TERMS AND CONDITIONS

These Employer Terms of Service for Instant Card, Instant Pay and Instant Tips (“Employer TOS”) are incorporated into and made a part of the Instant Card, Instant Pay and Instant Tips Services Agreement (“Agreement”). The Employer TOS governs the provision and use of the Instant Card, Instant Pay and Instant Tips products (collectively the “Instant Products”) provided by Instant Financial Inc. (“Instant”), to Employer.  Instant and Employer are each referred to below as a “Party” and collectively as the “Parties.”

1. Employer.  Instant shall make available to Employer the Instant Program and Instant Employer Support Services.
2. Participants. Instant shall make available to Employees who elect to participate in the Instant Program (“Participants”) the Instant Program and Instant Participant Support Services.
3. Instant Program Description. The products and services included in the Instant Program are described in Section 2. Other products and services may from time to time be added to the Instant Program upon agreement of the Parties (email to suffice).  

1. Instant Cards.  Employer may offer to all of its Employees the Instant Financial Prepaid Visa® branded prepaid debit card issued by the Bank (the “Instant Card”).  Depending on which of the Instant Products Employer elects, each Participant’s wages, Instant Pay advances and Instant Tips will be deposited to the Participant’s Instant Card.  A Participant may obtain an Instant Card packet from his or her Employer.  The packet will contain a non-personalized Instant Card that the Employee may use with the Instant mobile app.  Upon registration and approval, the Participant will be able to receive wages, Instant Pay and Instant Tips payments on the Instant Card.  A Participant may request a personalized Instant Card with his or her name embossed on the Instant Card be mailed to the Participant at his or her registered address. The Instant Card is governed by the Cardholder Agreement between Participant and [Bank/Instant], which may be found at Instant Financial | Cardholder Agreement. Use of the Instant Card may be subject to fees which are set forth in the Fee Schedule.
2. Instant Pay. Instant Pay allows Participants the ability to access wages they have earned but which have not yet been paid to them.  To participate, an Employee must download the Instant mobile app, register for the Instant Pay service, and have an Instant Card.  If the Participant elects to receive an Instant Pay, the funds will be deposited on to the Participant’s Instant Card.  When a Participant requests an Instant Pay, they authorize Instant to recoup the amount of the Instant Pay from their Instant Account on their next regularly scheduled payday.  The recoupment will appear as a transaction in the transaction history for the Participant’s Instant Card.  In the event there are insufficient funds in the regularly scheduled payment of wages to recoup the Instant Pay, the recoupment will be made from the next regularly scheduled payment of wages.  Use of Instant Pay is governed by the Earned Income Access Agreement between Participant and Instant (“EIAA”) which may be found at Instant Financial | EIAA.  The EIAA may be updated by Instant from time to time in its discretion.    
3. Instant Tips. Instant Tips allows Participants the ability to access through the Instant Card tips that have been designated for them by their employer’s customers.  To participate, an Employee must download the Instant mobile app and have an Instant Card.  At the end of each shift, the Employee’s tips will automatically be loaded onto the Employee’s Instant Card.

Instant agrees to:

1. Provide Employer with access to its proprietary Instant Program products and services, including Instant Pay, Instant Tips and Instant Card products.  Instant will integrate its Instant platform with Employer’s time and attendance and payroll systems in order to facilitate the sharing of information necessary to support the Instant Program. 
2. Provide Employer with access to its proprietary web-based support portal (“Portal”). Employer is hereby granted a royalty free, non-exclusive, and non-transferable license to use the Portal during the term of the Agreement for the purpose of managing its Instant Program.
3. Provide Employer with back office support services through the Portal.  Using the Portal, Employer may perform the functions necessary to maintain the Instant Program including initiating payments, updating Employee information, reviewing reports, and obtaining client support.  
4. Provide Employer with materials to be used to market the Instant Program to Employees (“Marketing Materials”). In certain circumstances, Instant will assist Employer in developing and defining a marketing and communication strategy and related campaign to market the Instant Program to its Employees.
5. Provide Employer with access to its standard reports with regard to Instant Program products.  For Instant Pay, such reports will include data concerning Participants; amounts authorized and recouped.  For Instant Tips and Instant Cards, such reports will include information on Participants, Employer loads, and funds reconciliation. 
6. For Instant Pay, Instant will obtain authorization for each Instant Pay transaction from the Participant as well as consent from each Participant to recoup each Instant Pay payment on the next scheduled payday.  

