Payment Gateway Agreement
MASTER PAYMENT PROCESSING SERVICES AGREEMENT
THIS MASTER PAYMENT PROCESSING SERVICES AGREEMENT (the "Agreement")
is entered into by and between Inovio Payments Inc., a Delaware corporation ("Inovio"), and the undersigned
person or company ("Client").
In consideration of the mutual promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the meanings set
1.1 "Alerts" means information on Confirmed Disputed Transactions that Inovio distributes to Client.
1.2 "Alternative Payment Process" means payment methods that are used as an alternative to credit card
payments and may include, but are not limited to, prepaid or stored-value cards, direct debit cards,
electronic checks, phone and mobile payments and such other methods of payment as may become
available from time to time.
1.3 "Ancillary Products" means any third party software, products, services, content or other materials
provided with or incorporated into the Inovio Services.
1.4 "Anti-Fraud Services" means services which assist with preventing fraudulent credit card transactions
and/or preventing chargebacks. As part of the Anti-Fraud Services, Inovio shall have discretion
to execute reversals and/or credits. The term "Reversal" refers to transactions between Client and a
third party that have been cancelled prior to being presented for processing through the respective
1.5 "Inovio Merchant Payment Processing Application" means such application provided by Inovio and
completed by Client in connection with entering into this Agreement.
1.6 "Inovio Services" means the Credit Card Processing Services, Alternative Payment Process, Anti-
Fraud Services, Bank Account Debit Processing Services, payment gateway, processing and
other services, as more fully described on the Inovio Website, and applicable Documentation.
1.7 "Inovio Website" means www.inoviopayments.com.
1.8 "Bank Account Debit Processing Services" means the processing of one-time and recurring
transactions for Client's business via debits to bank. Inovio reserves the right to change its downstream
providers for these services via an alternative provider.
1.9 "Card" means any valid credit card or debit card issued by a member of Visa, MasterCard, or any
other association or card issuing organization supported by Inovio and bearing the respective marks
of the issuing association or organization.
1.10 "Card Association" means Visa, MasterCard, or any other card association or the issuer of any other
Card of any association or network.
1.11 "Cardholder" means the person whose name is printed or embossed on a valid Card and any
authorized user of such Card who uses a Card to purchase goods and services of a Merchant.
1.12 "Cardholder Data" shall mean non-public, personally identifying information submitted by a
Cardholder, which information includes, without limitation, credit card number, name, address, phone
number and e-mail address.
1.13 "Confirmed Disputed Transaction" means a transaction for a Merchant Identifier which it is known
that the transaction is or will be disputed by the cardholder.
1.14 "Credit Card Processing Services" means the processing of one-time and recurring Visa and
MasterCard bankcard transactions for Client's business through Client's merchant account,
using secure lines and a web page interface served from Inovio's server. Client must have a merchant
account with a bank acceptable to Inovio and which permits Inovio to process Transactions on
Client's behalf. Inovio will process Discover, JCB and/or American Express and/or other card
association bankcard transactions if Client obtains appropriate account numbers from Discover and/or
1.15 "ADmaetrai"camn eEaxnps redsast.a relating to Confirmed Disputed Transactions and provided to Client. Data may
include the following data elements:
(i) a card or account number, which number may be a cancelled card number;
(ii) merchant descriptor;
(iii) authorization date and/or time of transaction;
(iv) POS code;
(v) authorization amount; or
(vi) any source identifier provided by Participating Issuer to permit tracking of the source of the
1.16 "Data Protection Requirements" mean all applicable laws, rules and regulations regarding the
handling, collection and transfer of personal information, including where applicable, the Graham
Leach Bliley Act, the Data Protection Acts of 1984 and 1998, Directive 95/46/EC of the European
Parliament and any regulations implementing such Directive along with the "Safe Harbor Principles"
issued by the U.S. Commerce Department on July 21, 2000, PCI DSS, or any such similar or successor
laws, rules or regulations implementing requirements regarding the collections, storage, use, protection
and/or security of personally identifiable information applicable to the performance of Client's
obligations or the exercise of Client's rights hereunder or Client's use of the Inovio Services.
1.17 "Documentation" means the applicable user materials with respect to the Enrolled Services made
commercially available by Inovio, as amended by Inovio from time to time.
1.18 "Effective Date" means the date this Agreement and the Inovio Merchant Payment
Processing Application are accepted and signed by Inovio.
1.19 "End User" shall mean any person that purchases any of Client's goods or services, whose information
Client shall submit to Inovio during the course of Client's use of the Inovio Services.
1.20 "Enrolled Services" means the specific Inovio Services enrolled for by Client pursuant to the SOW.
1.21 "Fee Schedule" means the fees payable for the Inovio Services as specified in the SOW, which may
be modified by Inovio from time to time pursuant to Section 5.1 (Invoicing and Payment).
1.22 "Funding Schedule" means estimated dates and/or frequency Inovio provides funds to Client a
as specified in the SOW.
1.23 "Intellectual Property Rights" means, any rights (whether owned or licensed) existing now or in the
future under patent law, copyright law, data and database protection law, trade secret law and any and
all similar proprietary rights. The term "Intellectual Property Rights" means those rights as they exist
as of the Effective Date, and all such rights subsequently acquired by a Party during the duration of
1.24 "MasterCard" means MasterCard Worldwide, Inc.
1.25 "Merchant" means a party engaged in the sale of goods or services in the ordinary course of business.
1.26 "Merchant Identifier" means the list of Merchants that Client uses in its business as identified in the
attached Exhibit C for the purpose of Inovio providing Alerts, if applicable, to Client.
