MERCHANT AGREEMENT

I. GENERAL

During the length of the business relationship (“Term”) with a participating Merchant

(“Merchant”, or “you”, “your”), WaBee will provide the WaBee services and/or rewards programs (collectively, “WaBee Rewards Program(s)”) described in these terms and conditions (“Terms and Conditions”), and any other Agreement separately executed by you, together with all exhibits attached thereto (together, the “Agreement”). In the event of any inconsistency among terms and conditions of the Agreement and these Terms and Conditions, the order of control shall be: (i) these Terms and Conditions, (ii) the Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Agreement executed by you, and, together with this Agreement and all attachments thereto, govern your use of all WaBee Rewards Program(s).

II. INTELLECTUAL PROPERTY RIGHTS

  1. MEMBERS (“Customer”) DATA. WaBee is the sole and exclusive owner of all right, title and interest in and to any data provided to WaBee by your Members or any end user to WaBee in connection with the WaBee Reward Program(s), including without limitation all phone number and/or other contact information (“Members/Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Members/Customer Data.

  2. WABEE REWARDS PROGRAM(S). WaBee owns all right, title and interest in and to the WaBee Rewards Program(s) (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights in and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Wabee Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

  3. WEB PORTAL. WaBee hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use WaBee’s hosted Merchant web portal (the “Portal”) for internal business purposes so long as your account with WaBee remains current and active. If WaBee provides you with a password to access the Portal, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Portal, and all source code, object code, software, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of WaBee. You shall refrain from permitting any third party to use your password or otherwise access the Portal. WaBee shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement, or your WaBee account is otherwise terminated for any reason.

  4. DISPLAY OF CONTENT. Without limiting any of WaBee’s rights set forth in the Agreement, WaBee reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed on the WaBee website, any portion of the WaBee Reward Program(s), and/or within any print materials, including without limitation any information and/or content that, in WaBee’s view, contains content or links which do not meet WaBee’s specifications or requirements. In addition, WaBee shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the WaBee Reward Program(s) (including without limitation any mobile application and/or software) at any time.

III. RESTRICTIONS.

  1. You will use the WaBee Rewards Program(s) solely for your internal business purposes; and

  2. You will not, for yourself, any of your affiliates or any third party:

    1. Sell, rent, lease, license or sublicense, assign, distribute, or transfer the WaBee Rewards Program(s),

    2. Modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the WaBee Programs,

    3. Copy any tangible versions of the WaBee Rewards Program(s), or

    4. Remove from any of the WaBee Rewards Program(s) any language or designation indicating the confidential nature thereof or the proprietary rights of WaBee. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the WaBee Reward Program(s) where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. WaBee retains the right, in its sole discretion but without any obligation on the part of WaBee to monitor or evaluate any communications, to approve, modify or refuse any WaBee-related communications or proposed communications or messages to your customers or any WaBee end users.

IV. FEES; PAYMENT TERMS; TAXES

  1. WaBee’s fees shall be based on a total percentage of the sales generated, and pursuant to the terms in the Agreement between WaBee and Merchant. WaBee reserves the right to amend the fees payable for the WaBee Reward Program(s) at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next payable period.

  2. When you provide your payment information to WaBee, you are providing WaBee with an authorization to process any and all payments as outlined in the Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, WaBee may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. WaBee will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.

  3. Insufficient Funds. All ACH (or EFT - Electronic Funds Transfer) payments that charged back or denied by a Merchant’s bank for insufficient funds will be re-submitted for payment. A $25.00 Insufficient Funds Fee will be charged to the account of the Merchant/Business Owner at WaBee’s discretion. Any outstanding balance owed to WaBee, Inc. by a Merchant for insufficient funds will be deducted or withheld from the Merchant’s Account. If WaBee, Inc. is unable to recover insufficient funds by ACH payment, the Merchant Services department will notify the Merchant of the deficiency. The Merchant will have five business days to correct the deficiency and make restitution. If the Merchant fails to make restitution within five business days the Merchant's Account will be automatically terminated and removed from the WaBee Rewards Program, website and mobile App.

  4. Should a Merchant have a dispute with a receipt that has been authorized by WaBee, Inc, A Merchant has forty-eight (48) hours, from time of authorization, to dispute a receipt from a Member. Any dispute shall be documented and sent via email to Merchants@WaBee.com. Any dispute past the forty-eight (48) hours will not be honored and the Merchant will concede any and all Rewards that have been authorized by WaBee, Inc.

  5. You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the WaBee Rewards Program(s).

  6. Notwithstanding anything herein to the contrary, WaBee, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the WaBee Rewards Program(s), at any time, upon electronic or other notice to you for any other breaches of the Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including any Rewards Offers that have not been fulfilled. You agree to pay reasonable attorney’s fees and court costs incurred by WaBee to collect any unpaid amounts owed by you.

V. TERM; TERMINATION; SURVIVAL.

  1. When you make changes through your Portal, you are providing explicit authorization for WaBee to process payment on your existing WaBee account and method of payment without any further authorization necessary from you.

  2. The Agreement will remain in full force, and current fees will be charged to the payment method on file unless WaBee is otherwise notified of a cancellation in writing.

  3. Merchant may cancel its account, thereby terminating this Agreement, solely in accordance with the procedure outlined in its Agreement with WaBee and outlined in the Portal.

  4. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, WaBee may terminate the Agreement and/or your access to one or all WaBee Rewards Program(s) in the event you fail to remain current in all fees due and owing to WaBee or in the event you breach any of your obligations under the Agreement.

