Terms and Conditions

These Terms and Conditions (the "Ts & Cs") are published by Loop Payments, Inc., a Delaware corporation, with offices located at 222 North LaSalle, Suite 1510, Chicago, Illinois 60601 ("Loop"), and govern the provision and use of the Services. These Ts & Cs are incorporated into and form part of the Agreement between Loop and Customer. Capitalized terms used but not defined herein have the meanings given to them in the Agreement. By entering into the Agreement, accessing, or using the Services, Customer agrees to be bound by these Ts & Cs as in effect at the time of such access or use. Loop may update these Ts & Cs in accordance with Section 11(q).

1. Definitions.

(a) “ACH” means Automated Clearing House, the bank transfer payment network managed by members of NACHA.

(b) “Additional Terms” means any additional terms or policies to which Loop may require Customer to agree if Loop releases new products, features, integrations, or otherwise to enhance and improve the scope and quality of the Services.

(c) “Affiliate” means an entity controlling, controlled by, or under common control with a Party.  

(d) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Loop in an aggregate and anonymized manner, including without limitation, statistical and performance information related to the provision and operation of the Services, Customer’s rate and shipment data.

(e) “Agreement” means the Agreement entered into between Customer and Loop detailing the Services, which incorporates these Ts & Cs and the Payment Service Terms.

(f) “Authorized User” means Customer’s employees  who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement.

(g) “Beneficial Owner” means any natural person or legal entity that owns or controls more than 25% of Customer’s equity shares or voting stock.

(h) “Beta Services” means beta or pre-release products or services, which may contain features and functionality that are incomplete or subject to substantial change or discontinuation in Loop’s discretion.

(i) “Business Day” means any Monday, Tuesday, Wednesday, Thursday, or Friday, but does not include federal holidays.

(j) “Control Person” means Customer’s executive officers, senior managers, or any other individual who otherwise has significant responsibility for the control, management, or direction of Customer’s business.

(k) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

(l) “Customer Partner” means any financial institution or other payment service provider engaged directly by Customer to provide one or more Payment Services.

(m) “Documentation” means Loop’s user manuals, handbooks, and guides relating to the Services, Loop Platform or Payment Services provided by Loop directly or indirectly to Customer or its staff either electronically or in hard copy form/end user documentation relating to the Services available.

(n) “Funding Account” means a bank account, card account, or source of funds by Customer to fund payments made via the Payment Services, including currency stored in such account.

(o) “Loop IP” means the Services, Loop Platform, Beta Services, the Documentation, Feedback, and any and all intellectual property provided to or otherwise made available to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Loop IP includes Aggregated Statistics and any information, data, or other content derived from Loop’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

(p) “Loop Platform” means Loop’s website located at www.loop.com, along with the related software, applications, documentation, manuals, guides, and other resources.

(q) “Notice” means any physical or electronic communication, or legal notices related to the Agreement that are provided to Customer, through text or SMS, email, Customer Loop Account, or by other means.

(r) “Payment Service Terms” means, where and as applicable, the terms and conditions to the Payment Services set forth on Exhibit A attached hereto and incorporated herein by reference and any required by any Customer Partners.

(s) “Payment Services” means the payment service of paying Customer carrier shipping bills via ACH transfer, wire transfer, paper check, credit card and any other payment service offered by Loop.

(t) “Personal Data” means any information that identifies, relates to, or could reasonably be linked to an individual, including any “personal information,” “personal data,” or similar terms as defined under applicable data protection laws, that is submitted or is provided to or obtained by Loop to provide or administer the Services.

(u) “Prohibited Persons” means an individual or organization that is subject to sanctions in the United States, identified on any lists maintained by OFAC or the U.S. Department of State, or is subject to any law, regulation, or other list of any government agency that prohibits or limits Loop from providing the Services to such person or from otherwise conducting business with the person.

(v) “Services” means the software-as-a-service offering, professional services and consulting and Payment Services described in the Agreement.

(w) “Third-Party Products” means any third-party products provided with or incorporated into the Services.

2. The Loop Services.

(a) Overview. Loop provides Services through the Loop Platform that allows shipping companies and third-party logistics providers to: (a) centralize, digitize, and standardize shipment data from multiple sources and platforms, (b) control costs by identifying and correcting discrepancies in shipment data, and analyzing shipment data patterns; (c) create flexible payment workflows to orchestrate invoice payments and make payouts; and (d) manage cash flow by accessing invoice financing. We may restrict the Services available to you through the Loop Platform in our sole discretion. The software underlying the Services will be hosted on a server under the control or direction of Loop.

3. Access and Use.

(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of the Agreement, Loop hereby grants Customer a non-exclusive, non-transferable right to access and use the Services and the Documentation during the Term (except in compliance with Section 12(g)), solely for use by Authorized Users and for internal business purposes in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Loop shall provide to Customer the necessary log-in credentials to allow Customer to access the Services. Loop may provide the Services through Loop’s Affiliates or third-parties engaged by Loop. Nothing in the Agreement requires Loop to exclusively perform Services for Customer and Loop is authorized to perform services for any third-party.

(b) Documentation License. Subject to the terms and conditions contained in the Agreement, Loop hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.

(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Customer shall not at any time (and shall not permit any Authorized Users to) directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services,  Documentation, or Loop IP to any third-party; (iii) modify, create derivative works from, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) register, attempt to register, or claim ownership in Loop IP or portions of Loop IP;  or (vi) use the Services or Loop IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws.  Customer shall prevent any unauthorized use of the Services or the Loop IP and will promptly notify Loop in writing of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.

(d) Reservation of Rights. Loop reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Loop IP.

(e) Suspension. Notwithstanding anything to the contrary in these Ts & Cs, Loop may (in its sole discretion and without notice to Customer) temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Loop reasonably determines that (A) there is a threat or attack on any of the Loop IP; (B) Customer’s or any Authorized User’s use of the Loop IP disrupts or poses a security risk to the Loop IP or to any other customer or vendor of Loop; (C) Customer, or any Authorized User, is using the Loop IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Loop’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Loop has suspended or terminated Loop’s access to or use of any third-party services or products required to enable Customer to access the Services or Loop to otherwise provide the Services; or (iii) in accordance with Section 5(a)(iv) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Loop shall use commercially reasonable efforts to provide written notice (which may be via email) of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Loop shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Loop will have no liability for any damage, liabilities, losses (including any loss of data, profits or any other type of losses of any kind), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

(f) Access to the Services. By entering into the Agreement, applying for an Account or by otherwise accessing and using the Services, Customer represents and warrants to Loop that: (a) Customer is a legal entity in good standing in the state of Customer’s formation and all jurisdictions in which it conducts business; (b) neither Customer nor any of Customer’s Control Persons are a Prohibited Persons; (c) Customer has not previously been suspended from or removed from using the Services, (d) all information Customer provided to Loop was current, accurate, and complete when delivered and remains accurate and complete; and (e) Customer has reviewed the Agreement and all terms incorporated by reference and the obligations set forth in the Agreement are Customer’s legal, valid, and binding obligations, and enforceable against Customer in accordance with the Agreement and applicable law. Loop performs the Services under the direction and for the benefit of Customer. Customer shall be responsible for the selection of third parties with whom Loop will process payments and for complying with the applicable law governing international trade, including the laws and regulations related to economic sanctions, export controls, and anti-money laundering.

