LEGAL DOCUMENTATION

Visa Direct Bank Service Terms

These Visa Direct Bank Service Terms (“Terms”) are between you (“Client”), Dwolla, Inc. (“Company”) and Pathward, National Association (“Sponsor Bank”). Each may be referred to as a “Party” or collectively as “Parties.” Company’s and Sponsor Bank’s agreement to these Terms shall be evidenced by Sponsor Bank’s registration of Client with the applicable Systems.

The parties agree:

1. Direct to Debit (D2D) Service. Company (along with the Sponsor Bank) will provide Client with the services described in these Terms (collectively, the “D2D Service”) to enable Client to make payments to payees via the Systems utilizing the Visa Direct service designed for real-time disbursements or account-to-account money transfers sponsored by Sponsored Bank (“D2D Transactions”). The D2D Service will provide Client and payees with access to Company’s infrastructure that will facilitate the acceptance and payment of D2D Transactions sponsored by Sponsored Bank. Upon receipt of the transaction details from Client and the payee, Company will instruct Sponsor Bank to initiate a D2D Transaction to be credited to the payee’s Card through the relevant System. Client acknowledges and agrees that D2D Transactions operate on a “good funds” model in which settlement is guaranteed. As between the Parties, Client shall be solely responsible and liable for the funding of all D2D Transactions, returns, and all errors in connection with the D2D Transactions resulting from incomplete and/or inaccurate data submitted by Client or any payees. As between the Parties, Client is solely responsible for ensuring that accurate information is provided in connection with a D2D Transaction. Bank, Company and the Systems are not responsible for attempting to reverse any such D2D Transaction. Client acknowledges that once transmitted, a D2D Transaction is irrevocable.
2. Relation to Customer Agreement. The D2D Service is being offered as a supplemental service to the other services provided by Company under the customer agreement to which these Terms are attached. These Terms supplement and are intended to be part of the customer agreement between Company and Client. The applicable terms of the customer agreement are hereby ratified, affirmed and incorporated herein and shall continue to apply in all respects with respect to the D2D Services, except as amended hereby. To the extent there is a conflict between these Terms and the customer agreement, these Terms shall govern with respect to the D2D Services.
3. Payment Processing.
   1. Sponsor Bank’s Role. Sponsor Bank is a member of Visa and various Card transaction networks (“Systems”) and participates in the Visa Direct service as a sponsor bank to acquire D2D Transactions on behalf of its customers. A “Card” is a card, code, device, or other means allowing access to a payee’s demand deposit, prepaid, or similar account. The Sponsor Bank sponsors Company under the System Rules, allowing Company to process payment authorizations, transmissions, and settlement activities for debit Card transactions under the Sponsor Bank’s direction. With respect to D2D Transactions, the Sponsor Bank’s responsibilities are limited solely to the sponsorship and settlement of D2D Transactions submitted in accordance with these Terms and the System Rules, and Sponsor Bank will not have any obligation or liability of any nature in connection with any services of any kind provided by Company or its agents or subcontractors.
   2. System Rules. Client will comply with all applicable rules, requirements, and standards of each of the Systems related to the D2D Transactions (together, “System Rules”). Client acknowledges and agrees that neither Sponsor Bank nor Visa is obligated to provide the Visa Direct service with respect to requested D2D Transactions that are prohibited under the System Rules or applicable laws. Company and the Sponsor Bank have no responsibility to Client for a System’s performance obligations, responsibilities, or liabilities to Client with respect to the System’s processing under their System Rules. Client will not use, retain, disclose, sell, or disseminate any Personal Data (defined below) of payees obtained solely for the purpose of effecting D2D Transactions except for (1) authorizing, processing, and settling D2D Transactions; or (2) resolving retrieval requests or similar service issues related to its D2D Transactions.
   3. Locations; Permitted Use. Client acknowledges and agrees that D2D Transactions may only be made to accounts within the United States. Client further acknowledges and agrees that the Visa Direct service may only be utilized to make payments owed to payees by Client. Client is not permitted to use the Visa Direct service to make D2D Transactions to payees on behalf of third parties.
   4. Submitting D2D Transactions. Client is responsible for:
      1. properly transmitting the payment data to Company’s systems using the format and specifications provided by Company; and
      2. all D2D Transactions submitted for processing under Client’s merchant identification numbers (MIDs).
