TERMS AND CONDITIONS OF SPENDESK FOR US CLIENTS

This agreement (“Agreement”) sets out the terms under which you may use the Spendesk Card, Services and Platform. If you do not understand any of the terms of this Agreement, please contact us before using the Services. You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement. Please read this Agreement carefully and keep it for future reference. “We”, “Us”, and “Our” refer to Spendesk, Inc.; “You” ,“Your”, and “Yours” refer to the business Client using the Spendesk Services and the Platform to facilitate payment of business expenses by Client’s employees and other authorized users who are authorized to pay business expenses on Client’s behalf.

1. DEFINITIONS

In these terms and conditions, the following terms and expressions shall have the following meanings:

Account means a payment account, provided and maintained in Your name by the Card Issuer, which will be used for the execution of payment transactions in accordance with this Agreement;

Account Balance means the sum of the funds present on Your Account [and available for Your use];

Agreement means this agreement, which You enter into with Us upon Our and the Card Issuer’s acceptance of Your registration as a Client on the Platform, and which is subject to these Terms and Conditions;

Archiving Service means the service as described in Section 7. ATM means an automated teller machine or cash dispenser that accepts Cards issued on a supported Card Network;

Bank means the Card Issuer which holds the Account;

Bank Contractual Documents means the Cards Terms and Conditions, the [Framework Agreement for Payment Services], and any other contractual documents to be entered into between You and the Bank, as they are posted on the Platform, from time to time or otherwise communicated to You;

Business Day means Monday through Friday, excluding federal holidays. Any references to “days” in this Agreement are calendar days unless otherwise indicated;

Card Fees means all the fees payable to the Card Issuer in respect of the Cards, which are deducted from the Account(s) and which are related to Transactions and use of the Card, as such fees are set out and charged by the Card Issuer in accordance with the Card Terms and Conditions;

Card Issuer means the principal issuing member(s) providing Card services in support of the Services, currently Sutton Bank, an FDIC-insured state bank;

Card means any (re)loadable card, issued to the Users and pursuant to the Card Terms and Conditions. Cards are issued by the Card Issuer;

Card Network means the payment card network operated by Visa®, Mastercard® and/or any other similar card network, as may be indicated on the Card. Each Card is issued by the Card Issuer, pursuant to a license from the indicated Card Network. Your Card may be eligible to make Charges and other transactions over additional card networks, as indicated on the Card, in which case those networks will also be included in references to Card Networks;

Card Terms and Conditions means the terms and conditions (as may vary from time to time and as published on the Platform or as otherwise communicated to the Users) between You and the Users on the one hand and the Issuer on the other hand relating to use and operation of the Cards, including any specific terms and conditions relating to an individual Card;

Charges means sums payable by You to Us in respect of the Services and the use of the Cards, including the Fees;

Client means a legal person (other than an individual) subscribing to our Services via the Platform for management of business expenses. The Client’s role and permissions are described in Section 4.1;

Credentials means the proof of identification which must be used by any User in order to identify themselves with US for any instruction or request entered into the Platform in relation to the issuance, operation and management of their Card(s); such proof may include an address, phone number, PIN code, or any other security features which are necessary or appropriate to implement with a view to safeguarding Your privacy, rights and interests and satisfying applicable law; the type of Credentials required by Us may vary from time to time and will be indicated on the Platform;

Fees means the fees payable to Us for the Services, as they may vary from time to time in accordance with the Terms; Fees may be linked to certain Services plan, and are disclosed on the Platform; they are deemed accepted by any User upon his/her registration on the Platform;

Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired;

Payment Services means (i) Execution of payment transactions (payment card), including transfers of funds on an Account; (ii) Services enabling cash withdrawals from an Account; (iii) receipt of funds into an Account transferred by Client using Client’s payments services; and , (iv) issuing of payment instruments and (iv) Acquiring of payment transactions. Payment Services are provided by one or more Banks;

Personal Information means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, where “consumer” means a natural person. Platform means the electronic facilities provided by Us in order to provide You and Your Users access to and use of the Services, i.e., the website operated by Us that is available at https://www.spendesk.com (and/or any other website that we may notify to You from time to time), or any application that may be used on a computer and/or mobile device and which is made available by Us;

Services means access to the Platform and related customer support services provided by Us to You and the Users in connection with the use of the Platform and the Payment Services, in accordance with the functionalities, features and conditions set out on the Platform, as they may vary from time to time. The Services, to the extent that they relate to the Cards and the associated Payment Services, consist of communication services between You and the Users on the one hand and the Banks, which are the entities issuing the Cards and/or providing the Payment Services inherent therein, on the other hand; Services include the access to certain features of the Platform for the management of the Cards issued at the request of the Users;

