Wisetack Merchant Agreement

Last modified: May 28, 2025
This Wisetack Merchant Agreement, together with all periodic updates and documents incorporated by reference (collectively, the “Merchant Agreement”), is a legal agreement between you (“Merchant,” “your” or “you”) and Wisetack, Inc., a Delaware corporation (“Wisetack,” “we,” “our” or “us”). The term Merchant shall include its employees, contractors, agents and representatives. By participating in the Merchant Services (defined below), you agree to be bound by this Merchant Agreement, which incorporates by reference the General Terms of Service (the “Terms”; https://wisetack.us/#/terms), the Wisetack Privacy Policy (https://wisetack.us/#/privacy), and the Wisetack Dispute Resolution Procedures (“Wisetack Dispute Resolution Procedures”; https://www.wisetack.com/disputes) and all other terms, policies, and guidelines applicable to your use of the Merchant Services that we communicate to you. In the event of conflict between the Terms and this Wisetack Merchant Agreement, this Wisetack Merchant Agreement shall control. Defined terms will have the same meaning as those found in the Terms or in the Wisetack Dispute Resolution Procedures, unless otherwise defined here.
1. THE MERCHANT SERVICES.
Wisetack will enable your qualifying existing or potential customers (the “Customers”) to apply for financing, including closed-end installment loans and open-end lines of credit, from Wisetack’s partner financial institutions (“Lending Partners”), solely to finance purchases of goods or services provided by you via your website and, as applicable, mobile platforms and applications (the “Customer Financing”). Wisetack will enable you, either directly via our website or through an integration with a third party software platform, to: (a) apply to offer Customer Financing as an option to your Customers, (b) offer Customer Financing as an option to your Customers, including by directing Wisetack, acting as your agent, to send a Customer an SMS or email with a link to an application for credit, and (c) use any other current or future functionality made available to you (the “Merchant Services”). Upon your Customer’s acceptance of a loan or line of credit from a Lending Partner to finance a purchase from you, Wisetack's Lending Partner will pay you the proceeds of the amount financed for that Customer’s goods or services minus the Merchant Discount as further detailed herein. You authorize Wisetack's Lending Partner to make such electronic payments and to net the payment or to debit your Bank Account, as applicable, to reflect the Merchant Discount.
2. GENERAL TERMS AND CONDITIONS OF MERCHANT PARTICIPATION.
By using the Merchant Services, you represent, warrant, covenant, acknowledge and agree that:
  1. You are not a participant and will not participate in any way whatsoever in the credit application, credit decision, credit transaction, servicing, collections or any other aspect of the Customer Financing between a Customer and a Lending Partner. If a Lending Partner does not proceed with funding a loan or line of credit, you shall have no recourse against such Lending Partner, even if the Customer is unable to pay you amounts pertaining to further work and services.
  2. You and your employees, associates, or other individuals acting on your behalf will act in compliance with the terms of this Merchant Agreement, applicable laws, and any materials, training, manuals, and/or instructions provided to you by Wisetack, including with respect to the identification and prevention of fraudulent activity.
  3. The Merchant Agreement is contingent upon Wisetack’s evaluation and approval of you, in its sole discretion and/or the discretion of its Lending Partners. You will be required to provide documents and information (the “Merchant Evaluation Materials”) to assist Wisetack in evaluating, among other things, your business history, financial background (including credit report or other background information), and business creditworthiness. You agree to provide accurate Evaluation Materials. Wisetack reserves the right to reassess your eligibility for the Merchant Services or to request additional Merchant Evaluation Materials, regardless of whether your Customer has already qualified for Customer Financing.
  4. Any individual accepting this Merchant Agreement by using the Merchant Services has full authority to act on your behalf and bind you to this Merchant Agreement.
  5. Wisetack does not control the terms for a loan or line of credit obtained from a Lending Partner. Our Lending Partners shall have sole and absolute control over the types of credit products offered and the associated underwriting and credit policies, pricing, terms and disclosures, and the decision to approve or deny any credit application or to offer credit products. Wisetack or its Lending Partners shall have sole control over any other terms of service, privacy policies, or other disclosures and notices pertaining to Customer Financing, as well as any invoices, billing statements, and other communications pertaining to servicing and collections efforts related to Customer Financing.
