BY SIGNING UP FOR A JULEP MERCHANT ACCOUNT AND/OR EXECUTING A PILOT ORDER FORM, IN EACH CASE THAT INCORPORATES THIS MERCHANT AGREEMENT BY REFERENCE (THIS “AGREEMENT”), BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS MERCHANT AGREEMENT OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY CHECKSONME, INC. (“CHECKSONME”), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS MERCHANT AGREEMENT.

IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY JULEP SOFTWARE OR SERVICES PROVIDED BY CHECKSONME.

This Pilot Program Merchant Agreement (this “Agreement”) is a binding contract between you, the user ("Merchant"), and ChecksOnMe, Inc., a Delaware corporation, ("ChecksOnMe"). Please review these terms carefully, especially the sections regarding payment authorization, gratuity, and dispute resolution. ChecksOnMe and Merchant may each be a “Party” and together the “Parties.”

Background. ChecksOnMe is developing a prerelease software platform that allows patrons to open and pay bar tabs using supported mobile-wallet payment methods and allows participating merchants to manage and charge payment for those tabs. Merchant wishes to participate in ChecksOnMe’s prerelease Pilot Program, which may include limited one-night testing events (“Pilot Events”) and longer, limited-duration pilot periods (“Extended Pilot Periods”), and ChecksOnMe wishes to make the Beta Services available on the terms below. Finix Payments, Inc. and its applicable acquiring bank, processor, and other payment partners provide the underlying payment-processing services under separate merchant terms accepted by Merchant during onboarding.

In consideration of the mutual promises in this Agreement, the Parties agree as follows:

1. Definitions

1. “Additional Merchant Fees” means fees that may be assessed and collected in accordance with Section 10.3 at the rates stated in the applicable Pilot Order Form.

2. “Applicable Law” means all laws, regulations, rules, orders, and other legally binding requirements applicable to a Party, this Agreement, the Beta Services, a Pilot Deployment, or a Transaction.

3. “Bartender App” means the merchant-facing application through which authorized Merchant Personnel may manage Tabs, Transactions, and related functions.

4. “Beta Services” means ChecksOnMe’s prerelease websites, ChecksOnMe Apps, related functionality, and services made available during the Pilot Program, including payment-related functionality enabled through third-party integrations, as described in this Agreement and each applicable Pilot Order Form. The Beta Services are only made available to select merchants for limited early-access, testing, and evaluation purposes, are not generally commercially available, and may contain errors, experience interruptions or limitations, or change during the Pilot Program.

5. “Business Day” means a day other than Saturday, Sunday, a federal banking holiday, or another day on which the Federal Reserve Banks are closed

6. “Capture” means submission of an authorized Transaction for final processing in the amount then due, including the Sale Amount and applicable tip.

7. “Chargeback” means a reversal or debit of all or part of a Transaction arising from a Patron dispute or other action taken under applicable Finix, processor, issuer, financial-institution, or payment-network rules. 

8. “Chargeback Inquiry” means a request for information, documentation, or other evidence concerning a Transaction received through Finix in connection with a potential or existing payment dispute.

9. “Chargeback Notification” means a notice received through Finix that all or part of a Transaction has been charged back, reversed, or otherwise debited under applicable issuer, processor, financial-institution, or payment-network rules.

10. “ChecksOnMe Apps” means the native mobile and browser-based web applications made available by ChecksOnMe in connection with the Beta Services, including the Merchant Admin Portal, Bartender App, and Patron App.

11. “ChecksOnMe Data” means data generated or derived by or for ChecksOnMe from the operation or use of the Beta Services, including but not limited to system, diagnostic, usage, analytics, and aggregated or de-identified data. ChecksOnMe Data excludes Merchant-Provided Data and Merchant Content as originally supplied by Merchant.

12. “Confidential Information” means nonpublic information disclosed by or on behalf of a Party that is identified as confidential or reasonably should be understood as confidential given its nature and the circumstances of disclosure.

13. “Extended Pilot Period” means a Pilot Deployment spanning multiple Operating Shifts.

14. “Feedback” means ideas, suggestions, requests, recommendations, or other input provided by Merchant or Merchant Personnel regarding ChecksOnMe, the Beta Services, or ChecksOnMe’s other services, brand, marketing, or business operations.

15. “Finix Merchant Terms” means the then-applicable payment-processing and related Finix terms that Merchant accepts or is required to accept as part of submitting an onboarding application made available by ChecksOnMe and to receive Finix’s services.

16. “Merchant Admin Portal” means the merchant-facing browser-based application through which authorized Merchant Personnel may access administrative portions of the Beta Services, including Transactions, reports, refunds, disputes, and Unresolved Tabs.

17. “Merchant’s Bank Account” means the bank account designated by Merchant in its onboarding application to be used for settlement, debits, and other payment-related purposes under this Agreement and the Finix Merchant Terms. Any replacement bank account must be designated through a process made available by ChecksOnMe and is subject to the Beta Services’ feature availability and Finix’s approval.

18. “Merchant Content” means text, photos, videos, graphics, and other materials supplied or approved by Merchant for use in connection with the Beta Services, a Venue Profile, a Pilot Deployment, or the Pilot Program. Merchant Content includes Merchant Marks.

19. “Merchant Fee Profile” means Merchant’s pricing configuration maintained through Finix for assessing Merchant Fees.

20. “Merchant Fees” means the Platform Processing Fee and any Additional Merchant Fees applicable under this Agreement and the applicable Pilot Order Form..

21. “Merchant Marks” means Merchant’s and its approved locations’ business names, trade names, logos, trademarks, service marks, trade dress, and domain names.

22. “Merchant Personnel” means Merchant’s owners, managers, employees, contractors, and other individuals Merchant authorizes to access or use the Beta Services.

23. “Merchant-Provided Data” means information submitted or otherwise made available to ChecksOnMe by or on behalf of Merchant or Merchant Personnel in connection with this Agreement, an onboarding application, or usage of the Beta Services. This may include information related to Merchant’s venue, location, business operations, and Merchant Personnel. Merchant-Provided Data excludes Merchant Content, Merchant Marks, Patron Data, Transaction Data, and ChecksOnMe Data.

24. “Net Sales Proceeds” means any net amount payable to Merchant from a Settlement after permitted deductions, withholdings, reserves, setoffs, and debits.

25. “Operating Shift” means the period beginning at 7:00 a.m. local time on the day a bar shift begins and ending at 6:59 a.m. local time on the following calendar day.

26. “Patron” means Merchant’s customers or guests who use ChecksOnMe to open Tabs and make payments with Merchant.

27. “Patron App” means the consumer-facing application, website, or other interface through which Patrons may locate participating venues, view Venue Profiles, open and manage Tabs, enter or edit tip amounts, and access related services..

28. “Patron Data” means data relating to a Patron that ChecksOnMe collects, receives, or generates in connection with the Beta Services, including contact, billing, device, location, and transaction-related information. This may include Personal Information.

29. “Personal Information” means information that identifies, relates to, or could reasonably be linked to an identified or identifiable individual, including information treated as personal information or personal data under Applicable Law.

30. “Pilot Deployment” means a limited period during which Merchant may use the Beta Services to accept new Transactions at an approved location under a Pilot Order Form. A Pilot Deployment may be a Pilot Event or an Extended Pilot Period.

