The Truss Terms of Service (the “Terms of Service”, together with any attachments, exhibits, and/or addendums hereto, the “Agreement”) form an agreement between the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Truss Services (as defined below) (such customer, the “Customer” or “you”) and Truss Payments Inc. (“Truss” or “we”), the supplier of the Truss Services, and is entered into on the earlier of the date Customer first uses any part of the Truss Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Truss and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

This Agreement sets forth the terms and conditions that govern the provision and use of the business banking and payment services provided with or through Truss’s bank partner and other financial service providers, including business deposit accounts, commercial charge and debit cards, ACH origination, bill pay, merchant acquiring and settlement services (collectively, the “Financial Services”) and any additional services made available by Truss in respect of the foregoing, (together the “Truss Services”). Certain Financial Services are further governed by additional terms (the “Additional Terms”) and/or one or more agreements between Customer and Truss’s bank partner and/or financial service providers (the “Partner Agreements”), each of which is incorporated herein by reference and will control in the event of conflict with this Agreement.

BY USING THE TRUSS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(13). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE TRUSS SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO TRUSS THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT, AND THAT CUSTOMER IS A BUSINESS ENTITY USING THE SERVICES SOLELY FOR COMMERCIAL PURPOSES. IF CUSTOMER IS USING THE TRUSS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO TRUSS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

THE TRUSS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

TRUSS’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE TRUSS SERVICES, EXCEPT WITH TRUSS’S PRIOR WRITTEN CONSENT.

(1) Provisioning of the Truss Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Truss will make the Truss Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.

(2) Restrictions on Use. Customer will not itself, and will not permit others to:

• Sub-license, sell, rent, lend, lease or distribute the Truss Services or any Intellectual Property Rights therein, or otherwise make the Truss Services available to others other than Permitted Users;
• Use the Truss Services to permit timesharing, service bureau use or commercially exploit the Truss Services;
• Use or access the Truss Services:
  • in violation of any applicable law;
  • in a manner that threatens the security or functionality of the Truss Services; or
  • for any purpose or in any manner not expressly permitted in this Agreement;
• Use the Services to create, collect, transmit, store, use or process any Customer Data:
  • that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
  • that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
  • that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
• Modify the Truss Services;
• Reverse engineer, decompile or disassemble the Truss Services;
• Remove or obscure any proprietary notices or labels on the Truss Services, including brand, copyright, trademark and patent or patent pending notices;
• Access or use the Truss Services for the purpose of building a similar or competitive product or service; or
• Perform any vulnerability, penetration or similar testing of the Truss Services.

(3) Rules Compliance. Customer shall comply with all applicable Card Network rules, the NACHA Rules, and any bank‑partner, sponsor bank, financial services provider, processor, network, or payment‑system rules provided or made available by Truss, each as updated from time to time. Upon reasonable notice, Customer will cooperate with and provide information requested in connection with any audit or inquiry by a card network, NACHA, a bank partner, financial service provider, or a governmental authority.

(4) Permitted Purpose. Customer may access and use the Truss Services solely for Customer’s internal business purposes.

(5) Customer’s Responsibility for Permitted Users. Customer is responsible for: (i) identifying and authenticating all Permitted Users; (ii) ensuring that all appropriate "Know Your Client" documentation and processes are completed; (iii) for ensuring only Permitted Users access and use the Truss Services, and (iv) for Permitted Users’ compliance with this Agreement.

(6) Suspension of Access; Scheduled Downtime; Modifications. Truss may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:

• Suspend Customer’s access to or use of the Truss Services or any component thereof:
  • for scheduled maintenance;
  • due to a Force Majeure;
  • if Truss believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;
  • to address any emergency security concerns;
  • for non-payment of invoices and Fees for the Services;
  • if required to do so by a regulatory body or as a result of a change in applicable law;
  • to comply with Card Network Rules, NACHA Rules, bank‑partner or financial service provider direction, or processor/network/regulatory mandates;
  • if Customer exceeds applicable chargeback or ACH return thresholds, fails to maintain PCI DSS compliance, triggers sanctions screening alerts, or otherwise presents unacceptable risk; or
  • for any other reason as provided in this Agreement.
• Make any Modifications to the Services.
• Impose, adjust, or remove transaction, velocity, and volume limits at any time based on risk or bank‑partner/network direction.

