Shopify Application Terms of Service

TryNow, Inc. (“Company”) offers a Shopify application (the “Application”). The Application can integrate with Merchant’s (as defined below) Shopify store (the “Store”) to enable Merchant to make available Company’s “try now, buy later” program, (the “Program”) pursuant to which consumers are able to place an order for and receive goods or services sold on the Store (the “Products”), and only pay for those Products that accepted by the consumer as further described herein. This Terms of Service (this “Agreement”) governs Merchant’s use of the Application, the Program, the web based platform for managing Merchant’s making available of the Program (the “Dashboard”), and any related services provided or made available to Merchant by Company in connection with Merchant’s use of the Application or Dashboard or the making available of the Program to consumers with respect to Products (collectively, the “Services”). By downloading, accessing or using the Application or clicking on the “I accept” button, or completing the registration process on the Services, the individual entering into this Agreement and the entity on whose behalf such individual enters into this Agreement (the “Merchant”) represent that such individual (on behalf of Merchant) and Merchant have the right, authority, and capacity to enter into this Agreement. For purposes of this Agreement, Merchant and Company are referred to collectively as the “Parties” and individually, a “Party”.

PLEASE BE AWARE THAT SECTION 22 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN MERCHANT AND COMPANY. AMONG OTHER THINGS, SECTION 22 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN MERCHANT AND COMPANY SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 22 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 22 CAREFULLY.

1. Company Services

1.1 Access and Use of the Services. During the Term, and subject to Merchant’s compliance with the terms of this Agreement, Company grants Merchant a non-exclusive, revocable, terminable, non-sub-licensable: (i) license to download and install the Application and use any documentation related to the function of the Services made available by Company (“Documentation”) to integrate the Application with the Store and use the Services and; (ii) right to access and use the Services solely for its own business purposes via the Application and the Store in connection with making the Program available to consumers.

1.2 Program. Merchant may designate certain Products for which consumers may utilize the Program. Upon such designation, for any Product that a consumer purchases utilizing the Program (each a “Purchased Item” and any such purchase a “Transaction”), Merchant authorizes Company to instruct the payment processor utilized by Merchant to process payments on the Store (“Payment Processor”) to place holds and charge consumers’ payment methods for amounts payable by the consumer in connection with the Transaction, including, without limitation, the price of the Products, any shipping or service fees, and any taxes or duties (the “Payment Amount”) in accordance with this Agreement. Merchant acknowledges and agrees that: (i) Company is solely Merchant’s agent for directing consumer payment methods to place a hold on and charge a consumer’s payment method for amounts payable in connection with Purchased Items; (ii) Merchant will be the seller of record for all Purchased Items; (iii) Merchant is responsible for all warranties related to Purchased Items; (iv) Company makes no guarantees about a consumer’s ability to pay any Payment Amounts; and (v) Company will have no responsibility or liability for any failure or inability of a consumer to pay any Payment Amounts. The Program will be accessed by consumers through the Store as integrated with the Services.

1.3 Consumer Notice. Prior to each Transaction, Merchant will provide notice of the following to the consumer electing to utilize the Program for the Transaction, in accordance with any materials provided by Company: (i) the Program is provided by Company; (ii) the duration of the Trial Period and Return Processing Period (as defined below); (iii) when consumer makes a purchase using the Program, Company will, at Merchant’s request, direct Payment Processor to place ahold such consumer’s payment method for the total amount owed for the Transaction; (iv) Company will direct Payment Processor to charge consumer’s payment method for such amounts at the end of the Trial Period for each Purchased Item has not been returned in accordance with Merchant’s return policy or if consumer earlier indicates its acceptance of the Purchased Items; and (v) if the consumer returns the Purchased Items in accordance with Merchant’s return policy prior to the end of the Trial Period, Payment Processor will be instructed to release the hold on consumer’s payment method after the Return Processing Period, provided that the funds may not be readily available until the consumer’s payment method provider releases such hold.

