FLEX PAY NETWORK MERCHANT TERMS AND CONDITIONS

Last Updated: August 20, 2026 BY ACCESSING AND USING THE FLEX PAY SERVICE (FORMERLY, THE UPLIFT PAY MONTHLY SERVICE) (THE SERVICE), MERCHANT (AS DEFINED BELOW) ATTESTS IT HAS THE POWER TO BIND AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS (AS UPDATED, THESE TERMS). UPGRADE MAY CHANGE THESE TERMS FROM TIME TO TIME. ANY CHANGES WILL BE EFFECTIVE WHEN POSTED TO THIS SITE. IF MERCHANT DOES NOT AGREE TO THE TERMS AND CONDITIONS STATED HEREIN, PLEASE CEASE USE OF THE SERVICE IMMEDIATELY BY FOLLOWING THE OPT OUT PROCEDURE PROVIDED BY NETWORK PARTNER AND/OR UPGRADE.

THESE TERMS CONTAIN AN ARBITRATION AGREEMENT¹ THAT AFFECTS MERCHANT’S RIGHTS. MERCHANT HAS THE RIGHT TO OPT OUT OF THE ARBITRATION AGREEMENT AS DESCRIBED BELOW.

NETWORK ACCESS: Upgrade, Inc. (together with its affiliates in their capacities hereunder, Upgrade) makes the Service available to Merchant through that certain provider (together with its affiliates, the Network Partner) that enables Merchant to offer the Service through its online and/or mobile platform, or other distribution arrangement. Merchant’s integration of the Service will comply with any integration resources, documentation and instructions provided by Upgrade and/or Network Partner from time to time. Notwithstanding any provision to the contrary herein, if Merchant has entered into a separate written agreement with Upgrade or accepted other terms provided by Network Partner on behalf of Upgrade, in each case, governing the subject matter of these Terms, the terms of such agreement shall prevail and control. In the event of a conflict between these Terms and such agreement, such agreement shall govern.

CUSTOMER RELATIONSHIP: When a customer finances purchases using the Service, the loan to customer will be originated by Upgrade or one of its bank partners. Notwithstanding anything to the contrary, as between the parties, Upgrade will determine underwriting, credit decisioning, APR, loan amounts and term lengths in its discretion. Upgrade may enter separate agreements with Merchant’s customers (Upgrade Customer Agreement(s)) and Merchant may enter separate agreements with Merchant’s customers (Merchant Customer Agreement(s)). Upgrade is not a party under any Merchant Customer Agreement and Merchant is not a party under any Upgrade Customer Agreement. Merchant agrees to refer customers with inquiries related to Upgrade or the Service to Upgrade. Merchant will discuss the Service with customers only at Merchant’s usual place of business. Merchant will not discuss the Service at any other location, including a customer’s home, a customer’s workplace, dormitory lounges, and temporarily rented facilities.

MARKETING: Merchant may only use messaging mentioning Upgrade or the Service that has been approved by Upgrade and Upgrade’s bank partner(s) and provided through Network Partner. Merchant agrees Upgrade may use Merchant’s name and logo in its marketing materials and on its websites as well as in discussions with customers, prospective customers and industry and financial analysts.

CUSTOMER-FACING ACTIVITIES: Merchant must receive Upgrade’s pre-approval to market or offer the Service in any manner where Merchant personnel may discuss Upgrade or facilitate the Service directly with customers. In the event Merchant receives such approval, Merchant further agrees:

(i) to permit Upgrade to review any consumer consents and scripts at any time, upon Upgrade’s request, related to such activities; and

(ii) (a) Merchant’s or third-party employees, personnel, contractors, representatives or agents who perform such activities are not employees of Upgrade, (b) Upgrade will not be liable to such personnel for claims arising out of or related to their performance of such activities, even if such individuals are later deemed to be employees of Upgrade, (c) Merchant and such personnel may not (A) apply for Upgrade financing on behalf of a customer, or (B) enable a customer to apply for financing on a device that is not the customer’s personal device; (d) Merchant will promptly remove any such personnel who are not in compliance with these Terms from performing such activities.

