I have read and agree to the Herbo Terms and Conditions:

Please read this Agreement carefully and keep a copy for your records. This is a binding legal agreement (“Agreement”) between you and Herbo™, the Membership Network of Eco Science Solutions Inc. dba Herbo™, a California corporation (“ESSI”, “Herbo™”, “HerboPay™” or “we/us/our”).

This Agreement outlines the terms and conditions under which you will be permitted to participate in the Herbo™ payment network (“HerboPay™”) and/or an electronic account on the HerboPay™ (“Account”) and use the payment services offered by Herbo™ (“Services”). In this Agreement, the words “you” and “your” mean the person entering into this Agreement who uses the Services, accesses HerboPay™, or has been authorized to use an Account, whether as a consumer (“Member”) or as a seller of goods and services (“Merchant”).

The terms of this Agreement apply to both Members and Merchants unless otherwise indicated. If an individual is entering into this Agreement or using the Services on behalf of a company or other legal entity, the terms “you” and “your” shall refer to such entity, and the individual accepting these terms on behalf of such entity represents and warrants to ESSI that he or she has all necessary consents and authority to bind the entity to this Agreement. Engaging in any of the following actions will constitute your acknowledgment that you have read and understood all the terms and conditions of this Agreement and that you agree to be bound by them: (a) clicking an “Accept” or similar button or checking a box captioned with acceptance language; (b) signing up for an Herbo™ Account or submitting a Merchant application; or (c) using or accessing any Services or any Account. If you do not agree to the terms of this Agreement, you may not: use the Services; If an HerboPay™ transaction is disputed, the Member and Merchant each agree to be bound by the then-current HerboPay™ transaction dispute procedures, issued from time to time by ESSI. Current procedures and policies are available on ESSI’s website at www.useherbo.com are subject to change by ESSI at its sole discretion.

Section 1. Merchants. The following terms apply to Merchants: 

1.1. Merchant Applications. To sign up as a Merchant on the HerboPay™ and to use the Services, you must first submit a Merchant application in a form required by ESSI and verify your compliance with applicable laws, rules, and regulations, including without limitation anti-money laundering rules. ESSI will review your application and may approve or decline such application at its sole discretion. If ESSI approves your application and accepts you as a Merchant, you will be permitted to use the Services and related tools provided by ESSI to accept Network Credit paid by Members for the goods and services you offer. ESSI will provide the necessary software, platforms, application programming interfaces, and other online tools. The Services and all related tools must be used in accordance with any applicable documentation, specifications, rules, guidelines and policies provided by ESSI from time to time at its sole discretion. ESSI reserves the right to reject a Merchant application for any reason, including without limitation for retailers in high-risk industries or who sell goods and services that are restricted to minors.

1.2. Hardware. You may be required to use certain hardware provided or approved by ESSI to use the Services and process transactions on the HerboPay™, such as an Herbo™ Financial Center. Subject to availability, Merchant may lease any such device(s) from ESSI under a separate agreement, on terms mutually agreed to by ESSI and Merchant or ESSI may provide as a contribution to the Membership.

1.3. Acceptance. If Merchant’s application is approved by ESSI, and Merchant elects to accept Network Credit for the goods and services it sells, Merchant shall not: (a) require any Member to enter into a separate agreement with respect to payment with Network Credit; (b) charge a Member more for any good or service due to the Member’s payment in Network Credit; or (c) levy any surcharge on any Member transaction in violation of applicable law.

1.4. Account Usage. As a Merchant, you will be assigned a 16-digit Account number, with which you will be able to receive and exchange Network Credit earned through the sale of goods and services to Members who pay you with Network Credit. You may convert the Network Credit in your Account to cash by redeeming your Network Credit with ESSI, which may be done at any Herbo™ Financial Center or at participating Merchants including you, if applicable) that have agreed to provide cash back at the point of sale. Using your Account’s online dashboard, you can exchange Credit for cash and send it to your bank account or non-members via ACH, transfer Network Credit to any other Member or Merchant holding an Account, or issue an electronic check to be sent to a non-member and or load to a virtual account for exchange through a card association network card. When you use Network Credit as outlined in this Section, you will be acting in the capacity of a Member, and all terms applicable to Members in this Agreement shall apply. Redemptions and transfers may incur a fee, as indicated on the applicable fee schedule (available on the HerboPay™ website or through your Account). You may also exchange funds for Network Credit and otherwise use the Account in the manner described for Members in Section 1 of the Herbo™ Business Member Agreement. To the extent you engage in any of these activities with your Account, you will be deemed a Member with respect to such activities and the applicable provision of Section 1 of the Herbo™ Business Member Agreement will apply to your usage of the Account.

1.5. Trademark License. ESSI grants you the right to use and display the HerboPay™ logo, and related signage, decals and marketing collateral provided by ESSI, and other materials that contain the ESSI Marks (defined below), solely in connection with your authorized use of the Services. All use of the ESSI Marks is subject to the limitations outlined in this Agreement and any guidelines or policies issued by ESSI from time to time. In addition, each use of the ESSI Marks must receive ESSI’s prior written approval, to be granted or withheld by ESSI in its sole discretion.

1.6. Trademark Restrictions. To the extent ESSI permits you to use the HerboPay™ logo or any other trademark of ESSI (“ESSI Marks”), you agree that all such use is subject to any standards or guidelines issued by ESSI from time to time regarding trademark usage. You acknowledge and agree that all right, title, and interest in and to the ESSI Marks belong to ESSI and that all usage and goodwill of the ESSI Marks shall inure to the benefit of ESSI. You agree not to register or attempt to register any trademarks or domain names that are confusingly similar to the ESSI Marks or ESSI’s domain names, nor use the ESSI Marks in any manner that would indicate that you have any rights thereto other than as a licensee. You will not use the ESSI Marks in any way which may imply that you or any of your products and services are endorsed by ESSI. ESSI reserves the right to revoke your right to use the ESSI Marks at any time in ESSI’s sole discretion.

