HomeMy WebLinkAboutWindcave_Inc._-_EMV_CC_Readesr_-_8.4.2025 Docusign Envelope ID:55842E20-D4D1-4961-8912-6E73E09D88F6
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Windcave • for • Solution
DATED this 24th day of July 2025
PARTIES
WINDCAVE INC. (Windcave)
Contact Details for Notices:
Physical Address: 1601 N.7th St.,Suite 420,Phoenix,AZ 85006
Postal Address: PO Box 960,Phoenix AZ 85001
Email: contracts(lwindcave.com Phone:+1 213 378 1190 or+1 877 434 0003
CustID: 138524
City of Waterloo I Waterloo Regional Airport (Merchant)
Contact Details for Notices:
Physical Address: 2790 Livingston Lane Waterloo,Iowa 50703
Postal Address: 2790 Livingston Lane Waterloo,Iowa 50703
Email: Sheila.Combs@WATERLOO-IA.0RG
Phone: 319.291.4483
AGREEMENT
1. Windcave is a provider of real time payment processing solutions in the USA.Windcave has agreed to supply solutions to
Customer in accordance with the terms and conditions set out in this Agreement.
2. This Agreement is structured in two parts,namely Part A(Specific Terms)and Part B(General Terms). Part A contains the
specific terms relevant to each supply of solutions to Customer and may include one or more Schedules. Part B sets out
Windcave's general terms and conditions which will apply to all supplies of solutions.
3. It is intended that further supplies of solutions may be made and will be governed by this Agreement by way of the parties
signing a further Part A Schedule for each supply.The attached schedules,or any schedules completed and signed after
the date of this Agreement but referring to this Agreement,are a part of this Agreement.All purchase orders between the
parties are subject to this Agreement's terms.
4. Windcave grants to Customer a non-exclusive,non-transferable licence to use the Windcave Solution for the Term solely for
the purposes of the Permitted Use. Customer must not sub-license,transfer,assign,rent or sell the Windcave Solution or
the right to use the Windcave Solution.
PAYMENT TERMS
1. Direct Debit:Customer will pay Windcave the Fees by direct debit on the 15th or 30th of the month.
2. Date for Payment of Establishment Fee:Customer will pay Windcave the Establishment Fee immediately when Windcave
makes the Windcave Solution available to Customer.
3. Date for Payment of Monthly Fees and Additional Fees:Customer will pay Windcave the Monthly Fees and Additional Fees
within 30 days of the date of Windcave's invoice for those Fees.
4. Additional Fees:Additional users to the Payment Manager can be set up,but will incur a onetime fee of$30.00. If Windcave
needs to configure or change additional electronic merchant numbers on the Windcave Host,there is a fee of$100.00 per
merchant account.
5. Fee Variations:Windcave shall have the right to vary the Fees enumerated in Part A of this Agreement during the Renewal
Term of this Agreement by providing Customer at least 30 calendar days'written notice before or during the Renewal Term.
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If Windcave exercises its right to modify the Fees,Customer shall thereafter have the right to terminate the Agreement with
30 days'written notice to Windcave within 60 days of Windcave's written notice that it is modifying the Fees.
6. Shipping&Restocking Costs:Customer will pay for the costs Windcave incurs in shipping and restocking the Goods for
Customer.
7. Expedited Shipping Costs: If Customer requests that Windcave ship out Goods from Windcave's offices within 48 hours,
Windcave will charge Customer a$100.00 expedite fee,in addition to the costs of shipping. If Customer requests that
Windcave ship out a device from Windcave's offices within 24 hours,Windcave will charge a$250.00 expedite fee,in
addition to the costs of shipping.Windcave does not warrant or guarantee that it will provide expedited shipping options to
Customer. Expedited shipping requests should be provided to Windcave no later than 11:00 AM PST on Business Days.
SUPPORT SERVICES
1. Online Help and General Support:Windcave will provide the Support Services to Customer as set out in Part B.
SPECIAL CONDITIONS
EXECUTION
Signed for and on behalf of Signed for and on behalf of
WINDCAVE INC. by: City of Wa g5gigned by:
Signature Signature /h
Name/Title Name/Title
Quentin Hart, Mayor
Date Date 8/4/2025
PART A—SPECIFIC TERMS
1 -OVERAGE RATE PLAN
Windcave enables Merchant access to the Windcave Host to process transactions via the Windcave Gateway to an Acquirer on the terms set out in the
Agreement.
1. FEES AND TERM
(a) Service Access Fees
SERVICE PLAN MONTHLY FEE TRANSACTIONS INCLUDED PER MONTH ADDITIONAL TRANSACTIONS
Gateway Services $0.00 0 $0.08
(b) Additional Fees
ESTABLISHMENT FEE
$100.00
(c) Initial Term:36 months
(d) Renewal Term:36 months
(e) Commencement Date:July 251h,2025
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2 —Unattended SCHEDULE
Windcave enables Merchant access to the Windcave Host to process transactions via the Windcave Gateway to an Acquirer on the terms set out in the
Agreement.
1. FEES AND TERM
(a) SAP Fee:$5.00
(b) Commencement Date:July 25th,2025
(c) Initial Term:36 months
(d) Renewal Term:36 months
PART B—GENERAL TERMS&CONDITIONS
1. Definitions and Interpretation (Not all defined terms are applicable to all transmission of Transactions and is available 24 hours a day,seven days a week by
goods and services provided under the Agreement) calling 310 670 7299 outside of Support Hours. If applicable,Windcave will use
1.1 Definitions:In this Agreement,unless the context indicates otherwise: reasonable efforts to respond to any emergency phone call within 30 minutes of
Acquirer means a bank or any financial institution or a card issuer of financial or receiving the support request;
non-financial transactions which receives and transmits Transactions via the Fees means and includes each of the fees detailed in the Schedule(s)contained in
Windcave Solution; Part A;
Agreement means this Agreement,including the Application Form,each of Part A Goods means the Goods and/or Devices(if any)recorded in Part A in one or more
and its Schedule(s)and Part B,and any attachments that may be agreed between Schedules;
the parties,as each may be amended in writing from time to time; Intellectual Property means registered and unregistered trade marks (including
Application Form means Customer's online the Windcave Solution application form logos and trade files), domain names, copyright, patents, petty patents, utility
submitted to Windcave via the Windcave Website. Where no separate Part A is models, registered and unregistered designs, circuit layouts, rights in computer
entered into,the Application Form will constitute Part A of this Agreement for the software,databases and lists,Confidential Information,software(whether in object
purposes of this Part B; code or source code), and all other rights anywhere in the world resulting from
Business Day means any day of the week except Saturday,Sunday or a day on intellectual activity;
which banks are authorized or required to be closed in Arizona; Payline Manager means Payline Portal which Customer is able to access by logging
Chargeback means the procedure by which a sales record or other indicia of a card onto the Windcave Website with an assigned username and password;
transaction(or disputed portion thereof)is denied or returned to Acquirer or the card PCI Standards means the Payment Card Industry standards, requirements and
issuer after it was entered into the appropriate settlement network for payment,in guidelines issued by the Payment Card Industry Data Security Council from time to
accordance with the rules of Visa,MasterCard or a similar card association("Rules"), time including the Payment Card Industry Data Security Standard PIN Entry Device
for failing to comply with the Rules, including, without limitation by reason of requirements and guidelines,and the Payment Application Data Security Standard;
cardholder disputes,the liability for which is Customer's responsibility and Customer Permitted Use means the transmission to,and receipt from,an Acquirer of data
agrees to pay. relating to Windcave Supported Transactions and expressly excludes, without
Commencement Date means the commencement date recorded in Part A in one or limitation,use for the processing of transactions of,or for the benefit of,any person
more Schedules; Such Commencement Date may be postponed in writing, at other than Customer;
Windcave's sole discretion, until the date Windcave receives a copy of the Security Standards means each of:
Agreement countersigned by Customer. (a) any data protection or data security standards issued by an Acquirer
Confidential Information means,in relation to either party,any information: which receives and accepts Windcave Supported Transactions from
(a) relating to the terms of this Agreement; Customer;and
(b) relating directly or indirectly to research or development by,accounting (b) the PCI Standards;
for,or the marketing of,the business of that party or its suppliers or Software means the software and other related Windcave products which:
customers; (a) form part of the Windcave Solution;and
(c) disclosed by that party to the other party on the express basis that such (b) is owned or licensed by or developed by,or on behalf of,Windcave and
information is confidential;or supplied to Customer,including all upgrades,updates,alterations and
(d) which might reasonably be expected by the other party to be confidential modifications and other changes to such software by or on behalf of
in nature; Windcave from time to time,but excluding any third party software and
Customer means the customer specified in this Agreement and where applicable firmware forming part of,or supplied with,the Windcave Solution;
includes its employees,contractors and agents. Special Conditions means the special conditions(if any)recorded in Part A in one
Default Interest Rate means interest at the rate of 2%above the base lending rate or more Schedules;
charged by Windcave's bankers to Windcave from time to time; Support Hours means the period from 8am to 9pm(PST)on any Business Day and
Delivery takes place when the Customer receives the Goods from Windcave,or,in 9am to 5pm(PST)on non-Business Days;
the case of returns,when the Goods arrive at Windcave's premises; Support Services means and includes:
Documentation means any user, training or system manuals for the Windcave (a) Online Help:from time to time Windcave may display Frequently Asked
