Terms and Conditions

These Terms of Service and User Agreement (“Terms of Service”) are a contract between you (“you,” “your”) and Omni Mobile Inc. (D/B/A OM) (“OM,” “Omni,” “we,” “our” or “us”) that governs your use of OM’s services, including mobile applications, websites, software, and other services (collectively, the “Services”). By opening an account with OM and using the Services, you agree to these Terms of Service and any policies referenced within (“Policies”). The Terms of Service include an agreement to resolve disputes by arbitration. You also agree to any additional terms specific to Services you use (“Additional Terms”), such as those listed below, which become part of your agreement with us (collectively, the “Terms”). You should read these Terms of Service carefully.

We may amend the Terms of Service at any time by posting a revised version on our website or other communication. The revised version will be effective at the time it is posted. If we change the user agreement in a way that reduces your rights or increases your responsibilities, we will provide you with reasonable prior notice.

1. OM Account and Account Funding

Account Registration

In order to use the Services, you must create an “OM Account” by registering with us. You must provide accurate and complete information, and you must keep that information current. You are fully responsible for any action involving your OM Account, including any actions taken by third parties to whom you have granted access to your OM Account. We may suspend or terminate your OM Account if you provide inaccurate or incomplete information.

Account Termination

You may terminate your OM Account at any time, but you will remain liable for all obligations related to your OM Account after termination. You may not terminate your OM Account to evade an investigation, if you have a pending transaction or dispute, or if your OM Account has a negative balance.

OM Account Balances

Any balance in your OM Account is an unsecured claim against OM and is not insured by the Federal Deposit Insurance Corporation. You may review your OM Account Balance and previous transactions on our website or the OM App. You may request written records related to your OM Account activity, subject to a fee. We will not charge a fee for written records you request in connection with a bona fide error in your OM Account. OM may impose limitations on how much money you can keep in your OM Account and reserves the right to change the limitation at any time and shall settle funds to your bank account as necessary.

Receipts and Account Statements

You may receive a receipt for some of your OM App transactions. Such transaction receipts can be found in the activity section of your OM App and by logging into your Account at OM.me.

You may receive an account statement. You may view your account statement by logging into your Account at OM.me.

OM IDs

You may select a unique identifier (an “OM ID”). Your OM ID must accurately and truthfully represent your business or personal identity. You may not select an OM ID that misleads or deceives others as to your identity or creates an undue risk of mistaken payments. We may require you to change your OM ID or details of your profile in our sole discretion, and we may reclaim or make unavailable your OM ID.

Transferring Money to Your Bank Account

You may transfer funds from your OM Account to your bank account. We may limit how many transfers you can initiate from your OM Account to your bank account and how much money you can transfer in a single transaction. We reserve the right to delay or further limit such transfers while we screen for risk, or we may request you provide additional information to verify your identity.

ACH as Funding Source

To send funds or make a payment transaction using a direct ACH payment as your funding source, you must have a valid, online banking accessible US bank account authorized by OM. To send funds or make a payment transaction using a credit or debit card as your funding source you must have either (i) a credit card issued by a U.S.-based bank or financial institution bearing the trademark of MasterCard International Inc. (“MasterCard”), Visa Inc. (“Visa”), American Express Travel Related Payment Services Company, Inc. (“American Express”), or DFS Services, LLC (“Discover”), or (ii) a valid debit card issued by a U.S.-based bank or financial institution bearing the Visa, MasterCard or Discover logo (a credit or debit card, each a “Card”). Any such debit card is an “Eligible Debit Account” and any such credit card is an “Eligible Credit Account” (and together with an Eligible Debit Account and funds held in the OM App, an “Eligible Transaction Account”) once you register it with your Account. You may not use prepaid cards or gift cards with the Service.

If your credit card account number changes or your credit card expiration date changes, we may acquire that information from our financial services partner and update your account accordingly.