31. “Pilot Deployment Window” means the authorized Operating Shift date or dates during which Merchant may open new Tabs and initiate new sales through the Beta Services, as stated in the applicable Pilot Order Form.

32. “Pilot Event” means a Pilot Deployment conducted during a single Operating Shift or another short Pilot Deployment Window specified in a Pilot Order Form.

33. “Pilot Order Form” means an order form signed by both Parties identifying a Pilot Deployment and its deployment-specific terms.

34. “Pilot Program” means ChecksOnMe’s prerelease testing and evaluation program for the Beta Services.

35. “Platform Processing Fee” means the blended card-processing Merchant Fee stated in the applicable Pilot Order Form, consisting of a percentage of the final captured Transaction amount plus a fixed per-Transaction amount.

36. “Pre-Authorization” means the initial $0.01 authorization request submitted when a Patron opens a Tab to verify the Patron’s payment method.

37. “Sale Amount” means the total pre-tip amount entered by Merchant Personnel for the goods and services charged to a particular Tab, including applicable sales tax.

38. “Settlement” means a batch or accounting record that reflects captured Transactions and other activity affecting Merchant’s settlement balance during an accrual period.

39. “Settlement Payout” means a transfer of Net Sales Proceeds from an approved Settlement to Merchant’s Bank Account, remitted via Finix.

40. “Shift End” means the end of an Operating Shift at 6:59 a.m. local time.

41. “Tab” means a payment record opened by a Patron through the Beta Services for purchases from Merchant, including the related payment authorization and, when applicable, information such as the Sale Amount, tip, and Transaction status.

42. “Tip Window” means the fifteen-minute period after Merchant successfully initiates the payment for the Sale Amount, during which the Patron may revise the tip through the Beta Services.

43. “Transaction” means a payment authorization, adjustment, Capture, void, refund, retry, or other payment-related instruction submitted through the Beta Services for Merchant.

44. “Transaction Data” means data and records generated, received, or maintained in connection with Tabs, Transactions, Settlements, disputes, Chargebacks, and related payment activity processed via the Beta Services..

45. “Unresolved Tab” means a Tab that remains open, unpaid, or otherwise requires further action after the applicable Operating Shift or Pilot Deployment ends. This may include when a payment attempt has failed, or when Merchant Personnel has not closed the Tab before Shift End by attempting to charge the Sale Amount.

46. “Venue Profile” means a public-facing profile for an approved Merchant location made available through the ChecksOnMe Apps. Venue Profiles may display Merchant Content.

2. Scope and Order of Precedence

1. Agreement Documents.

This Agreement governs Merchant’s access to and use of the Beta Services and participation in ChecksOnMe’s Pilot Program. During the Pilot Program Term, the Parties may conduct one or more Pilot Deployments, including Pilot Events and Extended Pilot Periods, each under a Pilot Order Form signed by both Parties and incorporated into this Agreement. 

Each Pilot Order Form authorizes only the location, Pilot Deployment Window, features, and other use expressly identified in it; this Agreement alone does not authorize Merchant to open new Tabs or accept new Transactions. The expiration, cancellation, or termination of a Pilot Deployment does not, by itself, terminate this Agreement or prevent the Parties from entering into a later Pilot Order Form.

2. Separate Finix Relationship.

Finix and its applicable financial partners provide the underlying payment-processing services under the Finix Merchant Terms. ChecksOnMe provides access to payment-related functionality through the Beta Services but does not itself provide acquiring, banking, card-network, or settlement services. Nothing in this Agreement modifies, replaces, or excuses Merchant’s obligations under the Finix Merchant Terms.

3. Priority.

If there is a conflict: (a) the Finix Merchant Terms control solely with respect to Finix’s payment-processing services and Merchant’s direct obligations to Finix or its financial partners; (b) the applicable Pilot Order Form controls over this Agreement with respect to expressly stated Pilot Deployment-specific commercial or operational terms; and (c) this Agreement controls in all other respects. No Pilot Order Form will amend the Finix Merchant Terms.

3. Merchant Authorizations

1. Submitting Transactions on Merchant’s Behalf.

Merchant authorizes ChecksOnMe, through the ChecksOnMe-Finix integration, to submit Transactions, payment instructions, Merchant-Provided Data, notices, communications, and other activity to Finix on Merchant’s behalf in accordance with this Agreement, each applicable Pilot Order Form, Merchant instructions, Patron authorizations, and the Finix Merchant Terms.

Merchant also authorizes ChecksOnMe to establish and update Merchant’s Merchant Fee Profile solely as necessary to implement the Merchant Fees and settlement terms agreed to in this Agreement and the applicable Pilot Order Form, and to instruct Finix to assess and collect those Merchant Fees. ChecksOnMe may receive and communicate information from Finix concerning onboarding, Transactions, Merchant Fees, settlement, reserves, disputes, Chargebacks, downtime, security, and compliance.

2. Required Tax Reporting.

Merchant acknowledges that Finix, its applicable acquirer, or another authorized designee may report Merchant and Transaction information to federal, state, or local tax authorities as required by Applicable Law in connection with Transactions processed through the Beta Services. The applicable tax-reporting requirements and procedures are further addressed in the Finix Merchant Terms.

4. Term and Rights to Use the Beta Services

1. Pilot Program Term.

This Agreement begins on the Effective Date and continues until the earliest of: 

(a) termination in accordance with Section 6.3 (“Termination of Agreement”);
(b) the date ChecksOnMe gives Merchant notice that the Pilot Program has concluded; or
(c) the effective date of a superseding agreement between the Parties. 

The conclusion of an individual Pilot Deployment does not, by itself, terminate this Agreement.

2. Pilot Order Forms.

Each Pilot Order Form will identify, as applicable: (a) the type of Pilot Deployment; (b) Merchant’s legal name and approved location; (c) the Pilot Deployment Window; (d) setup and training arrangements; (e) supported payment methods; (f) Merchant and ChecksOnMe contacts; (g) the Platform Processing Fee and the applicable rate for each Additional Merchant Fee; (h) settlement configuration; (i) Transaction and aggregate-volume limits; (j) support arrangements; (k) reporting cadence; (l) loaned equipment and the required return date; and (m) additional limits or special terms.

3. Limited License.

Subject to this Agreement, the applicable Pilot Order Form, Finix approval, and Merchant’s continuing compliance, ChecksOnMe grants Merchant a limited, revocable, nonexclusive, nontransferable, and nonsublicensable right to access and use the Beta Services solely for Merchant’s own business at the approved location during an active Pilot Deployment and, solely for the limited servicing purposes described in Section 7, during an inactive or post-termination period.

4. No Minimum or Future Commitment.

Neither Party is obligated to enter into any Pilot Order Form, conduct any minimum number of Pilot Deployments, or process any minimum volume during the Pilot Program.

Any continued use of ChecksOnMe’s payment or software services after the Pilot Program has concluded will require a superseding agreement accepted by both Parties. Pricing under such an agreement may differ from Pilot Program pricing and may include different processing rates, additional transaction or service fees, and monthly or annual software fees. Neither Party is obligated to enter into a future commercial or production relationship.