Solution (whether in printed or electronic form) which describes and provides Questions and Answers on the Windcave Website;
guidance on the use of the Windcave Solution (or any aspect of the Windcave (b) General Support:enquiries may be sent to:support@windcave.com or
Solution); made by telephone to 310 670 7299. Windcave will respond to such
Emergency Support Services means telephone support that Windcave may enquiries during Support Hours;
provide(but is not obligated to provide unless it agrees to do so in a separate written
agreement) for emergency breakdowns resulting in repeated failures in the
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Term means the Initial Term recorded in Part A in one or more Schedules and Solution and the provision of services under this Agreement.To the extent that
includes any Renewal Terms as recorded in Part A in one or more Schedules and any Fees paid by Customer under this Agreement exclude any taxes or duties
defined in clause 2(b); payable in respect of the Goods or Services provided under this Agreement in
Tokenized Data means data for which Windcave has substituted a sensitive data the jurisdiction where the payment is either made or received,where any such
element with a non-sensitive equivalent that has no extrinsic or exploitable meaning taxes or duties are payable by Windcave,Customer agrees to pay to Windcave
or value;and the amount of such taxes or duties in addition to any Fees owed under this
Transaction means a message pair consisting of a message relating to a Windcave Agreement. Notwithstanding the foregoing, you may have obtained an
Supported Transaction transmitted by Customer to an Acquirer through the exemption from relevant taxes or duties as of the time such taxes or duties are
Windcave Solution and a response to that message from the Acquirer to Customer levied or assessed.In that case,you will have the right to provide to Windcave
through the Windcave Solution; with evidence of any such exemption information,in which case Windcave will
Windcave means Windcave Inc.,a California corporation with offices in Phoenix, use reasonable efforts to provide such invoicing documents as may enable
Arizona; you to obtain a refund or credit for the amount so paid from any relevant
Windcave Host means the host server known as Windcave Host to which Customer revenue authority if such a refund or credit is available.
may be connected using the Software and which is in tum linked to an Acquirer to 3.3 Default Interest for Late Payment: Subject to Part B, clause 3.4(c)(ii),
enable Windcave Supported Transactions to be processed in real time; Customer must pay Windcave interest at the Default Interest Rate on any
Windcave Logo means the Windcave logo supplied (in electronic format) by overdue amounts under this Agreement,calculated daily from the due date
Windcave to Customer(as may be updated from time to time by Windcave); until the actual date of payment.
Windcave Solution means the solution provided by Windcave for the transmission 3.4 Disputed Invoices:Where Customer has reasonable grounds to dispute any
of data relating to Windcave Supported Transactions between a Customer and an portion of any amount invoiced by Windcave to Customer under this
Acquirer,incorporating the Software and including access(via the internet)to the Agreement(disputed portion):
Windcave Host and the Support Services; (a) Customer will notify Windcave of such dispute and the grounds for such
Windcave Supported Transactions means transactions from Customers: dispute within 5 Business Days of receiving the invoice;
(a) accepting payment for goods and services by means of credit card,debit (b) any undisputed portion of the invoice will remain payable on the due
card, prepaid card, gift card or any other means of payment which date for payment;
Windcave agrees to support through the Windcave Solution from time (c) provided that Customer has complied with clause 3.4(a),Customer will
to time; not be required to pay:
(b) accepting loyalty cards,rewards cards,points cards,discount cards or (i) the disputed portion until the parties' dispute has been
club cards;or resolved by agreement between the parties or in
(c) providing services in relation to the sale and use of any of the cards accordance with Part B,clause 19.2;or
referred to in paragraphs(a)and(b)above including the issue of such (ii) any interest under clause 3.3 on the disputed portion unless
cards and the crediting or debiting of value to such cards;and the dispute is resolved with the effect that Customer is
Windcave Website means the website maintained by Windcave and accessible by required to pay all(or part)of the disputed portion,in which
Customer for viewing Transactions, data entry, refunding, report generating and case Customer will pay the interest on the disputed portion
other features related to Transactions. (or that part of that disputed portion) in accordance with
1.2 Interpretation:In this Agreement,unless the context indicates otherwise: clause 3.3. Interest will be payable from the date that
(a) the singular includes the plural and vice versa; payment would have been due under clause 3.1 but for the
(b) clause and other headings are for ease of reference only and will not dispute until the date that disputed portion is paid to
affect this Agreements interpretation; Windcave in full.
(c) the term includes or including(or any similar expression)is deemed 3.5 Termination and Suspension:If Customer does not timely pay Fees due and
to be followed by the words without limitation; owing pursuant to this Agreement,Windcave may terminate this Agreement
(d) references to a person include an individual, company,corporation, under Part B,Clause 12.2.Alternatively,Windcave may temporarily suspend
partnership,firm,joint venture,association,trust,unincorporated body the provision of the Windcave Solution to Customer.Customer agrees that
of persons,governmental or other regulatory body,authority or entity,in Windcave will have no liability for such termination or suspension.
each case whether or not having a separate legal identity; 4. Mutual Responsibilities
(e) any obligation not to do anything includes an obligation not to suffer, Each party represents and agrees:
permit or cause that thing to be done; 4.1 Power and Authority:that it has full power and authority necessary to validly
(f) all monetary amounts are stated exclusive of applicable taxes if any and enter into and perform all its obligations under this Agreement;and
in US dollars;and 4.2 Requirements: to comply with the other party's reasonable security,
(g) in the event of any inconsistency between the terms of any of the confidentiality and operational requirements of which it has been given
following,they will have precedence in the descending order of priority reasonable notice.
set out below: 5. Customer Responsibilities
(i) Part A—Specific Terms and Schedules; Customer represents and agrees that it:
(ii) Part B—General Terms and Conditions; 5.1 Suitability:has made,and will continue to make,its own assessment of the
(iii) The Application Form. suitability, adequacy, compatibility and appropriateness of the Windcave
2. Term Solution for its purposes;
2.1 Initial Term:This Agreement commences on the Commencement Date and 5.2 Comply with Instructions: will comply with Windcave's restrictions,
will continue for the Initial Term,unless earlier terminated under Part B,clause instructions and Documentation in relation to the use of the Windcave Solution,
12. including those set out in this Agreement;
2.2 Renewal:Upon expiry of the Initial Term,this Agreement will automatically 5.3 Use by Others:will ensure that only authorized persons use the Windcave
continue for further periods of the number of consecutive months recorded in Solution and that the Windcave Solution is used only for the Permitted Use
Part A in one or more Schedules(each such further period being a Renewal and as expressly authorized under this Agreement;
Term)on the same terms and conditions unless either parry gives the other 5.4 Responsibility for Use:will accept all responsibility for the reliance on and
party not less than 3 months'notice in writing prior to the expiry of the Initial use of the Windcave Solution by Customer and its employees,contractors and
Term or the then current Renewal Term that it does not wish this Agreement agents;
to continue beyond the Initial Term or that Renewal Term as the case may be. 5.5 Obtain Equipment etc.:will obtain and maintain all equipment,software and
3. Payment services needed to enable it to receive and use the Windcave Solution;
3.1 Fees:Customer will pay Windcave the Fees without setoff or deduction within 5.6 Accurate Customer Information:warrants that all information provided by
30 days of the date of Windcave's invoice for those Fees. Customer to Windcave in the Application Form is accurate and correct,and
3.2 Taxes:Customer is responsible for all applicable taxes,duties and levies on that Customer will notify Windcave in writing if such information changes or
the rental, loan or purchase or sale of goods and services (other than ceases to be accurate in any way;
Windcave's income tax)assessed in connection with its use of the Windcave
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5.7 Provide Sufficient Information:will ensure that sufficient information is given merchantability or fitness for a particular purpose.Windcave does not warrant
to Windcave to enable Windcave to comply with its obligations under this that:
Agreement and that such information is timely,complete and accurate; (a) the Windcave Solution,the Goods,the Software or the Documentation
5.8 Personal Information: acknowledges that any personal information will meet Customer's requirements;or
concerning Customer or its personnel which is provided to Windcave by or on (b) the Windcave Solution,the Goods,the Software and the Documentation
behalf of Customer may be: will be uninterrupted or error free,or that all errors will be corrected;or
(a) used by Windcave for the purpose of providing the Windcave Solution, (c) that the Goods will be free of defects in design, materials or
the Support Services and any other services to Customer;and workmanship or will comply with any applicable equipment
(b) disclosed by Windcave to its affiliates and other services providers to manufacturer's or software developer's specifications.
