This Loan Agreement (“Agreement”) is a contract between (i) the authorized individual acting on behalf of the business at the merchant address identified above, as such address may be updated from time to time in accordance with the term of this Agreement, as the Merchant (as applicable, each individually or collectively, “Merchant,” “you,” or “your”), (ii) Celtic Bank Corporation (“Bank”), as the originator and issuer of your loan, and (iii) Square Capital, LLC (“Square Capital”) as the service provider to Bank, and (iv) collectively Merchant, the Bank and Square Capital (“Parties”), and (v) Square, Inc. solely as processor of your payment card transactions, is 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.
“Cancellation Period End Date” means the date, specified in the summary box above prior to which you may cancel this Agreement.
“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 (i) an existing loan through Square Capital or (ii) an existing obligation to deliver future payment card receivables as defined in your Future Receivables Purchase and Sale Agreement, pursuant to Section 6.8 of this Agreement and specified in the summary box above.
“Linked Account(s)” means any valid U.S. bank or other transaction account you have linked to your Square Account for purposes of (i) receiving payment card processing proceeds through Square, Inc., (ii) processing the deposit of the Loan Amount; and/or (iii) repayment of your Loan through Square Capital via 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 Account after deductions of the Existing Obligation Amount (if applicable) from your Loan Amount, pursuant to Section 6.8 of this Agreement, and specified in the summary box above.
“Loan Term” means the total period of time, reflected in months, that your obligation is scheduled for full repayment, in the amount 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 is approved, as identified in the summary box above.
“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.
“Payment Frequency” means the recurrent interval between payments due over the Loan Term, as specified in the summary box above.
“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 acceptable to Square, Inc. (collectively, the “Accepted Cards”) or such other payment method deemed acceptable to Square, Inc.
“Repayment Start Date” means the date your repayment obligation begins, and is specified in the summary box above.
“Scheduled Payment” means the amount due on your loan as of each Scheduled Payment Due Date as set forth in the summary box above.
“Scheduled Payment Due Date” means the date a Scheduled Payment is due starting on the Repayment Start Date and then repeating according to the Payment Frequency for the Loan Term. Your first payment will be due one month after the Origination Date of your loan and monthly thereafter. If your loan is originated on the 29th, 30th, or 31st, your Scheduled Payment Due Date will be the 1st of the month after next. For example, if your loan is accepted on January 29th, then your Repayment Start Date will be due on March 1st, and Scheduled Payment Due Dates after that will be due on the 1st of the following months.
“Square Capital” has the meaning set forth in the first paragraph of this Agreement.
“Square Account” means all accounts at Square, Inc. that are identified with or used by the Merchant and through which proceeds from the Merchant’s payment card transactions are processed.
“Square, Inc.” has the meaning set forth in the first paragraph of this 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 acknowledge and agree that funds received under this Agreement are for business purposes only and any proceeds from this Agreement, including the Loan Amount, will be not be used for personal, family or household purposes. You understand that you are not receiving a consumer loan, and that statutory and regulatory protections for consumers will not apply to your loan. You also understand that Bank (and/or its agents and assignees) will confirm whether the use of any funds provided confirms to this section. You agree that a breach of the provisions of this section will not affect Bank’s (and/or any of its agents and assignees) right to (i) enforce your promise to pay for all amounts owed under this Agreement, regardless of the purpose for which the funds are in fact obtained or (ii) use any remedy legally available to Bank (or its agents and assignees), even if that remedy would not have been available had the funds been provided for consumer purposes.
2.1.2 Obligation to Repay. You agree to repay the Loan Amount plus the Origination Fee (“Loan Balance”). While you have an outstanding Loan Balance, Bank will direct Square Capital to process an ACH debit for the Scheduled Payment from your Linked Account at the Payment Frequency. Your repayments will be applied to and reduce the amount of your Loan Balance until the balance is paid in full. Your repayments begin on the Repayment Start Date.