(g) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, Loop may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Loop and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Loop. Customer acknowledges that Loop may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Loop may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

(h) Prohibited Activities. Customer may not use Customer’s Loop Account or the Services for: (a) any purpose that is illegal, unlawful or prohibited by these Ts & Cs, the Agreement; (b) transactions involving any organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State; (c) any third parties other than Customer; or (d) any purpose not related to the Customer’s business. Loop may limit Customer’s use of certain Services or require that Customer provide additional information to open or maintain Customer’s Loop Account if Loop suspects Customer is or may be engaged in any prohibited activities.

(i) QuickPay. If Customer is a Shipper or a 3PL, Customer can use the QuickPay feature to take advantage of discounts on unpaid invoices offered by carriers, 3PLs, and other suppliers (“Suppliers”) by paying the invoice before the due date (each, a “Dynamic Discount”). If Customer wants to apply a Dynamic Discount to an unpaid invoice, or apply a Dynamic Discount to all future invoices for a Supplier, Customer must notify Loop in writing at least five (5) Business Days prior to the date on which an eligible payment is due and Loop has confirmed in writing receipt of same. The amount of the Dynamic Discount will be automatically calculated by Loop based on the Dynamic Discount terms in the relevant invoice or based on other information Customer provide to Loop (such as applying a Dynamic Discount to all invoices for a given Supplier). Loop will make commercially reasonable efforts to ensure that Customer receives the benefit of all Dynamic Discounts requested by Customer, but Loop is not responsible for any failure to receive such Dynamic Discount or for any other losses that result from: (i) errors or omissions in the Dynamic Discount information Customer provides to Loop; (ii) Loop did not confirm such Dynamic Discount in writing; (iii) Loop’s failure to timely configure or apply the Dynamic Discount to an invoice prior to the invoice due date; (iv) the failure of a Customer Partner to process a payment by the invoice due date; or (iv) for any other reason not within the reasonable control of Loop. Further, the amount of any Dynamic Discount Customer fails to receive will be considered indirect damages under  the Agreement (including, for clarity, these Ts & Cs).

(j) Factor Relationship Management. Customer can use the Loop Platform to manage payments through Customer Partners or to any other third-party financial partners, such as invoice factoring companies. To enable payments to a third-party financial partner, Customer must accurately and completely input the third-party financial partner’s organization data (“Partner Data”) in Customer’s Loop Account or via the Loop API at least five (5) Business Days prior to the due date of the first payment to the third-party financial partner. Partner Data includes: (i) the third-party financial partner’s bank account information if available, (ii) primary contact information, mailing and billing address; (ii) a copy of the Notice of Assignment by the original payee to the third-party financial partner; and (iii) a copy of the Letter of Release from any prior third-party financial partners if applicable. If Customer has contracted with Loop to input Partner Data and enable payouts to third-party financial partners on Customer behalf, Loop will make reasonable efforts to verify that the Letter of Release from a previous third-party financial partner is legitimate by contacting that partner for confirmation. Loop will make commercially reasonable efforts to ensure timely payments to Customer third-party financial partners, but Loop is not responsible for losses Customer incurs that result from: (A) errors or omissions in the third-party financial partner information Customer provide Loop; (B) Customer’s failure to notify Loop in a timely manner that Customer would like Loop to make payments to third-party financial partners through Customer Loop Account; (C) Loop’s failure to timely configure a payment to a third-party financial partner; (D) the failure of a Customer Partner to process a payment to a third-party financial partner by the invoice due date; or (E) for any other reason beyond the reasonable control of Loop.

(k) Content. Information provided on the Loop Platform and in other communications from Loop (“Content”) is for informational purposes only. Any Content Loop provides about the law, compliance, or other legal components of the Services is for general information purposes only and shall not be considered legal advice. Content Loop provides is intended to be reliable, but it may not always be accurate, complete or current and Customer is obligated to verify all information before relying on the same. Loop may change or update Content from time to time without notice to Customer. Customer should verify all Content on Loop’s website and in connection with the Loop Platform and in other communications from Loop before relying on it. Customer is solely responsible for Customer’s decisions based on Content provided on the Loop Platform, in connection with the Services and in other communications from Loop, and Loop have no liability for such decisions. Content Loop provides on the Loop Platform, through the Services, and in other communications to Customer may contain third-party content or links to third-party sites and applications. Loop does not control any such third-party content, sites, or applications, and Loop is not responsible or liable for the availability, accuracy, completeness, legality, or reliability of third-party content, or for damages, losses, failures, or problems caused by, related to, or arising from any third-party content or the products or practices of any third parties.

4. Customer Responsibilities.

(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer and its Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. The terms of the Agreement are applicable to Authorized User’s use of the Services and Customer shall be responsible for Authorized Users compliance with such provisions. Customer also shall be responsible for compliance by Affiliates unless any such entity executes a written addendum to the Agreement agreeing to be bound to the terms and conditions of the Agreement, (“Affiliate Addendum”). Customer is solely responsible for all invitations to access the Services initiated by Customer or its Authorized Users, including any losses, damages, or unauthorized access resulting from such invitations, regardless of whether Loop performed identity or business verification in connection with such invitations. The term “Customer” shall mean the Customer identified above and its Affiliates.  

(b) Third-Party Products. Loop may from time to time make Third-Party Products available to Customer. For purposes of the Agreement, such Third-Party Products are subject to their own terms and conditions and any applicable flow-through provisions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

(c) Administrators and Authorized Users. Administrators may: (a) add, remove, or manage additional Administrators or Authorized Users; (b) view reports; or (c) perform other tasks on Customer’s behalf. Administrators are responsible for monitoring Customer’s Loop Account activity. Administrators must ensure that each Authorized User only takes those actions that such Authorized User is authorized by the Customer to take. “Administrator” means a Control Person designated by Customer to onboard Authorized Users to use the Services, and, if necessary, to configure and maintain a Loop Account for such Authorized Users.

(d) Responsibility for Use.