CUSTOMER DISPUTE RESOLUTION PROCEDURES: Except to the extent otherwise required by applicable law, all disputes, inquiries, or complaints by a customer related to Merchant products, services or business (each, a Merchant Customer Dispute) will be first directed to Merchant for Merchant to resolve in accordance with applicable Merchant Policy (as defined below). Merchant will work in good faith to resolve each Merchant Customer Dispute in a timely manner, provided that, if applicable, Merchant will comply with the rules of the applicable card network in connection with such dispute. Merchant will comply with Upgrade’s reasonable requests, including providing Upgrade with supporting documentation to resolve the Merchant Customer Dispute. Merchant will direct any disputes, inquiries, or complaints by a customer related to the Service or Upgrade’s business (each, an Upgrade Customer Dispute) directly to Upgrade for resolution.

RETURNED PRODUCTS; REFUNDS: Merchant’s refund and return policy must be clearly and conspicuously displayed on Merchant’s website or otherwise easily accessible by customers prior to the customer’s completion of checkout. The policy must expressly disclose any restocking or similar fees charged by Merchant. In the event a Merchant’s product or service is returned to Merchant by a customer following a financed transaction, Merchant will (i) accept the return only if it complies with the applicable Merchant Policy; (ii) issue a full or partial refund in accordance with the applicable Merchant Policy, provided that such refund is not issued in the form of store credit; (iii) promptly refund the applicable amount to Upgrade so that Upgrade may credit the customer’s outstanding balance accordingly; (iv) be solely liable for any Merchant Customer Dispute arising from a partial refund; and (v) not use, nor permit a customer to use, the Service to facilitate payment of applicable restocking or similar fees as a standalone charge. Merchant may not withhold applicable restocking or similar fees from a refund processed in connection with the return of its products or services unless such fees are disclosed in advance and are subject to the requirements of the section entitled Usage Restrictions.

OTHER REQUIRED DISCLOSURES: If a Merchant product or service is subject to delayed fulfillment (e.g., preorders or backorders), Merchant must clearly disclose that fact on the applicable product and checkout pages before allowing the Service to be used in connection with that product or service.

FRAUD; CANCELLATION FOR FRAUD: (a) Merchant will designate an individual who will serve as the single point of contact for fraud matters related to the Service. Merchant will cooperate with Upgrade to prevent fraud and minimize the associated risk of loss. Except as otherwise stated in these Terms, Upgrade assumes the risk of loss resulting from fraud by customers with respect to captured transactions using the Service. Merchant assumes the risk of loss resulting from fraud (i) caused by Merchant or Merchant’s agents or representatives, (ii) if applicable, caused by Merchant’s third-party sellers selling goods and/or services through Merchant or such third-party sellers’ agents or representatives, and/or (iii) in connection with a change in a customer’s information (including shipping information) previously communicated to Upgrade in the checkout flow after Upgrade has approved such customer.

(b) If Upgrade informs Merchant that a transaction is fraudulent or likely fraudulent before the applicable product or service is shipped (or, in the case of an electronically delivered product or service, before any applicable regulatory void period has expired), and Merchant subsequently ships or provides (or, in the case of an electronically delivered product or service, does not cancel) the applicable product or service despite such information, Merchant will be liable for any loss resulting from such transaction. If Upgrade discovers that a captured transaction using the Service is fraudulent after the applicable product or service is shipped, but before the applicable product or service is delivered or otherwise made available to customer, and notifies Merchant (such notice, Upgrade Fraud Notice), Merchant will use best efforts to communicate with the applicable third party to recall the shipment, or, as applicable for services or electronically delivered product or service, cancel the provision of the applicable product or service. Merchant will respond to the Upgrade Fraud Notice within 24 hours and will provide Upgrade with (i) the current status, (ii) tracking information of the order and (iii) a description of actions Merchant is taking with respect to the fraudulent transaction. Merchant will be liable for any loss resulting from such transaction if Merchant fails to respond to an Upgrade Fraud Notice within such time period.

CANCELLATION FOR DELINQUENCY: If a customer has been delinquent on a loan serviced by Upgrade for 31 days or more and the customer’s booking or purchase has not yet reached the travel date or delivery date, as applicable, Merchant agrees to cancel the booking or purchase upon Upgrade’s request and to refund Upgrade in full within 30 days of such request forany payment previously made to Merchant with respect to such booking or purchase.

