Co-Brand Agreement

CO-BRAND AGREEMENT

THIS CO-BRAND AGREEMENT (including all schedules, appendices, exhibits, addenda and amendments, the “Agreement”) is entered on the date of the agreed Fee Schedule (the “Effective Date”) by and between Third National (together, “Third National”), and you, the Co-Brand partner(“Company”). Each of Third National and Company shall also be referenced as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS Company desires to offer co-branded Credit Cards to certain of its Customers through Company relationships with institutions authorized to issue Credit Cards;

WHEREAS Third National desires to issue the Credit Cards to Company’s Customers by providing a designated BIN or BIN range to Company pursuant to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and representations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

ARTICLE 1

Definitions

In addition to terms defined elsewhere within this Agreement, the following terms have the definitions indicated.

“Account” means a Credit Card Account offered by the Parties pursuant to a Program under this Agreement.  

“Account Agreement” means, collectively, the agreements, including all Credit Card Agreements, between Third National and a Customer governing the terms and use of a Credit Card and all related disclosures as may be required by Applicable Law, Network Rules, or deemed necessary by Third National.

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.

“AML” means anti-money laundering.

“Applicable Law” means, with respect to any Person, any law (including common law), ordinance, statute, treaty, rule, order, regulation, official directive, consent, approval, opinion, interpretation, regulatory guidance, authorization, or other determination or finding of any Governmental Authority, applicable to or binding upon such Person or to which such Person is subject, whether federal, state, county, local, foreign or otherwise, as may be amended and in effect from time to time, including but not limited to the GLB Act, the Bank Secrecy Act, the prohibition against unfair and deceptive acts and practices in the Federal Trade Commission Act, state data security laws, and the USA PATRIOT Act.

“BIN” means bank identification number, a number assigned to a Credit Card issuer by a Network.  

“Card Program” means a system of services and features, as mutually agreed by Company and Third National, relating to a particular type of Card provided by Company and Third National pursuant to this Agreement.  This Agreement contemplates that multiple Card Programs may be offered hereunder.

“Company Change in Control” means there occurs a merger, consolidation, or sale of all or substantially all assets or other corporate transaction involving Company, in each case, with respect to which the stockholders of the Company immediately before such transaction do not, immediately after the transaction, own more than fifty percent (50%) of the combined voting power of the Company or the other corporation resulting from such transaction; provided, however, (i) a corporate reorganization and (ii) a financing transaction by Company involving the issuance of newly issued securities where no one new stockholder (including its Affiliates and those acting in concert with it) owns more than twenty-five percent (25%) at the close of the financing transaction shall not constitute a Company Change in Control.

“Credit Card” means a credit card issued by Third National in connection with any Program implemented pursuant to this Agreement and under authority from a Network.

“Credit Card Account” means (i) the account which is associated with a Credit Card, and includes the record of debits and credits with respect to Transactions originated by a Customer as detailed on the Processor’s Network, and (ii) such other accounts for Additional Products.

“Credit Card Agreement” means the agreement between Third National and a Customer governing the terms and use of a Credit Card.

“Customer” means any Person who in connection with a Program opens and holds a Credit Card.

“Customer Information” means a Customer’s name, address, or telephone number in conjunction with the Customer’s security number, driver’s license number, Account number, credit or debit card number, or a personal identification number or password that would permit access to the Customer’s Account, or any combination of components of customer information that would allow someone to log onto or access a Customer’s Account, such as a username and password, or password and Account number.  

“GLB Act” means, collectively, the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801, et. seq., the Privacy Regulations, and the standards for safeguarding customer information set forth in 12 C.F.R. Part 1016 and 16 C.F.R. Part 314 or such corresponding regulations as are applicable to the Programs and the Parties.

“Governmental Authority” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether foreign, federal, state or local, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).

“IDV” means identity verification.

“KYC” means customer identification, commonly referred to as “know your customer.”

“Losses” means liabilities, costs, expenses (including reasonable attorneys’ fees and expenses and costs of defense), damages, judgments, fines, claims, damages or liabilities, and amounts paid in settlement.

“Marketing Material” means any advertisements, brochures, applications, promotional materials, telemarketing scripts, and any other written materials relating to the Company Account Company, including all marketing and advertising in paper or electronic or other formats, electronic web pages, electronic web links and any other type of promotional materials related to a Program, and any such materials sent to, or the scripts or templates used in connection with oral communications with, a Customer or potential Customer.

“Network” means: (a) Visa Inc., Visa USA Inc., and Visa International, Inc.; (b) Mastercard Incorporated, Mastercard Worldwide, Inc. and Mastercard International Incorporated; (c) American Express; (d) JCB Co., Ltd; (e) Discover Financial Services and Diners Club International; (f) China UnionPay and UnionPay International; (g) the Automated Clearing House; (h) the Society for Worldwide Interbank Financial Telecommunication; (h) the ClearingHouse LLC; (i) the operators of one or more ATM debit networks; and (j) any similar entity, organization, affiliation or association, or any future affiliate or successor of any such entity that (i) operates a payment network; or (ii) promulgates and enforces the operating rules and regulations of a payment network.  

“Network Rules” means, with respect to a Network, the rules and obligations governing the use of the Network by third parties, as may be amended or restated from time to time, including, but not limited to, the Payment Card Industry Data Security Standards.  

“Third National Marks” means the service marks, trademarks, and copyrights of Third National, including the names and other distinctive marks or logos, which identify Third National or a designated co-brand partner as determined by Third National.

“Third National Services” means the Products and services provided by Third National to Company, and to Company on behalf of Customers, with respect to a Program under this Agreement. Third National Services shall include, but are not limited to, serving as the issuer with respect to Credit Cards.

“Notice Related Costs” shall mean reasonable internal and external costs of a Party and its Affiliates associated with addressing and responding to a security incident that occurs at the other Party, including, without limitation: (i) preparation and mailing or other transmission of such notices and other communications to customers, suppliers, employees, contractors or other contractual partners of the Party or others as such Party deems reasonably appropriate; (ii) if determined necessary by the Party, establishment of a call center or other communications procedures in response to such security incident (e.g., customer service FAQs, talking points and training); (iii) public relations and other similar crisis management services; (iv) legal and accounting fees and expenses reasonably incurred and associated with the Party’s investigation of and response to such event; and (v) costs for commercially reasonable credit reporting and watch and similar services that are associated with the notices and other communications described above or are otherwise advisable under the circumstances.  For the avoidance of doubt, “Notice Related Costs” do not include any expense associated with a service or benefit that a Party provides to its customers generally and not as a result of an Information Security Incident.

“Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, or Governmental Authority.

“Processor” means the Company’s capacity as the Processor of record for a Program, or such other Third-Party Service Provider retained by the Company and approved by Third National to provide Processing Services.

“Processor Services” means Transaction authorization, processing, clearing and settlement and all accounting relating to Credit Cards, helpdesk, and technical support; data capture and reporting and information management services; Customer account and Transaction dispute processing and resolution, and any other informal disputes or resolutions as needed from the Customer, as promptly as commercially reasonable, and not later than full resolution within applicable legal, regulatory, and Network required timeframes, fraud prevention, and security; and any other services necessary or desirable to effectuate the Program or as requested by Third National or a Network from time to time.

“Program” means a system of services approved by Third National under which a Customer may utilize Credit Cards with the features set forth in Exhibit A, as amended from time to time, to conduct Transactions pursuant to an Account Agreement.  The Parties acknowledge that multiple Programs, including specific Credit Card programs, may exist under this Agreement based on meaningful differences, including but not limited to, Credit Card terms and functionality, distribution locations, and Customer characteristics.  All Programs shall be subject to the terms hereof and the prior written approval of Third National.

“Program Features” means those features listed in Exhibit A, as amended from time to time.

“Risk Management Considerations” means considerations as identified by the enterprise risk management policies and procedures of Third National relating to (i) credit risk, (ii) safety and soundness, (iii) reputational risk, (iv) litigation risk, and (v) regulatory risk, as such policies and procedures may be amended and supplemented during the Term in Third National’s sole discretion.

“Supervisory Objection” means (i) an objection, verbally or in writing, raised by a Governmental Authority having supervisory or regulatory authority over Third National that expresses the Governmental Authority’s opinion that one or more provisions of this Agreement constitute a violation of Applicable Law or is unsafe or unsound, (ii) any cease-and-desist or other similar formal written order of a Governmental Authority, or (iii) a written directive by a Governmental Authority to cease or materially limit the performance of the obligations under this Agreement.

“Transaction” means using a Credit Card to do any of the following: (i) make a purchase or otherwise make a payment to or for the benefit of a third party; (ii) obtain a credit for a previous purchase; (iii) make a cash withdrawal at an automated teller machine, Third National teller or via other means; (iv) transfer value to another Credit Card or account; (v) initial loading of funds on a Credit Card; (vi) adding additional funds to “reload” a Credit Card; or (vii) without duplication of any of the foregoing, any other transaction involving the use of a Credit Card.

ARTICLE 2

In General

Section 2.1 Purpose.  The Parties seek to offer co-branded Credit Cards to Company’s Customers as more specifically set forth in this Agreement, and any exhibit or addendum thereto, which will be made available by Third National. This Agreement contains the terms and conditions pursuant to which the Parties will offer those Credit Cards and operate the Program and describe how the Parties will share the revenues, expenses, and duties relating to the Credit Cards issued.  

Section 2.2 Network Approval and Compliance.  The Program and any other Programs agreed upon by the Parties are subject to Network approval.  Third National may terminate a Program or this Agreement if a Network does not approve a Program or revokes approval of a particular Program.  

Section 2.3 Co-branded Credit Cards.  All Credit Card designs must be approved by Third National and may be subject to Network approval.  

Section 2.4 Other Programs.

(a) The Parties may desire to add products, Programs, services, or features in the future and agree to cooperate to discuss the same.  Additional products, services, Programs, or features shall, however, shall only be added by mutual agreement and are thus subject to the prior written approval of Third National, which may be withheld, conditioned, or delayed at Third National’s sole discretion. The Parties agree to work together in good faith to implement any additional services and features approved by Third National.

Section 2.5 Roles.

(a) The Parties shall have the specific duties and responsibilities identified herein, including, but not limited to those duties set forth in Section 3.

(b) Third National’s role and responsibilities include:

(i) Maintaining membership with agreed-upon Network and establishing Credit Card Accounts or other Accounts as necessary to effectuate the provision of Credit Cards;

(ii) Ensuring compliance with Network Rules and Applicable Law and continued oversight over all Accounts and Credit Cards;

(iii) Communicating about issues with Company, including but not limited to communicating with Company about all credit usage issues, Transaction authorizations, and Transaction declines;    

(iv) Approval and underwriting of Customers for a Credit Card or Program;

(v) Transaction processing;

(vi) Credit Card Account set-up;

(vii) Producing, printing, or creating Credit Cards; and

(viii) Overseeing each Program.  

(c) Company acknowledges that Third National may utilize any of its corporate parents or affiliates, including but not limited to Signify Inc., unless prohibited by Applicable Law, to perform some or all of its responsibilities hereunder.  

(d) Company shall be primarily responsible for:

(i) All marketing activities with respect to the Program and Credit Cards, subject to Third National’s and a Network’s approval;

(ii) Providing Customers with all necessary, Credit Card documentation and disclosures;

(iii) Communications with Customers, including transmission of Credit Card Account information;

(iv) Payment to Third National for all Transactions on all Customer Credit Card Accounts;

(v) Invoicing Customers;

(vi) Providing agreed-upon reporting to Third National; and

(vii) All other agreed upon day-to-day operations attendant to providing necessary customer service, including but not limited to communicating with Customers about all credit usage issues, Transaction authorizations, and Transaction declines.    