enable Windcave to provide the Windcave Solution, the Support Customer understands and acknowledges that an authorization obtained
Services and any other services to Customer; through the Windcave Solution only confirms the availability of the cardholder's
5.9 Notify of Third Party Infringement:will immediately notify Windcave upon credit at the time of the authorization. It does not warrant that the person
becoming aware of any third party infringing Windcave's Intellectual Property presenting the card is the rightful cardholder,nor is it an unconditional promise,
rights in any manner; guarantee or representation by Acquirer, processor or Windcave that a
5.10 Responsible for Connecting to Windcave Host: is responsible for all transaction is or will be deemed valid and not subject to dispute,debit or
charges and costs associated with connecting to the Windcave Host to operate chargeback.
the Windcave Solution. Windcave will provide Customer with reasonable 7.3 Supply Warranty:Windcave warrants that the Goods to be delivered under
technical information and Software necessary to enable Customer to connect this Agreement will be free from defects in workmanship(labour and parts
to the Windcave Host; included,but transport excluded)during a warranty period commencing on the
5.11 Requisite Review of Payline Portal:Customer shall be required,on a daily Commencement Date and concluding twelve (12) calendar months later
basis, to review with due care Customer's payline portal, established by ("Original Warranty Period").As to repaired or exchanged Goods,during the
Windcave, to review Transactions for errors. If an error is discovered by Original Warranty Period here above mentioned,the warranty period on the
Customer,Customer must notify Windcave in writing within three(3)Business exchanged or repaired Goods shall expire at the conclusion of the Original
Days of the date an error occurs;provided,that Windcave will have no liability Warranty Period. With respect to Windcave's supply warranty:
or obligations of any kind with respect to errors that are not reported to (a) Any defective Goods,underwarranty,shall be replaced or repaired,free
Windcave within such three(3)Business Day period.In addition,Customer of charge,at Windcave's discretion(to the exclusion of compensation
shall be required to,on a daily basis review with due care bank settlement files for any other damage),and the work shall be carried out at Windcave or
to ensure deposits occur without error.If an error is discovered by Customer, its partner's or subcontractor's premises.Customer will pay the costs of
Customer must notify Windcave in writing within three(3)Business Days of transport of the Goods(including insurance)to Windcave.
the date an error occurs; provided, that Windcave will have no liability or (b) Windcave has the choice to repair the Goods with spare parts or new
obligations of any kind with respect to errors that are not reported to Windcave parts. The defective elements, repaired,will become the property of
within such three (3) Business Day period. Windcave's liability under this Windcave.
Section 5.11 (Requisite Review of Payline Portal) of the Agreement is (c) The time when the Goods are repaired or unavailable during the
governed by,and fully subject to,the terms of Section 10 of this Agreement. warranty period will not give rise to an extension of the warranty period
5.12 Comply with Law Generally:will comply with all relevant laws in its use of as set forth in this Section,subject to legal mandatory provisions.
the Windcave Solution and carrying out its obligations under this Agreement. (d) Customer must return warranted Goods that are replaced subject to this
5.13 Improperly Deposited Funds:will return funds that Windcave deposits in warranty back to Windcave within 30 calendar days of replacement
Customer's bank account(s) that do not rightfully belong to Customer Goods being shipped to Customer.Customer shall pay the shipping and
("Improperly Deposited Funds")without offset or delay.Customer will return all restocking fees to return the old,warranted Goods back to Windcave.
Improperly Deposited Funds to Windcave within five(5)calendar days of a 7.4 Exclusions to Supply Warranty:Windcave will have no liability under the
written request to do so by Windcave. If Customer fails to comply with the Supply Warranty described in Section 7.3 in respect of:
terms of this Section, Windcave may immediately suspend services to (a) Defects,breakdowns,or malfunctions due to failure to properly follow
Customer until Customer returns the Improperly Deposited Funds.Customer the installation process and instructions for use or an external cause to
will be liable to Windcave for the Improperly Deposited Funds, and costs the Goods(including,but not limited to,shock,lightning fire,vandalism,
incurred by Windcave in recovering the Improperly Deposited Funds. malicious action, contacts with various liquids or vermin or water
5.14 Return of Old Goods: For Goods that Customer ceases using for the damage of any nature, and inappropriate electric voltage); or
Permitted Use("Unused Goods'),Customer will return such Unused Goods to modifications to the Goods made without the written approval of
Windcave within 30 calendar days.Unused Goods include,but are not limited Windcave; or a lack of every day maintenance (as described in the
to,Goods Customer has ceased using due to the Goods becoming obsolete, Documentation);or a lack of supervision or care;or improper storage or
Goods that no longer operate,and Goods that are replaced per the warranty poor environmental conditions,particularly those related to temperature
set forth in Part B,clause 7.3 of this Agreement.Customer will pay all shipping and hygrometry effects of variations of electric voltage from the electric
and restocking fees and costs associated with returning the Unused Goods to network;or from the earth or repair work;or maintenance of the Goods
Windcave. Alternatively, instead of retuming Unused Goods to Windcave, by persons not authorized by Windcave;
Customer may provide Windcave a secure destruction certificate evidencing (b) Damage due to insufficient or bad packaging of the Goods when
that the Unused Goods were destroyed in compliance with the Security returned to Windcave;
Standards within the same 30 calendar day period. (c) Wear and tear from normal use of the Goods and accessories;
6. Windcave's General Responsibilities (d) Communication problems related to an unsuitable environment,
Windcave agrees that it will: including problems accessing the Internet, transmission faults, local
6.1 Good Faith:comply with all relevant laws and co-operate with Customer(and network faults, and modification of the parameters of the relevant
Customer's service providers)in connection with the Windcave Solution; cellular network after sale of the Goods;
6.2 No Requirement to Decrypt Tokenized Data: be under no obligation to (e) Supply of new versions of Software.If,for example,Windcave produces
decrypt and transmit Tokenized Data to Customer or any third party. new Software that is not necessary to fulfil its obligations under this
7.Windcave Warranties Agreement,Windcave is not required to make such Software available
7.1 Security Standards:Windcave confirms that Windcave will throughout the to Customer;
term of this Agreement comply with the requirements of the Security (f) Malfunction due to the use of products or accessories that are non-
Standards. compatible with the Goods;
7.2 Limitations on Warranties:To the fullest extent permitted by law,except as (g) Goods returned to Windcave without Windcave's prior consent or that
expressly set out in this Agreement,Windcave disclaims and excludes all Windcave has not had an opportunity to troubleshoot;
warranties, conditions, terms, representations or undertakings, whether (h) Defects, breakdowns, or malfunctions due to obstructing material
express,implied,statutory or otherwise,including any condition or warranty of being placed on or into the Goods.Examples of obstructing material
include,but is not limited to,paper,plastic,and metal objects.
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8. Intellectual Property 12.4 Consequences:
All Intellectual Property rights in the Windcave Solution,the Goods,the Software,the (a) Amounts owing at termination: If this Agreement is terminated by
Documentation and any work or thing developed or created by or on behalf of Windcave for cause prior to the expiry of the Term,Customer must pay
Windcave under or in connection with this Agreement(such work or thing being the unpaid balance of the Fees due under this Agreement and the cost
Developed Works),are exclusively owned by Windcave(or Windcave's licensors or of Windcave's reasonable expenses resulting from Customer's breach
suppliers). Customer acknowledges that there is no transfer of title, Intellectual of this Agreement.