  6. You and your family members and former family members, and anyone that lives in the same household as any of the aforementioned groups may not be eligible for Customer Financing, whether to finance purchases from you or from other parties.
3. MERCHANT RESPONSIBILITIES.
Your duties, covenants, obligations and responsibilities under this Merchant Agreement shall include, and your eligibility to receive the Merchant Services is conditioned upon, each of the following:
  1. Establishing and maintaining a United States depository account in good standing, and providing Wisetack at least ten (10) business days advance notice, prior to closing or changing such account (“Bank Account”);
  2. Not imposing on a Customer any surcharge, fee or other amount or increased pricing solely because a Customer has used Customer Financing in connection with a purchase;
  3. Maintaining any Customer information related to Customer Financing as strictly confidential;
  4. Maintaining your contact information with Wisetack up to date;
  5. Providing to Wisetack in a timely manner all information reasonably requested relating to your participation with the Merchant Services or any Customer or any purchase transaction for which Customer Financing was utilized, including but not limited to providing to Wisetack your Bank Account information, any of which you acknowledge and agree Wisetack shall share with Lending Partners as required to provide the Merchant Services to you, including to fund the Payout as described in Section 4 below;
  6. Not discriminating against or disadvantaging transactions made using Customer Financing (relative to transactions involving other types of financing or cash, credit card or other forms of payment) in any way, including, without limitation, by (i) making Customer Financing available as a “second look” option following a Customer’s decline by another financing provider or otherwise putting Customer Financing after other financing options in the “waterfall” arrangement, (ii) charging more for transactions utilizing Customer Financing or (iii) excluding such transactions from receiving or participating in any discounts, rebates, savings, offers, incentives, or loyalty program benefits, points or rewards, which may be offered by you to your Customers using other methods of payment;
  7. Notifying Customers promptly when a service you are performing for a Customer is to begin, when service milestones (if applicable) are completed, or when the service you provide to the Customer is completed, as applicable, and keeping Customers informed of material delays in your ability to perform according to the timeline you have communicated to them;
  8. Maintaining (1) a commercially reasonable refund and return policy for goods and non-compliant services, and (2) a commercially reasonable quality control or service level policy to control workmanship standard that addresses defects, non-compliance and non-delivery of goods and/or services, each to be clearly and conspicuously communicated to or otherwise easily accessible by Customers at the point of sale or on your website, as applicable, prior to the completion of a purchase;
  9. With respect to any purchase transaction for which Customer Financing was utilized, promptly notifying Wisetack (and in no event later than 48 hours) of any partial or complete refunds (and solely processing the funds-reversal portion of each such refund through Wisetack and not directly with the Customer) and any service-related issues;
  10. Promptly notifying Wisetack (and in no event later than 48 hours) of any complaint relating to Customer Financing (whether or not a transaction was financed), and, upon request, providing Wisetack with details of individual complaints, aggregate data regarding complaints, and such other information as Wisetack or its Lending Partners may require to comply with their obligations;
  11. Providing, upon request by Wisetack, any updated Merchant Evaluation Materials as needed for Wisetack or its Lending Partners to comply with its legal, regulatory or operational requirements;
  12. Acting promptly to resolve Disputes (as defined in the Wisetack Dispute Resolution Procedures) relating to products or services purchased using Customer Financing in accordance with the Wisetack Dispute Resolution Procedures;
  13. Promptly notifying Wisetack (and in no event later than thirty (30) calendar days) of any issues relating to your receipt of any Payout;
  14. Reasonably cooperating in marketing and promotional campaigns through Wisetack marketing channels, which will be mutually agreed by Wisetack and Merchant. You agree to include Wisetack’s name and/or logo wherever you market, sell or promote the Merchant Services and/or Customer Financing;
  15. Acting promptly to update marketing materials and/or disclosures related to Customer Financing upon request by Wisetack, and not altering or changing any materials produced, distributed, and/or approved by Wisetack, including Lending Partner information, customer-facing signage or other marketing materials, without our written consent;