(i) Customer is solely responsible and liable for: (a) all losses, costs, expenses, fines, or other charges imposed by Loop or incurred by Customer related to, resulting from, or arising out of: (i) any breach or violation by an Administrator or Authorized User’s breach of the Agreement or applicable law; or (ii) any actions or failure to act on the part of Administrators or Authorized Users to access or monitor Customer’s Loop Account, to initiate payments, or any other action taken by an Administrator or Authorized User on Customer’s behalf; (b) ensuring that Authorized Users are aware of and agree to comply with the Agreement and all applicable laws in connection with their use of the Services and Loop Platform; and (c) obtaining appropriate consents and authorization to provide the Personal Data of Beneficial Owners, Control Persons, and Authorized Users to Loop, and ensuring that such persons are aware of and have reviewed the Loop Privacy Policy and understand how Loop processes their Personal Data.  

(ii) Customer acknowledges and agrees that the Services operate on or with or use of application programming interfaces (“APIs”) or other services operated or provided by third parties (“Third Party Services”). Loop is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Customer is solely responsible for procuring all rights necessary for it to access Third-Party Services and for complying with any applicable terms or conditions thereof. Loop does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a Third Party Services provider is solely between Customer and such Third Party Services provider and is governed by such Third Party Services provider’s terms and conditions.

(e) Loop Account Security. Customer will implement administrative, procedural, and technical controls to safeguard the privacy, confidentiality, and security of Customer’s computer systems and the Loop Account, including protecting and securing Customer’s web browsers, mobile devices, and anything else Customer uses to access the Services. Customer will: (a) only provide access to Authorized Users; (b) closely and regularly monitor the activities of Authorized Users who access the Services; and (c) ensure that each Authorized User has their own unique set of credentials, keeps those credentials secure, do not share those credentials with any other person or third party, and does not reuse credentials from other services. Administrators are responsible for disabling Authorized User’s access and limiting Authorized User’s permissions where appropriate, such as in cases where an Authorized User’s Loop Account has been compromised or misused or upon the Authorized User’s cessation of having a need to access such account (including, without limitation, changes in job duties or termination). Both Administrators and Authorized Users are responsible for promptly notifying Loop in writing of any unauthorized access to or use of the Loop Account or Services.

(f) Payment Services and Customer Liability. If Customer uses the Payment Services to make or to receive payments, or to access any other financial service provided by one (1) or more Customer Partners, Customer agrees to the applicable Payment Service Terms located on Exhibit A hereto and any applicable Customer Partner terms. Each time Customer accesses the Services to use the Payment Services, Customer is expressly authorizing Loop  and Customer Partners to act on the instructions Loop receives from Customer’s Authorized Users while such Authorized Users are logged in to Customer Loop Account, and any actions Loop takes on Customer behalf based on the payment instructions Loop receives from Customer will have the same legal effect as instructions physically signed by Customer. Loop reserves the right to block transactions or any other actions Customer authorizes through the Payment Services if: (a) the Services or the Payment Services are not working properly; (b) Loop or Customer Partners are unable to carry out Customer instructions due to circumstances beyond Loop’s reasonable control; (c) Customer’s Loop Account is subject to legal process or other lawful restrictions that prevent Loop from carrying out Customer’s instructions; (d) Customer’s instructions are incomplete or inaccurate, or Customer does not follow the procedures in these Ts & Cs or any of the Payment Service Terms; (e) Customer’s Loop Account credentials have been reported lost, stolen, or otherwise compromised, if Loop canceled or disabled Customer’s credentials, or if Loop has disabled Customer Loop Account; (f) Loop reasonably suspects that Customer or someone else is using or accessing Customer’s Loop Account for fraudulent or illegal purposes; or (g) Loop determines in its sole discretion that any individual payment is unauthorized. Please review the Payment Service Terms for information about additional restrictions on use of the Payment Services. Neither Loop nor any third-party that Loop utilizes to perform the Services are liable to Customer or to any of Customer’s Suppliers for any losses Customer or they incur due to any failure by Customer to pay any amounts Customer owes in a timely manner or in an incorrect amount while using the Payment Services.

5. Fees and Payment.

(a) Fees. Customer shall pay Loop the fees (“Fees”) as set forth in the Agreement without offset or deduction. Customer shall make all payments hereunder in US dollars within thirty (30) days of receipt of invoice. If Customer fails to make any payment when due, without limiting Loop’s other rights and remedies: (i) Loop may charge Customer interest on the past due amount for Fees not paid within sixty (60) days of receipt of such invoice at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) the late fee identified in the Agreement (if any); (iii) Customer shall reimburse Loop for all reasonable costs incurred by Loop in collecting any late payments or interest, including attorneys’ fees, expert fees, professional advisor fees, court costs, and collection agency fees; and (iv) if such failure continues for forty-five (45) days or more, Loop may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(b) Fees for Renewal Term. Loop may adjust the Fees no more frequently than once every twelve (12) months commencing on the first anniversary of the Effective Date, upon no fewer than thirty (30) days written notice to Customer.  

(c) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Loop’s income.

(d) Invoice Disputes. If Customer disputes any portion of an invoice in good faith, Customer shall (i) pay the undisputed portion of the invoice when due, and (ii) provide Loop with written notice of the dispute within thirty (30) days of receipt of the invoice, including a reasonably detailed description of the basis for the dispute. The Parties shall negotiate in good faith to resolve the dispute within thirty (30) days of Loop’s receipt of Customer’s dispute notice. Customer shall not be deemed in default, and Loop shall not suspend Services or charge interest, with respect to any disputed amounts during the pendency of such good-faith dispute resolution efforts, provided Customer has paid all undisputed amounts when due. If the Parties are unable to resolve the dispute within such thirty (30) day period, either Party may pursue any remedies available under the Agreement.

6. Confidential Information.

(a) Definition of Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive, proprietary information, or any information not generally available to the public, whether directly or indirectly, orally or in written, electronic, or other form or media, or otherwise overheard or observed by inspection of tangible objects, whether or not marked, designated, or otherwise identified as “confidential”, “proprietary” or with some similar designation and shall include information relating to Loop’s financial data, employee information, coding rules, process controls and procedures, software, and related technology used by Loop to provide the Services under the Agreement, audit results, and passwords (collectively, “Confidential Information”). Confidential Information includes information that by its very nature would reasonably be expected to be considered confidential by the disclosing Party.

(b) Exclusions. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure, as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party, as shown by the receiving Party’s files and records immediately prior to the time of disclosure; or (d) independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.

(c) Obligations and Permitted Disclosures. During the Term of the Agreement and for a period of three (3) years after termination or expiration, the receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, representatives or agents (including parent corporations, subsidiaries or affiliates), who (a) have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, and (b) are bound by terms of confidentiality no less restrictive than those set forth herein, and each Party remains responsible for any disclosure by such individuals.