1.4 Merchant Obligations. Merchant is responsible for obtaining and maintaining all third party software and technology necessary in order to receive the Services as identified by Company.

1.5 Restrictions. Merchant will not: (i) damage the Company Technology (as defined below); (ii) directly or indirectly reverse engineer, reverse assemble, decompile or disassemble all or any portion of the Company Technology; (iii) modify, alter in any fashion, translate or create derivative works or additional products or services based on the Company Technology; (iv) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Company Technology; (v) attempt to discover any source code of the Services; (vi) sell, assign, sublicense, or otherwise transfer any right in the Company Technology; (vii) permit the Company Technology to be accessed or used by any persons other than Merchant’s personnel and consumers accessing or using the accessing the Services through the Store; (viii) circumvent or otherwise interfere with any authentication or security measures of the Company Technology; or (ix) otherwise use the Company Technology other than as expressly permitted hereunder. Merchant agrees to utilize the Services only in a manner consistent with the terms of this Agreement and to refrain from loading any other software, program or other data onto the Services.

2. Billing and Payments

2.1 Pricing Structure. Merchant shall pay Company at the rates set forth in the Dashboard for each Purchased Item (the “Fees”) through Payment Processor in accordance with Payment Processor’s payment reconciliation schedule; provided that Merchant shall remain liable for all payment of fees regardless of any failure on the part of Payment Processor. Merchant represents and warrants that it is and will remain, at all times during the Term, registered for Payment Processor. Merchant hereby authorizes Company to direct Payment Processor to direct payment of the Fees to Company.

2.2 Late Charges. Late payments are subject to interest charges of 1% per month, or, if lower, the maximum amount allowed by law.

2.3 Taxes. Merchant is solely responsible for payment of any taxes resulting from the use of the Services. If any such taxes are required to be withheld, Merchant shall pay an amount to Company such that the net amount payable to Company after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.

3. Marketing.

Merchant further agrees that Company may, without notice or consent, reference the name and logo of Merchant in lists of merchants or vendors and that Company may further issue promotional materials, blog posts or other posts through Company’s social media channels, including related paid promotions and other advertising materials that reference Merchant by name. Merchant further agrees to participate in case studies from time to time at Company’s request.

4. Training & Operational Materials.

Company may provide to Merchant with guidelines, procedures, directions and instructions relating to the Program, the Services and the Access Credentials from time to time (the “Training and Operational Materials”). If such Training and Operational Materials are provided, Merchant agrees to comply, and to cause its employees and agents to comply, with the Training and Operational Materials, and Merchant agrees to ensure that all employees and agents of Merchant involved in any manner with the Program are properly advised and trained on all applicable requirements set forth in the Training and Operational Materials.

5. Access Credentials.

Merchant will ensure that all usernames and passwords used by Merchant and/or Merchant’s employees’ to access the Services (“Access Credentials”) will: (i) be unique to each employee; (ii) only be used by the employee that registered the relevant Access Credential; and (iii) not otherwise be shared in any manner. In the event Merchant becomes aware that Access Credentials have been shared, misused or otherwise compromised, Merchant agrees to immediately notify Company. Merchant further agrees to deactivate, or arrange for the deactivation, of any Access Credential issued to any individual whose employment with Merchant has been terminated for any reason.

6. Payment for Purchased Items.

Upon a consumer placing an order for a Product using the Program the Application will instruct Payment Processor to place a hold on the consumer’s payment method for the Payment Amount and to authorize a charge on such payment method for the Payment Amount upon the consumer’s Acceptance of the Purchased Items. Payment for a Transaction is collected by Payment Processor, not Company, and will be delivered to Merchant via the Payment Processor. Company will have no responsibility or liability for any errors in collecting or making any payment on the part of Payment Processor. For purposes of this Agreement, “Acceptance” means the earlier of: (i) the trial period offered by Merchant for the applicable Products as selected by Merchant on the Application (the “Trial Period”) and the estimated return processing period as selected by Merchant on the Application (the “Return Processing Period”) has expired without the consumer returning the Purchased Item; and (ii) the consumer’s indication that it accepts the Purchased Items. During the Trial Period, Merchant will permit the consumer to return the Purchased Item to Merchant. Merchant is solely responsible for and will file, on a timely basis, all tax returns and payments required to be filed with or made to any federal, state or local tax authority, including any applicable sales and use taxes, on behalf of Merchant with respect to Merchant’s sale or performance of Products under this Agreement.

