These ClearYard Platform Terms and Conditions (these "Terms") are entered into by and between MSR Financial Inc., a Delaware corporation doing business as ClearYard ("ClearYard," "we," or "us"), and the customer identified on the applicable Service Order ("Customer" or "you"). These Terms govern Customer's access to and use of the ClearYard Platform. By executing a Service Order that references these Terms, or by accessing or using the Platform, Customer agrees to be bound by these Terms. If you are entering into these Terms on behalf of an entity, you represent that you have authority to bind that entity.
These Terms are the common core of the Agreement. Product-specific rights and obligations are set out in the Addenda identified in Section 1.4. An Addendum applies to Customer only if Customer has accepted it in accordance with Section 1.4.
PART I - CORE TERMS
1. AGREEMENT STRUCTURE; DEFINITIONS
1.1 The Agreement. The "Agreement" consists of, collectively: (a) each Service Order executed by the parties; (b) these Terms; and (c) each Addendum that Customer has accepted under Section 1.4. Each Service Order is a separate contract that incorporates these Terms by reference.
1.2 Order of Precedence. In the event of a conflict among the components of the Agreement, the following descending order of precedence controls, unless expressly stated otherwise: (a) the Service Order; (b) the applicable Addendum; and (c) these Terms. A Service Order or Addendum modifies these Terms only to the extent it expressly identifies the Section of these Terms being modified and states the parties' intent to modify it.
1.3 No Customer Purchase Order Terms. Any additional, conflicting, or preprinted terms contained in any Customer purchase order, vendor portal, invoice acknowledgment, click-through, or similar document are void and of no effect, even if ClearYard accepts or does not object to that document.
1.4 Addenda; Opt-In Acceptance. The following Addenda may be made available by ClearYard, each posted at the URL identified below: (a) the Payment Acceptance Addendum (Schedule A), available at clearyard.com/legal/platform-terms#schedule-a; (b) the ACH Addendum (Schedule B), available at clearyard.com/legal/platform-terms#schedule-b; and (c) the Working Capital Addendum (Schedule C), available at clearyard.com/legal/platform-terms#schedule-c. ClearYard may add further Addenda from time to time. An Addendum becomes part of the Agreement, and its subject-matter functionality becomes available to Customer, only when Customer accepts it either (i) by executing a Service Order that expressly identifies it, or (ii) by an Authorized User with authority to bind Customer affirmatively accepting it through the Platform in accordance with Section 14.4. Customer may decline any Addendum, in which case the corresponding functionality is unavailable but the remainder of the Agreement is unaffected. ClearYard will retain a record of each acceptance as described in Section 14.5.
1.5 Definitions. Capitalized terms not otherwise defined in these Terms have the meanings set forth below. Additional defined terms appear in the Addenda and apply only within the Addendum in which they appear unless stated otherwise.
"Affiliate" means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means ownership of more than fifty percent (50%) of the voting interests.
"Authorized User" means an individual employee, contractor, or agent of Customer or a Customer Affiliate whom Customer authorizes to access the Platform under Customer's account.
"Bank" means a financial institution, other than a Sponsor Bank, that ClearYard or a Processor engages to provide settlement or funds transfer services in connection with the Platform, and any successor or replacement institution designated by ClearYard.
"Card Network Rules" means the bylaws, rules, regulations, operating regulations, procedures, and waivers issued by the payment card networks, NACHA, and any other funds transfer network used to process Transactions, in each case as applicable to acquiring, issuing, or funds transfer activity conducted through the Platform.
"Cost of Acceptance" means, for a given payment method and measurement period, the aggregate amount payable by Customer that is attributable to acceptance of that payment method, comprising interchange, network assessments and fees, processing fees, and that portion of ClearYard's Fees charged on a per-Transaction or percentage-of-Transaction-value basis, whether billed separately or embedded in a blended or bundled rate. Cost of Acceptance excludes subscription, platform, implementation, professional services, and any other Fees not attributable to acceptance of the payment method, and excludes any surcharge or convenience fee assessed under Section A.9. Where the measurement period covers more than one Transaction, Cost of Acceptance is expressed as an average effective rate for that payment method over the period.
"Customer Data" means data, content, records, and materials that Customer or its Authorized Users submit to, or that are generated for Customer through, the Platform, including Transaction Data. Customer Data excludes Platform Data.
"End Customer" means a business or other entity that purchases goods or services from Customer and whose payment is processed through or recorded on the Platform.
"Fees" means the amounts payable to ClearYard as set forth in a Service Order or in ClearYard's then-current published pricing referenced in a Service Order, whether stated as a discrete fee, a blended or bundled rate, or otherwise.
"Financing Partner" means a licensed lender, purchaser of receivables, or other financing provider engaged by ClearYard in connection with the Working Capital Addendum, and its successors, assigns, and participants.
"Lien Rights" means Customer's rights, as a supplier of materials, to assert a mechanic's, materialman's, construction, or similar statutory lien against real property or an improvement, to make a claim against a payment or performance bond, and to assert any related stop-notice, trust fund, or prompt-payment claim.
"Personal Data" means information that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, with an identified or identifiable natural person.
"Platform" means the ClearYard hosted software application(s), interfaces, and APIs identified in the applicable Service Order, together with any documentation, updates, and ClearYard-provided integrations.
"Platform Data" means data generated or derived by ClearYard in the course of operating the Platform, including logs, telemetry, configuration data, performance and usage metrics, and Aggregated Data (as defined in Section 5.4).
"Preliminary Notice" means any preliminary notice, notice to owner, notice of furnishing, pre-lien notice, or equivalent notice that is a condition to, or that preserves, Lien Rights under the law of the jurisdiction in which the relevant project is located.
"Processor" means the payment processor, acquirer, gateway, or other payment service provider engaged by ClearYard from time to time in connection with the Platform.
"Service Order" means an ordering document executed by both parties that identifies the Platform offering purchased, the Fees, the Initial Term, and any Customer-specific terms.
"Settlement Account" means the bank account in Customer's name, designated by Customer in the Platform, into which Transaction proceeds are settled and from which amounts owed to ClearYard are collected.
"Sponsor Bank" means the member bank that sponsors ClearYard's or the Processor's access to a card network or funds transfer network.
"Sub-Merchant" means Customer in its capacity as a sub-merchant onboarded by ClearYard under ClearYard's payment facilitator, master merchant, or equivalent arrangement with a Processor and Sponsor Bank.
"Transaction" means a payment, refund, adjustment, or other funds transfer initiated by or on behalf of Customer or an End Customer through the Platform.
"Transaction Data" means data relating to a Transaction, including amounts, dates, payment method identifiers, authorization and settlement records, and associated End Customer identifiers.
1.6 Changes to Payment and Banking Infrastructure. ClearYard may change the Processor, the Sponsor Bank, the Bank, and any other element of the payment or banking infrastructure supporting the Platform, at any time and in its discretion, on notice to Customer. All authorizations, appointments, consents, and grants made by Customer under the Agreement run to and may be exercised by any successor or replacement Processor, Sponsor Bank, or Bank, and Customer shall promptly execute any document and provide any information reasonably required to give effect to a change under this Section. A change under this Section is not a material modification for purposes of Section 14.
2. THE PLATFORM
2.1 Access Grant. Subject to the Agreement and payment of the Fees, ClearYard grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Platform for Customer's internal business purposes, in accordance with the Agreement and any usage limits set forth in the Service Order.
2.2 Authorized Users. Customer may permit Authorized Users to use the Platform. Customer is responsible for each Authorized User's compliance with the Agreement and is liable for any act or omission of an Authorized User that would breach the Agreement if committed by Customer. Login credentials may not be shared among individuals. Customer shall designate in the Platform those Authorized Users who have authority to bind Customer for purposes of Sections 1.4 and 14.4, and shall keep that designation current.
2.3 Account Security. Customer is responsible for maintaining the confidentiality of its credentials and for all activity occurring under its account. Customer shall notify ClearYard promptly, and in any event within twenty-four (24) hours, upon becoming aware of any unauthorized access to or use of its account. Customer shall enable multi-factor authentication for all Authorized Users where the Platform makes it available.
