SQUARE CAPITAL AGREEMENT
This Loan Agreement (“Agreement”) is a contract between (i) person or people operating the business identified above as the Merchant (“Merchant,” “you,” “your”), (ii) Celtic Bank Corporation (“Bank,” “we,” “our” or “us”), as the originator and issuer of your loan, and (iii) Square, Inc. (“Square”) as the service provider to Bank, and (iv) collectively Merchant, the Bank and Square (“Parties”), entered into on the Execution Date set forth above . You must read, agree with, and accept all terms and conditions contained in this Agreement.
In consideration of the premises and the respective representations, warranties, covenants, agreements and conditions contained below and on the following pages, the Parties hereby enter into this Agreement and agree with the terms and conditions set forth herein.
“Bank” has the meaning set forth in the first paragraph of this Agreement.
“Business Day” means any day of the week from Monday through Friday. Federal legal public holidays specified in 5 U.S.C. § 6103(a) (or any successor to this section) are excluded.
“Card Network” means any payment network used to route payment card transactions, including but not limited to Visa, Mastercard, Discover, and/or American Express.
“Collateral Agent” means the party who will administer and service this Loan.
“Execution Date” means the date you enter into this Agreement, and is set forth in the summary box above.
“Existing Obligation Amount” is the amount that will be deducted from the Loan Amount under this Agreement to satisfy an existing loan through Square Capital, pursuant to Section 6.8 of this Agreement and specified in the summary box above.
“Linked Account” means any valid U.S. bank or other transaction account you have linked to your Upserve Account for purposes of receiving payment card processing through Upserve, thedeposit of the Loan Amount and repayment of your Loan via daily ACH withdrawal, or any valid U.S. bank or other transactional account you provide directly to Square for the purpose of thedeposit of the Loan Amount and repayment of your Loan via daily ACH withdrawal..
“Loan Amount” is the dollar amount of funds extended to you by Bank, in the amount specified in the summary box above.
“Loan Balance” is the amount you are obligated to pay under Section 2.1.2 as specified in the summary box above.
“Loan Funds Available” means the net amount available and deposited to your linked bank account after deductions of the Existing Obligation Amount from your Loan Amount, pursuant to Section 6.8 of this Agreement, and specified in the summary box above.
“Merchant” has the meaning set forth in the first paragraph of this Agreement.
“Network Rule” means the respective bylaws, rules, and regulations, as they exist from time to time, of the Card Networks.
“Origination Date” means the date the Loan Funds Available are disbursed to your linked bank account.
“Origination Fee” means the fee assessed by Bank for entering into this Agreement, in the amount specified in the summary box above.
“Parties” has the meaning set forth in the first paragraph of this Agreement.
“Receivables” means the total amount of receivables resulting from bona-fide sales using a US-issued or widely accepted non-US issued credit, debit, prepaid, or gift cards with a Card Network logo which are processed through Upserve.
“Repayment Rate” means the percentage of Receivables generated by Merchant and processed by Upserve, as set forth in the summary box above, that will be debited from your Linked Account each day you process payments and will continue to be applied to your Loan Balance until such balance is paid in full.
“Repayment Start Date” means the date your repayment obligations begin, and is specified in the summary box above.
“Square” has the meaning set forth in the first paragraph of this Agreement.
“Term” has the meaning set forth in Section 2.1.3 of this Agreement.
“Upserve” means a third party provider of restaurant management software, payment processing and related services.
“Upserve Account” means all accounts at Upserve that are identified with or used by the Merchant and through which proceeds from the Merchant’s payment card transactions are processed.
“Upserve Agreement” means Upserve’s restaurant management software, payment processing and related services agreement.
II. Information About Your Loan
2.1 Extension of Credit. Bank is extending the Loan Amount plus the Origination Fee (“Loan Balance”) specified in the summary box above. In exchange, you agree as follows:
2.1.1 Business Purpose. You are requesting the Loan Amount for business purposes only. You understand that you are not receiving a consumer loan, and that statutory and regulatory protections for consumers will not apply to your loan.