   5. D2D Transaction Acceptance. Client will only submit D2D Transactions where:
      1. the transaction represents a genuine disbursement from Client to the payee;
      2. the transaction complies with all requirements of the applicable System Rules, the laws of all relevant jurisdictions, and all other requirements of these Terms;
      3. the transaction is not a duplicate of any other transaction.
   6. Notifications. Client shall promptly notify Company in writing of the following:
      1. Any communication from any governmental authority which suggests or may suggest that the activities of Client, Company, Sponsor Bank or Visa in connection with these Terms may be in violation of any law;
      2. Any change in law that Client reasonably believes may result in the activities of it, Company, Sponsor Bank or Visa to be in violation of any law.
   7. Reselling. Client shall not authorize or appoint any dealers, agents, representatives, sub-resellers, or other third parties to bind Visa by marketing, offering for sale or selling the Visa Direct service.
   8. Payee Disclosures. Client agrees that Sponsor Bank-approved payee disclosures governing the D2D Transactions sponsored by Sponsor Bank pursuant to these Terms must be presented to payees to ensure compliance with applicable law and the System Rules. Client shall ensure that it complies with the terms set forth in its privacy notice to payees, if applicable.
   9. Identity Verification. Client shall be responsible for conducting commercially reasonable identity verification on each payee prior to making a D2D Transaction pursuant to these Terms. Client shall not engage in any activities related to the Visa Direct service with an entity or an individual who has not been appropriately verified. Client is liable for all losses related to Client’s insufficient verification of payee identity.
   10. Compliance. At all times, and without limiting the generality of any other provision in these Terms, Client shall: (i) comply with applicable laws relating to Client’s business activities, including money transmission laws, laws related to anti-money laundering (including, without limitation, the Bank Secrecy Act, Title III of the USA PATRIOT Act, and the implementing regulations promulgated by the Financial Crimes Enforcement System) and any related or similar laws issued, administered or enforced by any government authority; (ii) comply with applicable laws relating to economic sanctions, including, without limitation, applicable laws administered or enforced by OFAC; (iii) identify and report suspicious activity in accordance with applicable laws and (iv) comply with the Foreign Corrupt Practices Act and all other anti–corruption and anti- bribery laws.
   11. Suspicious Activities Reporting. Client shall notify Company of any suspicious or fraudulent activities as soon as practicable and in no event later than five (5) days after Client becomes aware of such activities.
   12. Fraud Detection. Client agrees to cooperate in good faith and provide reasonable assistance in Visa’s or Sponsor Bank’s fraud detection and prevention efforts. Client agrees that Visa, Sponsor Bank and Company may use Client information related to D2D Transactions (including Personal Data) for identifying, monitoring and remediating fraud.
   13. Transaction Limits. Client acknowledges and agrees that D2D Transactions facilitated by the Visa Direct service will be subject to transaction limits (e.g., amount per D2D Transaction and velocity of D2D Transactions) as determined by Visa or Sponsor Bank from time to time (“Limits”). Client further acknowledges and agrees that: (i) each other System and each receiving institution may establish limits for D2D Transactions and (ii) D2D Transactions are also subject to other limits which are separate from the Limits imposed by Visa (in providing the Visa Direct service and in its capacity as a System) and may affect the successful processing of D2D Transactions. The Sponsor Bank and the Systems do not guarantee that any D2D Transaction will be accepted and posted to the applicable payee’s account and Sponsor Bank and each System have the right, but not the obligation, to refuse to facilitate any D2D Transaction that exceeds the Limits or any other limits applicable to a D2D Transaction. Client acknowledges and agrees that neither Sponsor Bank nor Company shall be responsible for any such rejected D2D Transactions. Client agrees to enforce the Limits and any other limits applicable to a D2D Transaction, to the extent within Client’s control.
   14. Maintenance of Operating Account. Client shall deposit sufficient funds in the holding  account of Company’s financial institution partner (as identified in the Dwolla Terms of Service available at www.dwolla.com/tos) to cover any D2D Transactions requested by Client and contemplated by these Terms. If such amounts are insufficient to fund a D2D Transaction, Client acknowledges that Visa and Sponsor Bank have the right to decline to facilitate any D2D Transaction via the Visa Direct service.
   15. Marketing; Announcements.
       1. Visa Brand Marks. Client shall not, use any of the Visa brand marks without Visa’s prior written approval in each instance.