(d) Compelled Disclosure. Notwithstanding the foregoing, receiving Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the receiving Party making the disclosure pursuant to the order shall, to the extent not legally prohibited, first have given written notice to the other Party.  The receiving Party shall reasonably  cooperate, to the extent practicable, with the disclosing Party, at the disclosing Party’s expense, in order to avoid or minimize such disclosure and/or obtain confidential treatment thereof or other protective order; and (ii) any such disclosure shall be limited to that portion of the Confidential Information that, in the opinion of counsel for receiving Party, is required to be disclosed.

(e) Return or Destruction. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies, except for copies electronically archived in accordance with automated security and/or business recovery procedures (which will nonetheless remain subject to the terms of confidentiality), and certify in writing to the disclosing Party that such Confidential Information has been destroyed.  

(f) Aggregated Statistics. Notwithstanding the preceding, Loop may provide Customer Data and Aggregated Statistics to its contractors who are under similar obligations of confidentiality, and who agree to use such information only for the purpose of performing the Services.  Subject to Loops’ obligations to certain carriers, Customer hereby permits Loop to include all or some of Customer’s rate and shipment data in the Aggregated Statistics data which Loop uses to provide Services to Customer and to third parties, provided the Aggregated Statistics shall be anonymized with respect to Loop’s customer’s and their customers.

7. Intellectual Property Ownership; Beta Services; Feedback.

(a) Loop IP. As  between Customer and Loop, Loop owns all right, title, and interest, including all intellectual property rights, in and to the Loop IP and, with respect to Third-Party Products, the applicable third-party provider owns all right, title, and interest, including all intellectual property rights, in and to Third-Party Products.

(b) Customer Data. As between Loop and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Loop a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, display, distribute, sublicense (to service providers and subcontractors), and create derivative works from Customer Data for the purposes of (i) providing,  operating and maintaining the Services; (ii) improving, enhancing and developing the Services and Loop’s business operations, including through testing, research, internal analytics, and product development; (iii) generating and using Aggregated Statistics; and (iv) any other purpose described in these Ts & Cs. The manner in which Loop processes Customer Data is further described in the Loop Privacy Policy (available at www.loop.com/legal/privacy-policy). Customer grants Loop a royalty-free perpetual, irrevocable license to retain and use Customer Data in anonymized or aggregated form that does not identify Customer or any individual.

(c) Beta Services. Loop may release Beta Services (as defined below) to test new products, features, and programs, and Loop may make, in its sole discretion, these Beta Services available to Customer to get Customer feedback. Loop may change or discontinue Beta Services at any time. Beta Services are confidential until Loop publicly announces the products, features, or programs, and if Customer use Beta Services, Customer agrees to keep information about the Beta Services confidential. Any Beta Services are provided to Customer “AS-IS” and without any express or implied warranties or any kind.

(d) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Loop by mail, email, telephone, verbally, or otherwise, suggesting or recommending changes to the Loop IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Loop is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Loop on Customer’s behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Loop is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Loop is not required to use any Feedback. Loop will not compensate or credit Customer for Feedback Customer provided to Loop.

8. Limited Warranty and Warranty Disclaimer.

(a) Loop does not represent that the Services will be error free. In the event of an overpayment or payment error, Loop will work with the Customer and the carrier to obtain a refund or credit for the Customer for such overpayment which may include filing a claim for the refund of the overpayment. Under no circumstance shall Loop be liable for the amount of the overpayment or error, or for the cost of recovering such overpayment or error beyond Loop’s own costs. The foregoing shall be Customer’s sole and exclusive remedy for an overpayment or payment error and shall be available only if Loop is notified in writing within ninety (90) days of the completion of the applicable Service. THE FOREGOING WARRANTY DOES NOT APPLY, AND LOOP STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(b) ALL LOOP IP IS PROVIDED “AS IS” AND ON AN “AS-AVAILABLE BASIS” AND LOOP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LOOP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE OR ANY OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING CUSTOMER LOOP ACCOUNT AND CUSTOMER’S USE OF THE SERVICES. LOOP MAKES NO WARRANTY OF ANY KIND THAT THE LOOP IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, THE INFORMATION CUSTOMER SEE IN CUSTOMER LOOP ACCOUNT IS ACCURATE OR UP TO DATE, THE SERVICES WILL MEET CUSTOMER PARTICULAR NEEDS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE. LOOP IS NOT OBLIGATED TO CORRECT ANY DEFECTS IN THE SERVICES, EVEN IF CUSTOMER REPORT THEM TO LOOP.

9. Indemnification.

(a) Loop Indemnification.

(i) Loop shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees), expenses, fines, penalties, or damages (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Ts & Cs, infringes or misappropriates such third party’s intellectual property rights in any jurisdiction where Customer is authorized to use the Services under this Agreement, provided that Customer promptly notifies Loop in writing of such Third-Party Claim, cooperates with Loop, and allows Loop sole authority to control the defense and settlement of such Third-Party Claim.

(ii) If a Third Party-Claim is made or appears possible, Customer agrees to permit Loop, at Loop’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Loop determines that neither alternative is reasonably available, Loop may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Loop or authorized by Loop in writing; (B) modifications to the Services not made by Loop; (C) Customer Data; (D) Third-Party Products; or (E) Customer’s acts or omissions.

(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Loop’s option, defend Loop (and its owners, officers, managers, employees, contractors and agents) (collectively, the “Loop Indemnified Parties”) from and against any Losses resulting from any Customer’s or any of its owners, officers, managers, employees, Authorized Users, Administrators, representatives, agents or contractors: (i) negligence or willful misconduct; (ii) breach of the Agreement; (iii) use of the Services including any Payment Services in a manner not authorized by the Agreement (including these Ts & Cs or Payment Service Terms); (iv) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Loop or authorized by Loop in writing; (v) modifications to the Services not made by Loop; (vi) fines or penalties imposed by OFAC, Nacha, or any other organization which are incurred because of Customer’s non-compliance; (vii) breach by Customer of a warranty made by Loop under the Nacha Rules on behalf of Customer or a breach by Customer of any warranties made by Customer; (viii) persons enforcing their indemnity rights against Loop because of Customer’s failure, as an Originator, to perform its obligations under the Nacha Rules; or (ix) Customer data that infringes or misappropriates any third party’s intellectual property rights or violates applicable law. Customer may not settle any Third-Party Claim against Loop unless Loop consents in writing to such settlement, and further provided that Loop will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND LOOP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  