ARTICLE 3

Parties’ Duties, Obligations, and Responsibilities

Section 3.1 Customer Solicitation and Marketing.

(a) Company may offer Credit Cards to any of its customers.  Third National shall serve as the card issuer for Credit Cards issued in accordance with the terms of this Agreement.  

(b) Commencing on the Effective Date and continuing through the Term of this Agreement, Company, at its own expense, shall market Credit Cards, subject to the terms and conditions of this Agreement and in accordance with, and subject to, all Applicable Law and the Network Rules.  To that end, Company shall design and develop Marketing Materials to promote Credit Cards.

(c) Third National, in its sole discretion, shall review and approve the Marketing Materials. Third National shall review any Marketing Materials and notify Company of its decision with respect to such Marketing Materials, such approval not to be unreasonably delayed or withheld.  

(d) Third National shall have the right to withdraw approval of any previously approved Marketing Materials in the event of a change in Applicable Law, the Network Rules, or the Third National’s Risk Management Considerations.

(e) Company shall not market or attempt to sell any other products to Customers or prospective Customers in connection with the Program without Third National’s prior written approval.  Company shall be solely responsible for ensuring that any such add-on products comply with Applicable Law and Network Rules. Third National may withdraw its approval for such add-on products at any time and in its sole discretion.  

Section 3.2 Customer Approval, Onboarding, and Extensions of Credit.  

(a) Third National agrees to issue Credit Cards and make Credit Card Accounts available in connection with a Program to qualifying applicants residing in any agreed-upon jurisdiction.

(b) Third National shall be responsible for approving Customers for purposes of establishing a Credit Card Account and receiving a Credit Card.

(c) The terms and conditions applicable to each Customer Account offered shall be mutually agreed upon by Third National and Company and shall be set forth in a Credit Card Agreement between Third National and each Customer (as updated from time to time). Third National shall have final authority on the components of the Credit Card Agreement and any related terms and conditions.

(d) Third National shall develop and provide Company with disclosures as may be required by and consistent with Applicable Law, the Network Rules, or otherwise mutually determined to be advisable in connection with the Program. Company shall be responsible for transmitting such disclosures to Customers and potential Customers.  

(e) In the event the aggregate amount of credit extended (or approved for extension, including credit availability in connection with Credit Cards) to Customers in connection with any Program in any given year or period (as determined by Third National) exceeds or will exceed maximum credit extension amount agreed upon by the parties and memorialized with other Program features in Exhibit A (the “Maximum Credit Amount”),  Third National may, in its sole and absolute discretion, deny any additional extension of credit to any Customer or refuse to establish any additional Credit Card Accounts under this Agreement without liability.  In the event Third National agrees to extend credit over the Maximum Credit amount, it may increase the fees due to Third National from the Company.  

Section 3.3 Card Features.

(a) Third National and Company will agree to services and features relating to a particular type of Credit Card provided by Company and Third National pursuant to this Agreement.  These features will be memorialized on Exhibit A, as amended from time to time.  

(b) Third National shall issue Credit Cards for any Programs within a designated BIN range assigned by the applicable Network for the Card Program.

Section 3.4 Program Modifications.  Changes to a Program may be made by Third National upon ninety (90) calendar days’ notice to Company, provided, however, that such notice shall not be required if the change (i) is appropriate to respond to any concern from a Governmental Authority, (ii) is necessary in order to cause the Program to remain in compliance with Applicable Law, or (iii) is necessary to alleviate safety and soundness concerns or manage risk for Third National in connection with the Program and providing ninety (90) calendar days’ notice is not feasible, in which case Third National shall provide notice as soon as commercially practicable.  Third National shall take reasonable steps to prevent undue expense for the Company when changing any Program.  

Section 3.5 Account Termination / Cancellation of Credit Cards. Company acknowledges that Third National may suspend or cancel service to any Credit Card in each case with written notification to the Company, in accordance with this Agreement or Applicable Law, on a case-by-case basis, where Third National reasonably believes in good faith that a Customer may be using the Account or Credit Card for fraudulent or illegal purposes. Conversely, Third National acknowledges that Company maintains independent customer relationships with Customers, and Company may have independent reasons to suggest the suspension of a Credit Card by Third National. As such, where Company: (a) reasonably believes in good faith that a Customer may be using the Account for fraudulent or illegal purposes; or (b) otherwise intends to suspend or terminate its independent customer relationship with a Customer due to actual or suspected fraud or illegal purposes, it shall promptly notify Third National in writing. For the avoidance of doubt, Third National may terminate any Customer relationship at any time for any reason.  

Section 3.6 Company, Reserve, and Settlement Accounts.

(a) To ensure that there is adequate funding to cover the Program’s payment volume, you must maintain a minimum reserve balance (“Reserve Balance”) in a deposit account at a financial institution selected by Third National (a “Reserve Account”) or in another manner as deemed acceptable by Third National (a “Program Reserve”).

(b) The Reserve Balance must be at least four times the largest daily settlement amount for the Program in the preceding thirty (30) days. Moreover, at the outset of the Program—before there is a history of daily settlements—Third National may set the minimum Reserve Balance in its sole discretion.  We may periodically require a different minimum balance to cover the purchases made through the Program in our sole discretion. You shall not be entitled to interest on the amounts held as a Reserve Balance.  

(c) Third National may further increase the Reserve Balance that shall be funded by the Company and maintained in the Reserve Account or Program Reserve, where applicable, to protect Third National against other reasonably anticipated risk associated with the Program.  Third National, for example, may increase the minimum Reserve Balance based on factors designed to reflect the Program’s respective risks, including, but not limited to: (i) monthly average Program fees, including without limitation, processing fees, interchange assessments, and third-party fees; (ii) average monthly chargebacks; (iii) average monthly refunds; and (iv) the amount of any Network Liabilities reasonably anticipated by Third National.

(d) We may use the funds on deposit in the Reserve Account and/or Program Reserve, to satisfy any of your obligations to us under these Terms of Service, including, but not limited to, obligations related to fraud, payments, legal fees, fines, and indemnities.  To that end, you will cooperate with Third National and the agreed-upon financial institution to enter into a deposit account control agreement or a similar agreement that allows Third National to initiate debits from the Settlement Reserve Account and Program Reserve.  

(e) We may suspend the creation of new cards, suspend all Cardholder access, and/or declare you in default of this Agreement if we must draw upon funds in the Reserve Account more than three (3) times during a rolling twelve-month payment period of the Program, or if at any time and you fail to replenish the either the Settlement Reserve Account, Program Reserve or Settlement Reserve Balance to the required level within two (2) business days after written notice from us.

(f) We may set, and adjust from time to time in our sole discretion, a daily spending limit (“Daily Limit”) for the Program. We may, at our sole discretion, increase or decrease the Daily Limit based on considerations such as Program transaction history, amounts in the Settlement Reserve Account, credit and other risk considerations. You must monitor Program spend to ensure that it is always below the Daily Limit. If the Program’s daily authorized transactions are greater than the Daily Limit, we may, at our sole discretion, take action to address the matter, including but not limited to any combination of the following actions: 1) decline further transactions; 2) suspend the creation of new accounts, including new card creates; and 3) allow transactions in excess of the Daily Limit, provided we may assess late fees on any transactions in excess of the Daily Limit, and the late fee will be the lesser of 1.5% per month, or the highest rate permitted by law.  In connection with setting the Daily Limit, we may request you furnish information including but not limited to bank statements and financial statements. We reserve the right to suspend future transactions or suspend the creation of new accounts, including new card creates, if such information is not provided in a reasonable period of time.

Section 3.7 Credit Card Account Servicing and Customer Service.

(a) The Company will administer the Credit Card Accounts, including collecting and applying payments on Credit Card Accounts. Payments will be made by Customers on Credit Card Accounts by methods made available to Customers, as set forth in the Credit Card Agreement.

(b) The Company shall service and administer the Credit Card Accounts. Such servicing shall comply with Applicable Law, Third National’s Risk Management Policies, the Parties’ respective approved compliance policies, and any other related policies or procedures agreed upon by the Parties.   Among other servicing responsibilities, the Company shall be responsible for payment remittance processing, collections, processing requests for Credit Card Accounts and credit related to such Accounts from Customers, preparation and delivery of periodic and other statements, undertaking collections and recovery efforts in respect of Credit Card Accounts, providing customer service, crediting Credit Card Accounts in respect of adjustments, resolving customer disputes, maintaining call centers to respond to inquiries from Cardholders and to deal with billing related claims and adjustments (including by making finance charge and late fee reversals and rebates), establishing new Credit Card Accounts or Credit Card Account types, authorizing transactions, assigning, increasing and decreasing credit lines, providing Credit Card Account monitoring services, including identifying delinquencies, implementing collection efforts, implementing credit-line adjustments, over limit authorizations and Credit Card Account deactivation or cancellation, and providing such other services as are ordinary and customary for a servicer of Credit Card Accounts. The Company shall service and administer (or shall cause its Service Providers to service and administer) each Credit Card Account in accordance with industry-accepted servicing practices for the benefit of Third National.  All materials, documents, communication forms and templates, policies, and procedures that are used by the Company to service and administer the Accounts (“Servicing Materials”) shall be subject to the review and approval of Third National. The Servicing Materials may be changed by the Company, subject to the review and approval of Third National; provided, however, that Third National may change the Servicing Materials upon written notice provided to the Company to the extent that Third National reasonably determines that such change is required by Applicable Law or necessitated by safety and soundness, reputational, compliance or operational concerns. The Company shall ensure that the Servicing Materials comply at all times with Applicable Law.  The Company shall perform its servicing obligations at the Company’s own expense.

(c) The Company shall also service all inquiries related to any applicant, Customer, or Credit Card. If Third National receives any inquiry from an applicant or Customer with respect to a Customer Account or Credit Card, Third National shall promptly refer such inquiry to the Company. If the Company receives any inquiry from a Customer or any other Person with respect to Third National or a Third National product or service that is unrelated to a Customer Account or Credit Card, Company shall promptly refer such inquiry to Third National.

(d) Without limiting the generality of the foregoing, if the Company or any of the Company’s Service Providers receives from a Customer an oral or written notice of “error” as defined by 12 CFR 1005.11(a) of Regulation E, Company shall respond to such inquiries in accordance with the terms of the Account Agreement, Credit Card Agreement and Regulation E, as applicable. The Company shall retain all error-related information with regard to Customer Accounts and Credit Cards and shall provide the same to Third National as it may reasonably request from time to time. To the extent Third National responds to any such errors, the Company shall use its commercially reasonable efforts to cooperate with Third National in the reasonable resolution of any Customer-reported error, all in accordance with Applicable Law and the Network Rules.

(e) The Company shall (i) establish and maintain an internet website that performs customer service functions as directed by Third National; and (ii) administer and maintain a dedicated toll-free phone number, which number shall be printed on the Credit Cards, for providing live and interactive voice response telephonic customer service. The Company shall perform monthly quality monitoring of the customer service functions in accordance with Third National requirements.

(f) To ensure the integrity of the Program, Third National may periodically elect in its sole discretion to conduct random call sampling and/or mystery calls (“Call Monitoring”). Call Monitoring is intended to assess the abilities of live agents on a quality scorecard, including their range of knowledge and skills used to govern the approach to delivering accurate information and reliable services with effective communication. If Third National conducts Call Monitoring, Third National may request from the Company a minimum of ten (10) randomly selected recordings of calls from Customers to live agents, which minimum may be increased at Third National’s sole discretion.

Section 3.8 Technology Needs. To the extent that either Party implements, obtains, or utilizes hardware, software, or other technology resources (the “Technology Resources”) to comply with its obligations, hereunder, that Party is solely responsible for the cost of the Technology Resources.

Section 3.9 Agents, Employees, Subcontractors, and Service Providers.