BANK ACCOUNT: Merchant will establish and maintain one or more depository account(s) in the United States or Canada in good standing (each, a Bank Account), which Merchant will reasonably cooperate with Upgrade to verify from time to time. Merchant will notify Upgrade in writing at least five days prior to any change of a Bank Account. Merchant authorizes Upgrade or its bank partner(s), and will ensure that Upgrade and/or its bank partner(s) are authorized by the account holder of the applicable Bank Account, to debit the applicable Bank Account for Payable Amounts (as defined below). Merchant will provide Upgrade with any necessary documentation related to Upgrade’s or its bank partners’ authorization to make disbursements or to debit the applicable Bank Account. Upgrade may suspend Payouts in the event that Upgrade or its bank partner(s), as applicable, is unable to debit or disburse Payouts to the Bank Account.

TRANSACTION ERRORS. To the extent (i) a sale or a loan related to these Terms is captured, canceled or voided by Merchant, directly or indirectly, whether by error or omission or (ii) Merchant uses a payment processor or other similar provider and a sale or a loan related to these Terms is captured, canceled or voided by such provider, directly or indirectly, whether by error or omission (each, a Transaction Error), the parties will work together to resolve such Transaction Error. Upgrade will have no liability with respect to any Transaction Error related thereto, and Upgrade may, in its reasonable discretion, withhold disbursements to Merchant or invoice Merchant for any amounts related to such Transaction Error.

PAYOUTS: Notwithstanding anything to the contrary, Upgrade may, in its sole and reasonable discretion, limit any disbursements to Merchant or direct applicable payment networks or processes to limit amounts available to Merchant, in whole or in part, during certain time periods based on Merchant’s account history and/or Upgrade’s periodic risk evaluation. Any amount withheld by Upgrade will not exceed its financial risk exposure. Following disbursement to Merchant, Upgrade will not be liable to Merchant for Merchant’s receipt of such disbursement.

PAYABLE AMOUNTS: As used herein, Payable Amount means any amount payable by Merchant to Upgrade pursuant to these Terms, including but not limited to: (i) accrued but unpaid fees; (ii) amounts relating to unresolved Merchant Customer Disputes; (iii) undisputed amounts owed by Merchant to Upgrade, and (iv) any applicable taxes on the foregoing. Upgrade will collect Payable Amounts by one or more of (A) netting out of amounts otherwise disbursed by Upgrade to Merchant; (B) debiting from a Bank Account, in accordance with the terms herein; (C) invoicing Merchant, which invoices will be paid by Merchant no later than 30 days after Merchant’s receipt thereof; or (D) if applicable, settling through the applicable payment network. Any invoice not disputed in writing within 90 days of receipt will be deemed final, conclusive, and no longer subject to objection or adjustment. Any Payable Amount that Upgrade is unable to collect or Merchant otherwise fails to pay in accordance with these Terms will be considered past due (collectively, Past Due Amounts). For each month where Merchant has Past Due Amounts, Merchant will incur an interest charge on the aggregate outstanding Past Due Amounts for such month equal to the lesser of (i) an annualized rate of 1.50% (equal to 18% per annum), or (ii) the maximum amount permitted by applicable law.

PAYMENT PROCESSING: For money transmission license and associated regulatory purposes, and to the extent a transaction requires a customer to make a one-time partial payment, Merchant appoints Upgrade as its payment collection agent solely for the purpose of accepting such one-time payment from customers on behalf of Merchant and such one-time payment will be treated as received by Merchant upon receipt by Upgrade. Upgrade’s obligation to transmit any such downpayment to Merchant is subject to and conditioned upon successful receipt of the associated downpayment from the customer. In accepting this appointment as limited payment collection agent, Upgrade assumes no liability for any of Merchant’s acts or omissions.