7. Representations and Warranties.

Merchant hereby represents and warrants that:

7.1 Merchant will not make any representation or warranty that is or purports to be binding on Company;

7.2 Merchant, the Store, and Merchant’s return policy are in compliance with any terms or agreement between Merchant and Shopify, Inc. or its affiliates or successors and Merchant is, and will be, in good standing with Shopify, Inc. or its affiliates or successors;

7.3 Merchant will not: (i) delay in delivering or providing the Purchased Items or cause the Purchased Items to be delivered or provided to consumers beyond the time that Merchant would have delivered or provided the Purchased Item to the consumer had the Purchased Item been purchased in a cash transaction or (ii) otherwise unreasonably delay in delivering or providing the Purchased Items to consumers;

7.4 Merchant has obtained all consents required from consumers to enable Company to provide the Services and to use information related to consumers as contemplated by this Agreement;

7.5 no Transaction will be generated other than through the Store by the consumer wishing to receive the benefit of the Program;

7.6 Merchant will not take any action with the purpose or intention of circumventing any Fees being owed or payments being paid to Company in accordance with this Agreement from any amounts received by Merchant in connection with a Purchased Item;

7.7 each Transaction is voluntarily entered into by the consumer, no consumer that executes the Terms will be a minor or not have capacity to enter into the Terms, and Merchant, Merchant’s employees, or Merchant’s agents will not enter information into or electronically sign any applications, any onscreen forms or terms intended for the consumer’s signature, or agree to the Terms in lieu or on behalf of the consumer;

7.8 Merchant will not discriminate against consumers with respect to the Program in any unlawful or impermissible way, or on any “prohibited basis” described by the federal Equal Credit Opportunity Act or Regulation B thereunder, discourage consumer from using the Program for aTransaction or not equally offer or promote the Program option on any such prohibited basis, or fail to offer participation in the Program to any consumer on any prohibited basis;

7.9 Merchant has and will inspect any Products made available under the Program before offering such Products for sale to ensure that they are in full working order, and are as advertised and/or represented to consumer;

7.10 the Products sold to consumers under the Program are merchantable and fit for their intended purpose, will be timely delivered to the consumer and Merchant will perform all of its other obligations to the consumer in connection with the Transaction;

7.11 Merchant will honor its standard return policy and/or any service satisfaction policy for any Purchased Item and to accept returns of any Purchased Item related to the Transaction under the Program; and

7.12 Merchant and the Store, including Merchant’s warranties and return policies, and the method by which Merchant notifies consumers thereof, comply and will at all times comply with all applicable laws.

8. No Exclusivity.

Merchant shall not represent that it is the exclusive provider of the Program nor shall Merchant have an exclusive relationship with Company. Merchant agrees that Company may enter into agreements with other sellers or merchants.

9 Right to Set-Off.

Notwithstanding any other provision of this Agreement to the contrary, Merchant agrees that Company may, in its sole discretion, set-off any amounts owed to Merchant by Company against any amounts Merchant owes or will owe to Company.

10 Term and Termination.

10.1 Term. This Agreement shall commence on the date Merchant accepts this Agreement and shall remain in effect for one year (the “Initial Term”) and thereafter will automatically renew for successive one-year periods (each a “Renewal Term” and all Renewal Terms together with the Initial Term, the “Term”) unless notice of non-renewal is given by either Party at least 45 days prior to the end of the then-current Initial Term or Renewal Term.

