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Fuego On-Demand Pay Services Agreement

This Fuego On-Demand Pay Services Agreement (the “Agreement”) is between Fourth Fintech Solutions, LLC (“Fourth”) and party identified as Customer or Subscriber on an Order or Statement of Work that incorporates this Agreement (the “Customer”). Fourth and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

BY ACCEPTING THE TERMS OF THIS AGREEMENT, CUSTOMER AGREES THAT ITS USE OF FOURTH’S FUEGO SERVICES (AS DEFINED BELOW) ARE SUBJECT TO AND GOVERNED EXCLUSIVELY BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER THAT IS A COMPANY OR OTHER LEGAL ENTITY, YOU WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, SUCH ENTITY MAY NOT USE THE SERVICES AND YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES.

This Agreement is effective on the earlier of the date that Customer accepts the terms of this Agreement, signs an Order Form (“Order”) that incorporates this Agreement, or the date that Customer or its Employees begin receiving, accessing or using the Fuego Services (“Effective Date”). In the event of any conflict between the terms of this Agreement, a Statement of Work, or an Order, such conflict shall be governed by the terms of the Order, Statement of Work, and Agreement, in that order.

THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR YOUR RECEIPT OF, ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, SUIT, OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 9(f) CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

This Agreement (including its Exhibits) constitutes the entire agreement between Customer and Fourth. Any prior agreements, promises, negotiations, or representations, either verbal or written between the parties are of no force and effect and are superseded in their entirety by this Agreement. The Exhibits to this Agreement include the following:

NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, the Parties hereto agree as follows:

FUEGO SERVICES
1. General. Customer desires to offer the ability to obtain the services described below (the “Fuego Services”) to its employees (each an “Employee” and together, “Employees”). The Fuego Services include, without limitation, the EWA Services, Tip Payout Services, Fuego Direct Deposit, One-off Payment Services, the provision of access to the Fuego application on an Employee’s smartphone or other mobile device, and other services that Fourth may elect to offer in connection with the aforementioned services. Fourth will begin providing the Fuego Services on a date mutually agreed upon by Fourth and Customer following fulfillment the Customer obligations identified in this Agreement (including any associated Statement of Work). Customer will make commercially reasonable efforts to fulfill such obligations expediently. Provisions related to the specific Fuego Services listed below (the EWA Service, TPO Service, OP Service, and FDD Service) are applicable only to the extent the Customer’s service configuration includes such service.
2. EWA Service: For the purposes of this Agreement, (a) “EWA Draw” (Earned Wage Access Draw) means a portion of an Employee’s earned but unpaid wages that an Employee may elect to have paid to the Employee before the Customer’s scheduled payroll payment date; and (b) “EWA Services” means (i) providing access to EWA Draws (as defined below); (ii) providing access to proceeds of EWA Draws in one or multiple U.S. bank accounts designated by the Employee; and (iii) providing access to proceeds of EWA Draws on general purpose reloadable prepaid cards. The provision of an EWA Draw to an Employee is not a credit transaction and Fourth will not charge any interest on an EWA Draw.
3. TPO Service: For the purposes of this Agreement, (a) “Tip Payout” or “TPO” means a payment of all or part of the tips an Employee is eligible to receive prior to the Customer’s scheduled payroll payment date; and (b) “TPO Services” means (i) providing access to Tip Payouts; (ii) providing access to proceeds of Tip Payout funds in one or multiple U.S. bank accounts designated by the Employee; and (iii) providing access to proceeds of Tip Payout funds on general purpose reloadable prepaid cards. The provision of a Tip Payout is not a credit transaction and Fourth will not charge any interest on a Tip Payout.
4. Fuego Paycard Service: For the purposes of this Agreement, (a) “Fuego Paycard” means enabling an Employee to be offered a Fuego Paycard following an unsuccessful application for the Fuego Prepaid Card solution because they have been deemed ineligible due to being under the age of consent or unable to have their ID verified.
5. OP Service: For the purposes of this Agreement, (a) “One-off Payment” or “OP” means a one-time payment that an Employer’s can pay to an Employee at the Employer’s discretion; and (b) “OP Services” means (i) providing the ability to make One-off Payments; (ii) providing access to use a One-off Payment to fund of a U.S. bank account of an Employee at the direction of Employer; (iii) providing access to use a One-time Payment to fund a general purpose reloadable prepaid card; and (iv) providing access for the Employer to order, register, and fund one-off Fuego Prepaid cards. The provision of a One-time Payment to an Employee is not a credit transaction and Fourth will not charge any interest on an OOP. Fourth may limit the maximum amount of a One-off Payment in its sole discretion.
6. FDD Service: For the purposes of this Agreement, “Fuego Direct Deposit Services” or “FDD Services” means enabling an Employee to give account information for a Fuego Prepaid Card or Fuego Paycard to such Employee’s Employer for the purposes of setting up Direct Deposit payments of wages to such Cards.
7. Provision of Services. Customer acknowledges and agrees that, as a condition to receiving the Fuego Services, each participating Employee may be required to agree to Fourth’s terms and conditions (the “Fuego Terms and Conditions”) applicable to users of the Fuego Services. The Fuego Terms and Conditions may be updated from time to time in Fourth’s sole discretion. The Fuego Terms and Conditions will be provided and made available to Participating Employees through the App (as those terms are defined below). Fourth may also post a copy of the current version of the Terms on its website: https://getfuego.com/legal/.
8. Portal & Accounts. As part of the Fuego Services and prior to the Services Termination Date, Fourth shall provide (i) those Employees who have elected to receive the Fuego Services (such Employees, the “Participating Employees”), with access to and use of Fourth’s mobile application (the “App”); and (ii) Customer and Customer’s designated administrative users with access to an associated administration portal (the “Portal”). Each administrative user will have a unique User ID and password. Customer will ensure that such User IDs and passwords are not shared between users or with any third party, and Customer will be responsible for any unauthorized access to the Portal permitted by Customer or its administrative users. Fourth shall make the Portal available to the administrative users through a URL or other means designated by Fourth.
9. Eligibility. Customer’s eligibility to access the Fuego Services is subject to approval by Fourth’s applicable Banking Partner. If such approval is withheld or withdrawn, Fourth may terminate this Agreement in accordance with Section 4(b). Once approved, Customer shall identify and designate the segment of its Employee population that is eligible to participate in and would benefit from the Fuego Services (e.g., all Employees, non-exempt Employees only, long-term Employees only, by location, etc.). Customer shall be solely liable for any decisions it makes in deciding which Employees are eligible and for all such Employees, Customer warrants that it has obtained a properly completed I-9 form. Notwithstanding the foregoing, Customer acknowledges that Fourth may determine that Employees identified by Customer may be determined to be ineligible by Fourth in its sole discretion. Fourth may make such a determination if, for example, an Employee has insufficient net wages or if a Fuego Settlement (as defined in Section 1(k) below) related to such Employee previously failed to complete.
10. Enrollment. Customer agrees and acknowledges that Fourth, and its service providers, may contract directly with eligible Employees to agree on terms under which Fourth will make the Fuego Services available to such employees (including access to related applications and associated debit and credit card programs). To that end, Customer represents that it has obtained all necessary consents from such Employees to permit Fourth to contact the Employees to offer the opportunity to enroll in the Fuego Services and hereby authorizes Fourth to contact Employees to promote the Fuego Services and offer enrollment. Customer further agrees that Fourth may integrate communications regarding the Fuego Services into other services provided by Fourth or its affiliates.
11. On Demand Pay. After receipt of all necessary information from applicable Employees, Fourth shall make the names of Employees requesting payments via the EWA Services or TPO Services (together “On Demand Pay”) available to Customer through the Portal. Fourth shall make Fuego On Demand Pay services available to the applicable Participating Employee through ACH or payment networks (such as Visa) or any other method as may be agreed to between Fourth and the applicable Participating Employee. Fourth reserves the right to change these methods at any time and without notice.
