Sub-Merchant Agreement

In connection with the Terms of Use and other agreements (collectively, the "Terms of Use Agreement") you have entered into with SportsEngine, Inc. ("Provider"), Vantiv and its designated Member Bank (collectively "Acquirers") may provide you ("Submerchant") with certain payment processing services ("Acquirer Services") in accordance with the terms of this Sub-Merchant Agreement. The Acquirer Services are not part of the "Service" provided by Provider under the Terms of Use Agreement. The term "Service," as used in this Sub-Merchant Agreement, refers solely to the Service provided by Provider under the Terms of Use Agreement. In consideration of Sub-merchant's receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover ("Discover"), and certain similar entities (collectively, "Associations), Sub- merchant is required to (i) enter into a direct relationship with an entity that is a member of the Associations and (ii) agree to comply with Association rules as they pertain to applicable credit and debit card payments. By entering into this Sub-Merchant Agreement, Sub-merchant is fulfilling the Association rule of entering into a direct relationship with a Member of the Associations; however, Acquirers understand that Sub-merchant has contracted with Provider to obtain certain processing services.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

  1. Certain Merchant Responsibilities

    Sub-merchant agrees to participate, and to cause third parties acting as Sub-merchant's agent ("Agents"), to participate in the Associations in compliance with, and subject to, the by-laws, operating regulations and/or all other rules, policies and procedures of the Associations (collectively "Operating Regulations"). Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations ("Laws"). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), VISA, MasterCard, Discover, and/or Other Networks, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations. For purposes of this section, Agents include, but are not limited to, Sub-merchant's software providers and/or equipment providers.

    Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub-merchant to cardholders, and is expressly prohibited from processing, factoring, laundering, offering, and/or presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant.

    Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: (i) the minimum transaction amount does not differentiate between card issuers; (ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and (iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a (i) department, agency or instrumentality of the U.S. government; (ii) corporation owned or controlled by the U.S. government; or (iii) Sub- merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 –Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.

  2. Merchant Prohibitions

    Sub-merchant must not (i) require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration date, signature, or any other card account data in plain view when mailed, (ii) add any tax to transactions, unless applicable law expressly requires that a Sub- merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), (iii) request or use an account number for any purpose other than as payment for its goods or services, (iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub- merchant, (v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub- merchant is participating in a cash back service, (vi) submit any transaction receipt for a transaction that was previously charged back to the acquirers and subsequently returned to Sub-merchant, irrespective of cardholder approval, (vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, (viii) accept a card to collect or refinance an existing debit that has been deemed uncollectable by Sub-merchant, or (ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub- merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.

    Sub-merchant may not submit or knowingly permit any cardholder or other User (as defined in the Terms of Use Agreement) to submit any transaction that is illegal or that Sub-merchant should have known is illegal, including but not limited to transactions involving pornography, money laundering, or financing terrorist activities. Sub-merchant agrees to comply with any and all instructions Provider gives Submerchant from time to time regarding payment processing provided hereunder. Sub- merchant agrees that Provider may investigate and audit Sub- merchant's compliance with this Sub-Merchant Agreement from time to time, and Sub-merchant agrees to cooperate fully with Provider in any investigation or audit.

  3. Settlement

    Upon receipt of Sub-merchant's sales data for card transactions through the Service, Acquirers will process Sub-merchant's sales data to facilitate the funds transfer between the various Associations and Sub- merchant. After Acquirer receives credit for such sales data, Acquirer will fund Sub-merchant through Provider to an account designated by Provider ("Provider Designated Account"), for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirers of their settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirers will debit the Provider Designated Account for funds owed to Acquirers as a result of the Acquirer Services provided hereunder, unless a Sub-merchant- owned account is otherwise designated below. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirers reasonably believe a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.

  4. Remittance by Provider

    Unless Sub-merchant and Provider otherwise agree in writing, funds received by Provider in respect of payments by cardholders to Sub- merchant that are processed through the Service ("User Payments") will be remitted to Sub-merchant (net of amounts Provider is authorized to deduct or withhold, as described below) not later than thirty (30) days after the end of the calendar month in which such User Payments are received by Provider, or in accordance with the payment schedule listed in Sub-merchant's administrative control panel (if applicable). However, Provider, in Provider's sole discretion, may withhold remittance of User Payments to Sub-merchant if the total User Payments received by Provider during the preceding calendar month is less than $25. In that case, User Payments will accumulate and be remitted to Sub-merchant not later than thirty (30) days after the end of the next calendar month in which the total User Payments received by Provider, and not yet remitted to Sub-merchant, is at least $25. Funds will be remitted in the form Sub-merchant selects when Sub-merchant registers for payment processing services, or as subsequently updated as permitted by the Service.