2.1.2 Obligation to Repay. You agree to repay the Loan Amount plus the Origination Fee (“Loan Balance”). Bank will direct Square to withhold the Repayment Rate from your Linked Account each day you process payments with Upserve and while you have an outstanding Loan Balance. Your repayments shall be applied to and reduce the amount of your Loan Balance until such balance is paid in full. Your repayments begin on the Repayment Start Date.
2.1.3 Minimum Payment Obligations. You will (i) repay a minimum of 1/24th of the initial Loan Balance in each thirty (30) day period during the Term and (ii) repay the Loan Balance in full within 12 months from the Origination Date (the “Term”).
2.1.4 Early Repayment. You may repay your outstanding Loan Balance in full or in part at any time by contacting Square’s Support Center to arrange for repayment or sending a check to:
Square Capital Program Attn: Capital Servicing 1455 Market Street, Suite 600 San Francisco, CA 94103
2.1.6 Cancellation Period. You may cancel this Agreement anytime prior to the Repayment Start Date. If you cancel, Bank or its designee will debit the Loan Amount from your Linked Account, less amounts used to satisfy any existing obligations pursuant to 6.8 that will be reinstated. You will return the Loan Amount to Bank, less amounts used to satisfy any existing obligations pursuant to 6.8 that will be reinstated, even if you no longer have the funds in your Linked Account. In the event that you have any existing obligations pursuant to 6.8 and you elect to cancel this Loan Agreement (anytime prior to the Repayment Start Date), you hereby agree that any (i) Existing Obligation Amount remains due and payable, and (ii) terms, conditions, representations and covenants agreed to under any existing agreement will apply immediately upon cancellation of this Loan Agreement.
III. Consent for Electronic Signatures
3.1 Electronic Signature. In order to receive funds through the Square Capital Program, Bank must provide certain disclosures required by law. By clicking “I Accept”, which you hereby adopt as your electronic signature, you consent and agree that:
- Bank can provide all disclosures required by law and other information about your legal rights and duties to you electronically, including by e-mail, a Website portal or mobile phone application.
- Your electronic signature on agreements and documents has the same effect as if you signed them in ink and is evidence of your intention to be bound by this Loan Agreement.
- Electronic disclosures have the same meaning and effect as if you were provided paper disclosures.
- Disclosures are considered received by you within 24 hours of the time posted to Bank’s website, or within 24 hours of the time emailed to you unless Bank receives notice that the email was not delivered.
- Bank is responsible for sending notice of the disclosures to you electronically, but Bank is not responsible for any delay or failure in your receipt or review of the email notices.
3.2 Access to Disclosures. You understand that in order to access and retain the electronic disclosures you will need the following:
- A computer with an Internet connection.
- A current web browser that includes 128-bit encryption. Minimum recommended browser standards are Microsoft Internet Explorer version 8.0 and above (see www.microsoft.com/ie for current version), Mozilla Firefox current version (see www.mozilla.com for current version), Apple Safari current version (see www.apple.com/safari for current version), or Opera current version (see www.opera.com for current version). The browser must have cookies enabled.
- A valid email address.
- Sufficient storage space to save past disclosures and/or an installed printer to print them.
3.3 Confirmation. You hereby confirm that you have access to the necessary equipment to receive, access and print any disclosures that may be provided in electronic form. You understand that withdrawing your consent to receive electronic communications will be deemed a breach of your obligations under Section 7.3.
