MOBILE COMMERCE TERMS AND CONDITIONS

These Mobile Commerce Terms and Conditions (including all exhibits and referenced policies, the “Terms and Conditions”) are incorporated into the Mobile Commerce Services Agreement between Billing Revolution and Publisher. Billing Revolution and Publisher hereby agree as follows:
1. Definitions.
1.1. “Billing Revolution Materials” means any graphics, images, content, links to Products, or other materials provided by Billing Revolution to Publisher.
1.2. “Billing Revolution Policies” means any and all Billing Revolution standard policies for the Service and the Platform as referenced herein, including without limitation the Service Level Policy, and the Data Security and PCI Compliance Program Policy.
1.3. “Publisher Materials” means any graphics, images, content, links to Products, or other materials provided by Publisher to Billing Revolution for purposes of this Agreement.
1.4. “Publisher Service” means those portions of the user interface visible on the screen of any handheld mobile device through which a user of such device is able to navigate directly to the Service via a Link.
1.5. “End User” means the ultimate purchaser of a Product via the Platform.
1.6. “Link” means either a URL link or service call (as applicable) that is supplied by Billing Revolution to Publisher or created by Publisher in accordance with the terms of this Agreement, which link or service call is integrated by Publisher into the Publisher Service for purposes of connecting to the Service and enabling Transactions.
1.7. “Merchant Account Tool” means the Service’s account management tool(s) that allow(s) Publisher to register Products on the Service and otherwise manage Publisher’s account, in each case in accordance with this Agreement and the Specifications.
1.8. “Merchants” means merchants of Products who have engaged Publisher to process purchase transactions for such Products (as applicable).
1.9. “Platform” means Billing Revolution’s proprietary mobile payments platform, as described in the Specifications.
1.10. “Product” means a product (of Publisher or Merchants, as applicable) that is made available for purchase by Publisher on the Publisher Service and is registered by Publisher in the Service using the Merchant Account Tool; for purposes of this Agreement, “Product” shall include charitable donations.
1.11. “Service” means Billing Revolution’s mobile payment service, which includes purchase data collection, encryption, and storage and verification, in each case as provided via the Platform in accordance with this Agreement.
1.12. “Specifications” means Billing Revolution’s description of the features, capabilities and functionality of the Service and the Platform, as modified by Billing Revolution from time to time. The current version of the Specifications is available at http://partners.billingrevolution.com/services.
1.13. “Transaction” means the payment processing event that effects the purchase of a Product by an End User who clicks through a Link to the Service; for purposes of this Agreement, “Transaction” shall include free, no-cost, refund and test transactions.
2. Service; Security; Support
2.1. Service. Billing Revolution will use commercially reasonable efforts to operate the Service in material accordance with the Specifications and the terms of this Agreement. Billing Revolution shall provide hosting services as to the Platform and the Services. The Billing Revolution mobile purchase pages and all applicable online or mobile payment pages of the Publisher Service shall prominently feature the “Powered by Billing Revolution” logo. Billing Revolution may identify Publisher in advertising and marketing materials listing those parties utilizing Billing Revolution products and services.
2.2. Security. Billing Revolution has implemented and will take reasonable steps to maintain data security procedures as described in Billing Revolution’s Policies; provided, however that Billing Revolution does not guarantee the security of the Services or Transaction data. Billing Revolution shall not be responsible in the event of any breach of its security systems, provided that Billing Revolution has used commercially reasonable efforts to prevent any such breach in accordance with the Billing Revolution Policies. Publisher further acknowledges and agrees that Billing Revolution is not responsible for the security of Transaction data or information or any other information stored on Publisher’s servers or any other party’s servers.
2.3. Support; Risk of Loss.
2.3.1. Billing Revolution shall provide service levels and technical support to the Publisher in accordance with the Billing Revolution Policies. Billing Revolution shall not be obligated to provide technical support to anyone other than Publisher.
2.3.2. As between the parties, Publisher will bear all risk, liability and responsibility for: (a) any non-delivery, misdelivery, theft, or other mistake or act in connection with the delivery of Products; (b) any non-conformity or defect in any Products, (c) sourcing, storing, fulfilling, and delivering all Products, and (d) providing End User customer support, in each case in accordance with the terms of this Agreement and all Billing Revolution Policies. Publisher will be the merchant of record for all Transactions, and Publisher’s name will appear on the End User’s credit card statement.