(a) The Company may outsource to, or otherwise subcontract with, third parties for the performance of any of the Company’s duties under this Agreement (each such party, a “Service Provider”); provided, that use of any such Service Provider shall not release the Company of its obligations to Third National under this Agreement and the Company shall remain fully liable to Third National for any breach of this Agreement caused by such Service Providers.

(b) The Company shall require and ensure that its employees, sales representatives, sales offices agents, and Service Providers comply with the terms of this Agreement applicable to the Company, as well as Third National’s Risk Management Policies and Applicable Law.  The Company shall actively and diligently monitor its employees, sales representatives, sales offices, agents, and Service Providers to ensure compliance with this Agreement, Third National’s Risk Management Policies and Applicable Law.  The Company shall provide appropriate training for its officers, employees, agents, and representatives with respect to duties of the company and such officers, employees, agents, and representatives under this Agreement and under Applicable Law.  Such training shall, at a minimum, comply with Third National’s training program requirements. Third National shall have the right to (i) periodically review and audit the Company’s training program to ensure Manager’s compliance with Third National’s training program; (ii) require changes to the training program to manage any risks identified by Third National.

(c) Third National may in its sole discretion deem certain Service Providers, to the extent such Service Providers’ activities are substantial and material to the Program, as a “Material Service Provider.” All Material Service Providers must first be approved by Third National, such approval not to be unreasonably delayed or withheld.  Schedule 3.9, as amended from time to time, will identify those Material Service Providers approved by the Third National.  

(d) The Company shall obtain or require each Material Service Provider to provide to Third National all information regarding such Material Service Provider reasonably requested by Third National.  

(e) The Company shall be responsible for obtaining a written agreement with each Material Service Provider, and such written agreements shall be available to Third National for review upon Third National’s request.  Third National may in its sole discretion deny approval of a Material Service Provider, or rescind its approval of a Material Service Provider by providing written notice to the Company of such rescission if Third National determines, in its reasonable sole discretion, that such Material Service Provider’s actions or failure to act has resulted or could result in (i) a material breach of the obligations of a Material Service Provider to the Company or of the Company to Third National; (ii) a reputational, compliance or financial risk to Third National or a threat to the safety and soundness of Third National; (iii) a material adverse impact to Customers; (iv) risk of an Information Security Incident; or (v) a violation of Applicable Law.  Within a reasonable period, not to exceed sixty (60) days or sooner if required by Governmental Authority or Card Network or to avoid a violation of Applicable Law.  

(f) The Company shall comply with the standards established by Third National for purposes of approving and conducting a due diligence review of any Material Service Provider.  The Company shall comply with the standards established by Third National for purposes of approving and conducting a due diligence review of any Material Service Provider, including, but not limited to, compliance with regulatory guidance on vendor and third-party management.  Third National reserves the right to amend such standards at any time by written notice to the Company.

(g) The Company shall notify Third National in writing of any changes in a Material Service Provider at least thirty (30) days prior to entering into a contractual relationship with a new Material Service Provider and at least sixty (60) days prior to terminating any contractual relationship with any existing Material Service Provider.  The Company shall immediately notify Third National in writing of any material changes in the scope or terms of any written agreement with any Material Service Provider. The Company shall ensure any Material Service Provider participating in a Program complies with the terms and criteria of this Agreement, as such terms may be applicable to a Program.  

(h) The Company shall be responsible and liable for all fees, costs and expenses, actions and omissions of each Material Service Provider, including any fees or expenses (including reasonable attorneys’ fees) incurred by Third National in connection with due diligence of and approval of any Material Service Provider, and shall remain liable for any services performed, actions and/or omissions of any Material Service Provider regardless of any approval provided by Third National.  For the avoidance of doubt, the Company shall be liable for and shall indemnify Third National for any claims or losses arising out of or in connection with a Material Service Provider’s services and products utilized in performing the Company’s obligations or participating in any Program under this Agreement or any violation of Applicable Law.

(i) The Company shall be responsible for ensuring that each Material Service Provider (i) holds, transmits, and utilizes all Customer Information in accordance with the terms of this Agreement (as such terms are applicable to the Company) and Applicable Law; (ii) does not transmit or otherwise convey any Customer Information to any Person other than the Company or Third National, without the prior written approval of Third National; and (iii) only transmits or otherwise conveys Customer Information to facilitate the settlement of a transaction requested by a Customer, unless otherwise permitted by this Agreement.

(j) The Company shall include in any agreement with a Material Service Provider provisions that require such Material Service Provider to comply with any terms and conditions set forth in this Agreement that are applicable to the  Company and to pass through any and all obligations and liabilities to a Material Service Provider that are applicable to the services such Material Service Provider on behalf of Company and/or are otherwise applicable to the Company. The Company will ensure each agreement the Company has with a Material Service Provider includes terms that permit Third National, Governmental Authority, and/or a Network (A) to audit a Material Service Provider and the services as such services relate to a Program (such audit rights to be no more restrictive than the audit rights set forth herein in connection with the Company); (B) to terminate such agreement the Company has with a Material Service Provider if the Critical Subcontractor violates any Applicable Law, Compliance Policies or Third National Policies or possess a financial, compliance or reputational risk to Third National or any third party; or (C) to terminate such agreement the Company has with a Material Service Provider if the services, activities or omissions of the Material Service Provider may or actually result in reputational, financial or compliance risk to the Card Network or Third National, as determined by Third National, or otherwise adversely impact the safety and soundness of the Third National.  The company shall deliver evaluations and reports, and such other information as shall be reasonably requested by Third National to enable Third National to evaluate the Company’s oversight of the Material Service Provider. Any agreement that the Company has with a Material Service Provider is subject to Third National’s prior approval and any costs and expenses incurred by Third National in connection with its review of such agreements shall be promptly reimbursed by the Company.  The Company shall not include in any Material Service Provider agreement (i) any term or condition that may result in any liability for Third National or that contradicts this Agreement or (ii) any term that would cause any agreement between the Agreement and a Material Service Provider to flow down to Third National or otherwise obligate Third National to perform or withhold performance, unless agreed to by Third National in an instrument specifying the terms and signed by an officer of Third National.

(k) If Third National deems that a Material Service Provider needs to be registered with a Network, the Company will cooperate with Third National in completing all steps necessary for that registration and the Company understands that if registration is required, it may not use that Material Service Provider until registration has been completed. The Company will be responsible for all costs related to such registration.

Section 3.10 Ownership / Intellectual Property.

(a) Each Party shall be the sole and exclusive owner of all rights to its own intellectual property and Marks in and to all materials owned or acquired by it as of the Effective Date and all content and materials developed by it after the Effective Date but independent and separate from this Agreement. The Company shall solely own all Marketing Materials (and all intellectual property relating thereto) developed during the period from the Effective Date through the termination date whether the same are developed independently or jointly. The Company shall solely own any Program-related content and materials used in connection with its website, mobile application, and any other Company-owned medium (and all intellectual property relating thereto) developed during the period from the Effective Date through the termination date whether the same is developed independently or jointly, including the look and feel and substance of such content, but excluding any Mark owned solely by Third National or any Network (or Affiliate of either of the foregoing).

(b) The Parties agree that Third National shall own (a) all rights, title, and interest in all information or data relating to an application for a Credit Card, a potential Customer, or a Customer; and (b) all information obtained or generated by Company in connection with servicing of a Customer Account; and (c) all other Account data that is not described in the foregoing (together, the “Customer Account Data”).  

(c) Third National grants Company a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Customer Account Data to comply with its obligations hereunder for the duration of the Agreement.  

Section 3.11 Compliance.

(a) The Company shall develop and maintain the operating policies and procedures set forth on Schedule 3.11(c) (the “Compliance Policies”), which shall comply with Applicable Law and the Risk Management Considerations, and which shall be subject to the prior written approval of Third National, and shall conduct any Program hereunder in accordance therewith. Notwithstanding anything to the contrary in this Agreement,  If Third National, in its reasonable discretion, determines that an amendment to any of the policies and procedures on Schedule 3.11(c) is required in order to comply with Applicable Law, Network Rules, or the Risk Management Considerations, or that an additional policy or procedure is required in order to comply with Applicable Law, Network Rules, or the Risk Management Considerations, Third National shall deliver written notice to the Company with the amended policy or procedure attached thereto, together with the reason(s) why such amendment is required, and the Company shall comply with such policy or procedure, as amended.

(b) Each Party shall prepare and maintain reasonable disaster recovery, business resumption, and contingency plans that comply with Applicable Law and that are appropriate for the nature and scope of the Program, which plans shall be sufficient to enable the other Party to promptly resume the performance of its respective obligations hereunder in the event of a natural disaster, destruction of such Party’s facilities or operations, utility or communication failures or similar interruption in the operations of such Party or the operations of a third party which in turn materially and adversely affect the operations of such Party. Each Party shall make available to the other Party copies of all such disaster recovery, business resumption, and contingency plans and shall promptly provide to the other Party copies of any changes thereto. Each Party agrees to cooperate with one another on any disaster recovery, business resumption, and contingency plans involving the Program and, in connection therewith, each such Party shall periodically test such disaster recovery, business resumption, and contingency plans as may be appropriate and prudent in light of the nature and scope of the activities and operations of such Party and its obligations hereunder and shall promptly provide the other Party with results of any such tests.

(c) The Parties shall mutually agree with regard to selection of one or more Networks to be used for the Credit Cards. Third National shall maintain the required licenses with the Networks and shall timely pay all normal fees, membership fees, dues, and assessments associated therewith, all of which shall be reimbursed by the Company upon Third National’s request.

(d) The Company agrees that it shall be responsible for and liable to Third National for all reasonable and documented out-of-pocket expenses incurred by Third National in connection with (i) over-limit processing, (ii) Customer fraud, (iii) under-floor-limit processing or (iv) Third National’s efforts at fraud remediation or unauthorized Transaction recovery under Applicable Law, in each case to the extent related to any Program and except for those costs and expenses incurred as a result of Third National’s gross negligence, willful misconduct, bad faith conduct, breach of this Agreement, or failure to follow its fraud and unauthorized transaction policies and procedures. Company and Third National shall use commercially reasonable efforts to assist with the location and prosecution of the perpetrator of any such unauthorized activity or fraud, and each Party shall bear its own costs and expenses in connection therewith.

(e) The Company shall (a) conduct background checks on each of its employees engaged in providing the Services on its behalf, and (b) provide to Third National, upon Third National’s request, the name, signature, and, if available under Applicable Law, Social Security Number or similar government-issued identifying number, of each Company employee and sales representative, and maintain such information for a period of three (3) years after the end of any such employee’s employment for any reason. In addition, at Third National’s request, the Company will provide Third National with resumes or other documents reflecting the work histories of the Company’s executives and other individuals that manage or have an ownership stake in the Company.  

(f) The Company shall be liable for all actions or failure to act by such employees. The Company shall exercise commercially reasonable efforts to promptly rectify any non-compliant activity or other activity that, in Third National’s commercially reasonable discretion, could cause harm to Third National’s reputation or business. In the event an employee or potential employee’s background check does not meet the standards of the Act cited in this Section, the Company may consult with Third National to determine if an exception is allowable.  

(g) The Company shall provide appropriate training for its officers, employees, agents, and representatives with respect to their duties, if any, related to this Agreement, and shall appropriately supervise all such Persons. Third National shall have the right to (a) periodically review and audit the Company’s training program to ensure the Company’s compliance; and (b) at the request of Third National, monitor and participate in any such training program.

Section 3.12 Information Security.