Shortfall means an insufficient balance available in an Account to cover Transaction Charges and Card Fees incurred on a Card; Transaction means any payment transactions that are covered by the Payment Services ;

Transaction Charges means the amount of the payment or withdrawal made with a Card, inclusive of transaction costs charged by the payee or the ATM provider;

Transaction Data means any information arising from or obtained in the processing of a Transaction;; and User means any person authorized by Client to expend the funds loaded on a Card and the Account(s), subject to the Bank Contractual Documents and these Terms and Conditions.

2. PURPOSE

Spendesk provides You with an online corporate finance management Platform to assist you in managing your business corporate expenses and purchases. Through the Use of our Services, You will be given access to Payment Services provided by one or more Banks that You can manage through the Spendesk Services.

The purpose of these Terms and Conditions (hereinafter the or Our “Terms”) is to define how to use Our Services and Our Platform, Our obligations as a service provider and Your obligations as a customer, in accordance with Bank Contractual Documents to which You must agree.

3. ACCESS TO THE SERVICES

3.1 Registration.

If You fulfill the eligibility criteria disclosed on the Platform (as may vary from time to time),You may apply to register for the Services and the Cards, by following the registration steps described on the Platform, including acceptance of the Terms, the Fees, and the Bank Contractual Documents. We may subject the completion of Your registration to the condition that the You provide satisfactory evidence that the person completing the registration process is authorized to act on Your behalf for such purpose, including for the acceptance of Our Terms and Bank Contractual Documents in Your name and for Your account. We may refuse the Services to any applicant at Our exclusive discretion.

3.2 Scope of Services.

The Services may be used in order to apply to the Banks rules, for notifying Your acceptance of Our Terms and the Bank Contractual Documents, and for the determination of the Users, certain features of the Payment Services, and the conditions under which the Payment Services may be used by any such User, all in accordance with the functionalities and options proposed from time to time by the Platform. Except for the application process for Cards (including acceptance of the Bank Contractual Documents), the Services are at all times conditioned upon the availability of a positive balance of the funds paid by You to the Account(s) and that You have a valid and enforceable agreement in force with the Banks in respect of the Payment Services.

3.3 Availability of Services.

Certain Services are accessible only to the Client or the Users who identify themselves by using their Credentials and otherwise complying with the procedures for authentication of Users as prescribed on the Platform. All Services may be temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of other causes beyond Our reasonable control, including for the prevention of fraudulent access and use of the Platform. We will use reasonable efforts to provide advance notice of any material service disruption. Any Service to the Client or any User may also be suspended where We have reasonable grounds to suspect that any of them are not using the Services in compliance with the Terms. In general, and subject to Our obligations under applicable law or regulation, We may at any time and/or without notice, withdraw, cancel or suspend any particular Service or facility provided to You or any User or We may refuse to relay to the Banks requests for the re-issuance or replacement any Card or other materials.

3.4 Payment Services restrictions.

We do not make any representation or warranty to You or any User in relation to the Payment Services. We do not guarantee that the Payment Services, and particularly the Cards, can be used anywhere or be accepted by any merchant, or that the Card Network will authorize any particular Transaction. We shall not be liable for any loss or damage suffered in the event that an ATM or merchant refuses to accept the Card (in whole or part), or if a Transaction is not authorized, or if the Card Issuer and/or Card Network cancels or suspends a Card. Similarly, We shall not be liable to You or the User for any loss or damage You or any User may suffer as a result of your Users' use or inability to use the Card and in addition to any other indemnity that you provide Us pursuant to this Agreement, You will indemnify Us against and hold Us harmless against any and all actions, claims, costs, damages, demands, expenses, liabilities, fines, sanctions, losses and proceedings We directly incur or which are brought against Us by a User. In order to use the payment functionality of our application, you must open a "Dwolla Platform" account provided by Dwolla, Inc. and you must accept the​ ​Dwolla Terms of Service  and​ ​Privacy Policy​. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the​ ​Dwolla Terms of Service​. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla account activity, and can be reached by email to the following address: support@spendesk.com. You expressly authorize our service provider, Dwolla, Inc. to originate credit transfers to your financial institution accounts. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. Dwolla’s Privacy Policy is available here [https://www.dwolla.com/legal/privacy/].

