, regulation, proclamation, order, ordinance or by-law (whether federal, state, territorial or local), codes of practice, USA Standards and compliance codes.

22.18 Loss includes all loss, damage or liability (including liability to a third party) of any kind.

22.19 PCI Fine means any fine or other financial penalty imposed on the Supplier by a bank as a result of the Supplier being non-compliant with the then-current version of the Payment Card Industry Data Security Standard.

22.20 Payment Terms is defined in clause 6.2.

22.21 Personnel means in respect of a party, the employees, agents, contractors and Affiliates of the party and the employees, agents, contractors of the party’s Affiliates and includes, in the case of the Merchant, the Merchant’s end users of the GMS Cross-Border Payment Services.

22.22 Renewed Term is defined in clause 3.2.


22.23 GMS Cross-Border Payment Services mean the services to be supplied by the Supplier to the Merchant in accordance with this Agreement, namely the services described in Schedule B.

22.24 Schedules mean the schedules and appendices to this Agreement.

22.25 SLA means the service level agreement separately provided to the Merchant by the Supplier and which may be amended by the Supplier in its absolute discretion from time to time.

22.26 Tax Invoice means any issued tax invoice from any jurisdiction.

22.27 Term is defined in clause 3.1.

22.28 Third Party Facilities is defined in clause 9.6.

Interpretation: In this Agreement, unless the context otherwise dictates:

22.29 Includes: the words ‘includes’, ‘include’, ‘including’, ‘for example’ or ‘such as’ must be read to mean ‘includes but is

not limited to’.

22.30 Singular and Plural: words importing the singular (where appropriate) mean and include the plural and vice versa.

22.31 Gender: words importing any one gender (where appropriate) mean and include the other genders and vice versa.

22.32 Natural Persons: words importing natural persons (where appropriate) mean and include corporations and unincorporated associations and vice versa.

22.33 Headings: the headings are for convenience of reference only and are not to be construed as affecting the meaning or interpretation of this Agreement.

22.34 Statutory Enactments: all references in this Agreement to Law mean and are to be construed as references to that Law as amended or modified, consolidated, re-enacted or replaced from time to time and to the corresponding provisions of any similar Law of any other relevant jurisdiction.

22.35 References to parts of this Agreement: all references in this Agreement to sections, articles, clauses, sub- clauses, paragraphs and schedules mean, and are to be construed as, references to the sections, articles, clauses, sub-clauses, paragraphs and schedules of this Agreement.

22.36 Party: references to any party to this Agreement or any other document or agreement include its successors, permitted assigns, heirs or legal personal representatives and includes company administrators, liquidators and trustees in bankruptcy.

22.37 Covenants: any covenants, representations, warranties, indemnities or guarantees made or given by more than one party to another party hereunder are, unless specified otherwise, made or given jointly and severally.

22.38 Whole includes part: a reference to anything includes the whole or any part of that thing and a reference to a group of things or persons includes each thing or person in that group.

22.39 Parts of speech: where any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning.

22.40 Business Day: Where any obligation under this Agreement falls to be performed on a day other than a Business Day, this Agreement must be construed as requiring that obligation to be performed on the next Business Day.

22.41 Currency: References to $ or Dollars are references to USA dollars, unless expressly indicated otherwise.


22.42 Calendar: a reference to a day, week, month or a year is a reference to a calendar day, week, month or a year.

22.43 Authorship preference: a provision must not be construed against a party merely because that party was responsible for preparing this Agreement or that provision.

22.44 Pre-Authorization: refers to system functions which allow the placement of funds on hold for a pre-determined time, giving the Merchant the full control to exercise the option of completing the transaction at a later date.


Schedule A: MERCHANT SERVICES AGREEMENT CONTRACTING PARTY DETAILS

THE SUPPLIER THE MERCHANT

Name: Global Merchant Services, Inc. dba GMS.Cash

FEIN: 320544287

Address: 1210 Central Ave Suite 201 Wilmette, IL 60091 U.S.A.

Contact Person:

Position:

Phone:

Fax:

Email:


Schedule B: MERCHANT SERVICES AGREEMENT PARTICULARS OF THE GMS CROSS-BORDER P A Y M E N T SERVICES

Contract Manager (cl. 2)

Initial Term (cl. 3) Twelve (12) months (unless terminated earlier in accordance with the terms of this Agreement)

Description of the GMS Cross-Border Services

A software application and platform developed by the Supplier which provides Merchants (who have web-based gateway APIs (being application programming interfaces) and point-of-sale payment processing and settlement capabilities in the Chinese currency) with a payment integration system, which:

(a) utilizes the WeChat Pay payment technology that is owned by Tencent Holdings Limited (China) and that is licensed to the Supplier to facilitate third party payments in the United States;

(b) utilizes the Alipay payment technology that is owned by Ant Financial Services Group and that is licensed to the Supplier to facilitate third party payments in the United States;

(c) processes payments from users of the Alipay and WeChat Pay payment technologies in Chinese Yuan, converts such payments to the USA Dollar equivalent and then sends such payments to the Merchant by utilizing settlement functions forming part of the software application;

(d) allows the Merchant to access the merchant management portal feature of the software application which facilitates transaction management, reporting and provides transactional analytics; and

(e) provides the Merchant with opportunity to access to additional unique Alipay and WeChat Pay marketing features such as but not limited to ‘WeChat Lucky Money’ (an incentive program where payers randomly receive cashbacks) and ‘WeChat Moment’ (being social media advertising aimed at enhancing a Merchant’s brand awareness).