Employer agrees to:

1. Offer the Instant Program products and services to its Employees.  Employer will elect the specific products (such as Instant Card, Instant Pay and Instant Tips) that it will offer in the Agreement.  
2. Employer will (i) integrate its time and attendance and payroll systems with the Instant platform in order to facilitate the sharing of information necessary to support the Instant Program and (ii) will notify Instant in writing at least 60 days before making a change in the provider of its time and attendance and payroll systems. Employer acknowledges that Instant’s ability to provide the Instant Program is contingent on such integration and the uninterrupted flow of information through such integration and that Instant will not be in breach of the Agreement or liable to Employer in case of a disruption to or loss of such integration.
3. Assist and cooperate in every reasonable manner in connection with the implementation of the Instant Program and provide any requested information or documentation reasonably requested by Instant, the Bank or the Payment Network needed to obtain all the necessary program approvals and implement the Instant Program. 
4. Actively market the Instant Program to Employees using the Marketing Materials supplied by Instant.  Employer shall not change, modify, or amend the Marketing Materials or use any written or electronic documents or communications to describe or market the Instant Program without the prior approval of such documents or communications by Instant.
5. Provide Instant with information about Employees necessary to validate registrations for the Instant Program, including first and last name, telephone number, email address and employee identification number (“Registration Information”).  For Employees who choose to participate in Instant Pay and who consent to the sharing of their information, Employer will also provide information necessary to facilitate Instant Pay, including time and attendance and payroll information (“EWA Information”). Employer represents and warrants that it has secured and will maintain all necessary consents and permissions, and has and will comply with all applicable laws and regulations, in manner legally sufficient to provide the Registration Information and EWA Information to Instant and enable Instant to use such information to perform under this Agreement.
6. Use the Instant Program only to make bona fide payments to Employees who have chosen to participate in the Program.
7. Verify and ensure the completeness and accuracy of all payment and other data submitted to Instant to facilitate the Instant Program, including but not limited to the transfer of any disbursements to Participants. Without limiting the foregoing, Employer is solely responsible for accurately calculating any and all income tax, payroll tax, and any other taxes, levies, charges, or withholdings from the gross wages or salaries of each Participant, and transmitting to the Instant Card only the amount to be disbursed to each Participant each pay period after any and all such withholdings, taxes, levies, charges or deductions that Employer deems in its sole judgment to be applicable or required (the “Net Payment”). Instant has no obligation to verify or confirm the accuracy of the Net Payment.

1. Wage Payments to Card Accounts.  Wage payments made by Employer to a Participant’s Instant Card will be credited by Instant to the Participant’s Instant Card in accordance with the network rules and instructions accompanying the transfer. Participant’s use of the Instant Card is subject to the terms of the Cardholder Agreement.  Employer is responsible for funding all wage payments to Instant Cards, including wages, commissions, off-cycle payments and termination pay. Employer shall pay the entirety of the Net Payment to the Instant Card and shall not allow the Participant to split his or her pay among the Instant Card and other accounts.
2. Instant Pay Payments to Instant Cards.  Instant Pay payments will be credited by Instant to that Participant’s Instant Card in accordance with the Instant Pay authorization made by Participant. Participant’s receipt of Instant Pays is subject to the EIAA and use of the Instant Card is subject to the terms of the Cardholder Agreement.
3. Ownership of Instant Card Funds. All funds transferred by Employer to a Participant’s Instant Card  shall be held by the Bank for the benefit of the Participant who is the sole and legal owner of the funds associated with his or her Instant Card.
4. Ownership of Employer Instant Card Funds.  Funds deposited in Bank by Employer and associated with an Instant Card account for Employer’s use (for such purposes as exception pay and other disbursements) shall be held by the Bank for the benefit of Employer who is the sole and legal owner of such funds associated with the respective Instant Card account. 