2.4 Support and Availability. ClearYard will provide support and, if applicable, service level commitments as set forth in the Service Order or the support policy referenced there. Except as expressly stated in a Service Order, ClearYard makes no availability or uptime commitment. Scheduled maintenance, emergency maintenance, and Processor, Bank, or other third-party downtime are excluded from any availability measurement.
2.5 Changes to the Platform. ClearYard may modify, enhance, or discontinue features of the Platform from time to time. ClearYard will not materially degrade the core functionality of the Platform purchased under an active Service Order during the then-current Term without providing Customer at least thirty (30) days' prior notice. If ClearYard discontinues the core functionality of a Platform offering entirely, Customer may terminate the affected Service Order and receive a pro rata refund of prepaid, unused Fees for the remainder of the then-current Term. A change made under Section 1.6 is not a degradation of core functionality for purposes of this Section.
2.6 Third-Party Services. The Platform may interoperate with third-party products, services, or data sources, including accounting systems, identity providers, and dispatch and batching systems (each, a "Third-Party Service"). Customer's use of any Third-Party Service is governed by its own terms and is at Customer's own risk. ClearYard does not control and is not responsible for any Third-Party Service, and ClearYard makes no warranty regarding any Third-Party Service. If a Third-Party Service ceases to make its integration available to ClearYard on commercially reasonable terms, ClearYard may cease supporting that integration without liability. The Processor and the Bank are not Third-Party Services for purposes of this Section and are addressed in the Addenda.
2.7 Beta Features. ClearYard may offer features identified as beta, preview, early access, or evaluation ("Beta Features"). Beta Features are provided "as is" without any warranty, support, or service level commitment, may be modified or withdrawn at any time, and are excluded from ClearYard's indemnification obligations. Notwithstanding Section 11.2, ClearYard's total liability arising out of or relating to any Beta Feature will not exceed one hundred U.S. dollars ($100).
2.8 Professional Services. If a Service Order includes implementation, configuration, integration, or other professional services, those services will be performed as described in the Service Order or an applicable statement of work. Unless the Service Order states otherwise, all deliverables produced in connection with professional services are ClearYard Intellectual Property licensed to Customer under Section 2.1, and Customer receives no ownership interest in them.
3. CUSTOMER RESPONSIBILITIES; RESTRICTIONS; FINANCING AUTHORIZATIONS
3.1 Customer Responsibilities. Customer shall: (a) provide accurate, complete, and current information in connection with onboarding, underwriting, and account maintenance, and update that information promptly upon any change; (b) obtain and maintain all equipment, network connectivity, and third-party accounts necessary to use the Platform; (c) use the Platform in compliance with all applicable laws, including those governing payments, money transmission, anti-money laundering, sanctions, consumer protection where applicable, taxation, privacy, and data security; (d) be solely responsible for the goods and services it sells to End Customers, including their quality, quantity, delivery, description, pricing, warranties, and any dispute with an End Customer relating to them; and (e) maintain its own agreements with End Customers, including terms of sale, refund and cancellation policies, credit terms, and privacy notices sufficient to permit the processing and the payment collection contemplated by the Agreement. Customer shall include in each of its agreements with End Customers, in a form ClearYard specifies, provisions under which the End Customer agrees that: (i) Customer has appointed ClearYard as its agent to receive payment; (ii) payment received by ClearYard, or credited to the Settlement Account, discharges the End Customer's corresponding payment obligation to Customer to the extent of the amount received; (iii) the End Customer authorizes the ACH entries described in Section B.4, and that authorization runs to Customer as Originator and to ClearYard as Customer's agent; and (iv) the End Customer shall direct payment only as instructed through the Platform. Customer shall provide evidence of those provisions and of each authorization on ClearYard's request.
3.2 Restrictions. Customer shall not, and shall not permit any third party to: (a) copy, modify, translate, or create derivative works of the Platform; (b) reverse engineer, decompile, or disassemble the Platform or attempt to derive its source code, except to the extent this restriction is unenforceable under applicable law; (c) sell, resell, rent, lease, sublicense, distribute, or provide the Platform to any third party, or use it in a service bureau or time-sharing arrangement, except as expressly permitted in a Service Order; (d) remove or obscure proprietary notices; (e) access the Platform to build a competitive product or service, or benchmark or publish performance results without ClearYard's prior written consent; (f) use any robot, scraper, or automated means to access the Platform other than through ClearYard-provided APIs in accordance with their documentation; (g) circumvent or attempt to circumvent usage limits, rate limits, or security controls; (h) upload malicious code or any material that infringes or misappropriates the rights of a third party; or (i) use the Platform to store or transmit any data category that the Service Order or documentation identifies as unsupported, including protected health information, government-issued identification numbers other than as required for underwriting, or full payment card magnetic stripe data.
3.3 Financial Condition; Existing Liens. Customer represents and warrants, on the effective date of each Service Order and on each date it requests or receives any funding accommodation under an Addendum, that: (a) it has disclosed to ClearYard in writing each security interest, lien, assignment, pledge, negative pledge, deposit account control agreement, lockbox arrangement, and financing statement that encumbers or restricts, or purports to encumber or restrict, its accounts, accounts receivable, deposit accounts, general intangibles, Lien Rights, or the proceeds of any of them; (b) its entry into and performance of the Agreement, including the establishment and operation of the Settlement Account and the grant of the authorizations in Section 3.5, does not breach or cause a default under any credit agreement, security agreement, or other financing arrangement to which it is a party; and (c) it is not the subject of any pending or threatened insolvency proceeding. Customer shall notify ClearYard in writing within five (5) business days of any change to the foregoing. Customer authorizes ClearYard to conduct, at onboarding and from time to time thereafter, searches of Uniform Commercial Code filings, judgment and lien records, bankruptcy records, and other public records concerning Customer, and to rely on the results in deciding whether to make functionality available.
3.4 Preliminary Notices and Lien Preservation. Where the Platform makes Preliminary Notice functionality available and Customer elects to use it, Customer authorizes ClearYard and its designees to prepare, serve, record, and release Preliminary Notices and related lien documents on Customer's behalf and in Customer's name, and to obtain the project, owner, general contractor, and bond information necessary to do so. Customer shall provide complete and accurate delivery, project, and party information on a timely basis and acknowledges that Lien Rights depend on the accuracy of that information and on service within short statutory deadlines. With respect to any Transaction that is the subject of a funding accommodation under an Addendum, Customer may execute conditional waivers and releases of Lien Rights in the ordinary course of progress payments, in the statutory form of the applicable jurisdiction where one exists, provided that each such waiver is by its terms effective only upon actual receipt of the payment to which it relates; Customer shall not execute an unconditional waiver or release of Lien Rights before the corresponding funds have been received, and shall not otherwise waive, release, subordinate, or assign its Lien Rights in respect of such a Transaction without ClearYard's prior written consent. ClearYard does not practice law, does not provide legal advice, and does not guarantee the availability, validity, priority, or enforceability of any Lien Right. Preliminary Notice functionality is provided for Customer's convenience, and Customer remains solely responsible for preserving its own Lien Rights.
3.5 Financing Authorizations. Customer: (a) authorizes ClearYard to file, and to authorize a Financing Partner to file, financing statements and amendments under the Uniform Commercial Code describing the collateral in a manner ClearYard reasonably determines is necessary or appropriate, including "all assets" or "all personal property" descriptions where an Addendum so provides, provided that this authorization becomes exercisable only upon Customer's acceptance of the Working Capital Addendum and, before that time, ClearYard shall not file a financing statement against Customer; (b) appoints ClearYard as its agent for the limited purpose of receiving, collecting, directing, and applying payments from End Customers in respect of Transactions processed through the Platform, and agrees that receipt of such a payment by ClearYard or by the Bank into the Settlement Account discharges the End Customer's corresponding payment obligation to Customer to the extent of the amount received; (c) consents to ClearYard assigning, transferring, participating, or pledging its rights under the Agreement and any Addendum, in whole or in part, to a Financing Partner, a Processor, a Bank, or a successor to any of them, without further consent; and (d) shall execute and deliver such further documents and take such further actions as ClearYard reasonably requests to perfect, protect, or give effect to the foregoing. Nothing in this Section 3.5 obligates ClearYard or any Financing Partner to extend credit, purchase any receivable, or provide any funding accommodation.
