Business Terms and Conditions

Last Update: July 16, 2026

These business terms and conditions, subscription and licensing agreement (“Agreement” or “Business Terms and Conditions”) constitutes a binding agreement by and between you, whether personally or on behalf of an entity pursuant to your Order Form(“you”, “your”, “Customer”, “Franchisee”, “Licensed Affiliate”, “Franchisor” or “Master Customer”) and WellnessLiving Inc. (“WL”, “WellnessLiving” or “us”) concerning your access to and use of, and WL’s provisionof, software and services.

If you are a Franchisee of a Franchisor or a Licensed Affiliate of a Master Customer, then:

(a) the master service agreement (“MSA”)and Order Form, if any, between WL and the Franchisor and/or Master Customer as the case may be, shall also be deemed incorporated by reference into this Agreement as and where applicable, and

(b) if there is any conflict, ambiguity or inconsistency between the terms and conditions of an MSA, a Franchisor and/or Master Customer Order Form, an Order Form of yours, this Agreement, the Addenda, and/or any referenced agreements or terms of use associated with a specific Software or Service, WL in its sole, unfettered and absolute discretion, shall decide on which terms or conditions of such contracts shall prevail, and furthermore where such terms or conditions as between any of the said agreements are ambiguous, WL, in accordance with its common and consistent business practices, shall decide on such question and adjust the language of the ambiguous term or condition to incorporate such omitted or clarifying language(unless explicitly stated otherwise in suchagreement).

If you have subscribed to Payments By WellnessLiving, then:

(a) the Payments By WellnessLiving Addendum attached hereto below will be deemed incorporated by reference into this Agreement, and

(b) you and WL will be bound by the terms and conditions of the Payments By WellnessLiving Addendum in addition to the terms and conditions of this Agreement and/or in lieu of the terms and conditions of this Agreement if there is a conflict between the terms and conditions of this Agreement and the Payments By WellnessLiving Addendum.

If you are formed or organized in Canada, then:

(a) the Canada Addendum attached hereto below will be deemed incorporated by reference into this Agreement, and

(b) you and WL will be bound by the terms and conditions of the Canada Addendum in addition to the terms and conditions of this Agreement and/or in lieu of the terms and conditions of this Agreement if there is a conflict between the terms and conditions of this Agreement and the Canada Addendum.

You agree that by accessing the services and software, you have read, understood, and agree to be bound by this Agreement. If you do not agree with all of the terms of this Agreement, you are expressly prohibited from using the services and software and must discontinue use immediately. WL reserves the right, in its sole discretion, to make changes or modifications to this Agreement at any time and for any reason.
We will alert you to changes to this Agreement by updating the “Last Updated” date of this Agreement, and you waive any right to receive specific notice of each such change.

It is your responsibility to periodically review this Agreement to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes to this Agreement by your continued use of the services and software. The services and software as defined below are for those in your order forms and as further defined below.

This Agreement including any addenda, exhibits, attachments and fully executed order forms, establishes the business relationship and allocation of responsibilities regarding the services and software, and you and WL therefore agree as follows:

1. Definitions.

In addition to terms defined elsewhere in the Agreement, you and WL ascribe the following meanings to the terms hereof:

(a) “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services as hereinafter defined.

(b) “Active Location(s)” means the number of Customer locations, physical or virtual, for which the Customer orders and utilizes the Services pursuant to the Order Form, and “Minimum Location Commitment” is the minimum participation of the Customer’s Active Locations pursuant to an Order From.

(c) “Aggregated Data” means data related to Customer’s use of Services, the data used by WL in an aggregate and/or anonymized manner, including, but not limited to, to compile statistical and performance information related to the provision and operation of the Services, or to otherwise provide certain Services to customers. Aggregated Data does not include any personally identifiable information (“PII”) or other information that could identify Customer or any particular individual.

(d) “Agreement” means this subscription agreement, any addenda, amendments, exhibits or attachments hereto or added after and any Order Form(s) issued to you and accepted by us, including anylicensing agreements and development agreements with respect to any of WL’s add-ons and mobile applications such as the Achieve Client White Label Application Development Agreement.

(e) “Authorized Users” means, subject to any limit specified in an Order Form, any person, including Customer’s employees, contractors, agents, representatives, Members, as hereinafter defined, or any combination thereof whom Customer, WL, or both authorize to access and use the Services, or any part thereof, subject to the terms and conditions of this Agreement and for the purpose of facilitatingthe provision of the Services to Customer.

(f) “Biometric Data” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual and in which a biometric identifier includes a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.

(g) “Confidential Information” means information that one Party, as hereinafter defined, provides to the other Party under this Agreement about its business affairs, products, systems, software, source code, services, pricing, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”; provided, however, that notwithstanding anything to the contrary in the foregoing:

i. the following are deemed to be the Confidential Information of WL: the Documentation, as hereinafter defined, the Services, the Software, as hereinafter defined, and the pricing corresponding to the Services as set forth in an Order Form (hereinafter “WL Confidential Information”); and

ii. at least the following are deemed to be the Confidential Information of Customer: the Customer Data.

(h) “Content” means content generated through the use of, access to, and/or interaction with the Software including third-party content introduced into one or more of the Software platforms.

(i) “Customer Affiliate” means, with respect to Customer, any other entity or member of a group of entities acting together that, now or in the future, directly or indirectly, through one or more intermediaries, controls, or is controlled by or is under common control with Customer.

(j) “Customer Data” means, other than Aggregated Data, information, data, and other information, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Software.

(k) “Documentation” means any documentation prepared and provided by WL to Customer on the use of the Services, as updated from time to time at the discretion of WL. For the avoidance of doubt, a manual, Terms of Use of the Services including for End Users, Members or for the Website, or Listing Service, and other written, official communication is considered Documentation; in contrast, any online community site, unofficial documentation, videos, white papers, or related media, or feedback do not constitute Documentation.

(l) “End Users” mean individuals and/or entities that actually use the Services and that receive access to same via Customer rather than via WL and/or WL Affiliates, and includes the Members. Customer acknowledges and agrees that each End User shall be required to enter into and agree to WL’s standard Terms of Use, also referred to as the End User Terms, End User License Agreement, or EULA, which may be amended from time to time by WL, and can be found on the Website or as promulgated by WL to the End User prior to accessing the Services, including the Software.

(m) “Feedback” means any changes recommended by Customer to the Services, the Documentation, or any combination thereof.

(n) “Fees” means the total fees, being the fees per Active Location, as applicable, andmultiplied by the number of Active Locations specified in an Order Form, including any other fees specified in the Order Form and modifications to such payments as implemented in accordance with Section 9 of this Agreement.If Fees remitted to WL in any given month or other subscription payment cycle or period, during the Term, or for the Term, as the case may be, is less than the fees per Active Location multiplied by the Minimum Location Commitment,the Customer shall pay to WL the difference for such period.

(o) “Franchisee” means that Customer is a franchisee of a Franchisor, as hereinafter defined, who has an agreement or arrangement with WL for WL’s provision of services by WL to Franchisee, and for which the Franchisor has also entered into this Agreementand/or a MSA with WL.

(p) “Franchisor” means a franchisor having a franchisor-franchisee relationship with one or more other Customers of WL that receive Services, at least in part, andare subject to the Franchisor’s franchise agreement, and for which the Franchisor has also entered into this Agreement and/or a MSA with WL.

(q) “Intellectual Property” means and includes all rights to, title in, and interests in and to the following throughout the world:

i. issued patents and, patent applications (including divisionals, continuations, continuations-in-part, extensions, reexaminations and reissues thereof), patent disclosures, inventions and invention disclosures (whether or not patentable or reduced to practice);

ii. copyrights and copyrightable works, including all original works of authorship;

iii. trade secrets, data, reports, software development methodologies, technical information, proprietary business information, process technology, plans, drawings, blue prints, marketing forecasts, and know-how;

iv. all rights of publicity, including the right to use the name, voice, likeness, signature and biographies of real persons, together with all goodwill related thereto;

v. all other intellectual, proprietary or industrial rights; and

vi. all registrations and applications for any of the foregoing.

(r) “Licensed Affiliate” means that Customer is a licensee of a Master Customer, as hereinafter defined, who has an agreement or arrangement with WL for WL’s provision of services by WL to Licensed Affiliate, and for which the Master Customer has also entered into this Agreement or a MSA with WL.

(s) “Listing Service” means the listing service under which the Customer’s business information and client reviews, including reviews by its members, (collectively the “Business Information”) are submitted to search engines, indexes and websites, as well as to the Website and Services, hereinafterreferred to as the “WellnessLiving Directory”.

(t) “Master Customer” means a licensor having a licensor-licensee relationship with one or more other Customers of WL that receive Services, at least in part, and are subject to the Master Customer’s licensing agreement, and for which the Master Customer has also entered into this Agreement and/or a MSA with WL.

(u) “Member” or “Members” mean members of the Active Locations operated by Customer.

(v) “Membership Agreement” or “Membership Agreements” mean an agreement or agreements entered into between Customer and one or more Members.

(w) “Order Form” means the separate ordering documents under which Customer subscribes to the Services pursuant to this Agreement that have been fully executed by the Parties.

(x) “Payments By WellnessLiving” means the payment processing facilitation and gateway services by WL bundled or separated in an Order Form as and when offered and for which the Payment By WellnessLiving Addendum attached hereto below will be deemed incorporated by reference into this Agreement.

(y) “Parties” mean Customer and WL.

(z) “Party” means Customer or WL.

(aa) “Personal Data” means information, data, and materials relating to identified or identifiable individuals, including enrollment records, billing and payment records, physical addresses, email addresses, and other personal information, data, and materials relating to a Party or its customers including “Cardholder Data” (as such term is defined in PCI-DDS guidelines as set forth on the Effective Date, as hereinafter defined, or subsequently updated), “Protected Information” (as defined in the NACHA ACH Security Framework rules as set forth on the Effective Date or subsequently updated), and Biometric Data.

(bb) “Services” means all of the services and/or Software, including but not limited to theListing Service, merchant and ACHprocessing services, Payments By WellnessLivingfacilitation software, WellnessLiving Starter, Basic, Business and Enterprise Cloud software applications, Enterprise Location software application, FitLIVE Professional, FitVID On Demand, Presence Website, Message Center, Custom Branded Mobile Applications including the Achieve client white label application by WL Mobile, Sales & Marketing Suite, AI Agent Isaac, Concerto AI Front Desk Automation SAAS Suite for Dental Practices and Salons including AISmart Assistant for Online Scheduling, and other modules and any integrations and applications, including API Access, APIs,SDKs, webhooks, developer tools, and related Documentation, that Customer orders or receives or as bundled in and pursuant to an Order Form or as otherwise further described in an addendum herein such as the Bridged API Access Addendum.

(cc) “Service Suspension” means any suspension described in subclause (a), (b), or (c) of Section 2.6 of this Agreement.

(dd) “Software” means computer-executable instructions that:

i. WL owns or licenses from a third-party; and

ii. makes accessible, has made accessible, or both to Customer in accordance with the terms and conditions of this Agreement for the provision of Services to the extent that the Services include such Customer access as specified or bundledin an Order Form.

(ee) “Website” means any website that WL, an WL Affiliate, or a combination thereof operate from time to time.

(ff) “WL Affiliate” means, with respect to WL, any other entity or member of a group of entities acting together that, now or in the future, directly or indirectly, through one or more intermediaries, controls, or is controlled by or is under common control with, the specified entity.

(gg) “WL Marks” means

i. trademarks, service marks, trade dress, trade names, corporate names, logos and slogans (and all translations, transliterations, and combinations of the foregoing), together with all goodwill associated with each of the foregoing; and

ii. all registrations and applications for any of the foregoing that correspond to and/or that are associated with the Services.

(hh) “WL Systems” means the information technology infrastructure used by or on behalf of WL in performing the Services, including all computers, hardware, databases, learning models, neural networks,large language models, electronic systems (including database management systems), websites, and networks, whether operated directly by WL or through the use of Affiliates or third-parties.

2. Software and Documentation.

2.1. Licenses to Services and to Documentation.

WL grants to Customer for the Term and Customer accepts to appoint WL as its exclusive provider of the Services, including of WL’s associated payment processors for Customer’s merchant and ACH processing requirements (e.g. accepting payments from Members),and agrees, on its own behalf and on behalf of its Customer Affiliates not to utilize any similar or competing services or software to the Services or Software, including without limitation any competing fitness club operating software services and/or competing payment processing provided by any other person or entity, during the Term of this Agreement (including any renewals or extensions). Customer agrees that its head-offices, corporate locations and Active Locations will exclusively use the Services as their business management platform, and Customer will not permit its Customer Affiliates to use competing or similar software or services to the Software or Services in any existing or new locations during the Term (including any renewals or extensions). Customer further agrees to exclusively use, and cause its Affiliates to use, either credit card, WL’s supported merchant and/or ACH payment processors and gateways or, when subscribed, Payments By WellnessLiving, for the processing and fulfilment of any payments due to WL hereunder or otherwise through the Service, and for such payment processing requirements when using the Service.Furthermore, WL grants to Customer and Customer accepts:

(a) a non-exclusive, non-transferable, non-sublicensable, and revocable license and right to access and use, and to permit the number of Active Locations and Authorized Users specified in an Order Form to access and to use the Software for the purpose of receiving the Services in connection with the Active Locations, and in accordance with:

i. the terms and conditions of this Agreement,

ii. WL’s policies, including but not limited to (collectively the “WL Policies”):

i. Privacy Policy which can be found on the Website at: https://www.wellnessliving.com/privacy-policy/,

ii. Security Framework which can be found on the Website at: https://www.wellnessliving.com/knowledge-base/wellnesslivings-security-framework/,
iii. Merchant Processing, which can be found on the Website at: https://www.wellnessliving.com/knowledge-base/merchant-processing/,

iv. And such other policies including with regards to cookies, disclaimers, uptime, maintenance and service interruptions, posted on the Website’s knowledgebase at https://www.wellnessliving.com/knowledge-base/, as such policies may be updated from time to time; and

iii. the Documentation.

(b) a non-exclusive, non-transferable, non-sublicensable, and revocable license to use any Documentation solely for Customer’s internal purposes to facilitate Customer’s use of and access to the Software and receipt of the Services.

2.2 Software Access.

With regard to access to the Software:

2.2.1 Access Commencement.

WL will provide Customer with access to the Service, including any Software on thedate specified in an Order Form (the “Effective Date”).

2.2.2 Internet Access.

Customer is responsible, at Customer’s own expense, to access the internet, either directly or through devices that access Web-based content and pay any service fees associated with such access. In addition, Customer must provide all equipment necessary to make such connection to the internet. Customer will not attempt to access any other WL Systems, programs or data that are not made available for Customer use except as expressly set forth in an Order Form or this Agreement. Customer understands and agrees that the operation and availability of the Software and Servicesare dependent on Customer’s internet and network availability, which is inherently unpredictable and may, from time to time, interfere with or prevent Customer’s access to and/or use of the Software. WL does not guarantee the security of any information transmitted to or from Customer or any user over the internet, including through the use of email. Access to the internet is Customer’s and each Authorized User’s sole responsibility and the responsibility of the internet provider(s) Customer selects. WL does not accept any responsibility for failure of any Software or Services due to internet facilities, including related telecommunications or equipment.

2.2.3 Software Availability.

Unless otherwise specifically provided for in an Order Form, WL will use commercially reasonable efforts to reduce downtime and interruptions to Customer’s access to the Services, which is described in more detail found in WL’s Policies. Customer acknowledges and agrees that WL has no control over downtime or interruptions arising out of or resulting from:

(a) act or omission by Customer or any Authorized User, or any other access to or use of Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement;

(b) Customer’s internet connectivity;

(c) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by WL pursuant to this or another written agreement with Customer;

(d) scheduled downtime or maintenance; or

(e) disabling, suspension, or termination of the access to the Services, or any part thereof, pursuant to this Agreement.

2.2.4 Features and Modifications.

The inclusion, exclusion, and continued support for, any feature, functionality, module in, or release of any Software and Services is within the sole and absolute discretion of WL. WL retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Software or Services without any liability or obligation to the Customer, provided that WL will endeavor to provide Customer with prior notice of any material changes to the Software or Services and that WL will not materially degrade the functionality of the Software or Services. Under no circumstances will WL be responsible for any fault, failure, breach, liability or damages that result from any custom modifications made for the Customer.Any modifications that WL agrees to make shall be at the Customers sole risk and cost; and where any input, instruction, consultation, graphics, theme, colors, content, functional flow, approvals of mock-ups or screens or designs are not provided or approved by Customer upon request or within a reasonable timeframe no longer then ten (10) days from request by WL, then WL shall be free to proceed at its sole and unfettered discretion approving all such mock-ups, designs, functional flows, screens, wireframes or otherwise on behalf of Customer, and that any fees payable by Customer with respect to same shall be deemed earned, due and payable to WL without recourse or refund; and in the event Customer requires any modifications, changes, corrections or otherwise therefrom, same shall be at additional cost to Customer at WL’s then rates and fees for such services.WL is and will not be liable for any lost revenue, lost profits, or other incidental or consequential damages even if advised of the possibility of such damages by reason of any performance or non‐performance of any such modifications at the request of or because of the Customer, including any deemed approvals as aforesaid.

2.2.5 Beta Testing.

Beta Software is a version of Software that has not yet been released to the general public. WL, at its sole discretion, may offer beta testing to selected, interested customers. If Customer use a Software or Services during beta testing, Customer is asked to provide Feedback to WL and assume all risks associated with the beta Software. WL advises all beta users to use extreme care when beta testing Software since beta Software is subject to strict confidentiality and the quality of the Software is still under evaluation. BY DOWNLOADING OR USING WL’S BETA SOFTWARE, CUSTOMER EXPRESSLY AGREES TO THE FOLLOWING TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO ANY PROVISIONS CONTAINED HEREIN, CUSTOMER MUST NOT DOWNLOAD OR IMMEDIATELY DISCONTINUE ANY USE OF THE BETA SOFTWARE: Customer acknowledges and agrees that WL offers beta Software “AS IS” without warranty of any kind, express or implied, and subject to the terms contained this Agreement. WL has and will have no obligation to maintain, correct, update, change, modify, or otherwise support the beta Software in beta testing. WL may discontinue providing service to the beta Software at any time. WL makes no guarantee or commitment as to the success of the beta Software. Customer acknowledges that the privacy and security terms set forth or referenced herein WILL NOT apply to beta testing and no privacy or security should be reasonably expected during beta testing. Beta testing is at the entire risk of Customer, not WL. WL is and will not be liable for any lost revenue, lost profits, or other incidental or consequential damages even if advised of the possibility of such damages by reason of any performance or non‐performance under this Agreement. Furthermore, WL is and will not be liable for any delays, losses, or other damages which may result from the furnishing or canceling of any WL Software, features, and/or modules, including, but not limited to, the beta testing Software.

2.3 Credentials.

Customer must provide and administer Access Credentials for all Authorized Users. Each Authorized User must have a valid Access Credential for the purpose of accessing the Software and each Authorized User is limited to one Access Credential. Customer must keep and must obligate any Authorized Users to keep all Access Credentials strictly confidential and will maintain the confidentiality thereof. Access Credentials may only be used by the assigned Authorized User and may not be shared or transferred without WL’s prior written consent. Customer will notify WL immediately of any unauthorized use of any Authorized Users’ Access Credentials, accounts, or any other breach of security. WL will not be liable for any loss that Customer or an Authorized User may incur as a result of someone else using Customer’s or its Authorized User’s Access Credentials.

2.4 Use Restrictions.

Customer will only use and access the Software to receive the Services and for no other purpose. Customer will obligate its Authorized Users to use and access the Software to receive the Services and for no other purpose. Any use of or access to the Software not expressly permitted under this Agreement is prohibited.