1. If Employer elects to offer the Instant Pay product to its Employees, it must integrate its information systems with Instant and provide Instant with the information necessary for the provision of the Instant Pay service.  
2. Employer will timely provide Instant with information on Employees added to or terminated from the employment roster.  Instant will provide Employer with periodic files indicating changes in enrollment in the Instant Products and Employer shall update its payroll systems based upon that information.
3. Instant will recoup Instant Pay advances from the Net Payment deposited to a Participant’s Instant Card on the regularly scheduled pay day. In the event the amount of the Net Payment deposited to Participant’s Instant Card is insufficient to cover the amount of Instant Pay advances, Instant will recoup the remainder from the Net Payment deposited to a Participant’s Instant Card on the next pay day.
4. Employer agrees that all termination pay owed to a Participant shall be paid to that Participant’s Instant Card. 
5. In the event that Instant is unable to recoup some or all of an Instant Pay advance from a Participant’s Instant Card, Instant reserves the right to immediately stop providing the Instant Pay service to that Participant.  
6. In the event that Instant is unable to recoup some or all of an Instant Pay advance from one or more Participants’ Instant Cards, Instant reserves the right to immediately stop providing the Instant Pay service to the employer’s Participants.
7. In the event that Instant is unable to recoup some or all of an Instant Pay advance from the Participant’s Instant Card as a result of the Employer providing inaccurate or incomplete data or not following Instant’s processes, Employer shall reimburse Instant for the amount of the Instant Pay advance that was not recouped within five business days of Instant’s demand for same. Employer authorizes Instant to initiate electronic fund transfers from its designated corporate bank account(s) in the amount of such reimbursement.

1. If Employer elects to offer Instant Tips to Employees as set out in the Agreement, Employer shall first establish an account at the Bank (“Tips Funding Account”) for the purpose of funding the Instant Tips payments and fund the Tips Funding Account in an amount equal to 125% of anticipated weekly tip disbursements, or such other amount agreed to by the Parties (the “Tips Minimum Balance”).  
2. Employer authorizes Instant to initiate electronic fund transfers from its designated corporate bank account(s) to replenish the Tips Funding Account on a weekly or as needed basis in order to maintain a balance in the Tips Funding Account equal to or greater than the Tips Minimum Balance.  Employer must identify its corporate bank account and authorize Instant to initiate required debits in a separate Pre-Authorized Debit Agreement authorizing these transfers.
3. Upon Employer’s authorization, Instant will debit the Tips Funding Account in the amount of authorized Instant Tips payments and deposit those funds in the respective Participant’s Instant Card accounts.   
4. In the event Instant deposits Instant Tips on Participants’ Instant Card without sufficient funding in the Tips Funding Account, or if the Tips Funding Account balance goes negative, Employer authorizes Instant to immediately debit the Tips Funding Account to cover the negative balance. If the Tips Funding Account balance falls below zero or a transaction to debit Employer’s corporate account fails for any reason, Instant reserves the right to immediately stop providing the Instant Tips service.