3.6 Underwriting and Credit Data. Customer authorizes ClearYard to collect, use, and disclose Customer Data, Transaction Data, Settlement Account information, and information regarding Customer's End Customers, in identifiable form, for the purposes of: (a) underwriting, onboarding, and monitoring Customer and its End Customers; (b) evaluating, structuring, pricing, servicing, and collecting any funding accommodation under an Addendum; and (c) disclosure to a Processor, Sponsor Bank, Bank, Financing Partner, prospective Financing Partner, credit bureau, or their respective service providers, advisors, auditors, and regulators for those purposes. Customer authorizes ClearYard and each recipient to obtain commercial credit reports and other background information concerning Customer as an entity, and to report Customer's payment performance. ClearYard may obtain a consumer report concerning a principal, officer, or beneficial owner of Customer only where that individual has given his or her own written authorization in a form ClearYard specifies, and Customer shall procure and deliver that authorization from each such individual at onboarding and on request thereafter. This Section 3.6 survives termination for so long as any funding accommodation remains outstanding.
3.7 Sweep; Set-Off; Recoupment. Customer authorizes ClearYard, at any time and without further notice except as stated below, to collect any amount owed by Customer to ClearYard or to a Financing Partner under the Agreement, including Fees, Reversal amounts, negative balances, indemnification obligations, and repayment obligations under any Addendum, by any one or more of the following methods: (a) deduction from Transaction proceeds before or upon settlement; (b) debit of the Settlement Account; (c) debit of any other bank account Customer has designated in the Platform, upon five (5) business days' notice; (d) set-off against any amount ClearYard owes Customer; and (e) instruction to the Processor, the Sponsor Bank, or the Bank to withhold, hold, or remit such amounts. These rights are cumulative, are in addition to and not in lieu of any other remedy, and survive termination of the Agreement for so long as any amount remains outstanding. Customer shall not revoke any authorization given under this Section while any amount is or may become owing, and any purported revocation is a material breach.
4. FEES AND PAYMENT
4.1 Fees. Customer shall pay the Fees set forth in the applicable Service Order. Fees may be stated as a subscription or platform fee, a per-Transaction fee, a percentage of Transaction value, a blended or bundled rate that includes interchange, network assessments, and processing costs, an implementation fee, a usage-based charge, a fixed administrative or event-based fee (including the negative balance cure fee described in Section B.7), or any combination of the foregoing. Where the Service Order states a blended or bundled rate, that rate is inclusive of the third-party costs identified in it, ClearYard retains the difference between that rate and its own costs of acceptance as its Fee, and ClearYard is under no obligation to disclose the components of that difference. Where the Service Order states interchange-plus or pass-through pricing, Fees payable to ClearYard are separate from and exclusive of interchange, assessments, network fees, and processing fees.
4.2 Collection of Fees. Unless the Service Order states otherwise, ClearYard collects Fees by deduction from Transaction proceeds or by debit of the Settlement Account in accordance with Section 3.7, in each case at settlement or on the cadence stated in the Service Order. Where the Service Order provides for invoicing, ClearYard will invoice Customer monthly in arrears for usage-based Fees and annually in advance for subscription Fees, and Customer shall pay each invoice within thirty (30) days of the invoice date, in U.S. dollars, without set-off, deduction, or counterclaim. ClearYard will make settlement and fee statements available in the Platform showing amounts collected under this Section.
4.3 Disputed Amounts. Customer shall notify ClearYard in writing of any good faith dispute regarding an invoice or a fee statement within thirty (30) days of the invoice date or the date the statement is made available, describing the disputed amount and the basis for the dispute in reasonable detail. Customer shall timely pay all undisputed amounts. Amounts not disputed within that period are deemed accepted. Raising a dispute does not suspend ClearYard's rights under Section 3.7.
4.4 Late Payment. Overdue amounts accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the due date until paid. Customer shall reimburse ClearYard for reasonable costs of collection, including collection agency fees and reasonable attorneys' fees.
4.5 Fee Changes. ClearYard may change the Fees effective as of the start of any Renewal Term by providing Customer at least sixty (60) days' notice prior to the end of the then-current Term. Fees fixed in a Service Order will not change during the Initial Term, except as follows. Where the Service Order states interchange-plus or pass-through pricing, ClearYard may pass through, on a dollar-for-dollar basis and with reasonable supporting detail, any increase in interchange, assessments, network fees, Processor or Bank pricing, and any new or increased regulatory fee or surcharge. Where the Service Order states a blended or bundled rate, ClearYard may instead adjust that rate on thirty (30) days' notice to reflect an increase in its own costs of acceptance, by no more than the amount of that increase; ClearYard is not required to disclose the components of the blended rate in connection with such an adjustment, and Customer may terminate the affected Service Order without penalty, effective on the date the adjustment would take effect, by giving notice before that date. An adjustment or pass-through under this Section is not a material modification for purposes of Section 14.
4.6 Taxes. Fees are exclusive of taxes. Customer is responsible for all sales, use, value added, and similar taxes imposed on the Fees, excluding taxes based on ClearYard's net income, property, or employees. If Customer is required by law to withhold any amount from a payment to ClearYard, Customer shall gross up the payment so that ClearYard receives the full amount invoiced.
4.7 Suspension for Non-Payment. If any undisputed amount is more than fifteen (15) days overdue, ClearYard may, on ten (10) days' notice, suspend Customer's access to the Platform, including payment functionality, until the amount is paid. Suspension under this Section does not relieve Customer of its payment obligations and is without prejudice to ClearYard's termination rights.
5. DATA
5.1 Ownership of Customer Data. As between the parties, Customer owns all right, title, and interest in and to Customer Data, including all intellectual property rights in it. ClearYard acquires no rights in Customer Data other than the rights expressly granted in the Agreement.
5.2 License to ClearYard. Customer grants ClearYard and its subprocessors a non-exclusive, worldwide, royalty-free license to host, copy, transmit, display, process, and otherwise use Customer Data as necessary to: (a) provide, maintain, secure, and support the Platform; (b) transmit information to and receive information from the Processor, the Bank, a Financing Partner, and other Third-Party Services Customer has enabled; (c) prevent and investigate fraud, abuse, and security incidents; (d) comply with applicable law and legal process; and (e) create Aggregated Data as permitted by Section 5.4.
5.3 Personal Data. To the extent ClearYard processes Personal Data on Customer's behalf, ClearYard will process it only to provide the Platform, on Customer's documented instructions (including the Agreement), and as required by applicable law. Customer is the controller (or business) and ClearYard is the processor (or service provider) with respect to that Personal Data, except where ClearYard acts as a controller or business in its own right for underwriting, fraud prevention, and regulatory compliance purposes, including under Section 3.6. Customer represents that it has provided all notices and obtained all rights, consents, and legal bases necessary for ClearYard to process Personal Data as contemplated by the Agreement. With respect to Personal Data ClearYard processes on Customer's behalf, ClearYard shall not: sell or share it; retain, use, or disclose it outside the direct business relationship with Customer or for any purpose other than providing the Platform, except as permitted by applicable law; or combine it with personal data from other sources except as permitted by applicable law. ClearYard shall comply with applicable privacy laws, provide the same level of protection they require, and notify Customer if it can no longer meet its obligations under them. Customer may take reasonable steps to stop and remediate any unauthorized use.
5.4 Aggregated Data; Service Improvement. ClearYard may create data that is aggregated across customers and de-identified such that it does not identify, and cannot reasonably be used to identify, Customer, any Authorized User, any End Customer, or any natural person ("Aggregated Data"). ClearYard may use Aggregated Data and Platform Data for any lawful business purpose, including to operate, secure, benchmark, analyze, and improve the Platform and ClearYard's other products and services, to develop new features, to train and improve machine learning models used in the Platform, and to publish industry-level insights and benchmarks. Aggregated Data is ClearYard's property. ClearYard will not: (i) publish or disclose Aggregated Data in a form that identifies Customer or any End Customer without Customer's consent; (ii) attempt to re-identify Aggregated Data; or (iii) sell Customer Data in identifiable form or disclose it to a competitor of Customer in identifiable form. Clause (iii) does not restrict the disclosures Customer has authorized under Section 3.6.