2.1.3 ACH Authorization. You authorize Bank (including its agents and assignees), to make recurring debits to your Linked Account in accordance to the terms of this Agreement. You further authorize Bank (including its agents and assignees) to make an initial credit to your Linked Account to fund your loan or where applicable pursuant to this Agreement. In the event you decide to prepay your Loan Balance or need to make a payment for other amounts due under the terms of this Agreement, you authorize Bank (including its agents and assignees) to debit any Linked Account. You acknowledge and agree to be bound by NACHA’s rules for business-related ACH debits and credits.
2.1.4 Early Repayment. You may repay your outstanding Loan Balance in full or in part at any time by (i) using the repayment feature on your Square Account Dashboard, (ii) contacting the Square Capital Support Center to arrange for repayment, or (iii) sending a check to:
Square Capital Program Attn: Capital Servicing 1455 Market Street, Suite 600 San Francisco, CA 94103
2.1.5 Late Payments. You will be charged a 2% monthly fee on any past due Scheduled Payment. A Scheduled Payment will become past due when it is not paid by the next Scheduled Payment Due Date. Any amounts paid by you or collected by Collateral Agent will be applied (i) first to any late fees owed, (ii) then to past due Scheduled Payment(s), (iii) then to the current Scheduled Payment due, and (iv) then toward any remaining Loan Balance.
2.1.6 Failed Debit. In the event Bank (including its agents and assignees) is unable to debit a Linked Account for a Scheduled Payment or past due Scheduled Payment, Bank (or its agents or assignees) may additionally instruct Square, Inc. to withhold up to 100% of funds from gross Receivables held in your Square Account to be applied to your Scheduled or Past due Payments and applicable late fees.
2.1.7 Cancellation Period. You may cancel this Agreement by contacting the Square Capital Program through the Square Capital Support Center anytime prior to the Cancellation Period End Date. If you cancel, Bank (including its agents and assignees) will debit the Loan Amount from your Linked Account. Your loan will not be deemed cancelled if the debit to your Linked Account is unsuccessful. 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 Obligation Amounts pursuant to 6.8 and you elect to cancel this 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 Agreement.
III. Consent for Electronic Signatures
3.1 Electronic Signature. In order to receive the Loan Amount, Bank must provide certain disclosures required by law. By submitting your application, which you hereby adopt as your electronic signature, you consent and agree as follows.
3.1.1 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.
3.1.2 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 Agreement.
3.1.3 Electronic disclosures have the same meaning and effect as if you were provided paper disclosures.
3.1.4 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.
3.1.6 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.
3.2.1 A computer or mobile device with Internet or mobile connectivity.
3.2.2 For desktop website-based Communications. The latest web browser that includes 256-bit encryption. The browser must have cookies enabled. Use of browser extensions may impair full website functionality. Minimum recommended browser standards are Mozilla Firefox latest version (see http://www.mozilla.com for latest version), Apple Safari latest version (see http://www.apple.com/safari for latest version), or Chrome latest version (see http://www.google.com/chrome for latest version).
3.2.3 For mobile-based Communications. A latest device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and the latest version of Safari or Chrome on iOS or the latest version of Chrome for Android.
3.2.4 Access to the email address used to create your Square Account.
3.2.5 Sufficient storage space to save Communications and/or a printer to print them.
3.2.6 Use of spam filters may block or re-route emails from senders not listed in your email address book.
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, 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 Square, Inc. Terms of Service and any applicable Additional Terms, and Commercial Entity Agreement (if applicable), governing Merchant’s use of Square Inc.’s mobile and website applications, payment processing services, and hardware products;
4.1.3 Card Processing. Use Square, Inc. exclusively for the processing of all of your payment card transactions and not cause, either by direct action or inaction, the dollar amount of Receivables processed through your Square Account in any thirty (30) day period to be fifty percent (50%) or less of the dollar amount of Receivables processed through your Square Account in any calendar month during the twelve (12) months prior to such period.