(d) Limitations of Liability. IN NO EVENT WILL LOOP (OR ANY OF ITS OWNERS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES) BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR THESE TS & CS TO CUSTOMER OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE UNDER ANY LEGAL THEORY, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, LOSS OF USE; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE BY CUSTOMER OR ANY THIRD-PARTY, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF LEGAL THEORY OR WHETHER LOOP WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. FOR CLARITY, IN NO EVENT WILL LOOP OR ITS AFFILIATES  BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY REGARDLESS OF THE LEGAL THEORY (WHETHER IN AN ACTION IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR ANY OTHER THEORY) OR OTHER DAMAGES ARISING OUT OF: (A) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICES OR LOOP IP; (B) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE DESCRIBED OR PROVIDED TO CUSTOMER OR ANY THIRD-PARTY; (C) UNAUTHORIZED ACCESS TO CUSTOMER’S LOOP ACCOUNT, CUSTOMER’S SYSTEMS, OR CUSTOMER DATA; OR (D) ANY OTHER MATTER RELATING TO THE SERVICES DESCRIBED OR PROVIDED TO CUSTOMER, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF CUSTOMER IS DISSATISFIED WITH THE SERVICES OR WITH THE AGREEMENT,(INCLUDING THESE TS & CS, ADDITIONAL TERMS OR ANY PAYMENT SERVICE TERMS), CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IN THOSE STATES WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR INDIRECT DAMAGES IS NOT PERMITTED BY LAW, ANY LIABILITY OF LOOP, ITS OWNERS, MANAGERS, DIRECTORS, OFFICERS, REPRESENTATIVES, CONTRACTORS AND AGENTS, IN THOSE STATES IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW.  IN NO EVENT WILL LOOP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, THESE TS & CS, ADDITIONAL TERMS OR PAYMENT SERVICE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO LOOP UNDER THE AGREEMENT OR ANY AFFILIATE ADDENDUM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination.

(a) Term. The Term is identified in the Agreement.

(b) Termination. In addition to any other express termination right set forth in these Ts & Cs:

(i) Loop may terminate  the Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than forty-five (45) days after Loop’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 3(c) or 6;

(ii) either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(iii) Loop may terminate the Agreement if directed to do so by a Customer Partner, or if Loop determines in its sole discretion that continuing to provide the Services poses an unacceptable risk to Loop, Customer Partners, users, Loop’s contractors, or any third parties.

(iv) either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law ((which, if involuntary, are not dismissed within sixty (60) days); (C) makes or seeks to make a general assignment for the benefit of its creditors; (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (E) the other Party ceases to do business (in whole or in part).

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of  the Agreement, Customer shall immediately discontinue use of the Loop IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Loop IP and certify in writing to the Loop that the Loop IP 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 (and Customer’s obligation to pay such Fees survives expiration or termination of  the Agreement) or entitle Customer to any refund. Upon the commencement of each month following Customer’s notice of termination until the effective date of termination, Customer shall be billed the greater of: (i) the actual Fees incurred, and (ii) a flat monthly processing Fee equal to the average monthly Fees invoiced over the twelve (12) month period immediately preceding the notice of termination. This provision shall not apply if Customer terminates due to Loop’s uncured material breach pursuant to Section 10(b)(ii). Customer is responsible for all losses Loop incurs that were caused by Customer’s or its owners, officers, managers, employees, representatives or agents’ acts, inactions, or omissions prior to termination, and for any costs Loop may incur in the process of closing Customer’s Loop Account upon termination by Customer or Loop. If this Agreement is terminated, the Agreement, Ts & Cs, Additional Terms, and Payment Service Terms will immediately terminate (except for any sections that expressly or naturally survive termination).

(d) Survival. 1, 3(g), 5, 6, 7, 8(b), 9, and 11 survive any termination or expiration of  the Agreement. No other provisions of  the Agreement survive the expiration or earlier termination of  the Agreement.

11. Miscellaneous.

(a) Entire Agreement. This Agreement, together with these Ts & Cs, and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of  the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties to Loop at the address set forth below and to Customer as identified in the Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Ts & Cs, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. For Notice to Loop: Attn: President, 222 North LaSalle, Suite 1510, Chicago, Illinois 60601.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, insurrections, natural disasters, pandemic, epidemic, cyber-attack, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. The foregoing shall not apply to or excuse a Party’s failure to make payments when due or failure to comply with applicable law. Such Party’s performance will be excused for only so long as such Party continues to use commercially reasonable efforts to mitigate the effect and duration of such force majeure event. The Parties will promptly resume performance hereunder after the force majeure event has passed; however, if a delay continues for sixty (60) days or more, the Party not experiencing the force majeure event may terminate the Agreement without penalty upon written notice to the other party; except that termination due to a force majeure event will not extinguish Customer’s obligations to make payments when due.

(d) References to the Agreement; Order of Precedence. References to the Agreement in these Ts & Cs includes the then-applicable Ts & Cs, Additional Terms and Processing Service Terms.  For clarity, references to the Agreement includes the Ts & Cs, Additional Terms, and Processing Service Terms as a collective document. In the event of any inconsistency between the statements made in the Agreement, these Ts & Cs, Additional Terms or Payment Service Terms, the following order of precedence governs: (i) the Agreement; (ii) these Ts & Cs; (iii) Additional Terms; and (iv)  Payment Service Terms.

(e) Amendment and Modification; Waiver. Except as set forth herein, no amendment to or modification of the Agreement is  effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If Loop does not enforce, or if Loop delays enforcing any of its rights under the Agreement, Loop will not lose those rights. Loop may also decide to waive one or more of its rights without notifying Customer, but doing so does not waive Loop’s right to enforce those rights later.

(f) Direction of Client. Loop performs the Services under the direction and for the benefit of Customer. Customer shall be responsible for the selection of third parties with whom Loop will process payments and for complying with the applicable law governing international trade, including the laws and regulations related to economic sanctions, export controls, and anti-money laundering.

(g) Severability. If any provision of the Agreement or other document referenced herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or other document referenced in these Ts & Cs or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Ts & Cs or such other document so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(h) Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the foregoing, either Party may elect to resolve any dispute arising under this Agreement through binding arbitration administered by JAMS in New York, New York, in accordance with its Comprehensive Arbitration Rules, by providing written notice to the other Party within thirty (30) days of the dispute arising. The arbitrator’s decision shall be final and binding. The UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.  

(i) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Loop. Any change in the management, ownership or control of Customer will constitute a change of control requiring Loop’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. If Loop consents to such a transfer or assignment in writing, the assignee or successor must assume all of Customer’s rights, obligations, and liabilities under the Agreement and Customer’s relationship with Loop and will be bound by the Agreement. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(j) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

(k) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

(l) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(m) Non-Solicitation. Neither Loop nor Customer shall solicit for employment or employ any employee of the other party, directly or indirectly, during the Term of the Agreement and for a period of one (1) year following the termination hereof.