Property rights or ownership of: (b) Expiry or termination of this Agreement will not affect the rights or
(a) the Windcave Solution,the Goods,the Software,the Documentation or obligations of the parties which have accrued prior to or accrue on
any part thereof;or termination or which by their nature are intended to survive termination
(b) any Developed Works; to Customer under this Agreement and (including Part B,clauses 3,5,7,8,9,10,this 12.4,13,16,17 and 19,
Customer will not dispute Windcave's (or Windcave's licensors or together with those clauses which are incidental to,and required in order
suppliers)ownership of the property referred to in this clause 8. to give effect to,those clauses).
9. Indemnity 13. Confidentiality
Customer indemnifies Windcave at all times against any liability,loss,damage or 13.1 Confidential Information:Each party will maintain as confidential at all times,
cost(including attorney's fees)suffered or incurred by Windcave and all actions, and will not at any time,directly or indirectly:
proceedings,claims or demands made against Windcave as a result of any negligent (a) disclose or permit to be disclosed to any person;
act or omission or any breach of this Agreement by Customer, its personnel or (b) use for itself or to the detriment of the other party;
agents. any Confidential Information of the other party except as,and then only to the
10. Liability extent:
To the fullest extent permitted by applicable law: 1. required by law;
10.1 Remedy:Subject to clauses 10.2 and 10.3,Customer's sole and exclusive 2. that the information is already or becomes public knowledge,
remedy for breach of any warranty or of any of Windcave's obligations under otherwise than as a result of a breach,by the receiving party,of
this Agreement is (at Windcave's option) the supply or re-supply of the any provision of this Agreement;
Windcave Solution,the Goods,the Software, or the Documentation or the 3. that the information is disclosed to the receiving party,without
refund or waiver of Fees for the relevant part of the Windcave Solution,the restriction, by a third party and without any breach of
Goods,the Software,or the Documentation which is the subject matter of,or confidentiality by the third party;
directly related to,the breach. 4. that the information is developed independently by the receiving
10.2 Limitation: In no event will Windcave's total liability to Customer under this party without reliance on any of the Confidential Information of the
Agreement for any one or more defaults as described in clause 10.1 exceed other party;
the amount paid by Customer to Windcave under this Agreement in the 3 5. authorized in writing by the other party;or
months following execution of this Agreement. 6. reasonably required by this Agreement(and,without limiting the
10.3 Exclusion: In no event will Windcave be liable to Customer whether in effect of this clause,a party may disclose Confidential Information
contract,tort(including negligence)or otherwise in respect of any: of the other party only to those of its officers, employees or
1. punitive,incidental,indirect or consequential damages,damages professional advisers on a"need to know"basis,as is reasonably
for loss of profits, business interruption, loss of data, loss of required for the implementation of this Agreement).
goodwill,arising out of,or in connection with,this Agreement,in 13.2 Windcave's Intellectual Property:Customer acknowledges and agrees that
each case even if such party has been advised of the possibility of the computer programs, computer software, specifications, databases,
such damages; images, designs, codes, and configurations, ("Software") contained in or
2. loss,damage,cost or expense suffered or incurred by Customer, utilized by the Equipment and Windcave's network are proprietary and
to the extent this results from any act or omission by Customer;or confidential to Windcave and protected under United States copyright law.
3. any event described in Part B,clause 14(Force Majeure). Customer shall not copy,modify,adopt,translate,merge,reverse engineer,
11. Commercial Purpose decompile, or disassemble, the equipment or Software, or create any
It is expressly acknowledged and agreed by Customer that the Windcave Solution, derivative works based on the Equipment,Windcave network or Software.
the Goods, the Software and the Documentation are supplied to Customer for Without limiting the effect of clause 13.1,Customer will treat information about
business and commercial purposes. Windcave's Intellectual Property as the Confidential Information of Windcave.
12. Termination 14. Force Majeure
12.1 Termination Upon Notice: 14.1 Customer acknowledges that Windcave relies on third-party providers in the
(a) Windcave may terminate this Agreement at any time on not less than 3 delivery of its services, including, but not limited to,wireless data network
months'prior written notice to Customer. providers,cellular radio service provided by third parties that is available only
(b) Customer may terminate this Agreement at any time on not less than 3 when within the operating range of cellular systems,and cellular service is
months'prior written notice to Windcave,provided: subject to transmissions limitations and dropped or interrupted transmissions.
1. During the Initial Term,Customer will be liable for the Fees for the Cellular service may be temporarily refused,limited,interrupted,or curtailed
remainder of the Term,which,notwithstanding clause 3.1,shall because of government regulations or orders, atmospheric and/or
be payable immediately on giving such notice; topographical conditions, and cellular system modifications, repairs, and
2. During any Renewal Term,Customer will be liable for the Fees for upgrades.Customer agrees that Windcave shall not be liable for,and to hold
the remainder of the Term, which, notwithstanding clause 3.1, Windcave harmless for any losses, damages, or business interruptions
shall be payable immediately on giving such notice. sustained as a result of interruptions caused by its wireless data network
12.2 Termination for Cause: Either party(the First Party) may terminate this providers or any other third-party provider.
Agreement at any time and with immediate effect by written notice to the other 14.2 Neither party(the"Affected Party")shall be liable for any default or delay in
party(Second Party)if the Second Party: the performance of its obligations under this Agreement if and to the extent
(a) is in material breach of any of its obligations under this Agreement,and such default or delay is caused,directly or indirectly,by
has failed to remedy the breach within 10 Business Days of receiving (a) fire,flood,elements of nature or other acts of God;
written notice from the First Party to remedy the breach;or (b) any outbreak or escalation of hostilities,war,riots or civil disorders in
(b) goes into voluntary or involuntary bankruptcy or liquidation or has a any country;
receiver appointed;or (c) any act or omission of the other parry or any government authority;
(c) is unable to pay its debts as they fall due. (d) any labor disputes(whether or not employees'demands are reasonable
12.3 Breach of License Terms: Without limiting clause 12.2, any use of the or within the party's power to satisfy);or
Windcave Solution, the Goods, the Software, or the Documentation by (e) the nonperformance by a third parry for any similar cause beyond the
Customer for any purpose other than the Permitted Use,or any breach by reasonable control of such party,including without limitation,failures or
Customer of the provisions of Part B,clause 16 will be deemed to be a material fluctuations in telecommunications or other equipment such as
breach of this Agreement which is not reasonably capable of remedy. described in clause 14.1.
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14.3 In any such event, the Affected Party shall be excused from any further thereof in any form to any person(a"Third Party")without the prior written
performance and observance of the obligations so affected only for as long as consent of Windcave. If Windcave grants such consent, Customer must
such circumstances prevail and such party continues to use commercially ensure that the Third Party complies with the provisions of clauses 8,13,15
reasonable efforts to recommence performance or observance as soon as and 16(so far as those provisions relate to Customer)as if the Third Party
practicable,provided that: were a party to this Agreement.Customerwill be liable to Windcave for all acts
(a) Notice:whenever the Affected Party becomes aware that such a result or omissions of any Third Party in contravention of the provisions of clauses 8,
has occurred or is likely to occur,the Affected Party will,as soon as 13,15 and 16.
practicable,notify the other party by written notice accordingly; 16.8 Installation:Customerwill be responsible for,and all bear all costs associated
(b) Continued Performance:each party will continue to use commercially with,the installation,operation,maintenance and support of the Goods.
reasonable efforts to perform its obligations as required under this 16.9 Windcave Testing Prior to Launch:Prior to any permitted use of Windcave
Agreement;and products and/or Software by Customer or any third party,Windcave shall be
(c) No Deemed Acceptance of Extra Costs:neither party will be deemed to entitled to test all Windcave products and Software that Customer purchases,
have accepted any liability to pay or share any extra costs which may rents,or intends to use for at least seven (7) Business Days("Pre-launch
be incurred by the other party in complying with this clause or otherwise Testing").Such Pre-launch Testing shall also entitle Windcave to at least three
resulting from such act,omission or failure;and (3)Business Day to test transaction processing and settlement.
(d) Charges:this clause 14 will not apply in respect of Customer's obligation 16.10 Labels:Customer will not remove or deface any labels affixed by Windcave
to pay any charges or Fees payable under this Agreement. to the Goods.Customer will not affix any label to the Goods.
15. License 17. Purchase and Use of Goods
15.1 Grant of License: Windcave grants to Customer a non-exclusive, non- 17.1 Title: Title in any of the purchased Goods (excluding any Software and
transferable license to use the Windcave Solution,the Goods,the Software firmware forming part of,or supplied with,the purchased Goods)will pass to
and the Documentation for the Term of this Agreement solely for the Permitted Customer upon Customer making payment in full for those purchased Goods.