    Sub-merchant agrees to pay to Provider on demand (i) any and all service or processing fees, taxes, or other charges associated with payment transactions processed through the Service, as specified in Provider's Fee Disclosure as in effect from time to time, or in another applicable document (e.g., an order form), (ii) any adjustments, fees, penalties, or costs incurred by Provider as a result of any dispute related to a User Payment or to any payment transaction alleged to have processed through the Service; and (iii) any fees or charges imposed by third parties (including Associations and Acquirers) related to disputed, returned, or cancelled transactions or User Payments. Sub- merchant authorizes and directs Provider to deduct the amounts Sub- merchant owes under this paragraph from User Payments, and Sub- merchant understands that User Payments Provider remits to Sub- merchant will be net of these amounts.

    Sub-merchant further agrees that Provider may withhold the following amounts from User Payments, and Sub-merchant understands that User Payments Provider remits to Sub-merchant will be net of these amounts: (i) the amount of any User Payment that is subject to dispute or reasonably anticipated to be subject to dispute as determined in Provider's sole discretion (such as in the case of credit card charge backs) and any related adjustments, fees, penalties, or costs Provider incurs or reasonably anticipates Provider will incur as a result of the dispute; (ii) any third-party fees or charges Provider incurs or reasonably anticipates Provider will incur as a result of a disputed, returned, or cancelled User Payments, including any imposed on Provider by Acquirers; (iii) any taxes or other amounts as required by law; and (iv) any other amounts Sub-merchant owes to Provider under the Term of Use Agreement, including any amounts that Provider reasonably believes are or may be owed to Provider as a result of any breach by Submerchant of the Terms of Use Agreement or this Sub- Merchant Agreement or pursuant to Submerchant's indemnification obligations under the Terms of Use Agreement. Sub-merchant authorizes Provider to use the funds so withheld to satisfy Sub- merchant's obligations in respect of any matters described in this paragraph. To the extent the funds so withheld exceed the amount(s) actually required to satisfy Sub-merchant's obligations, the remaining funds will be treated as User Payments received by Provider during the calendar month in which Provider determines (in Provider's sole and reasonable discretion) that Sub-merchant's obligations have been satisfied, and remitted to Sub-merchant in accordance with the paragraphs above.

    In the event amounts deducted or withheld from User Payments are insufficient to pay all amounts Submerchant owes to Provider hereunder, Sub-merchant agrees to pay such amounts on demand, and to pay all attorneys' fees and costs and expenses of collection Provider incurs in collecting amounts Submerchant owes.

    In the event Sub-merchant is notified by Provider or otherwise that any cardholder or other person disputes or asserts any claim related to any payment transaction processed or alleged to have been processed through the Service, or the amount thereof, Sub-merchant will provide all such assistance as Provider may request in connection with the investigation of such claim or dispute, including providing to Provider such information or documentation regarding such transaction as Provider may request. In the event it is determined that any refund or other payment is owed to a cardholder, User, or other person in connection with such a claim or dispute, Sub-merchant agrees that Sub- merchant is solely responsible for issuing any resulting refund and/or payment, and Sub-merchant will provide Provider with such evidence as Provider may require that Sub-merchant has issued the refund or payment.

    To ensure proper remittance of User Payments, Sub-merchant is solely responsible for providing and maintaining accurate contact and payment information associated with Sub-merchant's account, which may include without limitation applicable tax information. If Provider believes that Provider is obligated to obtain tax information and Sub-merchant does not provide this information to Provider after Provider has requested it, Provider may refuse to remit User Payments to Sub-merchant until Sub- merchant provides this information or otherwise satisfies Provider that Sub-merchant is not a person or entity from whom Provider is required to obtain tax information. Sub-merchant agrees to pay all applicable taxes or charges imposed by any government entity in connection with Sub-merchant's participation in the Service.