1. Unless the Agreement states a different term or is terminated earlier pursuant to the provisions of this Paragraph, the Agreement shall have an initial term of three years (the “Initial Term”), commencing on the effective date of the Agreement.  The Agreement shall be automatically extended for successive periods of one year (each a “Renewal Term”) unless and until either Party notifies the other in writing of its election not to extend given at least 120 days prior to the expiration of the Initial or then-current Renewal Term.
2. Notwithstanding the foregoing, Instant or Employer, as the case may be, may terminate the Agreement (i) upon thirty days prior written notice if the other Party is in default of any monetary obligation or (ii) upon thirty days prior written notice if the other Party breaches or violates any other provision of the Agreement and any such default, breach or violation, as described with specificity and in reasonable detail in such notice, is not remedied in all material respects within the applicable thirty-day notice period.  
3. In addition, either Party may terminate the Agreement immediately upon: (i) a final conviction of either Party of any crime punishable as a felony under federal or state law; (ii) an assignment that is not authorized or approved pursuant to the Agreement; or (iii) any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding being commenced by or against either Party under any federal or state law.
4. Instant may terminate the Agreement in the event that (i) the Bank directs Instant to terminate the Agreement for regulatory or safety and soundness reasons, or (2) Instant’s contract with the Bank or payment network is terminated.  A termination under this paragraph shall not be considered a breach of the Agreement.
5.  Upon termination of the Agreement, Employer’s access to the Instant Program shall be removed and no further reports will be generated for Employer.  Participant Card Accounts shall continue to be processed by Instant and Participants will continue to have use of their Instant Cards Accounts and access to their funds. 

1. Employer and Instant shall each be responsible for monitoring legal developments applicable to the operation of its respective business, interpreting applicable state and federal laws, determining state and federal law compliance for its business and business operations, and maintaining an ongoing compliance program.  
2. Instant covenants that, during the term of the Agreement, the Instant Program shall comply with applicable laws and regulations  Instant will use its best efforts to give Employer timely notice of any changes in the Instant Program required for continued compliance.  Employer shall cooperate with any changes that Instant determines are required to maintain regulatory compliance.
3. Employer shall (i) comply with applicable laws and regulations concerning wage payments, tips payments and earned wage access payments to Employees, including, but not limited to timeliness of payment, calculation of Net Payments, wage statement requirements, handling and reporting of amounts withheld or deducted from each Employee’s pay, and the safeguarding of Employee personal information; and (ii) not use the Instant Program to conduct any illegal or fraudulent transfers or to engage in or support any illegal or fraudulent activities.  
4. If any change in the Instant Program is deemed necessary or prudent by Instant or is required by applicable laws, rules, regulations, operating rules of the Payment Networks, or the Bank, Instant shall make such changes, as necessary to the Instant Program as soon as practicable.  Instant shall make a good faith effort to notify Employer of any such changes which may impact Employer prior to implementing the change.
5. In the event that applicable laws, rules or regulations are enacted or are modified that Instant believes will cause the Instant Program to no longer be economically feasible, including but not limited to a reduction of interchange revenue, Instant shall notify Employer of same and Instant and Employer will review the terms of the Agreement related to fees and costs and shall agree on an appropriate restructuring of the contract terms.   If the parties fail to reach agreement related to restructuring the Agreement at least one hundred twenty (120) days prior to the effective date of any such law, rule or regulation, Instant may cancel the Agreement upon sixty (60) days prior written notice.

In the event that a Payment Network, the Bank or regulatory agency notifies Instant of any violation of its laws, rules or regulations relating to Employer or the Program or transactions processed for Employer, Instant shall have the right, without liability to Employer, to terminate processing services on behalf of Employer under the Agreement until such time as Instant shall have been notified by a Payment Network, the Bank or government agency that the violation has been corrected.  Instant will notify Employer same as soon as practicable after Instant has been notified of by a Payment Network, the Bank or a government agency.