5.5 Security. ClearYard will maintain a written information security program that includes administrative, physical, and technical safeguards designed to protect Customer Data against unauthorized access, use, disclosure, alteration, and destruction, consistent with any security measures described in the Service Order and with generally accepted industry standards. ClearYard will notify Customer without undue delay after confirming any unauthorized access to or acquisition of Customer Data (a "Security Incident").
5.6 Retention, Export, and Deletion. During the Term, Customer may export Customer Data using the export functionality the Platform makes available. For thirty (30) days after expiration or termination of a Service Order, ClearYard will make Customer Data available for export on Customer's written request. After that period, ClearYard may delete Customer Data, except that ClearYard may retain Customer Data: (a) in routine backups until they expire in the ordinary course; and (b) to the extent required for compliance with applicable law, including anti-money laundering, tax, banking, and Card Network Rules recordkeeping requirements, or as necessary to service or collect any outstanding funding accommodation. Retained data remains subject to the confidentiality and security obligations of the Agreement.
6. INTELLECTUAL PROPERTY
6.1 ClearYard IP. ClearYard and its licensors own all right, title, and interest in and to the Platform, Platform Data, Aggregated Data, ClearYard's trademarks, and all software, documentation, know-how, and other materials made available by ClearYard, together with all modifications, enhancements, and derivative works of any of the foregoing ("ClearYard IP"). All rights not expressly granted to Customer are reserved.
6.2 Feedback. If Customer or an Authorized User provides suggestions, ideas, or other feedback regarding the Platform, ClearYard may use and exploit that feedback for any purpose without restriction, attribution, or compensation, and Customer assigns to ClearYard all rights in it.
6.3 Trademarks and Publicity. Neither party may use the other's name, logo, or trademarks without prior written consent, except that ClearYard may identify Customer as a customer and use Customer's name and logo in customer lists and on ClearYard's website, subject to Customer's trademark usage guidelines provided to ClearYard and to Customer's right to revoke that permission on written notice. Any case study, press release, or quotation requires Customer's prior written approval.
7. CONFIDENTIALITY
7.1 Confidential Information. "Confidential Information" means non-public information disclosed by a party ("Discloser") to the other ("Recipient") that is designated as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. Customer Data is Customer's Confidential Information. The Platform, ClearYard IP, and the pricing and non-public terms of the Agreement are ClearYard's Confidential Information.
7.2 Obligations. Recipient shall: (a) use Discloser's Confidential Information solely to perform its obligations and exercise its rights under the Agreement; (b) protect it with at least the degree of care Recipient uses for its own confidential information of like importance, and in no event less than reasonable care; and (c) disclose it only to its employees, Affiliates, contractors, and professional advisors who have a need to know and who are bound by confidentiality obligations no less protective than those in this Section 7. Recipient is responsible for any breach by those persons. ClearYard may disclose Customer's Confidential Information to a Processor, Sponsor Bank, Bank, or Financing Partner as contemplated by Sections 3.5 and 3.6.
7.3 Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available without breach of the Agreement; (b) was known to Recipient without restriction before disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed by Recipient without use of or reference to Discloser's Confidential Information.
7.4 Compelled Disclosure. Recipient may disclose Confidential Information to the extent required by law or legal process, provided that, where legally permitted, Recipient gives Discloser prior notice and reasonable cooperation in seeking protective treatment.
7.5 Return or Destruction. On Discloser's written request following expiration or termination, Recipient shall return or destroy Discloser's Confidential Information, except for copies retained in routine backups or as required by law or by Section 5.6, which remain subject to this Section 7 for so long as they are retained.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual. Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) it has full power and authority to enter into and perform the Agreement; (c) the individual executing the Service Order, and each Authorized User designated under Section 2.2, has authority to bind it; and (d) its execution and performance of the Agreement do not conflict with any other agreement or obligation binding on it.
8.2 Limited Platform Warranty. ClearYard warrants that, during the Term, the Platform will perform materially in accordance with its then-current documentation. Customer's exclusive remedy, and ClearYard's entire liability, for breach of this warranty is for ClearYard to use commercially reasonable efforts to correct the non-conformity and, if ClearYard is unable to do so within thirty (30) days after Customer's written notice describing the non-conformity in reasonable detail, for Customer to terminate the affected Service Order and receive a pro rata refund of prepaid, unused Fees for the terminated portion of the then-current Term. This warranty does not apply to Beta Features, free or trial use, Preliminary Notice functionality, or any non-conformity caused by Customer, an Authorized User, a Third-Party Service, the Processor, the Bank, or use of the Platform other than in accordance with the Agreement.
8.3 Customer Warranties. Customer represents and warrants that: (a) it has all rights, consents, and legal bases necessary to provide Customer Data to ClearYard and to permit the processing and disclosure contemplated by the Agreement, including under Section 3.6; (b) Customer Data does not infringe, misappropriate, or violate the rights of any third party; (c) it holds all licenses, registrations, and permits required to conduct its business and to sell the goods and services it offers to End Customers; (d) it and its officers, directors, and beneficial owners are not subject to sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control or any other applicable sanctions authority, and are not located in or organized under the laws of a comprehensively sanctioned jurisdiction; (e) it will comply with all applicable anti-bribery, anti-corruption, anti-money laundering, and export control laws, and will not make the Platform available to any person on a denied or restricted party list; and (f) each Transaction submitted through the Platform arises from a bona fide sale of goods or services actually delivered or to be delivered by Customer to the identified End Customer, in the ordinary course of Customer's business, and is not submitted on behalf of any other person.
9. DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8, THE PLATFORM, ALL BETA FEATURES, ALL PROFESSIONAL SERVICES, AND ALL INFORMATION, REPORTS, AND MATERIALS PROVIDED BY CLEARYARD ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND CLEARYARD AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CLEARYARD DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR FREE, OR SECURE, THAT IT WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT ANY DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS. CLEARYARD MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICE, THE PROCESSOR, THE BANK, OR ANY FINANCING PARTNER. NOTHING IN THE PLATFORM CONSTITUTES LEGAL, TAX, ACCOUNTING, OR REGULATORY ADVICE, AND NOTHING IN THE PLATFORM IS AN OFFER OR COMMITMENT TO EXTEND CREDIT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
10. INDEMNIFICATION
10.1 By ClearYard. ClearYard shall defend Customer and its officers, directors, and employees against any third-party claim alleging that the Platform, as provided by ClearYard and used in accordance with the Agreement, infringes a United States patent, copyright, or trademark or misappropriates a trade secret, and shall indemnify Customer against damages and costs finally awarded against Customer by a court of competent jurisdiction, or agreed in settlement by ClearYard, in connection with that claim.
10.2 Mitigation. If the Platform becomes, or in ClearYard's reasonable opinion is likely to become, the subject of a claim described in Section 10.1, ClearYard may at its option and expense: (a) procure the right for Customer to continue using the Platform; (b) modify or replace the Platform so that it is non-infringing and materially equivalent in functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate the affected Service Order on notice and refund prepaid, unused Fees for the terminated portion of the then-current Term.
10.3 Exclusions. ClearYard has no obligation under Section 10.1 to the extent a claim arises from: (a) Customer Data; (b) modification of the Platform by anyone other than ClearYard; (c) combination of the Platform with products, data, or processes not provided by ClearYard, where the claim would not have arisen but for the combination; (d) use of the Platform other than in accordance with the Agreement or the documentation; (e) Customer's continued use after ClearYard has provided a non-infringing modification or replacement; (f) any Third-Party Service, Beta Feature, or free or trial use; or (g) Customer's specifications or instructions.
10.4 By Customer. Customer shall defend ClearYard and its officers, directors, employees, and Affiliates, and each Processor, Sponsor Bank, Bank, and Financing Partner, against any third-party claim, and shall indemnify them against all damages, liabilities, fines, penalties, assessments, and costs (including reasonable attorneys' fees) arising out of or relating to: (a) the goods or services Customer sells to End Customers, including any dispute with an End Customer; (b) Customer Data, including any claim that it infringes a third party's rights or that its processing violated applicable law; (c) Customer's breach of the Agreement or of any representation or warranty in it; (d) Customer's violation of applicable law or the Card Network Rules; (e) any Reversal, negative balance, fine, or assessment attributable to Customer's Transactions; (f) any surcharge or convenience fee assessed by Customer, as further provided in Schedule A; (g) any claim by a lender, secured party, or other creditor of Customer arising from the establishment or operation of the Settlement Account or the authorizations in Section 3.5; or (h) Customer's fraud, gross negligence, or willful misconduct.