12. Settlement. Customer acknowledges that upon the receipt of each EWA Draw or Tip Payout the applicable Participating Employee has agreed to irrevocably sell, transfer, assign and convey to Fourth a portion of the Participating Employee’s tips or earned but unpaid wages owed by Customer corresponding to the amount of the EWA Draw or Tip Payout plus any applicable fees (the “Fuego Settlement”). Subject to the foregoing, Fourth will have no other right, title or interest in, to or under the underlying tips or earned but unpaid wages of any Participating Employee. Customer will fund transactions related to the Fuego Services as follows:
  1. EWA Draw settlement: Customer acknowledges that, in accordance with the Fuego Terms and Conditions, each Participating Employee has (or will have) authorized and directed Customer to deduct an amount equal to the amount of the Fuego Settlement from the Participating Employee’s next paycheck (due to be paid on the next regularly scheduled wage payment date) and to remit such amount directly to Fourth. Fourth will fund EWA Draws directly and Customer shall not be obligated to fund EWA Draws apart Customer’s obligations to deduct and remit EWA Draw settlements to Fourth. Notwithstanding the foregoing, nothing in this paragraph shall relieve Customer from its obligations to pay to an applicable Participating Employee any earned wages owing to such Participating Employee other than the EWA Draw settlement(s). Following each pay cycle, Customer shall provide Fourth the names of each Participating Employee for whom Customer has failed to make a required payment of earned wages on the applicable payday.
  2. Tip Payout settlement: Customer agrees to remit funding for all payouts on the first business day following the date of such payouts.
  3. One-off Payment settlement: Customer agrees to remit funding for all payouts on the first business day following the date of such payment or, if required by Fourth (in Fourth’s sole discretion) Customer will fund One-off Payments in advance of the applicable payment to an Employee.
    1. Customer hereby agrees to cause any required deductions to occur and to remit the proceeds directly to Fourth, pursuant to electronic payment (wire or ACH) instructions separately provided in writing by Fourth from time to time. Customer will reimburse Fourth for all costs and expenses incurred by Fourth as a result of Customer’s failure to fulfill its obligations under this Section (including any costs necessary to settle outstanding EWA Draws, Tip Payouts, or One-off Payments). The provision of EWA Draws and Tip Payouts is a non-recourse transaction as to each Participating Employee and does not involve the extension of credit or the creation of a debt as to each such Employee.
13. Customer Acknowledgement. Customer acknowledges and agrees that the Fuego Services do not include payroll services and Fourth will not, by virtue of this Agreement, pay wages or be deemed a co-employer of any Participating Employee.
14. Limitation of Customer Liability. Customer shall have no liability to Fourth for failure of any Participating Employee’s funds to be available when processing deductions from the Employee’s wages except to the extent Customer has failed to pay wages when due or failed to process such deduction. Customer and Fourth contemplate that any EWA Draw delivered to any Participating Employee by Fourth will represent only wages already owed to such Participating Employee at the time of payment.
15. Notification. Customer shall notify Fourth of the designated Customer contact person who shall receive all reports, invoices, and program communications from Fourth.
16. Data Format. Customer is responsible for providing Employee information in a format specified by Fourth that is inclusive of unique Employee IDs to facilitate Fourth’s performance of the Services hereunder, generation of reports and tracking of outcomes, including:
  1. Seven (7) business days prior to program implementation Customer shall provide Fourth with an accurate listing of any Employees who are ineligible to receive the Fuego Services.
  2. Customer shall provide Fourth with an accurate listing of all new hire and terminations of other Employees (in a format agreed upon by the Parties) within five (5) business days of each Employee’s hire or termination date.
  3. All Employee information provided by Customer shall be accurate and complete to the best of Customer’s knowledge and belief.
  4. If the information is incorrect, Customer shall use best efforts to provide corrected data to Fourth within five (5) business days of from the date that the incorrect information is discovered.
17. Participating Employee Information. To facilitate enrollment of Employees in Customer’s payment programs (to the extent necessary for delivery of the Fuego Services), Customer shall provide Fourth with any reasonably requested information regarding the Participating Employees. Customer agrees to provide information about each Participating Employee prior to such Participating Employee enrolling in the Fuego Services and shall promptly provide Fourth with any changes to any Participating Employee’s information.
18. Material Distribution. Customer shall be responsible for the accuracy and distribution of any communication other than those that Fourth, its affiliates, or its service providers provide directly to Employees. In the event Fourth provides materials to Customer for distribution to employees, Customer will distribute such materials without alteration.
19. Employee Termination. If Customer becomes aware that any Participating Employee has resigned, is terminated or stops working for any reason, Customer shall immediately inform Fourth of such occurrence and shall inform Fourth of the date that such Participating Employee will receive his or her final paycheck from Customer. Customer shall provide such notice to Fourth at least five days prior to the date on which such Participating Customer will receive such final paycheck. Where the Fuego Services are enabled by a data integration with Customer’s point-of sale or workforce management system (an “Integrated System”), notice required under this paragraph may be effected by indicating that the Participating Employee has been terminated in the Integrated System.
20. Fees. If fees for the Tip Payout and One-off Payment Services (“Service Fees”) are identified on Customer’s Order, then Customer will pay such Service Fees by ACH debit at the time of the corresponding Fuego Settlement. If, as a result of Customer’s action or inaction, any Service Fees are not timely paid, then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
PROVISION OF SERVICES
1. Data Integrity and Security. Fourth will maintain commercially reasonable physical, electronic, and managerial procedures intended to protect against the loss, misuse, or unauthorized access, alteration or disclosure of Customer Data (as defined below). If Fourth learns of any unauthorized access to Customer Data, Fourth will, as required by law, notify Customer of such unauthorized access, and the parties agree to coordinate and cooperate in good faith on developing the content of any related public statements or any required notices for the affected persons. Customer shall ensure that no usernames and passwords are shared and is solely responsible for maintaining the confidentiality of all usernames and passwords and for all activities that occur under such usernames. Customer will immediately notify Fourth of any suspected security breach or unauthorized access at security@Fourth.com.