1.27 "Merchant Service Provider" means any third party through whom Inovio may offer the Inovio
Services to Client, including without limitation a Client, Independent Sales Organization, application
service provider, merchant aggregator, acquiring bank and financing agency.
1.28 "Outcome Information" means the result of the Alert provided to Client which include, but not
limited to, the following: (i) the results, as modified from time-to-time, of: account suspended,
shipment stopped, transaction refunded, order previously cancelled, too late, or other; (ii) the date and
time of the response; (iii) additional optional relevant information about a transaction; and (iv) any
other commentary as it specifically relates to the outcome of the transaction.
1.29 "Participating Issuer" means a card issuer that has agreed to provide Data on Confirmed Disputed
1.30 "Party" or "Parties" means: (i) Inovio; (ii) Client; or (iii) Inovio and Client, as the context permits.
1.31 "PCI DSS" means the Payment Card Industry Data Security Standards, including, but not limited to,
including Section 12.8 thereof.
1.33 "Processor" means a card processor that accepts Transactions from Inovio and processes Transactions
1.34 "Statement of Work" or "SOW" means the statement of work attached hereto at Exhibit A-1, and
that includes the Enrolled Services, Fee Schedule and Funding Schedule.
1.35 "Territory" means the United States and the European Union, subject to amendment by Inovio from
time to time.
1.36 "Transaction" means any credit card or electronic check authorization, credit, debit, ticket only,
capture or settlement request, or decline transaction, or any request for fraud risk evaluation completed
or submitted by an End User to Inovio.
1.37 "Visa" means Visa, Inc.
2.1 Enrolled Services. Subject to the terms and conditions set forth herein and upon Inovio's acceptance of
Client's Inovio Merchant Payment Processing Application, Inovio hereby agrees to provide the
Enrolled Services set forth in the SOW, and in connection therewith, Inovio hereby grants to Client
during the Term, a non-exclusive, non-transferable, non-sublicensable, limited and revocable right and
license to access the Enrolled Services solely for Client's internal use in the Territory. If Client desires
to engage Inovio to provide Alerts, Client shall also be subject to the terms and conditions attached
hereto as Exhibit B. Inovio will provide Client access to the Enrolled Services by issuance of an
I.P. address and password(s) to Client. Client is responsible for maintaining the confidentiality of such
address and passwords and any activity that transpires through the use of such address or passwords.
The rights granted to Client pursuant to the SOW shall terminate upon the termination or
expiration of this Agreement for any reason. All rights not expressly granted to Client are reserved
by Inovio and its licensors. Client acknowledges that Inovio' provision of the Enrolled Services and
any other services are expressly conditioned upon Client's prompt performance of its obligations
and responsibilities hereunder. Inovio reserves the right to refuse to provide any Inovio Service to
Client, in Inovio's sole discretion. Notwithstanding anything to the contrary, Client acknowledges and
agrees that Inovio may engage third party vendors to assist in the provision of Enrolled Services, and
that Inovio shall have the right to provide its third party vendors with all information, data (including,
but not limited to, Client data, Cardholder Data and Transaction data) and other information that Client
provides, or causes to be provided, to Inovio in connection with this Agreement.
2.2 Limitations. Client may only access and use the Enrolled Services within the Territory and solely for
internal use in accordance with all applicable laws, rules and regulations and any restrictions specified
herein and in the SOW. Without limiting the foregoing, Client shall not: (i) access or use any portion
of the Enrolled Services except as expressly authorized herein; (ii) cause or permit decompilation,
reverse assembly or reverse engineering of all or any portion of the Enrolled Services; (iii) copy any
ideas, features, functions or graphics of the Enrolled Services or modify or make derivative works
based upon the Enrolled Services; (iv) disclose or publish performance benchmark results or test
results to non-affiliated third parties with respect to the Enrolled Services without Inovio's prior written
consent in each instance; (v) export the Enrolled Services or Documentation in violation of U.S.
Department of Commerce export administration regulations or access or utilize the Enrolled Services
from outside the Territory; (vi) delete, fail to reproduce or modify any patent, copyright, trademark or
other proprietary rights notices which appear on or in the Enrolled Services or Documentation; or (vii)
directly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease the Enrolled Services,
or any portion thereof, for third party use, third party training, facilities management or time-sharing,
or use as an application service provider or service bureau. Without limiting the foregoing, Client
shall at all times comply with the Inovio's Acceptable Use Policy (the "AUP"), posted on the
Inovio Website and may be amended at the sole discretion of Inovio, and furthermore may not
use the Enrolled Services to: (1) send spam or otherwise send duplicative or unsolicited messages in
violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise
unlawful or tortious material, including material harmful to children or that violates a third
party's privacy rights; (3) knowingly send or store material containing viruses, worms, Trojan horses or
other harmful computer code, files, scripts, agents or programs; (4) interfere with or disrupt
the integrity or performance of the Enrolled Services or the data contained therein; or (5) attempt to
gain unauthorized access to the Enrolled Services or any computer networks or systems of Inovio or
its contractors. If there is a conflict between the obligations set forth in this Agreement and in the
AUP, the obligations set forth in this Agreement shall govern.
2.3 Revisions to SOW. During the Term, Client may desire to engage Inovio to provide services in
addition to the Enrolled Services. Upon request by Client, the Parties shall negotiate in good faith
towards a revision to the SOW, and such revision shall include information concerning the desired
services and costs associated with providing such additional services. When both Parties have signed
the revised SOW, it shall be deemed incorporated into, and made part of, this Agreement for all
purposes, and such additional services shall be treated as "Enrolled Services." Inovio shall have
no obligation to provide additional services other than those set out in the SOW.