10.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement immediately if the other Party has; (i) materially breached this Agreement and fails to cure such breach within 30 days after receiving notice of such breach; or (ii) becomes insolvent, has filed for bankruptcy protection, (iii) if the Program or the other Party’s actions with respect to the this Agreement are deemed not to be in compliance with applicable law, a federal or state regulatory agency commences an action against or investigates the making available of the Program or other Party’s with respect to the this Agreement; or (iv) it is determined that the other Party has engaged in fraudulent conduct in relation to this Agreement.

10.3 Effect of Termination. Each Party shall remain liable for any amounts due or accrued (in addition to any damages that result from the breach of the Agreement) as of the termination or expiration of the Agreement. The termination or expiration of this Agreement shall not affect or impair any obligations or liabilities of either Party and that provisions of this Agreement shall survive with respect to any purchases of using the Program or Transactions accepted or processed prior to the effective date of the termination. Notwithstanding any termination or expiration of this Agreement, in the event of any termination or expiration of this Agreement, Sections 2, 7, 10.3, and 11 through 29 shall survive.

11. Confidential Information.

Merchant agrees to keep all information provided by each consumer or obtained in connection with a Transaction strictly private and confidential, and agrees not to release such information to, or allow such information to be accessed by, any third party for any purpose whatsoever, except in strict compliance with this Agreement and in connection with the arrangement of a Transaction. Merchant will keep confidential and not disclose to any person or entity (except to employees, consultants, officers or directors of Merchant who are engaged in the implementation and execution of the Program and who have a need to know) all information, including but not limited to product information, compliance standards, processes and procedures, training materials, terms ofthis Agreement, software, systems and data that such Merchant receives from Company, each consumer, or from any other source relating to the Program or this Agreement, including, but not limited to, consumer names, addresses, consumer reports, information derived from consumer reports, credit applications and information contained therein, Transaction information (including the terms thereof) and other nonpublic financial information (“Confidential Information”). Merchant shall use, or cause to be used, such Confidential Information solely for the purposes of the performance of such Merchant’s obligations under the terms of this Agreement. Neither Merchant, nor its employees, consultants, officers, or directors, shall make any use of Confidential Information other than to carry out the purposes of this Agreement. In the event any Confidential Information is disclosed in a manner inconsistent with this Agreement, which may include a data breach, Merchant agrees to immediately notify Company of such disclosure. Merchant acknowledges and agrees that Company may contact or send emails and SMS messages pertaining to the Program as well as marketing emails to consumers that make Transactions. Company will treat all personally identifiable information that it receives under this Agreement in accordance with its Privacy Policy located at https://www.trynow.io/privacy. Company will not disclose to any third party any information related to Merchant’s sales or returns in a manner that would reasonably permit a person to identify Merchant as the source of such information.

12. Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to Services, including the Application, the Program, the Dashboard, Documentation, Training and Operational Materials, and other documents, work product and other materials that are delivered to Merchant for its use under this Agreement (“Company Technology”) are and shall continue to be owned by Company. Except as expressly set forth herein, no licenses or other rights in or to the Company Technology are granted to Merchant. Merchant agrees that Company may freely use and exploit, without limitation, all suggestions, requests and feedback provided by or on behalf of Merchant regarding the Company, the Program, the Company Technology, or Company’s business, products, or services.

13. Data Ownership.

Any consumer information, including information obtained through a consumer report, shall be owned exclusively by Company. Merchant shall have no right to such information.