(n) Independent Contractors. In performing their respective duties and obligations the Agreement, the Parties are independent contractors. The Parties will not be deemed to be joint venturers, partners or employees of each other.

(o) Consent to Electronic Signature and Notices. Customer agrees that submitting Customer’s application to Loop for a Loop Account and indicating consent to the Agreement constitutes Customer’s electronic signature. Customer also agrees that Customer’s electronic consent has and will have the same legal effect as a physical signature. Customer further consents to Loop providing Notices to Customer electronically and Customer understands that this consent has the same legal effect as Customer’s physical signature. Customer may revoke this consent in writing but if Customer does so, Loop reserves the right to immediately terminate Customer’s access to the Services and to close Customer Loop Account without prior notice to Customer. Loop will provide Notices regarding certain activity and alerts electronically through Customer’s Loop Account, by email, push notification, or via text or SMS to the contact information provided to Loop by Customer’s Administrators and Authorized Users. Notices regarding payments, legal terms, and any other important Notices related to Customer’s Loop Account will be sent to certain Administrators through Customer Loop Account or email and are considered received twenty-four (24) hours after they are sent. Customer understands that Customer may not use the Services unless Customer consents to receive Notices electronically. Customer may only withdraw consent to receive Notices electronically by closing Customer’s Loop Account. Authorized Users may elect to not receive certain Notices via text or SMS, but this will limit the use of certain Services and may increase the financial risks to Customer including losses caused by lost or stolen Loop Account credentials. Loop may send text or SMS messages to Authorized Users in connection with use of credentials (such as through multi-factor authorization), to allow Loop to verify their identity, to provide other information about Customer Loop Account, and for other purposes that Loop identify and that are available through Customer Loop Account. Authorized Users are required to maintain updated web browsers, computers, and mobile device operating systems to receive Notices correctly. Authorized Users are responsible for all costs imposed by their respective Internet or mobile service providers for sending or receiving Notices electronically. Contact Loop immediately contact-Loop@loop.com if Customer is or believe Customer is having problems receiving Notices. Customer understands that Loop may randomly monitor customer service telephone conversations either for training purposes or to ensure that Customer receives accurate, courteous, and fair treatment. When Customer provides a phone number to Loop, or if Customer calls Loop from a phone number, Customer consents to accept calls from Loop to that phone number, including collection calls.

(p) Legal Process. Loop may respond to and comply with any legal order Loop receives related to Customer’s use of the Services, including subpoenas, warrants, or liens. Loop is not responsible to Customer for any losses Customer incurs due to Loop’s response to such legal order. Loop may take any actions Loop believes are required of Loop under legal orders including holding funds or providing information as required by the issuer of the legal order. Where permitted, Loop will provide Customer reasonable Notice that Loop have received such an order.

(q) Changes to these Ts & Cs. Loop may update or replace these Ts & Cs, Additional Terms, Payment Service Terms or provide other agreements governing Customer’s use of the Loop Platform or Services by providing at least thirty (30) days’ written notice to Customer prior to the effective date of any material changes. “Material changes” mean changes that materially increase Customer’s obligations, materially decrease Loop’s obligations, or materially affect Customer’s rights under the Agreement. If Customer objects to any material change, Customer may terminate the Agreement by providing written notice to Loop within thirty (30) days of receiving notice of such change, and such termination shall be effective as of the date the material change would have taken effect. Customer’s, any Administrator’s or any Authorized User’s continued use of the Services after the effective date of such changes constitutes Customer’s consent and acceptance to the applicable revised documents and any interpretation of such documents will be made to such updated documents. Any written waiver or modification that Loop provides to Customer, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification of the Agreement (or the Ts & Cs, Additional Terms or Payment Service Terms) (as each may be amended) for any other prior or future acts, events, or conditions.

(r) Marketing and Publicity. Customer hereby grants to Loop the right to identify Customer by name as a Loop client in client lists, marketing materials, and sales conversations during the Term. Loop may use Customer’s name and logo on Loop’s website in connection with identifying Customer as a user of the Services without Customer’s prior approval. For any other use of Customer’s logos, trademarks, service marks, trade names, or other proprietary marks beyond Loop’s website (including in presentations, printed materials, third-party platforms, or other marketing channels), Loop shall obtain Customer’s prior written consent, which consent shall not be unreasonably withheld. For press releases, case studies, testimonials, or other detailed promotional materials that prominently feature Customer or describe Customer’s specific use of the Services, Loop will obtain Customer’s prior written approval. All marketing rights granted herein shall terminate immediately upon expiration or termination of this Agreement.

(s) Changes to the Services. Notwithstanding the detail of the Services in the Agreement, Loop may add or remove Services or modify existing Services at any time. Some of these Services may be subject to Additional Terms. Customer acknowledges and understands that to use certain Services, Customer must agree to any Additional Terms, which will be incorporated by reference and form a part of  the Agreement. Loop does not guarantee that each of the Services will always be offered to Customer, that they will be available to Customer, or that Customer will qualify or be able to utilize any particular Service. Services will change from time to time, and certain Services may be discontinued or others may be added at our sole discretion and without notice.

(t) Counterparts; Electronic Signatures. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Signature pages delivered by facsimile or electronic mail (including pdf or electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g. www.docusign.com) to the Agreement or any document delivered in connection herewith shall be binding to the same extent as an original.

Exhibit A

Loop Payment Service Terms

These Loop Payment Service Terms (“Payment Service Terms”), set forth the terms under which Loop Payments, Inc. will provide the Customer with certain Payment Services. Capitalized terms used but not defined in these Payment Service Terms have the meanings given to them in the Terms and Conditions (the “Ts & Cs”).

By using the Payment Services or by agreeing to the Loop Ts & Cs, Customer agrees to these Payment Service Terms. By agreeing to the Payment Service Terms, Customer promises that Customer has the legal authority to agree to these Payment Service Terms on behalf of the Customer, and that Customer will comply, and will cause Customer’s Authorized Users to comply with these Payment Service Terms.

1.     Payment Services

On the condition that Customer complies with the Ts & Cs and these Payment Service Terms, Loop will provide Customer with the Payment Services to enable the Customer to make payments of its vendor invoices in connection with the Services. In performing the Payment Services, Loop will rely on the information provided by the Customer, and Loop is not responsible or liable for any errors resulting from such reliance.

