Partner Merchant Agreement

MERCHANT AGREEMENT AND TERMS OF USE

Welcome to Frootbat.

This Merchant Agreement and Terms of Use (“Agreement”) is a legal agreement between Golden Barrel Trading, a Cayman Islands corporation dba Frootbat “we”, “us” or “Frootbat” and the entity or person (“you” or “your”) who has registered a Merchant Account with Frootbat.

www.Frootbat.com and our related mobile applications (collectively our “Site”) along with our ordering, inventory and customer relationship management software (collectively with the Site, our “Software”) provide a marketplace for licensed merchants to advertise and sell alcoholic beverage products (“Product”) to Customers.

You may use Frootbat Software and receive certain advertising, data, technology, and marketing offered by Frootbat and its affiliates from time to time (collectively with the Software the “Services”) if you agree to this Agreement and establish a Merchant Account. This Agreement describes the terms and conditions that apply to your use of the Services.

If you do not understand the term of this Agreement, please contact us (merchants@frootbat.com) before using the Services. You may not access the Services unless you agree to abide by all of the terms and conditions of this Agreement.

1. OVERVIEW OF THIS AGREEMENT.

This Agreement provides a general description of the Services that Frootbat may provide to you to allow you to advertise, solicit and sell your Products to buyers using the Frootbat Services (“Customers”). We provide you with a more detailed description of the Services through published software libraries, written instructions, and application programming interfaces that may be used to access the Services (the “API”) and additional resources we make available to you on our Site. Before using the Services, you must agree to these terms of use, register with Frootbat and create an account (a “Merchant Account”).

2. TERM AND TERMINATION.

This Agreement shall commence on the date you register a Merchant Account and continue until terminated as provided for herein. You may terminate this Agreement without cause by providing fourteen days written notice to Frootbat. Frootbat may terminate this Agreement with or without cause in its sole discretion at any time immediately upon written notice.

3. YOUR MERCHANT ACCOUNT.

a. Registration. Only properly licensed alcohol beverage businesses (including sole proprietors) located in the United States with owners and managers 21 years or older are eligible to apply for a Merchant Account to use the Services described in this Agreement. Frootbat may provide Services to you or your affiliates in other countries or regions under separate agreements. To register for a Merchant Account, you or the person or people submitting the application (your “Representative”) must provide us with your legal business name, trade name, physical address, email, phone number, tax identification number, URL, the nature of your business or activities, and certain other information about you that we require from time to time. You additionally must have received from the appointed credit card processor (“Banking Partner”) verification and a Payment Account (See Section 4). You will also upload comprehensive information in relation to the Products to your Merchant Account with Frootbat and will diligently ensure that all information uploaded is true, accurate and contains all the information needed by Customers to make and implement purchasing decisions. Your Merchant Account will not be approved until you have submitted, and we have reviewed and approved, all the foregoing required information.

b. Business Representative. You and your Representative individually affirm to Frootbat that (i) your Representative is authorized to provide the information described in this Section 3 on your behalf and to bind you to this Agreement and (ii) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Frootbat, neither you nor your Representative may register or attempt to register for a Merchant Account on behalf of a user we previously terminated from use of the Services. If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers and government agencies, including payment of any amounts owed under this Agreement.

c. Activation. You agree to facilitate the setup and activation of the Frootbat Software and your Merchant Account. You must provide us with access to your Merchant Account and you may be required to provide us access to the hardware used to access your Merchant Account, whether on-site or through remote facilities, and to any of your computer or electronic data storage system or those of your third party contractors, if applicable, in order for us to perform any of our obligations pursuant to this Agreement.

d. Validation. At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess your financial condition. This additional information may include copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals or other records pertaining to your compliance with this Agreement.

e. Changes to Your Business. You agree to keep the information in your Merchant Account current. You must promptly update your Merchant Account with any changes affecting you, the nature of your business activities, your business licenses, Representatives, beneficial owners, principals, Products, or any other pertinent information. We may suspend your Merchant Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; there is any change in the control or ownership of your business or parent entity; or you no longer have an alcohol beverage license that allows you to offer Products on the Site.

f. Information Security. Frootbat uses firewalls and other technology generally accepted and used in the trade to prevent unauthorized third party access to its computer systems storing your Merchant Account data as well as available encryption technology generally used in the trade to prevent unauthorized third party access. Notwithstanding the foregoing, Frootbat shall not be liable to you in the event that its use of firewalls and other technology generally used in the trade fails to prevent unauthorized third party access to your Merchant Account data or its website generally or its use of encryption technology generally used in the trade fails to prevent unauthorized third party access. You are responsible for maintaining the confidentiality of your password and login information.

g. Suspension or Termination. Your Merchant Account may be suspended or terminated by us at any time in our sole discretion.