2.5 Reservation of Rights.

WL reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted to Customer in Section 2.1, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party, any additional rights in the Software.

2.6 Service Suspension.

Notwithstanding anything to the contrary in this Agreement, WL may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Software:

(a) if WL reasonably determines that:

i. there is a threat or attack on any of the Services;

ii. Customer’s or any Authorized User’s use of the Software disrupts or poses a security risk to the Software, to any other Customer or supplier of WL, to the WL Systems, or any combination thereof;

iii. Customer, or any Authorized User, is using the Software in breach of this Agreement or for fraudulent or illegal activities;

iv. subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, receivership, or similar proceeding; or

v. WL’s provision of the Software to Customer or any Authorized User is prohibited by applicable law;

(b) if any supplier of WL has suspended or terminated WL’s access to or use of any third-party services, products, and/or software required or reasonably necessary to enable Customer to access the Software; or

(c) if Customer fails to cure late payment(s) as further provided in this Agreement.

WL will endeavor to provide notice of any Service Suspension to Customer, which may be via electronic means. WL may, in its sole discretion, resume providing access to the Software after the event giving rise to the Service Suspension is cured. WL will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

2.8 License to Authorized Users.

If any of the Services are to be provided to Authorized Users who are not employees of Customer (for example, a Member), Customer agrees that WL may promulgate any terms and conditions that WL, in its sole discretion, deems appropriate for such Authorized Users, and such Authorized Users must Accept such terms and conditions prior to receiving access to the Services, including of any Software. Such terms and conditions can be found on the Website, and for example, Members will accept and agree to WL’s standard Terms of Use, also referred to as the End User Terms, End User License Agreement, or EULA, which may be amended from time to time by WL.

2.9 Legal Compliance.

WL shall provide the Website, Software, and Services in accordance with laws applicable to WL’s provision of the Website, Software, and Services to its customers generally (i.e. without regard for Customer’s particular use of the Website, Software, and Services), subject to Customer’s use of the Website, Software, and Services in accordance with this Agreement, the Documentation and Order Forms.

2.10 Uptime Commitment.

Subject to any other provision herein this Agreement, WL will make the Services available to you on a twenty-four hour, seven days a week (24×7) basis at a rate of 98% (“Guaranteed Uptime”). Calculation of the Guaranteed Uptime will begin on the date you first access the Services with a paid subscription (“Start Date”) and will be measured over each consecutive twelve (12) month period ending on the anniversary of the Start Date (each, a “Service Period”). The Guaranteed Uptime will be calculated excluding downtime or performance issues caused by any of the following:

(a) Scheduled maintenance for which we give you at least twenty four (24) hours’ prior notice;

(b) Force majeure event (as described in the Agreement);

(c) Overall Internet congestion, slowdown, or unavailability;

(d) Suspension or termination of the Services by WL pursuant to this Agreement;

(e) Your equipment or third party telecommunications, computer hardware, software, or network infrastructure not within the sole control of WL.

If the Services fail to meet the Guaranteed Uptime during a Service Period, as your sole and exclusive remedy, you may receive up to one (1) free month of Services credit to your account. If you believe the Guaranteed Uptime has not been met in a Service Period, in order to receive an account credit you must send a request via email to support@wellnessliving.com no later than fifteen (15) days after the end of the applicable Service Period. The email must include dates, times and descriptions of each instance of downtime, and any supporting calculations.

3. Customer Responsibilities.

3.1 Users.

Customer is responsible and liable for all use of the Software and Documentation resulting from access by or through Access Credentials directly or indirectly provided by Customer to Authorized Users. Without limiting the generality of the foregoing, any and all acts and/or omissions of Authorized Users that, had such acts and/or omissions been caused by or attributable to Customer would constitute a breach of this Agreement, will be deemed to constitute a breach of this Agreement by Customer and will be attributable to Customer hereunder.

3.2 Restrictions.

Customer will not publish and/or make available any Content that and/or use any Website, Service, Software, and/or WL Systems in any manner that:

(a) infringes, violates or misappropriates any third-party’s Intellectual Property or proprietary rights;

(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(c) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;

(d) is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, including WL and WL Affiliates, or is invasive of another’s privacy;

(e) is harmful to minors in any way;

(f) is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by WL and/or any WL Affiliate;

(g) impersonates an WL and/or WL Affiliate employee, or any other person, or falsely states or otherwise misrepresents Customer’s affiliation with any person or entity, or to obtain access to the Service, WL Systems, the Website or a portion thereof without proper authorization;

(h) interferes or attempts to interfere with the proper working of any Website, any Service, any Software, the WL Systems, and/or any of the foregoing, prevents others from using any Website, any Service, any Software, the WL Systems and/or any of the foregoing, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Website, or that otherwise negatively affects other persons’ ability to use any Website, any Service, any Software, and/or the WL Systems;

(i) uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the any Website, any Service, any Software, and/or any Content contained therein;

(j) facilitates the unlawful distribution of copyrighted Content;

(k) except as expressly permitted by WL and/or any WL Affiliate, licenses, sublicenses, rents or leases the Software and/or Service to third parties, or uses the Software and/or Service for third-party training, commercial time-sharing or service bureau use;

(l) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through any Website, any Software, and/or any of the Services to users;

(m) constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;

(n) stalks or otherwise harasses anyone on any Website and/or using any Service and/or Software or with information obtained from any Website and/or Service;

(o) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;

(p) requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of any Websites and/or Services for the purposes of automating logins to any Websites and/or access to any Services and/or Software;

(q) attempts to gain unauthorized access to the WL Systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of any Website, any Service, and/or any Software;

(r) posts adult or pornographic Content;

(s) decompiles or reverse engineers or attempts to access the source code of any Software, any Service, and/or any Website;

(t) except to the extent expressly authorized in this Agreement, copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Website, the Services, and/or the Software;

(u) accesses any Websites, any Services, any Software, or any of the foregoing for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in any Website, any Services, and/or any Software;

(v) accesses any Website, any Service, and/or any Software for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;

(w) accesses any Website to upload any Content or computer code for the purposes of:

i. causing a breach or override of security to any Website, any Service, and/or any Software;

ii. interfering with the proper working, functionality or performance of any Website, any Service, and/or any Software; or

iii. preventing others from accessing or using any Website, any Service, and/or any Software; or

(z) violates, or which makes WL or any WL Affiliate violate, any privacy rights, including, but not limited to, the Telephone Consumer Protection Act of 1997 (“TCPA”) (or any similar law) or the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”).

WL reserves the right to investigate and take appropriate action against any party that, in WL’s sole discretion, violates this Section 3.2, including without limitation, taking legal action. Customer will cooperate with WL if WL elects to perform an investigation.

3.3 Permits, Licenses, and Consent.

Customer must obtain and maintain in effect all permits, licenses, consents, and authorizations necessary for use of the Software.

3.4 Legal Compliance.

Customer will comply with, and be bound by, state, provincial, federal or local laws, rules, regulations or ordinances with respect to the operation of its business. Customer expressly understands and agrees that except as expressly stated in this Agreement, Customer is solely responsible for ensuring that Customer’s use of WL’s Website, Services, and Software will be in compliance with applicable laws.

3.5 Customer Content.

If any Software and/or Services enable Customer to provide or upload Content, then the following terms and conditions apply as between Customer and WL:

(a) Customer acknowledges and agrees that Customer is solely responsible for all Content that Customer submits, provides or uploads and the consequences for submitting, providing or uploading it.

(b) WL and/or WL Affiliates will use Content that Customer uploads solely in connection with providing any of the Software and Services to Customer, and for no other reason. Customer agrees that by uploading, or otherwise providing any Content on or through the Website, any of the Software and/or Services, Customer hereby grants to WL a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing any of the Software and any of the Services to Customer together with the right to sublicense each and any of the foregoing to WL Affiliates and/or other third parties that WL might use solely to the extent necessary to facilitate the provision of any of the Software and/or any of the Services to Customer. This license includes the right to host, index, cache or otherwise format Customer Content to provide any of the Software and/or any of the Services.

(c) Customer acknowledges and agrees that Customer’s Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of any of the Software and/or any of the Services, and as such may be accessible to others including without limitation to:

i. Customer’s agents;

ii. End Users;

iii. third-party service providers and their agents;

iv. any other person to whom any of the foregoing persons have granted access to Customer’s Content; and

v. WL Affiliates.

WL will take commercially reasonable steps to ensure that Content identified as private within the functionality of any of the Software and/or any of the Services is not shared (unless Customer selects otherwise), but Customer acknowledges and agrees that WL and/or WL Affiliates cannot and do not guarantee any confidentiality with respect to Customer Content whatsoever.

(d) Customer represents and warrants to WL and to WL Affiliates that Customer owns Customer’s Content or has the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to WL or use thereof by WL and/or WL Affiliates will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.

(e) Customer agrees that neither WL nor any WL Affiliates are responsible for any violations of any third-party Intellectual Property rights, privacy rights, publicity rights, trademark rights, contract rights or any other rights of any person or entity in any Content that Customer submits. Customer agrees to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by Customer to the Website.

3.6 Email Compliance.

You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those Members and/or others with which you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices. Because of carrier technologies, WL makes no expressed or implied warranty of individual message receipt. WL is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.

3.7 Text (SMS) Message Compliance.

The Telephone Consumer Protection Act (TCPA) is a federal law regulating the way consumers are contacted by telephone, fax, and text message. The TCPA regulations apply to the text and automated landline messages you are able to send through the Services to communicate with your Members and/or others.

(a) TCPA regulations require that companies obtain consent from consumers prior to sending any sort of text or automated telephone messages. For HIPAA (Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended) covered entities, requirements for how consent is obtained are different depending on whether the messaging only contains health-related information or if it includes marketing-focused content. The TCPA regulations are described below to help you understand the restrictions. WL automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them.

(b) For HIPAA covered entities sending informational only health-related messages, the Member’s or other’s consent can be written, electronic or verbal. With these guidelines, you can send your Members and/or others informational messages about their health care. Such health-related informational messages include appointment reminders without marketing content.

(c) We strongly recommend that your “Privacy Policy” specifically state that you may use your Member’s or other’s landline or cell phone numbers to contact them with informational messages, specifically, that third party business associates may text them with reminders. We also suggest that you obtain written acknowledgement from each Member or other stating that they have received and reviewed your privacy policy. While these steps are a best practice, consent can also be obtained from clients in other ways (verbal consent is acceptable.)

(d) The Services can also be used to send or automate marketing-focused messages, which are subject to more stringent TCPA regulations. Messages with any sort of marketing content require that your Member or other provide you with “express written consent”, which may be obtained in an electronic format. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your Member or other affirmatively agrees to receive such messages. The prior express consent must include your Members’ and/or others’ written or electronic acceptance. Specifically, by entering a cell phone number into the Services and not opting such cell phone out of the WL text message feature, you are directing WL to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages.

(e) TCPA regulations require you to honor Member and/or others requests to opt-out of future telephone, fax, or text messages. The Services allow you to honor these requests on an individual basis. A Member or other may also opt-out of text messages at any time by replying with the word STOP to any text message sent through the WL. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature.

(f) TCPA regulations require you to identify your business by name and telephone number in all text messages you send to Members and others. The Services enable you to comply with this rule by requiring you to include identifying tokens in all text message templates. You will not be able to send any text messages that do not contain complete and proper identification. Additionally, you may not attempt to spoof sender domains, send spam or other offending text message practices.

(g) WL makes no expressed or implied warranty of individual message receipt. WL shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g. email and text) messages that you send to your Members and/or others.

(h) If you are doing business or located in Canada, you must comply with CASL requirements including, but not limited to, providing identification, making available an unsubscribe (opt-out) mechanism, and obtaining consent from the message recipient. You are responsible for applying all consent, identification, and opt-out requirements. For text messages, you agree to adopt the double opt-in process wherein 1) you may only use text message services for those Members and/or others with whom you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the Members and/or others must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery, including that portion of the message which indicates who is sending the message, along with a mailing address, plus either a contact phone number, email address or contact page URL. You may not attempt to spoof sender domains, send spam or other offending text message practices. Because of carrier technologies, WL makes no expressed or implied warranty of individual message receipt. WL shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You agree to make your internal practices, books, and records, including policies and procedures and information, relating to this Agreement, available to WL for the purposes of WL determining your compliance with the obligation to secure consent for your Members and/or other to receive marketing messages and other communications (email, text, or other). Such information shall be made available in a time and manner reasonably requested by WL.

3.8 Franchisee, Licensed Affiliate, Franchisor and Master Customer Acknowledgements.

Franchisee or Licensed Affiliate, as a Customer, acknowledges that the Franchisor or Master Customer, respectively, including its staff, shall be able to:

(a) Access to make changes to any of the Franchisee’s or Licensed Affiliate’s Services, as the case may be;

(b) Group Franchisee’s or Licensed Affiliate’s Locations, as the case may be, with other Franchisees or Licensed Affiliates, respectively, under regional settings for administrative consistency of Location operations and branding;

(c) Push settings (pricing, purchase options, services, business policies, etc.) to Franchisee’s or Licensed Affiliate’s Services, as the case may be;

(d) Sign into Franchisee’s or Licensed Affiliate’sServices, as the case may be, without requesting permission;

(e) Allow Members from other Locations to access the Franchisee’s or Licensed Affiliate’s Location, as the case may be;

(f) Transfer Members from a Franchisee or a Licensed Affiliate, as the case may be, to another Franchisee or Licensed Affiliate, respectively, or to another Location;

(g) Require, enforce, suspend, cancel orterminate any Services and/or Software of a Franchisee or Licensed Affiliate, as the case may be;

(h) Transfer Franchisee’s or Licensed Affiliate’s Customer Data, as the case may be, to Franchisor or Master Customer, respectively, or to another Franchisee or Licensed Affiliate, as the case may be, or other designate; and

(i) Pay for or on behalf of any Franchisee or Licensed Affiliate, as the case may be, its Fees pursuant to this Agreement and/or any Order Form.

4. Data.

4.1 Aggregated Data.

WL may monitor Customer’s use of the Software and collect, use, and compile Aggregated Data based on Customer Data. WL owns all right, title and interest in Aggregated Data. WL will use Aggregated Data in compliance with applicable law. This provision shall survive the termination of this Agreement.

4.2 Data Sharing.

Notwithstanding anything to the contrary herein, WL may share any Customer Data received in connection with the Services with any WL Affiliate and/or third-party subcontractors solely to the extent necessary to facilitate provision of the Services to Customer.

4.3 General.

Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer hereby assumes such risks. WL offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.4 Accuracy of Data.

WL will have no responsibility or liability for the accuracy or completeness of Customer Data uploaded to the Software or WL’s System by Customer, including without limitation any Customer Data or information uploaded by Authorized Users.

4.5 Deletion of Data.

WL may remove Customer Data or any other data, information, or content of data or files used, stored, processed or otherwise by Customer or Authorized Users that WL, in its sole discretion, believes to be or is:

(a) a virus, a worm, or other malicious code;

(b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene;

(c) used for the purpose of spamming, chain letters, or dissemination of objectionable material;

(d) used to cause offense, defame or harass;

(e) infringing the Intellectual Property Rights or any other rights of any third-party;

(f) otherwise in breach of the terms of this Agreement; or

(g) requested to be deleted by the owner of the individual of whom the Customer Data contains Personal Data.

4.6 Required Consents.

Customer warrants and represents to WL, on behalf of Customer and/or Authorized Users, that Customer has obtained and will obtain, throughout the term of this Agreement, all necessary consents from Authorized Users, including End Users and Members, and/or any other third parties required under applicable law:

(a) to disclose their personal information to WL, WL Affiliates, and/or their respective directors, officers, employees, agents, and/or contractors to facilitate the provision of the Services;

(b) for WL, WL Affiliates, and/or their respective directors, officers, employees, agents, and/or contractors to collect, use, process, access, and/or disclose Personal Data as set forth herein or as otherwise designated by Customer or Authorized Users;

(c) for WL, WL Affiliates, and/or their respective directors, officers, employees, agents and/or contractors to collect, use, process, access and/or disclose Personal Data (including Members’ Personal Data) for any Customer marketing purposes subject to an opt-out of which WL has been apprised in writing by Customer or the individual themselves; and

(d) for Customer, WL, WL Affiliates, and/or their respective directors, officers, employees, agents and/or contractors to collect, use, process, access and/or disclose Biometric Data to perform the Services.

Additionally, Customer represents and warrants to WL and to WL Affiliates that Customer is and will be, throughout the term of this Agreement and any extensions thereto, in compliance with all applicable laws, rules, regulations, ordinances, and standards including those that govern the use, collection, and processing of Personal Data.

4.7 Franchisee or Licensed Affiliate Data.

If Customer is a Franchisee or Licensed Affiliate, then Franchisee or the Licensed Affiliate, as the case may be, acknowledges and agrees that Franchisor or Master Customer, respectively, owns all Customer Data derived from Franchisee’s or Licensed Affiliate’s Membership Agreements, including all Personal Data provided by Customer’s Members and the Membership Agreements themselves. Franchisee or Licensed Affiliate, as the case may be, acknowledges and agrees that Franchisor or Master Customer, respectively, may direct WL to transfer such data (e.g., the Customer Data, the Personal Data, or both) to Franchisor or Master Customer, respectively, another Franchisee of the Franchisor or another Licensed Affiliate of the Master Customer, respectively, or a third-party or otherwise use such data (e.g., the Customer Data, the Personal Data, or both) without regard to the effect of such use upon Franchisee or Licensed Affiliate, as the case may be. WL is authorized to solely rely on such direction from Franchisor or Master Customer, as the case may be, without the need to notify Franchisee or the Licensed Affiliate, otherwise seek Franchisee’s or Licensed Affiliate’s consent to such direction, and/or review, consult, or obtain the franchise agreement or licensing agreement, as the case may be.

4.8 No Ownership of Customer Data Until All Fees Paid.

The Customer andFranchisor or Master Customer, as the case may be, and if applicable, acknowledge and agree that neither own or will have access after the effective date of termination of an MSA, this Agreement, any Order Form and/or addenda, to, the Customer Data until all amounts due and/or are in arrears are paid in full to WL in accordance with an MSA, this Agreement, any Order Form and/or addenda.

5. Data Privacy.

5.1 General Data Security Guidelines.

During the Term, each Party will comply with, and will require its employees, contractors, and/or agents to comply with, all data security guidelines that are applicable to its business. While WL will maintain the security of its environment, Customer expressly acknowledges and agrees that it is solely responsible for obtaining and maintaining its own security measures to protect Customer’s hardware, systems, and applications that interact with any of the Software and/or any of the Services. While WL and/or WL Affiliates may offer many optional features to increase data security, WL and/or WL Affiliates are unable to support customer-specific privacy and security requirements, since the platform is not built or customized on a per-customer basis. WL’s general data security measures and guidelines may be found through WL’s Policies on its Website, particularly under its knowledgebase and in the WL’s security framework pages found here: https://www.wellnessliving.com/knowledge-base/wellnesslivings-security-framework/.

5.2 HIPAA and Laws.

In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended (“HIPAA”), you agree to follow and abide to the following:

(a) Ensuring that your use of the Services complies with applicable law, including but not limited to laws relating to maintenance of privacy, security, and confidentiality of patient and other health information.

(b) Implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services.

(c) Such safeguards must comply with federal, state, provincial and local requirements, including the Privacy Rule and the Security Rule.

(d) Maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process electronic health information through the use of the Services.

(e) If you are subject to HIPAA, prior to accessing or using the Services you must notify WL and enter into a Business Associate Agreement (“BAA”). You are solely responsible for determining whether you are subject to HIPAA. You may send notice and request a BAA by emailing privacy@wellnessliving.com.

5.3 Specially Protected Information.

WL applies the standards of the Privacy Rule in permitting access to the Service.