(a) Each Party shall develop, implement and maintain a comprehensive information security program designed to meet the objectives of the security and confidentiality guidelines of the federal banking agencies’ Interagency Guidelines Establishing Standards for Safeguarding Customer Information and the Interagency Guidelines Establishing Information Security Standards, including the implementation of appropriate policies, procedures and other measures designed to protect against unauthorized access to or use of Customer Account Data associated with the Third National Services maintained or used by the Company that could result in substantial harm or inconvenience to any Customer and the proper disposal of Customer Information. Each Party shall conduct regular testing of its security systems and safeguards, including penetration testing and vulnerability scans. Each Party shall further develop and maintain a response program in accordance with the Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice and, in accordance with such, the Company shall take appropriate actions to address incidents of unauthorized access to Customer Information or other information, including notification to the other Party and the Customers as soon as reasonably possible following any such incident related to or affecting a Customer. Each Party shall further ensure that any third-party Service Provider it engages that has access to Customer Information as part of the provision of the Third National Services shall maintain similar security measures and response programs.

(b) “Information Security Incident” means a security breach at Party that results in any actual or reasonably suspected unauthorized  use, disclosure, or acquisition of, or access to, any Customer Account Data that is a direct result of  (i) such Party’s breach of its obligations in this Section 4.15; (ii) a Party finding malware, viruses, logic bombs, trojan horses, etc. in its production systems; (iii) a Party’s inadvertent unauthorized release of any Customer Account Data; (iv) a Party’s inadvertent cross-mixing of Customer Account Data between different Customers; (v) data entrusted with a Party (Confidential Information or Customer Account Data) being in possession of an unauthorized third party which data release is detected by such Party; or (vi) any other security incident relating to Customer Account Data which would constitute a violation of Applicable Law.  

(c) If a Party reasonably believes that an Information Security Incident has occurred and reasonably believes that such Information Security Incident has compromised the other Party’s Confidential Information, including Customer Account Data, such Party shall: (i) promptly initiate response measures designed to identify the nature and scope of the incident; (ii) notify the other Party’s designated primary contact (or another contact as designated by each Party) as soon as practicable, but no event later than forty-eight (48) hours after the discovery of an Information Security Incident, subject to any law enforcement investigation; and (iii) promptly complete any required forms related to the Information Security Incident provided by the other Party. Such notice shall summarize in reasonable detail the effect on the other Party and its Customers, if known, of the Information Security Incident and the corrective action taken or to be taken by such Party. The Party that has incurred the Information Security Incident shall promptly take all necessary corrective actions (at its sole cost and expense) and shall cooperate with the other Party and all reasonable and lawful efforts to mitigate the effects of such Information Security Incident. Subject to applicable legal, regulatory, or law enforcement requirements, a Party must obtain the approval of the other Party prior to the publication or communication of any filings, communications, notices, press releases, or reports related to any Information Security Incident that expressly mention a Party. A Party will provide regular updates to other Party of its efforts to correct such Information Security Incident.  In addition, the Company will cooperate with Third National to generate any press releases, call center scripting, and/or FAQs for inquiries that may come to Third National.  

(d) Each Party shall obligate, by a written agreement, its service providers who have access to Customer Account Data to adhere to such Party’s policies and practices implementing the foregoing obligations.

(e) If the Company or its Service Providers suffer an Information Security Incident, the Company will reimburse Third National on demand for all Notice Related Costs incurred by Third National arising out of or in connection with any such Information Security Incident.

Section 3.13 Exclusivity / Non-Solicit.

(a) Notwithstanding anything in this Agreement to the contrary, during the Term, Third National shall be the exclusive provider of Credit Cards to the Company’s Customers. During the Term and any portion of the Transition Period where the Third National takes deposits under this Agreement, the Company will not broker, place, or facilitate the placement of deposits with any other depository financial institution. Company may obtain or offer or arrange products or services from other depository institutions for other types of Products and services not offered under the Program(s) and provided further that the Customers may independently obtain products and services from other depository institutions which are unrelated to the Program(s). Third National may enter into similar arrangements with one or more third parties and the Company shall not be an exclusive provider of any product or service to Third National. If the Company seeks to develop any arrangement with any depository institution, whether directly or indirectly, to market, advertise, offer, or generate leads for depository products and services similar to the Third National Services, the Company will first provide Third National with a bona fide opportunity to provide such services.  If Third National declines the proposed arrangement, the Company can then approach other depository institutions.  

(b) For the term of this Agreement and for the period of six (6) months thereafter, without the prior written consent of the other party, neither Party shall either directly or indirectly solicit or entice away (or seek or attempt to entice away) from the employment of the other Party any person employed (or any person who has been so employed in the preceding six (6) months) by such other Party.

Section 3.14 Cooperation / Coordination.

(a) The Parties shall cooperate with each other to achieve the purpose of this Agreement and shall execute such other and further documents and take such other and further actions as may be necessary or convenient to affect the Parties’ obligations described herein.

Section 3.15 Recordkeeping.

(a) Each Party shall keep and maintain such records as are necessary for the implementation of such Party’s obligations under this Agreement. The Parties shall cooperate in providing such reports as may be reasonably required in order to satisfy business requirements or the recordkeeping or reporting requirements of any Applicable Law or Network Rule.

(b) Unless otherwise agreed in writing or as set forth in a Program Schedule, to the extent Customer data is maintained by it, or in its possession, the Company will ensure that it keeps complete records reflecting (i) the identity of each Customer and the steps taken to verify such identity (if required for any Program), (ii) an inventory of each Card issued to and activated by or on behalf of such Customer and all deposits made by such Customer, (iii) the balance of each Account and (iv) all charges, transactions and fees that have been made or charged to each Account, Card or Customer, and other information for any Program as may be required by Applicable Law, Third National or Company, from time to time (the “Required Records”). With respect to each Account, the Company shall retain all Required Records for the time period required by Applicable Law, and in any event, for no less than five (5) years after the termination of any Customer Agreement or any Program, whichever is later. The Company is to provide Third National prompt access to any Required Records as required under Applicable Law or as reasonably required by Third National.

Section 3.16 Audits and Reporting.

(a) The Company shall provide Third National with its annual audited financial statements, balance sheets, and related statements of income and cash flow and all notes and schedules thereto within one hundred and twenty (120) days after the end of the Company’s fiscal year, the Company shall provide Third National such information as Third National may reasonably request to perform an annual due diligence review, and the Company shall provide Third National with all necessary data as reasonably requested by Third National for regulatory or tax purposes and as required by Applicable Law or the Risk Management Considerations promptly (and in any event within ten (10) business days, unless a shorter time period is required to comply with Applicable Law, after a request from Third National).

(b) Third National shall have access to, and the right to, at least annually, audit and examine the Company, any Material Service Provider, and the Company’s and Material Service Provider’s locations, contractors, workflows, processes, accounting systems, records, and work papers, data processing and information security systems, cybersecurity, books and records relating to the Services or the Company’s performance of this Agreement for any legitimate purpose related to this Agreement or any Program, including all the Company’s Records (whether in written, electronic, or another form), financial, operational, and technical audits, all as further provided in this Section (each, an “Audit”).  The Company shall, and shall contractually require its Service Providers to, make all such facilities, records, personnel, books, accounts, data, reports, papers, and computer records related to a Program available to Third National for the purpose of conducting such inspections and audits, and Third National shall have the right to make copies and abstracts from the Company’s or its Service Providers’ books, accounts, data, reports, papers, and computer records directly pertaining to the subject matter of this Agreement.    

(c) The Company shall, and shall cause all Servicer Providers and any Material Service Providers to, provide to any Governmental Authority with jurisdiction over the Third National the right to audit the Company to the extent that such Governmental Authority could audit the Third National.  

(d) Third National may use its employees to conduct an Audit and the right to Audit extends to Third National’s internal and external auditors, inspectors, regulators, and other representatives designated by Third National (including other third parties to the extent Third National is legally or contractually obligated to submit to audits by such entities) (the third parties, Governmental Authorities, and the Third National’s and their respective personnel are referred to as “Audit Designees”).

(e) Third National and its Audit Designees shall comply with the Company’s and any Service Provider’s security and confidentiality requirements and shall endeavor to avoid unnecessary disruption of the Company’s or its Service Providers’ operations.  Audits shall be conducted during normal business hours unless the Parties mutually agree to another schedule for the Audit.  Third National and its Audit Designees shall not be provided any confidential information of other of the Company’s customers that are not reasonably related to a Program pursuant to this Agreement.

(f) Following an Audit, the Company shall conduct an exit conference with Third National to discuss issues identified in the Audit. Third National’s determination(s) regarding alleged deficiencies or issues must be made in good faith and be reasonable. Parties shall cooperate to identify the least costly means to address any deficiencies or issues. The Company will respond to each deficiency or negative finding in the Audit as identified by Third National as promptly as practicable but not later than thirty (30) days from the date of receipt of notice from Third National to the extent commercially reasonable.  The Company and Third National shall develop and agree upon an action plan to promptly address and resolve any deficiencies, concerns, and/or recommendations resulting from the Audit.  The Company, at its own expense, shall undertake remedial action in accordance with such action plan and the dates specified therein.  If any Audit results in the Company or its Service Providers being notified of noncompliance with any Applicable Law or the requirements of any Governmental Authority, the Company shall as promptly as practical (but in any event within the period required under Applicable Law or by Governmental Authority) remedy (or cause the Service Provider to remedy) such noncompliance at its expense and keep Third National reasonably advised of the progress of remedial action.  Nothing in this Section limits Third National’s rights or remedies with respect to the Company’s or any Service Provider’s noncompliance with this Agreement or Applicable Law

(g) In addition to any Audits and other rights set forth in this Section 3.16, and by entering into this Agreement with Third National, the Company (i) understands and acknowledges that Third National is a highly regulated financial institution and thereby subject to multiple laws, regulations, and guidelines which may be subject to change from time to time and without notice, and (ii) agrees to fully cooperate with Third National’s ongoing due diligence, monitoring and oversight processes which include the following activities (which shall not constitute an Audit and which responses shall be subject to the confidentiality provisions of this Agreement):

(i) The Company and its Service Providers shall participate in Third National’s good faith diligence efforts and provide information from time to time upon Third National’s reasonable request through response to questionnaires, requests for ongoing information and records related to the Company’s performance under this Agreement or for a specific incident, invoice, failure or similar reason.  Any request by a Governmental Authority shall be deemed reasonable.

(ii) The Company shall also provide to Third National, upon its reasonable request, any independent audit or other third-party reports including, but not limited to, BSA audits, SOC 2 reports related to applicable the Program and data centers, summaries of network and application vulnerability scans and penetration tests, National Automated Clearing House Association (NACHA) audit of compliance reports (to the extent applicable), audits and assessments of compliance with the PCI-DSS a and other Network Rules, and third-party cybersecurity risk rating reports.  The Company shall also cause any Service Provider to provide such reports as reasonably requested by Third National, but not more than once per year.    

(iii) Third National shall have the right to make commercially reasonable requests for evidence of, or to assess and monitor, on an ongoing basis, the Company’s internal controls, cybersecurity posture, and compliance with Applicable Laws and regulatory requirements, including responses to changes and developments in Applicable Law.    

(iv) Third National shall have the right to make commercially reasonable requests of the Company to verify the integrity of any and all data received by Third National, and reviews of:  (i) policies, practices, and procedures affecting a Program; and (ii) general controls (e.g., organizational controls, input/output controls, system modification controls, processing controls, training documentation, system design controls, and access controls) and risk and security practices and procedures.  

(f) The Company agrees to make its personnel available to respond to such reasonable efforts and requests and commits to fully respond and to remediate deficiencies—determined by Third National on a good faith basis and in a commercially reasonable manner— with commercially reasonable promptness.