  16. Not offering Customer Financing as an option to individuals other than your Customers and only offering Customer Financing as an option directly to Customers and not through a third party intermediary;
  17. Only offering Customer Financing as an option to individual consumers and not offering Customer Financing as an option to entities;
  18. Not offering Customer Financing to finance recurring services or subscriptions;
  19. Only using the Wisetack platform to send credit application links via email or SMS to Customers that have expressed an interest in Customer Financing;
  20. Not advising on, participating in, interfering with, or filling out any portion of a credit application or prequalification on behalf of Customers, including but not limited to entering phone numbers, email addresses, or other information on behalf of a Consumer; not limiting or preventing any Customer from applying for Customer Financing based on such individual’s demographic information or legally protected status; not making any statement to a Customer Financing applicant or borrower in regard to Customer Financing other than strictly factual statements such as that Customer Financing is available to be applied for and how to access the application, or as otherwise permitted by marketing materials provided to Merchant by Wisetack; and not knowingly accepting or permitting any Customer to utilize funds from more than one source of financing in duplicative fashion for the same products or services;
  21. With respect to any purchase transaction for which Customer Financing was utilized, not instructing your Customers to authorize the release of funds to you before the applicable goods and services are provided or performed or before payment for the goods and services is otherwise due and owing;
  22. Being responsible for paying all sales, use, excise, and value-added taxes, or taxes of a similar nature owed to the United States, any state or local government, or other taxing authority on any products or services sold to a Customer, including those obtained with Customer Financing. You are responsible for determining what, if any, taxes apply to the sale of your products;
  23. Maintaining good standing with the Secretary of State or equivalent in your state of incorporation or registration, as applicable; and
  24. Complying with all applicable laws and regulations.
4. MERCHANT DISCOUNT AND PAYMENTS FOR MERCHANT SERVICES.
4.1. MERCHANT DISCOUNT; AMOUNTS OWED TO WISETACK
  1. Wisetack will calculate the Payout (as defined below) to net out or debit certain fees for the Merchant Services (such fees, the “Merchant Discount”) that will be disclosed to you.
  2. We may revise our billing procedures and the Merchant Discounts at our sole discretion with prior notice to you by email and your continued use of the Merchant Services shall be automatically deemed to constitute your acceptance of such revised billing procedures and/or Merchant Discounts.
  3. In no event will Wisetack or any Lending Partner be responsible for any other party’s fraudulent or otherwise unauthorized transaction or credit application, including but not limited to those made by a Customer, you or an unauthorized party. In the event that Wisetack, following its investigation of a purchase transaction, informs Merchant that such transaction is unauthorized, fraudulent or likely fraudulent, Wisetack shall have the right to: (i) require Merchant to immediately cease the provision of any products or services relating to such transaction (if not already completed); (ii) hold Merchant liable for any loss resulting from fraudulent or unauthorized transactions, including but not limited to chargebacks filed with a financial institution, in respect of which funds are withdrawn, and refunds made; (iii) require Merchant to immediately refund any funds related to the transaction, if any, already disbursed by our Lending Partners (or debit your Bank Account in the amount of such funds, in Wisetack’s discretion). In the event that Wisetack cancels an application for Customer Financing, you agree that it is your obligation (and not Wisetack’s) to pursue payment from the customer for your product or services.
  4. If we reasonably determine you are in violation of this Merchant Agreement, or if a full or partial return of a Payout is authorized or required by the terms of this Merchant Agreement, including the Wisetack Dispute Resolution Procedures, as determined by Wisetack in its sole discretion, you agree to return such full or partial Payout.
  5. In addition to any other rights or remedies provided in this Merchant Agreement or the Terms, you authorize us and our Lending Partners to electronically debit your Bank Account for any amounts owed to Wisetack or a Lending Partner pursuant to this Merchant Agreement or the Wisetack Dispute Resolution Procedures.
  6. Wisetack may apply a fee of 1.5% per month (or the maximum amount allowable) for any funds not received from you within 60 days after funds are owed to Wisetack, which will be retroactive to the date of the request.