(a) You acknowledge that other federal, state and provincial laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals.

(b) You agree that you are solely responsible for ensuring that personal health information is subject to the restrictions of the Privacy Rule and applicable law. In particular, you will:

(c) not make available to other users through the Services any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users, including Members or End Users, or under law);

(d) obtain all necessary consents, authorizations or releases from individuals required for making their personal health information available to WL; and include such statements (if any) in your notice of privacy practices as may be required.

WL is committed to maintaining the confidentiality of information entrusted to us, especially individually identifiable personal and health information. WL follows its HIPAA policies and procedures. You are responsible for determining if the Services meet your compliance standards.

5.4 WL’s Use of Protected Health Information.

The Services may include use of your member’s and/or other’s Protected Health Information that you or your personnel input or upload onto the Service or that WL receives on your behalf from your authorized service providers or our third-party partners (“Your Health Information”). You retain all rights with regard to Your Health Information, and WL will only use such information as expressly permitted in this Agreement and our BAA. You authorize WL, as your business associate, to use and disclose Your Health Information as follows:

(a) WL will permit access to Your Health Information by business associates to whom you have consented to provide access to the Services. You acknowledge that once WL has granted access rights to another covered entity (or their respective business associates), WL has no control over the uses and disclosures that the business associate makes of Your Health Information, and the recipient may be subject to its own legal or regulatory obligations (including HIPAA) to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or regulation.

(b) WL may “De-Identify” (means health information that has been de-identified in accordance with the provisions of the Privacy Rule) Your Health Information and use and disclose de-identified information as provided by this section.

(c) WL may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize WL to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.

(d) WL may use Your Health Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Services make available, in order to render these reports to you. Preparation of such analyses and reports may include the use of data aggregation services, which WL may perform using Your Health Information. Such reporting will be done in a manner that does not make any disclosure of Your Health Information that you would not be permitted to make.

(e) WL may use Your Health Information for the proper management and administration of the Services and our business, and to carry out its legal responsibilities. WL may also disclose Your Health Information for such purposes if the disclosure is required by law, or WL obtains reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only (a) as required by law (as such term is defined in 45 CFR §164.103), or (b) for the purpose for which it was disclosed to the recipient, and the recipient notifies WL of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, WL may permit access to the system by our contracted system developers under appropriate confidentiality agreements.

5.5 De-Identified Information.

In consideration of WL’s provision of the Services, you hereby transfer and assign to WL all right, title and interest in and to all De-Identified Information that WL makes from Your Health Information. You agree that WL may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this section are, among others,a principal consideration for the provision of the Services, without which WL would not enter into this Agreement.

5.6 Individual’s Rights.

You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.

6. Intellectual Property Rights.

6.1 WL Intellectual Property.

Customer acknowledges and agrees that WL owns all rights to, title to, and interests in the Services, the Software, the Documentation, the WL Marks and any associated Intellectual Property rights. Customer will not use WL Marks without prior written consent from WL. Further, Customer will not remove, delete, alter, or obscure any WL Marks, specifications, warranties, or disclaimers, or any copyright, patent, or other Intellectual Property or proprietary rights notices or labelling from any Documentation, including any copy thereof, or other product made available under this Agreement to Customer.

6.2 Customer Data.

WL acknowledges and agrees that, as between WL and Customer, Customer owns all rights in, title to, and interests in Customer Data. Customer hereby grants to WL a non-exclusive, worldwide, and royalty-free license, during the Term, to use, reproduce, distribute, learn of, anonymize,aggregate, publicly perform and display, and make derivative works of the Customer Data solely to the extent necessary for WL to deliver the Services to Customer. WL may sublicense any of the foregoing rights to WL Affiliates and/or other third parties solely to the extent necessary to facilitate delivery of the Services by WL to Customer through such WL Affiliates and/or other third parties.Except in accordance with this Agreement, if applicable, or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed or otherwise disposed of by WL to any third party for any other purpose. The Customer and not WL, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, WL shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. Furthermore, the Customer assumes all responsibility for any liability resulting from the handling of credit card or other payment information from anyone, including Authorized Users, End Users and Members. The Customer agrees that it will comply with PCI-DSS whenever the Customer processes credit cards using the Service (e.g., storing Customer Data such as credit card information anywhere in the Software that is not in compliance).

6.3 Feedback.

Customer hereby grants and WL and the WL Affiliates now accept a transferable worldwide, non-exclusive, royalty free, perpetual, and irrevocable license to use or incorporate into any Software or Service any Feedback (including any associated Intellectual Property rights) provided by Customer to WL.

6.4 WellnessLiving Directory and the Listing Service.

If and when required by WL or any of the WL Affiliates, you agree to participate in the Listing Service, and allow WL to make this data available and provide registration services to the WellnessLiving Directory and third-party websites. You acknowledge that it is up to third-party websites to accept the submissions, and WL makes no warranty as to such websites’ willingness to do so. For so long as Customer continues to subscribe to the Services, WL will make a good faith attempt to ensure accuracy and confidentiality of the information provided to third-party websites under the Listing Service. WL has no control of third-party websites or resources that are provided by companies or persons other than that of WL. Additional tools may be available from the third-parties to provide additional updates to your information, but if you use such services, WL is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. WL may terminate your participation in the Listing Service, or this Agreement, at any time in the event that WL determines that you are not in compliance with this Agreement. Upon termination of this Agreement by either party, the Business Information and any reviews (from anyone, including Members) may remain in any data feeds provided to third-parties under the Listing Service but is subject to removal at any time as determined by WL and if within its control. You may request explicit removal of the Business Information from such data feeds in writing, however WL takes no responsibility in obtaining the removal thereof. Upon request at any time up to thirty (30) days following termination of this Agreement, WL will provide you with an electronic copy of your Business Information, including reviews, for which it has control over.

7. Confidential Information.

7.1 Disclosure of Confidential Information.

Neither Party will disclose the other Party’s Confidential Information except as authorized by the disclosing Party in writing, as otherwise authorized in this Agreement, or if disclosure is required by operation of law. The Parties agree that, notwithstanding anything to the contrary in this Agreement, information is not confidential if the information:

(a) is publicly available or becomes publicly available through no action or fault of the recipient Party;

(b) was already in the recipient Party’s possession or known to the recipient Party prior to being disclosed or provided to the recipient Party by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing Party or any other party with respect thereto;

(c) was or is obtained by the recipient Party from a third-party, provided, that, such third-party was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing Party or any other party with respect to such information or material; or

(d) is independently developed by the recipient Party without reference to the information.

7.2 Use of Confidential Information.

Each Party will:

(a) hold the other Party’s Confidential Information in confidence and use reasonable care to protect the same;

(b) restrict disclosure of the other Party’s Confidential Information to those of its employees, agents, contractors, and affiliates with a need to know such information and who are under a duty of confidentiality respecting the protection of Confidential Information, which is substantially similar to the confidentiality obligations of this Agreement;

(c) use the Confidential Information solely for the purpose of enhancing services related to wellness, fitness and health facilities including enhancing the Software and/or the Services.

7.3 Misuse of Confidential Information.

Each Party agrees that breach of this Section 7 may cause the other Party irreparable injury, for which monetary damages will not provide adequate compensation, and that in addition to any other remedies available at law and in equity, each Party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.4 Confidentiality Term.

Except for the WL Confidential Information and Customer Data, which the Parties will treat as confidential in accordance with this Section 7 for as long as such items constitute “Confidential Information,” the Parties will treat each other item of Confidential Information received hereunder in accordance with this Section 7 for a period of five (5) years from the date of first disclosure of each such other item of Confidential Information.

8. Services – General.

8.1 Performance.

WL will use commercially reasonable efforts to provide the Services to Customer.

8.2 Delegation and Subcontracting.

Customer acknowledges that WL uses the services of WL Affiliates, including WL Mobile, and/or third-party subcontractors, including third-party data centers, to provide Customer with access to the Software and to otherwise provide the Services. Customer agrees that WL may delegate any of its obligations under this Agreement and/or subcontract any of its tasks under this Agreement to WL Affiliates and/or other third parties for the purpose of facilitating the provision of Services to Customer.

8.3 Authority and Interpleader.

In the event Customer wishes to change its agent dealing with WL or to change the method or manner of receiving Net Receipts from WL (in the event that Customer receives Payments By WellnessLiving services from WL), Customer will notify WL of such change in writing accompanied by evidence satisfactory to WL of the corporate approval of such change and the authority of the new agent. In the event WL cannot determine, in its sole and absolute discretion, the authority of a person purporting to be authorized to act on behalf of Customer, WL may, in its sole and absolute discretion, commence an action for interpleader in a court of competent jurisdiction and WL will be released from any liability for the amount so interplead and Customer will indemnify, defend and hold WL harmless from and against any cost or expense incurred in connection with such action.

8.4 Third-Party Software.

Customer may receive access to third-party programs through the Services or third-party programs may be bundled with the Services. These third-party software programs are governed by their own service or license terms, which may include open source or free software licenses, and those terms will prevail over this Agreement as to Customer’s use of the third-party programs. Nothing in this Agreement limits Customer or Authorized Users’ rights under, or grants Customer and Authorized Users rights that supersede, the terms of any such third-party program. Specifically, with respect to Payments By WellnessLiving, Customer understands that any sales or other tax services are currently offered through WL Affiliate or third-party software programs, and that WL disclaims any responsibility for the same, and any such responsibility or liability shall solely be that of the provider of the WL Affiliate or third-party software program provider under their separate terms and conditions. Should Customer who receive the Payments By WellnessLiving elect to not use any integrated third-party software programs for sales or other tax services, Customer expressly agrees that it is solely responsible for confirming, submitting, updating, and otherwise maintaining its chosen tax rate(s) in the Payments By WellnessLiving, and WL shall not be liable or responsible for the same in any manner.

8.5 Integration with Non-WL Applications.

The Services may contain features designed to interoperate with Software or Services not provided by WL or WL Affiliates. To use such features, Customer may be required to obtain access to such applications from their providers, and may be required to grant WL access to your account(s) on such application. WL cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of the application ceases to make the application available for interoperation with the Software or Services in a manner acceptable to WL.

9. Payment.

9.1 Fees; Changes to Fees.

The Fees as of the Effective Date are set forth in the applicable Order Form(s). WL may change the Fees as set forth in the Order Form or, if not specified in the Order Form, on thirty (30) days’ prior written notice by posting such fee changes to one or more Websites, through email notification, or both, and Customer agrees that it will be responsible for paying any such modified billing rates. WL will provide no refunds or credits for partial months of service or for periods in which an account remains open but during which one or more Services are not used.

9.2 Payment of Fees – General.

Customer or a Franchisor on behalf of a Franchisee, or a Master Customer on behalf of a Licensed Affiliate, as the case may be and pursuant to an MSA and/or Order Form, as applicable must pay all Fees as set forth on an Order Form by the deadlines specified therein, as otherwise specified in this Agreement, or both. Customer agrees that WL is authorized to do one or more of the following in WL’s sole discretion:

(a) invoice Customer on a monthly basis unless otherwise specified in the Order Form(s);

(b) automatically draw/debit the Fees directly from Customer’s bank account on file; and/or

(c) charge Customer’s credit card on file for such Fees.

On the Effective Date or upon WL’s request, Customer must provide WL with appropriate bank account and/or credit card information to enable such auto-drawing/debiting or credit card charges. If Customer fails to pay, WL will be entitled, at WL’s sole discretion, to:

(a) suspend provision of the Services and/or access to the Software until Customer fulfills Customer’s pending obligations;

(b) charge Customer an interest rate as specified in this Agreement for any and all overdue amounts; and/or

(c) terminate this Agreement.

Unless otherwise stated herein or in an Order Form, all payments made under this Agreement must be in U.S. Dollars. WL will not be required to refund Fees, or other payments from Customer to WL, under any circumstances. Except as otherwise specified in the Order Form(s) or in the Payments By WellnessLiving Addendum, if applicable, all Fees are due on a monthly basis, and will be deemed past due if not paid within fifteen (15) days of their due date. Any past due Fees will accrue interest at the rate of 2% per month, calculated and compounded monthly at an annual percentage rate of 24%per annum, or at the highest legal interest rate, if less, and Customer will reimburse WL for all expenses (including attorneys’ fees and disbursements) incurred by WL to collect any amount that is not paid when due.

9.3 Data Usage Charges and SMS Text Messages.

One or more of the Services may use information and data transmission networks operated by third-parties to send data, SMS text messages, information and Content from a computer, device or network to one or more of WL’s Systems, and to serve data, SMS text messages, information and Content back to such computer or device. Depending on Customer’s wired or wireless data, SMS text messaging, or similar plan with such third-party operators, Customer may incur charges from such third-party operators for use of such third-party’s information, SMS text messaging and data transmission networks. Customer is solely responsible for any and all costs, including without limitation wireless, cellular data and SMS text messaging costs, that Customer may incur as a result of the usage of any Service and/or as a result of data, SMS text messaging, information and Content submitted or received by Customer’s computer or device through any Service.Pricing for the SMS Text Messages are set forth on the Website at https://www.wellnessliving.com/pricing/, and may be updated by WL from time to time, or as otherwise stated in this Agreement.

9.4 Disputing Fees.

Acting in good faith, if Customer reasonably disputes any Fees charged to Customer, Customer must still timely pay the undisputed portion of the Fees and submit written notice of the claim (with sufficient detail and supporting evidence of the nature of the claim, the amount and invoices in dispute and information necessary to identify the affected Service(s)) for the disputed amount. All claims must be submitted to WL in writing within five (5) days from the date on which the Fees are charged for those Services. Customer waives the right to dispute any Fees or charges after such five (5) day period.

9.5 Taxes.

All Fees are exclusive of taxes, and Customer must pay or reimburse WL for all taxes arising out of transactions contemplated by this Agreement. If Customer is required to withhold any tax for payments due, Customer will gross up such payments to WL, so that WL receives sums due in full, free of any deductions. Customer will provide documentation to WL showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, use, and other taxes (other than taxes on WL’s income), export and import fees, customs duties and similar charges imposed by any government or other authority.

10. Term and Termination.

10.1 Term.

The Term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated. Subscriptions to Services commence on the date set forth in the Order Form and continue for the term set forth in the applicable Order Form and, upon any expiration of such term, automatically renew for an additional term of equal length to the expired term (or such other renewal period set forth in the Order Form) until explicitly terminated in accordance with this Agreement, unless otherwise terminable pursuant to the applicable Order Form.Unless otherwise explicitly agreed to by WL in an Order Form or other written agreement for any add-ons or additional Services subscribed or licensed to the same Customer that were changed or added after the first subscription for Services or after the first Order Form for subscription based Services by such Customer, the term of such add-ons or additional Services shall be for no less than the Term of the first subscription Service or as stated in the first Order Form for such subscription. The Customer acknowledges and agrees that any additional Services or add-ons subscribed to or licensed after the first subscriptionServices begun, shall mirror in Term, and shall automatically renew or extend in accordance with the terms and provisions in the first subscription Services or the first Order Form as the case may be for such first subscription Services. WL shall not refund any subscription or licensing fees for any add-ons or additional Services that automatically renewed or extended with the terms and provisions of the original first subscription Services of Customer.

10.2 Termination for Cause.

Either Party may terminate this Agreement on thirty (30) days’ prior written notice to the other Party if the other Party is in a material adverse breach of this Agreement and/or an Order Form, which includes non-payment of Fees. The notice of termination will identify the alleged breach, and the alleged breaching Party may cure the breach within the thirty (30) day notice period, whereupon if the alleged breach is cured to the satisfaction of the non-breaching Party, this Agreement will continue in full force and effect. Such termination will be without recourse except for any and all Fees and payment amounts in arears, current and owed by the Customer, including termination, extraction andtransfer fees, pre-estimates of damages, and charges, holdbacks and reserves, required and pursuant to this Agreement and any applicable Order Form, to WL.

10.3 Effect of Termination.

Upon termination of any Services, in whole or in part:

(a) Customer will destroy any Documentation associated with the terminated Services and provide, within a thirty (30) day period of the effective date of the termination, written confirmation to WL that such Documentation has been destroyed;

(b) WL will terminate Customer’s access to any Software associated with the terminated Services and, by extension, access to any Software associated with the terminated Services of any of Customer’s Authorized Users;

(c) if WL has provided any hardware to Customer, and this Agreement is terminated prior to a date on which WL has been fully remunerated by Customer for any such provided hardware, then, within twenty four (24) hours of the termination date of this Agreement (in whole or in part), Customer will pay WL for any outstanding amounts owed to WL for such provided hardware; and

(d) in addition to amounts that may be due under Section 10.3(c) and/or the Payments By WellnessLiving Addendum, Customer will pay WL any outstanding amounts owed to WL for any terminated Services within thirty (30) day of the effective date of termination, including any amounts owed under an MSA, any Order Form, this Agreement and any Addenda, as applicable.

10.4 Survival.

The following provisions will survive any termination and/or conclusion of this Agreement: Sections 1, 6, 7, 8.3 with regard to the right to institute interpleader proceedings, 9 to the extent that any amounts are still due, 10, 11, 12, and any terms implying that they survive termination and/or conclusion of this Agreement or any Order Form.

11. Waivers and Disclaimers of Warranties, Limitation of Liability, Indemnification

11.1 Waivers and Disclaimers of Warranties.

EXCEPT FOR ANY WARRANTIES AND REPRESENTATIONS EXPRESSLY MADE IN THIS AGREEMENT, THE SERVICES, SOFTWARE, DOCUMENTATION, WEBSITE, LISTING SERVICE AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD-PARTY HOSTED SERVICES, ARE PROVIDED ON “AS-IS” AND “AS-IS-AVAILABLE” BASIS. WL DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE SERVICES, SOFTWARE, UNDERLYING SYSTEMS, DOCUMENTATION, ANY OTHER PRODUCT OR SERVICES, OR RESULTS OF THE SAME PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. WL DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED. CUSTOMER’S ACCESS, INSTALLATION, AND USE OF THE SOFTWARE AND SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS DEVICE(S) OR THE LOSS OR CORRUPTION OF ITS DATA. WL ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH CUSTOMER MAY UTILIZE THE SERVICES AND SOFTWARE, AND CUSTOMER SPECIFICALLY WAIVES ANY RIGHTS AND CLAIMS CUSTOMER MAY HAVE AGAINST WL WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

11.2 Limitation of Liability.

IN ADDITION TO ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL WL, WL AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ORDER FORMS, THE SERVICES, SOFTWARE, UNDERLYING SYSTEM, WEBSITE, LISTING SERVICE, DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF WL, WL AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO CUSTOMER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO WL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO TERMINATION. NOTWITHSTANDING, API CLAIMS ARE CAPPED AT API FEES PAID IN THE PRIOR 12 MONTHS, AND IF API ACCESS HAS NO SEPARATE FEE, UNDER NO CIRCUMSTANCES ARE API CLAIMS TO EXCEED $10.00 AS AGAINST WL FOR ANY SUCH AGGREGATE LIABILITY FOR CLAIMS.