4.1.4 Card Acceptance. Not take any action to discourage use of Accepted Cards as payment for Merchant transactions or permit any event to occur that could have an adverse effect on the acceptance, authorization or use of Accepted Cards by purchasers of the Merchant’s products and/or services, with the exception that Merchant may impose any charge on credit card transactions permitted by the applicable card associations’ rules and regulations;
4.1.5 Purpose of Business. Maintain your business in substantially the same manner as it existed as of the date of this Agreement unless you provide prior written notification to Bank;
4.1.6 Business Conduct. Conduct your business in a manner consistent with past practice unless you provide prior written notification to Bank (and its agents and assignees, as applicable);
4.1.7 Square Account. Not terminate your Square Account pursuant to the Square, Inc. Terms of Service and any applicable Additional Terms unless you have otherwise satisfied your obligations under this Agreement;
4.1.8 Card Network Compliance. Remain in full compliance with applicable Network Rules and not be classified as a higher risk by any Card Network;
4.1.9 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 and the Collateral Agent;
4.1.10 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;
4.1.11 Sale of Business. Not sell, dispose, convey or otherwise transfer any of Merchant’s business or assets (other than in the ordinary course of business), or grant any lien not in effect on the date of this Agreement on any Receivables, without Collateral Agent’s prior written consent;
4.1.12 Requests from Bank. Respond to Bank (including its agents, assignees and service providers) within two (2) Business Days, or such longer period determined solely in Bank’s (including its agents, assignees and its service providers) discretion, of receiving a reasonable request from Bank (including its agents, assignees and its service providers) for information and provide all such requested information;
4.1.13 Cooperation. Cooperate fully with Bank (including its agents, assignees and its service providers) to take all necessary actions to effectuate each of its obligations hereunder, including but not limited to signing any and all documents Bank (including its agents, assignees and its service providers) deems necessary and furnishing Bank with such information (including updated financial statements) as Bank may reasonably request from time to time;
4.1.14 Inspection. Permit Bank or its service providers, at Bank’s discretion, to perform a site inspection of your business, at any reasonable time during the Term without notice to you; and
4.1.15 Taxes. Promptly pay all applicable federal, state and local taxes, including but not limited to employment, sales and use taxes.
V. Merchant Representations and Warranties
5.1 Merchant represents and warrants that as of the Execution Date and during the Term:
5.1.1 Capacity. The individual executing this Agreement is authorized on behalf of the Merchant to do so, with all necessary power and authority to bind Merchant to this Agreement, has the legal capacity to do so and is at least 18 years of age.
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 which are enforced in connection with an exercise of remedies by the holder of such interest. 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 (including its agents, assignees and service providers) 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 neither is 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 and all Network Rules. 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 Agreement.
6.1.1 Bank has appointed Square Capital 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 Capital 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 Capital, as Collateral Agent, a continuing and unconditional lien on and security interest in and to Receivables and any other funds in your Square 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 Square Account. Square, Inc. agrees to the lien and security interest of Square Capital (as Collateral Agent for the Bank or its assignees) on and in the Receivables and any other funds credited to your Square Account and agrees that it shall hold your interest in the Receivables and any other funds credited to your Square Account for the benefit of Square Capital, as Collateral Agent, and shall, subject to the terms hereof, comply with Square Capital’s directions with respect to the Receivables and other funds credited to your Square Account.
6.1.4 You acknowledge and agree that so long as any of your Loan Balance remains outstanding, your Square 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 Square 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 of all of your Loan Balance under this Agreement (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, Inc. (in its servicer provider capacity and not as Collateral Agent) to make withdrawals from your Linked Account for purposes of settling fees and charges owed to Square, Inc., including without limitation, late fees.
6.2 Processing and Other Fees. Merchant shall be solely responsible for the payment of any processing fees and other charges imposed in accordance with the Square, Inc. General Terms of Service and any applicable Additional Terms or any other agreement between Merchant and Square, Inc.
6.3 Merchant’s Transactional Information. Merchant hereby agrees to provide to Bank and Square Capital, from time to time upon request, transaction files maintained by Merchant, and any other information related to past payment processing volumes or the transactions contemplated by this Agreement, whether formed for the purpose of audit or otherwise.
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 agent and assignee shall be entitled, upon written notice to you, to (i) use any funds available in your Square Account to repay, some or all, outstanding amount, and/or (ii) demand immediate repayment of the Loan Balance. 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 agent and assignee.