4.2. PAYOUT SCHEDULE.
  1. After we initially verify your Bank Account, Wisetack, in coordination with the relevant Lending Partner(s), shall cause to be initiated a funds transfer to the Bank Account by the close of each business day (the “Payout”). The Payout shall be a net amount (or a simultaneous credit and debit, as applicable) that is equal to the dollar amount of:
    1. the transaction purchase price charged by you for which your Customers have authorized the release of funds financed by loans and lines of credit utilizing Customer Financing as of one business day prior to such transfer (the “Payment Period”); minus (or with a corresponding debit in) the dollar amount of:
    2. (a) all corresponding Merchant Discounts owed by Merchant to Wisetack or a Lending Partner for all such transactions during the Payment Period; (b) all partial or complete refunds processed by the Merchant for any completed transactions during the Payment Period; (c) all partial or complete refunds due to a Customer exercising its legal rights, including but not limited to a right to cancel if Customer Financing was obtained pursuant to a door-to-door sale; (d) any completed transactions which are otherwise subject to a dispute between Wisetack or a Lending Partner, on one hand, and Merchant, on the other hand; and (e) any accrued but unpaid amounts owed by Merchant to Wisetack or a Lending Partner.
  2. Wisetack and its Lending Partners reserve the right to change the timing of the Payout, suspend Payouts, or debit your Bank Account to recover Payouts, should they determine, in their sole and reasonable discretion, that such action is necessary due to: (i) pending, anticipated, or excessive Dispute(s), refund(s), or reversal(s); (ii) in the event that we suspect or become aware of suspicious activity; or (iii) where we are required by law or court order. We have the right to withhold Payout(s) upon termination of this Agreement if we reasonably determine that we may incur losses resulting from credit, fraud, or other legal risks associated with your account.
4.3. CUSTOMER DISPUTES; REFUNDS.
Wisetack will not hold your Customers liable for any amount arising from Customer’s purchase if Customer provides documentary evidence showing that (i) the product in question was returned to you in accordance with your stated return policy or (ii) the service in question was not provided in a manner commensurate with Merchant’s quality control or service level standards (which in no event will be less than a reasonably expected level of quality or workmanship), as applicable. If we reasonably resolve a Dispute in favor of the Customer, as set forth in the Wisetack Dispute Resolution Procedures, then you agree to: (a) promptly process such refund owed to the Customer and notify Wisetack immediately so Wisetack may credit the Customer’s outstanding balance accordingly; (b) issue only full or partial refunds and not credit. You understand and agree that Wisetack or a Lending Partner may debit your Bank Account for any amounts associated with Disputes determined by Wisetack in favor of the Customer and properly refunded to the Customer pursuant to the Dispute Resolution Procedures. In order to process such refunds, Wisetack or a Lending Partner may debit your Bank Account in multiple increments, so long as the sum of such debits equals the refunded amount. You also agree to fund your Bank Account to ensure it has sufficient funds to cover the refund. In addition, you agree that Wisetack and/or its Lending Partners may require you to return the Merchant Discount if the refund is not processed within the first 30 days after the date a Customer obtained Customer Financing. In the case of partial refunds initiated by you other than in relation to a Dispute, you will be solely responsible for determining the amount of such refund, communicating such amount to Wisetack, and liable for any dispute with a Customer relating to the partial refund. Merchant agrees that, as between Merchant, on the one hand, and Wisetack and Lending Partners, on the other hand, Merchant shall be the sole party responsible for any losses incurred by Wisetack or any Lending Partners that arise from Merchant sales practices or defects in any Merchant products and services
4.4. AUDIT RIGHTS AND DISPUTES.
  1. You will keep complete and accurate books and records, including, but not limited to, any reports or other transactional documentation generated through the use of the Merchant Services. During the Term of this Merchant Agreement and for a period of two (2) years after its termination, Wisetack will have the right to audit your books, records, and customer invoices or contracts related to use of the Merchant Services.