2.4 Ancillary Products and Third Party Restrictions. Notwithstanding anything to the contrary, Client
acknowledges and agrees that the rights granted to Client hereunder are subject to all applicable rights
of third parties and Inovio makes no representation or warranty with respect to any Ancillary Products
included with or in the Inovio Services. Client shall comply with any third party restrictions
and limitations on use of the Inovio Services that are made known to Client. Inovio may at any
time modify the grant of rights to Client hereunder to the extent necessary to ensure compliance
with any such third party restrictions and limitations.
2.5 Support. Inovio will make available to Client web support for the Enrolled Services; provided Client
is current in all fees and other amounts owed to Inovio, and Client is not otherwise in default under
this Agreement. Inovio is under no obligation to provide error corrections or other support within a
certain time frame.
2.6 Services Availability. Inovio uses commercially reasonable efforts to enable access to the
Enrolled Services. Inovio also uses commercially reasonable efforts to ensure that downtime
relating to Enrolled Services will not materially impact normal business operations. However,
Client acknowledges and agrees that certain portions of the Enrolled Services, including without
limitation, data storage and hosting are currently and may in the future be provided by third party service
providers. Inovio may change its third party service providers at any time, in Inovio's sole discretion.
2.7 Secure Portal Access. Inovio will provide, or cause to be provided, encryption supportable by Inovioidentified
browser software to provide a reasonably secure environment for access to the Inovio online
portal service. Client acknowledges and agrees that Client is responsible for the nature, content and
legality of its data and all Cardholder Data transmitted, received or stored by Client.
3. Client Obligations.
3.1 Resources. Except as expressly set forth herein, Client shall be solely responsible for providing all
resources, equipment, hardware and software at its facilities which are necessary for it to remotely
access, use and/or receive the Enrolled Services. To the extent Inovio's provision of the
Enrolled Services requires data, documents, information or materials of any nature to be furnished, in
whole or in part, by Client or its employees, agents, contractors, representatives or End Users, Client
shall cause such employees, agents, contractors, representatives and End Users to furnish such data,
documents and information in a manner which permits Inovio to perform the Enrolled Services as
3.2 Third Party Coordination; Required Consents. To the extent the Enrolled Services require access
to a third party service provider who is under contract with Client, or access or use of such provider's
information or interconnection with such provider's services, facilities, technology or systems in order
to receive or transmit Client data or Cardholder Data, Client shall be responsible for obtaining any
required third party licenses or consents necessary for Inovio to access and use such information,
services, facilities, technology or systems.
3.3 Accuracy and Completeness of Data and Content. As between the Parties, Client shall be
responsible for the accuracy and completeness of all Client data, Cardholder Data and other data
transmitted or received by Client in connection with the Enrolled Services. Inovio does not warrant the
correctness, completeness, merchantability or fitness for a particular purpose of any Client data,
Cardholder Data or other content, and Client shall hold Inovio harmless from any and all third party
claims arising out of Client's use or dissemination of any such data or content.
3.4 Compliance with Laws. In connection with the exercise of Client's rights and obligations under this
Agreement (including, without limitation, any related to individual privacy), Client shall comply, at
Client's own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to
Client, this Agreement, Cardholder Data or the Transactions and/or orders of any governmental
authority or regulatory body having jurisdiction over the subject matter hereof, including, without
limitation, the rules promulgated by any Card Association, PCI DSS, and the Federal Trade
Commission. Client shall comply with all the current policies, procedures and guidelines of
Inovio governing the Inovio Services, including, without limitation, the Documentation. Inovio
reserves the right to amend, modify or change such policies, procedures, and guidelines at any
time. Client shall not use the Inovio Services in any manner, or in furtherance of any activity that may
cause Inovio to be subject to investigation, prosecution, or legal action. Without limiting the
foregoing, Client shall be solely responsible for determining the extent to which the design or
provision of the Enrolled Services is subject to any Data Protection Requirements or the oversight of
any regulatory agency charged with the enforcement thereof ("Regulatory Oversight"). Client shall
from time to time, upon the request of Inovio, provide sufficient evidence that Client complies,
as Inovio in its sole discretion shall determine, with PCI DSS. To the extent that the design
and operation of the Enrolled Services is subject to any Data Protection Requirements or
Regulatory Oversight, Client shall specify any procedures to be taken by Inovio during the
customization and provision of the Enrolled Services to cause the Enrolled Services to be in
compliance with such Data Protection Requirements and Regulatory Oversight.
3.5 Activity. Client is responsible for all activity occurring under Client's accounts and passwords. Client
shall restrict access to such identification, password, and account to Client's employees and agents as
may be reasonably necessary consistent with the purposes of this Agreement and shall ensure that each
such employee and agent accessing and using the account is aware of and otherwise complies with all
applicable provisions of this Agreement regarding such use and access. Client shall: (i) notify Inovio
immediately of any unauthorized use of any password or account or any other known or suspected
breach of security; (ii) report to Inovio immediately and use reasonable efforts to stop immediately any
copying or distribution of Client data or Cardholder Data that is known or suspected by Client; and
(iii) not impersonate another Inovio user or provide false identity information to gain access to or use
of the Enrolled Services. Client further agrees to comply with all Inovio recommendations and notices
regarding the security of Client's identification, password and payment gateway account(s).
3.6 Limitations. Any attempt by Client to use the Inovio Services for more than one merchant acquiring
bank account, or on behalf of another entity or individual, may result in an obligation to pay to Inovio
additional fees and charges and/or Inovio's revocation of Client's right to use the Inovio Services
and termination of this Agreement.