3.5 Your Representation.

You are Our customer and You benefit from the rights and are bound by the obligations set out in the Terms. You agree to use the Card only for business purposes and not for personal, family, household or other purposes. You agree to use and to permit Your authorized Users to use Your Card(s) only in the manner and for the purposes described in this Agreement and the Bank Contractual Documents. You will only use the Card for transactions that are legal. We will not be liable if you engage in an illegal transaction. You agree to take reasonable precautions to prevent unauthorized usage of Your Card or disclosure of your PIN code.

You shall be deemed to act, pursuant to this Agreement, through any User and any act, decision, instruction or request entered by any User within the authority granted to such User by You with his/her Credentials on the Platform shall be deemed to be Your act, decision, instruction or request. As a result, and without limiting the generality of the above, You agree to indemnify Us against any and all actions, claims, costs, damages, demands, expenses, liabilities, fines, sanctions, losses and proceedings We directly incur or which are brought against Us if You, or any User, have acted fraudulently, been negligent, failed to comply with Your legal obligations, or have misused the Card and Payment Services or any of the Services.

3.6 Dealing with Banks.

Registration requires a payment by You to the Account(s) in amounts that We specify and Your acceptance of the Bank Contractual Documents. By registering, You authorize Us to act in Your name and for Your account with the Banks (including for the transfer of Your and Users’ Personal Information on your behalf and acceptance of the EMI Contractual Documents), except that We shall not be responsible for administration or execution of payments to be made to the Account(s). In general, by accepting the Terms, you give Us the power to relay to the Banks, in Your name or for Your account, any instruction from the Client or any User in relation to the Account(s) and the Card(s). You acknowledge and agree that (i) Services, Accounts and Payment Services provided by Us and the Banks in connection with the Services and the Platform do not include services to consumers or payments for any consumer purpose, i. e., for personal, family or household purposes, and further that (ii) You and Your Users shall not provide any nonpublic Personal Information to Us or to Banks in connection with the Services, including the Payment Services.

3.7 Personal Information.

We may require You to provide certain information about You and the Users. This may include information We collect on behalf of the Banks. Such information must be supplied to Us in accordance with the guidelines and steps described on the Platform. You understand and represent that all information communicated by You or the Users pursuant to the Terms is accurate, complete and not misleading in any material respect. All the information that We receive about You and the Users may be sent to or otherwise shared with the Banks and Our subcontractors involved in the communication between Us and the Banks. We may also share information you have provided in order to comply with government agency, court order, or other legal or administrative reporting requirements; with your written permission; to our employees, auditors, affiliates, service providers, or attorneys as needed; as necessary to fulfill our obligations under this Agreement or to enforce this Agreement; or in accordance with our current Privacy Policy. You acknowledge and agree that this Agreement and the Services are not to be used for any personal, family or household purposes.

4. RULES APPLICABLE TO USERS

4.1 Role of Client.

The Client is responsible for managing the Account(s) and Payment Services, including: inviting Users to the Platform, requesting the issuance of physical/plastic Cards, allocating spending limits to the Cards, ordering credit transfers, preventing a Shortfall at all times, and requesting any redemption from the Account(s). In the case where the Client is not one of Your company directors, You acknowledge that You grant the Client with the requisite permissions, and that We shall not be held responsible for any fraudulent or abusive use of our Services by the Client.

4.2 Delegations.

The Client may delegate his/her management powers, in whole or in part, to any Users and set the powers of such Users in accordance with the features proposed on the Platform. Such delegable powers may include, but are not necessarily limited to, the following abilities: designate other Users, request the issuance of a physical/plastic Card, allocate spending permission to the Cards, oversee any payments made with any Card, order payment transfers. Such permissions may be grouped by Us into permissions sets, so that powers may be delegated in accordance with the permissions included in such sets. In that case, the Client may not select in his/her discretion the combination of powers/permissions that he/she wants to delegate, and (ii) the persons to whom such powers are delegated may be described in accordance with the terminology determined by Us from time to time in Our discretion (“Administrator”, “Requester”, “Controller”, etc.). All references to the Client, in any clause of Our Terms, are deemed to include references to the persons to whom the Client has delegated the power to take the action contemplated by such clause.

4.3 Authorizing Users.

The Client may designate individuals over the age of 18 years old to become Users. Access to the Services by Users is subject to a registration by such Users on the Platform in accordance with the process described therein. We may require the use of certain multi-factor credentials to authenticate the User’s identity when using the Payment Services or delegating sensitive rights.

