Zirtue Payment Processing Agreement

Last updated: September 11, 2020

These General Terms of Service ("General Terms") are a legal agreement between you ("you," "your company") and Zirtue, LLC ("Zirtue," "we," "our" or "us") and govern your use of Zirtue's services, including mobile applications, websites, software, hardware, and other products and services (collectively, the "Services"). If you are using the Services on behalf of a business, you represent to us that you have authority to bind that business or entity to these terms, and that business accepts these terms. By using any of the Services, you agree to these General Terms and any policies referenced within ("Policies"), including terms that limit our liability (see Section 18) and require individual arbitration for any potential legal dispute (see Section 21). You also agree to any additional terms specific to Services you use ("Zirtue Payment Partner Agreement"), such as those listed below, which become part of your agreement with us (collectively, the "Terms"). You should read all of our terms carefully.

WITNESSETH:

WHEREAS, Zirtue and Your Company wish to enter into a strategic alliance to market and perform certain complementary payment remittance services;

NOW, THEREFORE, in consideration of the foregoing and of the mutual premises hereinafter expressed, the parties hereto do mutually agree as follows:

1. SCOPE OF AGREEMENT

Your Company shall take all steps deemed necessary to market and promote Zirtue direct payment solution (collectively the "Zirtue Payment Services") for Your Company patients as an Alternative Payment Solution. Any engagement to perform Zirtue Payment Services shall be on such terms and conditions as Zirtue may approve in its sole discretion. Zirtue will perform, schedule, automate and manage all Zirtue Payment Services.

A. Payment Relationship Definition:

  1. Your Company and Zirtue have agreed to a payment agreement where Your Company will direct our financial institution partners, to transfer funds between the linked bank accounts of Your Customers and Your Company.
  2. Your referred customers are required to register as Zirtue Users and/or Account Holders to lend and/or borrow money with their friends. family or contacts prior to authorizing borrowed funds to be sent directly to Your Company
  3. Unless otherwise agreed in writing, Your Company will leverage Zirtue Payment Services at a service fee rate of 5% of the total payment amount to credit user’s account.

2. MANAGEMENT

Each party shall designate a manger, officer or other senior person to be responsible for the overall administration and execution of this Agreement. Your Company shall have ultimate responsibility for user/customer/subscriber/patient relationships for those that it elects to bill directly and offer Zirtue Payment Services as an alternative payment solution and Zirtue will follow Your Company direction. Zirtue will use its patent-pending platform to facilitate payments from users directed to Zirtue by Your Company minus service fee noted above or agreed upon in writing.

3. PARTNERSHIP

Nothing herein contained shall be construed to imply a joint venture, partnership or principal-agent relationship between Your Company and Zirtue, and neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing. The parties do not contemplate a sharing of profits relating to the Your Company Services or the Zirtue Payment Services so as to create a separate taxable entity under Section 761 of the Internal Revenue Code of 1986, as amended, nor co-ownership of a business or property so as to create a separate partnership under the law of any jurisdiction. Accordingly, for tax, property and liability purposes Your Company will provide Your Company Services to promote Zirtue Payment Services as an alternative payment solution, and Zirtue will perform the Zirtue Payment Services, each on a system basis and as an independent contractor of the other. Revenues and expenses relating to the Services and any additional services shall be reported separately by the parties for tax purposes. During the performance of the any of the Services, Your Company employees will not be considered employees of Zirtue, and vice versa, within the meaning or the applications of any federal, state or local laws or regulations including, but not limited to, laws or regulations covering unemployment insurance, old age benefits, worker's compensation, industrial accident, labor or taxes of any kind. Zirtue's personnel who are to perform the Zirtue Services or additional services to be provided by Zirtue hereunder shall be under the employment, and ultimate control, management and supervision of Zirtue.

4. TRADEMARK, TRADE NAME, AND COPYRIGHTS

Except as expressly provided herein, this Agreement does not give either party any ownership rights or interest in the other party's trade name, patents, trademarks or copyrights. The Materials are protected by copyright, trademark, patent, and other applicable laws. No license or other rights are granted except as expressly stated in these Terms. Unless otherwise stated herein, you may use the Materials solely for informational and noncommercial purposes. Unless expressly authorized by Zirtue or otherwise permitted by law, you may not copy, publish, display, distribute, alter or make derivative works of any Materials. You may not remove, alter, or obscure any proprietary notices on any Materials. Products mentioned in the Materials may not be generally available in your geographical country or region. Product descriptions are subject to change at Zirtue's discretion.