The Instant Program shall not be used to make or facilitate any transaction that is fraudulent or illegal.  Instant shall have the right to preclude any person’s participation in the Instant Program which may, in Instant’s sole determination, violate any federal or state law or regulation, violate the rules and regulations of a Payment Network or the Bank, jeopardize Instant’s relationship with the Bank or Payment Network, or otherwise might damage Instant’s reputation.  Instant may, but has no obligation to, monitor activity in the Instant Program and may suspend or deny services to Employer or any Participant if it determines, in its sole discretion, that there is illegal, or suspicious activity occurring.   Instant shall have no liability to Employer or any Participant for any adverse financial or other consequences that may result from any action taken pursuant to this Section unless caused by Instant’s gross negligence or willful misconduct.  Instant may investigate any suspicious activity and will attempt in good faith to resolve the matter without the need to suspend services.

THE ENTIRE CUMULATIVE AGGREGATE LIABILITY OF INSTANT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000).

IN NO EVENT SHALL INSTANT OR EMPLOYER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT INSTANT OR EMPLOYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Each party  shall indemnify (“Indemnitor”) and hold the other party (“Indemnitee”) and its respective officers, directors, shareholders, partners, employees, and agents (collectively, “Related Parties”) harmless from and against any and all third party losses, awards and damages, including reasonable attorney’s fees,  as adjudicated by a court of competent jurisdiction or settled with the Indemnitor’s consent (“Losses”), incurred by the Indemnitee or its Related Parties due to the Indemnitor’s negligent performance of obligations under the Agreement.  The Indemnitee shall give the Indemnitor written notice as soon as reasonably practicable of any threatened, pending or completed claim, action or suit against it for which indemnity will or could be sought under the Agreement.  Any settlement by the Indemnitee must be approved by the Indemnitor, with such approval not to be unreasonably withheld if the Indemnitee receives a complete release of any such claim.  Notwithstanding the foregoing, Instant shall have no obligation to indemnify Employer for Losses related to noncompliance under Section 9 of the Agreement if Employer failed to cooperate with changes that are requested by Instant for continued compliance with any laws or regulations related to the payment of wages to the Cards.  

Each Party expressly acknowledges and agrees that any trademark, trade name, brand name, service mark, logo or other form of distinctive identification or copyrights, trade secrets, inventions, patents, software, dashboards, application programming interfaces, or other intellectual property (“Intellectual Property”) that is provided by one Party to the other Party under or in connection with the Agreement is and shall remain the sole and exclusive property of its owner and no title or ownership of the Intellectual Property is or shall be transferred to the other Party. Instant grants Employer a non-exclusive, non-transferable, and non-sublicensable license to use Instant’s trademarks and service marks in connection with marketing the Instant Program to Employees and in accordance with Instant’s trademark usage and quality control guidelines and policies. All goodwill arising from the use of such trademarks and service marks will inure solely to Instant’s benefit.

1. Upon termination of the Agreement for any reason, each Party will promptly discontinue the use of any previously granted rights to the Intellectual Property of the other Party and shall destroy all copies of the Intellectual Property and provide the other with evidence of such destruction.
2. Employer represents that none of the technology or other items provided under the Agreement will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States.
3. Employer shall not use the name of the Bank or Payment Network unless expressly authorized in writing.  All manuals, guides, instructions and other written materials of any kind or nature relating in any way to the Instant Program or any aspect thereof, are the property of Instant, whether created or produced by Instant and all guides, instructions and other materials shall be immediately returned to Instant upon request.

It is the intention of the Parties that the Agreement and the Employer TOS constitute the entire agreement between the Parties with respect to the subject matter and supersede any and all prior or contemporaneous understandings or agreements relating thereto, whether written or oral.  Modifications to the Agreement must be in writing and signed by each Party to be effective; provided, however, if any provision of the Agreement is found to be invalid or unenforceable, to the extent permitted by law, such provision may be reduced in scope or otherwise modified to render the subject provision reasonable and enforceable.  Otherwise, if any such invalid or unenforceable provision cannot be or is not so modified, such provision shall be deemed severed from the Agreement and all of the other provisions hereof shall remain in full force and effect as if such provision had never been included herein even if the severed portion of the Agreement is deemed to be an essential feature of the Agreement. 

