Gateway Services Agreement

This Netevia Gateway Services Agreement, and the agreements, policies, and documents incorporated herein, (this “Agreement”), is entered into by and between Net Element, Inc. (together with its subsidiary entities hereafter “NETE,” “we,” or “our”) and the entity or individual who enters into this Agreement (“Merchant” or “you”). This Agreement sets out the terms and conditions under which you may utilize our Netevia Gateway Services.

This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):

Create an account on the Netevia website; Accept this agreement online; or Begin using our company or any of our subsidiary entities payment services (the “Payment Services”). This Agreement, as it may be amended from time to time, will be available on the Netevia website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Privacy Policy, as well as your applicable Merchant Processing Agreement with us (“MPA”) and Bank Agreement(s), which are incorporated herein by this reference.

Please be advised that if you are domiciled in the United States, this Agreement contains provisions, including an Agreement to Arbitrate, that govern how claims you and Netevia have against each other are resolved, which will, with limited exception, require the parties to submit claims they may have against one another to binding and final arbitration. Under the Agreement to Arbitrate, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Agreement

Section 1 — Netevia Payment Services

1.01 “Netevia Payment Service(s)” means the Payment Processing Services and/or Gateway Services defined as follows:

• (a) “Payment Processing Services” means the payment processing services offered by NETE which provide merchants with the ability to accept credit cards, debit cards, and other payment methods through API. These services include Gateway Services, a bank-sponsored merchant account, recurring billing functionality, payment card storage, white glove customer support, and APIs and services and technology. The terms and conditions associated with Payment Processing Services as set forth in your MPA are fully incorporated herein by reference.
• (b) “Gateway Services” means the gateway services offered by Netevia which provide Merchants with the software and connectivity required to allow real-time secure data transmission for processing of credit and debit card payments on a website, mobile or desktop application. The Gateway Services include those additional products and services provided by Netevia which are provided subject to any additional terms as may be set forth on the Netevia website from time to time and which are incorporated into this Agreement by reference.

Section 2 — Fees and Taxes

2.01 Fees

In exchange for us providing you with the Netevia Gateway Services, you agree to pay us the fees as listed in the fee schedule on the Netevia website. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith dispute as to the amounts due, you agree to pay the undisputed amounts. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.

2.02 Payment of Fees

Upon NETE’s request, you agree to provide NETE with all necessary bank account routing and related information and grant NETE permission to debit amounts due for fees from your Bank Account.

2.03 Taxes

Merchant shall pay, indemnify, and hold NETE harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on NETE’s income, and (ii) all government permit fees, customs fees and similar fees which NETE may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to NETE hereunder.

Section 3 —Restricted Activities, Representations and Warranties, American Express Card Acceptance

3.01 Restricted activities

In connection with your use of the Netevia Payment Services, you agree that you will not:

• (a) Breach this Agreement, your Bank Agreement, or any other agreement that you have entered into with us in connection with the Netevia Payment Services;
• (b) Violate any federal, state, or local laws, rules, or regulations applicable to your business;
• (c) Violate any rule, guideline, or bylaw of any of the Associations (the “Association Rules”), as they may be amended by the Associations from time to time. Some of the Association Rules are available for Visa, Mastercard, American Express, and Discover.
• (d) Fail to provide us with any information that we reasonably request about you or your business activities, or provide us with false, inaccurate or misleading information;
• (e) Refuse to cooperate in a legal investigation or audit that may be required by the Associations;
• (f) Integrate or use any of the Netevia Payment Services without complying with our requirements;
• (g) Utilize recurring billing functionality without properly obtaining your customers’ consent to be billed in such a manner;
• (h) Submit any Transaction for processing through the Netevia Payment Services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Association Rules, or which inaccurately describes the product or services being sold or the charitable donations being made;
• (i) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party;
• (j) Display with unequal size or prominence, show preference for, or discriminate against one card brand or type over another, including your refund policies for purchases; and
• (k) Bill or collect from any cardholder for any purchase or payment on the card unless you have the right to do so under the Association Rules.