3. Service Fees; Taxes; Reporting. Publisher shall pay the Fees set forth in this Agreement on the terms described herein. Publisher will provide, and update from time to time, (a) a valid corporate credit card number and expiration date, and (b) accurate and complete bank account information at which Publisher can receive payments. At the end of each calendar month during the term of this Agreement, Billing Revolution will review Publisher’s account; if Publisher’s account has a negative balance, Billing Revolution will charge Publisher’s credit card on file for the amount of the negative balance. Publisher will bear all risk of refunds, chargebacks, rebills, bad debt expense, and returns (including any gateway, merchant account, banking and other fees) occurring in connection with Transactions. Publisher shall be solely responsible for the categorization, assessment, collection, reporting and payment of all taxes, fees and costs that may apply to the purchase of the Products and the provision of the Publisher Service. Billing Revolution will make available to Publisher a report, statement, or other accounting (within the Merchant Account Tool or by email to Publisher’s email address on file) for each calendar month during the term of this Agreement during which Transactions take place. Other than federal and state net income taxes imposed on Billing Revolution by the United States, Publisher will bear all taxes, duties, and other governmental charges resulting from this Agreement. Publisher is responsible for reporting all income and calculating and paying all taxes (including, without limitation, federal and state income taxes, FICA (Social Security or Medicare) taxes, FUTA taxes, state unemployment insurance taxes, state disability insurance taxes, sales taxes and any other taxes related to its sale or license of Products or otherwise relating to the transactions contemplated by this Agreement. All payments to Publisher will be in U.S. Dollars. All reports, statements, and other accountings provided to Publisher will be conclusive, final and binding, unless Publisher gives Billing Revolution written notice stating the specific basis for objection within one year after the date rendered. Publisher will not maintain any action or proceeding against Billing Revolution with respect to any report, statement, or other accounting unless Publisher commences that action or suit against Billing Revolution within six months following the date that Publisher provides Billing Revolution with the written notice referred to in the immediately preceding sentence. Any such action or proceeding will be limited to a determination of the amount of monies, if any, payable by Billing Revolution to Publisher for the accounting periods in question, and Publisher’s sole and exclusive remedy will be the recovery of those monies with no interest thereon. Notwithstanding anything to the contrary herein, to the extent Billing Revolution provides tax rate information to Publisher (or relies on tax rate information in preparing reports or calculating remittances) (a) Billing Revolution does not guarantee or warrant the accuracy of such data, (b) the provision of such tax data (i) shall be deemed excluded from the definition of Service under the Agreement, and (ii) shall not constitute tax advice to any party from any other party or its representatives, and Publisher remains solely responsible for tax matters as described above.
4. Users. Users of the Publisher Service who navigate to the Service will be deemed Billing Revolution’s users, and users of the Publisher Service who enter into Transactions on or through the Service will be deemed Billing Revolution’s customers, in each case solely to the extent necessary to enable Billing Revolution to meet its compliance obligations hereunder. Accordingly, all of Billing Revolution’s rules, policies, and operating procedures concerning use of the Service will apply to those customers. Billing Revolution may change its policies and operating procedures at any time in its sole discretion.
5. Links; Publisher Materials. Subject to the terms of this Agreement, Publisher (or its designees) will integrate and maintain Links for each Product in the Publisher Service and will use commercially reasonable efforts to promote such Products. Publisher will supply to Billing Revolution accurate and complete information for each Product to be made available for Transactions on the Service, together with any other related information, requested within the Merchant Account Tool or otherwise reasonably requested by Billing Revolution. Publisher will update such information as frequently as necessary so that the information is at all times current, accurate, and complete. Billing Revolution may, but is not obligated to, provide new or modified Links to Publisher from time to time. If Billing Revolution provides new or modified Links to Publisher, Publisher must promptly use such Links (and, if applicable, cease to use any replaced or superseded Links). Upon request by Billing Revolution at any time, Publisher will provide Publisher Materials to Billing Revolution for its review and written approval (which written approval may, for purposes of this Section, be given by email). Billing Revolution may approve of or reject Publisher Materials in its sole discretion. Publisher must not display on the Publisher Service (or elsewhere) any Publisher Materials that Billing Revolution has rejected. If Publisher provides Publisher Materials, it does so at its sole cost and expense and without any assurance that any Publisher Materials will be approved by Billing Revolution. Subject to any approval by Billing Revolution required under this Section, Publisher is solely responsible for the development, operation, and maintenance of Publisher Materials and the Publisher Service.
6. Compliance; No Pass-Through Representations and Warranties; PII.
6.1. Publisher is solely responsible for the development, operation, and maintenance of the Publisher Service and for all Publisher Materials and other information and materials that appear on the Publisher Service and any associated service offerings of Publisher. Without limiting the generality of the foregoing and unless Billing Revolution expressly grants an exception in writing, the Publisher hereby represents, warrants and covenants that the Publisher Service, Products and Publisher Materials do not and will not (a) violate or infringe, or contain or link to any materials that violate or infringe, the rights of Billing Revolution or any third party; (b) contain or promote obscene or illegal products, services, or materials; (c) promote discrimination based upon race, sex, religion, nationality, disability, age, or sexual orientation, or (d) violate any applicable laws governing the collection or storage of personally-identifiable information or marketing communications, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, CTIA MMA best practices guidelines posted at http://www.mmaglobal.com/bestpractices and all other laws and regulations governing email and SMS/text message communications. Publisher must not otherwise commit any act or omission in connection with Publisher’s use of the Service that may subject Billing Revolution or its licensors or suppliers to legal liability of any nature.