4.4 Warranties about Users.

You warrant to Us that all Users (i) shall be informed of, and insofar as necessary shall accept and agree to (e.g., with respect to communication of the Personal Information of the Users as defined in Section 11.1 below), the conditions of issuance and use of the Cards and use of the Payments Services, in accordance with Our Terms and the Bank Contractual Documents, as they may be amended from time to time, and in accordance with any other specific terms and conditions that may apply, including the Privacy Policy, (ii) shall register for and use the Services and the Payment Services in accordance with such Terms and Bank Contractual Documents, (iii) shall be informed of the expiration, cancellation, or variation of the funds allotted to their Cards for any reason, including the termination of the Agreement or the Agreement between You and the Banks, and (iv) have been informed of and, where required, have consented to, the collection and use of their Personal Information in accordance with these Terms and/or Your instructions.

4.5 Obligations of Users.

Any User must: (a) maintain the confidentiality of their Credentials to access the Platform; (b) disclose his or her true identity when subscribing to the Services (no alias, etc.); (c) not breach or attempt to breach the security of the Platform and related systems including, without limitation, accessing or attempting to access any data not intended for such User; (d) refrain from interfering with the proper operation of the Platform or take any action which is likely to cause any Services to be interrupted or degraded; (e) not use the Platform or any other Services, including Payment Services, other than for lawful purposes relating to legitimate business activities; and (f) not exceed the maximum balance limit on each Card.

4.6 Complaints.

Any complaint shall be sent by email to the following address: support@spendesk.com.

5. ACCOUNTS

5.1 Opening of the Account.

You agree to respect the Bank Contractual Documents, their schedules, and Our Terms and Conditions and Privacy Policy in order to open an Account in Your name. Following Your acceptance of these Documents and at the sole discretion of Spendesk and relevant Banks, a payment Account will be opened by the Bank in Your name.

5.2 Funding of the Account.

You can fund Your Account by ACH or transfer from your bank to Your Account at the Bank’s routing address that we provide to you. Funds transferred by ACH shall not be considered received until three (3) Business Days after receipt by the Bank holding your Account unless we advise you of an earlier date. We shall only accept bank transfers that are coming from the bank that You declared during the KYC process. You may also fund your Account by making a card payment on the Platform. This operation may be subject to fees, which will clearly be indicated before You confirm the card payment.

6. CARDS

6.1 Issuance.

Cards are issued by the Card Issuer to a User at the Client’s request, subject to the User’s registration with Us, acceptance of the Card Issuer Contractual Documents, and ongoing compliance with Our Terms and Conditions and other related requirements. Cards are issued at the Card Issuer's discretion at all times. We are not responsible for any rejection or delay by the Card Issuer to issue the Cards.

6.2 Application.

Subject to compliance with Our Terms and the Card Issuer Contractual Documents, Cards are issued only if the application is submitted via the Platform and in accordance with the requirements set out on the Platform (e.g., including the answers to all questions on Users’ identification details), as they may vary from time to time. We will arrange for the distribution of Cards issued by the Card Issuer directly to the relevant User.

6.3 Loading Cards.

Cards are loaded with funds in US dollars credited to the Account upon Your request through the Platform and in accordance with the instructions set out at the appropriate section of the Platform. The funds allocated to the Card(s), as requested by Users, will be allocated directly and immediately from funds available in the Account.

No funds will be allocated to or loaded on any Card in excess of the Account Balance at the time of the allocation.

Instructions to allocate funds to any Card must be authorized in accordance with the parameters set by You on Your Account via the appropriate section of the Platform. Depending on the roles and permissions set by the Client, Users may access information about Account Balances, Charges, Card transactions and Card fees via the Platform.

6.4 Card Management.

The management of the Account(s) and of the Card(s), including the determination of the funds to be allocated to each Card, is Your sole responsibility and at Your sole risk. You must in particular ensure that there is no Shortfall at any time. We will not be liable for any loss incurred as a result of errors made by You or the Users.

6.5 Our Role In Relation To The Cards.

All Your and the Users’ rights and obligations in relation to the Cards are subject to the Card Issuer Contractual Documents and Our only role, through the Platform, is to facilitate communication between You and the Users on the one hand, and the Card Issuer on the other hand in relation to the Cards (application process, registration, funding, requests for additional Cards, Cards distribution, etc.).