(7) ACH Entries. For ACH entries originated or received via the Services, to the extent applicable, UCC Article 4A and the NACHA Rules govern. Customer represents and warrants that it has obtained and will maintain valid, auditable authorization for each debit/credit entry in accordance with the NACHA Rules and will retain evidence of such authorization for at least two years (or longer if required by applicable rules or law). Customer is responsible for returns, reversals, and compliance with NACHA requirements.

(8) Subcontracting. Truss may engage third parties to assist it in providing the Services or any part thereof.

(9) Third-Party Products. The Truss Services may permit access to products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Truss Services (“Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Truss Services by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products.

(10) Pay by Card Service. Truss makes available a bill-payment feature (the “Pay by Card Service”) that enables Customer to pay vendors through the Truss platform using Customer’s own external credit or debit card. The Pay by Card Service operates as follows: (i) Customer submits a bill for payment through the Truss platform; (ii) Customer enters its credit or debit card details on the Truss platform; (iii) Truss’s designated third-party payment processor (currently Stripe) charges Customer’s card for the bill amount plus the applicable Processing Fee; and (iv) Customer selects a disbursement method for payment to the vendor, which may include ACH transfer, mailed check, push to card, or book payment (if the vendor is also a Truss user). Customer acknowledges and agrees that: (a) the card charge and the vendor disbursement are separate transactions; (b) Truss acts as an intermediary facilitating the payment and does not guarantee acceptance of payment by the vendor or the timing of vendor receipt; (c) the Pay by Card Service is processed by Stripe or such other third-party payment processor as Truss may designate from time to time (each, a “Third-Party Payment Processor”), and Customer’s use of the Pay by Card Service is subject to the terms, conditions, and privacy policy of the applicable Third-Party Payment Processor; and (d) Truss shall have no liability for any acts, omissions, errors, outages, or failures of the Third-Party Payment Processor, including without limitation any failure to process a card charge, any delay in disbursement, or any unauthorized transaction attributable to the Third-Party Payment Processor’s systems.

(1) In order to send and receive payments through the Truss Services, Customer must create an account (the “Customer User Account”). Customer may only create one Customer User Account and it is non-transferable. Customer agrees to provide accurate, current and complete information when creating a Customer User Account and to update such information as necessary to ensure it remains accurate.

(2) Before a Customer User Account is opened, Truss will disclose to Customer a minimum funding amount that is required to be deposited into the Customer User Account within ninety (90) days of Account opening (the “Minimum Initial Funding Requirement”). Any Customer User Accounts that have not been funded with the Minimum Initial Funding Requirement within the required time period will be closed. Once the Minimum Initial Funding Requirement has been met, no minimum balance is required to be kept in the Customer User Account on an ongoing basis.

(3) Customer will ensure that Permitted Users only use the Truss Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Truss of any actual or suspected unauthorized use of the Truss Services. Truss reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the Truss Services, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Truss’s rights than those set forth in this Agreement.

(4) In order for Truss to issue and maintain Customer User Accounts and to provide the Financial Services, Truss and its bank partners and financial service providers may perform initial and ongoing business and beneficial‑owner due diligence, including KYC/KYB, sanctions screening, adverse media checks, and creditworthiness assessments of Customer and, where applicable, its principals. By completing the account sign‑up process, Customer consents to such diligence, screenings, monitoring, information sharing with bank partners, financial service providers, and processors, and ongoing periodic reviews, and will promptly provide information and certifications reasonably requested. Customer shall notify Truss within 10 days of any change in ownership or control of Customer.

(5) Customer shall comply with U.S. sanctions and anti‑money‑laundering laws and shall not use the Services for transactions involving prohibited countries, persons, or activities. Truss may screen and block transactions and may suspend or terminate the Services where required by law or bank‑partner mandate.

(6) Customer hereby consents to Truss conducting credit investigations from time to time at Truss’s discretion, including such requests for and exchange of information to and from consumer reporting agencies or credit grantors as it may require in relation to the Truss Services.

(1) Customer may link external accounts at third-party financial institutions (each a “Linked Account”) to enable Customer to make and receive payments through the Truss Services.