To provide the Payment Services, the Customer must maintain a Funding Account on the Loop Platform and submit sufficient information as determined by Loop or any Customer Partners to enable payments to be made (“Payment Information”). The Customer is responsible for ensuring that Payment Information is complete and accurate and for ensuring that all information that the Customer provides, submits, or approves is complete and accurate. The Customer must correct any incorrect Payment Information or provide any missing Payment Information in the manner required by Loop.  

Any time that Customer submits Payment Information, the Customer represents and warrants that: (i) it has informed the recipient of the payment (the “Payee”) that the payment is subject to these Payment Service Terms; and that (1) the Payee has authorized Loop to originate payments to the Payee’s financial institution account, (2) the Payee has authorized Loop to collect and share with Customer Partners the Payee’s full name, email address, and financial information (“Payee Data”) and that use of Payee Data is subject to the Customer Partner’s applicable privacy policy, and (3) the Payee is solely responsible for the accuracy and completeness of Payee Data; (ii) Customer approves all Payment Information; (iii) no Payment Information submitted will result in Payment Orders that would violate orders administered by the Office of Foreign Assets Control; laws, regulations, and orders administered by FinCEN; or any other Applicable Laws; (iv) Customer waives and releases any claims against Loop arising out of any errors or omissions in the Payment Information which Customer has not corrected or has not requested Loop to correct in writing; and (v) any subsequent request for corrections will be special handling, and Loop may charge additional fees.

3.     Payment Orders

Loop will rely on Customer’s (or any of Customer’s staff’s) instructions to approve, release, cancel, or amend Payment Information used to create payment orders (each, a “Payment Order”). Customer remains obligated to maintain its Loop Account and Loop Account security as described in the Ts & Cs. Loop does not verify or review Payment Orders to detect errors; it is the Customer’s sole responsibility to verify the accuracy of Payment Orders. Loop has not agreed to any procedure for detecting any such errors. Customer will be bound by any Payment Order that Loop receives, provided such Payment Order was properly submitted through Customer’s Loop Account in accordance with these Payment Service Terms, and Customer will indemnify and hold Loop and the other Loop Indemnified Parties harmless from and against any Losses arising from the execution of a Payment Order.

4.     Customer Funding of Payment Orders or Authorization to Debit or Credit Customer’s Bank Account

When Customer requests to pay an invoice from its vendor, Customer will fund the Funding Account with at least the Payment Order total, including any bank fees anticipated to be incurred by Loop.  Alternatively, Customer authorizes Loop to initiate debit Entries (as defined below) to the Customer’s bank account using the routing number associated with the bank account that Customer provides to Loop in such amounts as are necessary to: (i) pay the invoice; (ii) pay any debit, correcting, or reversing Entry (as defined below) initiated that is later returned to Loop pursuant to the Payment Service Terms and the Ts & Cs; or (iii) verify the bank account through a test deposit or debit authorization. The Customer also authorizes Loop to initiate credit Entries to the bank account if Loop must return Unpaid Invoice Funds (as defined below) to Customer. These payment authorizations will remain in full force and effect until Customer provides written notice to Loop and Customer Partners terminating such authorizations in such time and such manner as to afford Loop or any Customer Partners a reasonable opportunity to act. If the Customer terminates such authorizations, Loop may be unable to provide Payment Services to Customer and will be excused from the performance of Services and Customer will not be entitled to any refund of Fees.

5.     Failed Payments

If Loop cannot successfully make a payment on Customer’s behalf to the Payee, and the funds are returned (“Unpaid Invoice Funds”), Loop will notify the Customer and provide the Customer with the appropriate details related to the Unpaid Invoice Funds. The Customer must contact Payees and/or otherwise resolve the Unpaid Invoice Funds.

6.     ACH Origination

The Customer has requested that Loop, acting as a Nested Third Party Sender under the Nacha Rules (“Third Party Sender”), permit it to initiate credit and debit ACH entries (“Entries”) to Payee’s accounts using one or more of Customer Partners, a Third Party Sender, and its partner financial institutions (each financial institution is an Originating Depository Financial Institution “ODFI”). Note that Entries are Payment Orders.

6.1     Rules. Customer is the Originator (as defined in the Nacha Rules) for each Entry and agrees to comply with the Nacha Rules, and for credit Entries that are Payment Orders, the UCC, as amended from time to time, and as both are modified by these Payment Service Terms. The Customer acknowledges that it has access to, and received a copy of, the Nacha Rules (which can also be found at Nacha.org). The Customer agrees that it will not initiate Entries that violate the laws of the United States, including, but not limited to, (i) orders administered by the Office of Foreign Assets Control; (ii) laws, regulations, and orders administered by FinCEN; and (iii) any state laws, regulations, or orders applicable to providers of ACH payment services. Without limiting Loop’s rights to terminate or suspend a Customer’s Loop Account, Loop may also terminate or suspend Customer’s ability to initiate Entries via Loop for violating the Nacha Rules, these Payment Service Terms and/or applicable law, including if a Customer Partner or the ODFI requires the Customer’s suspension or termination, if the Customer exceeds an acceptable limit in returns, or other circumstances that Loop determines is necessary.  

6.2     Transmitting Entries. The Customer authorizes Loop to transmit all Entries Loop receives from the Customer pursuant to these Payment Service Terms and to credit or debit such Entries to the specified accounts. Loop will process the Payment Information and Entries pursuant to the processing schedule identified by financial institutions. Customer is obligated to provide Loop and Customer Partners with such payment information sufficiently in advance and Loop will not be responsible for any failure to process the Payment Information on any specific day. Loop will use reasonable efforts to process the Payment Information and transmit the Entries with the next regularly scheduled file that Loop creates (which will only happen on days when the ACH network is open for business). The total dollar amount of Entries that Customer transmits to Loop on any one day will not exceed the maximum exposure limit established by Loop or any financial institution partners.

6.3     Representations and Warranties. Customer acknowledges that the Nacha Rules require Loop, as a Third-Party Sender, to make certain warranties regarding each Entry on the Originator’s behalf. Therefore, when Customer uses Loop to initiate ACH transactions with Payees, Customer represents and warrants that: (a) Customer has all necessary authorizations and approvals from its Payees for Loop to transmit an ACH network debit or credit transaction; (b) the information Customer provides Loop about each ACH network transaction is accurate, timely, and complete; and (c)any ACH network debit transaction that it initiates satisfies an obligation or corrects an error. Loop is not liable for any return, reversal, or other failure (or any related costs) arising from Customer’s acts and omissions, including Customer’s failure to obtain its Payee’s authorization for an ACH network transaction. Customer also acknowledges that under the Nacha Rules, Customer is required to indemnify certain persons, including, without limitation, the ODFI, for the Originator’s failure to perform its obligations.