  2. If any dispute arises under this Merchant Agreement, both parties agree to make a good faith effort to resolve the dispute within thirty (30) days’ written notice of such dispute. No action, suit, arbitration or other proceeding may be commenced (other than for undisputed amounts) before the parties have attempted to resolve the dispute pursuant to this provision unless immediate injunctive relief is being sought. Thereafter, either Party may bring an action in any court or to an arbitral body of competent jurisdiction. Disputes between your Customers and you that arise out of or in relation to the Merchant Services will be governed by the Wisetack Dispute Resolution Procedures.
  3. Merchant shall, upon request by Wisetack, supply any information for Wisetack or a Lending Partner to investigate any suspicious or potentially fraudulent activity. Wisetack reserves the right to contact a Customer to verify suspicious transactions prior to a Payout.
5. REPRESENTATIONS AND WARRANTIES.
Each party hereto represents and warrants that: (a) it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (b) it has the right, power and authority to enter into this Merchant Agreement; (c) this Merchant Agreement is duly and validly executed upon Merchant’s use of the Merchant Services and constitutes legal, valid and binding obligations of each party; (d) it will comply at all times with all applicable laws, rules and regulations in connection with carrying out its obligations contained herein; (e) there is no pending or, to such party’s knowledge, threatened civil, criminal or administrative action, suit, demand, claim, hearing, proceeding or investigations against or relating to such party or any of its subsidiaries; and (f) neither the execution, delivery or performance of this Merchant Agreement nor the consummation of the transaction contemplated hereby will conflict with, result in a violation or breach of, or require the consent of any person under the terms, conditions or provisions of any contract, notice, indenture, license, permit, lease or any other instrument of such party.
6. INTELLECTUAL PROPERTY
  1. Merchant and Wisetack mutually grant to each other a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute and transmit the other party’s name, logo and any other trademarks, trade names, service marks, photographs, graphics, artwork, text and other content provided or specified by such party in any and all media formats, whether registered or unregistered, (collectively the “Marks”) solely in connection with and solely as permitted under this Merchant Agreement and the Terms. Use of the Marks does not create in either party’s favor any right, title or interest in the Marks or any continuing rights to market or distribute the Merchant Services. Neither party will register or apply for registration of any of the other party’s Marks (or any similar trademarks, service marks or logos) for itself, or any other party. Each party agrees to cooperate with the other if the other party seeks to proceed with any infringement action regarding such rights. For the avoidance of doubt, nothing in this Agreement grants, or shall be deemed or interpreted to grant, to Merchant any right to use the name, logo or other intellectual property of any Lending Partner.
  2. Wisetack agrees and acknowledges that Merchant is the exclusive owner of and retains all right, title, and interest in any and all hardware, software, technology or tools used by Merchant to promote, market, sell, generate, or distribute the products financed through Customer Financing, including Merchant name, logo and any other trademarks or copyrighted material (collectively, “Merchant IP”). For the avoidance of doubt, Merchant IP does not include any Wisetack IP (as defined in the Terms).
  3. Subject to Wisetack’s sole discretion and only if applicable to Merchant, Wisetack grants Merchant a limited, revocable, non-exclusive, non-transferable license to access Wisetack’s application programming interface API (“Wisetack API”) documentation and other materials in order to integrate with the Wisetack API to enable Customers to access Customer Financing through an integration between Merchant and Wisetack.
7. CONFIDENTIAL INFORMATION, INFORMATION SECURITY AND PRIVACY.
  1. You will take all commercially reasonable measures to protect any information that identifies, relates to, describes, or is reasonably capable of being linked, directly or indirectly, with any consumer or household (“Personal Information”), including that of any applicant or co-applicant or any borrower that you receive in connection with the Merchant Services, as well as any nonpublic personal information (as defined in the Gramm-Leach-Bliley Act, its implementing regulations, and other similar laws and regulations). You will not disclose this information to (i) any third party or (ii) any employee, officer, shareholder, member, partner, director, manager or representative of yours who is not engaged in the implementation and execution of the Merchant Services and needs to know such information for you to perform your obligations and responsibilities under this Merchant Agreement. You will not retain in any format, electronic or otherwise, any Personal Information beyond what is required pursuant to this Merchant Agreement. Without limiting the foregoing, if you allow individuals to submit Personal Information via the Internet, you must adopt and maintain a comprehensive privacy policy with respect to your handling of such Personal Information and your privacy policy must be available on your Internet website.