11.3 Indemnification.

IN ADDITION TO ANY OTHER DUTIES TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT, CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS WL, WL AFFILIATES, AND THEIR RESPECTIVE, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND AGAINST ANY CLAIMS ARISING OUT OF, DUE TO, AND/OR ASSOCIATED WITH: (I) CUSTOMER’S DATA; (II) CUSTOMER’S BREACH OF THIS AGREEMENT; (III) CUSTOMER’S, MEMBER’S AND/OR AUTHORIZED USER’S USE OF THE SERVICES, SOFTWARE, OR DOCUMENTATION IN VIOLATION OF THIRD-PARTY RIGHTS, INCLUDING ANY INTELLECTUAL PROPERTY RIGHTS, OR ANY APPLICABLE LAWS; (IV) CUSTOMER’S, MEMBER’S OR AUTHORIZED USER’S MISUSE OF THE SERVICES, SOFTWARE, OR DOCUMENTATION; (V) THE ACTS AND/OR OMISSIONS OF CUSTOMER, MEMBERS AND/OR AUTHORIZED USERS INCLUDING FAILURE TO COMPLY WITH LAWS, REGULATIONS, RULES, STANDARDS, CONTRACTS, AND/OR ORDINANCES; (VI) THE ACTS AND/OR OMISSIONS OF CUSTOMER IN OPERATING ITS LOCATIONS AND FACILITIES; (VII) WL’S ACTS AND/OR OMISSIONS TAKEN AT THE DIRECTION OF FRANCHISOR OR MASTER CUSTOMER; (VIII) WL’S RELIANCE ON EVIDENCE OF THE AUTHORITY OF CUSTOMER’S AGENT(S); (IX) MEMBERSHIP AGREEMENTS THAT VIOLATE AND/OR THAT ARE ALLEGED TO VIOLATE ANY LAWS, REGULATIONS, AND/OR STANDARDS; AND/OR (X) WL’S PURSUIT OF AN INTERPLEADER JUDGMENT PURSUANT TO THIS AGREEMENT.

11.4 Time Limitation for Claims.

To the maximum extent permitted by applicable law, any claim, demand, action, or proceeding, whether in contract, tort (including negligence), statute, or otherwise, arising out of or relating to this Agreement, the Services, the Software, or any use thereof, must be commenced within one (1) year after the earlier of:

(a) the date the event giving rise to the claim occurred; or

(b) the date such claim was discovered or ought reasonably to have been discovered.

Customer agrees that any claim not brought within such period is permanently barred, notwithstanding any statute or law to the contrary.

12. General Provisions.

12.1 Notices.

All notices and other communications under this Agreement must be in writing and will be deemed given (a) when delivered personally, (b) three Business Days after deposit in the U.S. or Canadian mails, and sent by certified mail, return receipt requested, or (c) one Business Day after delivery to a recognized overnight courier for overnight delivery; for Customer the addresses set forth in an Order Form and b) for WL at the addresses below:

WellnessLiving Inc.
175 Commerce Valley Dr W,
Thornhill, ON L3T 7P6, Canada

Attn: Legal Department
Email: legal@wellnessliving.com

12.2 Interpretation.

The headings contained in this Agreement are solely for the purpose of reference and convenience and are not intended to add or subtract from the terms of the Agreement.

12.3 Severability.

The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, each of which will remain in full force and effect. If any provision of this Agreement is determined to be unenforceable, the Parties will promptly replace such unenforceable provision with an enforceable provision that has a substantially similar legal and economic effect as the unenforceable provision.

12.4 Binding Effect; Assignment; Third-party Beneficiaries.

This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise specified, neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated without the prior written consent of all of the other parties hereto, and any purported assignment or delegation in violation hereof will be null and void; provided, however, that WL delegate any of its obligations hereunder to any WL Affiliates and/or to any subcontractors selected by WL. Except to the extent otherwise specified in any Addenda, including any third-party agreements required by such Addenda (e.g. the Stripe, Inc. Billing Services Agreement and/or Merchant Services Agreement for Sub-Merchants), nothing herein is intended to benefit any third-party or third parties. WL’s permitted assigns include any change in control of WL or sale of all or substantially all of its assets and business as a going concern to a third-party or to a WL Affiliate.

12.5 Entire Agreement/Order of Precedence.

This Agreement (as may be updated, modified, or amended from, as provided herein), including any attached Addenda and executed Order Forms, contain the entire understanding of the parties relating to the subject matter hereof and supersede all prior written or oral and all contemporaneous oral agreements and understandings relating to the subject matter hereof. The Addenda and any executed Order Forms are hereby incorporated by reference into and made a part of this Agreement for all purposes. This Agreement may be amended, supplemented or modified by WL as provided for herein. Any provision hereof may be waived, only by written instrument making specific reference to this Agreement and signed by each Party. If there is any conflict, ambiguity or inconsistency between the terms and conditions of an MSA, a Franchisor and/or Master Customer Order Form, an Order Form of yours, this Agreement, the Addenda, and/or any referenced agreements or terms of use associated with a specific Software or Service, WL in its sole, unfettered and absolute discretion, shall decide on which terms or conditions of such contracts shall prevail, and furthermore where such terms or conditions as between any of the said agreements are ambiguous, WL, in accordance with its common and consistent business practices, shall decide on such question and adjust the language of the ambiguous term or condition to incorporate such omitted or clarifying language (unless explicitly stated otherwise in such agreement)

12.6 Remedies Not Exclusive.

Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in this Agreement is intended to be exclusive or to preclude a party from pursuing other rights and remedies to the extent available under this Agreement, at law or in equity.

12.7 GOVERNING LAW AND VENUE.

UNLESS CUSTOMER IS DOING BUSINESS OR LOCATED WITHIN CANADA, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF FLORDIA WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, TO THE EXTENT NOT PRE-EMPTED BY FEDERAL LAW. IF CUSTOMER IS DOING BUSINESS OR IS LOCATEDIN CANADA, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE PROVINCE OF ONTARIO WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, TO THE EXTENT NOT PRE-EMPTED BY FEDERAL LAW. THE VENUE FOR ANY DISPUTES ARISING UNDER OR ASSOCIATED WITH THIS AGREEMENT IS AND/OR WILL BE IN TAMPA, FLORIDA FOR UNITED STATES CUSTOMERS AND TORONTO, ONTARIO, CANADA FOR CANADIAN CUSTOMERS, AND CUSTOMER IRREVOCABLY AGREES TO THE JURISDICTION OF THE COURT, AS APPLICABLE, TO ADJUDICATE ANY DISPUTES ARISING UNDER OR ASSOCIATED WITH THIS AGREEMENT. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT.

12.9 Drafting.

Neither this Agreement nor any provision contained in this Agreement will be interpreted in favor of or against any party hereto because such party or its legal counsel drafted this Agreement or such provision.

12.10 Usage.

Whenever the plural form of a word is used in this Agreement, that word will include the singular form of that word. Whenever the singular form of a word is used in this Agreement, that word will include the plural form of that word. The term “or” will not be interpreted as excluding any of the items described. The term “include” or any derivative of such term will be deemed to be followed by the words “without limitation” and accordingly such term does not mean that the items following such term are the only types of such items. Wherever from the context it appears appropriate, pronouns stated in either the masculine or the neuter gender shall include the masculine, the feminine and the neuter. Except as the context may otherwise require, “hereunder”, “hereof”, “hereto” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other provision hereof. In determining any period of time under this Agreement, “from” means “from and including”, and “to” means “to but excluding”. Any action required hereunder to be taken within a certain number of days shall, except as may otherwise be expressly provided herein, be taken within that number of days excluding the day on which the counting is initiated and including the final day of the period. “Extent,” when used in the phrase “to the extent,” means the degree to which a subject or other thing extends, and such phrase shall not simply mean “if“. The measure of a period of one month or year for purposes of this Agreement shall be the date of the following month or year corresponding to the starting date; provided, that if no corresponding date exists, then the end date of such period being measured shall be the next actual date of the following month or year (for example, one month after August 25 is September 25 and one month after August 31 is October 1). If any date on which a party is required to make a payment or a delivery or perform some other action pursuant to the terms hereof is not a Business Day, then such party shall make such payment or delivery or perform such other action on the next succeeding Business Day.

12.11 No Public Disclosure.

Neither Party will make any public statement, announcement, or disclosure to third parties concerning the existence of this Agreement or its terms, the business relationship between the Parties or the transactions contemplated hereby, without the prior written approval of the other Party except as required by applicable law (including, but not limited to, securities laws), provided, however, that WL may refer to Customer and its Franchisor or Master Customer, as the case may be and as applicable, as one of WL’s customers and use Customer’s logo and Franchisor’s or Master Customer’s logo, as the case may be and as applicable, as a part of such reference, provided that WL complies with any trademark usage requirements notified to it in writing by Customer and/or Franchisor or Master Customer, as the case may be and as applicable.

12.12 Force Majeure.

Other than Customer’s obligation to pay and maintain any financial obligation pursuant to this Agreement, any Order Form, or Addenda, neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes(other than those involving your employees); industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms or other elements of nature; blockages; embargoes; riots; acts or orders of government; pandemics, epidemics; acts of terrorism; war; computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility.Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused plus a reasonably mobilization period.

12.13 Achieve Client App

If Customer has selected the Achieve Client App, including Basic or White Label, then the additional terms and conditions found within the app are hereby expressly incorporated into the Agreement as between Customer and the Member, and to the extend applicable as the context may require therein, as between the Customer and WL and/or any WL Affiliate.

12.14 Concerto AI Front Desk Automation

If Customer has selected any of the Concerto AI Front Desk Automation applications and other related modules (the “Concerto Applications”), then the additional terms and conditions found within the Concerto Applications or as included with any Order Form of the Concerto Applications are hereby expressly incorporated into the Agreement as between Customer and the Member, and to the extend applicable as the context may require therein, as between the Customer and WL and/or any WL Affiliate

Payments By WellnessLiving Addendum to the Agreement

If Customer has opted to receive Payments By WellnessLiving as specified in an Order Form, Customer agrees to the following additional terms and conditions that govern specific aspects of the Payments By WellnessLiving services. This Addendum does not apply to Customers that have not elected to receive Payments By WellnessLiving services. Where Customer has

1. Definitions.

In addition to terms defined elsewhere in the Addendum, you and WL ascribe the following meanings to the terms hereof and further agree that all other capitalized terms, unless otherwise defined herein this Addendum, shall have the same meaning and use ascribed thereto in the Agreement:

(ii) “Available Collected Funds” mean the amount of funds actually collected and received by WL from Members on behalf of Customer pursuant to Membership Agreements,or any other agreement serviced by WL under this Addendum and the Agreement, net of WL’s projected billing fees and applicable administrative fees for such early deposit and net of projected charge backs, returns, holdbacks, and refunds.

(jj) “Data Security Guidelines” means all standards, guidelines, practices or procedures required by applicable law or by the Payment Networks, as hereinafter defined, and by a Party’s payment processor(s) with respect to data security or protection of Personal Data, as hereinafter defined, as such may be amended from time to time, to the extent applicable to the obligations to be performed under this Addendum and the Agreement, including: (i) the Payment Card Industry Data Security Standards (“PCI-DSS”) and the PCI Cloud Computing Guidelines and (ii) all rules and operating guidelines concerning the disclosure, use and protection of personal and financial information adopted by the National Automated Clearing House Association (“NACHA”), including the Automated Clearing House (“ACH”) Security Framework. Much of which can be found on WL’s Website, as hereinafter defined, under the knowledgebase section.

(kk) “Net Receipts” means an amount equal to the total Membership Agreement payments less the sum of the following:

i. reversals, charge backs, refunds, returns or other credits against payments collected;

ii. the billing fee set forth in Section 12 (Payment for Payments By WellnessLiving service) of this Addendum;

iii. any credit for payments made directly to the Customer;

iv. any charge or amount due from Customer or any Customer Affiliates to WL pursuant to this Addendum and the Agreement, or any other agreement between Customer or any Customer Affiliates and WL or any WL Affiliates or any policy established by WL from time to time; and

v. as applicable, amounts owing to Franchisor or Master Customer, as the case may be, (as Franchisor or Master Customer may be owed by Franchisee or Licensed Affiliate, respectively).

(ll) “Payment Information” means bank account, credit card and debit card information.

(mm) “Payment Networks”, means Visa, MasterCard, and any credit or debit card network issuing credit or debit cards or their duly authorized entities, agents, or affiliates, together with the National Automated Clearing House Association.

(nn) “Payment Processor” means those merchant processors, including credit card, debit card and/or ACH processors as may be associated with or utilized by WL from time to time, including where WL is the facilitator.

2. Merchant and Bank Account Set-Up.

Customer hereby appoints WL to act as its attorney-in-fact as follows:

(a) to establish and maintain a bank account and credit card processing merchant accounts on Customer’s behalf with such banks and credit card processors as WL may designate;

(b) to receive payment due from Members under Membership Agreements, at least as described in Section 3(Billing Services) below of this Addendum;

(c) to receive sales data from Customer and tender it for processing; and

(d) in connection with such accounts, this Addendum and the Agreement, to execute any and all documents and take any and all other actions, on behalf of Customer, that WL deems necessary or appropriate without further authorization or consent of Customer. Such accounts will be maintained for the purpose of receiving and accepting proceeds of payment transactions processed pursuant to this Addendum and the Agreement and other related activity, including adjustments, chargebacks, returns and payment of fees, all on Customer’s behalf. Customer hereby irrevocably directs such bank to transfer, on each banking day, the closing balance of such account to a separate WL account, as designated by WL, to facilitate the transactions contemplated by this Addendum and the Agreement. The Power of Attorney created hereby is coupled with an interest and is irrevocable.

3. Billing Services.

WL will provide the Payments By WellnessLiving to Customer, as selected by Customer in an Order Form, with respect to all acceptable Membership Agreements that have been delivered to WL from time to time under this Addendum and the Agreement. The Payments By WellnessLiving, as selected by Customer in an Order Form, will be provided in accordance with WL’s customary practices as modified by WL from time to time. Upon receipt of an acceptable Membership Agreement or account information, both as determined by WL in its reasonable discretion, and such Membership Agreement or account information becomes an active account on WL’s billing system, WL will collect and maintain account information pursuant to its customary practices as modified by WL from time to time during the time WL is actively collecting the account on behalf of the Customer. Customer will maintain a physical or digital copy of the Membership Agreement. Customer specifically authorizes the originating depository financial institution (“ODFI”) utilized by WL to process ACH payments to originate ACH entries on behalf of Customer and WL pursuant to this Addendum and the Agreement.

4. Remittance to Customer.

Billing cycles will occur twice per month. The 1st through the 15th shall represent one billing cycle, while the 16th through the end of the month shall represent the other billing cycle. Net Receipts for each billing cycle will be remitted to the Customer by the 5th business day following the cycle cutoff. WL will not be responsible for delay in remittance due to weekends, holidays or other conditions beyond the reasonable control of WL. WL may at its option and upon Customer’s request allow an early deposit of Available Collected Funds any business day of the month. WL will use commercially reasonable efforts to post Available Collected Funds to Customer’s account one business day after their actual receipt. Where a Member has remitted payment to WL, Member’s payment obligation to Customer in relation to such payment will be extinguished, and Customer will not attempt to hold Member liable for WL’s non-remittance to Customer.

5. Acceptable Accounts.

Only current Membership Agreements under which the Member is not in default or past due for any amount will be acceptable Membership Agreements under this Addendum and the Agreement. If, in the sole discretion of WL, a past due account becomes uncollectible, Customer will be responsible for further collection of said account and WL shall be released from any further responsibility with respect to such Membership Agreement.

6.Cancellation of Member Accounts.

Customer may cancel the Membership Agreement of any Member, and such Membership Agreement will be removed from the active list and Customer will be notified. Cancellations will not be accepted from individual Members, only from Customer itself, unless prior authorization is received from Customer. In the event that WL receives a dispute from a Member regarding such Member’s obligations under the Membership Agreement and WL determines in the exercise of its reasonable discretion that cancellation of the Membership Agreement is the most efficient resolution of the matter, WL may cancel that Membership Agreement without the consent of Customer. WL will not be responsible to the Customer for the balance of any amounts that would have become due on such canceled Membership Agreement during the then-current term. The Customer will be responsible for further collection of said account and WL shall be released from any further responsibility with respect to such Membership Agreement.

7. Legal Compliance.

Customer hereby agrees to comply with, and be bound by, all Operating Rules of the National Automated Clearing House Association and all related Guidelines, as they may be amended from time to time, (the “NACHA Rules”) and all state, provincial, federal or local laws, rules, regulations or ordinances with respect to the operation of Customer. Customer will not initiate any automated clearinghouse entry that violates the NACHA Rules or such laws, rules, regulations or ordinances. Customer agrees that WL and/or its Origination Depository Financial Institution (“ODFI”), has the right, at all reasonable times, to audit Customer’s operations to determine compliance with this Addendum and the Agreement and the NACHA Rules. In addition to any other rights and remedies available hereunder or pursuant to applicable law, WL or the ODFI also have the right, at their respective options, to immediately terminate or suspend this Addendum and the Agreement for a breach of the NACHA Rules. WL will only process ACH SEC Codes TEL, WEB, PPD, and CCD. Customer agrees that WL may pass on any fines, penalties, fees, or other amounts imposed by the ODFI, any credit card companies, or other governing bodies arising from Customer’s acts or omissions. From time to time, Customer may request, and WL may provide, forms (such as Membership Agreement templates) for the Customer’s use in connection with the operation of its wellness facility. WL makes no representation or warranty whatsoever with respect to such forms, including without limitation, the compliance of such forms with any federal, state, provincial or local laws, rules or regulations. Customer understands and acknowledges that these forms are provided as a convenience only and the Customer remains solely responsible for consulting its own legal advisors in connection with the compliance of such forms with applicable law. Customer acknowledges and agrees that it is the author and drafter of such Membership Agreements.

8. Stripe, Inc. Agreement.

By entering this Addendum and the Agreement, and where WL uses Stripe, Inc. services, Customer agrees to be bound by the Stripe, Inc. Billing Services Agreement attached hereto and incorporated herein by this reference as “Exhibit A”.

9. Merchant Services Agreement.

At the request of WL, Customer shall execute the Merchant Services Agreement for Sub-Merchants, a form of which is attached hereto as “Exhibit B”.

10. Network Merchants, LLC GatewayAgreement.

By entering this Addendum and the Agreement, Customer agrees to be bound by the Network Merchants, LLC Payment Gateway Merchant Service Agreement attached hereto and incorporated herein by this reference as “Exhibit C”.

11. Termination of Payments By WellnessLiving.

Payments By WellnessLiving are terminable on thirty (30) days’ prior written notice unless otherwise specified in an Order Form. If an Order Form provides for a term for Payments By WellnessLiving other than month to month and if Customer elects to terminate the Payments By WellnessLiving prior to the timeframe specified in an Order Form, then Customer will remit an early termination fee to WL on the date on which Customer provides written notice of termination to WL and which shall be calculated as 100% of the fees that WL would have received if this Addendum and the Agreement or the Order Form, as applicable, had remained in effect through the expiration of its then current Term (with the amount of each remaining month’s fee being equal to the average monthly fee charged during the immediately preceding six (6) month period) plus any other amounts stated on the Order Form as being part of the early termination fee. Further, if WL has provided any hardware to Customer, and this Addendum and/or the Agreement is terminated prior to a date on which WL has been fully remunerated by Customer for any such provided hardware, then, within twenty four (24) hours of the termination date of this Addendum and/or the Agreement (in whole or in part), Customer will pay WL for any outstanding amounts owed to WL for such provided hardware, which WL may withhold or offset from amounts payable to Customer by WL, or WL may debit Customer’s account, which Customer hereby authorizes.