       2. Marketing Obligations. Client must obtain Visa’s and Sponsor Bank’s prior written approval for any materials used by Client to market the Visa Direct service.
4. Financial Information; Audit. Client will promptly provide any financial or other information reasonably requested by Company, on Sponsor Bank’s behalf, to perform credit risk, security, qualification, and other reviews related to the provision of the D2D Service, D2D Transactions submitted, compliance with these Terms, or the financial condition of Client. Client authorizes Company to obtain information from third parties when performing credit risk, security, qualification, and other reviews. Company or its designee, on Sponsor Bank’s behalf, may perform a reasonable audit of Client’s records related to its performance under these Terms with 30 days’ advance written notice to Client, during Client’s normal business hours, and at Company’s or the Sponsor Bank’s expense.
5. Notice of Material Changes; Third Parties. Client will provide Company with reasonable advance notice of any material change in the nature of Client’s business (including any change in control or merger, any liquidation, any transfer or sale of substantially all of its assets, or any change to Client’s operations that would materially affect the products or services sold, the procedures for payments acceptance, or the fulfillment of obligations to a payee). If applicable, Client will provide Company with written disclosure identifying the third parties, systems, and services Client uses to receive, transmit, process, or otherwise manage information or its information technology systems (e.g., without limitation, encryption or firewall providers) related to the transaction information or payment data processed in connection with these Terms.
6. Client’s Payment Obligations. Client will pay Company for:
   (1) all fees and charges for the D2D Service; and
   (2) all costs, liabilities, fines, or other obligations imposed on Company or the Sponsor Bank by the Systems or other third parties resulting from Client’s errors, omissions or inaccurate information provided in connection with D2D Transactions submitted on Client’s behalf.
7. Term. These Terms shall commence on the date these Terms are executed by Client (that date, the “Effective Date”) and will thereafter be co-terminus with the term of the Customer Agreement between Company and Client (the “Term”), unless terminated earlier pursuant to Section 7 below.
8. General Suspension; Termination.
   1. General Termination. A Party may terminate these Terms by giving 30 days’ advance written notice if another Party materially breaches these Terms and fails to remedy the breach within 30 days of receiving notice of such breach.
   2. Risk Termination. Company or Sponsor Bank may immediately suspend or terminate these Terms, in its discretion, upon notice if Client:
      1. engages in fraud, misrepresentation, or intentional misconduct related to its performance under these Terms;
      2. experiences a material adverse change in its financial condition (including the failure to pay any of its debts);or
      3. a System, a governmental authority, or the Sponsor Bank issues an instruction for Client or Company to suspend its performance under or terminate these Terms.
   3. Upon the termination of performance of these Terms, the Parties shall reasonably cooperate to establish a mutually acceptable plan for discontinuing the Visa Direct service.
9. Confidential Information.
   1. Confidentiality. No Party will disclose non-public information about another Party’s business (including these Terms, technical specifications, customer lists, or information relating to a party’s operational, strategic, or financial matters) (together, Confidential Information). Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each party will implement and maintain reasonable safeguards to protect the other Party’s Confidential Information.
   2. Disclosure. The recipient may disclose another’s party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its subsidiaries, affiliates, subcontractors or vendors) that need to know it in connection with the recipient’s performance under these Terms, and are bound by confidentiality obligations materially similar to those required under these Terms; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable laws or System Rules.
10. Data Security.
    1. Client is responsible for any unauthorized access to any D2D Transaction data or Personal Data of payees maintained on Client’s systems or the systems of third parties retained by or on behalf of Client. “Personal Data” means any information relating to a payee that is collected, stored, transmitted or processed in connection with the Visa Direct service.
    2. If applicable, Client shall comply with Payment Card Industry Data Security Standards (PCI DSS) and obtain timely certification of its systems and processes (which must be maintained during the Term) as required under the System Rules. Client will comply with all additional standards that the Systems may require. If applicable, Client will allow the Systems, Company, or the Sponsor Bank to audit its PCI DSS compliance and information technology systems related to the D2D Services provided under these Terms.
    3. Each Party shall comply with all PCI DSS requirements, the System Rules and all applicable privacy and data protection laws and requirements that apply to its performance under these Terms.