Default Funding Sources

When you make a payment from your OM Account:

  • If you have funds in your OM Account that can cover your full transaction, and no card or bank account is linked, your default funding source will be the funds held in your OM Account;
  • If you have a card or bank account linked and you hold funds in your OM Account that can cover your full transaction, you will be prompted to select your preferred funding source;
  • If the funds in your OM Account will not cover your full transaction, the Service will use a linked account that you have designated as your primary funding source to make the full payment.

Limitations

To reduce risk, OM may, at its sole discretion, limit the funding sources available to you for certain transactions. Each funding source will have different dispute resolution rights and procedures in the event your transaction turns out to be unsatisfactory. Your dispute resolution rights are determined by the funding source used to fund your transaction.

2. OM Services

Sending Money With OM

Once you have registered for an OM Account, you will be able to initiate funds transfers. As a party initiating a transfer (“Sender”), you will transfer funds to your selected recipient (“Recipient”) by designating the Recipient and the transfer amount to us (collectively “Payment Instructions”). Your Payment Instructions authorize us (1) to move funds from your account and to your designated Recipient (a “Payment”). By submitting a Payment Instruction, you are also authorizing us to move money to your account for Payments that are canceled or otherwise returned (a “Credit”).

You understand and agree that when you initiate a Payment Instruction from your account using the Services, the processing of the Payment Instruction will begin, and funds will leave your account as early as the day of the initiation of such Payment Instruction. However, we will only begin to process the requested transfer of funds to the Recipient once the Recipient has provided all required information, and you hereby authorize and direct us to retain such funds until the earlier of such time as the Recipient has provided all required information or 15 days.

You agree that we shall incur no liability if we are unable to complete any transaction because of: (i) insufficient funds in your account; (ii) malfunction of the Services due to circumstances beyond our control or due to circumstances that you were already aware of at the time you initiated your Payment Instruction; (iii) inaccurate or insufficient Payment Instructions; or (iv) failure of the Recipient to claim the Payment.

Receiving Money through OM

Once you have created an OM Account, when you receive a payment:

  • If you have turned on OM’s capability to hold funds in your account, in-bound payments will be held in your account. To transfer such funds you will have the option to: 1. keep the funds in the account for future transactions, or 2. deposit funds into a bank account issued by a U.S.-based bank (“Eligible Bank Account”). By linking your bank account and using it as your deposit source, you are requesting that we settle an electronic transfer to your bank account. OM will settle these electronic transfers (via the Automated Clearing House (“ACH”) of NACHA - The Electronic Payment Association (“NACHA”)) to your linked bank account in the amount you provide. You agree that by making such requests you authorize OM to make the ACH transfer, and you will not be able to cancel the ACH transfer. Such transfer to your Eligible Bank Account via ACH will arrive within three (3) business days.
  • If you have not turned on OM’s capability to hold funds in your account, you will have the option to receive funds in your bank account via ACH.
  • You may change the settings to route in-bound payments to remain in your OM Account or be transferred via ACH.

You understand and agree that there may be a delay between the time you are notified of a pending Payment Instruction and the deposit of the Payment into your account, and that you may be required to take additional steps to facilitate the deposit. You authorize us to send you emails or text messages related to any Payment directed to you.

Business Services

Please see Appendix A for additional terms of services applicable to businesses operating on the OM platform.

3. Fees and Payments

OM will charge the Wyndham a 1% fee on all processed funds.

4. Privacy

You consent and agree to the terms of OM’s Privacy Notice.

If you receive information about another OM customer, you must keep the information confidential and only use it in connection with the Services. You may not disclose any information about OM users to a third party or use the information for marketing purposes unless you receive that user’s express consent to do so.

If you process any personal data about an OM customer, you agree to comply with the requirements of any applicable data protection statute or regulation. You agree that you are subject to a proprietary privacy policy.