5. Changes to Beta Services.

ChecksOnMe may add, modify, disable, replace, or discontinue features of the Beta Services as reasonably necessary for testing, product development, safety, security, legal compliance, or payment-partner requirements. ChecksOnMe will use reasonable efforts to notify Merchant of material operational changes affecting a scheduled or active Pilot Deployment.

6. Finix Onboarding and Merchant Approval.

Participation in the Pilot Program is conditioned on Merchant completing the merchant onboarding application form, accepting the Finix Merchant Terms, and obtaining and maintaining Finix approval. Merchant will provide complete, current, and accurate information and promptly cooperate with requests relating to onboarding, underwriting, beneficial ownership, transaction monitoring, PCI-DSS, disputes, reserves, or compliance. ChecksOnMe may facilitate links to the onboarding application form via the Merchant Admin Portal, but ChecksOnMe does not control Finix’s or its financial partners’ underwriting or approval decisions, and does not guarantee approval or continued eligibility.

5. Usage Restrictions and Limits

1. Restrictions.

Neither Merchant nor Merchant Personnel will, and Merchant will not permit any third party to: (a) copy, sell, rent, sublicense, distribute, or make the Beta Services available to another person or business; (b) reverse engineer, decompile, disassemble, or attempt to discover source code or nonpublic technical information, except to the limited extent a restriction is prohibited by law; (c) circumvent security or usage limits; (d) use the Beta Services for unlawful, fraudulent, deceptive, harmful, or unauthorized purposes; (e) interfere with or disrupt the Beta Services; or (f) conduct load testing, competitive benchmarking, or security testing without ChecksOnMe’s written approval.

2. Third Party Use Restrictions.

Merchant will use the Beta Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated third parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Beta Services to handle, process or transmit funds for any third party. Merchant is also prohibited from using the Beta Services to process cash advances or cash-back transactions.

3. Pilot Deployment Window.

Merchant may not open new tabs or initiate new sales through the Beta Services except during an active Pilot Deployment and within the Pilot Deployment Window stated in the applicable Pilot Order Form. Post-deployment servicing of Transactions, including capture, settlement, refunds, disputes, retries, reconciliation, and required record retention, may continue after the Pilot Deployment Window.

4. Transaction Limits.

Unless ChecksOnMe or Finix imposes a lower limit, no individual Transaction may exceed Ten Thousand Dollars ($10,000), including any tip. The aggregate Transaction-volume limit for each Pilot Deployment will be stated in the applicable Pilot Order Form. ChecksOnMe may pause or end a Pilot Deployment or decline additional tabs if an applicable limit is reached or actual activity materially exceeds the approved risk profile. Any applicable limit imposed by Finix, a bank, a payment network, or an issuer will control over this Section.

6. Termination; Suspension; Cancellation

1. Cancellation Before a Pilot Deployment.

Either Party may cancel a Pilot Deployment at any time before its Pilot Deployment Window begins, without advance notice, cancellation fees, or liability arising solely from the cancellation. A cancelled or postponed Pilot Deployment may be rescheduled through a revised or replacement Pilot Order Form.

2. Termination of an Active Pilot Deployment for Convenience.

Either Party may temporarily suspend or terminate: (a) an active Pilot Event at any time by notifying the other Party. Upon such notice, ChecksOnMe may immediately disable the opening of new tabs and the initiation of new Transactions; (b) an active Extended Pilot Period for convenience upon two (2) business days’ written notice, unless the applicable Pilot Order Form specifies a different notice period. Ending one Pilot Deployment does not, by itself, terminate this Agreement or any other Pilot Deployment.

3. Termination of Agreement.

Either Party may terminate this Agreement at any time by written notice to the other Party. If no Pilot Deployment is active, termination will be effective upon delivery of the notice or on the later date stated in the notice. If a Pilot Deployment is active, termination of this Agreement will also constitute notice to end that Pilot Deployment under Section 6.2 (“Termination of an Active Pilot Deployment for Convenience”), unless the Agreement or Pilot Deployment is suspended or terminated immediately under Section 6.4 (“Immediate Suspension or Termination for Risk or Cause”). No cancellation or termination fee will apply under this Agreement.

4. Immediate Suspension or Termination for Risk or Cause.

ChecksOnMe may immediately suspend or terminate all or part of a Pilot Deployment, disable the opening of new tabs, restrict access to the Beta Services, or suspend payment functionality if ChecksOnMe reasonably determines that such action is necessary or appropriate because of:

(a) suspected fraud, unauthorized activity, misuse, or a security incident;
(b) a violation of Applicable Law, the Finix Merchant Terms, payment-network rules, this Agreement, or a Pilot Order Form that creates material legal, compliance, financial, security, or operational risk;
(c) an instruction or requirement from Finix, a processor, sponsor bank, payment network, governmental authority, or other applicable third party;
(d) the suspension, expiration, or revocation of a required license or permit;
(e) excessive payment failures, disputes, Chargebacks, errors, or other financial risk;
(f) a threat to the safety of Patrons, Merchant Personnel, ChecksOnMe personnel, or others;
(g) a material technical or operational problem; or
(h) Merchant’s failure to maintain an appropriate fallback payment method.

Merchant may immediately stop using the Beta Services if Merchant reasonably determines that continued use presents a safety, legal, security, payment, or material operational concern. Merchant will promptly provide operational notice to ChecksOnMe in accordance with Section 18.2 (“Notices to ChecksOnMe”) so that the Parties can prevent new Tabs and address open or Unresolved Tabs.

5. Effect on Transactions.

Upon the cancellation, expiration, suspension, or termination of a Pilot Deployment:
(a) Merchant may not open new tabs or initiate new sales through the Beta Services;
(b) ChecksOnMe may disable new payment acceptance;
(c) the Parties will use reasonable efforts to appropriately finalize, void, transfer, or otherwise address open tabs;
(d) Transactions initiated before the effective time may continue to be authorized, captured, settled, adjusted, refunded, disputed, retried, reconciled, or otherwise serviced in accordance with this Agreement, the Finix Merchant Terms, and applicable procedures; and
(e) Merchant must continue to cooperate regarding refunds, disputes, Chargebacks, failed payments, record requests, and compliance matters.

6. Accrued and Trailing Amounts.

Cancellation, expiration, suspension, or termination does not relieve Merchant of responsibility for Merchant Fees, refunds, Chargebacks, disputes, fines, penalties, negative balances, unpaid Transactions, equipment loss or damage, or other amounts arising from activity occurring before or in connection with the applicable termination, even if the amount is assessed, deducted, invoiced, or otherwise becomes payable afterward.

7. Survival.

Provisions that by their nature should survive will survive termination, including provisions concerning accrued payment obligations, refunds, disputes, Chargebacks, failed-payment servicing, data retention, confidentiality, intellectual property, feedback, indemnification, limitations of liability, records, governing law, dispute resolution, and post-termination access.

8. Effect of Finix Processing Decisions.

Suspension or termination of payment-processing services by Finix or its financial partners may result in suspension or termination of an affected Pilot Deployment under Section 6.4 (“Immediate Suspension or Termination for Risk or Cause”), but does not, by itself, terminate this Agreement.