  2. You will keep confidential and not disclose to any person (except to employees, officers, shareholders, members, partners, directors, managers or representatives of Merchant who are engaged in the implementation and execution of the Merchant Services) any information, software, systems and data you receive from Wisetack, a Lending Partner, or from any other source relating to the Merchant Services or matters that are subject to the terms of this Merchant Agreement.
  3. Wisetack will keep confidential and not disclose to any person (except Lending Partners or the employees, officers, shareholders, members, partners, directors, managers, agents or representatives of Wisetack, its subsidiaries, affiliates or its designees who are engaged in the implementation and execution of the Merchant Services) any information that Wisetack receives from you that you designate as confidential or would from the circumstances be understood to be confidential. However, nothing in this Merchant Agreement limits Wisetack’s or Lending Partners’ rights to (i) report information regarding Customers to credit reporting agencies to the extent permitted by agreements with the Customer or by applicable law, (ii) share Customer information with third-party service providers in the ordinary course of business for the purposes of administering the Merchant Services, (iii) disclose Customer information or any segment thereof to actual and potential third-party Lending Partners that are bound by customary confidentiality obligations with respect to such data, or (iv) in the event a loan or line of credit or any part thereof is sold or assigned, disclose any information reasonably necessary or required to effectuate such sale or assignment.
  4. You acknowledge and agree that you have developed, implemented and will maintain at all relevant times contemplated by this Merchant Agreement effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of Customer information, (ii) protect against anticipated threats or hazards to the security or integrity of Customer information, (iii) protect against unauthorized access or use of Customer information, and (iv) ensure the proper disposal of Customer information. All personnel handling Customer information must be appropriately trained in the implementation of such information security policies and procedures.
  5. You will maintain commercially reasonable controls to safeguard any Personal Information obtained from Wisetack against any unauthorized access, use or disclosure. If you or any of your affiliates, service providers, contractors, agents or representatives discovers any unauthorized access to, use of, or disclosure of any Personal Information, or if you otherwise believe that the security or integrity of such information may have been compromised, you must promptly notify Wisetack at legal@wisetack.com in less than twenty (24) hours after the occurrence or discovery of the incident. If any such unauthorized access, use or disclosure, or breach or compromise occurs, you agree to follow all of Wisetack’s (and the applicable Lending Partner’s) reasonable requests with respect to the investigation and/or remediation of such event, at your own expense, including with respect to the delivery of notifications to affected individuals, and you will reimburse Wisetack and the applicable Lending Partner for any claims, actions, proceedings, liabilities, judgments, settlements, damages, fines, penalties, costs, expenses and fees it incurs, including attorneys’ fees, relating to any such unauthorized access, use or disclosure, or breach or compromise.
  6. You agree that Wisetack may at any time upon notice to you, review and audit your information security policies, procedures and systems to verify their adequacy for protection of Customer information. You will correct promptly any weakness in such policies, procedures or systems identified by Wisetack in its reviews.
  7. Call Monitoring. You acknowledge that any calls made to or from Wisetack or its designated servicer may be monitored or recorded for quality assurance or other purposes and shared with the applicable Lending Partner.
8. TERMINATION AND SURVIVAL.
  1. Termination. Wisetack may suspend or terminate your access (or any of your employees’, contractors’, agents’, and representatives’ access) to any part of the Merchant Services at any time for any reason and shall endeavor to provide prompt written notice to you of any such suspension or termination. You agree that neither Wisetack nor any Lending Partner will be liable to you for any suspension or termination of your access to the Merchant Services.
  2. Obligations Upon Termination. Upon Termination, each party will promptly destroy or return upon request, and upon request certify such destruction of, all of the relevant party’s materials, documentation, data, and confidential information. Notwithstanding the foregoing, a party may retain documentation and information, including confidential information, pursuant to its document retention procedures and as required by applicable law. Upon termination, each party will immediately cease to use and display any of the other party’s Marks and API documentation, if applicable.