14. DISCLAIMER.

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” , AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. COMPANY DOES NOT WARRANT THAT (i) MERCHANT WILL RECEIVE ANY MINIMUM AMOUNT OF REVENUES AS A RESULT OF THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT; (ii) THAT THE PROGRAM OR ANY OTHER PORTION OF THE SERVICES WILL BE CONTINUOUSLY AVAILABLE OR ERROR-FREE; OR (iii) THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE; OR (iv) THAT ANY DATA PROVIDED BY OR THROUGH THE SERVICES WILL BE ACCURATE OR COMPLETE. MERCHANT ACKNOWLEDGES AND AGREES THAT: (a) COMPANY AND THE SERVICES ONLY PROVIDES INSTRUCTIONS TO PAYMENT PROVIDERS; (b) COMPANY DOES NOT MAKE ANY GUARANTEE THAT ANY CONSUMER WILL BE ABLE TO PAY ANY AMOUNTS PAYABLE IN CONNECTION WITH A PURCHASE OF A PURCHASED ITEM; AND (c) MERCHANT BEARS ALL RESPONSIBILITY, AND COMPANY WILL HAVE NO LIABILITY FOR ANY FAILURE OR INABILITY OF A CONSUMER TO PAY ANY AMOUNTS PAYABLE IN CONNECTION WITH THE PURCHASED ITEMS.

15. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING LOST PROFITS), HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDINGNEGLIGENCE), OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY MERCHANT HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FOREGOING DOES NOT IN ANY WAY EXCLUDE OR LIMIT LIABILITY FOR: (i) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (ii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

16. Agency; Taxes.

Neither execution nor performance of this Agreement shall be construed or deemed to have established any joint venture or partnership or have created the relationship of principal and agent between the Parties, and neither Party has any authority to act on behalf of the other Party.

17. Compliance with Laws; Notification of Investigations; and Licensing Requirements.

The Parties shall comply with all federal, state, and local laws, regulation, ordinances, and governmental agency guidance relating to all aspects of the Program, including, without limitation, those relating to disclosure, anti-money laundering, privacy and fair lending. Without limiting the foregoing, In the event a federal or state regulatory agency commences an action against or investigates Merchant, Merchant agrees to notify Company of such action or investigation within (3) business days of the commencement of such action or investigation.

Merchant shall ensure that it, and all of its salespersons, partners, vendors, and employees, are properly licensed and/or registered to perform their roles in connection with the Program and to sell and/or service the Products, as applicable. If requested by Company, Merchant agrees to provide copies of all such information, documentation, licenses, or registrations made by it, or obtained by it, as may be required to carry on Merchant’s business. Merchant agrees to cooperate with Company in the event Company is examined by a regulatory agency, is otherwise investigated, or is a party to any litigation or prosecution.

18. Indemnification.

Merchant hereby agrees to indemnify, hold harmless and defend Company and its officers, directors, employees and affiliates from and against any and all losses, claims, damages, demands, actions, judgments, settlements, costs (including reasonable attorneys’ fees) and expenses incurred by such person and arising out of or in connection with (i) a breach by Merchant of the terms of this Agreement, (ii) Merchant’s engagement in any activity that would constitute a breach of Section 7, (iii) any failure of Merchant to adhere to federal, local, or state laws and regulations, (iv) any third party claim that any Product infringes any third party Intellectual Property Right; (v) any claim or allegation related to a Product, including any defective Products; or (vi) any consumer dispute pertaining to any Transaction unless such dispute is related to an error caused by the Services.

Company hereby agrees to indemnify, hold harmless and defend Merchant and its officers, directors, employees and affiliates from and against any and all losses, claims, damages, demands, actions, judgments, settlements, costs (including reasonable attorneys’ fees) and expenses incurred by such person and arising out of or in connection with any third party claim that the permitted use of the Company Technology infringes or misappropriates the Intellectual Property Rights of any third Party.

19. Assignment; Successors; No Third Party Rights; Changes in Business

19.1 Assignment. Merchant may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Company may assign any of its rights under this Agreement without the prior consent of Merchant.

19.2 Successors. This Agreement is binding in all respects upon and inures to the benefit of the Parties and their successors and permitted assigns.

19.3 No Third Party Rights. Nothing expressed or referred to in this Agreement shall be construed to give any person other than the Parties to this Agreement any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement, except such rights as shall inure to a successor or permitted assignee.