7. Post-Deployment and Post-Term Access

1. Inactive-Period and Post-Term Access.

After a Pilot Deployment ends, during any period when no Pilot Order Form is active, and after expiration or termination of this Agreement, ChecksOnMe may keep Merchant’s Beta Services account open with limited servicing access, which may include read-only access and designated transaction-servicing functions so Merchant can review historical reports and Transactions, cooperate with refunds, disputes, and chargebacks, and address unresolved tabs to the extent permitted. Merchant may not open new tabs or accept new Transactions unless payment acceptance is activated under an effective Pilot Order Form or a superseding commercial agreement accepted by ChecksOnMe and, where required, Finix.

2. Disabling Access.

ChecksOnMe may disable Merchant’s post-term account access after reasonable notice or when ChecksOnMe reasonably determines access is no longer necessary, subject to legal, Finix, network, dispute, and record-retention requirements.

3. Finix Merchant Profile.

The underlying Finix merchant profile may remain open after a Pilot Deployment even when payment acceptance through ChecksOnMe is disabled. Merchant may request closure through ChecksOnMe, and ChecksOnMe will reasonably facilitate the request, but Finix determines the timing, requirements, and effect of closure, including treatment of reserves, refunds, disputes, and trailing liabilities.

8. Merchant Responsibilities

1. Merchant as Seller.

Merchant remains the seller of record and is solely responsible for all goods and services sold, fulfillment, product quality, prices, taxes, itemized receipts, customer service, refund decisions, and disputes concerning the underlying purchase, regardless of ChecksOnMe’s submission of Transactions on Merchant’s behalf. ChecksOnMe does not sell or provide Merchant’s goods or services. 

Merchant will use the Beta Services only for bona fide sales of Merchant’s own goods or services at an approved location and will comply with Applicable Law, the Finix Merchant Terms, payment-network rules, and ChecksOnMe’s reasonable instructions.

2. Merchant Personnel Access, Training, and Supervision.

ChecksOnMe will make a product demonstration and staging environment available before the Pilot Deployment, and Merchant will make reasonable efforts to ensure that participating Merchant Personnel review the demonstration or otherwise understand the applicable workflow. Merchant is responsible for supervising Merchant Personnel and their use of the Beta Services, and for all activity conducted by Merchant Personnel through Merchant’s credentials, whether or not authorized. Merchant will limit access to Merchant Personnel who need it, use reasonable safeguards, and promptly notify ChecksOnMe of suspected unauthorized access.

3. Accurate Sale Amounts.

Merchant is responsible for ensuring that Merchant Personnel enter complete and accurate Sale Amounts when charging Patrons. ChecksOnMe does not receive item-level purchase details and will not verify the Sale Amount. Merchant will maintain its own itemized records and provide itemized receipts to Patrons upon request.

4. Merchant Equipment and Connectivity.

Merchant is responsible for providing and maintaining reliable Wi-Fi, networking equipment, electrical outlets, and any Merchant-owned devices used for the Pilot Deployment. Merchant is responsible for its own POS, cash register, terminals, networks, devices, and other systems.

5. Loaned Equipment.

ChecksOnMe may loan Merchant tablets, chargers, QR signage, or other equipment identified in a Pilot Order Form. Merchant will use loaned equipment only in connection with authorized Pilot Deployments, exercise reasonable care, prevent unauthorized use, and not transfer or materially alter it without ChecksOnMe’s written approval.

Merchant will return loaned equipment by the date stated in the applicable Pilot Order Form or, if no date is stated, within three (3) business days after ChecksOnMe requests its return following the end of a Pilot Deployment or the expiration, cancellation, suspension, or termination of this Agreement. 

Merchant is responsible for loss, theft, or damage while the equipment is in its custody, excluding ordinary wear, latent defects, and damage not caused by Merchant or Merchant Personnel. ChecksOnMe may charge Merchant the reasonable repair or replacement cost for Merchant-responsible loss or damage.

6. Incident and Fraud Notices.

Merchant will promptly notify ChecksOnMe of suspected fraud, unauthorized account use, duplicate or incorrect charges, unlawful activity, or other material operational issues involving the Beta Services. Security incidents are governed by Section 13.7 (“Security”).

7. Alcohol Sales and Patron Age Verification.

Merchant is solely responsible for checking Patron identification, verifying Patron age, monitoring Patron intoxication, refusing service to Patrons, preventing unlawful or unsafe sales, complying with hours-of-sale and other alcohol-service rules, and training and supervising Merchant Personnel. The Beta Services do not verify Patron age or decide whether a sale is lawful or appropriate.

8. Licenses and Authority.

Merchant represents and warrants throughout the Pilot Program Term that it holds and will maintain all active licenses, permits, registrations, and authorizations required to sell and serve alcohol and operate at the Pilot Deployment location. Merchant will promptly notify ChecksOnMe of any suspension, revocation, expiration, regulatory inquiry, or other material issue affecting that authority.

9. Tax and Employment Compliance.

Merchant is solely responsible for determining, collecting, reporting, and remitting taxes; distributing tips to eligible personnel; establishing tip allocation and processing-fee policies; and complying with wage, payroll, tip-credit, tip-pooling, gratuity, and employment requirements. 

The Beta Services do not include tools to calculate or remit taxes, nor tools to distribute tips or establish tip allocation among eligible personnel.

10. Insurance.

Merchant represents that it maintains commercially reasonable general liability and liquor liability insurance customary for its operations and sufficient to cover its activities and obligations under this Agreement.

11. PCI-DSS Cooperation.

Merchant will timely complete any PCI-DSS self-assessment questionnaire, attestation, remediation, or related requirement communicated by ChecksOnMe or Finix. Merchant is responsible for any Overdue PCI Compliance Form Fee stated in the applicable Pilot Order Form for each month in which the applicable PCI requirement remains overdue.

12. Fallback Payment Process.

During each Pilot Deployment, Merchant will maintain a functional alternative payment process and will not rely on the Beta Services as its sole or exclusive means of accepting payment.

9. Transactions

1. Patron Terms.

Before opening a tab, each Patron must accept ChecksOnMe’s then-current Patron Terms of Service and Privacy Policy and provide the payment authorizations presented through the Beta Services. ChecksOnMe is responsible for presenting those terms and disclosures. Merchant will not interfere with, bypass, or misrepresent them.

2. Operating Procedures.

Merchant authorizes and agrees to the Beta Services transaction, tip, retry, Capture, void, refund, and receipt procedures described in Schedule 1. Merchant will ensure that Merchant Personnel follow those procedures and will promptly correct or report errors. ChecksOnMe’s support, notifications, and automated features do not relieve Merchant of responsibility for following those procedures, closing Tabs, collecting payment, or servicing the underlying sale.

3. Default Tip.

Merchant acknowledges and authorizes the Beta Services to apply the default-tip rule described in Schedule 1. The default tip is a ChecksOnMe product rule, not a Merchant-selected venue rule. Merchant Personnel cannot select or change a Patron’s tip through the Beta Services.

4. Refunds.

Merchant is solely responsible for decisions regarding refunds of a Patron’s Transaction and for customer service concerning the underlying sale. Merchant is financially responsible for the refunded amount and any applicable fees. Refunds through the Beta Services are subject to the procedures in Schedule 1, the Finix Merchant Terms, technical availability, and Section 10.6 (“Fee Assessment and Refundability”).