6.2. Publisher shall not, expressly or by implication, make or pass on to any third party (including without limitation Merchants or End Users) any representation or warranty regarding the Service, the Platform, Transactions, or otherwise regarding Billing Revolution or its products or services. Publisher must not make any statement, whether on the Publisher Service or otherwise, that contradicts, or is inconsistent with, the foregoing. Billing Revolution (a) shall not be responsible or held liable for the acts or omissions of any third party service providers to Publisher, and (b) makes no representations, warranties or covenants as to the performance of such third parties.
6.3. Publisher understands and agrees that the Publisher Service, or relevant potions thereof, may need to be approved by Billing Revolution and other third parties before Publisher may use Links on the Publisher Service. Billing Revolution will notify Publisher if approval is required, at which time Publisher must, if applicable, immediately cease using the applicable Links until the time, if any, that Billing Revolution notifies Publisher that approval has been given. Billing Revolution and applicable third parties may grant or withhold approval of the Publisher Service, and applicable portions thereof, in their sole discretion.
6.4. Publisher will conspicuously post and maintain for its Merchants (as applicable) and End Users a PCI-compliant statement of its privacy practices specific to the Publisher Service that discloses Publisher’s use, collection, and disclosure of personally identifiable information (including, without limitation, telephone numbers) of End Users, and will maintain a link to such statement on the Publisher Service. Publisher will comply with such policy and, further, will comply with all applicable laws and Billing Revolution Policies regarding personally identifiable information. All documents, files, data or other information which personally identifies End Users or their individual transaction, usage or billing activity or which specifically identifies Publisher’s transaction, usage or billing activity shall be deemed Confidential Information of Publisher and shall be owned by Publisher. Notwithstanding the foregoing, Publisher hereby grants to Billing Revolution a limited, non-exclusive, perpetual, worldwide right and license to use and disclose the foregoing information in anonymized, aggregated form and combine such information with similar information from other customers for the purpose of publishing statistics, trends, benchmarks, returns on investment, and analyses to third parties, including without limitation analysts, customers, potential customers, and consultants. Such aggregated statistical information shall not identify Publisher or any End User with specificity or by implication.
7. Term and Termination
7.1. The term of this Agreement will commence upon the Effective Date and will continue until terminated in accordance with this Agreement.
7.2. Billing Revolution may suspend its performance under this Agreement at any time upon notice to Publisher.
7.3. In addition to the termination rights of either party specified elsewhere in this Agreement, a party may terminate this Agreement with or without cause at any time upon reasonable notice to the other party.
7.4. On and after termination of this Agreement, (a) any provision which, by its nature or express terms should survive, including without limitation Sections 1, 6.1, 7.4, 8-11 and 13 hereof, will survive such termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Billing Revolution will have no obligation to perform under this Agreement.
8. Intellectual Property. Publisher will not have any rights to the Platform, the Service, or any Billing Revolution Materials except as expressly granted in this Agreement, and Billing Revolution and its licensors reserve all right, title, and interest (including, without limitation, all intellectual property rights) in and to such properties. Billing Revolution grants to Publisher a nonexclusive, revocable right to use Billing Revolution Materials solely for inclusion on the Publisher Service and solely for using Links and promoting Products during the term of this Agreement. Publisher must not use, modify, copy, distribute, display, or make available any Billing Revolution Materials for any other purpose. Publisher must follow all guidelines for the use of the trademarks of Billing Revolution and its licensors, as those guidelines may change from time to time. The license granted in this Section will terminate upon any termination of this Agreement. Billing Revolution may revoke the license granted in this Section at any time by providing written notice to Publisher.