(2) Customer may link a Linked Account with a Customer User Account by logging into Customer’s financial institution through the Services. Truss may also verify Customer’s control of the Linked Account by requiring Customer to submit proof of ownership of the Linked Account. Customer consents to micro‑deposits and/or credentialed access to verify ownership and control of Linked Accounts.

(3) All Linked Accounts must be with financial institutions in the United States. Truss may decline the use of any Linked Account that Truss believes may present a risk to Customer and/or Truss.

(4) By linking Customer’s Linked Account to a Customer User Account, and by subsequently logging into Customer’s Linked Account through the Services, Customer authorizes Truss and our third-party service providers to view Customer’s account history and profile, including, but not limited to, Customer’s account and routing details, authentication details, balance, transaction history, contact information, and other related information made available by such external financial institution; and Customer understands this information may be used to transact on Customer’s behalf and perform other services subject to Truss’s Privacy Policy.

(5) When adding a Linked Account, Customer represents and warrants that the Linked Account is not a joint account, and that Customer is the sole owner of and has the right to access, use and authorize Truss and its financial service providers to use the Linked Account for information and funds transfer purposes.

(6) If Customer closes the Linked Account, Customer is responsible for removing it as an account eligible for the linking service to avoid any transaction failure and possible charges related to a failed transaction.

(7) Truss is not responsible for any acts or omissions by the external financial institution or other provider of any Linked Account, including, without limitation, any modification, interruption, or discontinuance of any Linked Account by such financial institution.

(8) CUSTOMER ACKNOWLEDGES AND AGREES THAT WHEN TRUSS AND OUR FINANCIAL SERVICE PROVIDERS ARE EFFECTING A TRANSFER FROM OR TO CUSTOMER’S LINKED ACCOUNT, TRUSS AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS CUSTOMER’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY.

(9) CUSTOMER AGREES THAT TRUSS SHALL NOT BE LIABLE FOR ANY COSTS, FEES, LOSSES OR DAMAGES OF ANY KIND INCURRED AS A RESULT OF (1) TRUSS’S AND OUR THIRD-PARTY SERVICE PROVIDERS’ ACCESS TO THE LINKED ACCOUNT; (2) TRUSS’S THIRD-PARTY SERVICE PROVIDERS’ DEBIT AND/OR CREDIT OR INABILITY TO DEBIT AND/OR CREDIT THE LINKED ACCOUNT IN ACCORDANCE WITH CUSTOMER INSTRUCTIONS; (3) ANY INACCURACY, INCOMPLETENESS OR MISINFORMATION CONTAINED IN THE INFORMATION RETRIEVED FROM THE LINKED ACCOUNT; (4) ANY CHARGES IMPOSED BY THE FINANCIAL INSTITUTION OR ANY OTHER PROVIDER OF THE LINKED ACCOUNT AND (5) ANY FUNDS TRANSFER LIMITATIONS SET BY THE FINANCIAL INSTITUTION OR OTHER PROVIDER OF THE LINKED ACCOUNT.

(1) As between Truss and Customer, Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Truss a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Customer Data to:

1. provide the Services;
2. improve and enhance the Services and its other offerings;
3. produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (the “Aggregated Data”).

Truss may use, process, store, disclose and transmit Customer Data and transaction information with bank partners, sponsor banks, processors, card networks, NACHA, financial service providers, and governmental authorities as necessary to provide the Services and Financial Services, manage risk, comply with rules and law, and perform onboarding and ongoing monitoring. Truss may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Truss and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Truss.

(2) Truss or its licensors retain all ownership and Intellectual Property Rights in and to:

1. the Services;
2. anything developed or delivered by or on behalf of Truss under this Agreement;
3. all other Truss’s Confidential Information, including but not limited to, any reports generated from the Truss Services or any Aggregated Data;
4. any Modifications to the foregoing (collectively “Truss Property”).

(3) Customer grants to Truss and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Truss Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Truss’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation and without any obligation. Truss is not obligated to use any Feedback. All rights not expressly granted by Truss to Customer under this Agreement are reserved.

Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Truss’s privacy policy located at https://trusspayments.com/legal/privacy-policy. To the extent applicable, Truss will handle nonpublic personal information in alignment with applicable U.S. financial privacy laws and bank‑partner requirements. If there is a conflict, the Partner Agreements and privacy terms therein will control with respect to the Financial Services. Truss will notify Customer without undue delay following confirmation of a security incident affecting Customer Data in Truss’s possession, subject to applicable law. Customer will promptly notify Truss of any security incident in Customer’s environment that impacts the Services or Customer Data.