TAXES: Merchant will be responsible for: (i) all taxes, duties, levies, assessments and other governmental charges, including without limitation, sales, use, excise, value-added, goods and services taxes and similar taxes (collectively, Taxes) with respect to the Service and any fees due in connection therewith; (ii) determining applicable Taxes for Merchant product- and service-related payments; and (iii) assessing, charging, collecting, reporting and remitting Taxes to appropriate authorities. Upgrade will not be responsible for Taxes on Merchant’s income or gross receipts. All amounts payable by either party under these Terms are exclusive of any applicable taxes. In addition, if required by applicable laws, Upgrade may deduct applicable withholding Taxes from any disbursements due to Merchant and remit them to appropriate tax authorities. The net amount paid to Merchant after such withholding constitutes full satisfaction of Upgrade’s disbursement obligations. If applicable law requires Merchant to withhold Taxes on any fees payable by Merchant to Upgrade, such fees will be increased so that Upgrade receives the full amount it would have received without such withholdings.

TAX DOCUMENTATION; INFORMATIONAL RETURNS: Upon Upgrade’s reasonable request, Merchant will provide tax information, forms, documents, invoices or certificates to the extent required for Upgrade to comply with applicable law. If Merchant claims tax exemptions, Merchant will provide valid documentation that satisfies applicable law. Upgrade may file informational returns with tax authorities regarding Merchant’s use of the Service as required by applicable law. Merchant will provide Upgrade with its correct and complete legal name, address and tax identification number, and Merchant will reimburse Upgrade for any tax-related liabilities imposed on Upgrade resulting from incorrect or incomplete information. Merchant consents to electronic delivery of informational returns. Merchant may withdraw this consent by written notice to Upgrade, after which Upgrade will provide paper copies to Merchant’s address on record.

CONFIDENTIAL INFORMATION: Any information that Merchant obtains from Upgrade relating to these Terms or the Service (whether in writing or otherwise) is Upgrade’s confidential information unless it is public knowledge, publicly available, or in Merchant's lawful possession, and without an obligation of confidentiality, prior to being obtained from Upgrade. Merchant shall (i) protect and keep confidential Upgrade’s confidential information and not disclose it to any third party; and (ii) make no use of such confidential information other than as necessary for the performance of these Terms. Merchant shall use commercially reasonable efforts to return or destroy Upgrade’s confidential information upon request by Upgrade.

INTELLECTUAL PROPERTY: Upgrade retains all right, title and interest in the Service and all work developed or created by Upgrade during the course of providing support or services to Merchant. To the extent Merchant acquires any right, title or interest in any component of the Service, Merchant hereby irrevocably assigns, transfers and conveys to Upgrade all of its right, title and interest therein. Upgrade shall own any suggestions, enhancement requests, recommendations or other feedback provided by Merchant or Merchant’s customers relating to the operation of the Service.

DATA PRIVACY AND SECURITY: Upgrade uses certain forms during the customer application process (Forms) to obtain personally identifiable financial information of customers (collectively, Customer Information). In addition, Merchant may provide certain Customer Information to pre-populate fields in the Forms (Autofill Feature). Merchant must have obtained all applicable rights and customer consents required by law for that use.

Any Customer Information collected on Forms (including via the Autofill Feature) is the independent property of Upgrade regardless of whether the loan process is completed (but such rights will not affect Merchant’s independent rights to customer information collected by Merchant independently of the Service). Merchant agrees to process Customer Information in accordance with these Terms, applicable customer privacy policies and applicable law, and to not use Customer Information for any purpose other than as expressly permitted in these Terms. From time to time, upon at least thirty (30) days’ prior written notification and no more than once annually, each party shall have the right to audit (or have its independent auditor audit), at that party’s expense, the other party’s compliance with the foregoing security requirements.

Merchant agrees to notify Upgrade in the most expedient time possible and without unreasonable delay, but in no event more than forty-eight (48) hours unless earlier required by applicable law, upon becoming aware of any actual or alleged breach of the security, confidentiality, or integrity of Customer Information.

Merchant acknowledges that Merchant is responsible for the security of payment card account data to the extent that Merchant could impact the security of Upgrade’s systems.

COMPLIANCE: Each party will comply with all applicable court orders, laws, regulations, codes, and rules imposed by law, any competent government authority, governing body or regulator in the United States and Canada in connection with its performance under these Terms. In addition:

(a)If Upgrade has reasonable concerns about the eligibility of Merchant to offer the Service in compliance with these Terms, Merchant will reasonably cooperate with Upgrade to allow Upgrade to evaluate Merchant’s eligibility or compliance, which may include providing Upgrade with non-publicly available information reasonably requested by Upgrade. Any information provided pursuant to this Section that is Merchant confidential information will be treated as such in accordance with these Terms.