‍19.4 Changes in Business. Merchant agrees to immediately advise Company of any change in the nature of its business or any intention to discontinue carrying on business.

20. Right to Examine and Audit.

Upon reasonable request by Company, Merchant will answer such questions provided by Company and make such certifications reasonably requested by Company as necessary to verify Merchant’s adherence to Section 2.1 and Section 7 of this Agreement.

21. Controlling Law; Dispute Resolution.

This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in San Francisco, California, and each Party irrevocably consents and submits to the jurisdiction and venue of such courts for any litigation permitted under this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

22. ARBITRATION AGREEMENT.

Please read this section (the “Arbitration Agreement”) carefully. It is part of Merchant’s contract with Company and affects Merchant’s rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

22.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, Merchant and Company agree that any dispute, claim, disagreements arising out of or relating in any way to Merchant’s access to or use of the Service, any communications Merchant receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between Merchant and Company before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) Merchant and Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) Merchant or Company may seek equitable relief in court for infringement or other misuse of Intellectual Property Rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

22.2 Informal Dispute Resolution. There might be instances when a Dispute arises between Merchant and Company. If that occurs, Company is committed to working with Merchant to reach a reasonable resolution. Merchant and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). Merchant and Company therefore agree that before either Party commences arbitration against the other (or initiates an action in small claims court if a Party so elects), Company will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If Merchant is represented by counsel, Merchant’s counsel may participate in the conference, but Merchant will also participate in the conference.

The Party initiating a Dispute must give notice to the other Party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other Party receives such Notice, unless an extension is mutually agreed upon by the Parties. Notice to Company that Merchant intends to initiate an Informal Dispute Resolution Conference should be sent by email to notices@trynow.io or regular mail to Company’s mailing address located at 1321 Upland Drive, PMB 11734, Houston, TX 77043. The Notice must include: (i) Merchant’s name, telephone number, mailing address, e‐mail address associated with Merchant on the Services; (ii) the name, telephone number, mailing address and e‐mail address of Merchant’s counsel, if any; and (iii) a description of Merchant’s Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either Party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all Parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all Parties agree. In the time between a Party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the Parties from engaging in informal communications to resolve the initiating Party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the Informal Dispute Resolution Conference process required by this section.

22.3 Waiver of Jury Trial. MERCHANT AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Merchant and Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 22.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

22.4 Waiver of Class and Other Non-Individualized Relief. MERCHANT AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 22.9 (BATCH ARBITRATION), EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by the Party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 22.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), Merchant and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent Merchant or Company from participating in a class-wide settlement of claims.

22.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Merchant’s Notice, Merchant and Company agree that either Party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A Party who wishes to initiate arbitration must provide the other Party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, e‐mail address of the Party seeking arbitration; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting Party has paid any necessary filing fees in connection with such arbitration.

If the Party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless Merchant and Company otherwise agree, or the Batch Arbitration process discussed in Section 22.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where Merchant resides. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the Parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the Parties will select an alternative arbitral forum. Merchant’s responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

Merchant and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the Parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

22.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the Parties from the AAA’s roster of consumer dispute arbitrators. If the Parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 22.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

22.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to Section 22.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 22.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 22.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in Section 22.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either Party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 22.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon Merchant and Company. Judgment on the arbitration award may be entered in any court having jurisdiction.

22.8 Attorneys’ Fees and Costs. The Parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by thestandards set forth in Federal Rule of Civil Procedure 11(b)). If Merchant or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the Party that obtains an order compelling arbitration in such action shall have the right to collect from the other Party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing Party in any court action relating to whether either Party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

22.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, Merchant and Company agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All Parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the Parties disagree on the application of the Batch Arbitration process, the disagreeing Party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the Parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.