Use.Any other use or dealings with the Windcave Solution,the Goods,the 17.2 No Dealing or Modifying or Security Interests:The Goods are for use only
Software or the Documentation without the prior written consent of Windcave in connection with the Windcave Solution. Customer must not sell,lend,lease,
will be a material breach of this Agreement.Except to the extent specifically transfer, modify or otherwise deal with the purchased Goods without first
authorized under this Agreement,Customer must not sub-license,transfer, obtaining Windcave's written consent.Customer must not create,or allow to
assign,rent or sell any of the Windcave Solution,the Goods,the Software or be created,a security interest over the Goods.
the Documentation or the right to use the Windcave Solution,the Goods,the 17.3 Risk:Risk in any of the purchased Goods will pass to Customer upon delivery
Software or the Documentation. of those purchased Goods to Customer.
15.2 Windcave Warranty:Windcave warrants that Windcave has the right and 17.4 License to Software/Firmware:Customer will be licensed to use any third
authority to grant to Customerthe license set out at clause 15.1,in accordance party software and/or firmware forming part of,or supplied with,the purchased
with the terms of this Agreement. Goods on the relevant manufacturer's or software developer's license terms
16. Terms of Use (as supplied with the purchased Goods or otherwise notified by Windcave to
16.1 Adequacy:Customer must satisfy itself as to the adequacy,appropriateness Customer).Customer must comply with all such license terms.
and compatibility of the Windcave Solution and/or the Goods for its 17.5 Warranty: Windcave will repair or replace, at Windcave's option, faulty
requirements.Without limiting the foregoing,Customer acknowledges that it purchased Goods for a period of 1 year commencing from the date the
has not relied on any statements or representations on the part of Windcave purchased Goods are delivered to Customer, reasonable wear and tear
as to performance or functionality,verbal or otherwise,except as expressly excepted. This warranty does not cover damage caused by the Customer or
recorded in this Agreement. otherwise occurring while in the Customer's possession; i.e. damage from
16.2 Windcave Logo:If Customer uses a capture method for credit or debit card liquids is not covered by this warranty.
processing using a system which is not hosted by Windcave,Customer agrees 17.6 Hold for Benefit of Customer:Where it is unable to pass to Customer any
to display the Windcave Logo in a readily visible position on the user interface manufacturer's warranties in respect of any of the purchased Goods supplied
of Customer's system where the credit or debit card data is captured.The to Customer under this or any separate Agreement,Windcave will hold any
Windcave Logo must not be altered or used for any other purpose without the such warranties for the benefit of Customer.
prior written consent of Windcave. 17.7 Recovery of Unpaid Retail Equipment:If Customer fails to pay Windcave in
16.3 Compliance:If Customer is not compliant with one or more of the Security full for any purchased Goods which have been delivered,Windcave may enter
Standards,Customer must not capture orstore any credit or debit card number any premises where Windcave reasonably believes that the purchased Goods
or expiry date locally on Customer's or a non-compliant third party's system. may be located and Customer will provide all reasonable authority and
16.4 No Right to Copy, Alter or Modify: Customer may make a reasonable assistance to enable recovery of those purchased Goods by Windcave.
number of copies of the Software for backup and disaster recovery purposes Customer will be liable to Windcave for all costs incurred by Windcave in
only.Except for such back-up copies,Customer must not,and must not permit recovering the Goods.
any other person to,copy,reproduce,translate,adapt,vary,repair or modify 17.8 Security Interest
all or any part of the Windcave Solution, the Goods, the Software or the (a) Customer grants to Windcave a security interest in the purchased
Documentation by any means or in any form without Windcave's prior written Goods and their proceeds("collateral")and Customer acknowledges
consent. that the granting of the security interest gives rise to remedies of
16.5 Permitted Use:Customer may not: repossession of the Goods in accordance with the Uniform Commercial
(a) use the Windcave Solution, the Goods, the Software or the Code ("UCC") or otherwise where Windcave seeks to enforce its
Documentation for any purpose other than the Permitted Use;or security interest. This security interest will continue until the purchase
(b) use the Software independently of the other components of the price plus accrued interest and any applicable taxes and costs are paid
Windcave Solution unless Windcave has given prior written consent to in full.
do so. (b) Customer agrees to store the purchased Goods separately and mark
If this Agreement is terminated,Customer's rightto use the Windcave Solution, them so as to render them identifiable as being made from or with
the Software and the Documentation will automatically terminate and purchased Goods which are the property of Windcave. Further,
Customer must immediately remove all copies of the Software from its Customer agrees to advise Windcave of the whereabouts of the
system(s)and return the Windcave Solution,the Goods,the Software and the purchased Goods and allow Windcave to inspect the purchased Goods.
Documentation to Windcave (c) Customerwill,at Windcave's request,promptly execute any documents,
16.6 Reverse Engineering: Customer must not,and must not permit any other provide all necessary information and do anything else required by
person to, reverse assemble or decompile the whole or any part of the Windcave to ensure that their security interest in the Goods is perfected
Software. in accordance with the UCC with such priority as Windcave requires.
16.7 No Third Party Use:Except as expressly provided for in this Agreement,the Customer authorizes Windcave to file one or more financing statements
Customer must not provide, or otherwise make available, the Windcave in the appropriate UCC filing offices in order to perfect Windcave's
Solution the Goods,the Software or the Documentation or any component security interest.
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(d) Upon a default in the payment for purchased Goods,Windcave shall authority and assistance to enable recovery of those Goods by
have the right from time to time to take possession of,and sell,redeem, Windcave. Customer will be liable to Windcave for costs incurred by
assign,liquidate,transfer and deliver all or any part of the purchased Windcave in recovering the Goods.
Goods or other collateral,at any brokers'board or exchange,or at public 18. Windcave Support Services
or private sale or otherwise,at the option of Windcave,for cash or on 18.1 Support:Windcave will provide the Support Services to Customer.
credit for future delivery,in such parcel or parcels and at such times and 18.2 Emergency Support Services and Other Services:Windcave may make
places,and upon such terms and conditions as Windcave may deem available the Emergency Support Services.If Customer requires Emergency
proper, and in connection therewith may grant options and impose Support Services and/or services additional to the Support Services Windcave
reasonable conditions, all without (except as same are required by may,if it agrees to provide those services to Customer,charge Customer for
applicable law and cannot be waived)advertisement or demand upon those services on a time and materials basis and on such other terms and
or notice to Customer or any other person entitled to notice or right of conditions as may be agreed between the parties.
stay,extension,moratorium,appraisal or redemption of Customer,all of 18.3 Alterations to Software:Windcave may,at its sole discretion,alter,upgrade,
which are hereby expressly waived to the fullest extent permitted by update or change the Windcave Solution at any time during the Term of this
applicable law;upon each such sale,Windcave,to the extent permitted Agreement. Customer acknowledges and agrees that, if Customer fails to
by law,may purchase all or any of the collateral,free and clear of all promptly install all updates to any software forming part of the Windcave
claims,rights of redemption and equities of Customer;and Windcave Solution supplied by Windcave in connection with this Agreement,Customer
shall have all of the rights and remedies of a secured party under the may be unable to process Transactions and that:
UCC and any other applicable law.To the extent required by applicable (a) Windcave will not be liable to Customer under this Agreement in respect
law which cannot be waived,Windcave will give Customer notice of the of such inability;and
time and place of any public sale or of the time after which any private (b) Windcave will be released from any obligation to supply the Support
sale or other disposition of collateral is to be made,by sending notice at Services during any period which Customer has failed to install any such
least 5 days before the time of sale or disposition,which Debtor agrees update.
is reasonable. Windcave need not give such notice if not required by 18.4 Windcave Website:Customer acknowledges and agrees that Windcave may,
the UCC or other applicable law. Windcave may allocate any monies it at its sole discretion, determine what information, data, features and
receives to debts,charges and expenses in any priority. functionality is made available to Customer via the Windcave Website.