6.6 Card & ATM Fees.

All Card Fees will be charged directly to the Card which incurred the charge and will be automatically deducted from that Card, in accordance with the Card Terms and Conditions. Card Fees may vary from time to time in accordance with the Card Terms and Conditions. We will notify You in advance of any changes shortly upon receipt from the Card Issuer of all relevant information. ATM fees and foreign exchange charges are charged directly to the Card at the time of Transaction. Surcharge ATMs will make a charge in addition to any Card Fees, as set out by the ATM provider. This will also be automatically deducted from the balance of the Card at the time of withdrawal. If there is a Shortfall, You understand and agree that any Card Fees (plus any Transaction Charges) applied to Cards shall be reimbursed by You immediately on demand. You understand and agree that this may include fees charged by the Card Issuer under the Card Issuing Agreement. You further agree that We may at Our sole discretion use available funds on the Account(s) to cover any outstanding Shortfall on such Cards, including funds that may be allocated to other Cards, in which case we shall not be responsible for any Shortfall caused by such reallocation of funds.

6.7 Lost & Stolen Cards.

We will not be liable for any loss caused or suffered as a result of lost, stolen or unauthorized use of a Card. If a Card is lost or stolen, some or all of the value of the funds on the Card may be lost, subject to any rights that You may have under applicable law. Our role will be limited to providing You with reasonable assistance in challenging unauthorized payments and seeking refunds in accordance with applicable laws and the Card Terms and Conditions.

6.8 Redemption from Card.

Subject to the payment of any appropriate Charges, the Client may request redemption of unspent funds (in whole or in part) on a Card at any time. This request shall be made through the Platform. Such funds will be removed from the Card balance and credited to the relevant Account. Redemption of the funds is subject to the Card Issuer Contractual Documents.

6.9 Cancellation.

Clients may cancel a Card via the Platform at any time in accordance with the Card Terms and Conditions. Following such cancellation of a Card, We will not be liable for any funds already spent on the Card prior to any valid request to cancel. Any unspent funds allocated to the Card will be returned to the relevant Account. It is Your responsibility to see to it that Cards are cancelled when appropriate, including when authorization should be revoked (e.g., when a User leaves Your organization).

7. ARCHIVING SERVICE

7.1 Upon subscription.

You agree that Your subscription to Our Archiving Service authorizes Us to electronically sign on Your behalf all the invoices and/or receipts received from Your employees or agents, to be uploaded on Our Platform.

7.2 Archiving process.

Our Archiving Service is based on a certified process (i) generating a PDF file of the invoice and/or of the receipt, (ii) signing the PDF file with a server stamp based on a qualified certificate, and (iii) archiving the invoice and/or the receipt onto an ISO 27001 certified server located in the European Union during the entire period of eleven (11) years. The invoices and/or receipts, as well as the signature for the invoices hereinafter referred as the “Contents” are sealed with a qualified eIDAS timestamp service to provide undeniable proof of integrity. This certified process relies on a reliable audit trail.

8. PAYMENT OF CHARGES

8.1 Fees & Invoices.

You must pay to Us the Fees disclosed on the Platform in relation to the Services for which Users have registered, depending on the Services subscribed to by the Users as authorized by You and the applicable Services plan. Our invoices for the Fees shall be available on the Platform.

8.2 Allocation to Accounts.

All Charges shall, when payable, be charged directly to the relevant Account and will be automatically deducted from that Account. If You have several Accounts, We will charge the account which incurred the charges but We may decide in Our discretion to charge in whole or in part any of Your Accounts.

8.3 Insufficient Balance.

In the event where the Account Balance is not sufficient to cover and pay Charges, You will no longer be able to issue new Cards or to use already issued Cards (or to make Payment Orders).

8.4 Disputed Charges.

If You dispute any Charges, You must let Us know within thirty (30) days after the date that We invoice You. You will lose the right to dispute if You fail to do so.

9. TERMINATION

9.1 Termination.

Unless stated otherwise in particular conditions, the Agreement is made for an indefinite period. Either party may terminate the Agreement at any time upon fifteen (15) days written notice to the other party. We may terminate Our agreement with You at any time and without notice if You or any User fails to comply with these Terms or with the Bank Contractual Documents, or if the Card Issuer ceases to issue Cards for any reason. Any termination of the Agreement, howsoever caused, shall be without prejudice to any obligations or rights of either of the parties which may have accrued prior to termination or expiration and shall not affect any provision of the Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination or expiration.