1. Each Party will treat as confidential and prevent unauthorized duplication or disclosure of any confidential or proprietary information, including without limitation, any information about either Party’s products, services, marketing techniques, price lists, pricing policies, business methods, business plans, financial information, technical information (the “Confidential Information”) which a Party may acquire during the course of its activities under the Agreement and will not use any of the Confidential Information for any purpose other than in furtherance of its obligations under the Agreement.  Notwithstanding the foregoing, Employer and Instant each may disclose Confidential Information to its employees, members, officers, auditors, counsel, agents or consultants who need to have access to the Confidential Information, and who have professional or written obligations of confidentiality covering the information disclosed to them.  
2. Confidential Information shall not be deemed to include information that (i) was or is independently developed by the receiving Party without the use of Confidential Information, as evidenced by bona fide documentation, (ii) is otherwise known to or in the possession of the receiving Party at the time the Agreement is executed, provided such information was not provided to the receiving Party by the disclosing Party or a third party having a duty of trust or an obligation of confidentiality to the disclosing Party, or (iii) is subsequently received by the receiving Party from a third party who has no duty of trust or obligation of confidentiality to the disclosing Party, (iv) is or becomes available in the public domain through no fault of the receiving Party or (v) is required to be disclosed by government regulation, court order or other legal process; provided the Party provides the other Party with prompt notice of such requirement so that such Party may seek a protective order or other appropriate relief.  The obligations of confidentiality provided hereunder will survive the expiration or termination of the Agreement for any reason.  
3. Each Party will treat as confidential all information pertaining to Employees, including but not limited to names, addresses, contact information, Registration Information, EWA Information, payroll information, and financial information (“Employee Restricted Information”) which a Party may receive from the other Party during the course of its activities under the Agreement
4. As and to the extent Instant and Employer have access to or possess Confidential Information of the other or Employee Restricted Information, the Parties shall adhere to common industry practices to maintain data in a secure environment with physical, technical and administrative security measures in compliance with applicable laws, regulations and industry guidelines and standards designed to secure confidential information.  The parties shall have in place controls consistent with such standards that relate to the collection, maintenance (including access rights), transmittal and disposal of any Confidential Information or Employee Restricted Information, including but not limited to training, oversight tests for vulnerabilities, checks of the systems and measures to prevent and detect unauthorized access.  At a minimum, each party’s information security guidelines shall include (i) a written plan to assess and manage system failures, (ii) a regular assessment of data security risks, with adjustments made to the data security program to reduce such risks and (iii) notice and incident response procedures.  A Party shall notify the other promptly, however in no event later than the first of (x) as required by law or (y) within a reasonable time after discovering any unauthorized access or acquisition or suspected unauthorized access or acquisition of Confidential Information and/or Employee Restricted Information.  This notification will state in reasonable detail the information at risk, and each party agrees to take all actions reasonable under the circumstances necessary to immediately prevent the continued unauthorized access of such information.  Each party further agrees that in the event of a breach of confidentiality it will work in good faith and cooperate with the other to address the breach.
5. Any suggestions or proposed modifications to the Instant Products (in any form) or suggestions for new products or services, provided by Employer may be freely used by Instant without limitation, compensation, or restriction of any kind, and any modification to the Instant Products or Instant’s other existing or new products resulting from such suggestions or proposed modifications will be exclusively owned by Instant. 

Nonpublic Personal Information of Cardholders, including information that relates to usage of the Instant Card, Instant Pay and Instant Tips products, is the proprietary information of the Bank and will not be disclosed to Employer by Instant except with the written permission of the Bank.   Employer agrees to cooperate and share information to the extent necessary to investigate any suspicious activities of Participants or others related to the Instant Program or the services provided under the Agreement, including, if necessary, the sharing of information with financial institutions as permitted by Section 314(b) of the USA PATRIOT Act and 31 CFR 103.110. 