3.7 Relationship to Merchant Service Providers. Client may have enrolled in the Inovio Services via a
Merchant Service Provider. In addition to any other agreement Client may have with the Merchant
Service Provider, the terms and conditions of this Agreement govern Client's use and Inovio's
provision of the Inovio Services. Client expressly acknowledges and agrees that Inovio may share
information about Client and Client's account with its Merchant Service Providers.
3.8 Data Security. Client shall implement and maintain data security and integrity systems, safeguards,
policies and procedures to prevent any deletion, loss or alteration of, or unauthorized access to or
acquisition of, any Cardholder Data while in Client's possession, and in the event that any such
Cardholder Data is lost, destroyed, altered or improperly accessed or acquired (each, a "Breach"), use
its best efforts to remediate such event and reconstruct such data as soon as feasible and implement
policies and procedures to ensure that no such Breach occurs again. Notwithstanding anything to the
contrary, Client shall immediately notify Inovio of any suspected Breach and, in no event, shall
such notice be provided more than twenty-four (24) hours from the time at which Client suspects a
potential Breach. Client hereby acknowledges that Inovio may disclose this information to
processors and/or banks that process Client’s transactions in connection with the Inovio Services.
3.9 Audit. Client shall permit Inovio, or its authorized representatives, upon request and upon reasonable
prior notice, reasonable access to the books, records, facilities and systems of Client relating to this
Agreement in order to inspect such books, records, facilities and systems to verify Client's compliance
with the terms and conditions of this Agreement. Any such inspection may be conducted during
normal working hours at Client's offices upon reasonable advance notice; provided that Inovio will
pay for all costs and expenses incurred in connection with any such inspection, unless such
inspection reveals fraud or bad faith on the part of Client or any material underpayment of fees, in
which case Client shall reimburse Inovio for all costs of the audit.
4. Data Collection, Privacy and Security.
4.1 Client Obligations.
4.1.1. Client is solely responsible for the security of data residing on servers owned or operated by
Client, or a third party designated by Client (e.g., a Web hosting company, processor or other
service provider). Client agrees to provide notice to End Users on Client's website that
discloses how and why personal and financial information is collected and used, including
uses governed by this Agreement.
4.1.2. Client shall not use, disclose, sell or disseminate any End User information obtained in
connection with a Transaction (including the names, addresses and card account numbers of
cardholders) except for purposes of authorizing, completing and settling Transactions and
resolving any chargebacks, retrieval requests or similar issues involving Transactions, other
than pursuant to a court or governmental agency request, subpoena or order. Client shall use
proper controls for and limit access to, and render unreadable prior to discarding, all records
containing card account numbers and card imprints.
4.1.3. Client agrees that it shall comply with all Inovio security protocols and security advisories in
effect during the Term. Client is solely responsible for verifying the accuracy
and completeness of all Transactions submitted and processed by Inovio associated with
Client's account and verifying that all corresponding funds are accurately processed.
Client acknowledges that Inovio shall not be liable for any improperly processed or
unauthorized Transactions or illegal or fraudulent access to Client's account, End User or
Transaction data. Inovio's liability for improperly processed or unauthorized Transactions
solely attributable to the negligence of Inovio is limited pursuant to Section 11 (Limitation
4.1.4. Client shall comply with all then-current legal obligations and security measures, as
applicable, including, without limitation, those issued by Card Associations and the Federal
Trade Commission, associated with the collection, security, dissemination and destruction of
End User and Transaction data, and expressly including PCI DSS, Visa Cardholder
Information Security Program (CISP) and the MasterCard Site Data Protection Program
(SDP). Client acknowledges that Client is responsible for the security of End User's
Cardholder Data while in Client's possession. Client represents and warrants that it has taken
such precautions as are necessary to ensure that Client's server and electronic systems are
secure from breach or intrusion by unauthorized third parties. In the event that Client's
system is breached and an unauthorized third party has access to, or has accessed or acquired,
End User data or Transaction data, Client shall immediately notify Inovio, and in no event
delay notice to Inovio for more than twenty-four (24) hours from any suspicion of a breach,
and shall take such precautions as may be necessary to prevent such breaches from occurring
in the future, and as otherwise may be required by law. Client hereby acknowledges that
Inovio may disclose this information to processors and/or banks that process Client’s
transactions in connection with the Inovio Services.
4.1.5. Client shall not utilize, or knowingly or unknowingly allow to be utilized, any services
provided by Inovio to transact e-mails in violation of the Can-Spam Act of 2003, as amended
(i.e.,"spam"), offer or sell any goods or services that infringe or misappropriate any
Intellectual Property Rights of Inovio or of any third party, violate any criminal laws,
or engage in activities which constitute false advertising, unfair competition, defamation,
an invasion of privacy, violate a right of publicity, or violate any other law or regulation.
4.1.6. Client is solely responsible for compiling and retaining permanent records of all Transactions
and End User data for Client's reference. Except as otherwise provided herein or
in accordance with PCI-DSS, at no time shall Inovio have an obligation to store, retain,
report or otherwise provide any copies of or access to any records of Transactions or End
User data collected or processed by Inovio.
4.2 Inovio Obligations.
4.2.1. Inovio will collect, retain, and disclose information and data collected from Client and End
Users (including data associated with the Inovio Services) in accordance with
4.2.2. Inovio, its subsidiaries, Merchant Service Providers, partners, third party vendors,
suppliers and/or their agents/contractors may transfer data (including, but not limited to,
Cardholder Data, Transaction data and any other data Client provides or otherwise makes available
in connection with this Agreement) amongst themselves as necessary for the purpose of the
provision and management of the Inovio Services, and that Inovio may further transfer data:
(i) to third parties assisting Inovio in evaluating Client's eligibility for, provision of,
administration and management of the Inovio Services, as well as under circumstances
entities or other third party vendors that assist Inovio in providing products and services that
Client has requested including, but not limited to, the Enrolled Services; (iii) with companies
that provide support services to Inovio; or (iv) as otherwise permitted by law. While
Inovio uses commercially reasonable efforts to safeguard data, Inovio does not warrant that
End User data and Transaction data will be transported without unauthorized
interception or modification or that data will not be accessed or compromised by
unauthorized third parties.