9.2 Termination upon Redemption of funds.

Subject to the payment of any appropriate Charges, the Client may request redemption of any funds in the Client’s Account(s), including unspent Electronic Money, at any time by provide notice to Us in accordance with section 11.5. Such Funds will be debited from the Accounts and will be sent to the bank account opened in Your name as indicated by You during the Registration process (as may be subsequently changed by You if such change has been notified to Us in accordance with section 11.5). A request for redemption of Funds (i) shall be deemed to apply to all the Funds in the Account, with the express exclusion of any partial redemption and (ii) will constitute termination of this Agreement. We will use reasonable efforts to transmit the repayment order to the Banks and redeem funds within 15 business days following receipt of the request for redemption.

9.3 Consequences of Termination.

On termination of the Agreement, the Accounts and Services, including Payment Services and access to the Platform, will be cancelled and suspended in their entirety. You shall cease to use the Services in any manner and We shall not have any obligation to act on any of Your requests (e.g., for the distribution of new Cards, the allotment of funds to any Account or Card, etc.). All of Your Accounts will be closed and the funds available on Cards will be debited from the Cards and repaid to You after a suitable time reasonably determined by Us to ensure that all outstanding Transactions, return items, credits, penalties, assessments imposed by networks and all other obligations have been paid. Repayment of the balance of Your funds is to be made by the Card Issuer by debiting the Account.

9.4 Termination of Archiving Service.

You may terminate Your use of the Archiving Service upon six (6) months’ notice, provided such notice satisfies the requirements of Section 11.5 of this Agreement.

If the Archiving Service ends or if the Agreement is terminated, You may continue to have on-line access to the archived Contents for the remainder of the archiving period, subject to fulfilling all Your obligations (and particularly Your payment of all sums owed for the Archiving Service).

In addition, You are entitled to a soft copy of all Your archived Contents upon request by written notice no later than one (1) month following termination of the Agreement or the Archiving Service. Upon fulfillment of any such request, the archiving period will be considered complete and any online access will cease.

Your access to Our Platform will cease at the conclusion of the archiving period unless You and We arrange for alternative terms of use and access.

At the end of the archiving period (eleven (11) years), the procedure for return on a soft copy or destruction of the archived Contents as referred to below shall apply.

9.5 Return or destruction of the archived Contents.

At the end of the archiving period (eleven (11) years), You may request at Your own discretion that We: destroy all the archived Contents, or return all the archived Contents to You, or *return the archived Contents to the archiving provider designated by You.

The above return of a soft copy of Your archives shall be invoiced directly to You by Our subcontractor at the then applicable price.

Notwithstanding the above provisions, We may retain copies of Contents provided by You in connection with the Services, notably for statistic and/or evidentiary purposes, within the prevailing legal period due to (i) internal rules and procedures as applicable, (ii) automated IT back-up procedures or (iii) a legal, judiciary or regulatory obligation (including stock market regulations).

10. LIABILITY

10.1 Indemnity.

You agree to indemnify and hold Us, Our affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Your usage of Our Platform or Services, Your breach of this Agreement, any additional legal terms, or Our Privacy Policy, Your unauthorized use of any of Our Intellectual Property, or Your alleged violation of any other rights of a third party.

10.2 Exclusion of Warranties.

WEBSITES, CONTENT AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." EXCEPT AS OTHERWISE STATED, WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY WEBSITE, CONTENT, OR OTHER DATA, INFORMATION OR THIRD PARTY CONTENT THAT MAY BE PROVIDED THROUGH ANY WEBSITE. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE WEBSITES, CONTENT, AND OTHER SUBJECT MATTER OF THESE TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OUR PLATFORM OR EMPLOYEES, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS.

WE MAKE NO WARRANTY THAT (i) ANY WEBSITE OR SERVICE WILL MEET YOUR REQUIREMENTS, (ii) A WEBSITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY WEBSITE OR SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY CONTENT OBTAINED BY YOU THROUGH ANY WEBSITE OR SERVICE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS WILL BE CORRECTED. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF A WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

10.3 Limitation of Liability.

We shall not be liable to You (i) for loss of business, loss of profits, loss of data, loss of reputation or goodwill, regulatory fines or sanctions incurred by You or the Users, or for any form of indirect loss, whether arising from negligence, breach of contract, tort, breach of regulatory or statutory duty or otherwise even if We had been advised of the possibility of such losses, (ii) in respect of any failure by or insolvency of the Banks, and (iii) in any way for any interest or claims of any third parties in respect of the Account and/or the Cards, except as required by law or regulation.

TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO YOU OR ANY USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE OUR WEBSITE, OUR PLATFORM OR OUR SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY OF OUR SERVICES OR OUR PLATFORM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY; (v) ANY OTHER MATTER RELATING TO A WEBSITE OR OUR PLATFORM OR SERVICES; or (vi) ANY LOSSES OR DAMAGES INCURRED BY YOU AS A RESULT OF THIRD PARTY CLAIMS. You agree that We are not responsible or liable for any damages which are caused by Your action or by the action of Your employees or agents in connection with the performance of Our Services or use of Our Platform. You understand and agree that this limitation of liability is a material part of these Terms and that We would not allow You to use Our Platform or Services in its absence.

You also agree that You are solely responsible for Your tax obligations. You expressly undertake responsibility for ensuring the invoices and/or receipts transmitted to or posted on Our Platform are complete and accurate. You understand and agree that any tax reporting or other obligations are wholly Your responsibility.

WHEN WE ARE LIABLE, OUR TOTAL LIABILITY TO YOU WILL BE LIMITED IN AGGREGATE TO THE CHARGES PAID BY YOU TO US DURING THE TWELVE MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT TRIGGERING OUR LIABILITY, TO THE EXTENT PERMITTED BY LAW.

Unless there is a shorter applicable limitation period, any action arising from or related to Our Services shall be brought against Us within a maximum period of one (1) year from the date on which You had knowledge, or should have known of the facts at the origin of the action.

As the Agreement is entered into between You and Us, any claim or action arising hereunder against Us may only be initiated by You.

10.4 Unauthorized Transactions.

If the Client or any User reasonably believes that any Transactions on the Account(s) or the Platform were not authorized or have been posted in error, or an unauthorized third party has gained access to the Platform (a "Disputed Transaction"), the User should immediately notify Us and provide sufficient detail to enable Us to investigate the Disputed Transaction. You and the User will be liable for any loss arising from a Disputed Transaction as a result of the Client or any User's failure to keep his/her credentials in the strictest confidence or to comply with Our Terms and the Card Issuer Contractual Documents. In Our capacity as communication channel between You and the Card Issuer, We can not and do not assume liability for Disputed Transactions. Your rights in the case of Disputed Transactions shall be against the Card Issuer and shall be subject to applicable rules of law and the Card Terms and Conditions.

11. MISCELLANEOUS

11.1 Data Protection.

11.1.1 Data Protection.

We will only use Personal Information and Transaction Data as required to provide the Services and access to the Platform to You, to fulfill our obligations to regulatory authorities, or as otherwise disclosed in our Privacy Policy, which is available on our website. Protection of Personal Information and Transaction Data is very important to us. Our Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Information and Transaction Data You provide to us or that arises from Your use of the Services. You agree to review the terms of our Privacy Policy, which we update from time to time, and which forms part of this Agreement. The Bank’s Privacy Policy, available at https://www.suttonbank.com/_/kcms-doc/85/49033/WK-Privacy-Disclosure-1218.pdf, will apply to the Bank’s usage of any of Your Personal Information and Transaction Data. You agree to review the terms of the Bank’s Privacy Policy, as updated by the Bank from time to time. You agree that We, the Card Issuer, and the Banks may share your information for the purposes of providing the Services and/or access to the Platform.

You are solely responsible with regard to usage and security of Your Credentials and any activities that occur under Your account. You shall not use the account of anyone else at any time. You shall ensure that Your Users are aware of and adhere to these obligations.

We use commercially reasonable efforts to implement technical, administrative, and physical safeguards to protect the functionality of the Services and the functionality and availability of the Platform. However, no security system is perfect, and You agree that We cannot provide perfect security.

11.1.2 Records

We maintain a written log of the processing of Personal Data we perform on Your behalf. Our log includes the following information: (i) the categories of recipients to whom the Personal Data have been or will be disclosed; (ii) to the extent that Personal Data is transferred to a third party outside the EEA, a list of such transfers (including the name of the relevant non-EEA country and organization), and documentation of the suitable safeguards in place for such transfers; and (iii) where possible, a general description of the technical and organizational security measures implemented by any subcontractor . We will provide the supervisory authority with a copy of such log upon request.

11.1.3 Subcontractors

You understand that we rely on a number of business partners and suppliers to provide the Services and agree to Us engaging a subcontractor to process Personal Data on Your behalf, to the extent necessary to provide the Services. We may continue to use those subcontractors already engaged at the date of this Agreement. We will ensure that any such subcontractor is bound by data protection obligations equivalent to those set out herein. A list of our subcontractors at the date of contracting is available on our Platform. We will notify You of any significant changes to our subcontracting policy such as the addition or replacement of a subcontractor by updating the list of subcontractors available on our Platform. Absent any written objection on your part within fifteen days of the notification of a change, you will be considered to have consented to such a change.