(g) The Company agrees to cooperate and submit, and shall contractually require all Service Providers to cooperate with and submit, to any examination, inquiry, audit, information request, site visit, or the like, which may be required by any Governmental Authority or Network with audit, examination or supervisory authority over Third National, to the fullest extent requested by such Governmental Authority, Network or Third National. The Company shall also provide to Third National any information which may be required by any Governmental Authority or Network in connection with their audit or review of Third National or any Program and shall reasonably cooperate with such Governmental Authority or Network in connection with any audit or review of Third National or any Program. The Company shall also provide, at its sole cost and expense, such other due diligence information as Third National, Governmental Authorities, or Network may from time-to-time reasonably request in connection with this Agreement.

(h) For the avoidance of doubt, any audit or examination of Company by Third National, Governmental Authorities, or a Network pursuant to this Article 3 may include, upon reasonable prior notice, a visit to Company’s office(s).  Such on-site visits shall occur no more frequently than once per calendar year, unless required more frequently by a Governmental Authority or Network.  The Third National shall seek to ensure that all such on-site visits occur during regular business hours and will be conducted without material disruption, provided that Company shall make the appropriate personnel available.  

Section 3.17 Publicity. All media releases, public announcements, and public disclosures by either Party, or their Affiliates, representatives, employees, or agents, that specifically mention the other Party shall be coordinated with and approved by the other Party in writing prior to the release thereof. Specifically, each Party shall provide the other Party with at least five (5) business days to review any media releases, public announcements, or public disclosures specifically mentioning the other Party, unless a different timeframe is mutually agreed to. If the receiving Party does not respond within five (5) business days after receipt of such materials, the materials will be deemed to have been approved. Media releases, public announcements, and public disclosures by the Company with regard to the Company or the Program generally, without specifically referring to this Agreement or Third National, shall not require coordination with or approval by Third National, but Company agrees, to the extent practical, to provide Third National advance notice of all media releases, public announcements and public disclosures related to the Program.

Section 3.18 Notices.  

(a) Third National agrees that the Company may accept notice of unauthorized activity from a Customer on behalf of Third National, and notify each Customer that notification of unauthorized activity and any complaints regarding a Customer Account will be accepted by Company.

(b) To the extent permitted by Applicable Law, each Party shall promptly provide written notice to the other Party of any material adverse change in its business, properties, assets, or conditions (financial or otherwise), including any tax deficiencies or other proceedings before Governmental Bodies that might reasonably be expected to materially and adversely impact such Party’s ability to fulfill its obligations under this Agreement.

(c) Without limiting the other provisions of this Agreement:

(i) If the Company or any Service Provider receives notice of a Customer complaint from any third party, including any Governmental Authority or consumer protection or consumer advocacy agency, directly asserting a compliance or regulatory violation related to Third National’s participation in a Program, the Company shall, unless prohibited by Applicable Law, promptly forward such complaint and any written documentation related to such complaint to Third National for review, investigation, and resolution. Unless otherwise permitted by Third National, the Company shall not respond to any complaining party on behalf of Third National. The Company shall use its commercially reasonable efforts to cooperate with Third National in the reasonable resolution of any such complaints.

(ii) The Parties shall coordinate and cooperate to promptly respond to all Customer complaints and requests from any Governmental Authority.  

(iii) Each Party shall advise the other in writing of any misappropriation or misuse of Customer Information promptly after such Party becomes aware of such misappropriation or misuse and shall provide an appropriate response in consultation with the other Party and cooperate therewith, which may include notification of Customers or Governmental Bodies.

(iv) The Company shall promptly notify Third National of any Credit Card activities that it suspects may involve fraud, money laundering, terrorist financing, or other impermissible actions. The Parties shall cooperate to perform all necessary and prudent security functions to minimize fraud in the Program due to lost, stolen, or counterfeit Credit Cards and fraudulent Credit Card applications.

(v) The Company shall promptly notify Third National of (i) any breach or default by a Material Service Provider with respect to the Program and (ii) the termination of any Material Service Provider and the reasons therefore.

(d) In the event of any Supervisory Objection, Third National shall advise the Company in writing of such Supervisory Objection and share with the Company the relevant portions of any written documentation, to the extent not specifically prohibited by Applicable Law. Following receipt of such Supervisory Objection, the Parties shall in good faith consult as to the appropriate action to be taken to address such Supervisory Objection. To the extent any Supervisory Objection applies to Governmental the Company’s obligations hereunder, the Company shall take all actions deemed necessary by Third National, in its commercially reasonable discretion, to address such Supervisory Objection in the manner and time period specified by Third National. Third National may seek specific performance under this Section 4.10(e).

(e) The Company shall promptly notify Third National (i) of the filing of a Form D with the U.S. Securities and Exchange Commission (the “Commission”) with respect to a funding round and provide a copy of such Form D to Third National (provided, no additional notice will be required in the case of the non-material amendment of such Form D) or (ii) at least five (5) business days prior to the earlier to occur of (x) the public announcement of a pending Company Change in Control; or (y) the closing of a transaction constituting a Company Change in Control.

ARTICLE 4

Company’s Covenants, Representations, and Warranties

The Company represents, warrants, and covenants as follows:

Section 4.1 This Agreement is valid, binding, and enforceable against the Company in accordance with its terms, except as such enforceability may be limited by laws governing creditors’ rights and general principles of equity.

Section 4.2 The Company is duly formed as a corporation and is in good standing under the laws of the State of its state of incorporation and, to its knowledge as of the Effective Date hereof, is duly qualified to do business in each jurisdiction in which the nature of the Company’s activities makes such registration, authorization or licensure necessary.

Section 4.3 The Company has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement.

Section 4.4 To the Company’s knowledge, neither the execution of this Agreement nor the Company’s performance of its obligations hereunder requires any consent, authorization, approval, notice to, license, or other action by or in respect of, or filing with, any third party (other than Company’s Affiliates) or any Governmental Authority.

Section 4.5 Except as otherwise disclosed, the Company has not been subject to the following:

(a) A criminal conviction (except minor traffic offenses and other petty offenses) in the United States of America or in any foreign country;

(b) Unpaid federal or state tax lien, or any foreign tax lien;

(c) Administrative or enforcement proceedings commenced by the Commission, any state securities regulatory authority, the Federal Trade Commission, any federal or state Third National regulator, or any other state or federal regulatory; or

(d) Any restraining order, decree, injunction, or judgment in any material proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Company.

Section 4.6 There is not pending, or, to the Company’s knowledge threatened, against the Company any litigation or Governmental Authority action, the outcome of which could reasonably be expected to materially and adversely affect the continuing operations of the Company.

Section 4.7 The Company and each subsidiary possess such valid and current certificates, authorizations, licenses, or permits issued by the appropriate state, federal, or foreign regulatory agencies or bodies necessary to conduct their respective businesses and to perform their obligations under this Agreement.  

Section 4.8 The Company has delivered to Third National complete and accurate copies of its balance sheets and related statements of income and cash flows. All financial statements and information that have been furnished to Third National are accurate in all material respects and fairly represent, in all material respects, (i) the financial condition of the Company, including contingent liabilities of every type, which financial condition has not changed materially or adversely as of the date of this Agreement, and (ii) the terms, conditions and other information related to the Company’s Programs, which terms, conditions and other information have not changed materially or adversely as of the date of this Agreement.

Section 4.9 The provisions of this Agreement and the performance by the Company of its obligations under this Agreement are not in conflict with the Company’s certificate of incorporation, member agreement, partner agreement, or bylaws or, to the Company’s knowledge, any material agreement, contract, lease or obligation to which the Company is a party or by which it is bound.

Section 4.10 The Company has materially complied with all Applicable Laws and Network Rules.

Section 4.11 The Company shall: (i) keep in full effect and in good standing its corporate or another status in the jurisdictions where it operates and (ii) obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is necessary to enable it to perform its duties under this Agreement, except, in either case, where the failure to so qualify would not have a material adverse effect on the ability of such Party to perform its duties hereunder. The Company shall also maintain all required certificates, authorizations, licenses, or permits issued by the appropriate state, federal, or foreign regulatory agencies or bodies necessary to conduct their respective businesses and to perform their obligations under this Agreement.  

Section 4.12 The Company will at all times perform its obligations under this Agreement in material compliance with all Applicable Laws and the Network Rules. The Company will be responsible for all fines and penalties assessed by any Governmental Authority against Third National related to any Program to the extent solely resulting from the Company’s actions, inactions, or omissions, so long as such fine or penalty is not caused by, or results from, in whole or in part, any act or omission of Third National, including, but not limited to, Third National’s failure to follow its fraud and unauthorized transaction policies and procedures.

Section 4.13 The Company will provide Third National with a telephonic, telefacsimile, or PDF e-mail notice of an event that could reasonably be expected to have a material and adverse effect on a Program or the Company’s ability to perform its obligations hereunder, including, but not limited to, any event which, with the giving of notice or passage of time or both, would constitute an Event of Default by the Company. Notices pursuant to this Section shall be provided within three (3) business days after the Company’s knowledge of the existence of such events.  The Company will also provide, every month, a list of all material litigation involving the Company.  

Section 4.14 The Company shall at all times maintain and preserve all of its assets and property necessary to perform its obligations hereunder and necessary for the conduct of its business and keep such assets and property in good repair, working order, and condition (ordinary wear and tear and damage by casualty excepted), as applicable.  The Company will also maintain all staffing, operational, and financial resources that are necessary or appropriate to perform its obligations under this Agreement.  

Section 4.15 The Company shall at all times during the Term (and the Transition Period) remain qualified to do business in all jurisdictions necessary to service the Customer Accounts in accordance with all Applicable Laws, except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company to perform its obligations under this Agreement or on a Program.

Section 4.16 The Company shall not take any action that Third National reasonably concludes materially adversely affects Third National’s business.  The Company, for example and without limitation, shall enforce its rights against third parties to the extent that a failure to enforce such rights could reasonably be expected to materially and adversely affect a Program or the Company’s ability to perform its obligations hereunder. The Company likewise shall not enter into any agreement which, at the time such agreement is executed, could reasonably be expected to have a material and adverse effect on a Program or the Company’s ability to perform its obligations hereunder.

Section 4.17 The Company promptly shall notify Third National in writing if it receives, during the Term, written notice of any litigation, regulatory or Network inquiries, or regulatory or Network investigations that, if adversely determined, would have a material and adverse effect on a Program or the Company’s ability to perform its obligations hereunder.

Section 4.18 At all times during the Term (and the Transition Period), the Company will maintain in full force and in effect, with financially sound and reputable insurers, comprehensive general liability insurance, commercial crime insurance, electronic data processing errors and omissions insurance, cyber liability insurance, and directors’ and officers’ liability insurance, each with policy limits that are at or above the industry standards for coverages at similar sized financial institutions. Policy limits can be below benchmark survey levels upon mutual agreement of both Parties. Upon Third National’s request, the Company shall provide customary certificate(s) from the insurer(s) that evidence such insurance coverages.  In addition, at all times during the Term (and the Transition Period), the Company will maintain in full force and effect, with a financially sound and reputable financial institution, a financial institution bond with a minimum coverage of $1 million per occurrence and $2 million in the agreement.  The Company will name Third National as an additional insured on the bond.

Section 4.19 The Company will cooperate, and shall contractually require all Service Providers to cooperate, with any examination, inquiry, audit, information request, site visit or the like, reasonably requested by Third National and/or which may be required by any Governmental Authority or Network with audit examination or supervisory authority over Third National.

Section 4.20 In the event that the Company receives criticism or complaint from any Customer, the Company shall advise the Third National in writing of the criticism or complaint received within five (5) Business Days of receipt and share with Third National relevant portions of any written documentation, or for oral communications, provide a detailed summary in writing, received from the Customer.

Section 4.21 The Company shall perform its obligations under this Agreement in good faith and in a commercially reasonable manner.

ARTICLE 5

Third National’s Covenants, Representations, and Warranties

Third National represents, warrants, and covenants as follows:

Section 5.1 This Agreement is valid, binding, and enforceable against Third National in accordance with its terms, except as such enforceability may be limited by laws governing creditors’ rights and general principles of equity.