IV. Merchant Covenants
4.1 Merchant Covenants. Merchant agrees to comply with the performance covenants set forth in this Section IV (the “Merchant Covenants”). In this regard, Merchant irrevocably agrees that during the term of this Agreement, Merchant shall:
4.1.1 No Transfer. Not sell, transfer, assign or grant a security interest in the Receivables to another party;
4.1.2 Seller Agreement. Comply with the Upserve Agreement for the duration of this Agreement;
4.1.3 Card Processing. Except as otherwise permitted by Bank at Bank’s sole discretion, use Upserve exclusively for the processing of all of its payment card transactions pursuant to the Upserve Agreement and otherwise prevent the diversion of any of your Receivables to any processor other than Upserve;
4.1.4 Purpose of Business. Maintain your business in substantially the same manner as it existed as of the date of this Agreement;
4.1.5 Business Conduct. Conduct your business in a manner consistent with past practice unless you provide prior written notification to Bank
4.1.6 Upserve Account. Not terminate your Upserve Agreement unless you have otherwise satisfied your obligations under this Agreement;
4.1.7 Business Name. Conduct your business under the name provided herein and maintain any and all of your physical or virtual places of business, unless you provide prior written notification to Bank;
4.1.8 Control of Business. Not allow another person or company, including without limitation a franchisor company (if Merchant is a franchisee), to assume or take over the operation and/or control of Merchant’s business or business location, whether physical or virtual;
4.1.9 Sale of Business. Not sell, dispose, convey or otherwise transfer any of Merchant’s business or assets (other than inventory in the ordinary course of business), or grant a lien on any Receivables, without Bank’s prior written consent;
4.1.10 Requests from Bank or its Service Providers. Respond to Bank and its service providers within two (2) Business Days, or such longer period determined solely in Bank’s discretion, of receiving a reasonable request from Bank or its service providers for information and provide all such requested information;
4.1.11 Cooperation. Cooperate fully with Bank to take all necessary actions to effectuate each of its obligations hereunder, including but not limited to signing any and all documents Bank deems necessary and furnishing Bank with such information (including updated financial statements) as Bank may reasonably request from time to time;
4.1.12 Inspection. Permit Bank or its service providers, at Bank’s discretion, to perform a site inspection of Merchant’s business, at any reasonable time during the term of this Agreement without notice to you;
4.1.13 Taxes. Promptly pay all applicable federal, state and local taxes, including but not limited to employment, sales and use taxes;
4.1.14 Loan Default. Repay your Loan Balance as agreed in Section II, including satisfying the minimum repayment requirements of Section 2.1.3; and
4.1.15 Decline in Receivables. Not cause, either by direct action or inaction, the dollar amount of Receivables processed through your Upserve Account in any thirty (30) day period to be fifty (50) percent or less of the monthly minimum dollar amount of Receivables processed through your Upserve Account in the twelve (12) months prior to such period.
V. Merchant Representations and Warranties
5.1 Merchant represents and warrants that as of the Execution Date and during the term of this Agreement:
5.1.1 Organization. Merchant is a validly organized business under applicable state law.
5.1.2 Encumbrance of Receivables. Merchant has not sold and is not subject to any other contract that provides for the sale, assignment or any other transfer of any interest in its Receivables. Merchant’s Receivables are not subject to any claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever arising in connection with any dispute. Receivables are and will be bona fide and existing obligations of the Merchant’s customers arising out of the sale of goods and/or services in the ordinary course of Merchant’s business.
5.1.3 Reliance on Information. Merchant acknowledges that the Bank has and will continue to rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on behalf of Merchant in connection with Bank’s obligations hereunder.
5.1.4 Approvals. Merchant possesses and is in compliance with all permits, licenses, approvals, consents and any other authorizations necessary to conduct its business. Merchant is in compliance with, and the execution of this Agreement and consummation of the transaction contemplated herein will not conflict with, (i) any and all applicable federal, state and local laws and regulations, (ii) any agreements to which Merchant is a party, and (iii) Merchant’s articles or certificate of incorporation, bylaws, or other organizational documents. Merchant possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.
5.1.5 Authorization. Merchant has the power and authority to enter into and perform Merchant’s duties and obligations under this Agreement and any documents required to facilitate the transactions contemplated by this Agreement. Merchant is not a party to any contract or aware of any existing situation that would prevent Merchant from entering into or performing its obligations under this Agreement. Merchant has taken all necessary action to authorize their respective execution and delivery of, and performance under, this Agreement.