2. Technical Support Services. Fourth shall provide Customer with standard Technical Support Services applicable to the Fuego Services, as described on Fourth’s website at https://www.fourth.com/support-policy/ (“Technical Support Services”). Fourth may use all technical information provided by Customer in connection with Technical Support Services for Fourth’s business purposes, including, without limitation, for product support and the improvement of Services.
3. Customer’s Responsibilities. Customer will prevent any unauthorized use of the Fuego Services by its personnel or any third party acting under Customer’s direction or control, and Customer will promptly notify Fourth if it learns of any unauthorized use. In such case, Customer will take all steps reasonably necessary to terminate the unauthorized use and will cooperate and assist with any actions taken by Fourth to prevent or terminate such unauthorized use. Customer agrees to indemnify and hold Fourth harmless for any failure to fulfill these obligations. For each Cardholder receiving On Demand Pay services to a Fuego Paycard, Customer is responsible to promptly provide the following information when requested by Fourth: (i) the Cardholder’s First & Last Name, Physical Address, Government ID number and date of birth; (ii) a description of the documents used to complete the Cardholder’s I-9 Employment Eligibility Verification form or H2A employment eligibility verification forms, including Passport and USA Visa; such description shall include the type of document(s) used, ID number, place of issuance, issue date, and expiration date as applicable. Use of automated services (e.g., E-Verify) for I-9 purposes will not be accepted unless all collection, verification, and record retention requirements can be met as required herein. Further, if Customer identifies any unusual activity (actual or attempted money laundering or terrorist financing), Customer will notify Fourth immediately. Customer will retain copies of all documentation used, or the description of each document used (including type of document, ID number, place of issuance, issue date, and expiration date as applicable) to complete employee identification in accordance with this paragraph for a period of five years from employee’s termination date.
4. Delay in Performance. Customer acknowledges that Fourth’s ability to deliver the services is contingent upon Customer’s compliance with this Agreement. Accordingly, if Fourth’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, third party vendors (other than Fourth), or employees, (“Customer Delay”) Fourth shall not be deemed in breach of its obligations under this Agreement or otherwise be liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from Customer Delay. A Customer Delay does not terminate, suspend, or delay Customer’s obligation to pay any fees or amounts otherwise due under this Agreement.
PROFESSIONAL SERVICES
1. General. The following terms and conditions shall apply to any Professional Services that Fourth provides to Customer. Such professional services may include without limitation: installation, implementation, deployment, configuration, or integration of Fuego Services; data migration; training; consulting; or other work listed in an Order, Statement of Work, and exhibits attached thereto (“Professional Services”). Customer may purchase Professional Services from Fourth via an Order, and such services may be detailed in a separate document describing the scope of such work (“Statement of Work”).
2. No Works for Hire. Professional Services provided to Customer and any deliverables resulting therefrom shall not constitute works for hire and Fourth reserves and retains all right, title and interest, including without limitation, all patents, copyrights, and trade secret rights anywhere in the world, and all other intellectual property and rights in connection therewith shall be the sole property of and remain with Fourth or its licensors, as applicable. 3.3 Termination of Professional Services. Professional Services may be terminated prior to the planned completion of the Professional Services as follows: (a) Time and Materials. Either Party may terminate time and materials based Professional Services at its convenience or due to a Party’s uncured material breach of these Terms and Conditions, or applicable Order or Statement of Work by providing the other Party thirty (30) days prior written notice. If either Party terminates time and materials based Professional Services for any reason, Customer shall pay all Professional Services Fees for all Professional Services performed prior to the effective termination date plus all reasonable actual costs incurred by Fourth during its performance of the Professional Services. If Customer has prepaid any Professional Services Fees, Fourth shall refund all unused prepaid Professional Services Fees on a pro rata basis based on the effective date of the termination. (b) Fixed Fees. Customer may terminate fixed fee based Professional Services due to an uncured material breach by Fourth of these Terms and Conditions, or applicable Order or Statement of Work and any exhibits attached thereto. Customer may also terminate such Professional Services at Customer’s convenience. Fourth may only terminate fixed fee based Professional Services due to Customer’s uncured material breach of these Terms and Conditions, or applicable Order or Statement of Work and any Exhibits attached thereto. If (i) Customer terminates any fixed fee based Professional Services for any reason other than due to Fourth’s uncured material breach of these Terms and Conditions, Order, or Statement of Work; or (ii) if Fourth terminates any fixed fee based Professional Services due to Customer’s uncured material breach of these Terms and Conditions, Order, or Statement of Work, then Customer shall promptly pay Fourth all unpaid fixed fee amounts for the terminated Professional Services. Additionally, Customer shall not be entitled to a refund or credit for any prepaid fixed fee amounts.
3. Professional Services Delays. If Customer delays the scheduled start date or otherwise causes a delay in the delivery of Professional Services, Customer shall reimburse Fourth for all reasonable and actual costs incurred due to such delay. Additionally, delays by Customer may affect timelines or the work proposed in a Statement of Work or Order and may result in an increase in reimbursement costs and an increase in Fees subject to an additional Statement of Work or change order.
4. Consent to Subcontract. Customer hereby consents for Fourth to subcontract Professional Services to persons or companies qualified and certified by Fourth to provide Professional Services on Fourth’s behalf. Subject to the limitations contained in these Terms and Conditions, Fourth shall be responsible for the actions of its Subcontractors.
5. Change Orders and Project Leaders. Changes to the Professional Services or a Statement of Work will not be effective unless mutually agreed upon by the parties in a written change order. Each Party will designate a project leader as its single point of contact regarding the Professional Services.
6. Additional Services. If Customer requests changes to its implementation, deployment, configuration, or integration, or if Customer requests data migration, training, consulting, or other Services which were not previously identified on an Order or Statement of Work, then Customer may be required to purchase Professional Services at Fourth’s then-current rates.
TERM AND TERMINATION