Section 5.2 Third National is a corporation, organized under the laws of the State of Puerto Rico, and its subsidiary Third National LLC dba Third National, is a lender licensed by the Commonwealth of Puerto Rico.  

Section 5.3 Third National has the full power and authority to execute and deliver this Agreement and to perform all its obligations under this Agreement. The provisions of this Agreement and the performance by Third National of its obligations under this Agreement are not in conflict with Third National’s charter or bylaws or, to Third National’s knowledge, any material agreement, contract, lease, or obligation to which Third National is a party or by which it is bound.

Section 5.4 To Third National’s knowledge, neither the execution of this Agreement nor Third National’s performance of its obligations hereunder requires any consent, authorization, approval, notice to, license, or other action by or in respect of, or filing with, any third party (other than Third National’s Affiliates) or any Governmental Authority.

Section 5.5 There is not pending or, to Third National’s actual knowledge threatened, against Third National, any litigation, the outcome of which could reasonably be expected to affect Third National’s continuing operation materially and adversely.

Section 5.6 There is no pending, nor to the knowledge of Third National, threatened, suit, action, arbitration, or other proceedings of a legal, administrative, or regulatory nature, or any governmental investigation, against Third National or any of its Affiliates or any officer, director or employee which has not been previously disclosed to the Company in writing and which would materially and adversely affect Third National's financial condition or Third National's ability to perform its obligations under this Agreement.

Section 5.7 To the best of its knowledge information submitted by Third National to the Company is true, accurate, and complete, to the best of its knowledge, in all material respects.  

Section 5.8 The provisions of this Agreement and the performance by Third National of its obligations under this Agreement are not in conflict, to Third National’s knowledge, with any material agreement, contract, lease, or obligation to which Third National is a party or by which it is bound.

Section 5.9 To its knowledge, Third National has complied, in all material respects, with all Applicable Laws and Network Rules.

Section 5.10 Third National LLC dba Third National shall remain a licensed lender in the Commonwealth of Puerto Rico.  

Section 5.11 Third National will at all times perform its obligations under this Agreement, and to Third National’s knowledge, is in material compliance with all Applicable Laws, the Network Rules, and any rules, orders, and regulations issued by the Regulatory Authorities that relate to the matters and transactions contemplated by this Agreement (except to the extent the Company has expressly agreed to undertake compliance obligations under this Agreement). Third National will be responsible for all fines and penalties assessed by any Governmental Authority due to Third National’s actions, inactions, or omissions provided that such fine or penalty is not caused by or a result of any acts or omissions of the Company.  

Section 5.12 Any litigation or court proceedings filed against Third National, relating to an Account or its use, or otherwise relating to any Program, will be immediately reported to the Company. Such a report shall include a copy of the court papers or proceedings.  Third National shall also promptly notify the Company after Third National engages in any written correspondence related to any Program with any Governmental Authority and shall provide the Company with copies of any such written correspondence unless such disclosure is prohibited by Applicable Law.

Section 5.13 Third National has and will maintain all staffing, operational, and financial resources that are necessary or appropriate to perform its obligations under this Agreement.  

Section 5.14 Third National will provide the Company with a designated BIN or BIN range assigned by the applicable Network for the Program.  

Section 5.15 Third National shall remain in good standing with each Network or other electronic payment network which it may be a member of or registered with from time to time.

Section 5.16 Third National promptly shall notify the Company in writing if it receives, during the Term, written notice of any that, if adversely determined, would have a material and adverse effect on a Program or Third National’s ability to perform its obligations hereunder.

Section 5.17 At all times during the Term (and the Transition Period), Third National will maintain in full force and in effect, with financially sound and reputable insurers, comprehensive general liability insurance, commercial crime insurance, electronic data processing errors and omissions insurance, cyber liability insurance, and directors’ and officers’ liability insurance, each with policy limits that are at or above the industry standard for coverages at similar sized financial institutions.

ARTICLE 6

Fees and Expenses

Section 6.1 Company Revenues and Fees. Each Party will be entitled to and responsible for those fees and charges set forth on Schedule 6.1 hereof.  

Section 6.2 Expenses and Operating Costs.

(a) The Company is solely responsible for all direct-out-of-pocket costs to operate the Program, including, but not limited to: (i) providing Customer Agreements; (ii) submitting to Third National applications for approval; (iii) providing information to Service Providers to establish the accounts; (iv) collecting and maintaining Customer identification information; (v) screening Credit Card applicants for compliance purposes; (vi) conducting review of all applicants and Customer Accounts to ensure compliance with OFAC directives, as applicable; (vii); preparation and mailing of all other documents required or otherwise to be sent to Customers, as applicable; (viii) providing monthly and other periodic account statements or electronic transaction records, as required by Applicable Law; (xi) servicing Credit Card Accounts and providing customer service in accordance with the terms of this Agreement; (x) all other Program-related mailings to Customers including shipping costs and postage; and (xi) any other services necessary or desirable to effectuate the Program or as agreed upon by Third National and Company from time to time.

Section 6.3 The Company agrees to reimburse Third National’s direct out-of-pocket costs to operate any Program, including but not limited to any fees charged by the a Network, ACH processing and transmission fees, reporting fees, and Credit Card processing fees as well as any audit and regulatory fees with respect to a Program. The Company also agrees to reimburse Third National for mutually agreed upon vendor costs (including but not limited to Network fees and other fees charged by vendors to the extent that such costs are incurred by Third National solely to affect the Program). Third National shall provide Company with an upfront estimate of such costs and charges from vendors for budgeting purposes and will update such estimates every quarter to reflect actual costs and charges. Third-Party Fees.  Unless agreed upon otherwise by the Parties, the Company shall be responsible for all fees and expenses payable to each and any processor, distributor, marketer, or other Service Provider, and shall remain liable for any services performed by any Service Provider.  A dispute between Company and a Service Provider shall not relieve the Company from performing any of its obligations hereunder.

Section 6.4 Additional Expenses.  In addition to any expenses specifically set forth in this Section 6 or elsewhere in this Agreement, the Company shall be solely responsible for the following:

(a) All expenses associated with Customer or third-party fraud in connection with a Program;

(b) All fines, penalties, reimbursements, and other amounts assessed by any Governmental Authority or Network due to the Company’s actions or omissions or the actions or omissions of any Service Provider retained by the Company; and

(c) Any costs resulting from the Company’s actions or omissions that cause an error or omission by Third National except to the extent that such error or omission is directly attributable to the actions or omissions by Third National or its employees or other agents.  

Section 6.5 Revenue Sharing and Fee Modifications.  Schedule 6.1 may be updated from time to time by written agreement of the Parties. The compensation on Schedule 6.1 is in addition to the reimbursement of costs and fees set forth in Section 6.2.

Section 6.6 Reconciliations. Within twenty (20) days following the end of each calendar month, the Parties shall calculate the amounts due each other as set forth in this Section 6 above with respect to the most recent calendar month and exchange the same (a “Monthly Account Reconciliation”).  

Section 6.7 Set-Off.  Third National will have the right to access the funds in the Company’s Settlement Reserve Account, Reserve Account, and Program Reserve to offset any deficiency in any amount owed to Third National by the Company or any losses or expenses for which the Company is liable for under this Agreement.  The Company authorizes Third National, and irrevocably appoints Third National as its attorney-in-fact, to withdraw funds from the Settlement Reserve Account and Reserve Account to cover any amounts due under this Agreement, including but not limited to actual and potential losses, or any amounts owed under this Agreement or under other agreements between Third National and the Company. Third National shall have the right in its sole and absolute discretion, and without limitation, to sweep funds from the Settlement Reserve Account, Reserve Account, Program Reserve, or other transactional account established by the Company or by Third National for the benefit of Company or any Program under this Agreement, into a custodial account owned by Third National.

Section 6.8 Security Interest.  To secure the Company’s obligations under this Agreement, the Company hereby grants Third National a first priority security interest in the Settlement Reserve Account and Reserve Account and the funds therein or proceeds thereof and agrees that Third National has control of those accounts for purposes of the Uniform Commercial Code, Article 9-314. The Company further agrees to take such steps as Third National may reasonably require to perfect or protect such first priority security interest. Third National shall have all of the rights and remedies of a secured party under Applicable Law with respect to the Settlement Reserve Account and Reserve Account and the funds therein or proceeds thereof, and shall be entitled to exercise those rights and remedies in its discretion upon a default by the Company Program The Company agrees that it will maintain the lien against the Reserve Account and its other Accounts in favor of Third National and agrees that it will not grant any other party an interest in the Settlement Reserve Account and Reserve Account.  

Section 6.9 Recourse. The Company acknowledges and agrees that Third National shall have full recourse against the Company for: (i) monies owed by the Company to Third National under this Agreement, or (ii) any errors or inaccuracies in amounts previously paid to the Company under this Agreement. The Company further acknowledges and agrees that such recourse shall not be limited to withholding any monies that may be due from Third National to the Company, but that Third National may also initiate any action to recover such monies in addition to or instead of withholding such money.  

Section 6.10 Enforcement.  The Company shall be responsible for all of Third National’s commercially reasonable out-of-pocket attorneys’ fees and expenses in connection with the preparation, negotiation, execution, and enforcement of this Agreement.  

Section 6.11 Late Payments. If any amount due to Third National under this Agreement from the Company remains unpaid for more than twenty (20) Business Days after such payment is due, interest shall accrue from the initial due date at a rate equal to 10 percent (10%) per annum.

ARTICLE 7

Term and Termination

Section 7.1 Term. The initial term of this Agreement shall be a period that commences on the Effective Date and ends at the time dictated in the Fee Agreement (the “Initial Term”).

Section 7.2 Renewal. After this Agreement shall renew automatically for additional twelve (12) month terms (collectively, the “Renewal Term,” and together with the Initial Term, the “Term”) unless terminated as provided herein.

Section 7.3     Modifications and Amendments.  We may revise and update this Agreement from time to time at our sole discretion. Your continued use of our services following your receipt of the modified Agreement means that you accept and agree to the changes.

Section 7.3 Termination Without Cause. Either Party may terminate this Agreement at the end of the Initial Term or at the end of a Renewal Term by providing written notice to the other at least ninety (90) days in advance of the expiration of the Initial Term or such Renewal Term, or at any time upon the mutual written consent of the Parties,

Section 7.4 Termination For Cause. This Agreement may be terminated as follows:

(a) Upon any change to or enactment of any Applicable Law which would render any portion of a Program or Addendum illegal, or otherwise have a material adverse effect upon the Program or Addendum.

(b) Upon the occurrence of an Event of Default, as defined herein.  

(c) In the event a Party becomes subject to a formal written enforcement order with a Governmental Authority that materially and adversely affects the Party’s ability to fulfill its obligations under this Agreement.

(d) Upon formal written notice from any Governmental Authority requiring Third National to cease or materially limit the performance of the obligations under this Agreement.

(e) Upon formal written notice by Third National in the event that the Company creates circumstances giving rise to a substantial risk of loss and/or harm to the goodwill of any Network if such circumstances are not eliminated within thirty (30) days after receipt by the Company of a written notice from Third National alleging such circumstances and requiring the Company to eliminate such circumstances.

(f) By Third National, in the event that the Company’s practices create a substantial risk of loss or harm to Third National, including but not limited to illegal criminal activity.

(g) Upon formal written notice by Third National in the event that the Company has failed to maintain the required balances in the Reserve Account.

(h) By Third National, upon sixty (60) days’ written notice to the Company if there is (i) a Change in Control of the Company, (ii) a transfer of a Program by the Company to another entity; or (iii) a sale or spin-off of all or substantially all of the assets of the Company and, in each of the above cases, Third National determined in its sole discretion that the resulting entity will not serve as a source of strength to a Program; provided, any such written notice of termination must be sent no later than ninety (90) days following notification by the Company to Third National of such Company Change in Control or Third National’s right to terminate under this provision shall lapse.