(a) Customer agrees that Windcave may charge Customer for the costs of Customer agrees to comply with any terms that Windcave may specify in
filing of any financing statement and all other costs associated with the relation to Customer's use of the Windcave Website. In the event of any
perfection and, in case of a default in connection with payment for inconsistency between the terms and conditions of this Agreement and those
purchased Goods,enforcement of the security interest. on the Windcave Website,the terms and conditions of this Agreement will
17.9 Use of Windcave Goods: Where Customer uses Windcave Goods, the apply to the extent of that inconsistency.Windcave will supply user names and
following terms and conditions apply: passwords to enable authorized users of Customer to access the Windcave
(b) Ownership: Legal and beneficial ownership of, and title to, the Website.Customer must keep such user names and passwords secure and
Windcave Solution,the Goods,the Software and the Documentation made known only to authorized users and will be responsible for all use of the
remains at all times with Windcave; Windcave Website through use of Customer's user names and passwords.If
(c) Risk: Customer will bear the risk of,and be responsible for,all loss Customer breaches any term of this Agreement or the terms of use of the
(including theft)of or damage to,the Goods from the time that they are Windcave Website, Windcave may disable Customer's user names and
first delivered to Customer until the time that they are delivered back to passwords.
Windcave; 18.5 Refunds:Customer authorizes Windcave to process repayment transactions
(d) Maintain Goods: Customer must take reasonable steps to avoid to its patrons, who have previously made payment using the Windcave
exposure of the Goods to excessive heat,dust and moisture,liquids and Solution,on a one-to-one matching basis("Refund Transactions").Customer
electrical and physical shock; shall be solely responsible for auditing Refund Transactions and determining
(e) License Terms:Customer must comply with all manufacturer's license that a one-to-one match is made between a transaction and its matching
terms applicable to the Goods(as supplied with the Goods or otherwise Refund Transaction.Customer accepts all liability for Refund Transactions.
notified by Windcave to Customer from time to time); Windcave shall not be liable for any losses or damages incurred as a result of
(f) Theft,Seizure,Loss,Damage,Repairs:If for any reason the Goods a Refund Transaction.
are stolen, seized, lost, damaged or require repairs, Customer must 18.6 Offline Mode:Customer authorizes Windcave to enable processing of credit
immediately advise Windcave of the theft, seizure, loss, damage or cards offline in the event of an internet failure("Offline Mode"). In addition,
repairs required. Customer must pay all costs and comply with Customer authorizes Windcave to enact service in Offline Mode until internet
Windcave's directions in connection with replacing or recovering the service is restored for a maximum of 4 hours per event.Transactions in Offline
Goods,repairing any damage or the replacing of any parts(fair wear Mode are capped at$50 dollars maximum per transaction per card and a
and tear excepted).Customer must continue to pay the Fees while the maximum of 500 transactions processed per device per Offline Mode event.
Goods are being replaced or repaired or,in the event of theft,seizure or Transactions in Offline Mode are also capped at$1,000 per device per Offline
loss,while the Goods are missing.Windcave will not be liable for any Mode event.Customer and Windcave agree and acknowledge that Windcave
loss or damage in relation to the unavailability of the Goods; is not liable for unsuccessful transactions that are a result of Offline Mode
(g) No Dealing or Modifying or Security Interests:Customer must not transaction processing.Customer is responsible with acquiring approval from
sell, lend, lease, transfer, modify or otherwise deal with the Goods its banking partner for operation of Offline Mode.Windcave is not liable if the
without first obtaining Windcave's written consent.Customer must not terms of this Clause or the operation of Offline Mode causes Customer's
create,or allow to be created,a security interest over the Goods; account to be downgraded, shut down, disrupted, or otherwise adversely
(h) Inspection:Customer must allow Windcave to inspect the Goods at any impacted in any way.
time during normal business hours,provided that Windcave first gives 19. General
Customer not less than 2 Business Days notice; 19.1 Entire Agreement:This Agreement including all schedules hereto records the
(i) Return of Goods:When this Agreement ends(either by completion of entire arrangement between the parties relating to all matters dealt with in this
the Term or by way of termination), Customer will, at Customer's Agreement and supersedes all previous arrangements,whether written,oral
expense, return the Goods, in good working order and undamaged or both,relating to such matters.
condition(fair wear and tear excepted)to Windcave's place of business. 19.2 Disputes:The parties shall attempt in good faith to resolve any dispute arising
If the Customer fails to return the Goods within 14 Business Days of the out of or relating to this Agreement promptly by negotiation between
end of the Agreement,Customer will pay Windcave the fair value of the executives who have authority to settle the controversy and who are at a higher
Goods as at the completion of the Term;and level of management than the persons with direct responsibility for
Q) Repossession:If Customer does not return the Goods when required administration of this Agreement.Any party may give the other party written
hereunder,Windcave may(subject to compliance with applicable law) notice of any dispute not resolved in the normal course of business.Within 15
enter any premises where Windcave reasonably believes that the days after delivery of the notice,the receiving party shall submit to the other a
Goods may be located and Customer will provide all reasonable
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written response. The notice and response shall include with reasonable suitability of the assignee and Customer pays to Windcave its reasonable
particularity (a) a statement of each party's position and a summary of costs incurred in connection with the assignment).
arguments supporting that position,and(b)the name and title of the executive 19.6 Amendment: Except as expressly provided for in this Agreement, no
who will represent that party and of any other person who will accompany the amendment to this Agreement will be valid unless recorded in writing and
executive.Within 30 days after delivery of the notice,the executives of both signed by a duly authorized senior representative of each party.
parties shall meet at a mutually acceptable time and place. If the parties fail 19.7 Governing Law and Jurisdiction:This Agreement is governed by the laws
to negotiate a resolution to a dispute within a reasonable time(not exceeding of Arizona. Subject to the terms of clause 19.2,the parties submit to the
20 Business Days from formal notice of the dispute being given by one party jurisdiction of the courts of the State of Arizona in respect of all matters relating
to the other), either party may require that the dispute be submitted to to this Agreement.
mediation through JAMS,such mediation to take place in Phoenix,Arizona.A 19.8 Remedies:The rights,powers and remedies provided in this Agreement are
mediator shall be selected by mutual agreement or through procedures not exclusive of any rights,powers or remedies provided by law.
provided by JAMS.In such case: 19.9 Subcontracting:Windcave may appoint subcontractors to perform any of its
(a) the mediator will not be acting as an expert or as an arbitrator; obligations under this Agreement.
(b) the mediator will determine the procedure and timetable for the 19.10 Counterparts and Copies:This Agreement may be signed in any number of
mediation;and counterpart copies which, read together,will constitute one and the same
(c) the parties will share equally the cost of the mediation. document.Any facsimile copy of this agreement orcopy of this agreement sent
All offers,promises,conduct and statements,whether oral or written,made in via email in PDF format(including any facsimile copy or copy sent via email in
the course of the negotiation by any of the parties,their agents,employees, PDF format, of any document evidencing either party's signature of this
experts and attorneys are confidential, privileged and inadmissible for any agreement)may be relied upon by the other party as if it were an original copy.
purpose,including impeachment,in arbitration or other proceeding involving This Agreement may be entered into on the basis of an exchange of such
the parties,provided that evidence that is otherwise admissible ordiscoverable facsimile or PDF copies.
shall not be rendered inadmissible or non-discoverable as a result of its use in 19.11 Notices:Any notice or other communication to be given under this Agreement
the negotiation. must be in writing and must be served by one of the following means and in
Neither party may issue any legal proceedings (other than for urgent respect of each is deemed to have been served as described:
interlocutory relief)relating to any dispute,unless that party has first taken all (a) By personal delivery—when received by the party.
reasonable steps to comply with the dispute resolution process above.All (b) By post by registered or ordinary mail—on the second working day
applicable statutes of limitation and defenses based upon the passage of time following the date of posting in the United States mail to the addressee's
shall be tolled while the procedures specified in this clause 19.2 above are registered office.
pending and for 15 calendar days thereafter.The parties will take such action, (c) By email—when acknowledged by the party orally or by return email or
if any,required to effectuate such tolling. otherwise in writing.
19.3 Waiver:No waiver of any breach,or failure to enforce any provision,of this The addresses for the parties for Notices shall be as set out on Page 1 of this
Agreement at any time by either party shall in any way limit or waive the right Agreement or such other address as either party specifies by notice in writing
of such party to subsequently enforce and compel strict compliance with the to the other given in accordance with this clause 19.11.
provisions of this Agreement. 19.12 Conflicts: In the event of any conflict or inconsistency between this
19.4 Severance: Any provision in this Agreement which is or becomes Agreement and the terms of a purchase order made by Customerto Windcave,
unenforceable,illegal or invalid for any reason shall be severed and shall not this Agreement shall govern and control.
affect the enforceability,legality,validity or application of any other provision
which shall remain in full force and effect.