Employer shall not develop, distribute, or otherwise use any marketing, promotional, advertising or sales material of any kind or nature, through any type of medium, that makes any direct or indirect reference to the Instant Program, the Bank, or Payment Network, or any other aspect thereof, without the prior written consent of Instant and/or the Bank and/or Payment Network.

EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 23, THE TANGIBLE EMBODIMENTS OF ANY OF INSTANT’S INTELLECTUAL PROPERTY RIGHTS ARE PROVIDED “AS IS” AND INSTANT FURTHER AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGE-MENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.  INSTANT AND EMPLOYER AGREE THAT INSTANT’S OBLIGATIONS TO EMPLOYER ARE RELATED TO (i) THE PROVISION OF SERVICES BY INSTANT, (ii) THAT THE AGREEMENT IS A SERVICE AGREEMENT FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, AND (iii) THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE SHALL THEREFORE NOT APPLY TO THE AGREEMENT.

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1. Resolution of Disputes.  Except for any remedy of specific performance or injunction expressly permitted by the Agreement, in the event a dispute of any kind arises out of, in connection with, or relating to the Agreement (including any dispute concerning its construction, performance or breach) (a “Dispute”) the Parties will attempt to resolve the Dispute as set forth in subsection (b) before proceeding to arbitration as provided in subsection (c).  All documents, discovery and other information related to any such Dispute, and the attempts to resolve or arbitrate such Dispute, will be kept confidential to the fullest extent possible.
2. Negotiation.  If a Dispute arises, either Party may give written notice to the other Party, describing the nature of the Dispute in reasonable detail and providing reasonable supporting information, identifying, if possible, the dollar amount of the issue, and providing the name and title of a senior executive who will represent that Party (a “Dispute Notice”).  After a Dispute Notice has been given, the Parties in good faith will attempt to negotiate a resolution of the Dispute within 45 days.
3. Arbitration.  If, within 45 days after the Dispute Notice has been given (the “Negotiation Period”), the Dispute is not resolved through negotiation or mediation, either Party may refer the Dispute for arbitration.  The Parties agree to be bound by the selection of an arbitrator, and to settle the Dispute exclusively by binding arbitration in accordance with the following provisions:

1. 1. The Parties will collectively select one arbitrator.  If they fail to do so within 15 days after expiry of the Negotiation Period, either Party may request the JAMS Comprehensive Arbitration Rules (“JAMS”), located in Atlanta, Georgia, to submit a panel of five arbitrators from which the choice will be made.  The Party requesting the arbitration will strike first, followed by alternative striking by each Party until one name remains. The Parties may by agreement reject one entire list, and request a second list.  If selection by the above method is not completed within 60 days after expiry of the Negotiation Period the arbitrator will be selected by JAMS.  The arbitrator so selected will then arbitrate the Dispute in Atlanta, Georgia and issue an award.
   2. To the extent consistent with the provisions of this section 20(c), the arbitration will be conducted under the rules that JAMS or the arbitrator may impose and in accordance with the Georgia law.  The arbitrator’s decision will be made pursuant to the relevant substantive law of the State of Georgia.  The award of the arbitrator will be final, binding and non-appealable. Judgment on the award may be entered and enforced in any court of competent jurisdiction.
   3. The fees and expenses of the arbitrator, and the other direct costs of the arbitration, will be shared initially by the Parties in such proportion as the arbitrator may determine just and equitable.  Each Party will bear all its own other costs and expenses save that the arbitrator, as part of his final award, within his sole discretion, shall have the power, but not the obligation, to allocate direct and indirect costs and fees against each Party as he deems equitable.

This Agreement and any Dispute arising out of or related to the Agreement, any of the transactions contemplated hereby, the relationship of the Parties hereunder, or the interpretation and enforcement of the rights and duties of the Parties, whether arising in contract, tort, equity or otherwise, shall be governed by and construed in accordance with the internal Laws of the State of Georgia applicable to contracts made in that state, without giving effect to any choice of law or conflicts of law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of Georgia. If section 20(c) above (Arbitration) does not apply, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of any state or federal court of the State of Georgia in Fulton County, and any appellate court therefrom.  

THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ISSUE, CLAIM OR DISPUTE ARISING FROM OR IN ANY WAY RELATING TO THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.  EACH PARTY CERTIFIES THAT IT UNDERSTANDS THE IMPLICATIONS OF SUCH WAIVER AFTER HAVING THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL.

All notices, requests and other communications must be in writing to be effective and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by a commercial overnight courier that guarantees next day delivery and provides a confirmation of delivery, or (d) by electronic mail at info@instant.co. Any notice shall be effective only upon delivery. Where electronic mail is utilized for any communication covered by this Section, the sending party shall keep a contemporaneous record of such communications and delivery confirmation.   Any notice provided pursuant to this Section shall be addressed as follows:

If to Instant:

Instant Financial Inc.
Attn: Legal
2500 Northwinds Parkway, Suite 375
Alpharetta, GA 30009

If to Employer: to the address provided in the Agreement.

Either party may change its address for notice purposes by providing written notice of such change to the other Party in the manner set forth in this Section. 

Instant’s failure to perform any term or condition of the Agreement as a result of conditions beyond its control such as, but not limited to, war (whether or not declared), strikes, fires, floods, pandemics, acts of God, governmental restrictions, power failures, operational failures, terrorism, delays or failures of suppliers, vendors or subcontractors of either party, malfunctions or damage or destruction of any network facilities or servers, shall not be deemed a breach of the Agreement.

If and when the context of the Agreement requires, all words used in the singular shall be construed to have been used in the plural, and vice versa, and a reference to a particular gender shall be deemed to include any other gender.  The order of the paragraphs of the Agreement and the paragraph headings are only for convenience, and shall not be used to interpret any provision hereof.  In the event there is any conflict or inconsistency between the terms and conditions of the Agreement and the exhibits which are attached to the Agreement, the terms and conditions of the Agreement shall govern the rights and obligations of the Parties.

Each Party hereby represents and warrants to the other that:

1. Its execution, delivery and performance of the Agreement has been duly authorized and approved in every respect; and 
2. Neither its execution nor delivery of the Agreement, nor its performance hereunder, will violate or conflict with any term or condition of its organizational or other governing documents, or any other agreement or directive of any kind or nature to which it is a party or by which it is otherwise bound.

This Agreement shall inure to the benefit of and be binding upon the Parties hereto and each of their respective successors and assignees permitted under Section 31 of the Agreement.  

This Agreement may not be assigned by either Party without the prior written consent of the other Party.  Notwithstanding the foregoing, Instant may assign the Agreement without consent to (i) any entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with Instant, or (ii) any purchaser of all or substantially all of such Instant’s assets or to any successor by way of merger, consolidation or similar transaction.  Any attempt made by either Party to assign its rights under the Agreement that is not in strict compliance with the provisions set forth above shall be void.

The rights and obligations of the Parties set forth in Paragraphs 11, 12, 14, 15, 17, 18, 19, 20, 21, and 24 shall survive the expiration or any other termination of the Agreement.

This Agreement may be executed in counterparts and delivered by facsimile or electronically, and all such counterparts and facsimile and electronic copies shall constitute one and the same document and shall be deemed an original for all purposes.

Neither party will use the name of the other in any press release or other publicity without first obtaining that party’s prior consent in each such event.   Notwithstanding the foregoing, Instant may reference Employer in its client list provided to prospects without Employer’s consent.

This Agreement is subject to completion of an initial and annual due diligence review of Employer by Instant and Bank.  Employer shall provide requested documentation and information in order for the Instant and Bank to conduct due diligence.

Instant is and shall perform the Agreement as an independent contractor, and as such, shall have and maintain complete control over all of its respective employees, agents, and operations.  

Effective 2024