Upside Pay Addendum

IMPORTANT NOTICE: THIS IS A BINDING AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT WISH TO ENTER INTO THESE TERMS OR DO NOT UNDERSTAND THEM, PLEASE DO NOT USE UPSIDE PAY. YOUR USE OF UPSIDE PAY CONSTITUTES YOUR AGREEMENT TO THESE TERMS. WE MAY UPDATE THESE TERMS BUT WILL PROVIDE YOU WITH NOTICE OF MATERIAL CHANGES AT LEAST 15 DAYS IN ADVANCE, SO PLEASE CHECK THESE TERMS REGULARLY. YOU MAY NOT USE UPISE PAY FOR ANY REASON BUT TO PARTICIPATE IN THE PROGRAM.

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This Upside Pay Addendum (“Addendum”) sets forth the terms and conditions governing your use of Upside Pay.  Capitalized terms not otherwise defined herein will have the meaning ascribed to them in the Merchant or Retailer Agreement between you and Upside (“Agreement”).

A. Definitions

1. “Payment Account” means the account designated by you for receipt of Net Proceeds and if payment of amounts owed to Upside for matters like refunds.
2. “Expenses” means any Incremental Profit Fees, Promotions, Processing Fee and other fees agreed to in writing between the parties.
3. “Gift Card” means a one-time, non-reloadable, closed-loop, prepaid electronic gift card generated by your Card Processor, redeemable for your goods and services, and issued pursuant to your Gift Card Program.
4. “Gift Card Program” means the terms and conditions governing your issuance and redemption of gift cards sold to your customers.
5. “Net Proceeds” means the amount of a Subscribing Customer’s Gift Card redeemed in connection with a sale of your goods and services minus Expenses.
6. “ReversedTransaction” means any sales transaction on the Platform for which you have received Net Proceeds that is reversed, including due to a return or refund issued to a Subscribing Customer or a Subscribing Customer reviewing the transaction by issuing a chargeback or dispute.

B. General

“Upside Pay” will enable Subscribing Customers to claim a Promotion and complete a transaction with you by purchasing a Gift Card through the Platform and redeeming that Gift Card with you for the transaction amount.

1. Gift Card Creation. By executing this Addendum, you authorize Upside to (i) communicate directly with your Card Processor to request issuance of a Gift Card in the amount of the transaction requested by the applicable Subscribing Customer; and (ii) sell the Gift Card to the Subscribing Customer on your behalf.
2. Redemption. You agree (i) to accept all Gift Cards generated pursuant to this Addendum, in the amount of each such Gift Card, as payment for your goods and services; and (ii) to apply your standard terms to any purchase made by Gift Card, including your standard terms for customer service, returns, and refunds. 
3. Settlement. Upon a Subscribing Customer’s purchase from you using a Gift Card, Upside will direct Card Processor to  settle the Net Proceeds for the transaction to your Payment Account. You acknowledge that Upside does not receive any Net Proceeds in connection with Gift Card sales and you agree that Upside shall have no liability for any failure by Card Processor to settle Net Proceeds to you based on Upside’s instructions.
4. Limited Agency. By executing this Addendum, you agree that if Upside receives funds associated with a Subscribing Customer’s purchase of a Gift Card: (i) Upside is acting as your agent for the portion of such funds that represents your Net Proceeds of the Subscribing Customer’s purchase of your goods and services; and (ii) that receipt of the Net Proceeds by Upside as your agent constitutes your receipt of the Net Proceeds. You agree that upon accepting a Gift Card (together with any other payment method a Subscribing Customer may provide, as applicable) in the amount of the purchase price, the sale is complete and you will have recourse only against Upside or Card Processor (and not against the Subscribing Customer) if you do not receive the Net Proceeds for the transaction. 
5. Restrictions. Upside reserves the right to decline to process any requests from a Subscribing Customer to purchase a Gift Card in its own discretion. Notwithstanding any provision to the contrary in this Addendum, Upside shall be under no obligation to sell (i) a Gift Card with a value in excess of $2,000 to any individual or legal entity on any single day; or (ii) one or more Gift Cards with an aggregate value in excess of $10,000 to any individual or legal entity on any single day.
6. Return of Gift Card Sales. If a Subscribing Customer (i) fails to redeem the entire amount of a Gift Card in a transaction with you immediately following purchase of the Gift Card from Upside; (ii) requests a refund prior to redeeming the Gift Card; or (iii)  disputes, reverses, returns, or charges back the Gift Card purchase (a “Dispute”), Upside will be responsible for managing the return of the Subscribing Customer’s payment or otherwise resolving the Subscribing Customer’s dispute, as the case may be, in Upside’s sole discretion. Notwithstanding the foregoing, Upside reserves the right to debit the Payment Account for the amount of any Net Proceeds paid to you in connection with a transaction for which Upside has directed the return of a Subscribing Customer’s payment as a result of a Dispute.