Commencement Date The date of this Agreement


Fees An integration fee and ongoing maintenance fee for the GMS Cross-Border Payment Services shall be USD $0, plus SALES TAX.

In addition, the Supplier shall charge a Merchant Service Fee (MSF) to the Merchant, per transaction, which shall be calculated in a percentage amount. The calculation schedule is as follows:

• the MSF is 2.00% (SALES TAX inclusive) of payments made using the GMS Cross-Border Payment Services; (Alipay and WeChat Pay)

• the parties agree that when calculating the MSF, the figure shall be rounded to two decimal places; and

• the Merchant shall bear the MSF itself and may not elect to pass on the MSF to its customers.

Settlement Method The Supplier shall, after deducting all agreed service charges payable to the Supplier from the corresponding transaction, remit the balance to the Merchant by ways of Electronic Fund Transfer to the Merchant's nominated bank account in the currency of USA Dollars (USD). If the Merchant changes the bank account for any reason, it shall promptly give a valid notification to the Supplier of such change seven (7) calendar days in advance and shall provide any other information required by the Supplier. Any Loss arising from an un -notified change of bank account details shall be solely borne by the Merchant.

Particulars of the bank account nominated by the Merchant:

• Name of the bank:

• Country where bank is located:

• BSB:

• Account number:

• Account name:


Settlement Terms Settlement Cycle: T+2. Funds will be settled on or before 2 Business Day after the transaction has occurred.

All day and time refer to United States Eastern Standard Time (EST). Business Day starts at 00:00am United States Eastern Standard Time (EST). For Settlement Cycle T+2: the provision of the above Settlement Cycle notwithstanding, the transaction occurred on Friday will be settled on the following Monday, and the transaction occurred on Saturday and Sunday will be settled on the following Tuesday. Additional settlement time occurs during holidays, which cover the public and banking holidays in both P.R. China and United States. So that T+2 in practice means T+2 plus any interim holidays in China or United States.

Settlement Amount Calculation:

• If the Merchant elects to pass on the MSF to its customers, then the Merchant shall receive the full face-value settlement amount (e.g. the Merchant shall invoice its customers $100USD and the Merchant shall receive $100USD); or

• If the Merchant elects to bear the MSF itself, then the Merchant shall receive the full face-value settlement amount minus the MSF applied to the face value (e.g. the Merchant shall invoice its customers $100USD and the Merchant shall receive $100USD - $100 x MSF)

The Merchant acknowledges that the actual time of receipt of the payment from the Supplier may vary slightly due to the operation and settlement of the international and domestic banking systems.

The Merchant shall not be affected by any foreign exchange movement regarding payment processing and settlement, as indicated above in the Settlement Amount Calculation. During the payment process, the Merchant’s customers will be prompted with daily USD/CNY spot rate on the payment page.

The Merchant shall not be subject to any chargebacks in the event of transaction fraud, technical error or administrative error. Any and all investigative and transactional duties in such events will be carried out by Tencent Holdings Limited (China), the provider of WeChat Pay technology; Alipay.com Co., Ltd. (China), the provider of Alipay payment technology and China Telecom Orange Finance, the provider of BestPay payment technology.


Refund Process Any authorization-only or non-delivery or disputes or defects or warranty issues etc., arising from the Merchant's services rendered to its customers may incur refunds in the normal course of business after a transaction has been completed, which shall be dealt with in accordance with the following procedures:

• the Merchant shall be solely responsible for investigating and initiating refunds to its customers;

• if the related refund amount has been settled to the Merchant by the Supplier, the Merchant shall be solely responsible for processing the refund amount as per the Merchant's refund policy with its customers;

• if the related refund amount has not been settled to the Merchant by the Supplier, the Merchant can either: a) refund the amount as per the Merchant's refund policy to its customers, using its own funds prior to receiving the settlement amount; or b) the Merchant may make a refund request to the Supplier and the Supplier shall debit directly the refund amount from the unsettled amount payable to Merchant in order to initiate the refund;

• Due to settlement turnarounds and bank operations, it is possible that the unsettled funds with the Merchant may be insufficient to cover the actual refund amount, in which case the Merchant shall make the refund request to the Supplier at a later time when the required amount becomes available, given that the Merchant continues accumulating further unsettled transactions or alternatively, the Merchant may resort to a combination of method a) and b) above;

• except in the event that the Merchant ceases its business functions and is unable to refund its customers, the Supplier may request during the application process, a refundable security deposit to be paid by the Merchant upfront in order to cover such refund scenarios;

• the Merchant shall reserve the right to investigate the transaction before the refund is given and shall ultimately decide whether or not the refund is to be given; and

• the Supplier shall not impose any handling fee for any refund request.