4. YOUR PAYMENT ACCOUNT.

The transaction to purchase alcoholic beverages must take place between the Customer and you, as the licensed seller. You must create a payee account (“Payment Account”) with the Banking Partner in order to be approved as a Frootbat merchant and to receive payments for Customer orders. Payments for Customer orders are processed by the Banking Partner, on your behalf. Credit and debit card information is collected by the Banking Partner for processing Customer orders. Frootbat does not retain any Customer credit card information.

5. FROOBAT TECHNOLOGIES AND IP.

a. Software API and Dashboard. Frootbat has developed and provides access to the API that may be used to access the Services. You may use the API solely as described in written instructions to use the Services on websites and through the applications identified in your Merchant Account. You may manage your Merchant Account and enable additional features through the Frootbat merchant management dashboard (“Dashboard”). You may not use the API and Software for any purpose, function, or feature not described in Frootbat distributed written instructions or otherwise communicated to you by us. Due to the nature of the Services, we will update the API and written instructions from time to time, and may add or remove functionality. We will provide you notice in the event of material changes, deprecations, or removal of functionality from the API so that you may continue using the Services with minimal interruption.

b. Ownership of Frootbat IP. As between you and Frootbat, Frootbat and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, all Customer Information, and other intellectual property embodied by, or contained in the API, Services, Dashboard, Software and written instructions (collectively, “Frootbat IP”) or any copies thereof, except for intellectual property provided through merchant content. Frootbat IP is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in Frootbat IP not expressly granted to you in this Agreement are reserved. Without limiting the foregoing, you agree that all Customer Information is Frootbat IP and you shall not use Customer Information for any communications, promotions or advertising except as expressly authorized by Frootbat in this Agreement.

c. License. You are hereby granted a limited revocable, nonexclusive and nontransferable license to electronically access and use the Frootbat IP only in the manner described in this Agreement. Frootbat does not sell to you, and you do not have the right to sublicense the Frootbat IP. We may make updates to the Frootbat IP or new Services available to you automatically as electronically published by Frootbat, but we may require action on your part before you may use the Frootbat IP or new Services (including activation through the Dashboard, or acceptance of new or additional terms). Frootbat may revoke or terminate this license at any time if you use Frootbat IP in a manner prohibited by this Agreement. You may not: (i) claim or register ownership of Frootbat IP on your behalf or on behalf of others; (ii) licensing or sublicense any rights in Frootbat IP granted by us; (iii) import or export any Frootbat IP to a person or country in violation of any country’s export control Laws; (iv) use Frootbat IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing. You may never use any Frootbat IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.

d. Maintenance. We may, from time to time and in our sole discretion, release modifications or upgrades to the Frootbat Services, including the Software and Site, but are under no obligation to do so. You consent to us modifying or upgrading the Frootbat Services, Software and Site without your knowledge. You acknowledge that from time to time we may be required to undertake scheduled or unscheduled maintenance and this may cause interruptions to the Services. You may not be able to process orders using the Frootbat Services during this time or otherwise access our Site. Where practicable we will provide you with at least 2 days’ notice in respect of any scheduled maintenance period or upgrade. Any general maintenance periods will be specified on our website. Frootbat does not warrant or guarantee that: (i) the Frootbat Services will meet your requirements and expectations; (ii) the Frootbat Services will be compatible with, or capable of being used on or in connection with, your computer and communications systems; (iii) your access to the Frootbat Services will be uninterrupted or error free; or (iv) the Frootbat Services will be accurate, reliable or fit for any particular purpose.