 C. Your Responsibilities

1. Upside Pay Use; Business Changes. You agree to only redeem Gift Cards in connection with a bona fide sale of your goods and services and that you will not redeem Gift Cards or otherwise use Upside Pay on behalf of any third party. You further agree to provide us with written notice of any material changes in your business model, terms of sale (including your return and refund policies), or the goods and services you offer for sale that may affect this Addendum.
2. Processor Relationship. You are responsible for maintaining your relationship with your Card Processor, and you agree that Upside has no liability in connection with your inability to accept Gift Cards for payment resulting from any issue with your Card Processor, including your decision to change Card Processors. Upon receiving notice from you of your intent to change Card Processors, Upside may, but is not obliged to,  provide Upside Pay to you through your new Card Processor. 
3. Gift Card Terms. You represent and warrant that your Gift Card Program: (i) complies with applicable law; (ii) can be used to purchase only your goods and services and not the goods and services of any third party; (iii) prohibits customers from purchasing or redeeming a gift card, including a Gift Card, in an amount greater than $2,000 on any given day; and (iv) prohibits customers from purchasing gift cards in an amount that, in the aggregate, exceeds $10,000.
4. Fees and Expenses. You are responsible for paying for all Expenses pursuant to Exhibit 1 to this Addendum. 
5. Statements. On at least a monthly basis, Upside will provide you with a statement of the Promotions claimed, Gift Cards sold and redeemed, Expenses you incurred, and Net Proceeds settled to you during the prior month, on a transaction-by-transaction basis (a “Statement”). You are responsible for reviewing each Statement and providing us notice of any item you believe in good faith to be inaccurate. Your failure to provide notice of any disputed item in a Statement within sixty (60) days of the date of such Statement will constitute your acceptance of the Statement as accurate.
6. Merchant Returns and Refunds. You will be responsible for managing any request for a return or refund from a Subscribing Customer, under the terms of your Gift Card Program and standard return and refund policies, in connection with transactions paid by Gift Card. Upside shall have no liability to you or any Subscribing Customer in connection with a Subscribing Customer’s request for a return or refund from you and you agree not to respond to such requests by directing any Subscribing Customer to dispute their purchase of a Gift Card from Upside. 

D. Term and Termination

1. General. The term of this Addendum will commence as set forth in the Agreement and will continue during the duration of your use of Upside Pay. 
2. Automatic Termination. This Addendum will terminate automatically in the event the Agreement is terminated or expires for any reason.
3. Termination for Cause. (a) Either party may terminate this Addendum if the other materially breaches this Addendum and fails to cure such material breach within 30 days of written notice from the other party. (b) Upside may terminate this Addendum upon three (3) days’ written notice to you if: (i) Upside determines its continued performance under this Addendum would not comply with applicable laws or the operating rules of any payment card network; (ii) Upside is required to discontinue providing Upside Pay by any regulatory agency with jurisdiction over Upside or by your Card Processor; (iii) you no longer have a relationship in good standing with your Card Processor; or (iv) you have not designated an active Payment Account and provided Upside with ACH authorization pursuant to the Agreement.
4. ‍Effect of Termination. Upon termination of this Addendum, all amounts you owe to Upside under this Addendum will become immediately due and payable. Upside will settle (or direct the settlement) any outstanding Net Proceeds for Gift Card transactions you have accepted prior to termination.
5. Limitation of Liability. The Limitation of Liability section of the Agreement will apply to this Addendum; provided, that the cap on direct damages pursuant that provision will not apply to (i) Upside’s liability for the amount of Net Proceeds owed, but not settled to you; and (ii) your liability to Upside for Reversed Transactions.  This Section will survive the termination of this Addendum.  NOTWITHSTANDING THE FOREGOING, UPSIDE SHALL NOT BE LIABLE FOR THE ACTIONS OF THIRD PARTIES.
6. Miscellaneous. Sections on Disclaimer, Force Majeure, and Miscellaneous of the Agreement will apply to this Addendum.