(b) Merchant will maintain and comply with Merchant’s agreements with customers and consumer-facing policies (including shipping and fulfillment, privacy, refunds and returns, and dispute resolution) which will meet or exceed reasonable industry standards (each, a Merchant Policy), provided that in the event of a conflict or inconsistency between these Terms and a Merchant Policy, these Terms will control as between the parties.

USAGE RESTRICTIONS: Merchant agrees not to, nor will Merchant knowingly allow any third party to: (i) require, add, or charge any fees, finance charges, or interest to prices charged to customers for the use of the Service or otherwise in connection with applying for or receiving financing pursuant to the Service or otherwise advertise or impose a surcharge fee or other cost intended to recover or offset the cost of payment processing, whether in whole or in part; (ii) charge a different price or provide varying terms and conditions for goods or services for those customers using the Service as compared to those customers that are not using the Service, exclude customers from receiving or participating in any discounts, rebates, savings, offers, incentives, loyalty program benefits, points, or rewards as a result of their use of the Service, or otherwise discriminate among customers in any unlawful way; (iii) advertise or impose a surcharge or fee described, labeled, or presented to customers as a “payment fee,” “processing fee,” “transaction fee,” or any substantially similar term; (iv) access or use the Service in a way intended to avoid incurring fees, misrepresent usage or performance data, misrepresent transaction amounts or item data or misrepresent user information; (v) offer or sell any products using the Service where such transaction would result in (a) any lien or other encumbrance, debt, mortgage, attachment, pledge, charge, claim, or other security interest, or (b) the transfer of any existing lien or other encumbrance, debt, mortgage, attachment, pledge, charge, claim, lien, or other security interest to the customer, including with respect to titled goods; (vi) use the Service in any unlawful manner, for any unlawful purpose or in violation of applicable laws (including Regulation Z, 12 C.F.R. § 1026, if applicable); (vii) sell or offer for sale illegal, obscene, dangerous or drug-related materials, hazardous materials, human or animal products, or firearms or ammunition or any similar material or otherwise use the Service in connection with any categories of business practices prohibited by Upgrade. In the event Merchant violates this section, Merchant will take all actions necessary to restore affected customers to the position they would have been in had the violation not occurred, including but not limited to reimbursing Upgrade for any amounts Upgrade refunds to affected customers.

ADDITIONAL RESTRICTIONS: Merchant further agrees not to, nor will Merchant allow any third party to: (i) send through or store infringing or unlawful material in the Service; (ii) send through or store in the Service any viruses or any other contaminants (including codes, commands, instructions, devices, techniques, bugs, web bugs or design flaws) that access (without authorization), alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, inhibit or shut down any component of the Service, any of Upgrade’s computer systems, networks, infrastructures, devices, websites, databases, software or other data or property; (iii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service; (iv) access the Service for the purpose of building a competitive product or service; (v) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication; (vi) provide access to the Service by any person or entity besides Merchant, including, without limitation, by a known competitor of Upgrade; (vii) remove, obscure or otherwise modify or destroy any proprietary markings of Upgrade or other parties that may appear on any component of the Service; (viii) attempt to create a substitute or similar service through use of, or access to, the Service; or (ix) use the Service except in accordance with the requirements set forth in these Terms and any documentation provided by, or on behalf of, Upgrade. Unless otherwise agreed by Upgrade in writing, Merchant may only offer the Service to residents of the United States and Canada.

UPDATES: Upgrade may apply upgrades, patches, bug fixes, or other maintenance to the Service (Maintenance). Merchant will comply with any Maintenance requirements Upgrade provides and will promptly notify Upgrade of, and assist Upgrade in diagnosing, any failure or impediment to Merchant’s use of the Service. Merchant will notify Upgrade as early as reasonably possible of any anticipated substantial increase in use of the Service and will provide estimates of anticipated demand upon Upgrade’s request. Upon further request, Merchant will promptly provide Upgrade with aggregated and anonymized data regarding past and anticipated volume through the Service, including pageview volumes for webpages that host Upgrade promotional messaging, overall transaction volumes, and Upgrade transaction volumes (including average daily transaction volumes, daily impression volume peaks, and hourly impression volume peaks), as applicable.