4.2.3. With respect to the Inovio Services, at all times while this Agreement is in effect, Inovio will
maintain compliance with PCI DSS. Inovio acknowledges that Inovio is responsible for
the security of End User cardholder data while in Inovio's possession.
4.2.4. Inovio shall only provide the Enrolled Services to Client notwithstanding the fact that Inovio
may offer other services.
5. Prices; Ordering; Payment.
5.1 Invoicing and Payment. Client shall pay to Inovio all fees, charges and expenses due and owing
pursuant to the Fee Schedule in U.S. dollars to the address designated on the invoice, or if Client
authorizes Inovio to initiate transaction entries into Client's depository account, or to charge
Client's card, the numbers of which are provided to Inovio on an ACH Authorization Form, Inovio
shall initiate transactions for amounts owed within twenty-one (21) days following Inovio's
invoice date. All payment obligations are non-cancellable, non-refundable and non-contingent.
Inovio shall endeavor to send invoices to Client via e-mail or otherwise have invoices available
for viewing by Client electronically; however, any failure by Client to receive such invoice(s)
does not excuse payment obligations. Client may not set-off any amounts owing to Client against
any payments owing to Inovio hereunder. Inovio may issue invoices for annual renewable fees up to
ninety (90) days in advance of the anniversary of the Effective Date with payment due by the
beginning of such anniversary of the Effective Date. Inovio reserves the right to change its fees
at any time upon sixty (60) days prior written notice to Client.
5.2 Late Payment Fee. Payments which are not received when due shall bear interest at the lesser of the
maximum amount chargeable by law or 1½% per month commencing with the date payment was due;
provided, however, that a minimum of Twenty-Five U.S. Dollars (U.S. $25.00), or the highest amount
allowed by applicable law, whichever is less, will be assessed each month. In addition, in the event
Client fails to timely pay any fees or charges when due, Inovio may, in its sole discretion, suspend or
terminate any Enrolled Services or other services hereunder, and Inovio may change its credit terms
for the SOW. Client shall continue to be charged for all Enrolled Services and other services during
any period of suspension. Notwithstanding anything to the contrary and if agreed upon by the
Parties, a Merchant Service Provider may charge, bill, and collect such fees from Client, in the
amounts stated in and in accordance with the terms and conditions of the agreement between Client
and such Merchant Service Provider. If Client's relationship with a Merchant Service Provider
expires or terminates and such Merchant Service Provider was billing Client for certain fees, Client
agrees to pay Inovio for any further use of the Inovio Services effective immediately upon any such
expiration or termination in accordance with the terms herein.
5.3 Returned Payment Fee. Client shall pay to Inovio a "Returned Payment Fee," in the amount set
forth in the Fee Schedule, each time Inovio attempts to debit Client's depository account or
charge Client's card for any amounts owing under this Agreement and receives a returned item or
decline message from Client's bank.
5.4 Excess Decline Fee. If the ratio of Client's declined credit card authorizations to successful credit card
authorizations exceeds 0.49 in a calendar month, Client shall pay Inovio a fee equal to Fifty
U.S. Dollars ($50.00) or twenty-five percent (25%) of the total credit card authorization fees for
such calendar month, whichever amount is greater ("Excessive Decline Fee").
5.5 Early Termination Fee. If client terminates this Agreement prior to the expiration of the Initial Term
or any term set forth in the SOW, Client shall immediately pay Inovio, the fees and rates for
the Enrolled Services for a period equal to one-half of the time remaining on the Funding
Schedule as identified in the SOW.
5.6 Taxes and Duties. The fees described above are exclusive of all taxes. Client agrees to pay all
applicable taxes other than tax assessed on Inovio's income. Client agrees that the payment of fees
to Inovio shall be made without deduction or withholding for any taxes. If Client is required to
withhold any taxes, the amount paid by Client to Inovio shall be increased to the extent necessary
to yield to Inovio (after withholding of such taxes) a net amount equal to the amount Inovio would
have received had no such withholding been made. Client bears the ultimate responsibility for the
proper payment of taxes applicable to Client's sale of its products or services.
5.7 Ordering Procedure. Client agrees that the absence of a purchase order, other ordering document or
administrative procedure may not be raised as a defense to avoid or impair the performance of any of
Client's obligations hereunder, including payment of amounts owed to Inovio. No additional,
supplemental or contrary terms on any purchase order shall conflict with the terms and conditions of
this Agreement, and all such additional, supplemental and contrary terms are hereby expressly
6. Term and Termination.
6.1 Initial Term and Renewals. Unless otherwise set forth in the SOW, the initial term of this
Agreement shall be for one (1) year commencing on the Effective Date ("Initial Term") and shall
automatically renew on a month-to-month basis until terminated in accordance with the provisions
hereof (each, a "Renewal Term"). The Initial Term and all Renewal Terms are referred to herein
collectively as the "Term". Either Party may terminate this Agreement upon thirty (30) days prior
notice to the other Party.
6.2 Termination. Either Party may terminate this Agreement or the SOW if the other Party breaches this
Agreement or the SOW, as applicable, and fails to correct the breach within fifteen (15) days
following receipt of written notice from the non-breaching Party; provided, that such notice provides
details regarding the alleged breach. In addition, Inovio may terminate this Agreement immediately if:
(i) Client files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors,
or if a trustee is set up to administer a substantial portion of Client's assets or business; (ii) if in
Inovio's sole discretion, Client is engaging in such behavior that is damaging to Inovio; or (iii) if
Client's activity or inactivity is contrary to Card Association rules or if Inovio is otherwise instructed by
a Card Association to terminate its relationship with Client.