1. Term. This Agreement is effective as of the date first indicated above. The initial term of this Agreement shall be for a period of three (3) years (the “Initial Term”). Thereafter, this Agreement will renew for successive renewal terms of one year unless either Party provides a notice of non-renewal at least ninety (90) days prior to the end of the then-current term; provided that no termination shall be effective if, as of any Services Termination Date, any Fuego Settlement remains outstanding, in which case the Services Termination Date shall automatically be extended until such Fuego Settlements are completed.
2. Termination For Cause. If either Party materially breaches this Agreement, the other Party shall have the right to terminate this Agreement prior to the Services Termination Date by providing written notice to the breaching Party, which such termination shall become effective on the date that is thirty (30) days after the breaching Party’s receipt of such written notice unless the breaching Party cures such breach to the reasonable satisfaction of the non-breaching Party during such thirty (30) day period. Notwithstanding the ability of a breaching Party to cure any such breach, Fourth may elect to, but shall not be required to, allow Participating Employees to access the Fuego Services. In addition to the foregoing, Fourth may immediately terminate this Agreement and any Order entered into hereunder in the event, (1) Fourth is prohibited by law or regulation from providing the Services in accordance with the terms of this Agreement, or (2) any third party service provider, including a Banking Partner, ceases to provide services necessary for Fourth to provide the Services or requires Fourth to cease offering the services to Customer.
3. Termination for Insolvency. Either Party may terminate this Agreement upon written notice to the other Party if the other Party applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets (or such a receiver, trustee or liquidator is appointed for the other Party), or the other Party has filed against it an involuntary petition for bankruptcy that has not been dismissed within sixty (60) days, or the other Party files a voluntary petition for bankruptcy or a petition or answer seeking reorganization, becomes or is insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; provided if an involuntary petition for bankruptcy has been filed against either Party, Fourth may elect to, but shall not be required to, allow Participating Employees to access the Fuego Services.
4. Suspension by Fourth. Without limitation of any other rights or remedies, Fourth reserves the right to suspend all aspects of the Fuego Services and restrict Customer’s or any Employee’s access to the Customer Portal, in whole or in part, if: (a) Fourth reasonably believes that Customer or any Employee has violated this Agreement or the Fuego Terms and Conditions (including, without limitation failure to complete a Fuego Settlement in accordance with Section 1(k) of this Agreement); (b) Customer or any Employee fails to cooperate with a reasonable investigation by Fourth of any suspected violation of this Agreement or the Fuego Terms and Conditions by Customer or any Employee; (c) there is a denial of service attack on Fourth’s servers or systems, a security breach, or a similar event and Fourth reasonably believes that suspension of Customer’s or any Employee’s access is reasonably necessary to protect its servers or systems, information or data, or other Customers; or (d) requested by a law enforcement agency, government agency or similar authority.
5. Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s and each Employee’s right to access and use the Services shall immediately terminate and Customer shall immediately cease, and shall require all Employees to immediately cease, all use of and access to the Services; (b) Fourth shall have no further obligation to provide any Services; and (c) except to the extent necessary for each Party to continue to exercise its surviving rights under this Agreement, each Party shall promptly return to the other Party (or destroy, at the other Party’s direction) all copies of the other Party’s Confidential Information (as such term is defined in the Confidentiality Agreement) in such Party’s possession or control. Any Fuego Settlements that are pending upon any expiration or termination of this Agreement shall remain in effect and the obligations of the Parties shall continue with respect to such transactions until such transactions are closed out in accordance with their respective terms.
6. Fuego Services and Documentation. Fourth reserves and retains all rights, title, and interest in and to the Fuego Services, Documentation, and all services provided under this Agreement.
7. Rights after Termination; Survival. Termination of this Agreement shall not affect the rights and obligations of the Parties that have accrued prior to the date of termination.
CUSTOMER DATA AND CONFIDENTIAL INFORMATION
1. Customer Data. Customer shall provide Fourth with all payroll data, HR data, related documents and other content or information reasonably required by Fourth to provide the Fuego Services, including information necessary to provide the Fuego Services (“Customer Data”). All Customer Data is, between Fourth and Customer, Customer’s property. Fourth’s use and disclosure of all Customer Data shall be governed by its then-current data processing agreement, the current version of which is available at https://www.fourth.com/dpa (“DPA”). Customer grants to Fourth a nonexclusive, perpetual, irrevocable, worldwide, royalty-free and fully-paid license to use Customer Data to perform its obligations under this Agreement, to improve and enhance Fourth’s products and services, and as permitted under the DPA. In addition, Fourth shall have the right to access, use, modify, store, manipulate, distribute and publish in a de-identified format all Customer Data and all metrics, analytics, statistics or other data related to use of the Fuego Services for benchmarking purposes and for otherwise improving the Fuego Services.
2. Confidential Information. This section supersedes all confidentiality provisions of all prior agreements between Fourth and Customer. “Confidential Information” means non-public information that a reasonable person should understand to be confidential due to its nature and the circumstances in which it was disclosed and that is disclosed by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether such information is disclosed before or after the Effective Date. Confidential Information excludes information that (i) was in the public domain prior to the time of disclosure; (ii) enters the public domain after disclosure through no action or inaction of the Receiving Party; (iii) is already known by the Receiving Party at the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in this Agreement. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by law so long as the Receiving Party gives the Disclosing Party prompt written notice prior to the disclosure and reasonable assistance in limiting disclosure or obtaining a protective order. Fourth may also disclose this Agreement to actual and potential investors and funding sources who agree to hold it in confidence. The Receiving Party agrees to take steps to protect the Disclosing Party’s Confidential Information that are substantially similar to those it takes to protect its own proprietary information (but not less than reasonable care) to prevent the unauthorized disclosure of such Confidential Information. Except as otherwise expressly set forth in this Agreement, the Receiving Party shall hold in confidence and not disclose (including without limitation distribute, transmit or transfer) or use the Confidential Information of the Disclosing Party or any portion thereof without the prior written consent of Disclosing Party except for the purpose of exercising its rights or performing its obligations under this Agreement. Upon any termination or expiration of this Agreement, and after a minimum thirty (30) day holding period, the Receiving Party will destroy or permanently obfuscate all of the Disclosing Party’s Confidential Information in its possession; provided, however, that this requirement will not limit Fourth’s rights to retain, use, and disclose data in accordance with the DPA and Section 5(a) of this Agreement. This Section 5 and the obligations set forth hereunder shall survive for five (5) years following expiration or termination of all Fuego Services under this Agreement.