SUSPENSION; TERMINATION. Upgrade reserves the right, in its sole and absolute discretion, to suspend, restrict, or terminate access to or use of the Service, in whole or in part, at any time. Termination will not release either party from financial obligations owed to the other party under these Terms whether such financial obligations are incurred prior to or after expiration or termination. The Parties will cooperate to complete all such outstanding obligations to customers related to the Service.

INDEMNIFICATION: Merchant will defend, indemnify, and hold harmless Upgrade and its respective officers, directors, agents, employees, successors, and assigns (individually and collectively, an Upgrade Party) from and against all penalties, damages, losses, or expenses (including reasonable attorneys’ fees) (collectively, Losses) suffered, incurred, or sustained by any Upgrade Party resulting from or arising out of any claim relating to: (i) Merchant’s breach of an obligation under these Terms; (ii) personal injury (including death) or property damage resulting from Merchant’s acts or omissions; (iii) the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, discrimination, or product defects; (iv) any Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Merchant with respect to or in connection with Merchant's use of the Service and any Taxes in connection with Merchant’s business; (v) Merchant’s violation, misappropriation, or infringement of the intellectual property of a third party; (vi) fraud, gross negligence, or willful misconduct of Merchant; (vii) the acts or omissions of Merchant’s agents or representatives; or (viii) a security incident by Merchant.

A right to indemnification under these Terms is conditioned upon the following: (i) notice by the indemnified Party (the Indemnified Party) to the other party (the Indemnifying Party) after the Indemnified Party’s receipt of the assertion or the commencement of any third-party action, proceeding, or other claim with respect to which the Indemnified Party will seek indemnification under these Terms; (ii) control of the investigation, preparation, defense, and settlement thereof by the Indemnifying Party (provided, however, that the Indemnifying Party will not, without the prior consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to the indemnified claim); and (iii) cooperation by the Indemnified Party, at the Indemnifying Party’s request, in the Indemnifying Party’s defense of the indemnified claim. The Indemnified Party will have the right to participate in the defense of the indemnified claim at the Indemnified Party’s expense (notwithstanding any indemnification obligations under these Terms).

REPRESENTATIONS AND WARRANTIES: Each party represents and warrants that as of the effective date of these Terms: (i) it is duly formed, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation; (ii) it has the authority to enter into these Terms; (iii) these Terms constitute legal, valid, and binding obligations of each party; (iv) it is in compliance with applicable law in connection with its obligations under these Terms; (v) it has no pending or, to its knowledge, threatened litigation, arbitration matter, or other dispute that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such party’s ability to perform under these Terms; and (vi) the execution and delivery of these Terms will not conflict with, or result in a violation or breach of, any of the terms, conditions, or provisions of such party’s organizational documents or any legal restriction or any agreement or instrument to which such party is now a party or by which it is bound, or require the consent of any person or entity not subject to these Terms. Merchant represents, warrants, and covenants that it will convey good and valid title to the products and services delivered or otherwise made available to a customer as a result of any captured transaction using the Service, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind. As applicable, Merchant has all third-party licenses or consents required to enable Upgrade to use Merchant’s marks, logos and similar materials in marketing or promotional materials in connection with the Service, at no additional cost to Upgrade.

EXCLUSIVITY: Except for the Service, Merchant will not integrate, market, offer, sell, or promote any products or services in the United States or Canada that: (i) are similar to the Service, including any installment loan or payment deferral options; or (ii) are open-ended credit programs. Merchant will not be prohibited under this section ‎from accepting generally accepted multi-purpose credit, charge cards, or debit or secured cards (e.g., MasterCard or Visa cards).

GOVERNING LAW; VENUE. These Terms are governed exclusively by the internal laws of the State of California, without regard to its conflicts of law rules. Any dispute arising hereunder shall be brought exclusively in the courts located in San Francisco County, California and Merchant will only refer any dispute to the court after having done their utmost to resolve the dispute in mutual consultation. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to these Terms or the parties hereto.