  5. In the event of any termination of the Agreement or any WaBee Rewards Program(s), WaBee shall reserve the right to send e-mail and/or other communications to some or all of your Rewards Program Members, notifying each such Member of your termination of the WaBee Rewards Program(s). In addition to the foregoing permissible e-mail, WaBee shall be entitled to take other actions, at its discretion, to assist your Rewards Program Members in protecting the Cash Back earned within the WaBee Rewards Program(s) and providing them an opportunity to redeem Cash Back earned. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.

  6. Should Merchant terminate their agreement with WaBee at any given time, the 1% Credits that have been earned by their Members shall forego any Cash Back Credits that have accumulated in the Merchant’s Account via WaBee Members that have made purchases at participating WaBee Merchants. These “Credits” (Cash Back) are not available for any type of cash out to the Merchant and the Merchant understands that any and all Credits will be relinquished to WaBee, Inc. on date of termination received by the Merchant to WaBee, Inc.

VI. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

  1. WaBee warrants that WaBee has the authority to enter into this Agreement.

  2. You represent, warrant and covenant to WaBee that:

    1. You have the authority to enter into this Agreement;

    2. You will only use the WaBee Rewards Program(s) for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and

    3. You will not use any WaBee Rewards Program(s) to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).

     c. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, WABEE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, WABEE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE WABEE PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY WABEE PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF WABEE PROGRAMS AND THE INTERNET IS AT YOUR SOLE RISK. WABEE PROGRAMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL WABEE BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY WABEE PLATFORM.

VII. CONFIDENTIAL INFORMATION.

  1. Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Member Data shall be deemed Confidential Information of WaBee.

  2. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement.

  3. The prohibitions contained in this Section will not apply to information:

    1. Already lawfully known to the receiving party prior to disclosure by the disclosing party;

    2. Independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information;

    3. Disclosed in published materials;

    4. Generally known to the public; or

    5. Lawfully obtained from any third party.

   d. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

VIII. DISPUTE RESOLUTION; GOVERNING LAW.

In the event of a reward dispute or mistake between a Merchant and User, WaBee may in its sole discretion and without liability of any kind unilaterally make adjustments to User Rewards; it being understood that WaBee shall not be obligated to make any such

adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or be liable to any party for any damages, expenses or liabilities

arising out of any such dispute). To the extent any disputes arise under the Agreement

or otherwise between the parties, the parties will first attempt in good faith to resolve

their dispute informally. This Agreement is governed by the State of California and you

expressly agree to the exclusive jurisdiction for any claim or dispute with WaBee in the

federal and state courts within the jurisdiction of the United States District Court for the

Central District of California. The United Nations Convention on Contracts for the

International Sale of Goods will not apply to the Agreement.

IX. INDEMNIFICATION.

You will defend, indemnify, and hold WaBee and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against

any third party suit, proceeding, assertion against any damages, judgments, liability,

costs and expenses (including without limitation any reasonable attorneys’ fees)

incurred arising from your breach of this Agreement, your negligence or misconduct,

any dispute you may have with any other party in connection with any WaBee Reward Program(s) or otherwise related in any way to any WaBee Reward Program(s), your unauthorized use or misuse of the WaBee Reward Program(s) or any unauthorized combination of any WaBee Reward Program(s) with any hardware, software, products, data or other materials not specified or provided by WaBee.

X. LIMITATION OF LIABILITY.

WaBee’s aggregate liability for all claims (including claims for indemnification of third

party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to WaBee under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will WaBee be liable for any loss of business profits, business interruption, loss of data or any special, indirect,

exemplary, incidental or consequential damages arising from or in relation to the

Agreement or the use of any WaBee Reward Program(s), however caused and regardless of theory of liability.

XI. NOTICE.

Except where explicitly provided otherwise herein, any notice required or permitted

hereunder will be delivered to the contact person listed on the Agreement as follows

(with notice deemed given as indicated): (i) by personal delivery when delivered

personally; (ii) by established overnight courier upon written verification of receipt; (iii)

by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery

when receipt is confirmed orally.

XII. ASSIGNMENT.

You may not, without the prior written consent of WaBee, assign the Agreement, in

whole or in part, either voluntarily or by operation of law, and any attempt to do so will

be a material default of the Agreement and will be void.

XIII. NO THIRD PARTY BENEFICIARIES.

The Agreement is solely for the benefit of the parties and their successors and

permitted assigns, and does not confer any rights or remedies on any other person or

entity.

XIV. UPDATES.

This Agreement may be changed by WaBee upon posting an updated version of the

Agreement at Wabee’s website and/or within the applicable WaBee Reward Program(s), any such change to become effective three (3) business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

XV. SEVERABILITY

If any provision of the Agreement is held by a court or other tribunal of competent

jurisdiction to be unenforceable, that provision will be enforced to the maximum extent

permissible under applicable law and the other provisions of the Agreement will remain

in full force and effect.

XVI. FORCE MAJEURE.

Neither party shall be liable to the other if such party is prevented from performing any

of its obligations under the Agreement (excluding fee payment obligations) due to any

cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to WaBee provided prior to the force majeure event.

XVII. RELATIONSHIP.

The Agreement will not be construed as creating or constituting a partnership, joint

venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

XVIII. ENTIRE AGREEMENT.

The Agreement constitutes the entire agreement between WaBee and you with respect

to the subject matter hereof and all prior oral or written agreements, representations or

statements with respect to such subject matter are superseded hereby.