(1) Fees. Unless otherwise agreed to in writing between the parties, all fees (“Fees”) identified in this Agreement, the Business Deposit Agreement and any other agreements between the Parties are in United States dollars. Fees include the Processing Fee described in Section 7(3). The Platform Fee described in Section 7(2) is payable by payors and not by Customer. If Customer’s use of the Truss Services requires the payment of additional Fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional Fees in accordance with this Agreement. Customer is responsible for card‑network assessments, NACHA fines, bank‑partner and processor pass‑through fees and costs associated with Customer’s processing activity.

(2) Platform Fees. Truss charges a fee (the “Platform Fee”) on each payment made to a Customer through the Truss Services, regardless of the payment method selected by the payor. The Platform Fee represents compensation for Truss’s payment facilitation and disbursement services and is set at Truss’s sole discretion. The Platform Fee forms part of the standard total amount payable for such a payment (the “Standard Payment Amount”). The Standard Payment Amount will be disclosed to the payor before the payor selects a payment method and in advance of the payment being authorized. The Platform Fee is a fee for Truss’s services. It is not imposed on, or by reason of, the payor’s use of any credit card, debit card, prepaid card, or other payment card. The amount of the Platform Fee does not vary by card type, card issuer, or card network. This Section 7(2) does not apply to the Pay by Card Service, which is subject to Section 7(3). Customer will not (i) describe or present the Platform Fee to any payor as a fee for, or a surcharge on, the use of a payment card, or (ii) present to any payor, as the amount due for a payment to be made through the Truss Services, any amount other than the Standard Payment Amount.

Truss offers payors a discount off the Standard Payment Amount, in an amount equal to the Platform Fee (the “ACH Discount”), where the payor elects to fund the payment by bank transfer (“ACH”) or by such other payment methods as Truss may designate from time to time. Where an ACH Discount is available, it will be disclosed to the payor together with the Standard Payment Amount and before the payor selects a payment method. Truss may change, suspend, or withdraw the ACH Discount, and may add, change, or remove the payment methods that qualify for it, at any time upon notice.

The Platform Fee shall be for the sole account of Truss and shall not be payable to the Customer. The Platform Fee is non-refundable except as required by applicable law.

(3) Processing Fees. Customer's use of the Pay by Card Service is subject to a processing fee (the "Processing Fee"), which will be charged to Customer’s card at the time of the card transaction in addition to the bill amount. The Processing Fee represents compensation for Truss’s bill-payment facilitation and disbursement services. The Processing Fee will be disclosed to Customer prior to Customer authorizing the card charge, and Customer’s authorization of the charge constitutes acceptance of the Processing Fee. The Processing Fee is non-refundable, including in the event that the vendor disbursement is subsequently reversed or cancelled, except as otherwise required by applicable law.

(4) Changes to the Fees. Truss reserves the right to change the Fees and institute new Fees upon notice to Customer. Truss will provide at least 14 days’ advance notice of material increases to Fees, except where increases are due to third‑party, network, NACHA, processor, or bank partner costs or are otherwise mandated by law, rule, or a bank partner, financial service provider or network. Such changes may be effective upon notice.

(5) Payment Methods. If Customer is required to pay Fees under this Agreement, Customer must provide a valid method of payment. Customer agrees and acknowledges that Truss may bill Customer’s payment method in accordance with this Agreement. All credit card payments through Truss, including payments made through the Pay by Card Service, are processed by Stripe or such other Third-Party Payment Processor as Truss may designate. Customer’s use of the credit card payment system and the Pay by Card Service is subject to the applicable Third-Party Payment Processor’s terms of service and privacy policy. Truss is not responsible for and disclaims all liability arising from the Third-Party Payment Processor’s handling of card transactions, including any processing delays, errors, security breaches, or unauthorized charges attributable to the Third-Party Payment Processor. Customer acknowledges that its relationship with the Third-Party Payment Processor for card processing is governed solely by the Third-Party Payment Processor’s terms, and any disputes regarding card processing must be resolved directly with the Third-Party Payment Processor, except to the extent Truss is required to assist under applicable Card Network Rules.