SURVIVAL: This section and the sections herein entitled Confidential Information, Intellectual Property, Data Privacy and Security, Compliance, Usage Restrictions, Additional Restrictions, Suspension; Termination, Indemnification, Governing Law; Venue, Liability, Dispute Resolution; Arbitration, and Waiver Of Jury Trial; No Class Action; No Representative Action, and any other provision of these Terms that contemplates performance or compliance subsequent to termination or expiration of these Terms, will survive termination of these Terms.

LIABILITY: IN NO EVENT SHALL UPGRADE BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING LOST PROFITS AND LOST SAVINGS) ARISING OUT OF THESE TERMS, WHETHER DUE TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY WILL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, OR IN THE EVENT OF PERSONAL INJURY OR DEATH.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, VERBAL, STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THESE TERMS OR OTHERWISE ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UPGRADE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

IN NO EVENT SHALL UPGRADE’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL FEES PAYABLE TO UPGRADE UNDER THESE TERMS AND ANY APPLICABLE ORDER FORMS FOR THE 12 MONTHS PRIOR TO THE MONTH IN WHICH THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. FOR THE AVOIDANCE OF DOUBT, UPGRADE HAS NO LIABILITY UNDER ANY MERCHANT CUSTOMER AGREEMENTS. ALL CLAIMS FOR ANY LOSSES ARISING OUT OF OR RELATING TO UPGRADE’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THESE TERMS MUST BE FILED WITHIN TWO (2) YEARS OF THE DATE ON WHICH THE CLAIM AROSE, UNLESS SUCH TIMEFRAME IS UNENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE THE APPLICABLE STATUTE OF LIMITATIONS OF THE RELEVANT JURISDICTION WILL APPLY. THESE LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. EACH PARTY ENTERS INTO THESE TERMS IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

DISPUTE RESOLUTION; ARBITRATION: ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, OR THE INTERPRETATION, ENFORCEABILITY, OR VALIDITY OF THESE TERMS, INCLUDING THE SCOPE OR APPLICABILITY OF THE AGREEMENT TO ARBITRATE, THAT CANNOT BE RESOLVED INFORMALLY BY THE PARTIES (“DISPUTE”) WILL BE SOLELY AND FINALLY RESOLVED PURSUANT TO THIS SECTION (DISPUTE RESOLUTION; ARBITRATION).

DISPUTE RESOLUTION: THE PARTIES WILL USE THEIR BEST EFFORTS TO RESOLVE ANY DISPUTE BY GOOD FAITH NEGOTIATION. NO ARBITRATION PROCEEDING MAY BE COMMENCED UNTIL AT LEAST FOURTEEN (14) DAYS AFTER A PARTY’S SENIOR REPRESENTATIVE COMMUNICATES TO THE OTHER PARTY A GOOD FAITH CONCLUSION THAT AN AMICABLE RESOLUTION OF THE MATTER IS UNLIKELY. ANY DISCUSSIONS UNDERTAKEN WILL BE CONFIDENTIAL COMPROMISE AND SETTLEMENT NEGOTIATIONS WITHOUT PREJUDICE TO ANY PARTY’S RIGHT TO ANY OTHER REMEDY IN LAW OR EQUITY OR UNDER THESE TERMS.