6. YOUR INTELLECTUAL PROPERTY.

During the term of this Agreement, you grant to Frootbat a royalty-free, non-exclusive, worldwide, irrevocable right and license to use, reproduce, perform and display on the Site, and in advertising, promotional material, and other communications concerning the Site, Services and the Product, any Product information (“Merchant Intellectual Property”) provided by you. All goodwill arising out of any use of any Merchant Intellectual Property by or through Frootbat’s Services will inure solely to the benefit of you.

7. CONTENT.

a. Your Content. You are solely responsible for the development and maintenance of all your content, protection and backup thereof, and ensuring that all Product information and availability is current and accurate at all times. You agree that any content transmitted to Frootbat for use in any promotional or communication form as permitted hereunder is not confidential. By submitting any material to Frootbat, you grant us an irrevocable right to use, reproduce, distribute, modify or display the material in connection with the Frootbat Services. You represent and warrant that you have all rights and authority necessary to grant these rights unconditionally. We are entitled to delete or remove any material placed submitted by you, in our sole discretion and for any or no reason, deem inappropriate. You will not upload into the Merchant Account any text, photos or other material that is illegal, libelous, offensive, in breach of third party copyright or other property rights, or otherwise likely to give rise to reasonable complaint from Customers or other parties and will at all times follow and agrees to be bound by the Terms of Use and Privacy Policy.

b. Third Party Content. We may make third party content such as software applications, website links or communication forums (including but not limited to online bulletin boards, chat forums, news groups or any other communication forum) available from time to time at our discretion (“Third Party Content”). Any Third Party Content is owned by the party contributing that content. Third Party Content is not controlled, monitored, tested or endorsed by us and use of any Third Party Content is at your own risk. We are not be liable for any damage, costs, claims or liability incurred as a direct or indirect result of your use of the Third Party Content and you unconditionally and irrevocably release us from any such claims.

8. YOUR REPRESENTATIONS.

Frootbat provides an online technology driven consumer-facing marketplace for licensed sellers of alcohol beverages with Merchant Accounts to advertise and sell alcohol beverages to Customers. In connection with your use of the Services, you represent and warrant:

a. Frootbat does not own, posses, buy, sell or control the solicitation or sale of any alcohol beverages and that you are the sole owner and seller of the Products offered and sold by you through the Site and you have possession of all alcoholic beverages sold to Customers placing orders with you through the Site.

b. You will make Product available for purchase by Customers in accordance with this Agreement and applicable laws.

c. You have and shall maintain during the term of this Agreement all licenses, permits and authorizations necessary to solicit and accept orders and sell and ship Product directly to Customers at the shipping locations designated in each order.

d. You are authorized to provide and sell the Products and have in place operating and safety systems which enable you to provide the Products in a safe and appropriate manner.

e. You will maintain the privacy of all Customers, including without limitation the credit card information received from the Banking Partner (if any), name, billing address, shipping address, date of birth, order details and other Customer data (collectively “Customer Information”) in accordance with Frootbat’s written privacy policy and applicable law.

f. You are solely responsible for the nature and quality of the Products you advertise, offer and sell through the Services, and for denying, completing, delivering an order, as well as returns.

g. The information provided by you to Frootbat to establish a Merchant Account is true, correct and complete in all material respects.

h. Product will be: (i) free from defect; (ii) in conformance with applicable industry and government specifications; (iii) produced, packaged and labeled in compliance with all applicable government regulations; (iv) merchantable; and (v) fit for the purpose sold.

i. You have full power and authority to execute and deliver this Agreement and to enter into the transactions contemplated hereby, all of which have been duly authorized by all proper and necessary company action. No consent or approval of any other person or public authority is required as a condition to the validity or enforceability of this Agreement.

j. There is no applicable law binding upon you which would conflict with or in any way prevent the execution, delivery or performance of the terms of this Agreement or which would be violated as a result of such execution, delivery or performance, including without limitation, state and federal laws governing the soliciting and sale of alcoholic beverages.

k. The conduct of your business is in compliance with all applicable laws to which it is subject, including without limitation, state and federal laws governing the sale of alcoholic beverages.

l. You have independently established the pricing for all Product advertised and sold on through the Services and related pricing policies.

m. You can fulfill all orders placed online by Customers and accepted by you.

n. You will adhere to all written Frootbat Terms and Conditions, Terms of Use and Privacy Policies in selling Products through Frootbat Services.

o. You will not use Services for personal, family or household purposes, or (except in the normal course of business) intercompany transactions; and

p. You will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.

q. You have reviewed the Frootbat Customer Terms, Shipping Policy and Privacy Policy posted to the Site, as may be amended from time to time, and approve and agree to the same.