9. Confidentiality. Billing Revolution and Publisher each agree to retain in confidence all non-public information, trade secrets and know-how disclosed pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). Notwithstanding the foregoing, the terms and conditions of this Agreement, the Platform, the Service, the Publisher Service, all related documentation provided by either party to the other, and the results of all evaluations, use and testing of the Platform by the parties, shall constitute Confidential Information without need for any marking or designation. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, affiliates and agents as is reasonably required in connection with the exercise of its rights and obligations under this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order. Notwithstanding the foregoing, either party may disclose the existence and terms of this Agreement: (x) to legal counsel of the parties; (y) in confidence, to accountants, banks, and financing sources and their advisors solely for the purposes of a party’s securing financing; or (z) in connection with the enforcement of this Agreement or rights under this Agreement. Within 10 days after receipt of a written request from a party, the other party shall return or destroy, at the other party’s expense, all tangible and intangible manifestations of the requesting party’s Confidential Information, and deliver to the requesting party a certification, in writing and signed by an officer of the other party, that such materials have been returned or destroyed, and their use discontinued.
10. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY PROVIDES WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PARTIES RESPECTIVE SERVICES, AND BOTH PARTIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, BILLING REVOLUTION PROVIDES NO WARRANTY TO END USERS OR PUBLISHER CUSTOMERS, VENDORS OR AGENTS PURSUANT TO THIS AGREEMENT AND ANY REPRESENTATION TO THE CONTRARY SHALL BE NULL AND VOID.
11. Indemnification.
11.1. Publisher shall indemnify, defend and hold harmless, at its own expense, Billing Revolution and its affiliates, officers, directors, agents, employees, customers, successors and any assigns from and against any liability, damage, expense, loss, litigation costs or settlement payment, or other cost or payment (including reasonable outside attorneys’ fees and costs) arising out of or related to a claim, suit, proceeding, or event to the extent arising from the breach by Publisher of its representations, warranties or obligations hereunder.
12. Limitations of Liability. EXCEPT FOR THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS) OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. EXCEPT FOR THE FEE PAYMENT, INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY PUBLISHER TO BILLING REVOLUTION HEREUNDER DURING THE 3 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
13. Miscellaneous Provisions.
13.1. Changes to Billing Revolution Policies. Notwithstanding anything to the contrary herein, Billing Revolution may modify any of its Billing Revolution Policies, at any time and in its sole discretion. In such event, Billing Revolution will provide Publisher with written notice (which written notice, for purposes of this Section, includes notice given by email to Publisher’s email address on file or via the Merchant Account Tool) that the applicable policies have been modified. Such notice will either describe the modifications or direct Publisher to a URL at which Publisher may review the modified policies. All modifications will be deemed incorporated into this Agreement immediately upon receipt by Publisher of such notice. IF ANY MODIFICATION TO THESE TERMS AND CONDITIONS OR RELATED BILLING REVOLUTION POLICIES IS UNACCEPTABLE TO PUBLISHER, PUBLISHER’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. PUBLISHER’S CONTINUED USE OF THE SERVICE FOLLOWING A MODIFICATION AS DESCRIBED IN THIS SECTION WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13.2. Assignment. Neither party may assign its rights, duties, or obligations under this Agreement without the other party’s prior written consent, except to a successor entity in connection with a merger, consolidation or sale of all or substantially all of such party’s assets. If consent is given, this Agreement will bind the applicable party’s successors and assigns. Any attempt by either party to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
13.3. No Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.4. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such party's reasonable control (including, without limitation, any act or failure to act by the other party).
13.5. Cumulative Rights. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
13.6. Independent Parties. For the purposes of this Agreement, Billing Revolution and Publisher are independent contracting parties. Nothing in these Terms and Conditions will be construed as creating an agency relationship, an employer-employee relationship, a partnership, a joint venture, or an obligation to form any entity or any of the foregoing relationships between the parties.
13.7. Governing Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the internal laws of the State of Washington.
13.8. Notice. Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation, through the Merchant Account Tool or personal delivery, at the addresses set forth for each party in the signature page to this Agreement. Notice is effective: (a) when delivered personally, (b) when sent by email (where email notice from Publisher is authorized explicitly under these Terms and Conditions or in any applicable Billing Revolution Policies) or when sent through the Merchant Account Tool; (c) three business days after sending by certified mail, (d) on the business day after sending by a nationally recognized courier service, or (e) on the business day after sending by facsimile with electronic confirmation to the sender. A party may change its notice address by giving notice in accordance with this section.
13.9. Severability. If any term of this Agreement is held to be invalid, void or unenforceable, then the remaining terms of this Agreement will not be affected and will be valid and enforceable to the fullest extent permitted by law.
13.10. Entire Agreement. This Agreement represents the entire agreement between Billing Revolution and Publisher, and supersedes any other agreements between Billing Revolution and Publisher relating to the subject matter hereof. Subject to Section 13.1, any changes to this Agreement must be in writing and signed by each party.