11.1.4 Sharing Personal Data with the EMI’s

You understand that the EMI’s will act as data Processor over any Personal Data shared with the EMI’s on Your behalf in accordance with section 3.6 above.

11.1.5 Warranty

You warrant that You comply with all applicable Data Protection Laws regarding the Personal Data processed by Us on Your behalf, and in particular that the processing of Personal Data has a valid legal basis, that any Personal Data provided by You have been lawfully collected, that Users have been informed of the nature and purpose of, and where relevant, have consented to the processing of Personal Data performed by Us on Your behalf.

11.2 Intellectual Property Rights.

All Intellectual Proprietary Rights to any of Our Services, Platform, Website, or other content belongs to Us. Nothing in these Terms shall be deemed to give You the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative words from, transfer, or sell any of Our Services, Platform, Website, or other of our content, or access thereto for any reason, unless otherwise expressly permitted by the Terms. You hereby agree to assign and do assign to Us (and We accept such assignment) any modifications or derivative works of any of Our Services, Platform, Website, or other content made by You without remuneration of any kind.

You agree to not modify, decompile, or reverse engineer Our Services, Platform, Website or other of Our content. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works, including Our Services and Platform, is an infringement of the copyright holder’s rights and a breach of these Terms.

If You provide Us with any feedback or suggestions, You herby assign to Us all rights in the Feedback and agree that We shall have the right to use such feedback or suggestions and related information in any manner We deem appropriate without a duty of accounting to You. We will treat any feedback or suggestions You provide as non-confidential and non-proprietary.

11.3 Amended Terms and Fees.

We reserve the right to change the Terms and Fees at any time, but if We do, We will bring such change to Your attention by placing a notice on the Platform and/or by sending You an email. The revised Terms and Fees will be effective one month after the notification of the new Terms and/or Fees. If You do not agree with such revised Agreement, You must terminate the Agreement and close Your Account prior to the effective date of such new Terms and/or Fees. The continued Use of the Services, including Payment Services, and the Cards by the Client and the Users after the effective date of such changes shall be construed as Your acceptance of such changes.

11.4 No Partnership or Agency.

Nothing in this Agreement is intended to, or shall operate to, create a partnership or joint venture between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

11.5 Notices.

Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to Us by email to support@spendesk.com. We may provide You with any notices required or allowed under these Terms by sending You an email to any email address You provide to Us, provided that in the case of any notice applicable both to You and other Users, We may instead provide such notice by posting on the Platform. Notices provided to Us will be deemed given when actually received by Us. Notice provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.

11.6 Waivers.

Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that right or remedy. A waiver, which may be given subject to conditions, of any right or remedy provided under this Agreement or by law shall only be effective if it is in writing. It shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

11.7 Severability.

To the extent that any provision in this Terms shall be found to be invalid or unenforceable, such provision shall be modified in such a manner so as to make this Terms as modified, legal and enforceable under applicable laws and the balance of the provisions of this Terms shall not be affected thereby. Any such modification shall, to the greatest extent possible, be intended to achieve the parties' original commercial intention.

11.8 Governing Law.

The interpretation of the rights and obligations of the parties under these Terms, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the state of California, U.S.A., as such laws apply to contracts between residents of the state of California, without regard to conflict of laws provisions thereof.

11.9 Dispute Resolution.

You and We will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to these Terms, including the formation, validity, binding effect, interpretation, performance, breach or termination, of these Terms and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to these Terms (each, a "Dispute"), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within fifteen days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association ("AAA") then in effect (the "Rules"). Either You or We may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by Us. If We are unable, for any reason, to solely appoint a single arbitrator within 30 days (the "Initial Period") after either party delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Us in the state of the state of California, U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.

11.10 Electronic Communications.

Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. This Contract may be executed in counterparts and each counterpart shall be deemed an original hereof. This Contract may be executed by signatures transmitted via facsimile transmissions or electronically by Portable Document Format (PDF) which shall be binding on the parties hereto and deemed original signatures hereof. Any notices and disclosures required or permitted under this Agreement may be given by electronic mail addressed as indicated in Section 11.5 above (Notices) and disclosures may also be provided electronically by posting to the Platform.