9. INVOICE PRICING, SALES TAX, SHIPPING, INSURANCE, BANK CHARGES, AND SERVICE FEES.

a. Product Inventory. You agree to supply your current Product inventory information to Frootbat for advertising by Frootbat on the Site to Customers, on your behalf.

b. Invoice Price. You set the Invoice Price of the Products you sell. The “Invoice Price” is the gross sale price you set in relation to each Product by either a Frootbat provided data feed or your own data feed. The Invoice Price is exclusive of all sales tax, shipping, insurance (if any), banks charges, and Service Fees (defined below) and represents only the amount payable by a Customer for the Product. You appoint Frootbat to calculate on your behalf and add to the Customer’s purchase total at checkout the amounts associated with each of the following (collectively with the Invoice Price, the “Purchase Price”):

i. Sales Tax. Unless you receive a Notice from Frootbat that it is collecting and remitting all sales tax directly under marketplace facilitator laws for your jurisdiction, then you are solely liable for properly paying all sales tax owed on Products purchased by Customers through Frootbat Services. Frootbat Software will calculate sales tax payable by Customers based on your gross sales price set for Product and sales tax settings you have advised Frootbat to establish for your Merchant Account. These settings include but are not limited to your applicable sales tax nexuses, the tax rate at the Customer’s shipping address and the tax rate at your origin address. Sales and use tax will be collected at payment from a Customer in accordance with these settings. Sales tax is not calculated on Service Fees, bank charges, insurance and shipping. All sales tax collected through the Frootbat Services by the Banking Partner is delivered to you for remittance to all appropriate authorities by you. It is your exclusive obligation to ensure you established correct sales tax settings and that you are adhering to local & federal tax law and sales tax obligations. 

Notwithstanding the foregoing, Frootbat may elect, in its full and absolute discretion, to collect sales tax from Customer orders and remit the same to the appropriate taxing authorities. If Frootbat notifies you of its election to collect sales tax and change the sales tax settings for your Merchant Account, you agree to promptly perform all acts required to authorize the Banking Partner to transfer to Frootbat for remittance the sales tax portion of the sales price from Customer orders placed through the Site with you so that Footbat may remit the sales tax to taxing authorities. Frootbat may, at its discretion and without Notice, designate its US payment agent to collect and remit state sales and use taxes. You remain responsible for complying with all applicable local and federal tax laws.

ii. Shipping. Frootbat Software will calculate shipping payable by Customers based on a flat rate or common carrier rates, package size and weight, your origin address and the Customer’s shipping address. All shipping and handling fees are collected through the Frootbat Services by the Banking Partner on your behalf.

iii. Frootbat Service Fee. Customers are charged a service fee (“Service Fee”), payable by you to Frootbat for each order. All Service Fees shall be paid electronically on your behalf by the Banking Partner to Frootbat.

c. Bank Service Fee. For each order you accept, all bank charges, merchant facility charges and credit card charges relating to the collection of the Invoice Price will be paid by you from your Banking Partner Payment Account.

d. Timing. The portion of the Purchase Price payable to you will be paid from your Payment Account when Frootbat has written confirmation that Product has been delivered by you to the common carrier delivering the order to the Customer. Payments are made to you in the currency selected by you.

e. Setoff. Frootbat may request from the Banking Partner a set-off from amounts due to you under this Agreement for any amount payable by you to Frootbat from your Payment Account with the Banking Partner.

10. SHIPPING.

a. Shipping Labels. Frootbat Software will generate a shipping label for you. If Product is returned under Section 10.d, Frootbat reserves the right to charge a shipping penalty and such amount shall be debited from your Payment Account by the Banking Partner. This penalty may include the original shipping cost of the shipment, the return shipping cost of the shipment plus a penalty of up to $25.

b. Packaging Standards. All Products shipped by you to Customers shall meet the following packaging standards:

i. Adhere to all carrier alcohol beverage packaging and labeling guidelines, including without limitation the following:

1. Ensure that all goods are packaged securely and in accordance with industry standards to withstand the rigors of transit. 