SE R V I C E LEV E L AGR E E M E N T

Key contact details:

Recommended Information to be included in the support email:

- Nature of the issue - Date and time of occurrence - Impact on operation

Level of Support:

GMS provides three (3) levels of support: Level 1, Level 2, Level 3. The Merchant needs to identify the nature of the issue and appropriate level of support in order for GMS to achieve optimal Merchant support experience, and Merchant should use always use Level 1 support as priority support option.

Level 1 support functions include:

- First level of contact for Merchant Service Representatives - General facilitation of day-to day operations - System monitoring, including regular checking of system mail, error logs, alarms, system performance, utilization and capacity, user logins, etc. - Access and interpretation of system logs and traces - Archiving of data and backup related to GMS platform (if applicable) - Ensuring and maintaining remote access - Loading authorized software update - Attend to escalated problems from the Merchant Service Department - Attend to internal business support - System, and where practical, network reporting - Within reason and on a best endeavors basis, GMS will provide limited reporting-based fault recognition, isolation and forward to Level 2

Level 2 support functions include:

- Diagnosis of Hardware and Software faults - Monitoring progress - Problem resolution

Merchant Support Email: Contact:

Commercial Support Email: [email protected] Contact:

Technical Support Email: Contact:

Financial Support Email: [email protected] Contact:

Compliance Support Email: Contact:

mailto:[email protected]

mailto:[email protected]


- Where the Merchant has purchased hardware directly from GMS – GMS will process hardware faults through to the original hardware vendors standard support infrastructure and leverage off standing agreements and nominated response times - Escalation to Head Office/Technical Team or Level 3 support as required.

Level 3 support functions include: - Any problem as escalated from Level 2. - Interaction with Level 1 & 2 support and 3rd parties as relevant. - Acting as interface with 3rd Party software support organizations

Support not included: - Rectification of defects or errors resulting from any modification of the system not approved by GMS - Rectification of defects or errors resulting from use of the system in combination with anything not forming part of the original intent of the system - Rectification of a fault in anything not forming part of the system - Any modification of the system which represents a departure from the specifications - Electrical or environmental adjustment or damage caused by electrical or environmental factors - Repair or damage arising out of misuse or unauthorized use of the system by or any person - Furnishing accessories - Any rectification arising from any substitution, alteration or relocation of the System made by any person that is not approved by GMS - Rectification of errors or defects which are the subject of a warranty under another agreement - Any rectification arising from failing to install supplied updates or upgrades - Any defect arising from the use of the system other than in accordance with applicable user documentation - Rectification of errors or defects resulting from improper operation of the system by any person - Any defect arising from misuse, negligence or abuse of the software and/or database(s) - Any rectification arising from failing to comply with its obligations under these terms. -Maintenance of hardware or items external to the system, or for added accessories for which maintenance charges have not been paid - Engineering modifications (other than those normally performed as part of GMS support) - Supply and installation of consumables, or damage caused by use of incompatible consumables - Rectification of problems caused by the connection of or use of third party products, hardware and /or software which are not maintained by GMS - Refurbishment of product, or damage or wear due to overuse or use outside published specifications - Hardware and/or Software covered by third party maintenance agreements

Support Priority and Response time: The normal response time is 9am – 6pm, Mon – Fri (Excluding public holidays)

Criticality Description Merchant Notification Time

Response Time Resolution

1 GMS system is down Instantaneous 2 hours 5 hours 2 Major problem inhibiting

operation Instantaneous 4 hours 12 hours

3 Minor problem causing inconvenience

Instantaneous 24 hours 14 days

4 Other commercial/financial request

N/A 48 hours Tentative


Emergency/After Hour Contact:

To ensure high availability and reliability of GMS’s uninterrupted services, any serious issue/after hour escalation contact details might be established by agreed methods between GMS and the Merchant. Once established, an amended SLA shall be advised to the Merchant.


Execution Page to Merchant Service Agreement

Executed as an Agreement by the parties as set forth below by:

Supplier (#FEIN): Global Merchant Services, Inc. dba GMS.Cash (# 320544287)

Signature:

Print Full Name:

Position:

Date:

Merchant (# FEIN):

Signature:

Print Full Name:

Position:

Date:


Global Merchant Services, Inc. Version Control

Version Change Date Page Change By

SP2018.09.01 2018.09.01 9.2 (e) Add to 9.2 (e): This excludes implementing and maintaining the security of the Supplier’s network and systems, for which the Supplier is responsible in accordance with the Supplier’s agreements with Ant Financial Services Group, Tencent Holdings Limited (China), and The International Bank of Chicago.

WLee

Documents

Merchant Services Agreement - Hiker Payments · C The Merchant wishes to use the GMS Cross-Border Payment Services provided by the Supplier for receiving payments from the Merchant’s