5.1.6 Other Proceedings and Bankruptcy. There is no action, suit, claim, investigation or legal, administrative, or arbitration proceeding pending or currently threatened whether at law or in equity or before any federal, state, local, foreign or other court, governmental department, commission, board, bureau, agency or instrumentality (collectively, “Governmental Authorities”) against Merchant. Merchant has not declared bankruptcy within the past seven years and is not currently contemplating the filing of a bankruptcy proceeding or closing or materially modifying Merchant’s business. Merchant is solvent and financially capable of fulfilling its obligations under this Agreement.
5.1.7 Good Standing. Merchant is validly existing and in good standing under any applicable laws of its state of organization. Merchant has all requisite power and authority to own, lease, pledge and operate its properties and assets and to carry on its business as presently conducted.
5.1.8 Conflicts With Other Agreements. The execution and delivery of, the consummation of the transactions contemplated hereunder, and compliance with the provisions of this Agreement, do not and will not conflict with other agreements to which Merchant is a party or beneficiary, or result in any of the following: (i) violation or default of other agreements to which Merchant is a party; (ii) entitlement of any person or entity to receipt of notice or right of consent; (iii) a right of termination, cancellation or acceleration of any obligation or to loss of a benefit; (iv) any increased, additional, accelerated or guaranteed rights or entitlement of any person or entity; or (v) creation of any claim on the properties or assets of Merchant.
5.1.9 Compliance With Laws. Merchant is in compliance with all statutes, rules, regulations, orders or restrictions of all applicable Governmental Authorities. All federal, state, local and foreign tax returns and tax reports, and all taxes due and payable arising there from required to be filed by Merchant have been or will be filed and paid, on a timely basis (including any extensions). All such returns and reports are and will be true, correct and complete. Merchant has no material liabilities and, to the best of its knowledge, knows of no material contingent liabilities, except current liabilities incurred in the ordinary course of business.
VI. Additional Terms
6.1 Security Interest. You agree to take such action as may be reasonably requested by the Collateral Agent to perfect the security interest you have granted to Bank and its appointed Collateral Agent in this Loan Agreement.
6.1.1 Bank has appointed Square to act as its “Collateral Agent” for purposes of representing Bank in connection with the security interest granted by you pursuant to this Section 6.1 and Square has accepted such appointment and has agreed to act as Collateral Agent for the Bank and its successors and assigns as contemplated by this Section 6.1.
6.1.2 To secure your obligations to repay the Loan Balance, you hereby grant, assign and pledge to Square, as Collateral Agent, a continuing and unconditional lien on and security interest in and to Receivables and any other funds in your Upserve Account.
6.1.3 This Agreement shall constitute written notice to all interested parties of the Collateral Agent’s security interest in the Receivables and your Upserve Account.
6.1.4 You acknowledge and agree that so long as any of your Loan Balance remains outstanding, your Upserve Account and any funds on deposit from time to time therein shall be under the sole dominion and control of the Collateral Agent. Neither you nor any other person or entity, acting by, through or under your business, shall have any control over the use of, or any right to withdraw any amount from your Upserve Account. Notwithstanding the foregoing, this Section 6.1.4 shall be deemed to be waived by Bank until such time as the occurrence of a breach of your obligations under this Agreement.
6.1.5 The security interest created in favor of the Collateral Agent by this Agreement secures the payment and performance of all of your Loan Balance under this Agreement and in respect of the Upserve Account (including reasonable attorney’s fees and expenses) so long as any of the Loan Balance remain outstanding.
6.1.6 Notwithstanding the foregoing, you and the Collateral Agent hereby permit Square (in its service provider capacity and not as Collateral Agent) to make withdrawals from your Linked Account for purposes of settling fees and charges owed to Square.
6.4 Termination of Agreement. Except as otherwise stated herein, this Agreement shall remain in full force and effect until the entire Loan Balance has been repaid to Bank.