5. Disputes and Chargebacks.

ChecksOnMe will notify Merchant of disputes and Chargebacks received through Finix and, when applicable, provide Merchant an opportunity to submit evidence. Merchant will provide complete evidence (e.g. itemized receipts, detailed explanations) within two (2) business days after ChecksOnMe’s request, or sooner if ChecksOnMe communicates a shorter Finix, bank, or network deadline.

Merchant decides whether to challenge the underlying Patron card dispute, subject to Finix procedures. Merchant is financially responsible for the disputed or charged-back Transaction amount and the applicable Merchant Fees described in Section 10.3 and the Pilot Order Form.

Finix, the applicable bank, issuer, or payment network makes the final payment-dispute determination.

10. Merchant Fees

1. Merchant Fee Disclosure.

The Merchant Fees applicable to each Pilot Deployment will be stated in the applicable Pilot Order Form, including the Platform Processing Fee and the applicable rate for each Additional Merchant Fee. ChecksOnMe will not establish or charge an Additional Merchant Fee unless the fee category is described in this Agreement and the applicable rate is stated in the applicable Pilot Order Form.

2. Platform Processing Fee.

Merchant will pay the Platform Processing Fee specified in the applicable Pilot Order Form. The Platform Processing Fee is a blended card-processing rate consisting of a percentage of the processed amount plus a fixed per-transaction amount. The Platform Processing Fee applies to the final Captured transaction amount, including the Sale Amount and tip. 

Merchant will not be separately charged for interchange, card-network dues and assessments, card-brand-specific surcharges, or cross-border surcharges, as these costs are accounted for within the Platform Processing Fee.

3. Additional Merchant Fees.

Subject to the applicable Pilot Order Form, ChecksOnMe may instruct Finix to assess and collect, in accordance with Section 11.1, the following Additional Merchant Fees:

• Overdue PCI Compliance Form Fee: applicable for each month in which Merchant fails to timely complete an applicable PCI-compliance form or related requirement;

• Standard Next-Day ACH Payout Fee: applicable to each Settlement Payout delivered using Standard Next-Day ACH;

• Same-Day ACH Payout Fee: applicable to each Settlement Payout delivered using Same-Day ACH, when approved and available;

• Chargeback Notification Fee: applicable to each Chargeback Notification; and

• Chargeback Inquiry Fee: applicable to each Chargeback Inquiry.

The applicable rate for each Additional Merchant Fee will be stated in the applicable Pilot Order Form. A fee stated as “Not Applicable” or at a rate of $0.00 will not be charged. Each Additional Merchant Fee is assessed separately upon the occurrence of its applicable triggering event.

A Chargeback Inquiry Fee and Chargeback Notification Fee are separate fee events and may both apply to the same underlying Transaction if both events occur. Only the payout fee corresponding to Merchant’s payout speed applies, specified in the applicable Pilot Order Form. Payout fees apply per Settlement Payout, not per underlying Transaction.

4. Merchant Fee Profile.

ChecksOnMe may update Merchant’s Merchant Fee Profile without a separate amendment only to: (a) implement a signed Pilot Order Form; (b) correct a configuration or billing error; or (c) implement a change otherwise agreed to in writing by the Parties.

No Merchant Fee increase will apply to new Transactions during an active Pilot Deployment unless stated in an amendment or replacement Pilot Order Form signed by both Parties.

If the Merchant Fee Profile is inconsistent with the signed Pilot Order Form, the signed Pilot Order Form will control as between ChecksOnMe and Merchant, subject to Finix’s independent rights under the Finix Merchant Terms.

5. Other Merchant-Paid Amounts.

In addition to Merchant Fees, Merchant remains financially responsible for amounts and liabilities allocated to Merchant under this Agreement or the Finix Merchant Terms, including refunded, disputed, or charged-back Transaction amounts; fraudulent or unauthorized Transactions; unpaid Transactions; negative balances; reserves; taxes; fines; penalties; assessments; and other liabilities arising from Merchant’s conduct, business, risk profile, or noncompliance.

6. Fee Assessment and Refundability.

Finix’s applicable processing configuration determines when Merchant Fees are assessed, deducted, reversed, or reported. Merchant Fees and other amounts relating to prior Transactions or activity may be assessed after a Pilot Deployment ends or after expiration or termination of this Agreement. The Platform Processing Fee associated with a captured Transaction remains payable and nonrefundable if the Transaction is later refunded, disputed, or charged back.

7. Software Fees.

No monthly, annual, or otherwise recurring subscription, software, SaaS, or platform-access fee will be charged to Merchant under this Agreement during the Pilot Program Term.

11. Settlement and Payouts

1. Net Settlement; Fee Deductions and Debits.

Subject to the Finix Merchant Terms, Finix will remit any Net Sales Proceeds to Merchant using net settlement. Under net settlement, Finix may collect Merchant Fees and other authorized amounts by deducting or withholding them from settlement funds, setting them off against amounts otherwise payable to Merchant, applying applicable reserves, debiting Merchant’s Bank Account, or using another collection method permitted under the Finix Merchant Terms. ChecksOnMe does not receive, hold, or maintain custody over Merchant’s settlement funds.

2. Settlement Accrual and Schedule.

Captured Transactions and other activity affecting Merchant’s settlement balance that is recorded during an accrual period will be reflected in a Settlement in accordance with Merchant’s settlement schedule and accrual period settings maintained through Finix. Such activity may include refunds, Chargebacks, Merchant Fees, reserves, and adjustments relating to Transactions included in prior Settlements. Unless the applicable Pilot Order Form states otherwise, Merchant will be configured for a daily settlement schedule.

A daily settlement schedule governs how frequently Settlement batches are configured to close and does not guarantee a Settlement Payout every calendar day or after every Operating Shift. Transactions captured after an applicable cutoff or on a day that is not a Business Day may be included in a later Settlement. Settlement closure, approval, and timing remain subject to refunds, Chargebacks, adjustments, holds, reserves, risk review, and other requirements under the Finix Merchant Terms.

 3. Settlement Payouts; Payout Frequency and Delivery Speed.

Subject to applicable holds, reserves, risk review, and other requirements under the Finix Merchant Terms, positive Net Sales Proceeds from an approved Settlement will be scheduled for transfer to Merchant’s Bank Account as a Settlement Payout. Settlement Payouts will be processed in accordance with the payout speed stated in the applicable Pilot Order Form.

Standard Next-Day ACH and Same-Day ACH describe the anticipated delivery speed after an approved Settlement is submitted for payout and are not measured from the time of the underlying Transaction. Delivery timing remains subject to Business Days, applicable cutoff times, Finix approval and eligibility, banking operations, payout limits, recipient-bank procedures, and other applicable requirements. Same-Day ACH is provided on an “as is” basis, and neither ChecksOnMe nor Finix guarantees accelerated settlement or arrival of funds on any particular date.

4. Owed Amounts, Invoicing, and Fee Disputes.

If a Merchant Fee or other amount owed under this Agreement cannot be collected through Finix from settlement funds, a reserve, amounts otherwise payable to Merchant, or Merchant’s Bank Account, ChecksOnMe may invoice Merchant for the unpaid amount.