5. Error Resolution

If you identify an error in connection with your OM Account or any activity in your OM Account, please contact us immediately at the address below and provide us with details of the error. If you notify us by telephone, we may require that you notify us in writing within 10 business days. We will determine whether an error occurred within 10 business days after you notify us and will correct any error promptly. We may take up to 45 days to investigate the error, in which case we will credit your OM Account within 10 business days for the alleged error. If we ask you to notify us in writing and we do not receive such written notification within 10 business days, we may not credit your OM Account.

For errors involving new accounts, point-of-sale transactions, or foreign-initiated transactions, we may take up to 90 days to investigate. For new accounts, we may take up to 20 business days to credit your OM Account.

We inform you of the results of our investigation within 3 business days of completion. If we decide that there was no error, we will send you a written explanation. We will provide copies of investigatory documents upon request.

6. Electronic Disclosures and Notices

You agree that we may provide certain communications to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your OM Account. Such communications include, but are not necessarily limited to: agreements and policies in connection with the Services, payment authorizations and transaction receipts or confirmations, and account statements and history. We may also use electronic signatures and obtain them from you.

To access the electronic communications, you will need the following:

  • A computer or mobile device with Internet or mobile connectivity.
  • For desktop website-based communications: o Recent web browser that includes 256-bit encryption; o The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and o Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
  • For communications on the OM App: o A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and o The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
  • Access to the email address used to create an account for the Services.
  • Sufficient storage space to save communications or a printer.
  • If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Support@OM.cash to your email address book.

You may withdraw your consent to receive electronic communications at any time, by writing to us at the address below. Withdrawal of your consent to receive electronic communications may result in termination of your OM Account or access to the Services. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request.

You have the right to receive communications in paper form. To request a paper copy of any communication at no charge, please write to Omni Mobile, Inc., 15241 Amberly Drive, Tampa, FL 33647, USA, Attn: Customer Support - Legal. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. You agree that such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time emailed to you.

7. Restrictions

You may not use your OM Account to:

  • contravene any U.S., other national, international or other money laundering regulations or conventions;
  • access or monitor any material or information on any OM system using any manual process or robot, spider, scraper, or other automated means;
  • act on behalf of terrorists, terrorist organizations or other high-risk entities, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization for Economic Cooperation and Development, Financial Action Task Force, U.S. Office of Foreign Assets Control, U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, Financial Crimes Enforcement Network (FinCEN), the Office of Foreign Assets Control (OFAC), countries listed by Transparency International (www.transparency.org) as being vulnerable to corruption, or any country or organization, all as may be amended from time to time;
  • act on behalf of a senior foreign political figure, any member of a senior foreign political figure's immediate family or any close associate of a senior foreign political figures;
  • act on behalf of a foreign shell bank;
  • perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
  • copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from OM;
  • use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
  • transfer any rights granted to you under these Terms of Service;
  • use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;
  • use the Services to infringe on the intellectual property rights of others;
  • use the Services for any illegal activity or goods or in any way that exposes you, other OM users, our partners, or OM to harm;
  • refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us; or
  • otherwise use the Services except as expressly allowed under these Terms.

If we reasonably suspect that your OM Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your OM Account, and any of your transactions with law enforcement.

8. Compatible Mobile Devices and Third Party Carriers

We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier.

9. Use of Services

You will not use your OM Account to post, transmit, distribute, or disseminate any material that:

  • is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory
  • encourages conduct that would be considered a criminal offense or gives rise to civil liability
  • breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property
  • contains corrupted data or any other harmful, disruptive, or destructive files;
  • advertises products or services competitive with OM’s or its partners’ products and services, as determined by us in our sole discretion; or
  • in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose OM, its affiliates or its customers to harm or liability of any nature.

We have absolute discretion to suspend or terminate your use of the Services at any time and for any reason without notice. OM may also monitor your use of the Services to detect and prevent fraudulent activity or violations of OM’s Terms of Service.

10. Security

We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.

You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or OM Account or any other breach of security. Notwithstanding Section 19 , in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any OM Account subject to dispute) will be final and binding on all parties.