19.5 Assignment:Windcave may assign all or any of its rights and obligations
under this Agreement to any person without Customer's consent.Customer
may not transfer or assign any of its liabilities or rights under this Agreement
to any other person without Windcave's prior written consent(such consent
not to be unreasonably withheld, provided Windcave is satisfied as to the
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Appendix 1 ("Appendix")—ACH Service
1) General
a) This Appendix sets out the terms and conditions of ACH Service and applies if you have opted to use this service. In the event of any
conflict between the terms of this Appendix and the Agreement,this Appendix will prevail to the extent that the subject matter concerns
the ACH Service.
b) ACH Service:ACH Service allows the Merchant to initiate debit and credit entries to the Merchant's customers'("End User")bank
accounts via the ACH(Automated Clearing House)Network.
c) Plaid Inc.:Windcave uses a third party Plaid Inc("Plaid"),a Delaware corporation,to provide the ACH Service.The Merchant's use of
the ACH Service is subject to Plaid's terms and conditions"Plaid&End Client Agreement",available at
https://plaid.com/documents/plaid end customer payments msa.pdf.
d) Unless the context indicates otherwise,any capitalised words in this Appendix that are not otherwise specifically defined in this
Appendix have the same meaning as defined in the Agreement.
2) ACH Service
a) End User Consent:The Merchant must give notice to its End Users and obtain their consent to enable Plaid to process End User
data in accordance with Plaid's End User Privacy Policy available here: https://i)laid.com/legal/#consumers.
b) Restrictions: Unless Plaid specifically agrees otherwise in writing,the Merchant will not,and will not enable or assist any third-party
to:
i) attempt to reverse engineer,decompile,disassemble,or otherwise attempt to discover the source code,object code,or
underlying structure,ideas,or algorithms of the Plaid services described at https://www.plaid.com("Plaid Services");
ii) modify,translate,or create derivative works based on the Plaid Services;
iii) make the Plaid Services or information and data of Merchant's End Users provided to the Merchant via the Plaid Services(such
information and data,the"Plaid-Provided Data")or any derivative work thereof available to,or use the Plaid Services or Plaid-
Provided Data(or any derivative work thereof)for the benefit of,anyone other than the Merchant or End Users;
iv) sell,resell,license,sublicense,distribute, rent,or lease any Plaid Services or Plaid-Provided Data(or any derivative work thereof)
to any third-party,or include any Plaid Services or Plaid-Provided Data(or any derivative work thereof)in a service bureau,time-
sharing,or equivalent offering;
v) publicly disseminate information from any source regarding the performance of the Plaid Services or Plaid-Provided Data;or
vi) attempt to create a substitute or similar service through use of,or access to,the Plaid Services or Plaid-Provided Data. Merchant
will use the Plaid Services and Plaid-Provided Data only in compliance with:
(1) the Merchant application,use case,and other restrictions agreed between Plaid and Windcave;
(2) the Plaid developer policies(available at https://www.plaid.com/legal);
(3) Plaid's applicable technical user documentation(available at https://www.plaid.com/docs);and
(4) any agreements between Merchant and End Users(for clarity,including any privacy policy or statement).
Notwithstanding anything to the contrary,as between Plaid and Merchant, Merchant accepts and assumes all responsibility for
complying with all applicable laws and regulations in connection with Merchant's activities involving any Plaid Services, Plaid-Provided
Data,or End User data. Merchant acknowledges and agrees that: (I)Plaid is neither a"consumer reporting agency"nor a"furnisher"
of information to consumer reporting agencies under the Fair Credit Reporting Act("FCRA");and(II)the Plaid-Provided Data is not a
"consumer report"under the FCRA.
Merchant represents and warrants that it will not,and will not permit or enable any third party to,use the Plaid Services(including
Plaid-Provided Data)as a or as part of a"consumer report"as that term is defined in the FCRA,or otherwise use the Plaid Services
(including Plaid-Provided Data)such that the Plaid Services(including Plaid-Provided Data)would be deemed"consumer reports"
under the FCRA. Notwithstanding anything to the contrary,the Merchant will be bound by and will only use the Plaid Services and
Plaid-Provided Data in compliance with,the terms and conditions set forth in this Appendix.
c) Privacy and Authorizations. Before any End User engages with Windcave products or services which include,are derived from,or
incorporate the Plaid Services,the Merchant warrants and will ensure that it provides all notices and obtains all consents required
under applicable law to enable Plaid to process End User data in accordance with Plaid's privacy policy(currently available at
https://www.plaid.com/privacy). The Merchant will not: (i)make representations or other statements with respect to End User data that
are contrary to or otherwise inconsistent with Plaid's privacy policy;or(ii)interfere with any independent efforts by Plaid to provide End
User notice or obtain End User consent.
d) DISCLAIMER;ENFORCEMENT. THE PLAID SERVICES,PLAID-PROVIDED DATA,AND ANY OTHER INFORMATION,
SOFTWARE, PRODUCTS,SERVICES AND MATERIALS PROVIDED BY PLAID IN CONNECTION WITH THIS AGREEMENT ARE
PROVIDED"AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PLAID NOR ITS AFFILIATES,SUPPLIERS,
LICENSORS,OR DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND,WHETHER EXPRESS, IMPLIED,STATUTORY,OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO,WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,NONINFRINGEMENT,OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS.WITHOUT LIMITING
THE FOREGOING IN THIS SECTION(DISCLAIMER; ENFORCEMENT), NEITHER PLAID NOR ITS AFFILIATES,SUPPLIERS,
LICENSORS,OR DISTRIBUTORS MAKE ANY REPRESENTATION OR WARRANTY AS TO THE PLAID-PROVIDED DATA THAT
MAY BE OBTAINED FROM USE OF THE PLAID SERVICES OR THAT ANY PLAID SERVICES WILL BE UNINTERRUPTED,OR
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THAT ANY DATA PROVIDED BY OR THROUGH ANY PLAID SERVICES WILL BE TIMELY,ACCURATE,OR COMPLETE. PLAID
WILL BE AN INTENDED THIRD-PARTY BENEFICIARY OF THE AGREEMENT BETWEEN WINDCAVE AND MERCHANT AND MAY
DIRECTLY ENFORCE SUCH AGREEMENT AGAINST END CLIENT,WITHOUT WINDCAVES CONSENT OR PARTICIPATION,
BUT SOLELY RELATING TO THE PLAID-PROVIDED DATA(INCLUDING FI DATA)AND PLAID SERVICES THAT ARE PROVIDED
BY PLAID TO WINDCAVE OR MERCHANT.
e) FI Data. Through Windcave or Plaid Services,the Merchant may have access to information about or of End Users provided to Plaid
by a bank,financial institution,or other data source(each,as designated by Plaid,"FI",and such information,the"FI Data").
i) Merchant Obligations.
(1) End User Consents. The Merchant will provide all notices to,and obtain all express consents from,each End User as
required under applicable laws in connection with Merchant's use,storage,and other processing of any FI Data(such
notices and consents,the"Express Consents"). Express Consents will be clear and conspicuous and will generally specify
the categories of FI Data that Merchant will receive and how Merchant will use,store,and otherwise process FI Data,in
addition to any other required disclosures under applicable laws. Merchant will maintain records(which may include
technical logs,screenshots,versions of Express Consents obtained)sufficient to demonstrate End Client's compliance with
this clause and will promptly provide such records to Plaid upon request.
(2) Scope of Access. Merchant will only access FI Data for which it has obtained Express Consents from the End
User for the use case reviewed and permitted by Plaid in writing and consented to by the applicable End User
(such use case,the"Permitted Use Case"). For clarity,key factors Plaid will consider during its review of a
potential Permitted Use Case include whether the use case is appropriate and useful to provide the End User with
the Merchant application that the End User has enrolled in,whether the Merchant application provides a direct
benefit to the End User,whether the use case directly supports the development of new or improved product
features for the benefit of End Users,and the jurisdiction(s)in which the Merchant operates and/or stores FI Data.
If Merchant possesses FI Data that exceeds the scope of the End User's Express Consents, Merchant will use
industry-standard means to permanently and securely delete("Delete")such FI Data; provided that Merchant may
retain such FI Data to the extent required by applicable laws.
(3) Data Use. Merchant will use,store and otherwise process FI Data solely in accordance with the End User's
Express Consents and applicable laws.
(4) Data Disclosure. Merchant will not disclose,transfer,syndicate or distribute FI Data to any third party(including
its Permitted Service Providers)("Data Sharing")except in each case with the End User's Express Consent and
in accordance with applicable laws. Notwithstanding anything to the contrary,Merchant will not sell FI Data.