6.3 Suspension of Enrolled Services. In the event (i) Client fails to timely pay any fees when due, or (ii)
Inovio reasonably believes that any element of the Enrolled Services, or Client's receipt or use thereof,
violates any applicable law, rule or regulation, Inovio may it its sole discretion suspend or terminate
any Enrolled Services and other services immediately without notice.
6.4 Effect of termination. Upon termination of this Agreement or the SOW for any reason, all payment
obligations shall become immediately due and owing, and Client shall immediately cease using the
applicable Enrolled Services and return all Documentation to Inovio. Upon termination of this
Agreement, Client shall also return to Inovio or destroy all copies of Inovio's Trade Secrets
and Confidential Information in every form. Upon request of Inovio, Client agrees to certify in writing
to Inovio that it has performed the foregoing obligations. In the event of any termination
hereunder, Client shall not be entitled to any refund of any payments made by Client to Inovio.
6.5 Survival. The following Sections shall survive any termination or expiration of this Agreement: (i)
Section 2 (Services); (ii) Section 3 (Client Obligations); (iii) Section 4.1 (Client Obligations); (iv)
Section 5 (Prices; Ordering; Payment); (v) Section 6 (Term and Termination); (vi) Section 8
(Confidentiality); (vii) Section 9.1 (Inovio's Intellectual Property); (viii) Section 10 (Indemnification);
(ix) Section 11 (Limitation on Liability); and (x) Section 12 (Miscellaneous Provisions).
7. Representations and Warranties.
7.1 Client Representations and Warranties. Client represents and warrants to Inovio that: (i) it has all
necessary right, power and authority to enter into this Agreement and to perform its obligations
hereunder; (ii) the execution and delivery of this Agreement, and the performance of its obligations
hereunder, do not conflict with and will not result in a breach of any other agreement to which
Client is a party or by which its assets are bound; and (iii) this Agreement constitutes the legally
valid and binding obligation of Client enforceable against it in accordance with its terms, except as
such enforcement may be limited by applicable law or equitable principle.
7.2 Client Acknowledgment. Client acknowledges and agrees that it has made its own evaluation in
deciding to subscribe for the Enrolled Services. The warranties provided in this Agreement extend
solely to Client and to no other person or entity whatsoever. Without limiting the foregoing, Inovio is
not responsible for the results that may be obtained from use of the Enrolled Services.
7.3 Disclaimers. INOVIO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH
RESPECT TO THE ENROLLED SERVICE OR ANY OTHER SERVICES PROVIDED
PURSUANT TO THIS AGREEMENT OR THE SOW. INOVIO EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION,
INOVIO'S ABILITY TO PROVIDE FUNDS ON SUCH DATES OR WITH SUCH FREQUENCY AS
MAY BE SET FORTH IN ANY FUNDING SCHEDULE, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES
ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL
WARRANTIES OF TITLE AND NON-INFRINGEMENT. INOVIO SPECIFICALLY
DISCLAIMS MAKING ANY REPRESENTATION OR WARRANTY OF COMPLETE
FRAUD PROTECTION, WHETHER OR NOT IN CONNECTION WITH THE ANTI-FRAUD
SERVICES INOVIO MAY PROVIDE. INOVIO SHALL NOT BE LIABLE FOR ANY
ERRORS OR OMISSIONS IN CONNECTION WITH THE ANTI-FRAUD SERVICES
INOVIO MAY PROVIDE. INOVIO DOES NOT WARRANT THAT THE ENROLLED
SERVICES OR OTHER SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE USE
OR OPERATION OF THE ENROLLED SERVICES OR OTHER SERVICES WILL BE
UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH THE ENROLLED SERVICES
OR OTHER SERVICES CAN OR WILL BE CORRECTED. CLIENT ACKNOWLEDGES AND
AGREES (I) THAT IT HAS NOT RELIED ON ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED; AND (II) THAT CLIENT HAS READ AND
UNDERSTOOD SECTION 11 (Limitation on Liability), WHICH SETS FORTH INOVIO'S
MAXIMUM LIABILITY IN THE EVENT OF LOSS OR DAMAGE TO CLIENT.
8.1 Confidentiality. Each Party (the "Receiving Party") acknowledges that it will have access to
Confidential Information and Trade Secrets of the other Party (the "Disclosing Party"). For purposes
of this Agreement, "Trade Secrets" means information, without regard to form, which: (i) derives
economic value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value from its disclosure or
use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy;
and "Confidential Information" means information, other than Trade Secrets, that is of value to
Disclosing Party and is treated as confidential. Inovio's Trade Secrets and Confidential
Information include, without limitation, the Enrolled Services and any associated Documentation;
information concerning Inovio's plans for functionality, or service offerings; business policies
and practices; information identified as proprietary or confidential by Inovio; any agreements
and the terms, conditions and pricing contained in this Agreement; information received from others
that Inovio has agreed to keep confidential or not disclose; Inovio's research activities and plans,
marketing and sales plans, strategic plans, forecasts, pricing and pricing strategies, methods of
operation, internal controls, security procedures and client lists; unpublished financial information;
and information presented to Client in focus groups; guide groups or other advisory groups
sponsored by Inovio or its clients; or information that by its nature or the nature of its disclosure
should in good faith be treated as confidential. The Receiving Party agrees to use the Trade Secrets
and Confidential Information of the Disclosing Party solely for purposes of performing its obligations
or exercising its rights under this Agreement. The Receiving Party agrees to discuss the Trade Secrets
and Confidential information of the Disclosing Party only with, and to transmit the Trade Secrets and
Confidential Information only to, those officers, employees and consultants of the Receiving Party
who have a need to know the Trade Secrets or Confidential Information for the purposes set forth
herein and who have agreed in writing to treat such information as confidential on terms no less
restrictive than as set forth in this Agreement. The Parties acknowledge and agree that the terms
of any previously executed confidentiality or nondisclosure agreements shall remain in effect with
respect to the information exchanged thereunder.