Merchant will notify ChecksOnMe in writing of any good-faith dispute concerning a Merchant Fee or ChecksOnMe invoice within ten (10) Business Days after the applicable fee appears on a report, statement, or invoice made available to Merchant. The notice must identify the disputed amount and the basis for the dispute. Merchant will pay all undisputed invoiced amounts within ten (10) days after receipt of the applicable invoice.

12. Support and Reporting

1. Support During Pilot Deployments.

ChecksOnMe will provide the support described in the applicable Pilot Order Form. Support for a Pilot Event may include onsite support from setup through live operation and initial tab finalization. Support for an Extended Pilot Period may be provided remotely through email, telephone, messaging, or other designated channels, with onsite support provided only when stated in the Pilot Order Form or otherwise agreed by the Parties. ChecksOnMe is Merchant’s first-line support contact for the Beta Services.

2. Pilot Deployment Reports.

ChecksOnMe will provide Merchant with the reports and reporting cadence stated in the applicable Pilot Order Form. Reports may include aggregate Transaction activity, Sale Amounts, tips, payment statuses, refunds, Merchant Fees, settlement deductions, and Net Sales Proceeds reasonably available through Finix, but will not include Patron-level information unless expressly agreed and permitted by Applicable Law. 

Merchant will report suspected errors within ten (10) business days after receipt. Report acceptance does not waive obligations relating to later refunds, Chargebacks, disputes, or Finix adjustments.

13. Data, Privacy, and Intellectual Property Rights

1. ChecksOnMe Intellectual Property Rights.

ChecksOnMe (and/or its licensors) retains all rights, title and interest (including all worldwide intellectual property rights) in and to the Beta Services, including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features and functionality thereto.

Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and transfers to ChecksOnMe all right, title and interest (including all worldwide intellectual property rights) in and to the Feedback and acknowledges that ChecksOnMe is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Merchant Personnel relating to the Beta Services, in ChecksOnMe’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by ChecksOnMe.

2. Merchant-Provided Data.

As between the Parties, and subject to the rights of applicable individuals and third parties, Merchant retains all right, title, and interest it may have in Merchant-Provided Data. 

Merchant grants ChecksOnMe and its affiliates, contractors, and service providers a nonexclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to host, copy, transmit, process, format, adapt, and otherwise use Merchant-Provided Data for the purposes described in Section 13.6 (“ChecksOnMe Use and Disclosure of Data”) and to exercise ChecksOnMe’s rights and perform its obligations under this Agreement. This license continues after expiration or termination only for so long as ChecksOnMe is permitted to retain and use the applicable data under Section 13.8 (“Data Retention”).

Merchant is responsible for the accuracy, legality, and quality of Merchant-Provided Data and for obtaining all rights, authorizations, notices, and consents necessary to provide it and permit its use under this Agreement. ChecksOnMe’s rights to Merchant Content and Merchant Marks are governed exclusively by Section 13.3 (“Merchant Content and Marks”).

3. Merchant Content and Marks.

As between the Parties, Merchant retains all right, title, and interest in and to Merchant Content and Merchant Marks, subject to any third-party rights. Merchant grants ChecksOnMe and its service providers a nonexclusive, worldwide, royalty-free, fully paid-up, and sublicensable license during the Pilot Program Term to use, reproduce, display, publish, distribute, and technically adapt Merchant Content and Merchant Marks to:

(a) create and publicly display Merchant’s Venue Profile;
(b) provide, demonstrate, and promote the Beta Services and Pilot Program;
(c) publicly identify Merchant and its approved locations as Pilot Program participants; and
(d) include Merchant Content and Merchant Marks in ChecksOnMe’s websites, applications, marketing, publicity, case studies, presentations, and investor or fundraising materials.

ChecksOnMe may resize, crop, or reformat Merchant Marks as reasonably necessary, but will not materially alter them. All goodwill arising from ChecksOnMe’s authorized use of Merchant Marks will inure solely to Merchant’s benefit. Merchant represents that it has all rights and authority necessary to grant the permissions in this Section.

4. Publicity and Pilot Results.

Merchant authorizes ChecksOnMe to photograph or record Merchant’s approved locations, signage, products, and Pilot Deployment activities and to use the resulting photographs, video, recordings, and screenshots for the purposes described in Section 13.3 (“Merchant Content and Marks”). ChecksOnMe may also use: (a) testimonials, quotations, statements, and Feedback supplied or approved by Merchant or its authorized representatives; and (b) identified or aggregate Pilot Deployment results and summary performance metrics, including transaction volume, transaction counts, Sale Amounts, tips, average check amounts, usage, and payment-status information.

ChecksOnMe may make these uses without further approval from or payment to Merchant, but will not publicly disclose Patron Data or Personal Information except with any consent required by Applicable Law. After expiration or termination of this Agreement, ChecksOnMe may retain and continue using materials and references created or published during the Pilot Program Term and will not be required to recall, withdraw, or destroy materials previously produced or distributed.

5. Patron Data.

ChecksOnMe’s collection and use of Patron Data is governed by the Patron Terms of Service and Privacy Policy presented to Patrons. Merchant does not acquire ownership rights in Patron Data by accessing or using it through the Beta Services. Merchant may access and use Patron Data made available by ChecksOnMe solely to: (a) complete and service the underlying sale; (b) manage or lawfully collect an Unresolved Tab; (c) provide customer service, receipts, voids, or refunds; (d) respond to disputes and Chargebacks; (e) prevent fraud or address security incidents; and (f) comply with Applicable Law.

Except as expressly permitted through the Beta Services or in writing by ChecksOnMe, Merchant will not export or retain Patron Data outside the Beta Services; sell or disclose it; use it for marketing, promotions, or customer profiling; combine it with other data for those purposes; or contact a Patron directly. ChecksOnMe may relay communications between Merchant and a Patron without disclosing the Patron’s contact information.

If an Unresolved Tab remains unpaid, ChecksOnMe may, in its discretion and subject to Applicable Law, provide Merchant with limited Patron contact information reasonably necessary to pursue lawful collection. Merchant may use that information solely for that purpose and must protect it in accordance with Section 13.7 (“Security”).

6. ChecksOnMe Use and Disclosure of Data.

In addition to the rights granted elsewhere in this Agreement, ChecksOnMe may process Merchant-Provided Data, Transaction Data, ChecksOnMe Data, and Patron Data to provide, secure, support, administer, test, analyze, troubleshoot, maintain, improve, and develop the Beta Services and other ChecksOnMe products and services; process and service Transactions; prevent fraud; comply with Applicable Law and payment-partner requirements; communicate with Merchant and Patrons; and exercise its rights or perform its obligations under this Agreement. ChecksOnMe may share such data with Finix, financial partners, service providers, professional advisers, regulators, governmental authorities, and other parties as reasonably necessary for those purposes. ChecksOnMe’s use of Patron Data remains subject to the Patron Terms of Service, Privacy Policy, this Agreement, and Applicable Law. Public or promotional use of Merchant Content, Merchant Marks, or identified Pilot Deployment results is governed exclusively by Sections 13.3 (“Merchant Content and Marks”) and 13.4 (“Publicity and Pilot Deployment Results”).

ChecksOnMe may create aggregated or de-identified data from Merchant-Provided Data, Transaction Data, ChecksOnMe Data, Patron Data, and Personal Information, provided that the resulting data does not reasonably identify Merchant, a Patron, Merchant Personnel, or another individual. ChecksOnMe owns all right, title, and interest in such aggregated or de-identified data and may use, disclose, publish, distribute, license, and otherwise exploit it for any lawful purpose without obligation to Merchant.