And for the purposes of Section 10.3 (Effect of Termination) of the Agreement, when Payments By WellnessLiving are among the terminated Services, the following additional terms shall apply and be incorporated as follows:

i. WL will, upon the Customer’s payment of all amounts due under this Agreement, any Order Form and/or Addenda, and upon Customer’s request within a thirty (30) day period of the effective date of the termination, provide Customer with all data reasonably required by the party replacing WL and which WL customarily provides in such situations and that is in the control and possession of WL and for which is in accordance with any applicable laws and this Agreement. Customer will also pay WL the data extraction and transfer fee specified in an Order Form per data set as a condition to receiving such data; provided, however that if Customer is a Franchisee or Licensed Affiliate, WL will not be required to release any data to such Franchisee or Licensed Affiliate, as the case may be, and/or Franchisee or Licensed Affiliate designee if Franchisor or Master Customer, respectively, has not consented to such release or has directed the data to be transferred to Franchisor or Master Customer and/or Franchisor’s or Master Customer’s designee upon payment by the Franchisor or Master Customer, as the case may be, of all amounts due by Customer to WL pursuant to an MSA, this Agreement, any Order Form and/or Addenda, including the data extraction and transfer fee. Furthermore, upon any termination of this Agreement, WL will be entitled to withhold up to 200% of the rolling 12-month average of the membership payment returns and chargebacks processed by WL in the Reserve Account to be applied to any returns or chargebacks associated with WL’s processing of membership payments during the term hereof. WL may hold such funds for a period of up to 180 days after the effective date of the termination hereof, at which time, the remaining balance, if any, will be remitted to Customer; and

ii. If WL is required to withhold or pay any taxes under Section 9.5 (Taxes) of this Agreement and/or if Customer and/or any Customer Affiliates ever become liable to WL and/or any WL Affiliates for any sums or losses, the amount so paid by WL for said taxes and any sums expended or losses incurred by WL and/or any other amounts owed by Customer and/or any Customer Affiliates to WL and/or to any WL Affiliates, including amounts in the Reserve Account, will be offset and deducted from all money collected, held or controlled by WL and/or WL Affiliates under any existing agreements between WL and/or WL Affiliates and Customer and/or any Customer Affiliates, including this Agreement, and any billing and/or collection agreements, and further including, but not limited to, any such money held in any account or accounts of Customer and/or Customer Affiliates held or set up by WL related to same, as well as from any collections and/or funds held or controlled by WL and/or any WL Affiliates for the benefit of Customer related to same. Further, Customer hereby authorizes WL and/or WL Affiliates to debit or charge any credit card or bank account on file with WL for the Software or Services for such amounts. In the event the amounts are not satisfied, any remaining amounts owed will be due and payable to WL by Customer within twenty-four (24) hours upon notification and request for payment to Customer by WL.

12. Payment for Payments By WellnessLiving.

Customer agrees that, with respect to Payments By WellnessLiving services selected by Customer as specified in an Order Form:

(a) the Fees and other amounts collected by WL on behalf of the Customer, such as pass-through costs, gateway fees and other amounts due to WL or any WL Affiliates from Customer pursuant to this Addendum, Agreement or any other agreement will be deducted and retained by WL from the amount collected on behalf of the Customer. The Fees apply to all payments on active Membership Agreements under service by WL, whether payments are made to WL or directly to the Customer. WL reserves the right, from time to time, to change the Fees and charges provided for in an Order Form and/or elsewhere in this Addendum and/or the Agreement, for various reasons, including upon a change in the Customer’s average monthly transaction volume, changes in Customer’s late and service fee policies, or changes in the cost of providing payment processing services to the Customer. Notwithstanding anything to the contrary, to the extent Customer is a Canadian entity, Customer shall receive a minimum of ninety (90) days’ notice of any fee increase or the introduction of a new fee related to any credit or debit card transactions. In the event of such fee increase, new fee, or a reduction in applicable interchange rates that is not passed on to Customer, Customer shall have the right to terminate the Payments By WellnessLiving services for convenience, without penalty or other termination fees by providing WL written notice prior to the end of such ninety (90) day period. Customer grants WL the right(s) to retain all late and service fees. Moreover, Customer’s late and service fees must be uniformly applied to all of Customer’s Members. In the event the Customer elects to terminate for convenience it shall be required to pay to WL any other amounts due or in arrears as of the effective date of termination and pursuant to this Addendum and the Agreement, any Order Form, MSA, and/or Addenda, including any data extraction and transfer fees.

(b) to secure the prompt and faithful performance of its obligation hereunder, subject to any prior, perfected interests or the subsequent refinancing of same even for a greater amount, Customer hereby grants to WL a first and prior security interest in, and lien on, all accounts (including accounts receivable and the Reserve Account (as defined below)), payment intangibles, Membership Agreements and cash and noncash proceeds which may accrue to Customer, or be derived from, the ownership and/or operation of Customer’s Locations and facilities, including without limitation, all fees, dues, income, rents, issues, profits, earnings, receipts, royalties and revenues therefrom; and all amendments and supplements to and renewals and extensions of any and all of the foregoing, whether now existing or hereafter entered into and all replacements, substitutions, products and proceeds from any and all of the foregoing. Customer agrees to execute any and all documents that WL deems necessary to perfect the foregoing security interest and to otherwise cooperate with WL, at WL’s expense, to perfect the foregoing security interest.

13. Membership Agreements.

Customer acknowledges that WL may store Membership Agreements in the WL Systems for the purpose of administering the Services. Customer acknowledges and agrees that WL is not responsible for any loss of any such Membership Agreements that may be stored in the WL Systems, and Customer is solely responsible for maintaining copies of the Membership Agreements.

14. Data Privacy.

In addition to any other provisions that might govern data privacy, such as one or more addenda to this Addendum and the Agreement, the Parties agree to the following additional terms and conditions governing data privacy and security:

(a) Warranties and Representations. To the extent that either Party receives credit card payments and/or wire transfers of funds, each Party represents and warrants to the other Party that:

i. each Party has complied with all applicable requirements to be considered PCI-DSS compliant (including compliant with the PCI-DSS Cloud Computing Guidelines), and has performed the necessary steps to validate its compliance with PCI-DSS;

ii. each Party is compliant with the ACH Security Framework of NACHA (“ACH Security Framework”);

iii. each Party will remain compliant with PCI-DSS and the ACH Security Framework throughout the Term; and

iv. any software distributed to the other is PA-DSS compliant and any equipment provided by one to the other that accepts PIN entry is PCI-PED compliant.

(b) Additional Requirements. Moreover and to the extent that either Party receives credit card payment and/or wire transfers of funds, each Party agrees to:

i. supply the other with evidence of its most recent validation of PCI-DSS no later than ten (10) business days after the Effective Date;

ii. supply the other Party with a new status report and evidence of validation of compliance with PCI-DSS at least annually during the Term;

iii. immediately notify the other Party if a Party learns that it or any of its subcontractors is no longer PCI-DSS or ACH Security Framework compliant, that any of the distributed software supplied to the other is no longer PA-DSS compliant, or any equipment supplied to the other that that accepts PIN entry is no longer PCI-PED compliant;

iv. in the event of becoming non-compliant, the non-compliant Party will immediately provide the other Party with the steps being taken to remediate the PCI-DSS, ACH Security Framework, PA-DSS and/or PCI-PED non-compliant status and to promptly perform the remediation or, in the case of a subcontractor, ensure that remediation is performed;

v. in no event will a Party’s notification to the other be later than four (4) calendar days after such Party learns that it (or its subcontractor, as the case may be) is no longer PCI-DSS or ACH Security Framework compliant, that software supplied to the other is no longer PA-DSS compliant, or that any equipment supplied to the other that accepts PIN Entry is no longer PCI-PED compliant; and

vi. will provide and will ensure that any subcontractor provides all reasonable assistance to enable the other Party to comply with an audit request from a Payment Network or a Payment Processor.

(c) Security; Security Breach. The Parties agree that:

i. any Payment Information generated or collected by a Party or its subcontractors in connection with the performance of its obligations under this Addendum and the Agreement must be fully encrypted at the time of collection and during storage in accordance with the Data Security Guidelines;

ii. neither Party will access or use or attempt to access or use any Personal Data of the other or the other’s customers or any of other’s systems used to maintain, store, process or transmit Personal Data except to the extent expressly authorized by such Party’s written consent or expressly required in order to perform its obligations under this Addendum and the Agreement. Where such access or use is expressly required in order to perform its obligations under this Addendum and the Agreement, such Party will seek the minimum access and use reasonably required to perform such obligations, and all such access and use will be in accordance with the Data Security Guidelines;

iii. each Party represents and warrants to the other Party that it is not aware of any breach of the Data Security Guidelines by the other Party and that such Party has not received:
1. any material complaints from any of its employees, business partners or customers, any customers of its business partners, or any other individuals regarding its handling of personal financial data (including Personal Data), or
2. any notice from any governmental authority or other governmental authority-approved personal data protection organizations concerning its compliance with the Data Security Guidelines;

iv. without limiting any other provision of this Section if:
1. a Party becomes aware of a breach of the security of its systems wherein the other Party’s Personal Data or Confidential Information is disclosed,
2. any Personal Data is disclosed by a Party in violation of the Data Security Guidelines, or
3. a Party becomes aware that an unauthorized access, disclosure or use of such Personal Data has occurred or is likely to occur as a result of an act or omission of such party or any subcontractor or WL of such party (each such event, an “Information Security Breach”), such Party must immediately notify the other Party’s chief information officer of such Information Security Breach, and at the discretion of the other Party must promptly:

A. reasonably investigate, remediate, and mitigate the effects of the Information Security Breach, and

B. provide the other party with assurances reasonably satisfactory to such party that such Information Security Breach shall not recur; and

v. if any Information Security Breach occurs and applicable laws or the Data Security Guidelines require notification of public authorities or of individuals whose data were so affected or require other remedial actions, or the other party determines that other remedial measures are warranted, including such Party responding to reasonable requests from the other Party regarding, and cooperating with the other Party in connection with, any investigation, incident management, media relations or law enforcement activities, and providing consumer remedies such as credit monitoring or ID theft insurance (the foregoing, collectively, the “Remedial Actions”), such Party must, at the other Party’s request undertake such Remedial Actions or cooperate with the other party in undertaking Remedial Actions in accordance with industry best practices. A Party must provide such Remedial Actions and cooperation without charge unless the Information Security Breach was due to the acts or omissions of the other Party, in which case the Remedial Actions and cooperation shall be provided at such Party’s standard rates. Each Party must require its subcontractors to comply with the terms of this Section.

15. Reserve Account.

WL may require you to establish a reserve account based on:

(a) Customer’s breach of this Addendum and/or the Agreement;

(b) an adverse event affecting Customer’s financial condition, including without limitation, liens or levies;

(c) Customer’s notice of termination of the Payments By Wellness services; or

(d) excessive chargebacks or returns (“Reserve Account”).

Customer understands that the amount will be determined based on factors such as:

(a) the amounts of previous settlements, chargebacks/refunds, assessments and fines, penalties;

(b) the frequency and amount of credits and adjustments;

(c) the value of any goods and/or services billed in advance of fulfillment; and

(d) the amount of any fees or discounts due along with any current or anticipated card organization fees or fines.

Upon receipt of a notice from WL, Customer agrees that WL may fund the Reserve Account as set forth in the notice, which may occur immediately. The Reserve Account may be funded through any combination of:

(a) debits to amounts owed to Customer under Sections 4 (Remittance to Customer) and 12 (Payment for Payments By WellnessLiving) above of this Addendum;

(b) deductions or offsets to any payments otherwise due to Customer by WL or WL Affiliates; or

(c) Customer’s delivery WL of a letter of credit, issued or established by a financial institution acceptable to WL.

If funds from your Reserve Account are not sufficient to cover chargebacks/returns, adjustments, merchant processing rates and other charges due by Customer, or if WL has released funds in your Reserve Account, Customer agrees to promptly pay WL such sums upon request.

EXHIBIT A TO PAYMENTS BY WELLNESSLIVING ADDENDUM TO THE AGREEMENT: STRIPE, INC. BILLING SERVICES AGREEMENT (IF SUBSCRIBED TO PAYMENTS BY WELLNESSLIVING AND USING STRIPE, INC. SERVICES)

This Stripe, Inc. Billing Services Agreement only applies to Customers that have elected to receive Payments By WellnessLiving.

WHEREAS, WL and Customer entered into a subscription and licensing agreement, including all Addenda, (the “Agreement”) and attached hereto, pursuant to which Customer agreed to be bound by the terms of this Billing Services Agreement which are incorporated into the Agreement;

WHEREAS, WL has entered into an agreement with Stripe, Inc. (“Stripe”) governing acceptance of credit and debit card transactions initiated by Customer which obligates it to obtain Customer’s agreement to abide by certain rules and regulations promulgated by Stripe;

WHEREAS, the Customer will receive substantial benefit and gain as a result of its Members being able to make payments for Customer services via credit and debit cards and therefore is willing to be bound by the rules and regulations as described herein; and

WHEREAS, all capitalized terms used herein but not otherwise defined shall have the meaning given to them in the Agreement or the Operating Regulations (as defined below).

NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer agrees that the by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program and any other program or requirement (collectively, the “Operating Regulations”) that may be published and/or mandated by Mastercard International Inc., VISA U.S.A. Inc., Discover and certain similar entities (collectively, the “Associations”) are incorporated by reference into this Billing Services Agreement and that nothing in this Billing Services Agreement shall be construed to interfere with or lessen the right of WL, Stripe’s designated Member Bank, or the Associations to terminate this Billing Services Agreement or the Agreement at any time. In the event of a conflict between this Billing Services Agreement and the Operating Regulations, the Operating Regulations will control.

1. Customer acknowledges and agrees:

(a) it is responsible for the actions of its employees and agents;

(b) it will comply with all applicable laws and regulations and all applicable parts of the Operating Regulations; including those parts regarding the ownership and use of Association Marks;

(c) WL or an Association is authorized to research Customer’s background including, but not limited to, credit background checks, banking relationships, and its financial history;

(d) notwithstanding any provisions in the agreement to the contrary, information obtained in connection with Customer’s application or processing relationship may be shared with Association for any legitimate purpose;

(e) it will notify WL of any third party that will have access to cardholder data;

(f) it will comply with, and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI-DSS, or other security program as required by an Association and demonstration compliance with these security obligations; and

(g) Associations may conduct, or direct another party to conduct, an audit of Customer at any time, and Customer must comply in all material respects with such audit until its completion.

2. Customer represents and warrants that it will not:

(a) discriminate against Cards or Issuers (e.g. limited acceptance options) except in full compliance with the Operating Regulations;

(b) intermingle fees associated with an Associations’ transactions with fees associated with other Card transactions in its pricing;

(c) submit any transaction to WL that was previously charged back and subsequently returned to the Customer, irrespective of Cardholder approval;

(d) knowingly submit any transaction that is illegal or that the Customer should have known was illegal. Customer acknowledges that such transaction must be legal in both Cardholder’s and Customer’s jurisdiction;

(e) submit a transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder;

(f) require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations or this Billing Services Agreement, including CVV2;

(g) add a surcharge to transactions, except as expressly permitted by, and in full compliance with, the Operating Regulations;

(h) charge a minimum or maximum amount for a transaction unless expressly authorized by, and in full compliance with, the Operating Regulations;

(i) disburse funds in the form of cash unless Customer is participating in full compliance with a program supported by an Association for such cash disbursements and in full compliance with the Operating Regulations;

(j) submit a transaction that does not result from an act between the Cardholder and the Customer;

(k) accept a Card issued by a U.S. or Canadian Issuer to collect or refinance an existing debt, unless expressly authorized by, and in full compliance with, Operating Regulations;

(l) request or use a Card account number for any purpose other than as payment for its goods or services; and

(m) add any tax to transactions, unless applicable law expressly requires that a Customer be permitted to impose a tax. In such event, any tax amount, if allowed, must be included in the transaction amount and not collected separately.

3. Applicable to WL Merchant Agreements for Customers participating in the American Express OptBlue Program. The following will only apply to Customer’s participation in the American Express Program, as controlled by the American Express OptBlue Program Operating Regulations. (Capitalized terms below are defined in the American Express Operating Guide or the American Express OptBlue Program Operating Regulations):

(a) Customer must comply with, and accept Cards in accordance with, the terms of its Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.

(b) Customer acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Agreement (and is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).

(c) Customer expressly authorizes WL to submit transactions to, and receive settlement from, American Express on behalf of the Customer.

(d) Customer expressly consents:

i. to WL collecting and disclosing Transaction Data, Customer Data, and other information about the Customer to American Express; and

ii. to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.

(e) Customer acknowledges that: [ ] By checking this box, Customer opts out of receiving future commercial marketing communications from American Express. Customer may continue to receive marketing communications, however, while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.

(f) Customer acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Merchant in accordance with Section 10.5, “High CV Merchant Conversions”. Customer expressly agrees that, upon conversion:

i. Customer will be bound by American Express’ then-current Card Acceptance Agreement; and

ii. American Express will set pricing and other fees payable by the Customer for Card acceptance.

(g) Customer acknowledges that American Express may use information obtained in the Customer application at the time of setup to screen, communicate, and/or monitor Customer in connection with Card marketing and administrative purposes.

(h) Customer agrees that it shall not assign to any thirdparty any payments due to it under its respective WL Merchant Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Locations, establishments and facilities and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Customer may sell and assign future Transaction receivables to WL, its affiliated entities and/ or any other cash advance funding source that partners with WL or its affiliated entities, without consent of American Express.

(i) Customer agrees that American Express is a thirdparty beneficiary to the Agreement and retains all rights, but not obligations, in the Agreement that will fully provide American Express with the ability to enforce the terms of the Agreement against the Customer.

(j) Customer may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.

(k) Customer agrees that WL may terminate the Customer’s right to accept Cards if Customer breaches any of the provisions in this Section or the American Express Merchant Operating Guide.

(l) Customer agrees that WL has the right to immediately terminate a Customer for cause or fraudulent or other activity, or upon American Express’ request.

(m) Customer agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.

(n) Customer acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Customer has fully paid for such Charge, and it otherwise has the right to do so.

(o) Customer agrees it must comply with all Applicable Laws, rules and regulations relating to the conduct of the Customer’s business, including the DSR and PCI-DSS, each as described in Chapter 15, “Data Security”.

(p) Customer agrees that it will report all instances of a Data Incident immediately to WL after discovery of the incident.

(q) Customer agrees it will cease all use of, and remove American Express Licensed Marks from the Customer’s website and wherever else they are displayed upon termination of the WL Merchant Agreement or a Customer’s participation in the Program.

(r) Customer will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.

(s) Customer agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.

Except as specifically stated in this Billing Services Agreement, the Agreementand any Order Formsand/or MSA shall remain in full force and effect.

EXHIBIT B TO PAYMENTS BY WELLNESSLIVING ADDENDUM TO AGREEMENT:MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (IF SUBSCRIBED TO PAYMENTS BY WELLNESSLIVING)

This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS only applies to Customers that have elected to receive Payments by WellnessLiving.

This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Merchant Agreement”) constitutes a binding agreement by and between you, whether personally or on behalf of an entity (“you”, “your” or “Sub-merchant”) and Stripe, Inc. (if applicable), having its principal office at ____________________________________________________________________________ and its designated Member Bank (collectively “Acquirer”) in connection with the agreement between Sub-merchant and WellnessLiving Inc. (“Provider”).

Sub-merchant agrees that by accessing the Services, (defined below) Sub-merchant has read, understood, and agrees to be bound by this Merchant Agreement. If Sub-merchant does not agree with all of the terms of this Merchant Agreement, Sub-merchant is expressly prohibited from using the Services and must discontinue use immediately.

Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Merchant Agreement.

In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Mastercard International Inc. (“Mastercard”), VISA U.S.A. Inc. (“VISA”), Discover (“Discover”), and certain similar entities (collectively, “Associations), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments.

Sub-merchant agrees that the Operating Regulations of the Associations are incorporated by reference into this Merchant Agreement and that nothing in this Merchant Agreement shall be construed to interfere with or lessen the right of Acquirer or the Associations to terminate this Merchant Agreement at any time.

In the event of a conflict between this Merchant Agreement and the Operating Regulations, the Operating Regulations will control.

In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations.

By reading, understanding, and agreeing to be bound by this Merchant Agreement, Sub-merchant has fulfilled such requirement.

However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1. Certain Sub-merchant Responsibilities.