8.2 Security Precautions. The Receiving Party shall take commercially reasonable security precautions
to prevent unauthorized use and disclosure of the Trade Secrets and Confidential Information of the
Disclosing Party, and shall use at least the same degree of care the Receiving Party employs with
respect to its own Trade Secrets and Confidential Information, but in no event less than a reasonable
standard of care. The Receiving Party shall not permit unauthorized access to the Trade Secrets or
Confidential Information of the Disclosing Party.
8.3 Exceptions. The Parties' obligations with respect to Confidential Information and Trade Secrets under
this Agreement shall not apply to Confidential Information and Trade Secrets which the Receiving
Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the
Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from
a third party, provided that such third party is not bound by an obligation of confidentiality to the
Disclosing Party with respect to such Confidential Information and Trade Secrets; (iii) was
independently developed by the Receiving Party without reference to the Disclosing Party's
Confidential Information or Trade Secrets; or (iv) is required to be disclosed by law, provided that the
Disclosing Party is promptly notified by the Receiving Party in order to provide the Disclosing Party
an opportunity to seek a protective order or other relief.
8.4 Use of the Internet. The Parties understand and acknowledge that the Internet and communications
over it may not be secure, and that connecting to it provides the opportunity for unauthorized access to
computer systems, networks, and all data stored therein. The information and data transmitted through
the Internet or stored on any equipment through which Internet information is transmitted may not
remain confidential and neither Party makes any representation or warranty regarding privacy,
security, authenticity, non-corruption or destruction of any such information. Use of any information
transmitted or obtained over the Internet is at each Party's own risk and neither Party shall be
responsible to the other for any adverse consequence or loss whatsoever from use of the Internet.
9. Intellectual Property Rights.
9.1 Inovio's Intellectual Property. Inovio (or its licensors) retains title to the Enrolled Services and
Documentation, and all modifications, alterations, derivative works, and enhancements thereto, and all
copies thereof and Intellectual Property Rights therein. Except as specified herein, Client does not
acquire any rights, express or implied, in the Enrolled Services or Documentation, and has no right to
commercialize or transfer the Enrolled Services or Documentation, in whole or in part. No license,
right or Intellectual Property Right in any Inovio trademark, trade name or service mark is granted
pursuant to this Agreement.
9.2 License to Client and Cardholder Data. Client hereby grants to Inovio the non-exclusive right and
license to (i) receive, retrieve, process, sublicense, use and transmit any Client data or Cardholder Data
necessary or reasonably desirable to perform the Enrolled Services or other services; and (ii) use, copy,
manipulate and store any Client data or Cardholder Data that will be archived, stored or otherwise
transmitted in connection with the Enrolled Services.
9.3 Residuals. This Agreement shall not be construed to limit Inovio's right to independently develop or
acquire ideas, inventions, technology and other creations without use of Client's
Confidential Information or Trade Secrets. Inovio shall be free to use for any purpose the general
knowledge, skills and experience in non-tangible form, which may be retained in the unassisted
memories of persons involved in the performance of this Agreement (the “Residual
Information”) of its personnel resulting from performance of services hereunder. Inovio shall
have no obligation to limit or restrict the assignment of such persons or to pay royalties for any
work resulting from the use of Residual Information.
10.1 Indemnification by Client. Client hereby agrees to indemnify, defend and hold Inovio and its
successors, affiliates, assigns, shareholders, officers, directors, employees and applicable third parties
(e.g., licensors, licensees, consultants and contractors) (collectively, the "Indemnified Party")
harmless from and against any and all losses, awards, causes of action, claims, obligations, demands,
assessments, fines and penalties (civil or criminal), liabilities, expenses and costs (including litigation
costs and reasonable attorneys' fees) resulting from or arising out of or in connection with (i) any
breach or alleged breach by Client of any representation, warranty, covenant or other obligation of
Client under this Agreement; (ii) the reliability, accuracy, or legitimacy of payment data or purchase
orders submitted by Client to Inovio; (iii) violation by Client of any Data Protection Requirements or
other applicable laws, rules or regulations, (iv) any violation by Client of the Cardholder Association
Rules or PCI DSS; (v) the negligence, willful misconduct or fraud of Client; (vi) payment card
transactions submitted by Client to Inovio and rejected by Inovio or an issuing bank; (vii) any alleged
infringement of a patent, copyright, trademark or other Intellectual Property Right resulting from
Client's actions; (viii) claims by End Users, including, without limitation, claims relating to the
disclosure of Cardholder Data or End User or consumer data; and (ix) any alleged or actual violation
by Client of any applicable laws, regulations or rules of the Credit Card Associations or any regulatory
body or agency having jurisdiction over the subject matter hereof. In the event Client causes fines
and/or penalties to be charged to Inovio by the Credit Card Associations or any other entity, Client
agrees to immediately reimburse Inovio for such fines and penalties.