OM uses blockchain technology to provide the Services. Blockchain is subject to risks, including but not limited to: the existence of technical flaws in the blockchain; targeting of the blockchain by malicious persons; or flaws in the Solidity scripting language. You recognize that OM’s Services are contingent on the blockchain functioning as intended. You recognize the immutability of the blockchain and accept that once a transaction is recorded on the blockchain, it cannot be undone.

11. Communications

You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign- up for a OM account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You are not required to consent to receive promotional texts or calls as a condition of using the Services. Standard message and data rates apply to text messages.

You may opt-out of receiving promotional communications by contacting us at the address below.

11. Modification and Termination

We may terminate these Terms of Service or any Additional Terms, or suspend or terminate your OM Account or your access to any Service, at any time for any reason. We may add or

remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service. We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your OM Account. You may also deactivate your OM Account at any time.

12. Effect of Termination

If these Terms of Service or your OM Account is terminated or suspended for any reason:

  • the license and any other rights granted under these Terms will end,
  • we may (but have no obligation to) delete your information and account data stored on our servers, and
  • we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data.

In addition to any payment obligations under the Payment Terms, the following sections of these Terms of Service survive and remain in effect in accordance with their terms upon termination: 11 (Effect of Termination), 14 (Ownership and Copyrights), 15 (Indemnity), 16 (Representations and Warranties), 17 (No Warranties), 18 (Limitation of Liability and Damages), 19 (Binding Individual Arbitration), 2 0 (Governing Law), 21 (Assignment), and 2 3 (Other Provisions).

13. Security Interest

As security for the performance of your obligations under Terms and Conditions, you grant to OM a lien on, and security interest in, your OM Account balance.

14. License

We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Services, as authorized in these Terms of Service. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time.

15. Ownership and Copyrights

We reserve all rights not expressly granted to you in these Terms of Service. We own all rights, title, interest, copyright and other Intellectual Property Rights (as defined below) in the Services and all copies of the Services. These Terms of Service do not grant you any rights to our trademarks or service marks.

For the purposes of these Terms of Service, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, software, source code, concepts, artwork, photos, animations, sounds, methods of operation, documentation, virtual items, content and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.

16. Indemnity

You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.

17. Representations and Warranties

You represent and warrant to us that: (a) you are at least 18 years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms of Service; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business; (e) you are not the subject or target of any economic or financial sanctions or trade embargoes, and your use of the Services will not cause OM to be in violation of any economic or financial sanctions or trade embargoes; (f) you acknowledge and understand that OM is not acting as an exchange, broker, dealer, fiduciary, investment manager, commodity pool operator, commodity trading advisor, or investment or financial adviser on your behalf; (e.g., you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (h) your use of the Services will be in compliance with these Terms, and (i) you and any person using the Services on your behalf shall promptly notify OM if any of the above representations and warranties become inaccurate or incomplete.

18. No Warranties

THE USE OF “OM” MEANS OM, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).

THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, OM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. OM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

OM does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. OM does not have control of, or liability for, goods or services that are paid for using the Services.

19. Limitations of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OM BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, OM WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

UNDER NO CIRCUMSTANCES WILL OM BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR OM ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF OM IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF OM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

20. Binding Individual Arbitration

You and OM agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST OM. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an

individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1- 16, fully applies. If you are a consumer bringing a claim relating to a transaction intended for a personal, household, or family use, any arbitration hearing will occur within the county where you reside. Otherwise, any arbitration hearing will occur in Tampa, Florida, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. OM will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and OM also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state or federal courts in Florida.

21. Governing Law

You agree that, except to the extent inconsistent with or preempted by federal law and except as otherwise stated in these Terms of Services, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this agreement and any claim or dispute that has arisen or may arise between you and OM. Any action or proceeding by you relating to any dispute with OM must commence within one year after the cause of action accrues.

22. Assignment

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.

23. Taxes

You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Native specifically disclaims any liability for Taxes.