(5) Data Deletion. Merchant will promptly Delete any FI Data upon request by the applicable End User; provided that
Merchant may retain copies of FI Data solely to the extent required by applicable laws.
(6) No Attribution. Merchant will not charge End Users any fees attributable to an FI for(a)access to its FI Data or
(b)use of End User's account with an FI in connection with the Merchant application. In addition, Merchant will
not publicize its receipt of FI Data from specific FIs under the Agreement or this clause 2(g)(FI Data).
(7) No Other Access. During the term of the Agreement, Merchant will only access FI Data through the Plaid
Services or another manner that uses the FI's authorized APIs. Merchant will not"screen scrape"data from FIs or
collect an End User's log-on credentials for FI accounts,and will not otherwise knowingly obtain from a third party
FI Data that was originally sourced through screen scraping an FI. Merchant will immediately Delete any such
End User log-on credentials in its possession. Merchant will maintain records to demonstrate compliance with this
clause(No Other Access). For the avoidance of doubt, nothing in this clause(No Other Access)will prohibit
Merchant from engaging any third party to obtain services similar to the Plaid Services, provided that such third-
party services enable Merchant's access to FI Data solely via the FI's authorized APIs.
(8) Compliance with Laws. Merchant will comply with all applicable privacy,security,and other laws pertaining to FI
Data. Merchant will not use,store,disclose,or otherwise process any FI Data for any purpose not permitted
under applicable laws.
(9) Information Security Program. Merchant will maintain a comprehensive written information security program
approved by its senior management("Infosec Program"). The Infosec Program will include administrative,
technical and physical measures designed to: (a)ensure the security of FI Data, (b)protect against unauthorized
access to or use of FI Data and anticipated threats and hazards to FI Data and(c)ensure the proper disposal of FI
Data. The Infosec Program will be appropriate to Merchant's risk profile and activities,the nature of the Merchant
application,and the nature of the FI Data received by Merchant. In any event,the Infosec Program will meet or
exceed applicable control objectives captured in industry standards and best practices,such as AICPA Trust
Service Criteria for Security, NIST 800-53,or ISO 27002,and will comply with applicable laws. Merchant will use
up-to-date antivirus software and anti-malware tools designed to prevent viruses,malware,and other malicious
code in the Merchant application or on Merchant's systems.
(10) Security Breach Obligations. Merchant will notify Windcave and Plaid promptly(and in any event within twelve
(12)hours)via an email to legal(c�windcave.com and security@plaid.com,following Merchant becoming aware of
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any Security Breach,providing a description of all known facts,the types of End Users affected,and any other
information related to such Security Breach that Plaid may reasonably request. Merchant will reasonably
cooperate with Plaid in investigating and remediating Security Breaches. Merchant will be responsible for the
costs of investigating,mitigating,and remediating the Security Breach. "Security Breach"means any event that
compromises the Merchant application or Merchant's systems or that does or reasonably could compromise the
security,integrity or confidentiality of FI Data or result in the unauthorized use,disclosure,or loss of FI Data.
(11) FI Confidential Information. If Plaid discloses to Merchant any confidential or proprietary materials of an FI
pertaining to the provision of FI Data hereunder(such materials,"FI Confidential Information"),such materials
will be subject to the same obligations that apply to Windcave's Confidential Information under the Agreement,
which will in no event be less protective of such information than a reasonable standard of care. FI Confidential
Information will also be subject to the same obligations as FI Data under this section(Merchant Obligations).
(12) Oversight and Cooperation. Toward assessing Merchant's material compliance with this clause 2(g)(FI Data),
Merchant will promptly provide all reasonably necessary information and cooperation requested by Plaid,an FI,or
any entity with examination,supervision,or other legal or regulatory authority over Plaid or an FI. In the event that
Plaid has a good faith reason to believe that Merchant is not in material compliance with this clause 2(g)(FI Data),
Plaid will notify Merchant and,upon Plaid's request,Merchant will promptly provide sufficient documentation to
demonstrate such material compliance. If the documentation provided by Merchant in accordance with the
immediately prior sentence is insufficient(in Plaid's reasonable discretion)to demonstrate such material
compliance,Merchant will submit to a third-party audit by a firm selected by Merchant from a list of audit firms
reasonably approved by Plaid to verify such compliance. Plaid and FIs may also conduct technical or operational
assessments of End Client,which will be subject to advance notice and will not occur more than once per year
unless legally required and materially different in scope from a preceding audit.
(13) Information Sharing. Where required by an FI or relevant to an Merchant's access or use of FI Data from that FI,
Plaid may share with such FI certain information related to Merchant's compliance with this clause 2(g)(FI Data),
including with respect to Merchant's Infosec Program. Plaid will use commercially reasonable efforts to require
that such FI treat any such information in a confidential manner.
(14) Insurance. Merchant will maintain insurance coverage appropriate to Merchant's risk profile and activities,the
nature of the Merchant application,and the nature of the FI Data received by Merchant;provided that such
coverage will be no less than industry standard and will include cybersecurity liability insurance.
(15) Access Frequency. The parties acknowledge that as of the effective date of the Agreement,no guidelines
regarding Merchant's frequency of"batch"pulls of FI Data(such guidelines,the"Guidelines")apply to Plaid end
clients. Notwithstanding the foregoing in this paragraph:(1)Merchant will comply with any Guidelines provided in
writing by Plaid(including via Windcave);and(2)Plaid and Windcave may enforce such Guidelines to the extent
necessary in accordance with Plaid's standard practices,which may include throttling,suspension or termination
of Merchant's access.
ii) Suspension. Plaid may suspend Merchant's access to the Plaid Services or FI Data,in whole or in part, if Plaid
determines or reasonably believes that:(a)Merchant has breached this clause 2(g)(FI Data);(b)Merchant's use of the
Plaid Services or FI Data will or has materially violated an agreement between Plaid and an applicable FI;(c)
Merchant's use of the Plaid Services or FI Data will or does pose a risk of material harm,including material reputational
harm,to End Users,an FI,or the Plaid Services. In addition,an FI may suspend Merchant's access to FI Data with
respect to such FI. Plaid will use commercially reasonable efforts to:(1)notify Windcave prior to any suspension
described in this paragraph;(2)discuss with Windcave in good faith any such suspension;and(3)resume Merchant's
access to the Plaid Services and FI Data as promptly as is practicable after the basis for such suspension is cured to
Plaid's(and,as applicable,the relevant FI's)reasonable satisfaction.
iii) Indemnity. Merchant will indemnify,defend and hold harmless each FI,Plaid,Windcave,and the affiliates of each of
the foregoing from any claims,actions,suits,demands, losses,liabilities,damages(including taxes),costs,and
expenses arising from or in connection with:(a)any Security Breach resulting in unauthorized disclosure of FI Data
provided to Merchant hereunder;or(b)Merchant's unauthorized or improper use of FI Data provided to Merchant
hereunder(including any unauthorized Data Sharing,transmission,access,display,storage,or loss). This clause
(Indemnity)is not subject to any limitation of liabilities set forth in the Agreement. Each FI is a third-party beneficiary of
this clause(Indemnity).
iv) Modifications. Merchant acknowledges that continued access to FI Data provided by certain FIs may necessitate
modifications to this clause 2(g)(FI Data)pertaining to all applicable Plaid end clients.Merchant will accept such
modifications to continue accessing or using the Plaid Services with respect to such FIs. Plaid will use commercially
reasonable efforts to notify Windcave of the modifications and the effective date of such modifications. If Merchant
objects to the modifications,its exclusive remedy is to cease any and all access and use of the Plaid Services as it
relates to the applicable FI(s). Continued access to or use of such Plaid Services after the effective date of such
modifications to this clause 2(g)(FI Data)will constitute Merchant's acceptance of such modifications.
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V) Miscellaneous. In the event of a conflict with any other agreement or provision(including other provisions within the
Agreement),the terms and conditions of this clause 2(g)(FI Data)will govern and prevail. Capitalized terms used in
this clause 2(g)(FI Data)and not otherwise defined will have the meanings ascribed to them in the Agreement. All
provisions of this clause 2(g)(FI Data)will remain in force in the event of the termination or expiration of this clause 2(g)
(FI Data)or the Agreement.
3) Suspension,Amendment or Termination
a) Windcave may suspend or terminate the provision of ACH Services at its discretion without cause with immediate effect.
b) Windcave may change or add to the terms of this Appendix at any time with immediate effect by giving notice to you.