3.02 Representations and Warranties by Merchant

Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring Merchant’s performance is in conflict with its obligations under any agreement to which Merchant is a party.

Merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Merchant’s business operates.

Section 4 — Liability for Invalidated Payments and other Liabilities

You are liable for all claims, expenses, fines and liability we incur arising out of:

• (a) a Chargeback, Refund, over-payment, payment error, or other invalid payment you cause (collectively “Invalidated Payment”);
• (b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and
• (c) any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the Netevia Payment Services.

In the event of an Invalidated Payment or other liability, we may deduct the amounts due to Netevia from your payouts under the MPA or otherwise.

Section 5 — Actions We May Take

5.01 Credit Report Authorization and Verification of Information

You authorize NETE, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, evaluate your creditworthiness, and verify information that you have provided to us. You authorize NETE to obtain financial and credit information, such as pulling your personal credit report, or the credit report for your directors, officers, and principals. By completing your application to become a Netevia customer, you are providing NETE with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports.

In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity or determine that you are creditworthy, NETE reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the Netevia Payment Services, and refuse or rescind any payment by your customers.

5.02 Actions by NETE

If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the Netevia Payment Services, refusing to process any Transaction under your MPA, reversing a Transaction, holding your Payouts under your MPA, and contacting your customers to verify Transactions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.

Section 6 – Account Security, Data, Intellectual Property and Publicity

6.01 Security of your access

You agree to:

• (a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, NETE will not be liable to you for losses or damages;
• (b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
• (c) Take all reasonable steps to protect the security of the personal electronic device through which you access the Netevia Payment Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the Netevia Payment Services and not sharing your device with other people).

6.02 Data Security Compliance

Merchant agrees to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard (“Association PCI DSS Requirements”) and any applicable Association data security requirements (including those made available by Visa, MasterCard, American Express and Discover) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information on behalf of NETE. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information. You must report any Customer Data breach or incident to NETE and/or the Associations immediately after discovery of the incident. You also agree to ensure data quality and that any Customer Data is processed promptly, accurately and completely, and complies with the Associations’ technical specifications.

6.03 Ownership of Data

All Customer Data shall be owned by Merchant and Merchant hereby grants NETE a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Netevia Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.

6.04 Software License

NETE grants you a revocable, non-exclusive, non-transferable license to use Netevia’s APIs, developer’s toolkit, and other software applications (the “Software”) in accordance with the documentation accompanying the Software. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Netevia Payment Services. If you do not comply with the documentation and any other requirements provided by NETE, then you will be liable for all resulting damages suffered by you, NETE and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.

6.05 Trademark License

NETE grants you a revocable, non-exclusive, non-transferable license to use Netevia’s trademarks used to identify the Netevia Payment Service (the “Trademarks”) solely in conjunction with the use of the Netevia Payment Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Netevia (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks, including the logos and trademarks of the Associations.

6.06 Intellectual Property

Other than the express licenses granted by this Agreement, NETE grants no right or license by implication, estoppel or otherwise to the Netevia Payment Service or any Intellectual Property Rights of NETE. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of NETE, in the Netevia Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.

6.07 Publicity

Merchant hereby grants NETE permissions to use Merchant’s name and logo in its marketing materials including, but not limited to use on Netevia’s website, in customer listings, in interviews and in press releases.

6.08 Confidential Information

The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Netevia Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.

Section 7 - Indemnification, Limitation of Liability, Disclaimer of Warranties

7.01 Indemnification

Merchant agrees to indemnify, defend, and hold harmless NETE, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with NETE or its suppliers in relation to your use of the Netevia Payment Services; (ii) your use of the Netevia Payment Services; (iii) your acts or omissions; and/or (iv) your violation of any applicable law, regulation, or Association Rules and requirements.

7.02 LIMITATION OF LIABILITY

NETE SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NETEVIA PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF NETEVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL NETEVIA’S TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO NETEVIA UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.

7.03 Disclaimer of Warranties

THE NETEVIA PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. NETEVIA DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETEVIA OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF NETEVIA’S OBLIGATIONS.