  3. Survival. No termination of this Merchant Agreement will release either party from any payment or other obligations owed to the other, or affect any rights or liabilities of either party with respect to any breach of this Merchant Agreement. Sections 4, 5, 6, 7, 8, 9, 10 and 11 will survive termination of this Merchant Agreement.
9. INSURANCE
During your use of the Merchant Services and for so long as you have any obligations under this Merchant Agreement, you will maintain insurance in such amount and against such risks as is customary for businesses of a comparable size in the industry in which you operate. If requested, you will provide Wisetack with a certificate of insurance evidencing such insurance coverage and renewals thereof. You will notify Wisetack if any required insurance policy is cancelled, not renewed or modified in any material respect within 10 days of any such cancellation, non-renewal or modification.
10. INDEMNIFICATION
  1. Merchant shall indemnify, defend (at Merchant’s sole expense and with counsel reasonably acceptable to Wisetack), and hold harmless Wisetack and any applicable Lending Partner, and their respective officers, directors, employees, representatives, affiliates, processors and agents, (each an “Indemnified Person”) from and against any and all actual or alleged losses, claims, investigations, litigation, proceedings, liabilities, damages, charges and expenses (including all legal and other expenses incurred by any such person, including expenses related to investigation, settlement, compromise or satisfaction) of any kind whatsoever (collectively, a “Loss”) directly or indirectly arising out of or related to: (i) any breach by Merchant or its employees, contractors, representatives or agents of any representation, warranty, covenant or other obligation of Merchant contained in this Merchant Agreement; (ii) any failure of Merchant or its employees, contractors, representatives or agents to comply with any applicable laws, rules and regulations; (iii) any negligence, fraud, error, omission or misconduct of Merchant, its employees, contractors, representatives or agents; (iv) Merchant’s or its employees’, contractors’, representatives’ or agents’ failure to perform any of Merchant’s obligations, or discharge any of Merchant’s responsibilities hereunder, to any person, including Customers; (v) any defect or breach of any express or implied warranty with respect to any goods or services provided by Merchant and financed by a Customer using Customer Financing; or (vi) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; provided that Merchant shall have no obligations or liability under this Section 10 to the extent a Loss results solely from the gross negligence or willful misconduct of an Indemnified Person.
  2. To the fullest extent permitted under applicable law, each Indemnified Person reserves the right, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant hereunder (without limiting Merchant’s indemnification obligations with respect to that matter), and in that case, Merchant agrees to cooperate with such Indemnified Person’s defense of that matter.
11. ENTIRE AGREEMENT
This Merchant Agreement, the Terms and any other policies incorporated herein by reference constitute the entire understanding and contract between you and Wisetack and supersede all prior agreements and understandings regarding the Merchant Services. We may change, modify, add or remove features of the Merchant Services, at any time. We may also change, modify, add or remove portions of this Merchant Agreement at any time. We will post the updated version of the Merchant Agreement to https://wisetack.us/#/merchants and will also will take reasonable steps to notify you in writing of any material changes. Your continued use of the Merchant Services following the posting of any changes or updates constitutes your acceptance of them. However, you may affirmatively opt out of any changes or updates by contacting support@wisetack.com within thirty calendar days of the posting of any such change or update. If you do so opt out, you will no longer be able to use the Merchant Services, and your Customers will no longer be able to apply for Customer Financing. Merchant acknowledges and agrees that Citizens Bank, N.A. and U.S. Bank National Association shall be third party beneficiaries of the representations, warranties and obligations of Merchant hereunder and shall have the benefit of such representations, warranties and obligations and the right to enforce (but not to the exclusion of Wisetack) such representations, warranties and obligations against Merchant as they relate to transactions for which Citizens Bank, N.A. and U.S. Bank National Association, respectively, provide the Customer Financing.
12. MISCELLANEOUS
This Merchant Agreement will be governed by and construed in accordance with the laws of the State of Delaware without reference to its conflicts of laws principles. If any term of this Merchant Agreement is held to be unenforceable, the other terms will remain in full force and effect.