WARRANTIES AND DISCLAIMER
1. Mutual Warranties. Each Party represents and warrants to the other that (i) this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (ii) during the performance of its obligations hereunder it will not violate any laws applicable to such performance, and that the performance of such obligations does not conflict with or result in a breach of any other agreement of such Party or any judgment, order, or decree by which such Party is bound; and (iii) it is not relying upon any statement, promise, or representation of the other Party except as expressly stated herein.
2. Customer Representations and Warranties. Customer represents and warrants that: (a) it has and shall have all rights necessary to provide the information described in Section 1 and Section 5 hereof (collectively, the “Customer Content”) to Fourth and to grant the rights and licenses granted to Fourth under this Agreement; and (b) the Customer Content does not and shall not infringe the intellectual property rights or other rights (including privacy rights, rights with respect to personal information, and similar rights) of any person or entity.
3. Third Party Service Provider: A portion of the Fuego Services that include financial services may be administered by a banking partner or other third party service provider (a “Banking Partner”). The Banking Partner shall have the right to modify, suspend, or terminate this Agreement upon any material breach of this Agreement by Customer. Solely for the purposes of enforcing its rights under this Section 6(c), the Banking Partner shall be considered a third party beneficiary under this Agreement.
4. Disclaimer. EXCEPT FOR FOURTH’S EXPRESS WARRANTIES AS SET FORTH IN SECTIONS 6, FOURTH MAKES NO AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. NO ADVICE, STATEMENTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM FOURTH OR THROUGH ANY FOURTH MATERIALS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WITHOUT LIMITATION OF THE FOREGOING, FOURTH DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES OR THE PORTAL SHALL BE UNINTERRUPTED, ERROR-FREE OR SECURE OR THAT CUSTOMER PORTAL SHALL NOT BE SUBJECT TO DAMAGE, CORRUPTION, DESTRUCTION, LOSS OR DELETION. IF ANY CUSTOMER CONTENT STORED ON THE CUSTOMER PORTAL IS DAMAGED, CORRUPTED, DESTROYED, LOST OR DELETED, WHETHER BY FOURTH, CUSTOMER OR ANY EMPLOYEE OR OTHER END USER, AND WHETHER INTENTIONALLY OR INADVERTENTLY, FOURTH SHALL HAVE NO OBLIGATION OR LIABILITY TO CUSTOMER OR ANY EMPLOYEE, OTHER END USER OR OTHER PERSON, EXCEPT TO USE COMMERCIALLY REASONABLE EFFORTS TO ATTEMPT TO RECOVER SUCH CUSTOMER CONTENT FROM FOURTH’S READILY-AVAILABLE BACKUP SOURCES.
INDEMNIFICATION
1. Indemnification by Fourth. Fourth will, at its expense, defend, and hold harmless Customer from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Customer to the extent that such Claim results from an allegation that the Fuego Services infringe or misappropriate any intellectual property right of such third party, and will indemnify Customer from all damages, costs, and attorneys’ fees finally awarded and unappealable against Customer as a result of such Claim; provided, however, that (a) Customer gives Fourth prompt written notice of the Claim; (b) Customer grants Fourth full and complete control over the defense and settlement of the Claim; (c) Customer provides reasonable assistance at Fourth’s request in connection with the defense and settlement of the Claim; and (d) Customer complies with any settlement or court order made in connection with the Claim.
  Fourth will have no obligation under this Section 7(a) for any Claim to the extent arising out of or is based upon (i) use of the Fuego Services in combination with other products or services if such Claim would not have arisen but for such combination; (ii) compliance with requirements or specifications required by or provided by or on behalf of Customer, if such Claim would not have arisen but for such compliance; (iii) use of the Fuego Services for purposes not intended or other than in accordance with this Agreement; (iv) use of the Fuego Services inconsistent with instructions or documentation provided by Fourth; or (v) any modification of the Fuego Services. This Section 7(a) states Fourth’s sole liability, and Customer’s exclusive remedy, for any actual or alleged infringement or misappropriation of any third-party intellectual property right by the Fuego Services.
  In the event of such a Claim being brought or threatened or in the event an injunction is issued or threatened, Fourth may, at its sole option and expense, either procure for Customer the right to continue to use the Fuego Services, modify the Fuego Service in a manner that does not materially degrade the Fuego Service’s functionality, or terminate the Fuego Service.
2. Indemnification by Customer. Customer will, at its expense, defend, and hold harmless Fourth from or settle any Claim against Fourth to the extent arising from or relating to: (i) any breach of this Agreement by Customer; (ii) Customer’s or any Employee’s use of the Portal or other Services not in compliance with this Agreement; (iii) any Customer Content; (iv) any allegation by an Employee of violation of employment, wage and hour, workplace or similar laws and regulations or trade practices laws and regulations, except to the extent arising from a breach of this Agreement by Fourth; or (v) any grossly negligent or intentionally wrongful act by Customer or any Employee; provided, however, that (a) Fourth gives Customer prompt written notice of the Claim provided that Fourth’s failure to provide such prompt written notice shall not relieve Customer of its defense and indemnification obligations except to the extent Customer establishes that such failure materially prejudiced Customer’s defense of the indemnifiable Claim; (b) Fourth grants Customer full and complete control over the defense and settlement of the Claim provided that Customer may not enter into any settlement with respect to an indemnifiable Claim without Fourth’s written consent; (c) Fourth provides reasonable assistance at Customer’s request in connection with the defense and settlement of the Claim; and (d) Fourth complies with any settlement or court order made in connection with the Claim. In addition, if Fourth is compelled by subpoena to respond or reply to a third-party Claim brought against Customer requiring Fourth to collect or retrieve any Customer Data or Integrated Data, Customer agrees to promptly pay Fourth all reasonable expenses related to such third-party Claim.
LIMITATIONS OF LIABILITY