6.4     Rejection. Using its Loop Account, Customer can enter the Payment Information and approve and submit it to Loop for creating, formatting, and transmitting Entries per the Nacha Rules and the UCC. Loop, however, is not obligated to accept Entries and may reject any Payment Information or any Entry that does not comply with the requirements in these Payment Service Terms, the Nacha Rules, the UCC, or if the Customer is otherwise not in compliance with these Payment Service Terms. If any Payment Information or Entry is rejected, Loop will make a reasonable effort to promptly notify Customer to allow the Customer to correct the Payment Information or request that Loop correct the Entry and resubmit it. A notice of rejection of Payment Information or an Entry (each, a “Rejection Notice”) will be effective when given to the Customer; Loop may deliver a Rejection Notice via any means, including email or to the Customer’s Account. Loop will have no liability to Customer for: (i) rejecting any Payment Information or Entry that does not comply with these Payment Service Terms, the Nacha Rule, or the UCC, or any Losses directly or indirectly arising therefrom; or (ii) any delay in providing, or failing to provide, Customer with a Rejection Notice, or any Losses arising directly or indirectly therefrom. If Customer requests that Loop, instead of Customer, correct Payment Information or any Entries, Loop may attempt to do so on the condition that Loop: (i) is not required to make any requested correction, and (ii) is not liable for any Losses or other consequences that may directly or indirectly result from Loop’s attempt to correct, or failure to correct, such Payment Information or Entries.

6.5     Cancellation or Amendment. After the Payment Information has been received by Loop, the Customer will not have a right to cancel or amend any Entry. However, Loop will use reasonable efforts to act on any cancellation or amendment requests it receives from the Customer. Loop will have no liability if it fails to effect the cancellation or amendment. Customer will reimburse Loop for any Losses Loop may incur in effecting or attempting to effect such a request.

6.6     Reversals. Upon Customer’s request and as permitted by the Nacha Rules, Loop will make a reasonable effort to reverse an Entry, but Loop will have no responsibility for the failure of any other person or entity to honor Customer's reversal request. Loop does not and cannot guarantee that the Entry will be reversed. The Customer must notify, and if required under the Nacha Rules or the UCC, obtain a Payee’s consent before attempting to reverse an Entry that was credited to such Payee. The notice to the Payee must include the reason for the reversal. By initiating a request to reverse an Entry that was credited to a Payee, Customer represents and warrants to Loop that it has already obtained the Payee’s consent for the reversal, if such consent is required under the Nacha Rules or the UCC. The Customer will reimburse Loop for any expenses, losses, or damages it incurs in effecting or attempting to effect the Customer's request for reversal of an Entry.

6.7     Notice of Returned Entries and Notifications of Change. Loop will notify the Customer via email or the Customer’s account of a return and/or a Notification of Change (“NOC”) entry no later than one business day after the business day on which Loop receives receipt. Loop will have no obligation to re-transmit a returned Entry if Loop complied with these Payment Service Terms regarding the original Entry. Customer will ensure that changes requested by the NOC are made within six (6) banking days of receipt of the NOC information from Loop or prior to initiating another Entry to the Payee’s account, whichever is later.

6.8     Loop’s Responsibilities. Loop will be entitled to rely solely on the information, representations, and warranties provided by Customer pursuant to these Payment Service Terms, and will not be responsible for the accuracy or completeness thereof. Loop will be responsible only for performing the services expressly provided for in these Payment Service Terms.

6.9     Provisional Credit. The Customer acknowledges that the Nacha Rules make provisional any credit given for an Entry until the financial institution crediting the account specified in the Entry receives final settlement.  If the financial institution does not receive final settlement, it is entitled to a refund from the credited party and the Originator of the Entry will not be deemed to have paid the party.

6.10   Payment for Credit Entries and Returned Debit Entries. Customer will pay for all credit Entries it issues or that are otherwise made effective against the Customer.  Customer will pay for the amount of each debit Entry returned by a Receiving Depository Financial Institution or for any dishonored debit Entry.  Customer will make payment to Loop in any manner Loop specifies. If the Customer fails to make payment, Loop may refuse to process all Entries. Loop will have no liability to Customer or any third party as a result thereof.

6.11   Data Security. Customer will comply with any and all data security requirements contained in the Nacha Rules, including, without limitation, any requirements of Originators to protect account numbers used in the initiation of Entries, which would include, if required, rendering them unreadable when stored electronically.

6.12   International ACH Entries. Customer will not initiate any International ACH (“IAT”) Entries without Loop’s prior written approval.  Loop may, in its sole discretion, temporarily or permanently suspend providing the Payment Services to Customer, without liability, if Loop believes that Customer has caused or attempted to cause Loop to initiate an unauthorized IAT Entry.

6.13   Right to Audit. Customer agrees to allow Loop, each Customer Partner, or the ODFI to audit the Customer’s compliance with these Payment Service Terms and the Nacha Rules, upon at least ten (10) business days’ prior written notice (except in cases of suspected fraud or regulatory requirement, in which case no prior notice shall be required), no more than once per calendar year absent reasonable cause, during Customer’s normal business hours, and in a manner that minimizes disruption to Customer’s operations.

6.14   Remaking Entries. Customer must retain data on file adequate to permit remaking Entries for seven (7) days following the date of transmittal to Loop and will provide such data to Loop upon request.

6.15   Authorizations and Data Retention. Customer must obtain its Payee’s written authorization to debit or credit their bank account and initiate a transaction over the ACH network. Customer must retain any consents and authorizations it captures from its Payees for two (2) years after they expire. Upon request, Customer will provide a copy of the authorization within five (5) business days, not to exceed ten (10) banking days.

7.     Fraud.

Customer acknowledges and agrees that it is Customer’s responsibility to protect itself and to be vigilant against fraud, e-mail fraud and other physical and electronic frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”).  Customer agrees to educate Administrators, Authorized Users, agents, contractors and employees as to the risks of such fraud and to train such persons to avoid such risks.  If Customer receives an e-mail or other electronic communication that Customer believes, or has reason to believe, is fraudulent, Customer agrees that neither Customer nor its Administrators or Authorized Users will respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail.  Customer agrees that Loop is not responsible for any Losses, injuries, or harm (of any kind, financial or otherwise) incurred by Customer as a result of any electronic, e-mail, or Internet fraud, except to the extent such fraud results from a security breach of Loop’s systems caused by Loop’s failure to maintain commercially reasonable security measures.

8.     Failing to Act.

Loop, Customer Partners and all financial institution partners will be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Loop’s and its financial institution partners’ control. In addition, Loop will be excused from failing to transmit or delay in transmitting an Entry if, in Loop’s reasonable judgment, doing otherwise would violate any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.

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