2. Packaging must be sufficient to protect the goods from damage, tampering, or deterioration during handling, transportation, and storage.

3. Use packaging materials and methods that comply with the specific requirements of the selected carriers and applicable law.

ii. Must require signature of a person over the age of 21 for delivery and comply with applicable law.

iii. Adhere to all Frootbat alcohol beverage packaging guidelines.

Frootbat shall not be liable for any loss, damage, or delay resulting from insufficient or improper packaging of goods. You shall bear sole responsibility for any claims, costs, or liabilities arising from such issues.

c. Fulfilment Speed. All orders assigned to you must actioned within the following timeframes:

i. Orders must be accepted within 1 business day of being assigned

ii. Orders must be shipped within 24 hours of being accepted

d. Returns. You will adhere to all written return policies associated with the Frootbat Services. Frootbat will receive Customer claims for all damaged or lost packages. You appoint Frootbat as your independent contractor to manage all such claims and direct the Banking Partner to debit refunds from your payee account. You will not receive a restocking or handling fee for returned disputed Products. You agree to accept the return of disputed Products and debit your Payment Account the Customer refund amount with the Banking Partner for any of the following reasons:

i. you ship incorrect Products to a Customer.

ii. you ship defective or damaged Products to a Customer.

e. Damaged, Defective, Lost, or Destroyed Shipments. In the event customers receive damaged Products, or a shipment is lost or destroyed during transit, or if customers receive damaged or defective Products stemming from a pre-existing condition of the item, you irrevocably authorize Frootbat, in its discretion, to do either of following, on your behalf:

i. Discounted Sale of Damaged Products: offer customers the right to keep damaged or defective Products at a discount of up to 50% of the original sale price. In such cases, you irrevocably authorize Frootbat to do direct the Banking Partner to deduct from your Payment Account and remit to the customer who received damaged or defective Products a refund or credit equal to the discount. 

ii. Penalty for Unsalvageable Products: If the damaged or defective Product is deemed unfit for return or beyond salvage, offer customers the right to keep damaged or defective Products at a discount of up to 100% of the original sale price. In such cases, you irrevocably authorize Frootbat to direct the Banking Partner to deduct from your Payment Account and remit to the customer who received damaged or defective Products a refund or credit equal to the discount. 

f. Incorrect Products. In the event customers receive incorrect Products as a result of a fulfillment error attributable to you, you irrevocably authorize Frootbat to do either of the following, on your behalf:

i. Discounted Sale of Incorrect Products: offer customers the right to keep incorrect Products at a discount of up to 50% of the original sale price. In such instances, you irrevocably authorize Frootbat to do direct the Banking Partner to deduct from your Payment Account and remit to the customer who received incorrect Products a refund or credit equal to the discount.

ii. Penalty for Uneconomical Returns: For incorrect Products valued at $150 or less, offer customers the right to keep the incorrect Products at a discount of up to 100% of the original sale price. In such cases, you irrevocably authorize Frootbat to direct the Banking Partner to deduct from your Payment Account and remit to the customer who received incorrect Products a refund or credit equal to the discount.

h. Determination of Fault: You grant Frootbat the sole and exclusive discretion to determine the cause of any damage to a shipment, lost or incorrect Product, including whether such damage, loss or incorrect order resulted from your failure to comply with the obligations set forth in Clause 10.b, or whether the damage arose from a preexisting condition of the product or a defect inherent to the product itself.

11. DISCLOSURES AND NOTICES; ELECTRONIC SIGNATURE CONSENT.

a. Consent to Electronic Disclosures and Notices. By registering for a Merchant Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Frootbat (“Notices”), including those required by law. You also agree that your electronic consent will have the same legal effect as a physical signature.

b. Methods of Delivery. You agree that Frootbat can provide Notices regarding the Services to you through our Site or through the Dashboard, or by mailing Notices to the email or physical addresses identified in your Merchant Account. Notices may include notifications about your Merchant Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our Site or emailed to you.

c. SMS and Text Messages. You authorize us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your Merchant Account (such as through two-step verification), and to provide you with other critical information about your Merchant Account. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications in the Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security controls (as defined below) on your Frootbat Account and may increase the risk of loss to your business.

d. Confidentiality. All matters directly or indirectly related to this Agreement and the Frootbat Services and other information provided by Frootbat (except to the extent such information is already publicly available) constitutes commercially sensitive and confidential information of Frootbat. You may use Frootbat’s confidential information only as permitted in accordance with this Agreement and must take all necessary measures to avoid disclosure, dissemination or unauthorized use of Frootbat’s confidential information. You agree not to disclose any information provided by Frootbat that is designated as confidential or that it should know is confidential to any third party without Frootbat’s prior written consent, unless it is legally compelled to do so, and provided that, where practicable, it first provides notice to Frootbat.