Sub-merchant acknowledges and agrees:

(a) it is responsible for all the actions of its employees and agents;

(b) to comply with the by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program and any other program or requirement that may be published and/or mandated by the Associations (collectively “Operating Regulations”). Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. The websites are:

i. https://usa.visa.com/support/small-business/regulations-fees.html

ii. http://www.mastercard.com/us/merchant/ and

iii. http://www.discovernetwork.com/merchants/

(c) to comply with all applicable state, provincial, federal, and local laws, rules, and regulations (“Laws”); Provider or an Association is authorized to research Sub-merchant’s background including, but not limited to, credit background checks, banking relationships, and its financial history;

(d) notwithstanding any provisions in the agreement to the contrary, information obtained in connection with Sub-merchant’s application or processing relationship may be shared with Association for any legitimate purpose;

(e) it will notify Provider of any third party that will have access to cardholder data; g. it will comply with, and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI-DSS, or other security program as required by an Association and demonstrate compliance with these security obligations; and

(f) Associations may conduct, or direct another party to conduct, an audit of Sub-merchant at any time, and Sub-merchant must comply in all material respects with such audit until its completion.

2. Sub-merchant represents and warrants that it will not:

(a) discriminate against Cards or Issuers (e.g. limited acceptance options) except in full compliance with the Operating Regulations;

(b) intermingle fees associated with an Associations’ transactions with fees associated with other Card transactions in its pricing

(c) submit any transaction to Provider that was previously charged back and subsequently returned to the Sub-merchant, irrespective of Cardholder approval

(d) knowingly submit any transaction that is illegal or that the Sub-merchant should have known was illegal. Sub-merchant acknowledges that such transaction must be legal in both Cardholder’s and Sub-merchant’s jurisdiction

(e) submit a transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder

(f) require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations or this Merchant Agreement, including CVV2

(g) add a surcharge to transactions, except as expressly permitted by, and in full compliance with, the Operating Regulations; h. charge a minimum or maximum amount for a transaction unless expressly authorized by, and in full compliance with, the Operating Regulations

(h) disburse funds in the form of cash unless Sub-merchant is participating in full compliance with a program supported by an Association for such cash disbursements and in full compliance with the Operating Regulations

(i) submit a transaction that does not result from an act between the Cardholder and the Sub-merchant

(j) accept a Card issued by a U.S. or Canadian Issuer to collect or refinance an existing debt, unless expressly authorized by, and in full compliance with, Operating Regulations

(k) request or use a Card account number for any purpose other than as payment for its goods or services

(l) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant be permitted to impose a tax. In such event, any tax amount, if allowed, must be included in the transaction amount and not collected separately.

3. Applicable to Provider Merchant Agreements for Sub-merchants participating in the American Express OptBlue Program:

The following will only apply to Sub-merchant’s participation in the American Express Program, as controlled by the American Express OptBlue Program Operating Regulations. (Capitalized terms below are defined in the American Express Operating Guide or the American Express OptBlue Program Operating Regulations):

(a) Sub-merchant must comply with, and accept Cards in accordance with, the terms of its Provider Merchant Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.

(b) Sub-merchant acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Merchant Agreement. (And is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).

(c) Sub-merchant expressly authorizes Provider to submit transactions to, and receive settlement from, American Express on behalf of the Sub-merchant.

(d) Sub-merchant expressly consents:

i. to Provider collecting and disclosing Transaction Data, Sub-merchant Data, and other information about the Sub-merchant to American Express; and

ii. (ii) to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.

(e) Sub-merchant acknowledges that: [ ] By checking this box, Sub-merchant opts out of receiving future commercial marketing communications from American Express. Sub-merchant may continue to receive marketing communications, however, while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.

(f) Sub-merchant acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Merchant in accordance with Section 10.5, “High CV Merchant Conversions”

(g) Sub-merchant expressly agrees that, upon conversion:

i. Sub-merchant will be bound by American Express’ then-current Card Acceptance Agreement; and

ii. American Express will set pricing and other fees payable by the Sub-merchant for Card acceptance.

(h) Sub-merchant acknowledges that American Express may use information obtained in the Sub-merchant application at the time of setup to screen, communicate, and/or monitor Sub-merchant in connection with Card marketing and administrative purposes.

(i) Sub-merchant agrees that it shall not assign to any third-party any payments due to it under its respective Provider Merchant Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Sub-merchant may sell and assign future Transaction receivables to Provider, its affiliated entities and/ or any other cash advance funding source that partners with Provider or its affiliated entities, without consent of American Express.

(j) Sub-merchant agrees that American Express is a third-party beneficiary to the Merchant Agreement and retains all rights, but not obligations, in the Merchant Agreement that will fully provide American Express with the ability to enforce the terms of the Provider Merchant Agreement against the Sub-merchant.

(k) Sub-merchant may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.

(l) Sub-merchant agrees that Provider may terminate the Sub-merchant’s right to accept Cards if Sub-merchant breaches any of the provisions in this Section or the American Express Merchant Operating Guide.

(m) Sub-merchant agrees that Provider has the right to immediately terminate a Sub-merchant for cause or fraudulent or other activity, or upon American Express’ request.

(n) Sub-merchant agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.

(o) Sub-merchant acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Sub-merchant has fully paid for such Charge, and it otherwise has the right to do so.

(p) Sub-merchant agrees it must comply with all Applicable Laws, rules and regulations relating to the conduct of the Sub-merchant’s business, including the DSR and PCI DSS, each as described in Chapter 15, “Data Security”.

(q) Sub-merchant agrees that it will report all instances of a Data Incident immediately to Provider after discovery of the incident.

(r) Sub-merchant agrees it will cease all use of, and remove American Express Licensed Marks from the Sub-merchant’s website and wherever else they are displayed upon termination of the Provider Merchant Agreement or a Sub-merchant’s participation in the Program.

(s) Sub-merchant will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.

(t) Sub-merchant agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.

If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub-merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.

Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions.

Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions:

(a) the minimum transaction amount does not differentiate between card issuers;

(b) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and
(c) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve).

Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions:

(a) Sub-merchant is a department, agency or instrumentality of the U.S. government;

(b) Sub-merchant is a corporation owned or controlled by the U.S. government; or

(c) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and

the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.

4. Settlement.

Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.

5. Term and Termination.

Sub-Merchant agrees upon accessing the Services, this Merchant Agreement shall be binding upon Sub-merchant. The term of this Merchant Agreement shall begin, and the terms of the Merchant Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Merchant Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Merchant Agreement without notice if:

(a) Sub-merchant or Provider fails to pay any amount to Acquirer when due;

(b) in Acquirer’s opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws;

(c) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws;

(d) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association;

(e) Acquirer’s agreement with Provider terminates;

(f) any Association de-registers Provider;

(g) Acquirer ceases to be a member of the Associations or fails to have the required licenses; or

(h) Acquirer is required to do so by Member Bank or any of the Associations.

6. Limits of Liability.

Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Merchant Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS MERCHANT AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Merchant Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Merchant Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Merchant Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Merchant Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Merchant Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Merchant Agreement will no longer apply and the terms of Acquirer’s then-current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Merchant Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Merchant Agreement will govern Acquirer’s relationship with Sub-merchant.

7. Miscellaneous.

This Merchant Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Merchant Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Merchant Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Merchant Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Merchant Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Merchant Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Merchant Agreement will be construed as if such provision is not contained in the Merchant Agreement. “Member Bank” as used in this Merchant Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Merchant Agreement. As of the commencement of this Merchant Agreement, Member Bank shall be _____________________________________________. The Member Bank is a party to this Merchant Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.

EXHIBIT C TO PAYMENTS BY WELLNESSLIVING ADDENDUM TO THE AGREEMENT: NETWORK MERCHANTS, LLC PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT (IF SUBSCRIBED TO PAYMENTS BY WELLNESSLIVING AND USING GATEWAY SERVICES)

PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT

WellnessLiving Inc. (“Payment Gateway”) offers merchants various products and services relating to payment processing directly through Payment Gateway and through Third Party Service Providers (defined below).

In order for you, the person or entity identified on the applicable merchant application (“Merchant”, “You” or “Your”) , to use the payment processing services, payment gateway services and other products and services, as such descriptions may be changed from time to time by Payment Gateway (“Payment Gateway Services”), you must agree to and accept the terms and conditions of this agreement (“Agreement”).

Please read this Agreement carefully. You understand that by using any of the Payment Gateway Services, by clicking on the “I AGREE” or “I AGREE” button (or similar button captioned with acceptance language) and/or signing this Agreement, you represent and warrant that you (i) have the authority to bind your company to the terms of this Agreement; (ii) have reviewed and understand the Agreement, and (iii) agree, on behalf of your company, to be legally bound by all terms and conditions of the Agreement (including the terms and conditions stated on web pages incorporated by reference in this Agreement).

If you do not agree or are not willing to be bound by the terms and conditions of this Agreement, do not click on the “I AGREE” or “I ACCEPT” or similarly captioned button and do not use any of the Payment Gateway Services.

NOW THEREFORE, the parties agree as follows:

1. DEFINITIONS:

“Account” means an account portal established for You or on behalf of Your business by Payment Gateway, and accessed by You (or by Payment Gateway on Your behalf or on behalf of Your business, as determined by Payment Gateway in its sole discretion) through an API or integration or online portal to utilize the Payment Gateway Services.

“Acquiring Bank” means the financial institution supplying You with the ability to accept credit and debit cards for payments. The financial institution will charge You fees for providing these services.

“ACH” means Automated Clearing House, which is an electronic network that allows the exchange and settlement of electronic payments between financial institutions.

“Card Association” means any network or association associated with processing Payment Cards of a specific brand, including but not limited to American Express Company, Discover Financial Services, JCB Co., Ltd., Mastercard Incorporated, Visa Inc., the National Automated Clearing House Association (NACHA), or any debit network, and each of their subsidiaries and successors.

“Confidential Information” means any information, data, trade secrets, know-how, provided or disclosed directly, or indirectly, in writing or orally, either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, products, product plans, services, services documentation (in whatever form or media provided) customers, customer lists, user data, revenue, markets, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration, marketing, marketing materials, financial or other business information, or the financial terms of this Agreement. Data, as defined in this Agreement, are deemed Confidential Information.

“Data” has the meaning set forth in Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS).

“Effective Date” means the earlier of the date You use the Payment Gateway Services or acknowledge Your acceptance of the Agreement by any method, including without limitation execution of Your merchant application that incorporates the Agreement by reference.

“Extension(s)” means additional services offered to you within the Payment Gateway Services platform now or in the future.

“Extensions Reseller” means any Third Party Service Provider that adds to, enhances or modifies existing hardware or software, adding value to the Payment Gateway Services.

“Fee Schedule” means a list of fees and charges that is provided to you by Payment Gateway.

“Payment Cards” means Visa, Mastercard, Discover, Amex, and any other Card Association debit or credit card that You and Payment Gateway mutually agree to participate in.

“PCI DSS” means Payment Card Industry Data Security Standard.

“Privacy Policy” means the then current Payment Gateway’s Privacy Policy either available at its website or otherwise provided, which may be modified by Payment Gateway in its sole discretion.

“Return Payment Fee” is a fee charged to You by Payment Gateway on each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed account, or any other negative response.

“Rules” means the rules, requirements, policies, procedures, and standards issued by the Card Associations or other industry bodies such as the PCI Security Standards Council LLC, including without limitation the Payment Card Industry Data Security Standard (PCI DSS) and the PCI Software Security Framework, or any successor or replacement framework or standard implemented by the PCI Security Standards Council, as each may be amended from time to time by the Card Associations or other applicable authorities.

“Third Party Service Provider” means a third party entity that provides and/or maintains aspects or all of the Payment Gateway Services and/or provides certain bank and/or merchant payment services including but not limited to billing, reporting, customer service, authorization, processing and settlement services.

“Trademark(s)” means all common law or registered trademarks, service marks, trade names and trade dress rights and/or similar or related rights under any laws of any country or jurisdiction, including but not limited to the United States of America whether existing now or hereafter adopted.

“Transaction(s)” means any billable occurrence completed or submitted under Your Account including but not limited to sale, void, refund, credit, offline force, capture, authorization, validate, update or settlement regardless of whether approved or declined.

2. TERM

The term of the Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated pursuant to Section 10 (TERMINATION) (“Term”).

3. LEGAL

By accepting the terms and conditions of this Agreement, You represent and warrant that (i) all information You have provided and will provide to Payment Gateway is true and correct in all respects, and (ii) You will promptly update Payment Gateway in writing with any changes to information You have previously supplied or as requested by Payment Gateway from time to time. Payment Gateway reserves its right to refuse to provide You with any Payment Gateway Service and terminate this Agreement, with or without notice, if Payment Gateway reasonably believes, in its sole discretion, that You have supplied any information which is misleading, untrue, inaccurate, fraudulent, or incomplete.

4. USE OF PAYMENT GATEWAY SERVICES

4.1 Payment Gateway Services Grant

(a) You are granted a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to use the Payment Gateway Services or to have the Payment Gateway Services provided to Your business during the Term so long as You are in compliance with (i) this Agreement, including being current in paying all applicable fees as referenced in Section 8 (PAYMENT TERMS) and Section 9 (FEES), and (ii) the current policies, procedures, guidelines and restrictions contained in this Agreement and policies, procedures, guidelines and restrictions communicated to You by Payment Gateway, all of which may be amended by Payment Gateway from time to time. Payment Gateway shall, directly or through its Third Party Service Providers, provide the Payment Gateway Services to You in accordance with this Agreement and the rights granted to You under this Agreement are for the purposes contained in this Agreement and for no other purpose.

(b) Your use of the Payment Gateway Services shall be restricted to You. You shall not submit Data to Payment Gateway or otherwise process orders on behalf of any other entity or individual not permitted under this Agreement. Any attempt by You to use the Payment Gateway Services on behalf of another entity or individual in breach of this Agreement may result in Your obligation to pay to Payment Gateway additional fees and charges and/or Payment Gateway may revoke Your right to access or use the Payment Gateway Services and terminate this Agreement.

(c) In addition to Your compliance with this Agreement, You will comply, at Your own expense, with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities. You may not request, introduce, or process Transactions using the Payment Gateway Services on behalf of any other person or entity, and shall not use the Payment Gateway Services in any other prohibited manner, including those set forth in Appendix B and set forth in the Rules or in furtherance of any activity that may cause Payment Gateway to be subject to investigation, prosecution, or legal action.

(d) If you have elected to receive any Extensions in connection with the Payment Gateway Services, then, in addition to the other terms of this Agreement, the terms and conditions set forth in Appendix A will govern Your access to and use of the Extensions, which terms and conditions are incorporated by reference in to this Agreement, as may be amended or updated from time to time. Payment Gateway must approve of Your enrollment in any Extensions. The Extensions may be provided by Payment Gateway or a Third Party Service Provider as indicated upon Your enrollment. Your election to receive certain Extensions may require You to enter into a direct agreement with the respective Third Party Service Provider. If the pricing of any Extensions is not set forth on the Fee Schedule, such Extensions may be subject to separate pricing schedules which will be provided to You in connection with Your registration for such Extension.

4.2 Data License Grant

(a) You grant Payment Gateway a royalty-free, non-exclusive license (with right to sublicense) to use Data, materials, and other intellectual property as necessary or useful for Payment Gateway to provide the Payment Gateway Services to You and to otherwise perform Payment Gateway’s obligations under this Agreement. Payment Gateway may collect and hold Data from and about You and Your customers for the purpose of providing the Payment Gateway Services or to consider Your eligibility for the Payment Gateway Services as part of Your merchant application process. You understand and agree that such Data may be shared with and used by certain third parties (including without limitation Third Party Service Providers, government agencies, or courts). Additionally, you understand that such Data may be shared with Payment Gateway by such certain third parties and You authorize Payment Gateway to receive Your or Your customer’s Data from such third parties.

4.3 Support of Payment Gateway Services

(a) Regardless of whether the Payment Gateway Services or any Extensions are provided by Payment Gateway directly or through a Third Party Service Provider or Extensions Reseller, You and Payment Gateway agree that Payment Gateway (and not the Third Party Service Provider or Extensions Reseller) will provide first line support to You and Your customers on issues relating to Your and Your customers’ use of the Payment Gateway Services. You acknowledge and agree that You will look to Payment Gateway for all support, including for any Payment Gateway Services provided by a Third Party Service Provider, Extensions Reseller, or any additional supplier, agent, vendor, contractor or third party providing any part of the Payment Gateway Services.

5. DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS

5.1 Use and Sharing of Your Data

(a) Payment Gateway will collect, retain, use and share information and Data (defined below) collected from You and Your customers, and Payment Gateway will share such information and Data with its Third Party Service Providers, in accordance with Payment Gateway’s then current Privacy Policies. You consent, to the collection, use, processing and transfer of Data, and the sharing of Data with Third Party Service Providers and other third party vendors, agents, and suppliers, as described in this Section 5 (DATA SECURITY, COLLECTION, TRANSFER AND RETENTION; CREDENTIALS) and pursuant to Payment Gateway’s Privacy Policy. You agree to monitor Payment Gateway’s Privacy Policy periodically to review any possible amendments. By using the Payment Gateway Services after modifications to Payment Gateway’s Privacy Policy, You have agreed to such amendments.

(b) Payment Gateway may collect, use, share, and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, email address, social security number and/or tax identification number and payment data, Transaction data, including account numbers and purchase history as well as Your customers’ names, mailing & shipping addresses, email addresses, phone number, types of purchases and descriptions of purchases, and various Transaction data related to Your customers (“Data”) for the purpose of considering eligibility for the Payment Gateway Services and for the purpose of providing You and Your customers with the Payment Gateway Services. Payment Gateway shall have the right to (i) use the Data as necessary to perform the Payment Gateway Services (including distributing the Data to its Third Party Service Providers and other third parties, as requested by You and as necessary to perform the Payment Gateway Service); (ii) maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) compile and disclose Data in the aggregate where the Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) provide the Data as required by Rules, law or court order, or to defend Payment Gateway’s rights in a legal dispute. Payment Gateway, its subsidiaries, Third Party Service Providers, suppliers and/or their agents and/or contractors may have access to, use, and transfer such Data among themselves as necessary for the purpose of the provision and management of the Payment Gateway Services. Payment Gateway may further transfer Data (a) with non-affiliated entities that assist Payment Gateway in providing products and services that You have requested; (b) with companies that provide support services to Payment Gateway; (c) with companies that provide marketing services on behalf of Payment Gateway; or (d) as otherwise provided by law.

(c) In evaluating Your eligibility for, provision of, administration and management of the Payment Gateway Services, as well as under circumstances described in the Privacy Policy that may be changed from time to time, Payment Gateway may obtain various consumer reports regarding You or Beneficial Owners associated with You from third parties, run a credit check or obtain other personal or credit information about You or Your Beneficial Owners (defined below in this Section 5.1 (c)). Pursuant to such, Payment Gateway may, from time to time, obtain consumer-identifying and credit information (including credit reports) and other consumer reports from multiple consumer reporting agencies for any individual required by Payment Gateway or Beneficial Owner associated with You, for the purpose of verifying the identities of such individuals and evaluating the fraud and credit risk associated with You in connection with a business transaction. You expressly authorize Payment Gateway, prior to the creation of Your Account and from time to time thereafter, to investigate Your individual and business history and background, consumer-identifying and credit information (and that of any of Your and Your authorized representatives, directors, officers, partners, proprietors, owners, etc.), and to obtain credit or consumer reports or other background investigation reports on each of them that Payment Gateway consider necessary to review the acceptance of Your merchant application and continuation of the Payment Gateway Services. You also authorize any person or credit reporting agency that issues consumer reports to answer those credit inquiries and to furnish that information to Payment Gateway. You represent and warrant to Payment Gateway that You have obtained, and will provide to Payment Gateway upon request, written instructions and all authorizations, consents, and disclosures necessary from each such individual for Payment Gateway to obtain (and for a consumer reporting agency to provide) such information including consumer reports of such individual to Payment Gateway. You represent and warrant that You will ensure that such individual shall also authorize Payment Gateway’s sharing of information of such individual in connection with obtaining such consumer reports from the consumer reporting agencies and other third party providers who conduct background and identification screening. You agree to cooperate with and provide Payment Gateway with any information or documentation needed for Payment Gateway to obtain such information from consumer reporting agencies, and agrees that it will comply with all applicable requirements under all applicable state and federal laws and regulations. For purposes of this Agreement, “Beneficial Owner” means any person who either directly or indirectly owns or controls at least 25% or more of Your ownership interests as well a person who exercises substantial control over You. There must be at least one Beneficial Owner identified.