10.5 Procedure. The indemnified party shall: (a) promptly notify the indemnifying party in writing of the claim, provided that failure to give prompt notice relieves the indemnifying party of its obligations only to the extent it is materially prejudiced; (b) give the indemnifying party sole control of the defense and settlement, except that the indemnifying party may not settle any claim in a manner that admits liability of, imposes a non-monetary obligation on, or fails to fully release the indemnified party without its prior written consent; and (c) provide reasonable cooperation at the indemnifying party's expense. The indemnified party may participate in the defense with counsel of its own choosing at its own expense.
10.6 Sole Remedy. Sections 10.1 through 10.3 state ClearYard's entire liability and Customer's exclusive remedy for any claim of infringement or misappropriation of intellectual property rights.
11. LIMITATION OF LIABILITY
11.1 Exclusion of Indirect Damages. EXCEPT AS PROVIDED IN SECTION 11.4, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF BUSINESS, LOSS OF GOODWILL, OR COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATING TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 General Cap. EXCEPT AS PROVIDED IN SECTIONS 11.3 AND 11.4, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO CLEARYARD UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.
11.3 Enhanced Cap. FOR CLAIMS ARISING FROM A PARTY'S BREACH OF SECTION 7 (CONFIDENTIALITY), CLEARYARD'S BREACH OF SECTION 5.5 (SECURITY), OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, EACH PARTY'S TOTAL CUMULATIVE LIABILITY WILL NOT EXCEED TWO (2) TIMES THE AMOUNT DESCRIBED IN SECTION 11.2.
11.4 Exclusions from the Limitations. THE LIMITATIONS IN SECTIONS 11.1 THROUGH 11.3 DO NOT APPLY TO: (A) CUSTOMER'S OBLIGATION TO PAY FEES AND OTHER AMOUNTS DUE UNDER THE AGREEMENT, INCLUDING REVERSALS, NEGATIVE BALANCES, AMOUNTS SUBJECT TO SECTION 3.7, AND ANY REPAYMENT OBLIGATION UNDER AN ADDENDUM; (B) CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.4(a), 10.4(d), 10.4(e), 10.4(f), AND 10.4(g); (C) EITHER PARTY'S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; (D) CUSTOMER'S VIOLATION OF SECTION 3.2 (RESTRICTIONS) OR INFRINGEMENT OF CLEARYARD IP; OR (E) ANY LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
11.5 Essential Basis. The parties acknowledge that the limitations in this Section 11 are an essential basis of the bargain, that the Fees reflect this allocation of risk, and that these limitations apply notwithstanding the failure of essential purpose of any limited remedy. Multiple claims do not enlarge any cap.
12. INSURANCE
Each party shall maintain, at its own expense and with insurers of recognized responsibility, insurance coverage of the types and in the amounts set forth in the Service Order or, if none are specified, coverage customary for businesses of its size and industry, including commercial general liability, cyber liability and technology errors and omissions, and workers' compensation as required by law. On request, each party shall provide the other with a certificate of insurance evidencing the required coverage.
13. TERM, SUSPENSION, AND TERMINATION
13.1 Term. These Terms take effect on the effective date of the first Service Order and continue until all Service Orders have expired or been terminated (the "Term"). Each Service Order begins on its effective date and continues for the initial term specified in it (the "Initial Term"). After the Initial Term, each Service Order automatically renews for successive periods equal to the Initial Term (each, a "Renewal Term") unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term.
13.2 Termination for Cause. Either party may terminate a Service Order, or the Agreement in its entirety, on written notice if the other party materially breaches the Agreement and fails to cure the breach within thirty (30) days after written notice describing it, except that ClearYard may terminate immediately for Customer's breach of Section 3.2, Section 3.7, Section 8.3(d), Section 8.3(f), or Section A.9, or for non-payment that remains uncured fifteen (15) days after notice.
13.3 Termination for Insolvency. Either party may terminate immediately on written notice if the other party makes an assignment for the benefit of creditors, becomes the subject of a bankruptcy or similar proceeding not dismissed within sixty (60) days, or ceases to do business in the ordinary course.
13.4 Termination for Loss of Infrastructure. ClearYard may terminate the affected functionality, or the Service Order in its entirety, on thirty (30) days' notice if a Processor, Sponsor Bank, or Bank ceases to support Customer's account or business category, or if ClearYard's agreement with a Processor, Sponsor Bank, or Bank terminates and ClearYard is unable to secure a replacement on commercially reasonable terms. In that event, ClearYard will refund prepaid, unused subscription Fees for the terminated portion of the then-current Term. ClearYard will use commercially reasonable efforts to migrate Customer under Section 1.6 before exercising this right.
13.5 Cross-Default. A default by Customer under any Addendum, including any failure to repay a funding accommodation when due, is a material breach of the Agreement and entitles ClearYard to suspend or terminate any or all functionality, including Platform access, payment acceptance, and ACH origination, in each case without prejudice to ClearYard's other rights.
13.6 Effect of Termination. On expiration or termination: (a) all rights granted to Customer under Section 2.1 terminate and Customer shall cease using the Platform; (b) Customer shall pay all Fees and other amounts accrued through the effective date of termination, and, if ClearYard terminates for cause under Section 13.2, all Fees for the remainder of the then-current Term become immediately due; (c) Customer may export Customer Data in accordance with Section 5.6; and (d) except as expressly stated in the Agreement, no refund of prepaid Fees is due.
13.7 Wind-Down of Payment Activity. Notwithstanding termination, Customer remains responsible for all Reversals, negative balances, and related amounts associated with Transactions processed before termination, for the full period during which those Transactions may be disputed or returned under the Card Network Rules, and ClearYard retains its rights under Section 3.7 during that period. ClearYard may require Customer to maintain a reserve, or may withhold settlement, in an amount reasonably estimated to cover that exposure, for a period ending no later than one hundred eighty (180) days after the last Transaction.
13.8 Survival. Sections 1, 3.3 through 3.7, 4 (as to amounts accrued), 5.1, 5.4, 5.6, 6, 7, 8, 9, 10, 11, 13.6, 13.7, and 15, together with the provisions of each Addendum expressed to survive, survive expiration or termination of the Agreement.
14. VERSIONS; CHANGES TO THESE TERMS
14.1 Current Version; Archive. The version of these Terms in effect at any time is the version posted at clearyard.com/legal/platform-terms and identified by the version number and effective date in the header. ClearYard maintains an index of all prior versions, each with its effective date and the period during which it applied, at clearyard.com/legal/platform-terms/archive. Each Addendum is versioned and archived in the same manner.
14.2 Right to Modify. ClearYard may modify these Terms and any Addendum from time to time by posting an updated version. A modification applies prospectively only and does not affect any right, obligation, or liability that accrued before it takes effect.
14.3 Notice. ClearYard will provide Customer at least thirty (30) days' notice, by email to Customer's designated contact and through the Platform, before a modification that materially and adversely affects Customer's rights or obligations takes effect. The notice will identify the affected Sections and summarize the change. Non-material changes, and changes required by applicable law, the Card Network Rules, a Processor, a Sponsor Bank, or a Bank, take effect on posting with notice given as promptly as practicable.
14.4 Acceptance. A modification that materially and adversely affects Customer's rights or obligations does not take effect as to Customer unless and until an Authorized User designated under Section 2.2 as having authority to bind Customer affirmatively accepts the updated version through the Platform. The Platform will present the updated version to such a user for acceptance, and the accepting user represents that they have authority to bind Customer. A modification that is not material, and a change described in the second sentence of Section 14.3, takes effect on the date stated in the notice, and Customer's continued use of the affected functionality after that date constitutes acceptance of it. An affirmative acceptance recorded under this Section 14.4 or under Section 1.4 constitutes a writing signed by Customer for purposes of Section 15.14, and each Service Order constitutes Customer's advance consent to this method of amendment; continued use alone does not constitute a signed writing.
14.5 Record. ClearYard will create and retain a record of each acceptance under Sections 1.4 and 14.4, including the version accepted, the identity of the accepting Authorized User, and the date and time of acceptance, and will make that record available to Customer on request. That record is admissible evidence of Customer's acceptance.