24. Other Provisions

These Terms of Service, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and OM regarding the Services. In the event of a conflict between these Terms of Service and any other OM agreement or Policy, these Terms of Service will prevail and control the subject matter of such conflict. If any provision of these

Terms of Service or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms of Service do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms of Service will be deemed a further or continuing waiver of such term or any other term.

25. Service Provider

Our relationship with you under these Terms of Service is as a service provider. OM is an independent contractor for all purposes. OM is not your agent or trustee.

26. State Disclosures

If you are a California resident, you may report complaints to the California Department of Business Oversight by mail at Department of Business Oversight, Attn: Consumer Services, 1515 K Street, Suite 200, Sacramento, CA 95814 or online through its website at http://www.dbo.ca.gov/Consumers/consumer_services.asp. The California Department of Business Oversight offers assistance with its complaint form by phone at 866- 275 - 2677. If you are a California resident, you have a right to receive communications about your OM Account and the Services by email. To make such a request, send a letter to OM to: 15241 Amberly Drive, Tampa, FL 33647 and include your email address, and your request for that information by email.

Florida residents may contact the Florida Department of Financial Services in writing at 200 East Gaines Street, Tallahassee, Florida, 32399, or by telephone at 1- 800 - 342 - 2762.

Appendix A: Additional Terms and Conditions for Businesses

OM provides businesses with payment processing services (“Payment Services”). The following additional terms and conditions (“Additional Terms”) apply to businesses using the Payment Services. The Terms and Conditions above continue to apply at all times and in all cases. By using the Payment Services on behalf of a business, your business agrees to be bound by these terms and conditions. Defined terms will have the same meaning as those found above unless otherwise re-defined herein.

1. Payment Services

OM allows you to accept ACH and eWallet payments from customers for the payment of goods and services. We are not a bank and do not offer banking services. Our Payment Services allow you to accept ACH payments made from a number of OM-approved financial institutions including, but not limited to: Bank of America, Chase, Capital One, Wells Fargo, Citi, US Bank, PNC, USAA, TD Bank, SunTrust, Regions Bank, Navy Federal Credit Union, BB&T, Charles Schwab, and Fidelity.

In order to provide you with the Payment Services, we contract with payment networks, payment processors, and banks. Pursuant to these contracts, there may be limits on the amount of ACH payments that you can accept without entering directly into agreements directly with the banks. By using the Payment Services, you agree to the terms and conditions of the applicable Commercial Entity Agreement.

2. Authorizations

In connection with the Payment Services, you authorize us to act as your agent for the purposes of holding, receiving, and disbursing funds on your behalf. We will initiate a transfer to settle the proceeds of each ACH transaction that you authorize, minus any applicable fees (“Proceeds”). We will remit to you funds actually received by us on your behalf, minus amounts owed to us, subject to any reserve amounts withheld.

You authorize us to recover funds from you in accordance with these Payment Terms, including your authorization for OM to debit, charge, setoff against and otherwise recover funds from any connected Account, any balance or reserve, payment instrument, linked bank, depository and other account registered in your OM Account.

You authorize us to take the above steps without prior notice to you in compliance with the National Automated Clearing House Association -The Electronic Payments Association Operating Rules and Guidelines (“NACHA Rules”).

3. Unsupported Industries

You may not use the Payment Services for the following businesses or business activities:

  • any illegal activity or goods
  • buyers or membership clubs
  • credit counseling or credit repair agencies
  • credit protection or identity theft protection services
  • direct marketing or subscription offers or services
  • internet/mail order/telephone order pharmacies
  • multi-level marketing businesses
  • prepaid phone cards or phone services
  • rebate businesses
  • bill payment services
  • gambling, casino, or lottery businesses
  • prepaid cards, checks, insurance or other financial services
  • sales of money-orders or foreign currency
  • adult entertainment oriented products or services
  • sales of firearms, firearm parts or hardware, and ammunition, or weapons and other devices designed to cause physical injury
  • sales of age-restricted products
  • hate or harmful products
  • escort services
  • bankruptcy attorneys or collection agencies engaged in the collection of debt, and
  • any other industry we deem, at our sole discretion and without prior notice, unsuitable for use with the Payment Services. 4. Our Fees

To be provided by OM

5. Processing Errors

We will make every effort to resolve any processing errors. We will credit your OM Account for any erroneous shortfall, and you agree that we can recover from you any amount erroneously credited to your OM Account.