5. ZIRTUE WEB SERVICE APIs

If APIs are available on the Website without a separate license agreement, Zirtue hereby grants you a non-exclusive, non-sublicensable, non-transferable limited license to use the APIs exclusively for the benefit of Zirtue Customers. You assume all liability as a result of any use of the APIs. Zirtue makes no commitment to continued availability of APIs and you have no rights to version enhancement or support of any kind. Zirtue may revise or cease to provide APIs without notice at any time in Zirtue's sole discretion. NOTWITHSTANDING THE FOREGOING, COPYING OR REPRODUCTION OF THE APIS FOR FURTHER REDISTRIBUTION IS EXPRESSLY PROHIBITED.    

6. INDEMNIFICATION

Each of Your Company and Zirtue, at its own expense, shall indemnify, defend and hold the other, its partners, shareholders, directors, officers, employees, and agents harmless from and against any and all third-party suits, actions, investigations and proceedings, and related costs and expenses (including reasonable attorney's fees) resulting solely and directly from the indemnifying party's negligence or willful misconduct. Neither Your Company nor Zirtue shall be required hereunder to defend, indemnify or hold harmless the other and/or its partners, shareholders, directors, officers, directors, employees and agents, or any of them, from any liability resulting from the negligence or wrongful acts of the party seeking indemnification or of any third-party. Each of Your Company and Zirtue agrees to give the other prompt written notice of any claim or other matter as to which it believes this indemnification provision is applicable. The indemnifying party shall have the right to defend against any such claim with counsel of its own choosing and to settle and/or compromise such claim as it deems appropriate. Each party further agrees to cooperate with the other in the defense of any such claim or other matter.

7. LIMITATIONS OF LIABILITY

a. Exclusion of damages

Each party agrees that in no event will the other party or its suppliers or licensors be liable, under any theory of liability, however arising; for any costs of cover or for indirect, special, incidental, or consequential damages of any kind (including any loss of use, interruption of business, loss of business profits, loss of business information, and the like) arising out of this agreement, even if such party has been advised of the possibility of such damages. These limitations shall apply despite any failure of essential purpose of any limited warranty or remedy

b. Limitation on damages

If there shall be any liability of one party to the other that arises out of or is in any way connected to this Agreement, each party's aggregate liability for all damages, losses and causes of action whether in contract, tort (including negligence) or otherwise, either jointly or severally, shall not exceed the total amounts paid by the claiming party to the liable party during the preceding the day that the act or omission occurred that gave rise to the claim. Each party acknowledges that the other is not an insurer; that the payments made by hereunder are based solely on the value of the services and are not sufficient to warrant assuming any risk of consequential or other damages due to negligence or failure to perform. Due to the nature of the services to be performed, it is impracticable and extremely difficult to fix the actual damages, if any, which may result (proximately or otherwise) from negligence or failure to perform under this agreement. This limitation of liability reflects an allocation of risk between the parties in view of the fees charged, is not a penalty, and shall be exclusive. The limitations in this agreement shall apply despite any failure of essential purpose of any limited warranty or remedy.

8. INTELLECTUAL PROPERTY

Work performed on engagements pursuant to this Agreement by either Your Company and/or Zirtue and information, materials, products and deliverables developed in connection with engagements pursuant to this Agreement shall be the property of the respective parties performing the work or creating the information. All underlying methodology utilized by Zirtue and Your Company respectively which was created and/or developed by either prior to the date of this Agreement and utilized in the course of performing engagements pursuant to this Agreement shall not become the property of the other.

9. TERMINATION OF USE

Zirtue may, in its sole discretion, at any time discontinue providing or limit access to the Zirtue Websites, any areas of the Zirtue Websites, or any Zirtue Materials or User Content provided on or through the Zirtue Websites. You agree that Zirtue may, in its sole discretion, at any time, terminate or limit your access to, or use of, any or all of the Zirtue Websites or any Zirtue Material or User Content. In the event You are in material breach of the terms, Zirtue may, at its sole discretion, suspend or terminate Your account, delete Your Content from the Zirtue Website, and refuse You any current or future use of an Zirtue Website without notice. Zirtue shall not be liable to You or any third party for any such suspension or termination.

If You wish to terminate your account, you may do so by submitting your request via email to partners@zirtue.com. Please note that in the event that you elect to terminate your account, Zirtue has the right and may elect to continue to post and publish on the Websites personally identifying information associated with User Content that You have posted.

10. ENTIRE AGREEMENT

This Agreement together with all documents incorporated by reference herein, constitutes the entire and sole agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements, negotiations, understandings, or other matters, whether oral or written, with respect to the subject matter hereof. This Agreement cannot be modified, changed or amended, except for in writing signed by a duly authorized representative of each of the parties.

11. CONFLICT

In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document which may be annexed hereto, the terms of this Agreement shall govern.

12. ASSIGNMENT AND DELEGATION

Neither party shall assign or delegate this Agreement or any rights, duties or obligations hereunder to any other person and/or entity without prior express written approval of the other party.

13. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.