6.6 Effect of Multiple Square Accounts. Any attempt to receive your payment card processing proceeds through multiple Square Accounts shall entitle Bank to consider any such Square Accounts as part of your Square Account for purposes of this Agreement. Bank (including its agent or assignee) may, at its option, (i) provide you with notice that additional Square Accounts are now considered part of your Square Account under this Agreement or (ii) exercise its other remedies under this Agreement.
6.7 Transfer of Servicing. In the event Square Capital transfers the servicing of your loan, you hereby agree that you will (i) continue making Scheduled Payments on the agreed upon Scheduled Payment Due Dates during the remainder of the Loan Term, 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 any change to your Scheduled Payment Due Dates, 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.
6.8.2 If you have an Existing Obligation Amount on a Future Receivables Purchase and Sale Agreement, in order to receive this loan you hereby agree to fully satisfy your obligations under such other agreement. The Existing Obligation Amount due on your Future Receivables Purchase and Sale Agreement will be deducted from the Loan Amount before any remaining loan proceeds are made available to you.
6.9 Effect of Breach. Bank and its agents and/or assigns each has the right to enforce the repayment of your Loan Balance pursuant to the terms of this Agreement, and in the instance of nonpayment of your Loan Balance will enforce those rights solely against Merchant’s business assets, including but not limited to the property and interests described in Section 6.1.2 above. This does not limit your duties and performance obligations under this Agreement, including but not limited to your payment obligation in Section 2.1.2 and the Bank’s enforcement rights.
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 Capital 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 Consequences of Merchant’s Withdrawal of Consent to Receipt of Electronic Communications. Merchant agrees that Bank and Square Capital may provide communications relating to this Agreement and the transactions contemplated herein electronically as described in Section I of this Agreement and Square, Inc.’s E-Sign Consent policy. Square Capital reserves the right to close Merchant’s Square Account if Merchant withdraws its consent to receive electronic communications, which 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).
7.4 Notices. Except as otherwise stated, notices to Bank or Square Capital must be sent by postal mail to: Square Capital Program, 1455 Market Street, Suite 600, San Francisco, California 94103.
7.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Merchant, Bank, Square Capital and their respective successors and assigns, except that Merchant shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Bank, which consent may be withheld in Bank’s sole discretion. Bank (including its agents, assignees and service providers) reserves the right to sell, transfer or assign this Agreement and any obligation hereunder with or without prior notice to Merchant. Square Capital may, at Bank’s direction, sell, transfer or assign its obligations as the service provider with or without prior notice to Merchant.
7.6 Costs to Enforce Payable by Merchant. Bank and Square Capital 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 returned check fees, 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 Capital and the matter is dismissed, or Bank or Square Capital prevails in the matter, Merchant agrees to pay all of the other Party’s (or Parties’ if both Bank and Square Capital are involved) attorneys’ fees and costs incurred in the matter, whether in court or arbitration.
7.7 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 Capital (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.
7.8 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.
7.9 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Network Rule, 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.
7.10 Complete Agreement. This Agreement, and any addendum and forms provided herewith, along with any other Square Capital or Square, Inc. agreement referenced herein, contains the complete agreement and understanding between Merchant, Bank, Square Capital, and Square, Inc. and supersedes all prior contracts and understandings relating to the matter of this Agreement unless otherwise specifically reaffirmed or restated herein.
7.11 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.
7.12 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.
7.13 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.
7.14 Merchant’s Disputes. If Merchant has any dispute of any kind with Bank under this Agreement, Merchant agrees to promptly notify Square Capital in writing of the dispute and all related facts.
7.15 Binding Individual Arbitration. You, Bank and Square Capital 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 CAPITAL. 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 Capital, Square Capital will pay all the arbitration fees. For purposes of this arbitration provision, references to you, Bank and Square Capital also include respective subsidiaries, affiliates, agents (including Square Capital 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, Inc. 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.
7.16 Register. You agree that Square Capital, solely on your behalf, will be allowed to and will maintain a register, recording the owner and amount of your Loan Balance (including any assignee, participant or transferee, if any, who becomes the subsequent owner of any portion of your Loan Balance) (the “Register”). The Parties agree that the person whose name is recorded in the Register as the current owner of your Loan Balance, is treated as the owner of your Loan Balance. The Register must be updated for any transfer of ownership of your Loan Balance to occur.