We will resolve processing errors committed by you if you notify us of such an error. If you fail to notify us of a processing error within 30 days of the error, you will be deemed to have waived any right to amounts owed to you.

6. Access to Proceeds

We will settle Proceeds with your bank account linked to your OM Account pursuant to the payout schedule described below. If we are not able to debit or credit the bank account you link to your OM Account, that bank account will be de-linked from your OM Account. If you do not have an ACH-enabled bank account linked to your OM Account, you may request a physical check for Proceeds. Check requests may be subject to a processing fee and an identity verification process. You must request a check or link an ACH-enabled bank account to your OM Account in order to receive your Proceeds.

7. Payout Schedule

OM will automatically initiate a payout of Proceeds to your linked bank account at the end of the business day before 5 p.m. ET, except on Friday (which such payout of Friday Proceeds are initiated the following Sunday before 5 p.m. ET).

We may delay payout of your Proceeds pending an investigation, the resolution of any dispute, or as necessary to comply with applicable law or court order, or if requested by a governmental entity.

8. Reserve for Holding Funds

We may withhold funds by delaying payouts of Proceeds or designate an amount of funds that you must maintain in your OM Account or in a separate reserve account (a “Reserve”) to secure the performance of your obligations under any agreement between you and OM. We may require a Reserve at our sole discretion and without prior notice. The Reserve will be in an amount as reasonably determined by us to cover potential losses to OM. The Reserve requirement may be changed at any time by OM in its sole discretion and without prior notice.

If you do not have sufficient funds in your Reserve, we may transfer funds to the Reserve from any funds deposited by you, due to you, or available in your bank account or any other payment source linked to your OM Account.

You grant us a security interest in and lien on any funds held in the Reserve. You authorize us to withdraw funds from the Reserve or any bank account linked to your OM Account, without prior notice to you, to collect amounts that you owe us. You agree to execute any additional documentation required for us to perfect our security interest. Our security interest survives for as long as there are funds in the Reserve.

9. NACHA Rules

By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth by NACHA. NACHA amends its rules and regulations from time to time. OM may be required to change these terms in connection with amendments to the NACHA Rules. In the event of inconsistency between the NACHA Rules and these Payment Terms, and except as otherwise agreed between OM and NACHA, the NACHA Rules shall apply.

10. Additional Representations

With each transaction you process through the Payment Services, you represent, warrant and covenant to us that: (a) the transaction represents a bona fide sale; (b) the transaction accurately describes the goods and/or services provided to the customer; (c) you will fulfill all of your obligations to the customer and will resolve any dispute or complaint directly with the customer; (d) the transaction complies with all federal, state, and local laws, rules, and regulations applicable to you and your business, including any applicable tax, wage and hour, and tip laws and regulations; (e) except in the ordinary course of business, you are not submitting a transaction that represents a sale to any principal, partner, proprietor, or owner of your entity.

11. Account Closure

Closure of your OM Account will cancel any pending transactions. Any funds that we are holding for you at the time of closure, less any amounts owing to us, will be paid out according to your payout schedule, subject to the other conditions in these terms. If an investigation is pending at the time you close your OM Account, we may withhold your funds. If you are later determined to be entitled to the funds, we will release them to you.

12. Survival

The following sections will survive termination of these Additional Terms, in addition to those that survive the Terms of Service: 5 (Processing Errors), 6 (Access to Proceeds), 7 (Payout Schedule), and 8 (Reserve for Holding Funds).