7. Security.

Each Party will maintain reasonable administrative, technical, and physical safeguards appropriate to the information it controls. Merchant will secure its credentials, devices, network, and access by Merchant Personnel. Each Party will notify the other without unreasonable delay after confirming a security incident materially affecting data or systems relevant to this Agreement and, where reasonably practicable and legally appropriate, within seventy-two (72) hours after confirmation. The Parties will reasonably cooperate in investigation, mitigation, required notices, and remediation.

8. Data Retention.

ChecksOnMe may retain Merchant-Provided Data, Transaction Data, ChecksOnMe Data, and Patron Data for as long as reasonably necessary to provide and improve the Beta Services; service Transactions, refunds, retries, disputes, and chargebacks; prevent fraud; maintain records; comply with Finix, network, tax, legal, and regulatory requirements; and establish, exercise, or defend legal rights.

14. Representations; Disclaimer of Warranties

1. Mutual Authority.

Each Party represents that it has the authority to enter into this Agreement and that the individual signing it is authorized to bind that Party.

2. Merchant Representations.

Merchant represents and warrants that: (a) information it provides is accurate and complete; (b) it has all rights, licenses, consents, and authority needed for its operations, Merchant-Provided Data, Merchant Content, and Merchant Marks; (c) it will comply with Applicable Law and the Finix Merchant Terms; and (d) its use of the Beta Services and sale of goods and services will not infringe or violate third-party rights.

3. ChecksOnMe Disclaimer.

EXCEPT FOR EXPRESS WARRANTIES IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BETA SERVICES, SUPPORT, REPORTS, AND LOANED EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CHECKSONME DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE. 

CHECKSONME DOES NOT WARRANT THAT THE BETA SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR AVAILABLE AT ANY PARTICULAR TIME, OR THAT ANY TRANSACTION WILL BE AUTHORIZED, CAPTURED, OR SETTLED. CHECKSONME DOES NOT GUARANTEE PATRON ADOPTION, REVENUE, TIP LEVELS, PAYMENT RECOVERY, OR ANY PARTICULAR BUSINESS RESULT.

4. Third-Party Services.

ChecksOnMe is not responsible for outages, errors, delays, declines, holds, reserves, settlement issues, or other acts or omissions of Finix, financial institutions, card networks, issuers, wallet providers, telecommunications providers, Merchant systems, or other third parties, except to the extent directly caused by: (a) ChecksOnMe’s breach of this Agreement; or (b) the suspension or termination of Finix services resulting from ChecksOnMe’s material breach of its applicable agreement with Finix. Nothing in this Section grants Merchant any rights under ChecksOnMe’s applicable agreement with Finix or makes Merchant a third-party beneficiary of that agreement.

15. Indemnification

1. Merchant Indemnification.

Merchant will defend, indemnify, and hold harmless ChecksOnMe and its affiliates, officers, directors, employees, founders, agents, and contractors from and against third-party claims, investigations, damages, judgments, settlements, penalties, fines, costs, and reasonable attorneys’ fees arising out of or relating to:

(a) Merchant’s goods, services, alcohol sales or service, premises, personnel, or operations, including personal injury, death, intoxication, overservice, age-verification failures, or licensing violations; (b) Merchant’s prices, taxes, Sale Amounts, itemized records, tips, wage or payroll practices, refund decisions, customer service, or underlying customer disputes; (c) Merchant’s breach of this Agreement, the Finix Merchant Terms, or Applicable Law; (d) Merchant-Provided Data, Merchant Content, and Merchant Marks, or Merchant’s violation of privacy, data-security, intellectual-property, or consumer rights; (e) fraud, unlawful activity, or misuse by Merchant or Merchant Personnel; or (f) Merchant’s failure to promptly mark an unpaid tab resolved after receiving payment outside ChecksOnMe, resulting in an attempted or completed duplicate collection.

2. ChecksOnMe Indemnification.

ChecksOnMe will defend Merchant against a third-party claim that Merchant’s authorized use of the unmodified Beta Services infringes a United States patent, copyright, or trademark, and will pay damages finally awarded or settlement amounts approved by ChecksOnMe. ChecksOnMe has no obligation for claims arising from Merchant materials, unauthorized use, modifications not made by ChecksOnMe, combination with items not supplied or approved by ChecksOnMe, continued use after notice, or compliance with Merchant instructions. ChecksOnMe may obtain the right to continue use, modify or replace the affected feature, or terminate the affected Beta Services. This Section states Merchant’s exclusive remedy for such an infringement claim.

3. Procedure.

The indemnified Party will provide prompt written notice of a claim, reasonable cooperation at the indemnifying Party’s expense, and control of the defense and settlement to the indemnifying Party. A delay in notice relieves the indemnifying Party only to the extent materially prejudiced. The indemnifying Party may not settle a claim in a manner that admits wrongdoing by, imposes nonmonetary obligations on, or fails to release the indemnified Party without that Party’s written consent, not to be unreasonably withheld.

16. Confidentiality

1. Confidential Information.

Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business under this Agreement. For the avoidance of doubt, ChecksOnMe’s Confidential Information includes but is not limited to product plans, beta functionality, security information, technical documentation, business plans, pricing, designs, specifications, data, financial information, nonpublic Pilot Deployment results, and other materials relating to the Beta Services.

The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; (b) not to use such Confidential Information except to exercise its rights or perform its obligations under this Agreement; and (c) not to disclose to any third person any such Confidential Information other than as expressly permitted in this Agreement. 

The foregoing obligations do not apply to any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (ii) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to Receiving Party by a third party not bound by a confidentiality obligation; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records. 

2. Permitted Disclosures.

The Receiving Party may disclose Confidential Information: (a) to its employees, affiliates, contractors, and professional advisers who need to know the information and are subject to confidentiality obligations; and (b) as required by Applicable Law or valid legal process, provided that, where legally permitted, the Receiving Party gives the Disclosing Party prompt notice, reasonably cooperates with efforts to seek protective treatment, and discloses only the portion legally required. The Receiving Party remains responsible for its representatives’ compliance with this Section.

Disclosures expressly authorized by Section 13 (“Data, Privacy, and Intellectual Property Rights”) or another provision of this Agreement will not constitute a breach of this Section 16.

17. Limitation of Liability

1. Excluded Damages.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE UNDER OR RELATING TO THIS AGREEMENT FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS, LOSS OF GOODWILL, REPUTATIONAL HARM, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY.

2. Liability Cap.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED TEN THOUSAND DOLLARS ($10,000).

3. Exceptions.

Sections 17.1 (“Excluded Damages”) and 17.2 (“Liability Cap”) do not limit: (a) Merchant’s obligation to pay fees, refunds, chargebacks, negative balances, reserves, or other payment amounts; (b) a Party’s fraud, gross negligence, or willful misconduct; (c) Merchant’s misuse or infringement of ChecksOnMe intellectual property; (d) a Party’s breach of Section 16 (“Confidentiality”); (e) Merchant’s indemnification obligations relating to alcohol service, bodily injury, death, unlawful activity, or failure to maintain required licenses; or (f) liability that cannot lawfully be limited. The Parties acknowledge that the limitations are a material basis of the bargain, including in light of the beta status and limited fees.