12. MISCELLANEOUS.

a. Severance. If any provision of this Agreement, or the application thereof to any person or circumstance, is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable to any extent, such provision shall be severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. The remaining provisions shall continue in full force and effect and shall be interpreted to give effect to the original intent of the parties as closely as possible. To the extent permitted by applicable law, the parties further agree to replace any such invalid, illegal, or unenforceable provision with a valid and enforceable provision that most closely reflects the original intent and economic effect of the invalid provision.

b. Right to Amend. We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our Site or any other website we maintain or own. We will provide you with Notice of any changes through the Dashboard, via email, or through other reasonable means. The changes will come into effect immediately after we post the changes to our Site, and your use of the Services more than three days after posting constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our Site at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.

c. Assignment. You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Merchant Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. We may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.

d. Right to Audit. If we believe that a security breach, leak, loss, or compromise of data has occurred on your systems, Site, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit.

e. No Agency; Third-Party Services. Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us. Each party to this Agreement is an independent contractor. We may reference or provide access to third-party services, products, and promotions that utilize, integrate, or provide ancillary services to the Services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You access and use any Third-Party Service based on your own evaluation and at your own risk. You understand that your use of any Third-Party Service is not governed by this Agreement. If you decide to use a Third-Party Service, you will be responsible for reviewing, understanding and accepting the terms and conditions associated with its use. We expressly disclaim all responsibility and liability for your use of any Third-Party Service. Please also remember that when you use a Third-Party Service, our Privacy Policy is no longer in effect. Your use of a Third-Party Service, including those that have a link on our Site, is subject to that Third-Party Service’s own terms of use and privacy policies.

f. Force Majeure. Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay fees, fines, disputes, refunds, reversals, or returns under this Agreement.

g. Your Liability For Third-Party Claims Against Us. Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for your acts and omissions and the acts and omissions of your owners, officers, employees, contractors and agents (collectively the “Merchant Parties”).

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FROOTBAT, INCLUDING ALL ITS AFFILIATES AND SUBSIDIAREIS, AND ITS AND THEIR MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, INSURERS, AND REPRESENTATIVES (collectively the “FROOTBAT PARTIES”) FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES AND COSTS) ARISING OUT OF (I) THE MERCHANT PARTIES’ USE OR MISUSE OF THE FROOTBAT SITE, SOFTWARE, SERVICES, API, MERCHANT ACCOUNT AND PAYMENT ACCOUNT; (II) THE MERCHANT PARTIES’ CONTENT, INCLUDING FROOTBAT’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO THE MERCHANT PARTIES’ CONTENT; (III) THE MERCHANT PARTIES’ VIOLATION OF THESE TERMS; (IV) THE MERCHANT PARTIES’ VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) THE MERCHANT PARTIES’ BREACH OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS IN THIS AGREEMENT; (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY FROOTBAT; (VII) BODILY INJURY TO PERSONS OR DAMAGE TO PROPERTY ARISING FROM THE MERCHANT PARTIES’ ACTS, ERRORS OR OMISSIONS; (VIII) ANY PRODUCT LIABILITY CLAIMS ASSOCIATED WITH THE PRODUCTS OFFERED BY THE MERCHANT PARTIES’ THROUGH THE FROOTBAT SITES AND SERVICES, (IX) THE MERCHANT PARTIES’ NEGLIGENT OR WILLFUL MISCONDUCT, AND (X) CONTRACTUAL OR OTHER RELATIONSHIPS BETWEEN THE MERCHANT PARTIES’ AND CUSTOMERS OF FROOTBAT. FROOTBAT RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY THE FROOTBAT PARTIES AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF FROOTBAT. FROOTBAT WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT. 

h. No Warranties.