14.6 Timing for Customers Under Term; Objection. A material modification takes effect as to a Customer with an active Service Order at the start of that Customer's next Renewal Term, and the prior version continues to apply to that Customer until then. Accordingly, ClearYard will present a material modification for acceptance under Section 14.4 no earlier than the start of that Renewal Term, and will not condition Customer's access to the Platform during the then-current Term on acceptance of a modification that does not yet bind Customer. If Customer objects in writing to a material modification before it takes effect, the parties shall negotiate in good faith for thirty (30) days; if they do not reach agreement, Customer may terminate the affected Service Order effective at the end of the then-current term without penalty, and the prior version of these Terms will continue to apply through that date. This Section 14.6 does not apply to a change described in the second sentence of Section 14.3.
15. GENERAL
15.1 Governing Law. The Agreement, and all claims and disputes arising out of or relating to it or its subject matter, are governed by the laws of the State of Delaware, without regard to its conflict of laws principles. This Section does not displace any mandatory choice of law governing the perfection, priority, or enforcement of a security interest or Lien Right.
15.2 Dispute Resolution; Binding Arbitration. The parties shall first attempt in good faith to resolve any dispute through discussions between senior executives for thirty (30) days after written notice of the dispute. If the dispute is not resolved, it shall be finally settled by binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures (or, where the amount in controversy is less than $250,000, its Streamlined Arbitration Rules), by one (1) arbitrator appointed in accordance with those rules. The seat and location of the arbitration is Boston, Massachusetts, and the proceedings shall be conducted in English. The arbitrator shall apply Delaware law as provided in Section 15.1 and shall issue a reasoned written award. Judgment on the award may be entered in any court of competent jurisdiction. The arbitration, including its existence, the proceedings, and the award, is confidential.
15.3 Class Action Waiver. ALL CLAIMS MUST BE BROUGHT IN A PARTY'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS OR PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. If this Section 15.3 is held unenforceable as to a particular claim, that claim shall proceed in court under Section 15.4 and all other claims remain subject to arbitration.
15.4 Court Proceedings; Equitable Relief. Subject to Sections 15.2 and 15.3, any action arising out of or relating to the Agreement shall be brought exclusively in the state or federal courts located in Suffolk County, Massachusetts, and each party irrevocably consents to the personal jurisdiction and venue of those courts and waives any objection based on inconvenient forum. Notwithstanding Section 15.2, either party may seek temporary or preliminary injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property or Confidential Information, and ClearYard may bring an action in any court of competent jurisdiction to collect amounts owed under the Agreement, to enforce a security interest, or to assert or enforce a Lien Right.
15.5 Notices. Notices under the Agreement must be in writing and are effective on receipt when delivered by personal delivery, nationally recognized overnight courier, or certified mail to the addresses on the Service Order, or when sent by email to the addresses designated on the Service Order (for ClearYard, [email protected]), provided that notices of breach, termination, or indemnification must also be sent by courier or certified mail. Operational notices, including notices under Sections 1.6, 2.5, 4.5, 14.3, A.10, and B.10, may be given by email or in-Platform notification alone.
15.6 Assignment. Customer may not assign the Agreement without ClearYard's prior written consent. ClearYard may assign the Agreement, or any of its rights under it, without consent, including as provided in Section 3.5(c). Either party may assign the Agreement in its entirety, on notice and without consent, to a successor in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity. Any other purported assignment is void. The Agreement binds and inures to the benefit of the parties' permitted successors and assigns.
15.7 Subcontractors. ClearYard may use Affiliates and subcontractors to perform its obligations, provided ClearYard remains responsible for their performance and for their compliance with the Agreement. The Processor, the Sponsor Bank, the Bank, and any Financing Partner are not subcontractors for purposes of this Section, and ClearYard is not responsible for their acts or omissions except as expressly stated in an Addendum. ClearYard's payment technology and banking partners have no obligation or liability to Customer or any End Customer under the Agreement.
15.8 Force Majeure. Neither party is liable for any delay or failure to perform (other than a payment obligation) caused by circumstances beyond its reasonable control, including acts of God, natural disaster, epidemic, war, terrorism, civil unrest, labor disruption, governmental action, failure of the internet or telecommunications infrastructure, or failure or insolvency of a Processor, Sponsor Bank, Bank, or card network, provided the affected party uses reasonable efforts to mitigate and resume performance.
15.9 Relationship of the Parties. The parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, employment, or fiduciary relationship, except for the limited agency expressly granted in Section 3.5(b) and in the Addenda. ClearYard does not act as a trustee for, and does not hold funds in trust for, Customer.
15.10 Third-Party Beneficiaries. Each Processor, Sponsor Bank, Bank, card network, and Financing Partner is an intended third-party beneficiary of the provisions of the Agreement that are expressed to be for its benefit, including Sections 3.5, 3.6, 10.4, and the corresponding provisions of the Addenda, and may enforce them directly. Except as stated in this Section and for the indemnified parties identified in Section 10, the Agreement creates no third-party beneficiary rights.
15.11 Severability; Waiver. If any provision of the Agreement is held unenforceable, it shall be modified to the minimum extent necessary to make it enforceable, or if it cannot be so modified, severed, and the remaining provisions remain in full force and effect. A party's failure or delay in exercising a right is not a waiver of it, and no waiver is effective unless in a writing signed by the waiving party.
15.12 Counterparts; Electronic Signature and Acceptance. Service Orders may be executed in counterparts and delivered electronically, and electronic signatures have the same effect as original signatures. Each acceptance recorded under Sections 1.4 and 14.4, and each authorization given through the Platform, is an electronic signature and record within the meaning of the federal Electronic Signatures in Global and National Commerce Act and applicable state law, and the parties consent to the use of electronic records and signatures for all purposes under the Agreement.
15.13 Interpretation. Headings are for convenience only. "Including" means "including without limitation." References to a Section are to a Section of these Terms unless stated otherwise; references beginning "A." or "B." are to the correspondingly lettered Schedule. The Agreement will not be construed against the drafting party.
15.14 Entire Agreement. The Agreement is the complete and exclusive statement of the parties' agreement regarding its subject matter and supersedes all prior or contemporaneous proposals, understandings, and communications, whether oral or written, including any non-disclosure agreement between the parties as to the subject matter of Section 7 (provided that Confidential Information disclosed under a prior non-disclosure agreement remains protected under this Agreement). No amendment is effective unless in a writing signed by both parties, except as provided in Sections 1.4 and 14.
SCHEDULE A - PAYMENT ACCEPTANCE ADDENDUM
Version 2.1. Effective September 25, 2026. Applies only to Customers who have accepted this Addendum under Section 1.4.
This Payment Acceptance Addendum governs Customer's acceptance of card and other payment methods through the Platform. Capitalized terms not defined here have the meanings given in the Terms.
A.1 Role of ClearYard. ClearYard provides payment acceptance to Customer as a payment facilitator, master merchant, or in an equivalent capacity, under ClearYard's agreements with one or more Processors and Sponsor Banks. Customer is onboarded as a Sub-Merchant under those arrangements. ClearYard is not a bank. ClearYard does not act as a fiduciary or trustee with respect to Customer's funds. Except as expressly stated in the Agreement, Customer contracts with ClearYard for payment acceptance and does not enter into a separate merchant processing agreement with the Processor; where a Processor, Sponsor Bank, or card network requires Customer to execute or accept its own agreement, disclosure, or acknowledgment, Customer shall do so promptly on request, and Section 1.2 governs any conflict.
A.2 Seller of Record. Customer is the sole seller and merchant of record for all goods and services it sells to End Customers. ClearYard does not purchase, resell, take title to, or assume any obligation with respect to those goods or services. Customer is solely responsible for the legality of its offerings, for its pricing, credit, and refund policies, and for all disputes with End Customers.
A.3 Onboarding and Underwriting. Customer's access to payment acceptance is subject to underwriting, identity and beneficial ownership verification, sanctions screening, and ongoing monitoring by ClearYard, the Processor, and the Sponsor Bank, both at onboarding and on a continuing basis. Customer shall promptly provide the information and documentation reasonably requested for these purposes and represents that all such information is true, accurate, and complete. ClearYard may, in its sole discretion and in its own name, decline, condition, limit, suspend, or terminate payment acceptance, establish or adjust Transaction and volume limits, and require additional information, at any time. ClearYard may share the results of underwriting with the Processor, the Sponsor Bank, the card networks, and any Financing Partner.