(d) While Payment Gateway uses commercially reasonable efforts to safeguard Data transmitted while using Payment Gateway Services, Payment Gateway does not warrant that Data will be transported without unauthorized interception or modification or that Data will not be accessed or compromised by any unauthorized third parties.

(e) With respect to the Payment Gateway Services, to the extent applicable to Payment Gateway, Payment Gateway will maintain compliance with the Payment Card Industry Data Security Standard (PCI DSS).

5.2 Your Duties

(a) You will comply at all times with the terms of this Agreement, all applicable Rules, and then-current legal obligations and security measures including without limitation those issued by the United States government, federal, state and municipal laws and ordinances, Card Association, the Federal Trade Commission, PCI DSS and any other governing body. You will comply with all Payment Gateway security protocols, notices and safeguards in effect during the term of this Agreement. Notwithstanding Payment Gateway’s assistance in understanding the Rules, You expressly acknowledge and agree that You are assuming the risk of compliance with all provisions of the Rules, regardless of whether You have possession of such Rules. You warrant that You have taken such precautions as are necessary to ensure that Your Data and Your customer’s Data is protected and that Your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Data, You shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify Payment Gateway of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.

(b) You are solely responsible for the security of Data residing on servers owned or operated by You, or any third party designated by You (e.g., a web hosting company, processor, or other service provider), including Payment Card numbers and any other Data. You shall comply with all Card Association rules, applicable laws and regulations governing the collection, retention and use by You of Payment Card and other financial information, and You agree to provide notice to Your customers on Your web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.

(c) You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by Payment Gateway associated with Your Account and verifying that all corresponding funds are accurately processed. If You use any application programming interfaces (APIs) provided in connection with the Payment Gateway Services, You are solely responsible for such use of the API, the security of Your credentials associated with the API, and the security of information and data submitted through the API. The fees associated with any and all Transactions and associated Data submitted to Payment Gateway are earned by Payment Gateway and shall not be reimbursed. Payment Gateway and its Third Party Service Providers will not be liable for any Transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, or otherwise, or for any access to any Transaction or Account data or Your or Your customers’ Data, including without limitation any unauthorized, illegal, or fraudulent access. Payment Gateway’s liability for unauthorized Transactions or improperly processed Transactions solely attributable to the negligence of Payment Gateway is limited pursuant to Section 13 (LIMITATION OF LIABILITY).

(d) You will not use, disclose, sell or disseminate any card, cardholder, bank account, or ACH information obtained in connection with a Transaction except for purposes of completing or settlement of a Transaction and/or resolving chargebacks, retrievals or similar issues involving a Transaction unless required to do so by court order or governmental agency request, subpoena or order.

(e) You are solely responsible for compiling and retaining permanent records of all Data for Your reference. Except as otherwise provided in this Agreement, Payment Gateway shall have no obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or other Data collected or processed by Payment Gateway. Upon termination of this Agreement, Payment Gateway shall have no obligation to provide You with any Data. You shall use proper controls for and limit access to all Data. Prior to discard You shall render all Data unreadable and abide by any laws or regulations imposed on You for Data destruction and/or disposal.

(f) You represent and warrant that You have provided notice to, and obtained consent from, Your customer whose Data You supply to Payment Gateway with regard to: (i) the purposes for which Your customer’s Data has been collected; (ii) the sharing and use of Your customer’s Data with Payment Gateway and its Third Party Service Providers and its and their agents, suppliers, and contractors; (iii) which parts of customer’s Data are obligatory and which parts, if any, are voluntary; and (iv) how Your customers can access and, if necessary, rectify the Data You hold about them. Neither Payment Gateway nor its Third Party Service Providers are responsible for any consequences resulting from Your failure to provide notice or obtain consent from such individuals nor for Your providing outdated, incomplete or inaccurate information.

5.3 Your User Name and Password Credentials (if applicable)

(a) In connection with Your rights described in Section 4.1 (Payment Gateway Services Grant), Payment Gateway may issue to You, or permit You to use a user name and password, to enable You and/or Your employees and agents to access Your Account and use the Payment Gateway Services, otherwise Payment Gateway will manage Your Account or will haveYour Account managed for you. If You are provided such access, You will restrict access to such user name, password, and Account to Your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the Account is aware of and otherwise complies with all applicable provisions of this Agreement and any recommendations and notices regarding such use and access.

(b) In the event access to Your Account is granted, You are solely responsible for maintaining adequate security and control of any and all user names, passwords, or any other codes that are issued to You by Payment Gateway or selected by You, for purposes of giving You access to the Payment Gateway Services if not otherwise directly or indirectly managed by Payment Gateway. Payment Gateway shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You.

5.4 Audits

Payment Gateway and its Third Party Service Providers, or their designees, may, during the term of this Agreement and for a period of 12 months thereafter, conduct an audit of Your books, records, and operations to verify the accuracy of fees, Your proper use of the Payment Gateway Services, and compliance with this Agreement and with applicable laws and Rules. The auditing party will use reasonable efforts to provide at least five business days’ advance notice of any such audit, and will use reasonable efforts to ensure that the audit does not unreasonably disrupt Your business. You will provide all reasonable cooperation with any such audit and will provide all requested information and records and reasonable access to Your premises, computer systems, databases, equipment, and personnel. Each party will bear its own costs in connection with any such audit, except that if an audit reveals a material breach of this Agreement by You, You will reimburse Payment Gateway or the Third Party Service Provider for its costs incurred in connection with such audit. If the audit identifies that You have underpaid any fees due under this Agreement, You will pay all such amounts within 15 days.

6. TRADEMARKS

6.1 Trademark Use

(a) Payment Gateway grants to You the right to use, reproduce, publish, perform and display the Payment Gateway Marks as follows: (i) on Your web site in connection with Your offering of Payment Gateway Services to Your customers; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.

(b) You grant to Payment Gateway and its Third Party Service Provider the right to use, reproduce, publish, perform and display Your Marks as follows: (i) in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Payment Gateway Services offered and/or accessible through Your web site; and (ii) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Payment Gateway Services.

(c) For purposes of this Agreement, “Your Marks” means Your customary name and logo, and such other trademarks as You may provide to Payment Gateway and from time to time notify Payment Gateway to be “Your Marks” within the meaning of this Agreement. For purposes of this Agreement, “Payment Gateway Marks” means Payment Gateway customary name and logo, and such other trademarks as Payment Gateway may provide to You and from time to time notify You to be “Payment Gateway Marks” within the meaning of this Agreement. If such a license is granted by a Third Party Service Provider for You to be able to use or display such Third Party Service Provider’s trademarks, then Payment Gateway Marks may also include such Third Party Service Provider’s trademarks.

6.2 Trademark Restrictions

(a) Each party shall comply with all standards with respect to the other party’s Trademarks which may be furnished by such party from time to time and all uses of the other party’s Trademarks in proximity to the trade name, trademark, service name or service mark of any other person or entity shall be consistent with the standards furnished by the other party from time to time. Neither party shall create a combination mark consisting of one or more Trademarks of each party. All uses of the other party’s Trademarks shall inure to the benefit of the party owning such Trademark. Each party acknowledges and agrees that, as between the parties, the other party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement. Either party may update or change the list of Trademarks usable by the other party at any time by written notice to the other party.

(b) Except as otherwise provided in this Agreement, You shall not use, register or attempt to register any Payment Gateway Trademarks or marks or domain names that are confusingly similar to any of the Payment Gateway Trademarks, marks or domain names. Except as authorized in this Agreement, You shall not take any actions inconsistent with Payment Gateway’s ownership of Payment Gateway’s Trademarks and any associated registrations or attack the validity of them. You shall not use Payment Gateway’s Trademarks in any manner that would indicate You are using such Payment Gateway Trademarks other than as a licensee nor assist any third party do any of the same.

7. INTELLECTUAL PROPERTY

As between Payment Gateway and You, Payment Gateway (or its Third Party Service Providers and Extensions Resellers, as applicable) owns and retains all right, title and interest in and to the Payment Gateway Services, Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated pursuant to this Agreement. No title to or ownership of any of the foregoing is granted or otherwise transferred to You, Your customers, or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Payment Gateway Services or related technology. You agree to promptly report to Payment Gateway any unauthorized use or infringement of the Payment Gateway Services or any Payment Gateway’s intellectual property which comes to Your attention.

8. PAYMENT TERMS

8.1 Due Date and ACH Authorization

(a) Payment Gateway fees shall begin on the Effective Date and You will be billed on the first business day of each month following the Effective Date for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 USD at any time in any given month, Payment Gateway will bill You the full amount due on a more frequent basis at Payment Gateway’s discretion.

(b) You authorize Payment Gateway and its Third Party Service Providers and agents to initiate transaction entries to Your depository account through ACH. This authority will remain in full force and effect until (i) Payment Gateway has received written notification from You of Your request for termination in such time as to afford Payment Gateway and Your depository institution a commercially reasonable opportunity to acknowledge and respond to the request or (ii) Payment Gateway has collected all fees due and owing under this Agreement. If Payment Gateway is unable to collect amounts owing from Your depository account, You authorize Payment Gateway to charge Your credit card for any and all amounts owing to Payment Gateway under this Agreement. Entries initiated to or from Your depository account will be in accordance with the NACHA Rules and/or any other applicable Rules, regulatory body or agency having jurisdiction over the subject matter.

(c) You must promptly update Your Account information with Payment Gateway with current and accurate information, including credit card account information for the payment of fees as required herein this Agreement. If You fail to provide Payment Gateway with current and accurate depository account or credit card account information, Payment Gateway may immediately discontinue or suspend providing Payment Gateway Services to You, without liability of any kind, until such information is provided to Payment Gateway and/or terminate this Agreement without liability of any kind. You acknowledge that any change in Your depository or credit card account information may not be effective until the month following the month in which Payment Gateway receives such notice. Termination of Your authorization shall result in termination of any and all Payment Gateway Services.

9. FEES

9.1 Payment Gateway Service Fees

You shall pay to Payment Gateway the fees as set forth in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference. Payment may modify or update the Fee Schedule in its sole discretion with 30 days’ prior notice to You.

9.2 Other Fees and Charges

(a) You shall incur a late fee in the amount set forth in the fee schedule if any amounts due to Payment Gateway under this Agreement are not paid on or before the tenth (10th) day following the date when due. In addition, You shall be subject to a finance charge equal to two percent (2%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such late fees and finance charges will not excuse or cure any breach or default for late payment. Payment Gateway may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or payment or elsewhere will be construed as an accord or satisfaction.

(b) On each occurrence when Payment Gateway is unable to collect fees on Your Account for any reason, including but not limited to insufficient funds, closed depository account, or any other negative response, Payment Gateway may charge You a Return Payment Fee in the amount of $25.00 USD per occurrence, or as otherwise set forth in the Fee Schedule.

(c) If You have not paid all owing amounts after two (2) days past the due dates set forth in this Section 9 (FEES), Payment Gateway may, in its sole discretion, discontinue or suspend providing You with Payment Gateway Services. If You have still not paid all owing amounts after thirty (30) days following the date the payment was due, then Payment Gateway may, in its sole discretion and without liability of any kind, immediately terminate this Agreement. Notwithstanding, if You subsequently pay in full all owing fees, including but not limited to late fees, finance charges and Return Payment Fees, and if Payment Gateway has not already terminated this Agreement, then Payment Gateway may elect to reactivate the Payment Gateway Services and charge You a Payment Gateway Service reactivation fee in the amount set forth in the Fee Schedule.

(d) You agree to pay all costs and expenses of whatever nature, including attorneys’ fees, incurred by or on behalf of Payment Gateway in connection with the collection of any unpaid charges and fees.

9.3 Taxes
All fees set forth in the applicable Fee Schedule are exclusive of taxes. You are solely responsible for, and will indemnify and hold Payment Gateway and its Third Party Service Providers harmless from, payment of all applicable taxes and duties (only excluding taxes levied on Payment Gateway based on its own net income).

10. TERMINATION

10.1 Termination by You

You may not terminate this Agreement so long as you are subscribed to other Services provided by Payment Gateway where payment processing services are included or required such as the Payments by WellnessLiving Service.

10.2 Termination by Payment Gateway

(a) Payment Gateway may terminate this Agreement and/or terminate Your use of Payment Gateway Services immediately, or at any time, without advance notice and with or without cause, for any reason including without limitation to Your breach or default of any obligation set forth in this Agreement or if Payment Gateway determines, in its sole discretion, that Your business practices are detrimental to the achievement of Payment Gateway’s business objectives, or if a Payment Gateway’s relationship with its Third Party Service Provider terminates or the Third Party Service Provider otherwise ceases supplying Payment Gateway with services necessary for the delivery of the Payment Gateway Services, or certain other Services provided to you by Payment Gateway are terminated, including Payments by WellnessLiving.

10.3 Termination by Third Party

In the event Payment Gateway determines, discovers or is notified by a Third Party Service Provider, court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that You are no longer entitled to receive the Payment Gateway Services for any reason whatsoever, Payment Gateway may suspend and/or terminate Payment Gateway Services and/or this Agreement without notice and without liability.

10.4 Effect of Termination and Survival

Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force or effect except that (i) all accrued payment obligations under this Agreement shall survive such expiration or termination; and (ii) the rights and obligations of the parties under Section 15.11 (SURVIVAL) shall survive termination.

11. CONFIDENTIALITY AND NONDISCLOSURE

11.1 Use of Confidential Information

(a) Each party that receives Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) agrees to use reasonable best efforts to protect all Confidential Information provided by or disclosed by the Disclosing Party, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. The Receiving Party will only use the Confidential Information of the Disclosing Party to perform its obligations under this Agreement. Each party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.

(b) Each party agrees not to divulge any confidential information, trade secrets or know how or any information derived therefrom to any third person or entity and shall only disclose Confidential Information to employees, agents, contractors, or required third persons on a “need to know” basis who have executed a nondisclosure agreement with similar terms and obligations as restrictive as those set forth in this Agreement.

(c) The Receiving Party shall not make any use whatsoever at any time of the Disclosing Party’s Confidential Information except as permitted by, or in order to comply with its obligations under, this Agreement.

(d) The Receiving Party shall not copy or reverse engineer any portion of the Disclosing Party’s Confidential Information.

11.2 Exclusions

The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (b) was in or entered the public domain through no fault of the Receiving Party, (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed), or (e) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.

11.3 Return of Confidential Information

Upon written request of the Disclosing Party and at Disclosing Party’s sole discretion, Receiving Party will destroy or return to Disclosing Party all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the Disclosing Party. Such destruction will be certified in writing by Receiving Party.

11.4 Injunctive Relief

Each party acknowledges that breach of this provision by it may result in irreparable harm to the other party, for which money damages could be an insufficient remedy, and therefore that the other party may be entitled to seek injunctive relief to enforce the provisions of this Section 11 (CONFIDENTIALITY AND NONDISCLOSURE).

12. REPRESENTATIONS AND WARRANTIES

12.1 Mutual Representations and Warranties

Each party represents and warrants to the other that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (b) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (c) it has all necessary right, power and ability to execute this Agreement and to perform its obligations under this Agreement; and (d) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.

12.2 Your Representations and Warranties

(a) You represent and warrant that (i) You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business; (ii) all statements made by You pursuant to this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects; (iii) all Transactions submitted in connection with the Payment Gateway Services are for bona fide business operations compliant with applicable Rules, laws, and regulations; (iv) You are not engaged in any illegal or fraudulent business operation or any business operation prohibited by any applicable law, regulation, or Rule, or in any business identified on a prohibited activities list promulgated by any Third Party Service Provider or the Card Associations; and (v) You have all necessary right to any data or materials You use or provide to Payment Gateway in conjunction with the Payment Gateway Services, and no such data or materials infringe the intellectual property rights of any third party. You authorize Payment Gateway to investigate and confirm the information submitted by You. For this purpose, Payment Gateway may utilize credit bureau / reporting agencies and / or its own agents, as described in Section 5.1(b) (Use of Your Data).

(b) You represent and warrant that You will comply with all Rules, applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction. You will further comply with PCI DSS, the Gramm-Leach-Bliley Act, and any other regulatory body or agency having jurisdiction over the subject matter hereof.

(c) You will abide with all material terms of the then current policies, procedures, and guidelines of Payment Gateway governing the Payment Gateway Services.

12.3 Payment Gateway Representations and Warranties

(a) Payment Gateway Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Payment Gateway makes no warranty, express or implied, with regard to any such third-party software. Payment Gateway does not warrant the services of any third party, including without limitation Third Party Service Providers, Extensions Resellers, if applicable, or the Card Association.

12.4 Warranty Disclaimer

PAYMENT GATEWAY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT THE PAYMENT GATEWAY SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR FREE. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE PAYMENT GATEWAY SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY THIRD PARTY SERVICE PROVIDERS. PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE PAYMENT GATEWAY SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.

12.5 Disputes of Fees

The parties shall promptly investigate any disputes under this Agreement. If the disputed amount is less than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than five percent (5%) of the total fees invoiced by Payment Gateway for the relevant billing statement, the disputed amount may be withheld until the dispute is resolved. All disputes must be made in good faith and in writing within thirty (30) days after the billing statement date. Fees billed shall be deemed accepted where written objections are not provided to Payment Gateway within thirty (30) days after the billing statement date.

13. LIMITATION OF LIABILITY

13.1 Payment Gateway Disclaimers

(a) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, WHICH ARISES FROM OR RELATED TO ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR ACCOUNT, FACILITIES, OR TO YOUR DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND PAYMENT GATEWAY’S REASONABLE CONTROL.

(b) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S) OR ENSURE SAME; (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S); (III) DISRUPTION OF PAYMENT GATEWAY SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A THIRD PARTY SERVICE PROVIDER, OR ACQUIRING BANK; (V) UNAUTHORIZED ACCESS TO YOUR DATA OR YOUR CUSTOMER’S DATA INCLUDING BUT NOT LIMITED TO, PAYMENT CARD NUMBERS, OTHER PERSONALLY IDENTIFIABLE INFORMATION, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PAYMENT GATEWAY, YOU, YOUR CUSTOMER, OR ANY THIRD PARTY; OR (VI) YOUR SALE OF PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY RISK ASSOCIATED WITH PAYMENT CARD FRAUD, ACH FRAUD, CHECK FRAUD, CHARGEBACKS, TRANSACTION RATING, IMPROPERLY AUTHORIZED TRANSACTIONS, LEGITIMATE BUT UNAUTHORIZED TRANSACTIONS, DATA TRANSMISSION ERRORS, OR ANY ACTION OR OMISSION BY A THIRD PARTY).

(c) PAYMENT GATEWAY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS FOR THE LEGITIMACY OF YOUR TRANSACTIONS, ORDERS FORWARDED FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY ANY PAYMENT GATEWAY SERVICES PROVIDED BY PAYMENT GATEWAY, OR ANY ASSOCIATED SYSTEM OR PROGRAM OR THE LIMITATION OF THE FUNCTIONING OF ANY ASSOCIATED SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT, WHETHER IT IS OWNED BY PAYMENT GATEWAY OR OFFERED THROUGH A THIRD PARTY SERVICE PROVIDER OR OTHER ENTITY.