The parties acknowledge that the Netevia Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, NETE does not guarantee continuous or uninterrupted access to the Netevia Payment Services. Merchant further acknowledges that access to the Netevia website or to the Netevia Payment Services may be restricted for maintenance. Netevia will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, NETE will not be liable for any interruption, outage, or failure to provide the Netevia Payment Services.

Section 8 - Term and Termination

The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing NETE with notice of your intent to terminate, or by ceasing to use the Netevia Payment Services.

NETE may terminate this Agreement or suspend services to you if any of the following occurs: (1) we are required by the Associations, the acquiring bank, or an order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the Netevia Payment Services carries an unacceptable amount of risk, including credit or fraud risk; or (4) any other legal, reputational, or risk-based reason exists, in NETE’s sole discretion. In the event that NETE must terminate this Agreement, NETE shall provide you with written notice as soon as reasonably practicable.

After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the Netevia Payment Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement or the MPA, whether accrued prior to or after termination.

Section 9 – General Provisions

9.01 Independent Contractors

The relationship of NETE and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of NETE, nor do they have any authority to bind NETE by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.

9.02 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

9.03 Waiver

No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

9.04 Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of NETE. NETE may assign this Agreement in its sole discretion without the written consent of Merchant.

9.05 Amendment

We may amend this Agreement at any time and will post a revised version of it on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice of any substantial change. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated below. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

9.06 Entire Agreement

This Agreement together with other agreements specifically incorporated herein by reference, sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

9.07 Survival

All sections and provisions which by their nature should survive, will survive the termination of this Agreement.

9.08 Communication; Recording Calls; and Availability of Contractual Documents

You consent to receive autodialed or prerecorded calls and text messages from NETE at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.

We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

NETE may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with NETE or its agents for quality control and training purposes or for its own protection.

9.09 Notices, Contracting Entity, Governing Law, and Jurisdiction

a. Contracting Entity. “NETE,” “we,” and “our” in this agreement refer to the contracting entity listed in the chart below that corresponds to your domicile, which is the country of Merchant’s residence (if Merchant is an individual) or the place where Merchant is incorporated (if Merchant is a company, corporation, or other legal entity). b. Notice to Merchant. Merchant agrees that NETE may provide notices and disclosures to Merchant by posting them on Netevia’s website, emailing them to Merchant, or sending them to Merchant through postal mail. Notices sent to Merchant by postal mail are considered received by Merchant within three (3) Business Days of the date NETE sends the notice unless it is returned to NETE. Disclosures and notices posted on Netevia’s website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if NETE sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, NETE will be deemed to have provided the communication to you. In addition, NETE may send Merchant emails, including, but not limited to, those relating to product updates, new features and offers and Merchant hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. c. Notices to Netevia. Notice to NETE shall be considered valid only if sent by postal mail to the applicable address for notice as designated in the below chart and based off of your country of domicile. d. Choice of law and jurisdiction. This Agreement shall be subject to the laws of the country listed under “Governing Law” for the country of Merchant’s domicile in the below table. The courts listed for Merchant’s country of domicile shall have exclusive jurisdiction over all disputes arising in relation to this Agreement.

9.10 Governing Law and Agreement to Arbitrate for Merchants Domiciled in the United States

This Section 9.10 applies only to merchants domiciled in the United States.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND NETEVIA HAVE AGAINST EACH OTHER ARE RESOLVED.

• A. Governing Law You and NETE agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between the parties, except as otherwise stated in this Agreement.
• B. Agreement to Arbitrate You and NETE agree that any and all disputes or claims that have arisen or may arise between you and NETEa shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.

THE PARTIES ALSO AGREE THAT YOU AND NETE MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND NETE AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER NETE MERCHANTS.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 9.10 is invalid or unenforceable, the other parts of this Section 9.10 shall still apply.

The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or NETE may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and NETE subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or NETE may attend by telephone, unless required otherwise by the arbitrator(s).

The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different merchants, but is/are bound by rulings in prior arbitrations involving the same merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.