(6) Phone Payments. If Customer chooses to accept card payments via phone, Customer undertakes that Customer will: (i) implement and maintain compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) appropriate to its environment; (ii) obtain sufficient information from the payor to be able to verify the payor’s identity; (iii) directly enter the payor’s card information into the Services and not store or record cardholder data outside the Services; (iv) obtain the payor’s affirmative consent in advance of each charge to the payor’s card; and (v) before the payor selects a payment method, disclose the Standard Payment Amount (which includes the Platform Fee) and the availability and amount of any ACH Discount, and disclose the entire amount that will be charged to the payor in advance of charging the payor’s card, in each case using such disclosure language as Truss may provide or approve. Upon request Customer shall provide evidence of compliance with these requirements reasonably acceptable to Truss.

(7) Chargebacks and Reversed Payments. In the event that Truss receives a chargeback, clawback or ACH return with Customer as recipient, Customer authorizes Truss to debit Customer’s payment method on file for the amount of the chargeback plus any associated fees or to withhold funds from future distributions. In the event of a chargeback or dispute arising from a transaction initiated through the Pay by Card Service, Customer remains liable for the full amount of the original transaction (including the Processing Fee) and any associated chargeback fees, regardless of whether the vendor disbursement has already been completed. Payments may be invalidated and reversed by Truss if, among other reasons, Truss credited the payment to Customer in error, the funding transaction is declined or reversed, the payment was unauthorized or unfunded, or if the payment was for activities that violated these Terms of Service or any other agreement with Truss. As the sender or recipient of a payment that is later invalidated for any reason, Customer may be liable to Truss for the full amount of the payment and Truss may recover the amount of the payment (plus any fees and costs associated with such recovery, including attorneys’ fees) from Customer. Truss may recover the amount of the payment from either the sender or the recipient of an invalidated payment in our discretion (subject to applicable law). For example, if Customer sends a payment funded by a bank account and the bank informs Truss it cannot cover the payment due to a lack of funds or a dispute, Truss may hold Customer liable for the payment, or if Customer were the recipient of that payment, Truss may reverse that payment from a Customer User Account to cover the liability. When recovering the amount of an invalidated payment from Customer, Truss may apply any money sent to Customer through the Truss Services or withdraw the amount from Customer’s Linked Account. If Customer adds money to a Customer User Account, Truss may apply that money to amounts owed. Truss may suspend Customer’s access to the Services while any unpaid liabilities remain outstanding or close Customer’s account in its sole discretion.

(8) Late Payment. Customer may not withhold or set off any amounts due under this Agreement. Without limiting Truss’s other rights, Truss may suspend Customer’s access to the Services or close Customer’s account, if Customer has not paid the applicable Fees within 30 days of the date that such Fees become due.

(9) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Truss.

(10) Suspension and Closure. Any suspension of the Services or closure of a Customer’s account by Truss pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

(1) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

(2) Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:

1. disclose Confidential Information of the Discloser to any person, except to:
   1. in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; or
   2. in the case of Truss to Truss’s employees, consultants, agents, affiliates or financial service providers, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to bank partners, card networks, NACHA, processors, and regulators as necessary to provide the Services and Financial Services and to comply with applicable rules and legal obligations; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;
2. use Confidential Information of the Discloser; or
3. alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

(3) Exceptions to Confidentiality. Notwithstanding Section 8(2), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

(4) Return of Confidential Information. Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 12(4) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Truss may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

(1) Truss’s Indemnity.

1. Truss will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Truss Services infringe any third-party Intellectual Property Right in the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Truss Services into, or any combination, operation, or use of any Truss Services with, any products or services not provided or authorized by Truss, unless such infringement would also have resulted solely from the use of the Truss Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Truss Services other than by Truss or with Truss’s express written approval; (C) unauthorized use of the Truss Services; or (D) Customer’s indemnity in Section 9(2).
2. If the Truss Services are, or in Truss’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Truss Services is enjoined or threatened to be enjoined, Truss may, at its option and sole cost and expense:
   1. obtain the right for the Customer to continue to use the affected Truss Services materially as contemplated by this Agreement;
   2. modify or replace Truss Services, in whole or in part, to seek to make the Truss Services non-infringing while providing materially equivalent features and functionality; or
   3. if Truss determines that neither of the foregoing options are reasonably available, by written notice to the Customer, terminate the affected Services and refund any unused prepaid Fees for the terminated Services, if applicable. This Section 9(1) states Truss’s sole liability to, and the Customer Indemnitees exclusive remedy against, Truss for any third-party claim described in this section.