13.2. Payment Gateway Limitation of Liability

(a) UNDER NO CIRCUMSTANCES WILL PAYMENT GATEWAY OR ANY OF ITS PARENTS, AFFILIATES OR THIRD PARTY PROVIDERS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR THIRD PARTY PROVIDER, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, INCLUDING NEGLIGENCE, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY FINES, FEES, PENALTIES, ASSESSMENTS OR OTHER AMOUNTS IMPOSED BY THE CARD ASSOCIATIONS ARE DIRECT DAMAGES AND WILL NOT BE DEEMED TO BE SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.

(b) PAYMENT GATEWAY’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY PAYMENT GATEWAY SERVICES OR PRODUCTS, SHALL NOT EXCEED THE AGGREGATE COMPENSATION PAYMENT GATEWAY RECEIVED FOR PROVIDING THE PAYMENT GATEWAY SERVICES TO YOU DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,500.00 USD, WHICHEVER IS LESS.

(c) You will remain liable for any liabilities and losses and other amounts incurred by Payment Gateway arising under this Agreement that are attributable in whole or in part to: (i) intentional misrepresentation, fraud, willful or intentional acts or omissions or negligence by You or Your employees or agents, or the failure of any of such persons to comply with this Agreement, Rules, applicable laws, rules or regulations, (ii) Your breach of any provision of this Agreement or other applicable agreement associated with the Payment Gateway Services; (iii) any information, Data, or Transactions that You know or should have known contains inaccuracies or omissions; (iv) any security breach or unauthorized access to Data or Confidential Information caused by the actions of You or any of Your employees or agents; or (v) any assessments, fines, penalties or other amounts (however labeled) imposed by the Card Associations or any governmental or regulatory body or other third party as a result of any action or inaction by You or any of Your employees or agents. All such obligations and amounts imposed by third parties will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in this Agreement to the contrary.

14. INDEMNIFICATION

You shall defend, indemnify, and hold harmless Payment Gateway and its Third Party Service Providers, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Payment Gateway, arising out of or relating to (i) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (ii) Your violation or non-compliance with any Rules, applicable law, rule, regulation, order; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (iv) the reliability, accuracy, or legitimacy of Data or purchase orders submitted by You to Payment Gateway; (v) Transactions, including unauthorized or fraudulent Transactions, submitted using the Payment Gateway Services, including Transactions rejected by Payment Gateway or an issuing bank, and; (vi) ) any alleged infringement of a patent, copyright, trademark or other intellectual property right by You or arising from any data or other materials or technology supplied by You or from Your use of the Payment Gateway Services in unauthorized manner; (vii) any claims by Your customers, including, without limitation, claims relating to the disclosure of personal data or other consumer data, or claims relating to the goods or services sold by You; (viii) any alleged or actual violation or non-compliance by You of any Rules, applicable laws, regulations or rules of (a) the Card Associations, including non-compliance of PCI-DSS; (b) the Gramm Leach Bliley Act; (c) or any regulatory body or agency having jurisdiction over the subject matter hereof; (ix) any violation of Payment Gateway’s then current policies or guidelines; or (x) any data breach or any unauthorized access, use, or disclosure of Confidential Information, personal data, card information, or Your credentials from systems and networks controlled by You or Your service providers;. In the event You cause fines and/or penalties to be charged to Payment Gateway by the Card Associations or any other entity, You agree to immediately reimburse Payment Gateway for said fines and penalties.

15. GENERAL PROVISIONS

15.1 Non-exclusivity

Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described in this Agreement.

15.2 Notices

All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Payment Gateway Services and/or posted in the Merchant Control Panel of Your Account if access is provided to you. All notices to Payment Gateway shall be given electronically by sending an email to Payment Gateway’s email address listed within the Merchant Control panel of Your Account if access is provided to you or, if otherwise, to [merchant@wellnessliving.com], which written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.

15.3 Relationship of the Parties

The parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither party shall make any representation that suggests otherwise.

15.4 Assignment

You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Payment Gateway, including in the case of a merger. Payment Gateway will have the right to assign this Agreement to its successors and/or assigns, subsidiaries, affiliates, and/or Third Party Service Providers.

15.5 Amendment

No amendment to any provision of this Agreement, nor consent to any departure by either party, will in any event be effective unless in writing and signed by the other party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Payment Gateway may amend this Agreement at any time upon written or electronic notice to You or post notice on its Web site not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days’ notice. If You do not agree to such amendments, Your sole remedy is to immediately terminate this Agreement upon written notice to Payment Gateway.

15.6 Waiver

The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained in this Agreement must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

15.7 Severability; Headings

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.

15.8 Force Majeure

Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services or other catastrophes or any other occurrences which are beyond such parties’ reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.

15.9 Governing Law; Jurisdiction

Unless you are doing business or ar located within Canada, this Agreement will be governed by and construed and interpreted in accordance with the substantive laws of the state of Florida without giving effect to any conflicts of law rule or principle that might result in the application of the laws of another jurisdiction, to the extent not pre-empted by federal law. If you are doing business or are located in Canada, this agreement will be governed by and construed and interpreted in accordance with the substantive laws of the province of Ontario without giving effect to any conflicts of law rule or principle that might result in the application of the laws of another jurisdiction, to the extent not pre-empted by federal law. The venue for any disputes arising under or associated with this Agreement is and/or will be in Tampa, Florida for United States customers and Toronto, Ontario, Canada for Canadian customers, and you irrevocably agree to the jurisdiction of the court, as applicable, to adjudicate any disputes arising under or associated with this Agreement. The parties hereby knowingly, voluntarily, and intentionally waive any rights either of them may have to a trial by jury in respect of any litigation based on, arising out of, or in connection with this Agreement.

15.10 Entire Agreement

This Agreement together with all of Payment Gateway’s policies referenced in this Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between Payment Gateway and You of all risks (both known and unknown) associated with Payment Gateway Services.

15.11 Survival

The provisions of this Agreement relating to any fees or other amounts owed, payment of finance charge on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings, third party beneficiary, this section 15, and any other provisions that by their nature should survive termination shall survive termination or expiration of this Agreement.

15.12 Third Party Beneficiary

You acknowledge and agree that Network Merchants, LLC (“NMI”) as a Third Party Service Provider is an intended third party beneficiary of this Agreement, and NMI is entitled to enforce the terms of this Agreement against You with respect to the Payment Gateway Services as if it were an original party to this Agreement.

Appendix A – Extensions

In the event You enroll in, and Payment Gateway provides You with, Extension(s), You agree as follows and are subject to the applicable terms for Extensions that are presented during your enrollment.

1. Expansion of Services

The term “Payment Gateway Services,” as defined in the Agreement, shall include each of the Extensions. Each Extension is described on the Payment Gateway website and in other documentation provided to You from time to time. All terms of the Agreement applicable to the Payment Gateway Services shall be applicable to each Extension.

2. Your Obligations

In addition to Your obligations set forth in the Agreement, You agree to pay the Extension Fees, in accordance with Section 8 (PAYMENT TERMS) and Section 9 (FEES) of the Agreement, in the amounts provided in the Fee Schedule provided to You by Payment Gateway. The Fee Schedule is incorporated into the terms of this Agreement by reference and/or in the Extension documentation page accessed during enrollment in the applicable Extension. By checking the “I ACCEPT” or “I AGREE” button(or similar button captioned with acceptance language) next to a Extension Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay same and the terms and conditions applicable to the Extension.

3. Your Warranty

You represent, warrant, and covenant to Payment Gateway that Your use of the Extensions and any information submitted in connection with the Extensions: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations, Card Association rules, NACHA rules; (b) will be in accordance with all applicable documentation; and (c) will not be used for any purpose other than in connection with the Extension.

4. Acknowledgement

You understand, acknowledge, and agree that (a) You will be solely responsible for ALL transactions processed through Your Account(s), regardless of whether such Transactions are monitored by an Extension; (b) You will be solely responsible for Your use of the Extensions including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Extension account; and (ii) with respect to each Transaction processed via Your Account(s), and regardless of any data, analysis, or information generated or not generated by the Extension, as applicable, determining the appropriate action for each such Transaction (i.e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Payment Gateway to adjust Your Extension security settings, with or without notice to You, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Payment Gateway shall not be liable under any theory of law, including negligence, for any loss associated with any of the foregoing.

5. Payment Gateway Warranty

IN ADDITION TO ANY LIMITATIONS OR DISCLAIMERS SET FORTH IN THE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE EXTENSIONS ARE PROVIDED TO YOU BY PAYMENT GATEWAY “AS IS” AND THAT PAYMENT GATEWAY DOES NOT REPRESENT OR WARRANT THAT THE EXTENSIONS OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, AND THAT YOUR SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE EXTENSIONS, AND PAYMENT GATEWAY’S SOLE LIABILITY FOR THE SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF THE EXTENSIONS.

6. Risk, Security and Disclosure

The risk and security suggestions provided to You in the documentation for any of the Extensions are solely for illustrative purposes to show best industry practices, and unless managed directly or indirectly by Payment Gateway You shall be solely responsible for choosing the appropriate settings and parameters for Your Account.

7. Termination

If this Agreement is terminated for any reason, Payment Gateway shall immediately cancel access to Your Extension account. It is Your responsibility to download all reports prior to the effective date of any such termination as such reports will not be available following the termination date.

8. Incorporation by Reference

The Extensions Fee Schedules are incorporated into the Agreement by reference.

9. Third Party Programs

Payment Gateway makes no warranty, express or implied, with regard to any third party services or software.

10. Definitions

All terms and conditions of the Agreement not specifically modified in this Appendix A shall remain unchanged and in full force and effect. Unless separately defined in the Agreement, capitalized words used in this Appendix as defined terms shall have the same meanings as in the Agreement.

Appendix B – Prohibited Activities

You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:

(i) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Card Association rules, consumer protection laws, unfair competition, antidiscrimination or false advertising;

(ii) is associated with any illegal form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader with images of children less than 18 years old and/or escort services;

(iii) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;

(iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortuous, or otherwise violate Payment Gateway’s rules or policies;

(v) victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;

(vi) impersonates any person or entity;

(vii) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Payment Gateway Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;

(viii) violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;

(ix) offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;

(x) is associated with any form of illegal gambling or illegal lottery type services;

(xi) is associated with illegal telecommunications or illegal cable television equipment or illegal satellite equipment;

(xii) is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or

(xiii) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless You are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that Payment Gateway believes to be or may become harmful, unlawful, or prohibited. Payment Gateway requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and may require You to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, You may not use the Payment Gateway Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.

Canada Addendum to the Agreement

If Customer is formed or organized in Canada and if Customer has selected one or more Services in the Order Form, then the following additional terms and conditions in this Addendum apply as though included in the Agreementand/or any other Addenda, as applicable, and as between Customer and WL:

1. Province of Quebec.

For the purposes of Section 10(b) of the Payments By WellnessLiving Addendum, when:

(a) the Customer’s head office is situated in the Province of Quebec,

(b) the Membership Agreement specifies that the payments thereunder are to be made in the Province of Quebec or,

(c) the Customer’s Members are situated in the Province of Quebec,

the Customer irrevocably assigns the universality of all claims, present and future, arising from all of its accounts receivable and Membership Agreements in respect of which payments are to be made in the Province of Quebec or where the Customer’s Members are situated in the Province of Quebec, including without limitation, all fees, dues, income, rents issues, profits, earning, receipts, royalties and revenues arising therefrom (the “Assigned Claims“). For greater certainty, it is the intention of WL and the Customer that the transfer and assignment contemplated in this Section 1 (Province of Quebec) constitutes an absolute and irrevocable sale of all Assigned Claims and is not intended to be and will not be construed to be a loan or arrangement by way of security. Following the termination of the Payments By WellnessLiving Addendum and/or the Agreement, WL will, upon written request from the Customer, reconvey to the Customer WL’s interest in the Assigned Claims arising after the termination of the Payments By WellnessLiving Addendum and/or the Agreement. The reconveyance by WL to the Customer pursuant to this Section 1 (Province of Quebec) of this Addendum, will be effected without any express, implied or legal representation, warranty or condition (including any legal warranty contemplated by the Civil Code of Quebec) except for WL’s warranty that the reconveyed Assigned Claims are not subject to any lien, charge, security interest or hypothec created by WL. WL will sign all documents reasonably required by the Customer to give effect to such reconveyance and to render same opposable to third parties. The Customer hereby agrees that WL may, in its sole discretion, make a single registration at the Register of Personal and Movable Real Rights (Quebec) to register and publish the aforesaid assignment of universality of claims pursuant to Article 1642 of the Civil Code of Quebec. This Section 1 (Province of Quebec) is governed by, and is to be construed and enforced in accordance with, the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflict of laws principles thereof.

2. English Language.

The Parties hereto confirm their request that the Agreement and all related documents referred to herein and therein be drafted and executed in the English Language. Les Parties aux presentes conferment avoir expressement requis que le present contrat ainsi que tout document s’y repportant soient rediges en anglais.

Bridged API Access Addendum to the Agreement where the standard form of WellnessLiving API and SDK Terms of Use has not yet been acknowledged separately by you, the Customer.

1. Applicability.

This API Access Addendum applies only where WL approves Customer’s request for access to any WellnessLiving application programming interface, software development kit, developer credentials, API documentation, sandbox, webhook, integration endpoint, or related developer tool, whether made available now or in the future (collectively, “API Access”). API Access is part of the Services and Software under this Agreement and is not a separate contract.

2. Eligibility and acknowledgement.

API Access is available only to existing WL business Customers for use with their own WL account. WL does not currently provide API Access under this Agreement to third-party developers, independent software vendors, agencies, resellers, or other third parties acting for multiple customers, unless WL expressly agrees in writing. By submitting an API Access request, Customer confirms that it has accepted this Agreement and agrees to this API Access Addendum.

3. Licence.

Subject to this Agreement, WL grants Customer a revocable, limited, non-exclusive, non-transferable, non-sublicensable licence during the applicable Term to access and use API Access solely to develop, test, operate, and maintain Customer’s own internal application or integration for Customer’s own WL account and business operations.

4. No third-party use.

Customer must not use API Access on behalf of any third party, make API Access available as a service bureau, managed service, commercial integration platform, marketplace connector, or competing product, or permit any third party to access API Access except contractors acting solely for Customer, under Customer’s control, and subject to written obligations at least as protective as this Agreement. Customer is responsible for all acts and omissions of such contractors.

5. Restrictions.

Customer must not, and must not permit anyone to:

(a) reverse engineer, decompile, disassemble, modify, copy, scrape, crawl, frame, data mine, or attempt to derive source code from API Access, the Services, Software, WL Systems, or Documentation;

(b) bypass authentication, security, rate limits, access controls, technical limitations, or usage restrictions;

(c) exceed reasonable or published API call limits;

(d) use API Access to compete with WL or build a substantially similar service;

(e) disclose or publish API performance metrics, benchmarking, or statistical analysis without WL’s prior written consent;

(f) cache, store, compile, transfer, or use WL data except as necessary for the permitted integration and in accordance with this Agreement;

(g) transmit malware or harmful code; or

(h) use API Access in violation of law, privacy rights, intellectual property rights, WL Policies, Documentation, or this Agreement.

6. Credentials and security.

Customer is responsible for all API keys, tokens, credentials, and authentication methods issued to Customer. Customer must keep them confidential, rotate or revoke them when reasonably necessary, and promptly notify WL of any actual or suspected unauthorized access, compromise, or misuse.

7. API limits, changes, and suspension.

WL may set, change, reduce, or enforce API usage limits at any time. WL may modify, suspend, disable, or discontinue API Access, in whole or in part, with or without notice, including where WL believes use of API Access creates security, legal, operational, reputational, platform stability, or customer risk. WL will not be liable for any resulting loss of functionality, downtime, interruption, or impact on Customer’s application or integration.

8. No support commitment.

Unless expressly stated in an Order Form or separate written statement by WL, WL has no obligation to provide maintenance, technical support, custom development, updates, backward compatibility, uptime commitments, or service levels for API Access. Any support, documentation, sample code, sandbox, SDK, or update is provided “as is.”

9. Fees.

API Access fees, if any, will be as stated in the applicable Order Form, support-confirmed subscription, in-product checkout, or other WL-approved ordering process. API Access fees are Fees under this Agreement.

10. Ownership.

WL and its licensors retain all right, title, and interest in and to API Access, the Services, Software, Documentation, WL Systems, WL Marks, APIs, SDKs, endpoints, schemas, sample code, updates, and related intellectual property. No rights are granted except the limited licence expressly stated in this Addendum.

11. Customer application and data.

Customer is solely responsible for its application, integration, systems, instructions, queries, data flows, security, privacy compliance, consents, and all use of Customer Data through API Access. Customer must ensure that its use of API Access complies with all applicable privacy, anti-spam, consumer protection, intellectual property, and data security laws.

12. Third-party services.

Any third-party product, service, contractor, or integration used by Customer in connection with API Access is Customer’s responsibility. WL does not warrant or support third-party services and is not responsible for any third-party act, omission, system, integration, or data handling.

13. Confidentiality.

API Access, Documentation, credentials, tokens, endpoints, schemas, sample code, non-public technical materials, usage limits, security requirements, and related communications are WL Confidential Information. Customer must not disclose them except to employees and approved contractors who need to know them for the permitted use and are bound by confidentiality obligations.

14. Publicity.

Customer may not issue any press release, public announcement, marketplace listing, marketing claim, or other public statement suggesting WL approval, certification, sponsorship, partnership, or endorsement of Customer’s application or integration without WL’s prior written consent.

15. Term and termination of API Access.

API Access begins only when enabled by WL and continues only while Customer remains an active Customer in good standing under this Agreement, unless earlier suspended, disabled, or terminated by WL. API Access has no separate initial term, renewal term, or auto-renewal independent of this Agreement. Upon expiry, termination, suspension, or disabling of API Access, Customer must immediately stop using API Access, disable related functionality, delete or secure all credentials, and, upon request, certify compliance to WL.

16. API-specific limitation of liability.

Any claim arising out of or relating to API Access is subject to the exclusions and limitations of liability in this Agreement. Without increasing any liability cap under this Agreement, WL’s aggregate liability for claims arising out of or relating to API Access will not exceed the API Access fees paid by Customer to WL in the twelve months before the event giving rise to the claim. If no separate API Access fees were paid, API Access claims will be subject to the generally applicable liability cap under this Agreement and under no circumstances not to exceed $10.00 as against WL for any such aggregate liability for claims.

17. Claim limitation period.

No claim, action, or proceeding arising out of or relating to this Agreement, the Services, Software, or API Access may be brought by Customer, or anyone claiming through Customer, more than one year after the event giving rise to the claim, to the maximum extent permitted by applicable law.

18. Dispute resolution.

Before commencing arbitration or litigation, the parties will first attempt in good faith to resolve any dispute through informal discussions between business representatives. If unresolved, either party may require mediation in Ontario. If the dispute is not resolved through mediation within 30 days after a mediator is appointed, the dispute will be finally resolved by confidential, binding arbitration in accordance with the laws of Ontario, including the Arbitration Act, 1991. The arbitration shall be conducted by a single arbitrator agreed upon by the parties or, failing agreement within fifteen (15) days, appointed by the Superior Court of Justice upon the application of either party. The seat of the arbitration shall be Toronto, Ontario. The arbitration shall be conducted in the English language. The arbitrator’s award shall be final and binding upon the parties, and judgment upon the award may be entered in any court of competent jurisdiction. Nothing prevents WL from seeking interim, injunctive, equitable, or collection relief in the courts of Ontario, or from applying to a court to enforce an arbitral award. The laws of Ontario and the federal laws of Canada applicable therein govern this Agreement.