ARBITRATION:ANY DISPUTE THAT REMAINS UNRESOLVED FOLLOWING THE NEGOTIATIONS WILL BE SOLELY AND FINALLY SETTLED BY CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THESE TERMS AND, WHERE NOT INCONSISTENT WITH THESE TERMS, WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION, WHICH RULES ARE HEREBY INCORPORATED BY REFERENCE. THE LOCATION OF THE ARBITRATION WILL BE IN SAN FRANCISCO, CALIFORNIA OR, IF BOTH PARTIES AGREE, REMOTELY THROUGH VIDEO CONFERENCE. THE ARBITRATION WILL BE CONDUCTED IN ENGLISH BY A PANEL OF THREE NEUTRAL ARBITRATORS, WITH EACH PARTY SELECTING ONE ARBITRATOR AND THE TWO APPOINTED ARBITRATORS THEN JOINTLY SELECTING THE THIRD. EXCEPT AS MAY BE REQUIRED BY LAW OR EXPRESSLY PERMITTED IN THESE TERMS, THE PANEL IS NOT EMPOWERED TO AWARD PUNITIVE, EXEMPLARY, SPECIAL, SPECULATIVE, INDIRECT, PRE-AWARD INTEREST, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR ANY OTHER SIMILAR DAMAGE OR LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, STATUTES OR REGULATIONS OR ANY OTHER THEORY), ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES OR LOSSES. ALL COSTS AND EXPENSES OF THE ARBITRATORS WILL BE BORNE BY THE PARTIES EQUALLY, AND EACH PARTY WILL BEAR ITS OWN ARBITRATION COSTS, INCLUDING ITS ATTORNEYS’ FEES AND TRAVEL EXPENSES. A REASONED AWARD WILL BE ISSUED IN WRITING BY THE PANEL AND WILL BE FINAL AND BINDING UPON THE PARTIES. IF NOT FULLY SATISFIED WITHIN THIRTY (30) DAYS, SUCH AWARD MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION AND EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURT AND THE AWARD GRANTED IN ACCORDANCE WITH IT. NOTHING IN THESE TERMS LIMITS THE RIGHT OF A PARTY TO OBTAIN PROVISIONAL, INJUNCTIVE, OR ANCILLARY REMEDIES FROM A COURT OF COMPETENT JURISDICTION BEFORE, AFTER, OR DURING THE PENDENCY OF ANY ARBITRATION. NEITHER PARTY HAS THE RIGHT TO ARBITRATE ON A CLASS OR REPRESENTATIVE BASIS ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, OR THE INTERPRETATION, ENFORCEABILITY, OR VALIDITY OF THESE TERMS.

EXCEPTIONS TO ARBITRATION. NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT THE FOREGOING DISPUTE RESOLUTION AND ARBITRATION PROVISIONS WILL NOT APPLY WITH RESPECT TO ANY THIRD-PARTY CLAIM IN THE EVENT SUCH THIRD PARTY: HAS INITIATED A LAWSUIT OR OTHER JUDICIAL, ADMINISTRATIVE, OR ARBITRATION PROCEEDINGS AGAINST OR INVOLVING EITHER OR BOTH OF THE PARTIES IN WHICH A DISPUTE WILL BE RESOLVED; OR IS A NECESSARY PARTICIPANT IN ANY JUDICIAL, ADMINISTRATIVE, OR ARBITRATION PROCEEDINGS TO RESOLVE A DISPUTE AND CANNOT BE JOINED BY EITHER OR BOTH OF THE PARTIES IN A RESOLUTION OF SUCH DISPUTE PURSUANT TO THE PROCEDURES SET FORTH ABOVE AND AS SUCH THE PROCEDURE(S) SET FORTH ABOVE IS OR WILL BE INEFFECTIVE AS TO SUCH DISPUTE.

SHOULD ANY PORTION OF THESE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS BE FOUND TO BE UNENFORCEABLE, SUCH PORTION WILL BE SEVERED FROM THESE TERMS, AND THE REMAINING PORTIONS WILL CONTINUE TO BE ENFORCEABLE. HOWEVER, IF FOR ANY REASON ALL OF THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS ARE FOUND TO BE UNENFORCEABLE, THEN THE FOLLOWING WILL APPLY INSTEAD:

ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THESE TERMS, MUST BE BROUGHT BY EITHER PARTY EXCLUSIVELY IN THE STATE COURT SITUATED IN THE COUNTY OF SAN FRANCISCO, CALIFORNIA OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION OR PROCEEDING OR JUDGMENT THEREON (IT BEING UNDERSTOOD THAT SUCH CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).

WAIVER OF JURY TRIAL; NO CLASS ACTION; NO REPRESENTATIVE ACTION: EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THESE TERMS, AND AGREES THAT ANY SUCH ACTION, SUIT, PROCEEDING OR COUNTERCLAIM WILL NOT BE TRIED BEFORE A JURY AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ENTERING INTO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO AGREES THAT ANY SUCH PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.

1 To hyperlink to arbitration section.