    If Sub-merchant believes that Provider has failed to remit User Payments owed to Sub-merchant, Submerchant must notify Provider in writing within ninety (90) days of the date of such remittance or from the date when Sub-merchant purports such remittance would have been due, specifying in reasonable detail the amounts Sub-merchant believes are owed. Sub-merchant's failure to so notify Provider shall result in Sub-merchant's waiver of any claim relating to such disputed remittance. Amounts owed to Sub-merchant shall be calculated solely based on records maintained by Provider, which shall be presumed correct absent manifest error. Sub-merchant shall have no audit rights hereunder.

  5. Term and Termination

    Sub-merchant agrees to provide Provider with such information as Provider may request in order to confirm that Sub-merchant is eligible to use the Acquirer Services, and Sub-merchant agrees that all information Sub-merchant provides to Provider for that purpose will be accurate and complete. In addition, Submerchant will furnish to Provider from time to time, promptly upon Provider's request, (i) a list of the current addresses of all Submerchant's offices, (ii) a list of all assumed business names (d/b/a's) used by Sub-merchant, and (iii) a list of all products and services provided by Submerchant.

    Submerchant acknowledges that even though Sub-merchant signs up for the payment processing feature of the Service, Sub-merchant is not guaranteed use of that feature of the Service. The payment processing feature will not be available to Sub-merchant unless and until Provider has confirmed that Sub-merchant is eligible to use the Acquirer Services and this Sub-Merchant has become binding on all parties, as set forth in the paragraph below. If that occurs, the services of Provider described herein will be part of the Service and will be provided to Sub-merchant subject to and in accordance with the Terms of Use Agreement; provided that, if there is any conflict between the terms of this Sub- Merchant Agreement and the Terms of Use Agreement, then to the extent such terms apply to payment processing, the terms of this Sub- Merchant Agreement shall control.

    This Sub-Merchant Agreement shall be binding upon Sub-merchant when Submerchant or Submerchant's representative provides contact information and clicks "Agree", signifying Submerchant's acceptance of this Agreement. The term of this Sub-Merchant Agreement shall begin, and the terms of the Sub-Merchant Agreement shall be deemed accepted and binding upon Acquirers and Provider, on the date Acquirers accept this Sub-Merchant Agreement by issuing a merchant identification number, and shall terminate when Provider's Terms of Use Agreement with Sub-merchant terminates.

    Notwithstanding the foregoing, Acquirers may immediately cease providing Acquirer Services and/or terminate this Sub-Merchant Agreement without notice if (i) Submerchant or Provider fails to pay any amount to Acquirers when due, (ii) in Acquirers' opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations, or any applicable state, federal, or local laws, rules, and regulations ("Laws"), (iii) Acquirers believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, or (iv) Acquirers or Providers are required to do so by any of the Associations.

    Further, Provider may terminate this Sub-Merchant Agreement at any time, in Provider's sole discretion, without prior notice to Sub-merchant. If this Sub-Merchant Agreement is terminated by any party hereto, the provisions of section 4 above will continue to apply until Sub-merchant has paid all amounts owed to Provider in respect of the Service provided by Provider prior to termination.

  6. Indemnification and Limits of Liability

    Sub-merchant agrees to provide Acquirers, via a communication with Provider, with written notice, specifically detailing any alleged failure, within thirty (30) days of the date on which the alleged failure or error first occurred; failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such failure or error. Acquirers shall bear no liability and have no obligations to correct any errors resulting from Sub- merchant's failure to comply with the duties and obligations of the preceding sentence.

    Sub-merchant shall indemnify and hold harmless Acquirers, and their directors, officers, employees, affiliates, and agents from and against all proceedings, claims, demands, losses, liabilities, damages and expenses resulting from or otherwise arising out of (i) the Acquirer Services in this Sub-Merchant Agreement, (ii) Sub-merchant's or Sub- merchant's employees and agents acts or omissions in connection with the Acquirer Services provided pursuant to this Sub-Merchant Agreement, (iii) any infiltration, hack, breach, or violation of the processing system resulting from, arising out of, or in any way related to Submerchant's ability to use of the Acquirer Services provided herein including but not limited to Submerchant's use of an Agent or any other third party processor or system or (iv) any issue between Submerchant and Provider. This indemnification shall survive the termination of the Sub-Merchant Agreement. Submerchant's sole and exclusive remedy for any and all claims against Acquirers arising out of or in any way related to the transactions contemplated herein shall be termination of this Sub-Merchant Agreement. In the event that Sub-merchant has any claim arising in connection with the Acquirer Services, rights, and/or obligations defined in this Sub-Merchant Agreement, Sub-merchant shall proceed against Provider and not against Acquirers, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirers have any liability to Sub-merchant with respect to this Sub-Merchant Agreement or the Acquirer Services. Sub-merchant acknowledges Acquirers are only providing this Sub-Merchant Agreement to assist in Provider's processing relationship with Sub- merchant, that Acquirers are not liable for any action or failure to act by Provider, and that Acquirers shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider.