A.4 Card Network Rules; Required Sub-Merchant Provisions. Customer shall comply with all Card Network Rules applicable to its Transactions, as amended from time to time, copies or summaries of which are available from ClearYard on request. Customer acknowledges and agrees that: (a) the card networks and the Sponsor Bank are the ultimate owners of, and have the right to enforce, the provisions of the Card Network Rules applicable to Customer; (b) the Sponsor Bank is a party to, or a third-party beneficiary of, Customer's payment acceptance arrangement and may enforce it directly against Customer; (c) the Sponsor Bank and the card networks may immediately terminate or suspend Customer's ability to accept a payment method, and ClearYard shall give effect to that instruction; (d) Customer may not bypass, avoid, or transfer its obligations under the Card Network Rules by contract; (e) Customer is responsible for the security of cardholder data in its possession or control; and (f) where the Card Network Rules require a direct agreement between Customer and the Sponsor Bank above specified volume thresholds, Customer shall enter into one on request. This Section A.4 is for the benefit of, and enforceable by, the card networks and the Sponsor Bank.
A.5 Settlement. Transaction proceeds, net of amounts deducted under Section 3.7 and this Addendum, are settled to the Settlement Account in accordance with the funding schedule stated in the Service Order. ClearYard will use commercially reasonable efforts to settle in accordance with that schedule but does not guarantee the timing, amount, or availability of any settlement, and is not responsible for any delay, hold, freeze, reversal, or non-payment caused by a Processor, Sponsor Bank, Bank, card network, End Customer's financial institution, or Customer's own financial institution, or by circumstances described in Section 15.8. Customer is responsible for maintaining accurate settlement instructions in the Platform and bears the risk of loss from settlement to an account Customer designated incorrectly. Settlement timing is governed by Section B.5 where Schedule B applies.
A.6 Refunds, Returns, and Reversals. Customer is solely responsible for all refunds, returns, credits, adjustments, chargebacks, ACH returns, reversals, and related fees, fines, assessments, and penalties (collectively, "Reversals") associated with its Transactions, regardless of the reason for the Reversal and regardless of whether Customer has already received settlement for the underlying Transaction. Customer shall maintain a clear refund and cancellation policy, shall respond to Reversal notices within the timeframes required by ClearYard, the Processor, and the Card Network Rules, and shall provide compelling evidence and documentation on request. ClearYard may, but is not obligated to, represent Customer in a Reversal dispute. Unless the Service Order expressly provides for a rebate, ClearYard's Fees on a Transaction are earned when the Transaction is processed and are not refundable if the Transaction is later reversed or refunded. Customer shall maintain its Reversal rates below the thresholds established by ClearYard, the Processor, and the Card Network Rules, and shall implement remediation measures ClearYard reasonably requires if a threshold is approached or exceeded.
A.7 Reserves. ClearYard may, in its sole discretion and in its own name, establish, increase, or maintain a reserve, holdback, or delayed funding arrangement with respect to Customer, in an amount and for a period ClearYard reasonably determines is necessary to secure Customer's actual or potential obligations under the Agreement, including Reversals, fines, and negative balances. ClearYard may fund a reserve by withholding from settlement, by debiting the Settlement Account, or by requiring Customer to remit funds. ClearYard will notify Customer when a reserve is established or materially increased, except where notice is prohibited by law or would in ClearYard's reasonable judgment increase risk of loss. ClearYard will release any remaining reserve balance no later than one hundred eighty (180) days after the later of termination and the last Transaction, less amounts applied to Customer's obligations. A reserve established by a Processor or Sponsor Bank is in addition to, and does not limit, ClearYard's rights under this Section.
A.8 Pricing; Cost of Acceptance. Fees for payment acceptance are as stated in the Service Order and are governed by Section 4.1. Where pricing is stated as a blended or bundled rate, Customer acknowledges that the rate includes ClearYard's margin over its own costs of acceptance, that ClearYard's costs may vary by Transaction and over time, and that ClearYard retains that margin. The Platform will make available to Customer, on a continuing basis, Customer's Cost of Acceptance for each payment method expressed as an average effective rate over the trailing twelve (12) month period or such shorter period as Customer has been processing, calculated in accordance with the definition in Section 1.5, for the purpose of enabling Customer to determine its permitted surcharge ceiling under Section A.9. ClearYard makes no representation that any particular Transaction will qualify for any particular interchange level, and Customer is responsible for submitting the data elements required for Level 2 or Level 3 qualification where it seeks that treatment.
A.9 Surcharges and Convenience Fees. Where the Platform makes the functionality available and ClearYard has enabled it for the relevant jurisdiction, Customer may assess a surcharge or convenience fee on End Customers, subject to this Section. Any surcharge or convenience fee is assessed by Customer, in Customer's own name and for Customer's own account, and is not revenue of ClearYard. Customer shall: (a) assess a surcharge only on credit card Transactions, and never on debit or prepaid card Transactions, regardless of how the card is processed; (b) not assess a surcharge at a rate exceeding the lesser of Customer's Cost of Acceptance for that payment method, measured as the average effective rate over the trailing period described in Section A.8, and the maximum rate permitted by the Card Network Rules, and shall use the ceiling the Platform computes and publishes for that purpose; (c) provide all disclosures required by the Card Network Rules and applicable law, including clear and conspicuous disclosure at the point of interaction, before the End Customer is committed to the Transaction, and on the receipt, showing the surcharge as a separate line item; (d) give any advance notification to the card networks and to ClearYard required before commencing to surcharge; (e) refund the surcharge in full whenever the underlying Transaction is refunded; and (f) not assess a surcharge and a convenience fee on the same Transaction except where expressly permitted by the Card Network Rules. Surcharge and convenience fee functionality is disabled by default in every jurisdiction and is enabled only where ClearYard has confirmed, on the basis of a current review of the law of that jurisdiction, that the practice is permitted and the applicable conditions are configured; ClearYard may enable or disable the functionality by jurisdiction, by Customer, or in whole, at any time and with or without notice, including at the instruction of a card network, Processor, Sponsor Bank, or regulator. Customer remains solely responsible for determining whether, where, and in what amount it may lawfully surcharge. ClearYard's surcharge and convenience fee functionality, including any calculation of Cost of Acceptance, card type detection, or jurisdictional configuration, is provided for Customer's convenience only, does not constitute legal advice, and does not shift responsibility to ClearYard. Customer shall indemnify the ClearYard indemnified parties under Section 10.4(f) in respect of any surcharge or convenience fee it assesses.
A.10 Prohibited and Restricted Transactions. Customer shall not use the Platform to process Transactions that are unlawful, that fall within a business category prohibited by ClearYard, the Processor, the Sponsor Bank, or the Card Network Rules, or set out on ClearYard's then-current restricted business list available at clearyard.com/legal/acceptable-use, that are for the sale of goods or services Customer has not actually delivered or does not intend to deliver, that constitute cash advances or the refinancing of an existing debt, that are submitted on behalf of any person other than Customer, or that are submitted for the purpose of obtaining funding in advance of a bona fide sale.
A.11 Suspension of Payment Acceptance. ClearYard may immediately suspend or limit Customer's payment acceptance, in whole or in part, if: (a) a Processor, Sponsor Bank, or card network instructs ClearYard to do so; (b) ClearYard reasonably suspects fraud, unauthorized access, money laundering, sanctions exposure, or a violation of law or the Card Network Rules; (c) Customer's Reversal rate exceeds a threshold established by ClearYard, the Processor, or the Card Network Rules; (d) Customer fails to provide information requested under Section A.3; (e) Customer's account presents a material credit or operational risk to ClearYard, a Processor, a Sponsor Bank, or a Bank; or (f) an event described in Section 13.5 occurs. ClearYard will notify Customer as promptly as reasonably practicable and, where the cause is curable, will restore functionality promptly after the cause is resolved. Suspension does not relieve Customer of its obligation to pay Fees accrued through the date of suspension.