4. Transaction and Collection Risk.

Without limiting the preceding provisions, ChecksOnMe is not liable for Merchant-entered errors, declined or failed payments, expired authorizations, uncollectible tabs, chargebacks, fraud allocated to Merchant, a Patron’s failure to pay, Merchant’s failure to close a tab, Merchant’s failure to mark an outside payment as resolved, or Finix or network limits, except to the extent directly caused by ChecksOnMe’s breach of this Agreement or by the circumstances described in Section 14.4(b). Where technically available, ChecksOnMe will use reasonable efforts to correct a transaction error directly caused by the Beta Services through a void, adjustment, or refund.

18. Notices

1. Notices from ChecksOnMe to Merchant.

Operational notices concerning a scheduled or active Pilot Deployment may be provided through the contact methods stated in the applicable Pilot Order Form, and will be effective when received. Formal notices concerning termination of this Agreement, indemnification claims or other legal matters must be sent by email to Merchant’s designated email address and by certified mail or nationally recognized overnight delivery service to Merchant’s address stated above or most recently provided in a notice.

It is Merchant’s responsibility to maintain the accuracy of Merchant’s contact information, and Merchant must notify ChecksOnMe immediately of any change. Any notice ChecksOnMe sends to the contact information ChecksOnMe has on file for Merchant before Merchant notifies ChecksOnMe of any change, shall be considered received by Merchant.

2. Notices from Merchant to ChecksOnMe.

Operational notices concerning a scheduled or active Pilot Deployment, including cancellation, suspension, security, fraud, technical issues, or Unresolved Tabs, may be provided through the contact methods identified in the applicable Pilot Order Form, including email, telephone, text message, in-app communication, or onsite notice, and will be effective when received.

Formal notices concerning termination of this Agreement, indemnification claims, or other legal matters must be sent by email to info@checkson.me and by certified mail, return receipt requested, or nationally recognized overnight delivery service to: ChecksOnMe, Inc., 447 Broadway, 2nd Floor #1102, New York, NY 10013.

Notices of dispute under Section 19.8 (“Pre-Arbitration Dispute Resolution”) must be delivered as provided in that Section.

19. General

1. Independent Contractors.

The Parties are independent contractors. Except for the limited authorization expressly granted to ChecksOnMe under this Agreement, neither Party is an agent or representative of the other or has authority to enter into any agreement, incur any obligation, make any representation, or otherwise bind the other Party. Nothing in this Agreement creates a partnership, joint venture, employment, franchise, or fiduciary relationship between the Parties.

2. Subcontractors and Service Providers.

ChecksOnMe may use affiliates, contractors, hosting providers, payment providers, and other service providers to perform the Beta Services, provided ChecksOnMe remains responsible for its obligations under this Agreement, subject to its disclaimers and limitations.

3. Assignment.

Merchant may not assign this Agreement without ChecksOnMe’s prior written consent. ChecksOnMe may assign this Agreement to an affiliate or in connection with a merger, financing, reorganization, sale of substantially all assets, or change of control. Any prohibited assignment is void. This Agreement binds and benefits permitted successors and assigns.

4. Force Majeure.

Neither Party is liable for delay or failure caused by events beyond its reasonable control, including internet or telecommunications failures, payment-network or bank outages, government action, labor disputes, fire, flood, severe weather, epidemic, civil disturbance, or utility failure. This Section does not excuse payment obligations for Transactions already processed.

5. Governing Law and Jurisdiction.

This Agreement and any dispute arising out of or relating to it are governed by the laws of the State of New York, without regard to its conflict-of-laws principles. Subject to Section 19.6 (“Dispute Resolution”), the Parties submit to the exclusive jurisdiction of the state and federal courts located in New York County, New York, for any court proceeding permitted under this Agreement, including proceedings to compel arbitration, obtain permitted provisional relief, or confirm, enforce, modify, or vacate an arbitration award. 

6. Dispute Resolution.

Any dispute, claim, or controversy arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, or in connection with Merchant’s use of the Beta Services, shall be determined through confidential binding arbitration in New York County, New York, before one arbitrator. The confidential binding arbitration shall be administered by AAA pursuant to its Commercial Arbitration Rules, and the Parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing. The state and federal courts located in New York County, New York, have exclusive jurisdiction over proceedings to compel arbitration, obtain permitted provisional relief, or modify or vacate an award. Judgment on an arbitration award may be entered and enforced in any court having jurisdiction over the applicable Party or its assets. In any event, any action or proceeding by Merchant against ChecksOnMe relating to any dispute must commence within one year after the cause of action accrues.

7. Prohibition of Class and Representative Actions and Non-Individualized Relief.

Except where prohibited by Applicable Law and rules, Merchant and ChecksOnMe agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and ChecksOnMe agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

8. Pre-Arbitration Dispute Resolution.

ChecksOnMe prefers to resolve disputes amicably and efficiently, and most concerns can be resolved by contacting ChecksOnMe’s team at info@checkson.me. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute. A notice of dispute to ChecksOnMe should be sent to 447 Broadway, 2nd Floor #1102, New York, NY 10013. 

The notice of dispute must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If ChecksOnMe and Merchant do not resolve the claim or dispute, despite good faith attempts, within sixty (60) calendar days after the notice of dispute is received, Merchant or ChecksOnMe may commence an arbitration proceeding.

9. Equitable Relief.

A breach or threatened breach involving intellectual property, confidentiality, security, or unauthorized use may cause irreparable harm. A Party may seek temporary or provisional injunctive relief in accordance with Sections 19.5 and 19.6 without waiving arbitration or any other remedy available in arbitration.

10. Entire Agreement; Amendment.

This Agreement, all signed Pilot Order Forms, and documents expressly incorporated by reference constitute the entire agreement between the Parties concerning the Beta Services and supersede prior or contemporaneous proposals, discussions, and communications on that subject. An amendment must be in a writing signed by authorized representatives of both Parties, except that ChecksOnMe may update operational documentation or Patron-facing terms as permitted by this Agreement.

11. Waiver; Severability.

A waiver must be in writing and applies only to the specific instance. Failure or delay in exercising a right is not a waiver. If a provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will continue in effect.

12. No Third-Party Beneficiaries.

Except for the indemnified persons expressly identified in Section 15 (“Indemnification”), this Agreement does not create rights in any third party. Finix and its financial partners have the rights provided to them under their separate agreements and Applicable Law, not under this Agreement.

13. Interpretation.

Headings are for convenience only. “Including” means “including without limitation.” The singular includes the plural and vice versa. References to “days” mean calendar days unless “business days” is stated. The Parties agree that ambiguities will not be construed against a Party solely because it drafted the language.

14. Electronic Signatures.

This Agreement and any Pilot Order Form may be executed in counterparts and by electronic signature. Electronic signatures, via a service such as DocuSign or a process that otherwise requires typing your name and acknowledging it as an electronic signature, and electronically transmitted copies will have the same effect and shall bind the Parties to the same extent as a live signature on paper, and all counterparts together constitute one instrument.

Contact Information

For questions regarding these Merchant Terms of Service, please contact us at:

info@checkson.me