(2) Customer Indemnity. The Customer will defend, indemnify and hold harmless Truss, and its officers, directors, employees and agents (each, a “Truss Indemnitee”) from and against any and all Losses incurred by a Truss Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Truss Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service; or (v) any assessments, fines, penalties, fees, or costs imposed by card networks, NACHA, bank partners, financial service providers, processors, or governmental authorities arising out of or related to Customer’s processing activity, excessive chargebacks or ACH returns, PCI DSS noncompliance, or rule violations. Customer will fully cooperate with Truss in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Truss.

(3) Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 9. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9(3) will not relieve the Indemnitor of its indemnity obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

(1) Customer Warranty. Customer represents and warrants to and covenants with Truss that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third-party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Truss to provide the Truss Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Truss and to or from all applicable third parties.

(2) General Disclaimer. The Services and Financial Services are for business use only. Consumer financial protection statutes and regulations applicable to consumer users (including consumer error‑resolution provisions) do not apply. To the extent applicable, UCC Article 4A governs ACH funds transfers. Truss does not provide legal, tax, or accounting advice; Customer remains responsible for its compliance with applicable laws, rules, and Partner Agreements.

TRUSS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY TRUSS TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRUSS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TRUSS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES, IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(1) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TRUSS IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL TRUSS’S BANK PARTNER OR FINANCIAL SERVICE PROVIDERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(2) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TRUSS BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. Nothing in this Agreement limits or excludes liability for fraud, willful misconduct, or gross negligence, or for matters that cannot be limited under applicable law. The foregoing disclaimers and limitations apply to the maximum extent permitted by law.

(3) The foregoing limitations and exclusions will not apply to Customer’s payment obligations, Customer’s indemnification obligations, willful misconduct, or breaches of confidentiality. For clarity, network assessments, NACHA fines, processor/bank‑partner pass‑through fees, and related costs arising from Customer’s processing activity are direct damages recoverable from Customer. Truss’s IP indemnity obligations remain subject to the liability cap.

(1) Term. A subscription to Truss Services will commence on the Effective Date and will continue in full force and effect until terminated by either Party pursuant to this Agreement (the “Term”).

(2) Termination by Truss. Truss may, at its discretion, terminate the Truss Services at any time by providing at least 30 days advance notice to Customer. Truss may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if: (i) Truss suspects or becomes aware of any fraudulent, illegal, or suspicious transactions; (ii) Customer ceases to process payments or otherwise use the Truss Services for a period of 366 days; (iii) Customer breaches this Agreement, becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy; (iv) upon direction or requirement of bank partners, financial service providers, card networks, NACHA, processors, or governmental authorities; (v) upon exceeding applicable chargeback or ACH return thresholds; or (vi) upon PCI DSS noncompliance, sanctions screening hits, or material violations of Card Network Rules, NACHA Rules, or Partner Agreements.

(3) Termination by Customer. Customer may, at its discretion, terminate this Agreement by contacting Truss and requesting termination.

(4) Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services (without right to refund of any Fees) and Customer shall delete or, if requested by Truss, return any Truss Property in its possession and certify in writing to Truss that the Truss Property has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund. All Fees due and payable and any amounts due to Truss are immediately due and are to be immediately paid by Customer to Truss. After termination, Truss will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. Notwithstanding the foregoing, Truss will not be required to remove any Customer Data maintained in accordance with law, Card Network Rules, NACHA Rules, Partner Agreements, its standard backup procedures or record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement.

(5) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 5 (Ownership; Reservation of Rights), Section 6 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Indemnities), Section 10 (Warranty and Disclaimer), Section 11 (Limitation of Liabilities), Section 12(5) (Survival), and Section 13 (General Provisions).

(1) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:

(i) if to Truss, to the following Truss’s address and email contact: 2261 Market St #4415, San Francisco, CA 94114 help@trusspayments.com and (ii) if to Customer, to the current mailing or email address that Truss has on file with respect to Customer. Truss may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Truss current at all times during the Term.