A.12 PCI DSS. Customer shall comply with the Payment Card Industry Data Security Standard ("PCI DSS") as applicable to Customer's environment, and shall complete any self-assessment questionnaire or attestation the Card Network Rules require of it. Customer shall not store, and shall not cause the Platform to store, full payment card numbers, magnetic stripe data, card validation codes, or PINs outside of the tokenized fields the Platform provides for that purpose. Customer shall notify ClearYard immediately of any actual or suspected compromise of cardholder data and shall cooperate with any forensic investigation required by the Card Network Rules, at Customer's expense.
A.13 Transaction Taxes. Customer is solely responsible for determining, collecting, reporting, and remitting all sales, use, value added, gross receipts, excise, and other transaction taxes arising from its sales to End Customers, whether or not those amounts pass through the Platform. Any tax calculation, tax rate, or tax reporting functionality in the Platform is provided for Customer's convenience only, does not constitute tax advice, and does not shift responsibility to ClearYard. Customer acknowledges that ClearYard, a Processor, or a Bank may be required to report amounts settled to Customer to taxing authorities, and Customer shall provide a valid IRS Form W-9 or other tax documentation on request.
A.14 Survival. Sections A.2, A.6, A.7, A.9, and A.13 survive termination of the Agreement.
SCHEDULE B - ACH ADDENDUM
Version 2.1. Effective September 25, 2026. Applies only to Customers who have accepted this Addendum under Section 1.4.
This ACH Addendum governs ACH origination and the Settlement Account through the Platform. Capitalized terms not defined here have the meanings given in the Terms.
B.1 Reserved.
B.2 The Settlement Account. Customer shall establish and maintain a Settlement Account in connection with the Platform. Customer authorizes ClearYard to act as Customer's agent in administering the account as described in the Agreement, including initiating and instructing credits and debits, obtaining balance and transaction information, and exercising the rights in Section 3.7. Customer shall not close, restrict, or change the Settlement Account, or grant any security interest in or deposit account control agreement over it, without giving ClearYard at least ten (10) business days' prior notice and designating a replacement Settlement Account, while any amount is or may become owing to ClearYard or a Financing Partner. Customer shall direct End Customer payments in respect of Transactions to the Settlement Account and shall not divert them. If Customer receives a payment in respect of a Transaction other than into the Settlement Account, Customer shall notify ClearYard promptly and shall remit the amount received to the Settlement Account within two (2) business days. To the extent of amounts then owing to ClearYard in respect of the relevant Transaction, Customer receives and holds that payment in trust for ClearYard, shall not commingle it with Customer's general funds, and shall hold it separate until remitted; ClearYard may exercise its rights under Section 3.7 in respect of that amount. This Section does not limit any further trust, assignment, or security arrangement provided for in the Working Capital Addendum.
B.3 Reserved.
B.4 ACH Origination. Where the Service Order provides, ClearYard may transmit ACH debit and credit entries on Customer's behalf. Customer is the Originator of every entry transmitted in respect of its Transactions, and ClearYard acts solely as Customer's agent in transmitting them; the Settlement Account is the destination of every debit entry originated to collect amounts owed to Customer. Customer: (a) authorizes ClearYard to transmit entries to collect amounts owed to Customer by End Customers and to make payments Customer directs; (b) shall ensure that a valid authorization, in a form ClearYard specifies, is obtained from each End Customer from whose account a debit entry is to be originated, naming Customer as Originator and ClearYard as Customer's agent and identifying the Settlement Account as the destination, and shall retain each authorization for the period required by the Card Network Rules and provide a copy to ClearYard on request within two (2) business days; (c) shall comply with the Card Network Rules applicable to Originators and Receivers, including those governing authorization, revocation, notice of variable entries, and written statements of unauthorized debit; (d) shall maintain its return rates below the thresholds established by ClearYard, its payments partners, and the Card Network Rules and shall implement remediation ClearYard reasonably requires; and (e) acknowledges that ClearYard may be required to register, report, and provide information regarding Customer to an originating depository financial institution, the Bank, or the applicable rulemaking body, and consents to that disclosure. Where the Platform presents the authorization to an End Customer on Customer's behalf at the point of payment, ClearYard does so as Customer's agent and the authorization so obtained satisfies clause (b); ClearYard does not thereby become the Originator or collect for its own account. ClearYard may refuse to transmit, may reverse, and may delay any entry in its discretion.
B.5 Settlement Timing. ClearYard settles Transaction proceeds to the Settlement Account in accordance with its then-current settlement schedule, as made available in the Platform, and subject to the requirements of its payments partners and the Card Network Rules. ClearYard may, in its sole discretion and at any time: (a) delay or withhold settlement of any Transaction, in whole or in part; (b) establish different settlement periods by payment method, Transaction, End Customer, or Customer; (c) with respect to card Transactions only, settle proceeds after authorization and before final settlement of the underlying Transaction; and (d) discontinue any early settlement at any time, with or without notice. Proceeds of ACH debit entries are not settled before expiry of the applicable return period for the entry type under the Card Network Rules, except under and in accordance with the Working Capital Addendum. Any early settlement under clause (c) is a discretionary accommodation that may be withdrawn at any time without liability, and Customer shall not represent or rely upon it as a committed facility.
B.6 Reserved.
B.7 Negative Balance. If the Settlement Account has a negative balance for any reason, including a Reversal, a returned entry, a fee, or an error: (a) the negative amount is immediately due and payable by Customer to ClearYard or the Bank without demand; (b) ClearYard may exercise any right under Section 3.7 to collect it, including debiting any other account Customer has designated; (c) ClearYard may suspend payment acceptance and Platform access until it is cured; and (d) Customer shall pay a negative balance cure fee in the fixed amount set out in the Service Order or in ClearYard's then-current published fee schedule, assessed once if the balance remains uncured on the tenth (10th) day after it arises and once more if it remains uncured on the thirtieth (30th) day. Each cure fee is a fixed amount that does not vary with the size or the duration of the negative balance, is assessed as compensation for ClearYard's administrative cost of managing an uncured balance and for Customer's breach of its immediate repayment obligation, and is not interest, a finance charge, or consideration for the use of funds. No interest accrues on a negative balance arising from a Reversal, a returned entry, or proceeds settled early under Section B.5; interest under Section 4.4 accrues only on unpaid Fees and on amounts that remain unpaid more than thirty (30) days after ClearYard has demanded repayment of a negative balance. Nothing in this Section limits or applies to any interest, discount, factoring fee, or other charge payable in respect of a funding accommodation under the Working Capital Addendum, which is governed exclusively by that Addendum and is disclosed in accordance with it. Where a negative balance arises from, or is repaid out of, a funding accommodation under the Working Capital Addendum, that Addendum controls.
B.8 Return and Reversal Risk. Customer bears the full risk of loss on any Transaction that is returned, reversed, charged back, or otherwise not finally collected, including where Customer has already withdrawn, spent, or transferred the corresponding funds. Customer acknowledges that proceeds settled early under Section B.5 may be subject to later return, that disputes regarding quantity, delivery, quality, or pricing of materials are a foreseeable cause of return, and that Customer, and not ClearYard, bears the resulting exposure. Customer shall reimburse ClearYard on demand for any amount ClearYard or the Bank is required to return, and Section 3.7 applies.
B.9 Reserved.
B.10 Suspension and Closure. ClearYard may suspend or limit ACH origination and settlement to the Settlement Account, immediately and without prior notice, if: (a) the Bank or a regulator so instructs or requires; (b) ClearYard reasonably suspects fraud, unauthorized use, money laundering, or sanctions exposure; (c) Customer breaches the Agreement or an event described in Section 13.5 occurs; (d) Customer fails to provide information required for the Bank's customer identification, beneficial ownership, or ongoing due diligence obligations; or (e) a negative balance remains uncured. On closure, and subject to ClearYard's rights under Section 3.7 and Section 13.7, any remaining settlement funds are disbursed to Customer.
B.11 Survival. Sections B.7, B.8, and B.10 survive termination of the Agreement.
SCHEDULE C - WORKING CAPITAL ADDENDUM [RESERVED]
Not published. To be drafted with the selected Financing Partner before any funding accommodation is offered.
This Schedule is reserved. It becomes part of the Agreement only when published and accepted by Customer under Section 1.4.