6.5 Effect of Merchant Breach. If you breach any of your obligations in Section II, the covenants in Section IV or any of your representations, warranties or covenants found in this Agreement, Bank or its assignee shall be entitled, upon written notice to you, to (i) demand immediate repayment of the Loan Balance or (ii) increase your Repayment Rate to a rate determined by Bank or its assignee in its sole discretion. You agree to pay the outstanding Loan Balance within five (5) Business Days after receipt of such notice, or such longer period of time as requested by Bank or its assignee.
6.6 Effect of Multiple Upserve Accounts. Any attempt by you to receive payment card processing proceeds through multiple Upserve Accounts shall entitle Bank to consider any such Upserve Accounts as part of your Upserve Account for purposes of this Agreement. Bank may, at its option, (i) provide you with notice that additional Upserve Accounts are now considered part of your Upserve Account under this Agreement or (ii) exercise its remedies under this Agreement.
The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
6.7 Effect of Square Ceasing to Processing Loan Payments. Under contractual obligations that Square has and may have with various third parties, Square may be prevented from processing Loan payments from your Linked Account as described in Section 2.1.2 while you have an outstanding Loan Balance under this Loan Agreement. Such an event may result in the assignment or transfer of the servicing of this Loan Agreement and Square’s rights and remedies under this Loan Agreement without prior notice to you. In the event of a transfer of servicing, you hereby agree that you will (i) make equal weekly payments (which amount equals the remaining Loan Balance divided by the number of weeks through the remaining Term of your Loan) of the remaining Loan Balance over the remainder of the Loan Term to the designated service provider and payments may no longer be processed by Square) and (ii) comply with alternative payment timing, instructions and methods as provided by the designated service provider. In the event that alternative payment timing, instructions and methods are required, you will be provided with reasonable notification of those requirements, including a statement reflecting your outstanding Loan Balance and weekly payment amount, to be delivered within a reasonable time.
6.7.1 Effect of Upserve Ceasing to Report on Daily Merchant Receivables. If Upserve ceases to report to Square on your daily Receivables, as described in Section 2.1.2, while you have an outstanding Loan Balance under this Loan Agreement, you hereby agree that you will (i) make equal weekly payments (which amount equals the remaining Loan Balance divided by the number of weeks through the remaining Term of your Loan) of the remaining Loan Balance over the remainder of the Loan Term and (ii) comply with alternative payment timing, instructions and methods as provided by Square. In the event that alternative payment timing, instructions and methods are required, you will be provided with reasonable notification of those requirements, including a statement reflecting your outstanding Loan Balance and weekly payment amount, to be delivered within a reasonable time.
6.8 Satisfaction of Existing Obligation. In order to receive funds under this Agreement, you must fully satisfy any Existing Obligation Amount. Funds under this Agreement will not be made available until you have fully satisfied such Existing Obligation Amount.
6.8.1 If you have an Existing Obligation Amount on a loan through Square Capital, in order to receive this loan you hereby agree to make full repayment on any such other loan. The Existing Obligation Amount due on your existing loan will be deducted from the Loan Amount for such repayment before any remaining loan proceeds are made available to you.
7.1 Modifications; Amendments. Except as otherwise expressly provided in this Agreement, any provision of this Agreement may be modified or supplemented only by an instrument in writing signed by Bank, Square and Merchant.
7.2 Waiver. Bank’s failure to assert, or delay in exercising, any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
7.3 Notices; Consequences of Merchant’s Withdrawal of Consent to Receipt of Electronic Communications. Merchant agrees that Bank and Square may provide communications relating to this Agreement and the transactions contemplated herein electronically as described in Section I of this Agreement and Square’s E-Sign Consent policy. If Merchant withdraws its consent to receive electronic communications, such closure shall be treated in all respects by Bank as a breach by Merchant of a covenant in Section IV of this Agreement, and which shall entitle Bank to exercise the remedies set forth in Section VI of this Agreement (and which, in turn, shall obligate Merchant to pay the outstanding Loan Balance in full). Except as otherwise stated, notices to Bank must be sent by postal mail to: Square Capital Program, 1455 Market Street, Suite 600, San Francisco, California 94103.