Merchant and Company agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

22.10 30-Day Right to Opt Out. Merchant has the right to opt out of the provisions of this Arbitration Agreement by sending written notice of Merchant’s decision to opt out to: TryNow Inc. ATTN: Merchant Opt Out, 1321 Upland Dr. PMB 11734, Houston, Texas 77043, within thirty (30) days after first becoming subject to this Arbitration Agreement. Merchant’s notice must include Merchant’s name and address, the email address associated with Merchant on the Services, and an unequivocal statement that Merchant wants to opt out of this Arbitration Agreement. If Merchant opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to Merchant. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that Merchant may currently have, or may enter in the future, with Company.

22.11 Invalidity, Expiration. Except as provided in the section entitled “Waiver of Class or Other Non-Individualized Relief” , if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. Merchant further agrees that any Dispute that Merchant has with Company as detailedin this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, Merchant agrees that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

22.12 Modification. Notwithstanding any provision in this Agreement to the contrary, Company agrees that if Company makes any future material change to this Arbitration Agreement, Company will notify Merchant. Unless Merchant rejects the change within thirty (30) days of such change become effective by writing to Company at TryNow Inc. ATTN: Merchant Modification, 1321 Upland Dr. PMB 11734, Houston, Texas 77043, Merchant’s continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes Merchant’s acceptance of any such changes. Changes to this Arbitration Agreement do not provide with a new opportunity to opt out of the Arbitration Agreement if Merchant has previously agreed to a version of this Agreement and did not validly opt out of arbitration. If Merchant rejects any change or update to this Arbitration Agreement, and Merchant was bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to Merchant’s access to or use of the Service, any communications Merchant receives, the Program, the Service or this Agreement, the provisions of this Arbitration Agreement as of the date Merchant first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Company will continue to honor any valid opt outs of the Arbitration Agreement that Merchant made to a prior version of this Agreement.

23. Force Majeure.

Company will not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act, failure of any payment provider or third party technology, network, or systems, or a failure or degradation of the Internet.

24. Failure or Indulgence not Waiver; Remedies Cumulative.

No failure or delay on the part of any Party in the exercise of any right under this Agreement shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, or agreement herein. No waiver that may be given by a Party shall be applicable except in the specific instance for which it is given. All rights and remedies existing under this Agreement are cumulative to, and not alternative to, any rights or remedies otherwise available.

25. Section Headings.

The section headings contained in this Agreement are for convenience only, and shall not in any way affect the meaning or interpretation of this Agreement.

‍26. No Interpretation against Drafter.

The Parties agree that any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived.

27. Updates to this Agreement.

This Agreement is subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of this terms of service available on the Service. Company will also update the “last updated” date at the top of this Agreement. If Company makes any material changes, Company will also send an e-mail to Merchant at the last e-mail address merchant provided to Company pursuant to this Agreement. Unless otherwise stated in such update, any changes to this Agreement will be effective upon the earlier of 30 days after notice of such changes were posted on the Service or thirty 30 days after dispatch of an e-mail notice of such changes to Merchant. Company may require Merchant to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. If Merchant does not agree to any changes after receiving a notice of such changes, Merchant shall stop using the service. Otherwise, Merchant’s continued use of the Service constitutes Merchant’s acceptance of such changes.

28. Notices.

All notices, consents, claims, demands and other communications between the Parties shall be made in writing and shall be deemed to have been given if personally delivered; mailed by certifiedmail, postage pre-paid, return receipt requested; or delivered by a nationally recognized courier that provides proof of delivery to, in the case of Merchant, the address provided in connection with registering for the Services, and, in the case of Company, TryNow Inc. ATTN: Notices, 1321 Upland Dr. PMB 11734, Houston, Texas 77043. Email notices are acceptable provided they are sent to, in the case of Merchant, the email address provided in connection with registering for the Services, and, in the case of Company, notices@trynow.io.

29. Entire Agreement; Amendments; Severability; Counterparts.

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties, whether written or oral. This Agreement may not be modified except by a written instrument signed by authorized representatives of both Parties. The Parties hereby agree if any provision, or any portion of a provision, of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A signature of a Party transmitted by facsimile or electronically shall constitute an original for all purpose.