WE PROVIDE THE SERVICES AND FROOTBAT IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY FROOTBAT OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES – WHETHER FROM FROOTBAT OR ANOTHER FROOTBAT ENTITY, AND WHETHER ORAL OR WRITTEN – CREATES OR IMPLIES ANY WARRANTY FROM A FROOTBAT ENTITY TO YOU.

YOU AFFIRM THAT NO FROOTBAT PARTY CONTROLS THE PRODUCTS OR SERVICES THAT YOU OFFER OR SELL OR THAT YOUR CUSTOMERS PURCHASE USING THE PAYMENT PROCESSING SERVICES. YOU UNDERSTAND THAT FROOTBAT PARTIES CANNOT GUARANTEE AND FROOTBAT PARTIES DISCLAIM ANY KNOWLEDGE THAT YOUR CUSTOMERS POSSESS THE AUTHORITY TO MAKE, OR WILL COMPLETE, ANY TRANSACTION.

THE FROOTBAT PARTIES DISCLAIM ANY KNOWLEDGE OF, AND DO NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT FROOTBAT WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, API, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT THE FROOTBAT PARTIES MAKE NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.

NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.

i. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ANY FROOTBAT PARTIES BE RESPONSIBLE OR LIABLE TO ANY MERCHANT PARTIES FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, LOST PROFITS, PERSONAL INJURY, OR PROPERTY DAMAGE, OR FOR ANY OTHER DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT YOU OR THE FROOTBAT PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Frootbat Parties are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Services, your Frootbat Account, or data, or your failure to use or implement anti-fraud measures, security controls, or any other data security measure. The Frootbat Parties further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the documentation; (b) any unauthorized access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others. You agree to limit any additional liability not disclaimed or denied by the Frootbat Parties under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of fees paid by you to Frootbat during the three-month period immediately preceding the event that gave rise to your claim for damages. The limitation of liability in the preceding sentence will not apply to claims by you against Frootbat for failure to settle any payment processing proceeds received by Frootbat and owed to you in connection with the Agreement; in the case of such a claim, you agree the Frootbat Parties’ liability is limited to the amount of payment processing proceeds that Frootbat Parties have received and owes to you, but failed to settle to you, in connection with this Agreement. These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis. We provide the Services from facilities in the United States. We do not claim, and we cannot guarantee that Services we provide from the United States are or will be appropriate or available for any other location or jurisdiction, comply with the laws of any other location or jurisdiction, or comply with laws governing export, import, or foreign use.

j. Responding to Legal Process. Frootbat may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. Where permitted by Law, we will make reasonable efforts to provide you Notice of such Legal Process by sending a copy to the email address we have on file for you. Frootbat is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.

k. Dispute Resolution; Agreement to Arbitrate

i. Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the District of Delaware), will be determined by arbitration in Dover, Delaware before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of Delaware, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the Northern District of Delaware to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement. Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

ii. Service of Process. Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by law.

iii. Class Waiver. To the fullest extent permitted by law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.

iv. Provision of an Award. Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of Delaware. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Kent County, Delaware. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.

v. Fees. Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.

vi. Confidentiality. The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

l. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. To the extent any matter arising out of or relating to this Agreement is not subject to arbitration pursuant to Section 12.k, or where judicial intervention is permitted, such matter shall be brought exclusively in the state or federal courts located in Kent County, Delaware, and the parties irrevocably consent to the exclusive jurisdiction and venue of such courts. Merchant waives any objection based on inconvenient forum, and agrees not to contest enforcement in the Frootbat’s chosen jurisdiction. The parties further agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

m. Entire Agreement. This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Frootbat for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Frootbat, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. 

m. Cumulative Rights, Construction, Waiver. This Agreement sets forth your exclusive remedies with respect to the Services. The rights and remedies of Frootbat under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at law. This Agreement has been negotiated by the parties and shall be interpreted and construed in a fair and impartial manner. No presumption or rule of construction shall apply that disfavors the drafter of this Agreement. The parties agree that this Agreement shall not be construed against any party by reason of authorship, and that all provisions shall be interpreted according to their fair meaning under Delaware law. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.

n. Survival. All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement.

UPDATED: September 26, 2025