7.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Merchant, Bank, Square and their respective successors and assigns, except that Merchant shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of Bank, which consent may be withheld in Bank’s sole discretion. Bank reserves the right to sell, transfer or assign this Agreement and any obligation hereunder with or without prior notice to Merchant. Square may, at Bank’s direction, sell, transfer or assign its obligations as the service provider with or without prior notice to Merchant.
7.5 Costs to Enforce Payable by Merchant. Bank and Square shall be entitled to receive from Merchant, and Merchant shall pay, all reasonable costs associated with a breach by Merchant of any of its obligations, covenants (including but not limited to the Merchant Covenants) or any of the representations and warranties of Merchant under this Agreement and the enforcement thereof, including but not limited to court costs and attorneys’ fees. For this purpose, “reasonable costs” shall include the costs, including attorneys’ fees, associated with defending, protecting, or enforcing Bank’s rights under this Agreement including in any bankruptcy proceeding. If Merchant files an action or commences arbitration against either Bank or Square and the matter is dismissed, or Bank or Square prevails in the matter, Merchant agrees to pay all of the other Party’s (or Parties’ if both Bank and Square are involved) attorneys’ fees and costs incurred in the matter, whether in court or arbitration.
7.6 Indemnification. In addition to all rights and remedies available to the parties hereto at law or in equity, Merchant shall indemnify Bank (and its respective employees, directors, agents, affiliates and representatives) and Square (and its respective employees, directors, agents, affiliates and representatives) (collectively, the “Indemnified Persons”), and hold harmless from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this Section ) , that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any misrepresentation or breach of warranty of Merchant under this Agreement; or (ii) any non fulfillment, default or breach of any covenant or agreement of Merchant in this Agreement.
7.7 Enforceability of Representations. All representations, warranties and covenants herein will be enforceable upon the execution and delivery of this Agreement and will continue in full force and effect until this Agreement has been terminated.
7.8 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, such determination will not affect the validity or enforceability of any other provision of this Agreement. In the event that any provision of this Agreement is held to be invalid, illegal, prohibited or unenforceable for any reason in any jurisdiction, such provision, as to such jurisdiction, shall, to the fullest extent permitted by applicable law, be ineffective without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
7.9 Complete Agreement. This Agreement, and any addendum and forms provided herewith, contains the complete agreement and understanding between Merchant, Bank and Square and supersedes all prior contracts and understandings relating to the matter of this Agreement unless otherwise specifically reaffirmed or restated herein.
7.10 Governing Law. This Agreement and any dispute arising hereunder will be governed by Utah law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Utah, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
7.11 Survival. This Section and Sections 7.4 (Binding Effect), 7.5 (Costs to Enforce Payable by Merchant), 7.6 (Indemnification), 7.8 (Severability), 7.9 (Complete Agreement), 7.10 (Governing Law), 7.12 (Limitation on Time to Initiate a Dispute) and 7.14 (Binding Individual Arbitration) shall survive after you repay your Loan Balance in full, including after the termination of this Agreement.
7.12 Limitation on Time to Initiate a Dispute. Unless otherwise required by law, an action or proceeding by Merchant relating to any dispute arising under this Agreement must commence within one year after the cause of action occurs or becomes enforceable.
7.13 Merchant’s Disputes. If Merchant has any dispute of any kind with Bank under this Agreement, Merchant agrees to promptly notify Bank in writing of the dispute and all related facts.
7.14 Binding Individual Arbitration. You, Bank and Square agree to arbitrate all disputes arising under or in connection with this Agreement. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST BANK OR SQUARE. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this provision and the applicable arbitration rules. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in San Francisco, California. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any dispute against Bank, Bank will pay all the arbitration fees, which fees will be added to any award in favor of Bank. For any dispute against Square, Square will pay all the arbitration fees. For purposes of this arbitration provision, references to you, Bank and Square also include respective subsidiaries, affiliates, agents (including Square as an agent and service provider to Bank), employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Square Capital Program and Square processing services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.