(2) Electronic Records and Signatures. Customer consents to the use of electronic records and signatures for all purposes of this Agreement, any Additional Terms, and the Partner Agreements to the fullest extent permitted by applicable law and agrees that notices and disclosures may be provided electronically.

(3) Assignment. Customer may not assign this Agreement to any third party without Truss’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Truss may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

(4) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Delaware and any applicable federal laws of the United States, without regard to conflicts of law principles.

(5) Venue. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction in the Court of Chancery of the State of Delaware or any court of the United States located in the State of Delaware, for any action, proceeding or investigation in any court or before any governmental authority. This choice of jurisdiction does not prevent Truss from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.

(6) Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Truss Services. Truss makes no representation or warranty that the Truss Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

(7) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

(8) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control (except for a failure by Customer to pay Fees or Customer’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement.

(9) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

(10) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(11) Independent Contractors. Truss’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

(12) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. In the event of any conflict or inconsistency, the following order of precedence will apply: (1) the Partner Agreements; (2) the Additional Terms; (3) this Agreement; and (4) Truss policies referenced herein.

(13) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, TRUSS MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY TRUSS, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER), provided that notice of increases to Fees or reductions in core Service functionality will be provided at least 14 days in advance unless earlier effectiveness is required by law, rule, network, NACHA, processor, or bank partner mandate.

(14) Costs. In the event of any dispute or legal or equitable action arising out of or relating to this Agreement, the prevailing Party will be entitled to recover all of its out-of-pocket expenses and costs (including reasonable attorneys’ fees) from the losing Party. In addition, if Truss refers the collection of your account balance to an attorney, you agree to pay our attorneys’ fees, in addition to any other fees, costs, or charges permitted under applicable law.

(1) “ACH Discount” has the meaning set out in Section 7(2).

(2) “Aggregated Data” has the meaning set out in Section 5(1)(3).

(3) “Agreement” has the meaning set out in Section 1.

(4) “Amendment” has the meaning set out in Section 13(13).

(5) “Card Network Rules” means the operating regulations, bylaws, and rules of the applicable card networks (e.g., Visa, Mastercard), as amended from time to time.

(6) “Confidential Information” has the meaning set out in Section 8(1).

(7) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Truss Services, including but not limited to Personal Information, excluding Aggregated Data and any other Truss Property.

(8) “Customer User Account” has the meaning set out in Section 3(1).

(9) “Discloser” has the meaning set out in Section 8(1).

(10) “Feedback” has the meaning set out in Section 5(3).

(11) “Fees” has the meaning set out in Section 7(1).

(12) “Financial Services” has the meaning set out in Section 1.

(13) “Force Majeure” has the meaning set out in Section 13(8).

(14) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(15) “Linked Account” has the meaning set out in Section 4(1).

(16) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

(17) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(18) “NACHA Rules” means the NACHA Operating Rules and Guidelines, as amended from time to time.

(19) “Partner Agreements” has the meaning set out in Section 1.

(20) “Party” has the meaning set out in Section 1.

(21) “Pay by Card Service” has the meaning set out in Section 2(10).

(22) “Permitted User” means those employees, agents and independent contractors of Customer who are authorized by Customer to use the Truss Services through a Customer User Account.

(23) “Personal Information” means information about an identifiable individual.

(24) “Platform Fee” has the meaning set out in Section 7(2).

(25) “Processing Fee” has the meaning set out in Section 7(3).

(26) “Recipient” has the meaning set out in Section 8(1).

(27) “Services” means the products and services that are ordered by Customer and made available online by Truss, including Truss Services.

(28) “Standard Payment Amount” has the meaning set out in Section 7(2).

(29) “Term” has the meaning set out in Section 12(1).

(30) “Terms of Service” has the meaning set out in Section 1.

(31) “Third-Party Products” has the meaning set out in Section 2(9).

(32) “Third-Party Payment Processor” has the meaning set out in Section 2(10).

(33) “Truss Property” has the meaning set out in Section 5(2).

(34) “Truss Services” has the meaning set out in Section 1.

(35) “UCC Article 4A” means Article 4A of the Uniform Commercial Code applicable to funds transfers.

(36) “Website” means any websites used by Truss to provide the Truss Services, including the website located at https://www.trusspayments.com/.