  7. Special MasterCard Terms

    As used in this Section 7: (i) "Corporation" means MasterCard International Incorporated, Maestro International Inc., and their subsidiaries and affiliates; (ii) "Interchange System" means the computer hardware and software operated by and on behalf of the Corporation for the routing, processing, and settlement of transactions (iii) "Marks" means the names, logos, trade names, logotypes, trademarks, service marks, trade designations, and other designations, symbols, and marks that the Corporation owns, manages, licenses, or otherwise controls and makes available for use by authorized entities in accordance with the Standards, and "Mark" means any one of the Marks; and (iv) "Standards" means the Amended and Restated Certificate of Incorporation and the bylaws, operating rules, regulations, policies, and procedures of the Corporation, including but not limited to any manuals, guides or bulletins, as may be amended from time to time.

    Sub-merchant acknowledges and agrees: (i) Sub-merchant will comply at all times with all applicable Standards, as amended from time to time; (ii) the Corporation is the sole and exclusive owner of the Marks, and Sub-merchant will not contest the ownership of the Marks for any reason; (iii) the Corporation may at any time, immediately and without advance notice, prohibit the Sub-merchant from using any of the Marks for any reason; and (iv) the Corporation has the right to enforce any provision of the Standards and to prohibit the Sub-merchant and/or Provider from engaging in any conduct the Corporation deems could injure or could create a risk of injury to the Corporation, including injury to reputation, or that could adversely affect the integrity of the Interchange System, the Corporation's "confidential information" (as defined in the Standards), or both; and Sub-merchant will not take any action that could interfere with or prevent the exercise of this right by the Corporation.

    Sub-merchant agrees that Provider may require any changes to Sub- merchant's website or otherwise that Provider deems necessary or appropriate to ensure that Sub-merchant remains in compliance with the Standards governing the use of the Marks.

    In addition to the termination provisions set forth in Section 5, this Sub- Merchant Agreement will automatically and immediately terminate if the Corporation de-registers Provider or if an Acquirer ceases to be approved by the Corporation for any reason or if such Acquirer fails to have a valid license with the Corporation to use any Mark accepted by Sub-merchant. Further, Provider, at its discretion or at the direction of an Acquirer or the Corporation, may terminate the Sub-Merchant Agreement immediately for activity deemed to be fraudulent or otherwise wrongful by Provider, an Acquirer, or the Corporation. In the event of any conflict or inconsistency between any provision of this Sub-Merchant Agreement and the Standards, the Standards will govern as to any transaction involving the Corporation or its cards.

  8. Miscellaneous

    This Sub-Merchant Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio for Vantiv and its Member Bank, and Minnesota for Provider, without regard to conflicts of law provisions. This SubMerchant Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirers and Provider. This Sub-Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. Acquirers and/or Provider may amend this Sub-Merchant Agreement. Notwithstanding the foregoing, Provider will give Submerchant not fewer than thirty (30) days advance notice of any new or increased fees imposed on Submerchant in connection with payment processing under this Agreement. If any provision of this Sub-Merchant Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this SubMerchant Agreement will be construed as if such provision is not contained in the Sub-Merchant Agreement. "Member Bank" as used in this Sub-Merchant Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this SubMerchant Agreement. As of the commencement of this Sub- Merchant Agreement, Member Banks shall be Fifth Third Bank, located at 38 Fountain Square Plaza, Cincinnati, OH 45263.

    The Member Banks are party to this Sub-Merchant Agreement. The Member Banks may be changed, and their rights and obligations assigned to another party by Acquirers at any time without notice to Merchant.

    This Agreement was last modified on November 8, 2016