1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, (A) FOURTH SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS AND CONDITIONS, OR FOR ANY LOST GOODWILL OR BUSINESS VALUE, LOST PROFITS, OR LOSS OF BUSINESS OR DATA; AND (B) IN NO EVENT SHALL FOURTH’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $25,000 (TWENTY-FIVE THOUSAND DOLLARS). IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 8, THEN FOURTH’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
2. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY WHETHER OR NOT (a) SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE; (b) SUCH LIABILITY IS FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE; AND (c) THE DAMAGED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FOURTH TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
GENERAL
1. Relationship. Fourth will be and act as an independent contractor (and not as the agent, partner, or representative of Customer) in the performance of Services governed under this Agreement.
2. Assignment. This Agreement shall not be assignable by either Party without the prior written consent of the other Party, which consent shall not unreasonably be withheld. Notwithstanding the foregoing, Fourth may assign this Agreement without Customer’s consent (a) to an affiliate or (b) in connection with the sale or other transfer of all or substantially all of Fourth’s equity or assets to which this Agreement relates. In addition, Customer acknowledges and agrees that Fourth may (x) sell, transfer, assign or otherwise convey any Account Receivable to a third party and (y) collaterally assign this Agreement to a third party in connection with a financing transaction involving Fourth. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Any attempted assignment in violation of this Section shall be null and void.
3. Notice. Any notice given by one Party to the other hereunder shall be sent in writing by certified mail, return receipt requested, or delivered personally as follows:
  1. if to Fourth:
    1. Fourth Fintech Solutions, LLC
      6504 Bridge Point Parkway, Suite 300
      Austin, TX 78730
      Attn: General Counsel
  2. if to CUSTOMER, to address identified in the associated Order.
4. Force Majeure. Except for the obligation to pay settlement fees or any other amounts due hereunder, neither Party will be liable for or be considered in breach of or in default of their obligations under this Agreement to the extent the failure or delay to perform such obligations result, directly or indirectly, from any cause or condition beyond a Party’s reasonable control, so long as that Party uses commercially reasonable efforts to avoid or remove the causes of non-performance. Such causes and conditions include without limitation: acts of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods); war; hostilities (whether war be declared or not); an act of foreign enemies; an act of terrorism; embargo; rebellion; revolution; contamination by hazardous or radioactive material; an outbreak of infectious disease on a local, regional, national, or global scale; or the failure or refusal of a Banking Partner to provide services necessary for Fourth to provide the Fuego Services.
5. Governing Law and Jurisdiction. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Texas, without reference to its choice of law rules. Subject to Section 9(f) of this Agreement, if for any reason a claim proceeds in court rather than in arbitration, each Party waives any right to a jury trial, and Customer and Fourth submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Austin, Texas and waive all challenges to such jurisdiction and venue including, without limitation, forum non conveniens.
6. ARBITRATION. EXCEPT FOR DISPUTES ARISING FROM OR RELATED TO INTELLECTUAL PROPERTY RIGHTS OR OWNERSHIP AND THE RIGHT OF EITHER PARTY TO APPLY TO A COURT OF COMPETENT JURISDICTION FOR A TEMPORARY RESTRAINING ORDER, A PRELIMINARY INJUNCTION, OR OTHER EQUITABLE RELIEF TO PRESERVE THE STATUS QUO OR PREVENT IRREPARABLE HARM, ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL BE SETTLED BY BINDING ARBITRATION IN AUSTIN, TEXAS, U.S.A. UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SUCH RULES. CUSTOMER AGREES THAT IT WILL NOT SERVE AS A CLASS REPRESENTATIVE OR PARTICIPATE AS A CLASS MEMBER IN AN ARBITRATION PROCEEDING, THAT ONLY ITS CLAIMS WILL BE ADDRESSED IN THE ARBITRATION PROCEEDING, AND THAT ADDITIONAL PARTIES CANNOT BE ADDED TO THE ARBITRATION PROCEEDING UNLESS CUSTOMER AND FOURTH AGREE IN WRITING BEFORE THE ARBITRATION. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATORS IS BINDING AND MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE PREVAILING PARTY WILL BE ENTITLED TO RECEIVE FROM THE OTHER PARTY ITS ATTORNEYS’ FEES AND COSTS INCURRED IN CONNECTION WITH ANY ARBITRATION OR LITIGATION INSTITUTED IN CONNECTION WITH THIS AGREEMENT.
7. Record Keeping. Customer agrees to retain sufficient records to demonstrate compliance with Customer’s obligations under this Agreement, and shall make such records available for inspection by Fourth or its designee promptly upon request.
8. Right to Preliminary and Injunctive Relief. Each Party agrees that money damages would be an inadequate remedy in the event of a breach or threatened breach of the provisions in this Agreement protecting such Party’s intellectual property or such Party’s Confidential Information, and that in the event of such a breach or threat, such Party, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting the other Party from taking actions in breach of such provisions), without the need for posting bond, as well as specific performance as may be appropriate to preserve all of such Party’s rights.
9. Publicity. Fourth may include Customer’s name and logo in its customer lists and on its website. Upon signing, Fourth may publicly announce the relationship and the manner in which Customer will use the Fuego Services.
10. Other Terms. Any waiver of the provisions of this Agreement, an Order, or Statement of Work or of a Party’s rights or remedies thereunder must be in writing to be effective. Failure, neglect, or delay by a Party to enforce such provisions or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights and will not in any way affect the validity of the whole or any part of this Agreement, Order, or Statement of Work or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce. There are no third-party beneficiaries to this Agreement, including, without limitation, Customer’s Employees. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. Fourth retains the right to modify this Agreement to comply with any change in law that materially impacts the Fuego Services. Orders and Statements of Work may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. Orders and Statements of Work may also be executed and delivered by facsimile, email, or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
11. Entire Agreement. This Agreement is the final and complete expression of the agreement between the parties regarding the Services, Documentation, and all materials and deliverables provided by Fourth. This Agreement supersedes all previous oral and written communications between the parties regarding these matters and may be changed only by a written agreement signed by an authorized agent of both parties. Sections 4(e), 5(b), 6(d), 7, 8, and 9 will survive the termination of this Agreement. Headings are used for reference only and will not be considered when interpreting this Agreement. Fourth shall not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement, Orders, and Statements of Work that is proffered by Customer or any third party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless Fourth specifically agrees to such provision in a writing signed by an authorized officer of Fourth.