    4. To the extent Client collects, accesses, stores or processes Personal Data of payees in connection with the Visa Direct service, Client shall, maintain a comprehensive written information security program that complies with all applicable privacy and data protections laws and requirements and includes technical, physical, and administrative/organizational safeguards designed to (a) ensure the security and confidentiality of Personal Data, (b) protect against any anticipated threats or hazards to the security and integrity of Personal Data, (c) protect against any actual or suspected unauthorized access, loss, or acquisition of any Personal Data, (d) ensure the proper disposal of Personal Data, and (e) regularly test or otherwise monitor the effectiveness of the safeguards.
    5. Security Incident.
       1. If a party becomes aware that there has been unauthorized access to transaction data or Personal Data of a payee (a “Security Incident”), it will promptly notify the other parties. Each party will take reasonable steps to contain, control, stop, and remediate any Security Incident.
       2. The party suffering the Security Incident will provide reasonable details regarding the Security Incident to, and cooperate with, the other parties, any Systems, and the forensics firms that are involved in the investigation and remediation of a Security Incident. Each Party will take all actions that the Systems require in connection with the investigation and remediation of a Security Incident.
       3. Each party will reimburse the others for all fines, fees, penalties, assessments, or other obligations of any kind imposed by a System or a regulator on the other parties due to a Security Incident caused by it or its third party service providers (together, “System Security Fees”).
11. Indemnification.
    1. Client will indemnify Sponsor Bank (including their respective affiliates, directors, officers, managers, and employees) for losses, damages, costs, or expenses (together, Losses) due to third party claims that result from Client’s or its third party service providers gross negligence, willful misconduct, or breach of these Terms.
    2. Sponsor Bank or Company will promptly notify Client of any third party claim that is subject to indemnification under these Terms. Client will have the opportunity to defend these claims using counsel it selects and will have the authority to enter into a settlement for monetary damages provided that it pays such amounts. The parties will cooperate with regard to any other conditions of settlement as well as in providing records, access to personnel or other information reasonably necessary to defend any indemnified claims.
12. Exclusion of Damages. Sponsor Bank and Client will not be liable to each other for lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages (whether direct or indirect) under these Terms; regardless of whether these damages were foreseeable or a party was advised they were possible.
13. Limitation of Liability. The Sponsor Bank will have no liability to Client except for what is set forth in Section 3.1 and such liability will be limited to Client’s actual damages caused by Sponsor Bank’s gross negligence or willful misconduct in an amount not to exceed the fees paid to Sponsor Bank by Company related to D2D Transactions made on Client’s behalf during the three (3) months preceding the date on which the claim arose.
14. Notices. Written notices (other than normal operations) required under these Terms will be sent by email, certified mail, or courier (all with tracking and delivery confirmation). Notices will be effective upon receipt. Notices to Sponsor Bank will be sent to: Pathward, 5501 S. Broadband Lane, Sioux Falls, SD 57108 Attention: General Counsel.
15. Third Party Beneficiaries, Providers. There are no third party beneficiaries to these Terms. Each party is responsible for the performance of any third parties it uses in connection with the D2D Service, and their compliance with the terms of these Terms.
16. Waivers. A party’s waiver of a breach of these Terms will not be considered a waiver of a subsequent breach.
17. Compliance with Law, Waiver of Jury Trial. The parties will comply with all laws and System Rules that are applicable to their respective performance obligations under these Terms. These Terms will be governed by Delaware law (without regard to its choice of law provisions). The courts of Delaware will be the proper venue for legal proceedings brought in connection with these Terms. Each Party waives it right to a jury trial for claims arising in connection with these Terms.
18. Entire Agreement, Amendment, Counterparts. These Terms include its schedules, addenda, and any amendments (capitalized terms used in the schedules, addenda, or amendments without definition will have the meanings given to them in these Terms). These Terms constitute the entire agreement between the parties and replaces any prior agreements or understandings (written or oral) with respect to its subject matter. These Terms and any addenda, or amendments may be executed electronically and in counterparts, each of which constitutes one agreement when taken together. Electronic and other copies of the executed Terms are valid.
19. Assignment. Client may not assign these Terms without Sponsor Bank’s and Company’s written consent (not to be unreasonably withheld). These Terms will be enforceable against a party’s permitted successors or assigns.
20. Publicity. Client must obtain prior written approval for any publicity related to the Sponsor Bank and its role in connection with these Terms.