EXHIBIT A
SALES TAX MODULE ADDENDUM
Billing Revolution offers a state sales tax module as part of the Service (the “Sales Tax Module”), which calculates and bills sales tax for each Transaction using sales tax data provided by Billing Revolution’s tax service provider, Avalara, Inc. (“Avalara”). If Publisher has elected to employ the Sales Tax Module for its End Users’ Transactions during the sign-up process, the terms and conditions set forth in this Exhibit shall apply and are part of the Agreement.

1. Responsibilities of Billing Revolution; Pricing; No Warranties.

(a) Billing Revolution shall deploy and operate the Sales Tax Module as part of the Service in material accordance with the specifications therefor. Billing Revolution shall calculate and collect sales tax on Transactions (in reliance on Avalara’s systems and data) and remit such amounts to Publisher consistent with the remittance terms of the Agreement.

(b) Billing Revolution shall apply an incremental per Transaction fee to cover Billing Revolution’s costs for the Sales Tax Module (the “Incremental Fee”), which Incremental Fee is in addition to any other per-Transaction or other fees set forth in the Agreement.

(c) The parties acknowledge that nothing herein or under the Agreement constitutes tax advice to any party from any other party or its representatives. The parties acknowledge that Billing Revolution uses software and data provided by Avalara to calculate taxes and operate the Sales Tax Module on a pass-through-cost and as-is basis. Billing Revolution will use commercially reasonable efforts to cause Avalara to ensure that the Avalara data is current and accurate; however (a) Billing Revolution does not otherwise guarantee or warrant the accuracy of such data, and (b) the services underlying the Sales Tax Module shall be deemed excluded from the definition of Service under the Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, BILLING REVOLUTION PROVIDES NO WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SALES TAX MODULE, AND BILLING REVOLUTION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

2. Responsibilities of Publisher.

(a) As between the parties and consistent with the Agreement, Publisher shall be solely responsible for the accurate and timely reporting and payment of all sales taxes attributable to Transactions in all jurisdictions.

(b) As between the parties, Publisher shall be solely responsible for providing to Billing Revolution complete and accurate End User and/or Transaction situs, nexus and any other information germane to the categorization, assessment, collection, reporting and payment of sales tax in all applicable jurisdictions.