Regulatory & Compliance Acknowledgement

Customer acknowledges that it has reviewed and understands the information provided below regarding banking security and money laundering obligations shared by Customer, Fourth, and their respective services providers related to the Fuego Services.

Money laundering is the process criminals use to transform the monetary proceeds derived from criminal activity into funds with an apparently legal source. Money is laundered to conceal illegal activity and the result is that illegally-gained money is introduced into the U.S. Financial System. Money laundering is usually associated with drug trafficking, armed robbery, tax evasion, smuggling, prostitution, arms dealing, fraud, forgery, counterfeiting, bribery, and corruption. Money laundering involves a series of complex transactions that include the following three steps:

placement: dirty money being integrated into the financial system;
layering: attempts to distance the money from its illegal source through layers of financial transactions; and
integration: moving the funds back into the U.S. Financial System.

Terrorist financing differs from money laundering in that most funds are used for a purpose, rather than to conceal profits of a crime. Many times, terrorist funds are not derived from illegal means. Generally, terrorist financing will use the same methods as are used for money laundering in order to move money and maintain the secrecy of transactions and access to funds.

The Bank Secrecy Act (BSA) is a U.S. government legislation that was created in 1970 to prevent financial instruments from being used as tools by criminals to hide or transfer money derived from their illegal activity. This is achieved by requiring financial institutions to file reports. Cash transactions in excess of $10,000 conducted on any one day by or on behalf of one person requires a Currency Transaction Report (CTR) and unusual or suspicious activity is required to be reported once identified via the Suspicious Activity Report (SAR). All unusual or suspicious activity is confidential and should only be shared on a need-to-know basis.

The USA PATRIOT Act (USAPA) is an act Congress passed after the terrorist attacks in 2001. Section 326 of the USA PATRIOT Act requires each bank to implement a written Customer Identification Program (CIP) to enable the bank to form a reasonable belief it knows the true identity of each customer. The written CIP program must entail notification, collection, verification, and screening. Each customer must be notified information requested will be used to verify their identity. A customer Name, Physical Address, Government ID number, and Date of Birth (DOB) is required to be collected and then used to verify the customer’s identity. The last requirement is to ensure the customer is screened against suspected terrorist or terrorist organization lists.

Although the Office of Foreign Assets Control (OFAC) is separate and distinct from BSA and USAPA they are often lumped together. OFAC is a department of the U.S. Treasury that enforces economic and trade sanctions against countries and groups of individuals involved in terrorism, narcotics, and other disreputable activities. As it is the responsibility of all U.S. persons and entities to comply with OFAC regulations, all customers should be screened initially and ongoing to ensure compliance.

All BSA and OFAC records and documents are required to be retained for a period of five (5) years. Institutions and individuals may face criminal and civil liability for violating BSA or OFAC requirements.

In respect of the Fuego Paycard Services, Fourth or its applicable service provider will:

provide Customer Identification Program (CIP) notification(s) in the card terms and conditions and screen the collected CIP information against appropriate lists;
maintain controls to monitor unusual or suspicious activity, along with cash transaction activity, as part of a fraud loss control program, and work with banking partners to ensure that proper reporting is completed as required; and
retain BSA and OFAC records for a period of at least five (5) years after account closure; and
screen cardholders at onboarding and at least monthly thereafter.

Customer agrees to periodically review and recertify this acknowledgement as reasonably requested by Fourth or its applicable service provider.