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Commercial Entity Agreement
<br />littps: //squareu p.coni/legal/cea
<br />reference to conflict of law provisions. Any action, proceeding, arbitration heating or mediation relating to or
<br />arising from this Agreement must be brought, held, or otherwise occur in Dallas County, Dallas, Texas.
<br />PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE
<br />RESOLVED BY BINDING ARBITRATION AND THAT (i) SELLER IS GIVING UP ITS RIGHT TO
<br />HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH,
<br />MEMBER, OR RELATED THIRD PARTIES; (ii) SELLER IS GIVING UP ITS RIGHT TO HAVE A
<br />COURT RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH, MEMBER OR RELATED
<br />THIRD PARTIES; (iii) SELLER IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A
<br />PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO
<br />PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION
<br />FILED AGAINST PAYMENTECH, MEMBER AND/OR RELATED THIRD PARTIES. Any claim, dispute,
<br />or controversy (`Claim') by either Seller, Paymentech or Member against the other, or against the officers,
<br />directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of
<br />the other, arising from or relating in any way to this Agreement or to the relationship formed between the
<br />parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or
<br />the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration
<br />administered by the American Arbitration Association ("AAA"). All Claims are subject to arbitration, no
<br />matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort),
<br />fraud, agency, Seller, Paymentech's or Member's negligence, statutory or regulatory provisions, or any other
<br />source of law. Claims and remedies sought as part of a class action, private attorney general, or other
<br />representative action are subject to arbitration on an individual (non -class, non -representative) basis only, and
<br />the arbitrator may award relief only on an individual (non -class, non -representative) basis. Seller and
<br />Paymentech will agree on another arbitration forum if the AAA ceases operations. The arbitration will be
<br />conducted before a single arbitrator and will be limited solely to the Claim between Seller and Paymentech
<br />and/or Member. The arbitration, or any portion of it, will not be consolidated with any other arbitration and
<br />will not be conducted on a class -wide or class action basis. The prohibition against class action contained in
<br />this Section shall be non -severable from the remainder of this Section. If either party prevails in the
<br />arbitration of any Claim against the other, the non -prevailing party will reimburse the prevailing party for any
<br />fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees
<br />incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration
<br />proceedings will be final and binding on the parties, and judgment may be entered in a court of competent
<br />jurisdiction, Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office,
<br />www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration
<br />agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the
<br />Federal Arbitration Act, 9 U.S.C. § § 1-16. This arbitration agreement applies to all Claims now in existence
<br />or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or
<br />advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure
<br />or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests
<br />for contractual debts now or hereafter owned by either patty to the other. IN THE ABSENCE OF THIS
<br />ARBITRATION AGREEMENT, SELLER AND PAYMENTECH MAY OTHERWISE HAVE HAD A
<br />RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A
<br />JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY
<br />OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE,
<br />THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS
<br />MUST NOW BE RESOLVED THROUGH ARBITRATION.
<br />8.10 Force Majeure.
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