(i) By either Party upon thirty (30) days’ written notice to the other Party upon the other Party (i) voluntarily commencing any proceeding or filing any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law, (ii) applying for or consenting to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets, (iii) making a general assignment for the benefit of creditors or (iv) taking formal action to effect any of the foregoing.

(j) By either Party upon thirty (30) days’ written notice to the other Party upon the commencement of an involuntary proceeding or the filing of an involuntary proceeding or the filing of an involuntary petition in a court of competent jurisdiction seeking (i) relief in respect of the other Party or of a substantial part of its property or assets under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the other Party or for a substantial part of its property or assets or (iii) the winding up or liquidation, of the other Party, in any case, if such proceeding or petition shall continue un-dismissed for thirty (30) days or an order approving or ordering any of the foregoing shall be entered.

(k) By the Company for convenience (i.e., without the requirement to prove breach) conditioned on the payment of the fee specified in this Agreement.  

(l) By either Party in the event of a continued force majeure event of the other Party.

Section 7.5 Effect of Termination

(a) In the event that this Agreement is validly terminated as provided herein, then, except as otherwise provided in this Agreement, each of the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination.

(b) Upon termination, each Third National and the Company shall retain all records and documentation related to all Customers, Customer Accounts, and Credit Cards in a form that is reasonably retrievable for a period of seven (7) years after the termination of this Agreement or such longer time as required by Applicable Law. The Parties agree to cooperate to make such records and documentation available as may be required to comply with Applicable Law or to respond to Customer inquiries, legal requests (such as a subpoena), audits, or regulatory examination requests. The Parties further agree to discuss winding down or transitioning Program(s).

ARTICLE 8

Events of Default

Section 8.1 The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an “Event of Default” hereunder:

Section 8.2 A Party shall fail to make a payment of any material amount due and payable under this Agreement, except for amounts disputed in good faith, and such failure shall remain unremedied for a period of ten (10) days after the other Party shall have given written notice thereof, provided that for an amount to be excluded from the above as disputed in good faith, the Party disputing such amount must: (i) provide prompt (but in any event, within ten (10) days after the amount becomes due) notice of such dispute; (ii) include in such notice, a reasonably detailed explanation of the reason(s) why such amount is disputed, (iii) work cooperatively, expeditiously, and always in good faith with the other Party to resolve any such dispute, and (iv) if such dispute is not resolved within thirty (30) days of delivery of the notice required by (i) above, post a bond or deposit into an escrow account the disputed amount on terms reasonably satisfactory to the Parties.

Section 8.3 A Party shall fail to perform, satisfy or comply with any obligation, condition, covenant, or other provision contained in this Agreement, and (i) such failure shall remain unremedied for a period of thirty (30) days after the other Party shall have given written notice thereof, and (ii) such failure shall either have a material and adverse effect on a Program or otherwise have a material and adverse effect on the other Party.

Section 8.4 Any representation or warranty contained in this Agreement shall not be true and correct in any respect as of the date when made or reaffirmed, and (i) the Party making such representation or warranty shall fail to cure the event giving rise to such breach within thirty (30) days after the other Party shall have given written notice thereof, and (ii) such failure shall either have a material and adverse effect on a Program or otherwise have a material and adverse effect on the other Party.

Section 8.5 Third National fails to perform, satisfy or comply with any Applicable Law or Network Rule and such failure shall either have a material and adverse effect on a Program or otherwise have a material and adverse effect on the other Party.

Section 8.6 The Company fails to perform, satisfy or comply with any Applicable Law or Network Rule and such failure shall either have a material and adverse effect on a Program or otherwise have a material and adverse effect on the other Party.

ARTICLE 9

Confidentiality

Section 9.1 Confidential Information. Confidential Information shall include any Confidential Information  (a) a Party discloses (the “Discloser”) in writing, orally or visually to the other Party (the “Recipient”) or to which the Recipient obtains access in connection with the negotiation and performance of this Agreement, and (b) relates to (i) the Discloser and/or its Customers and/or associates, or (ii) consumers who have made Sensitive Customer Information available to Third National and/or the Company.

Section 9.2 Sensitive Customer Information. The Company acknowledges that Third National has a legal responsibility to its customers to keep Sensitive Customer Information strictly confidential in accordance with Applicable Law. Third National acknowledges that the Company has a responsibility to do likewise. In addition to the other requirements set forth in this Agreement regarding Confidential Information, Sensitive Customer Information shall also be subject to the additional restrictions set forth in this Section. Except as otherwise agreed herein, the Recipient shall not disclose or use Sensitive Customer Information other than to carry out the purposes for which the Discloser or one of its Affiliates disclosed such Sensitive Customer Information to Recipient. Recipient shall not disclose any Sensitive Customer Information other than on a “need to know” basis and then only to:  (a) Affiliates of Discloser; (b) its and its Affiliates’ employees or officers, provided that such Affiliates shall be restricted in use and re-disclosure of the Sensitive Customer Information to the same extent as Recipient; (c) to subcontractors engaged by Discloser, provided that such subcontractors shall have agreed to treat such information confidentially in a manner no less restrictive than the terms hereof; (d) to independent contractors, agents, and consultants hired or engaged by Recipient, provided that all such persons shall have agreed to treat such information confidentially in a manner no less restrictive than the terms hereof; or (e) pursuant to the exceptions set forth in 15 U.S.C. § 6802(e) and accompanying regulations which disclosures are made in the ordinary course of business. The restrictions set forth herein shall apply during the Term and after the termination of this Agreement. For the purposes of this Section, Customers shall be considered customers of Third National.

Section 9.3 Compliance with Privacy Laws. Each Party shall comply in all respects with Applicable Law, including the GLBA, with regard to the privacy and security of Sensitive Customer Information.

Section 9.4 Disclosure to Employees and Agents. Each of the Parties, as Recipient, hereby agrees on behalf of itself, its Affiliates and each of their respective employees, officers and other representatives that Confidential Information will not be disclosed or made available to any person for any reason whatsoever, other than other than on a “need to know basis” and then only to:  (a) its employees and officers; (b) subcontractors and other third-parties agreed upon by the Parties specifically permitted under this Agreement, provided that all such persons shall have agreed to treat such information confidentially in a manner no less restrictive than the terms hereof; (c) independent contractors, agents, and consultants hired or engaged by Third National, provided that all such persons shall have agreed to treat such information confidentially in a manner no less restrictive than the terms hereof; and (d) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement. Prior to any disclosure of Confidential Information as required by Applicable Law, the Recipient shall (i) notify the Discloser of any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated, and (ii) cooperate, at Discloser’s expense (including reasonable legal fees and expenses incurred by Recipient) with the Discloser’s reasonable, lawful efforts to resist, limit or delay disclosure.

Section 9.5 Information Security. Each Party warrants that it has established an information security program that contains appropriate physical, administrative, and technical measures designed to (a) ensure the security and confidentiality of Sensitive Customer Information; (b) protect against any unanticipated threats or hazards to the security or integrity of such information and (c) protect against the unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer. In the event a Party discovers any unauthorized access to any Sensitive Customer Information, such Party shall take appropriate actions to address such unauthorized access, including, but not limited to, promptly notifying the other Party of any such incident. Each Party shall engage in commercially reasonable efforts to assist the other Party in connection with the investigation and remediation of any such unauthorized access, and each Party shall bear its own costs in connection therewith.

Section 9.6 Return/Destruction of Materials. Upon the termination of this Agreement, or at any time upon the request of a Party, the other Party shall return or, at the requesting Party’s election, destroy, all Confidential Information, including Sensitive Customer Information, in the possession of such Party or in the possession of any third party over which such Party has or may exercise control, so long as, in each case, doing so does not violate Applicable Law or is not required for the purpose of .compliance audits.

Section 9.7 Exceptions. With the exception of the obligations related to Sensitive Customer Information, the obligations of confidentiality set forth in this Agreement shall not apply to any information which a Party rightfully has in its possession when disclosed to it by the other Party, information which a Party independently develops, information which is or becomes known to the public other than by breach of this Agreement or information rightfully received by a Party from a third-party without the obligation of confidentiality. If a Party determines that it is required to file this Agreement with the Commission as a material agreement of such Party, such filing Party shall, to the extent permitted by Applicable Law, request confidential treatment of sensitive terms from the Commission.

Section 9.8 Unauthorized Use or Disclosure of Confidential Information. Each Recipient agrees that any unauthorized use or disclosure of Confidential Information of the Discloser might cause immediate and irreparable harm to the Discloser for which monetary damages might not constitute an adequate remedy. In that event, the Receiver agrees that injunctive relief may be warranted in addition to any other remedies the Discloser may have. In addition, the Receiver agrees promptly to advise the Discloser by telephone and in writing via facsimile or e-mail of any security breach that may have compromised any Confidential Information and of any unauthorized misappropriation, disclosure, or use by any person of the Confidential Information of the Discloser which may come to its attention and to take all steps at its own expense reasonably requested by the Discloser to limit, stop or otherwise remedy such misappropriation, disclosure or use.

ARTICLE 10

Indemnification

Section 10.1 Indemnification Obligations.

(a) The Company covenants and agrees to indemnify and hold Third National, its Affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (“Third National Indemnified Parties”) harmless against any Losses, arising out of this Agreement.  

(b) Third National covenants and agrees to indemnify and hold the Company, Company Contractors, and each of their respective Affiliates, and their respective officers, directors, employees, agents, and permitted assigns (the “Company Indemnified Parties”) harmless against any Losses, arising out of third-party claims in connection with:

(i) any failure on the part of Third National to perform or comply with any covenant or obligation required to be performed or complied with by Third National under or pursuant to this Agreement;

(ii) any inaccuracy, breach, or untruthfulness of any representation or warranty made by Third National under or pursuant to this Agreement;

(iii) the gross negligence or willful misconduct of Third National or its employees, officers, directors, vendors, agents, representatives, or independent contractors (excluding the Company or Company Contractors),

(iv) any wrongful acts or omissions of Third National in connection with the improper use of Customer data or in connection with the transfer of Network responsibilities hereunder to a Successor Card Issuer, in each case excluding any Losses to the extent such Losses arise from the acts or omissions of the Company, including any failure to comply with the terms of this Agreement;

(v) any unauthorized or fraudulent access to or use of Customer Information or Customer Account Data caused by the gross negligence or intentional misconduct of an employee of Third National or of its Affiliates, or arising from a security breach to computer systems maintained by Third National or maintained by third parties (other than the Company or a Company Contractor) on behalf of Third National; or

(vi) any misrepresentation or false or misleading statement made by Third National or its Affiliates to any Person, Governmental Authority, or legislative body regarding the Company, a Program, this Agreement, or the terms or conditions hereof.

Section 10.2 Limited Exceptions.

(a) The Company’s indemnification obligations under Section 10.1 shall exclude any Losses, to the extent such Losses arise directly from (A) an act of fraud, embezzlement, or criminal activity by a Third National Indemnified Party, (B) the gross negligence, willful misconduct or bad faith by a Third National Indemnified Party, (C) failure of the Third National to comply with, or to perform its obligations under, this Agreement, or (D) Losses arising from noncompliance with or violation of any Applicable Law by the Company or a Company Contractor solely to the extent that such Parties acted in good faith in accordance with Third National’s written instructions and/or requirements regarding Applicable Law.

(b) Third National’s indemnification obligations under Section 10.1 shall exclude any Losses to the extent such Losses arise directly from (A) an act of fraud, embezzlement, or criminal activity by the Company Indemnified Party, (B) the gross negligence, willful misconduct or bad faith by a Company Indemnified Party, or (C) failure of the Company to comply with, or to perform its obligations under, this Agreement.