10.2 Indemnification Obligations. In connection with the foregoing indemnity obligations: (i) the
Indemnified Party shall provide the indemnifying party (the "Indemnifying Party") with prompt
written notice of such claim; (ii) the Indemnifying Party shall have the right to have sole control over
the litigation or settlement of such claim so long as any such settlement does not involve the admission
of any wrongdoing by the Indemnified Party or restrict the Indemnified Party's future actions and
includes a full release of the Indemnified Party; and (iii) the Indemnified Party shall provide
reasonable cooperation in the defense and all related settlement negotiations, all at the Indemnifying
Party's sole cost and expense.
10.3 Exclusions. Notwithstanding the provision of Section 10.1 (Indemnification by Client), Inovio shall
have no liability or obligation with respect to any indemnification claim pursuant to Section 10.1
(Indemnification by Client) if the claim arises out of or results from (i) use by Client of any Inovio
Services in combination with any third-party equipment, hardware, software, services or content not
expressly approved by Inovio in writing; (ii) Inovio's compliance with the directions of Client;
(iii) modification of any of the Inovio Services by any party other than Inovio; or (iv) any act or
omission for which Inovio would have an indemnification or other claim against Client under this
11. Limitation on Liability.
11.1 Consequential Damages Waiver. IN NO EVENT SHALL INOVIO OR ANY OF ITS AFFILIATES
OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS
OR REPRESENTATIVES BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR
ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS,
WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION),
EVEN IF INOVIO HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF
11.2 Limitation of Liability. INOVIO TOTAL AGGREGATE LIABILITY TO CLIENT OR ANY
OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM
OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED
THE FEES PAID BY CLIENT TO INOVIO DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT
GAVE RISE TO CLIENT’S FIRST CLAIM.
11.3 Exceptions. The limitations set out in this Section 11 (Limit on Liability) shall not apply to claims for
personal injury or death.
12. Miscellaneous Provisions.
12.1 Force Majeure. Neither Party shall be deemed in default or otherwise liable for any delay in or
failure of its performance under this Agreement by reason of any act of God, fire, natural disaster,
accident, riot, terrorism, act of government, strike or labor dispute, shortage of materials or supplies, or
any other cause beyond the reasonable control of such Party.
12.2 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof, and supersedes all previous or contemporaneous
agreements, proposals, understandings and representations, written or oral, with respect to the terms
and conditions hereof. This Agreement may not be modified or amended except in a writing signed by
12.3 Governing Law. This Agreement shall be governed by the laws of the State of California, without
regard to its conflict of laws rules or principles. Client hereby consents to exclusive jurisdiction in
California and exclusive venue in Santa Clara County, California for legal proceedings arising out of
this Agreement. Client accepts the personal jurisdiction of such courts.
12.4 Class Action Waiver. IN ANY DISPUTE, NEITHER CLIENT NOR ANY OTHER
PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST
INOVIO OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR
CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. CLIENT
ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR
REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
12.5 Notices. Except as explicitly stated otherwise, legal and other notices shall be delivered to Inovio by
U.S. mail at Inovio Payments Inc., 19749 Dearborn Street, Chatsworth, California 91311, Attention:
General Manager of Payment Processing (notice shall be deemed given three (3) days after the date of
mailing), with a copy to Office of General Counsel, 6800 Broken Sound Parkway, Suite 200, Boca
Raton, Florida 33487, or to Client at the email address provided (i) in the Inovio Merchant Payment
Processing Application, or (ii) through a subsequent notice of an address change. Notice shall be
deemed given twenty-four (24) hours after email is sent. Alternatively, Inovio may provide notice by
certified mail, postage prepaid and return receipt requested to Client's physical address set forth in the
Inovio Merchant Payment Processing Application. In such case, notice shall be deemed given three (3)
days after the date of mailing.
12.6 Freedom of Action. It is understood and agreed that Inovio shall be free and without restriction to
develop, market, license and sell products and technology as it may see fit; provided, however that
Inovio strictly and fully complies with its obligations set out in Section 8 (Confidentiality).
12.7 Severability; Waiver. In the event that any one or more of the provisions of this Agreement is held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected, or if any one or more of the provisions
contained herein shall be held to be excessively broad as to duration, activity or subject, such provision
shall be construed by limiting and reducing such provisions so as to be enforceable to the maximum
extent compatible with applicable law. The waiver by either Party of any default or breach of this
Agreement shall not be effective unless given in a signed writing and shall not constitute a continuing
waiver or waiver of any other or subsequent default or breach.
12.8 Assignment. Client shall not assign or delegate this Agreement nor assign or delegate any right or
duty under this Agreement without the prior written consent of Inovio, which consent may be granted
or withheld by Inovio in its sole discretion. A change of control of Client shall be deemed to constitute
an attempted assignment hereunder. Any attempted assignment by Client not expressly permitted by
this Section 12.8 (Assignment) shall be null and void. "Control" means ownership or control, direct or
indirect, of more than fifty percent (50%) of the stock or other equity interest entitled to vote for the
election of directors or equivalent governing body. Inovio may assign this Agreement, including,
without limitation, in connection with a sale of all or substantially all of its assets, without any consent
12.9 Non-Solicitation. During the Term and for a period of one (1) year after termination of this
Agreement, Client shall not, on its own behalf or jointly with or for any other party (whether directly
or indirectly), canvass, solicit, interfere with or endeavor to entice away from Inovio any
merchant account, acquiring bank or any other client.
12.10 Further Assurances. Each Party agrees to execute and deliver such other and further documents and
instruments as may be necessary to effectuate the intent and purposes of this Agreement upon request
by the other Party.
12.11 Contract Interpretation. No provision of this Agreement shall be construed for or against either
Party because of the authorship of that provision.
12.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which shall be taken together and deemed to be one instrument. The
Parties agree that if a conflict arises between this Agreement and the SOW, then the term or provision
of the SOW shall control.