Section 10.3 Notice.

(a) If any claim is commenced that may give rise to a right of indemnification, or any knowledge is received of a state of facts which, if not corrected, may give rise to a right of indemnification, the indemnified Party shall give prompt written notice to the indemnifying Party. The failure to give such notice shall not, however, relieve the indemnifying Party of its indemnification obligations except to the extent that the indemnifying Party is actually harmed thereby.

Section 10.4 Defense of Claim.

(a) The indemnifying Party shall have the right to defend any such claim in its name and at its expense, shall select the counsel for the defense of such claim as approved by the indemnified Party, which approval shall not be unreasonably withheld or delayed, and shall cooperate with the indemnified Party in the conduct of the defense against such claim; provided, however, that the indemnifying Party shall not have the right to defend any such claim if: (i) it fails to employ appropriate counsel approved by indemnified Party to assume the defense of such claim or refuses to replace such counsel upon the indemnified Party’s reasonable request; (ii) the indemnified Party advises the indemnifying Party that there are issues which could raise possible conflicts of interest between the indemnifying Party and the indemnified Party or that the indemnified Party has claims or defenses that are separate from or in addition to the claims or defenses of the indemnifying Party; or (iii) such Claim seeks an injunction or cease and desist order; provided further, that the Company may not, as an indemnifying Party or otherwise, defend against a Claim or select the counsel for the defense of a Claim if the claim was brought by a Governmental Authority. If the Parties are unable to resolve the issue, then the matter will be resolved in accordance with Section 12.2. In each such case set forth in this Section 11.5, the indemnified Party shall have the right to direct the defense of the claim and retain its own counsel, and the indemnifying Party shall pay the cost of such defense, including reasonable attorneys’ fees and expenses.

(b) The indemnifying Party shall have no obligation to pay the monetary amount of the settlement of any claim entered into by the indemnified Party without the prior written consent of the indemnifying Party (which consent shall not be unreasonably withheld or delayed). Notwithstanding the indemnifying Party’s right to direct the defense against any claim, the indemnifying Party shall not have the right to compromise or enter into an agreement settling any claim, suit, demand, or action without the prior written consent of the indemnified Party (which consent shall not be unreasonably withheld or delayed).

Section 10.5 Cooperation.  If the indemnifying Party elects and is entitled to compromise or defend such claim it shall within thirty (30) days (or sooner, if the nature of the claim so requires) notify the indemnified Party of its intent to do so, and the indemnified Party shall, at the expense of the indemnifying Party, cooperate in the defense of such claim. In such case, the indemnified Party shall have the right to participate in the defense of any claim with counsel selected by it. Except as provided in this Article, the fees and disbursements of such counsel shall be at the expense of the indemnified Party.

ARTICLE 11

Limitation of Liability

Section 11.1 No Special Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO OR IN ANY WAY LIMIT THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT.

Section 11.2 Third National’s liability to the Company under the terms of this Agreement and any Program shall be limited to the Company’s direct damages incurred as a result of Third National’s negligence, willful misconduct, or fraud in performing its obligations under this Agreement or any Program. Notwithstanding anything to the contrary, the maximum aggregate liability of Third National to the Company or any third party for all Claims arising out of or relating to this Agreement, regardless of the form of any such Claim, shall be limited to direct damages which shall not exceed the amount of fees paid by the Company to Third National in the six (6) months prior to such claim.  

ARTICLE 12

Disclaimer of Warranties

Section 12.1 Disclaimers of Warranties. OTHER THAN AS SET FORTH HEREIN, EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.

ARTICLE 13

Assignment

Section 13.1 Prior Consent.  

(a) This Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns.

(b) The rights and obligations of the Company under this Agreement are personal and may not be assigned either voluntarily or by operation of law, without prior written consent from Third National; provided, however, that the Company may assign this Agreement to an entity that purchases all or substantially all of the stock or assets of the Company, so long as such acquiring entity (i) agrees to be bound by the terms of this Agreement and (ii) Third National approves of such acquiring entity. Third National may assign this Agreement to any affiliated entity upon reasonable notice to the Company.

ARTICLE 14

Miscellaneous

Section 14.1 Relationship of Parties.  Third National and the Company agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this Agreement or in the working relationship being established and developed hereunder shall be deemed, nor shall it cause, Third National and the Company to be treated as partners, joint ventures, or otherwise as joint associates for profit.

Section 14.2 Governing Law. This Agreement shall be governed by the internal laws of the Commonwealth of Puerto Rico without regard to conflicts of law.

Section 14.3 Venue. Each Party hereby submits to the jurisdiction of the federal and state courts sitting in the Commonwealth of Puerto Rico for the resolution of any and all claims arising out of or related to this Agreement, and waives any objection to venue with respect to actions brought in such courts.

Section 14.4 Dispute Resolution.

(a) In the event of any dispute, controversy, or claim arising out of or relating to this Agreement or the construction, interpretation, performance, breach, termination, enforceability, or validity thereof (hereinafter, a “Dispute”), the Party raising such Dispute shall notify the other promptly and no later than thirty (30) days from the date of its discovery of the Dispute. In the case of a Dispute relating to Account statements or similar matter, the failure of a Party to notify the other Party of such Dispute within thirty (30) days from the date of its receipt shall result in such matter being deemed undisputed and accepted by the Party attempting to raise such Dispute.

(b) The Parties shall cooperate and attempt in good faith to resolve any Dispute promptly by negotiating between persons who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration and performance of the provisions or obligations of this Agreement that are the subject of the Dispute.

(c) For any Dispute that the Parties are not able to resolve in accordance with Section 16.2(B) such Disputes shall be submitted to binding Arbitration. For Disputes involving claims greater than $250,000, the AAA’s Commercial Arbitration Rules and Mediation Procedures in effect at the time arbitration is commenced shall apply.  For Disputes involving claims less than or equal to $250,000, the AAA Expedited Procedures in effect at the time arbitration is commenced shall apply.  Any in-person arbitration hearing shall be held in Missouri.  The arbitration of any claim of $250,000 or greater shall be conducted by a panel of three arbitrators.  The arbitration of any claim of a lesser amount shall be conducted by one arbitrator.  The arbitrator(s) shall be selected from the AAA’s panel of arbitrators by mutual agreement between Company and Third National. If the Parties cannot agree on the arbitrator(s), the AAA shall appoint the arbitrator(s).  No Dispute may be resolved on behalf of a class of similarly situated persons or brought as private attorney general or on another similar representative basis.  Any dispute regarding whether a particular Dispute is subject to arbitration, including any dispute over the scope or validity of this agreement to arbitrate Disputes or of this Agreement, shall be decided by the arbitrator(s).  The arbitrator(s) shall establish such reasonable procedures as may be necessary for the reasonable exchange of information between the Parties prior to such arbitration.  In rendering an award, the arbitrator(s) shall apply the substantive law of the State of Missouri (including all statutes of limitation and defenses, but exclusive of its conflict or choice of law rules) and the applicable terms, conditions, and provisions of this Agreement.  In addition, the arbitrator(s) shall follow the Federal Rules of Evidence, shall enforce applicable privileges, and shall employ applicable burdens of proof.  The arbitrator(s) shall award only such relief as a court of competent jurisdiction could properly award under the law.  The findings, reasoning, decision, and award of the arbitrator(s) shall be set forth in writing and shall be based on and consistent with the laws of the Commonwealth of Puerto Rico. Judgment on the arbitration award may be entered in any court having jurisdiction. Each Party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or Confidential Information, and (iv) to enforce any decision of the arbitrator, including the final award.

Section 14.5 Integration. This Agreement, and any Schedules, Appendices, Attachments, or Exhibits hereto, constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, and arrangements, oral or written, between the Parties with respect to the subject matter hereof. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by both Parties.

Section 14.6 Severability. In the event that any part of this Agreement is deemed by a court, Governmental Authority, or other public or private tribunal of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed to have been omitted from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.  

Section 14.7 Notices. Approvals of materials related to any Program or approvals of third-party service providers, Products, or features of any Program required to be provided in writing hereunder may be transmitted by e-mail. All other notices, requests, and approvals required by this Agreement shall be in writing addressed/directed to the other Party at the address set forth below, or at such other address of which the notifying Party hereafter receives written notice in conformity with this section, and sent overnight via generally recognized delivery service (e.g., UPS, FedEx). All such notices, requests, and approvals shall be deemed given one (1) Business Day after being accepted for delivery by the courier unless the courier has notified the sender that delivery has been delayed.

Section 14.8 Non-Waiver. Neither Party shall be deemed to have waived any of its rights, power, or remedies hereunder except in writing signed by an authorized agent or representative of the Party to be charged. Either Party may, by an instrument in writing, waive compliance by the other Party with any term or provision of this Agreement on the part of the other Party to be performed or complied with. The waiver by either Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.

Section 14.9 Jury Trial Waiver. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH OF THE PARTIES HERETO HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY.

Section 14.10 Force Majeure. No Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its obligations hereunder if such failure, delay, or non-performance results in whole or in part from any cause beyond the control of the Party, including without limitation, any act of God, act of war, riot, actions of terrorists, earthquake, fire, explosion, natural disaster, flooding, pandemic, epidemic, quarantine, embargo or sabotage (any such occurrence, a “Force Majeure Event”). Any Party desiring to rely upon a Force Majeure Event as an excuse for failure, default, or delay in performance shall, when the cause arises, give to the other Parties prompt notice in writing of the facts which constitute such Force Majeure Event and, when the Force Majeure Event ceases to exist, give prompt notice thereof to the other Parties. This Section shall in no way limit the right of any Party to this Agreement to make any claim against third parties for any damages suffered due to said cause. If any performance under this Agreement is postponed or extended for longer than sixty (60) calendar days as a result of a Force Majeure Event, any Party may, by written notice to the other Party, terminate this Agreement effective immediately.

Section 14.11 Survival. Provisions of this Agreement that, by their nature, should survive termination of this Agreement shall survive termination.

[End of Page – Signature Page Follows]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date of the Fee Agreement, and the Company Agrees to any amendments or alterations to this agreement each time they sign onto and use the Third National Solutions platform page or direct customers to sign up for any program issued by Third National.

SCHEDULE 3.11(c)

Policies and Procedures

• Acceptable Use Policy

• ADA Policy

• Audit Management Policy and Plan/Schedule

• BSA/AML/CIP/KYC & OFAC Policy, Procedures, and Risk Assessment

• Compliance Management Policy and Procedures

• Compliance Training Company and Plan/Schedule

• Contact Center Guide

• Customer Complaint Policy and Procedures

• Disaster Recovery, Business Continuity Plan, Business Impact Analysis

• Fraud Policy

• Information Security Policy

• IT Change Control and Approval Policy and Procedures

• Marketing Compliance Policy

• Physical Security Procedures

• Privacy Notice

• Privacy Policy

• Record Retention Policy

• Risk Management Company Policy

• UDAAP Policy, Procedure, and Risk Assessment

• Vendor Management Policy, Procedures, and Risk Assessment

SCHEDULE 3.9

Service Providers

COMPANY MATERIAL SERVICE PROVIDERS

VENDOR AGREEMENT TITLE SUMMARY

SCHEDULE 6.1

FEE SCHEDULE INCORPORATED AS TO FEE SPLITS

EXHIBIT A

Program Features

COMPANY WILL FILL OUT AND PROVIDE THE FOLLOWING DETAILS TO THIRD NATIONAL PRIOR TO THE PROGRAM GOING LIVE.

Description of Accounts, Features, and Program Services:

Customers that enroll in the [INSERT PROGRAM NAME][ Program shall be provided with the following functionality:

1. [DEPOSIT ACCOUNT, DEBIT CARD, PREPAID CARD, ETC.]