1.7. Fees. For each transaction, Merchant shall pay through a reduction in Network credit received from a member’s account or a redemption in Network Credit from the Merchant’s account (a) a fixed per-transaction fee, (b) a percentage of the transaction amount, and (c) a pass-through fee based on charges incurred by ESSI for the loading of funds in the Member’s Account. For the pass-through fees, if a portion of the Member’s Account funds were loaded from one source (for example, from the Member’s bank account via ACH) and a portion were loaded from a different source (for example, from the Member’s credit card), the funds with the highest fee rate will be applied to a transaction first. The applicable fees are specified and set out in more in detail in the fee schedule attached to your application, which is incorporated into this Agreement by reference. ESSI will transfer Network Credit to Merchant’s Account for Member transactions completed, less the transaction fees described in this Section and/or the applicable fee schedule, within five (5) days after the date of the transaction. ESSI may withhold Network Credit or revoke any previously issued Network Credit if a transaction is disputed by a Member, in which case such dispute will be resolved in accordance with Section 2.2 below. If insufficient Network Credit is available in Merchant’s Account to fully pay ESSI all amounts owed, Merchant shall immediately pay ESSI the shortfall. Merchant may update its bank account information from time to time with fifteen (15) days’ written notice to ESSI.

1.8. Taxes; Changes in Fees; Account Restrictions. Merchant shall pay all taxes related to this Agreement, and ESSI will not be responsible for withholding or paying any tax on behalf of Merchant. Merchant shall, in connection with each Member transaction, charge the Member all appropriate taxes required by applicable taxing authorities for such transaction, and remit all such taxes due to the applicable governmental agency. Merchant shall indemnify and hold ESSI harmless for any tax paid by ESSI on behalf of or due to the actions of Merchant. ESSI shall have the right to increase fees, immediately upon notice to Merchant, as necessary to offset any direct or indirect increase to ESSI in the costs of providing the Services hereunder; including, but not limited to increases due to changes in rules, regulations, operating procedures of ESSI, or any additional requirements imposed by any federal or state governmental agency, regulatory authority, payment card brand, banking network, or industry standards group (including without limitation the National Automated Clearinghouse Association (NACHA) for any reason. You shall be responsible for, indemnify, and hold ESSI harmless from, payment of all taxes and duty relating to any redemption, exchange or transfer of Network Credit, or conversion of Network Credit into cash. We may restrict or disable your ability to convert Network Credit to cash, or freeze or prevent the implementation of any previously ordered or scheduled conversions or withdrawals, in any of the following circumstances: (a) if we have reason to believe the funds received are fraudulent; (b) if we believe you are likely to charge back or otherwise reject or reverse a purchase after the withdrawal of the funds; (c) if you or the Account is subject to any investigation, inquiry, inspection, audit, or other governmental request; (d) if we are required to do so by law or court order; or (e) if we believe that such action is necessary or appropriate to prevent harm to us, you, or any third party.

1.9. Merchant’s Representations and Warranties. By signing up for or using the Services, Merchant represents, warrants, and agrees that: (a) Merchant is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all relevant jurisdictions; (b) all information provided and statements made by Merchant or on Merchant’s behalf in connection with this Agreement, the Merchant application, or related documents are true, accurate, and complete in all material respects; (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against Merchant in accordance with its terms; (d) Merchant has all necessary right, power, and ability to execute this Agreement and to perform its obligations therein, and no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement; (e) the performance of its obligations under this Agreement will not violate any law or breach any other agreement to which it is bound; (f) Merchant will be wholly responsible for Network Credit, returns, and disputes submitted to Merchant or ESSI by Members or Merchant’s customers, and that ESSI will have no liability whatsoever for any such dispute; (g) for each item or transaction for which the Services are used or which is presented to ESSI, Merchant has truthfully delivered merchandise or completed a service to the customer, as the case may be; (h) Merchant will not accept Network Credit for any product or service not directly provided by Merchant; (i) Merchant will not be involved in any harmful, obscene, or abusive activity over ESSI’s Network, systems, or the internet, including but not limited to spamming, phishing, or distributing viruses or other malicious code; and (j) Merchant does not and will not at any time conduct its business or use the Services in any manner that involves any illegal, fraudulent, criminal, or infringing activity, or that violates any applicable laws, regulations, rules, or ESSI policies, including but not limited to anti-money laundering regulations.

1.10. Data Usage and Compliance

1.10.1. Transaction Data. Merchant authorizes ESSI to act on behalf of Merchant and to accept and transmit transaction data and other information as necessary for ESSI to deliver the Services, process transactions, and otherwise fulfill its obligations under this Agreement. Merchant understands and agrees that ESSI will collect, retain, use, process, and transfer information and data collected from Merchant and Merchant’s customers—including non-public, personally identifiable data, financial data, payment information and payment history, and other Member data—in accordance with this Agreement and ESSI’s then-current privacy policy made available on ESSI’s website at www.useherbo.com/privacy. Merchant acknowledges and agrees that: (a) Merchant is solely responsible for verifying the accuracy and completeness of all transactions and associated data submitted to ESSI, and for verifying that all corresponding funds associated with each transaction are accurately processed; (b) the fees associated with transactions and associated data submitted to ESSI are earned by ESSI and shall not be reimbursed; (c) ESSI shall not be liable for the value of, or any losses that arise from or are caused by, any transactions, including without limitation those that are unauthorized, improperly processed or approved, wrongfully declined, disputed, or otherwise; and (d) ESSI shall not be liable for any unauthorized third-party access to any transaction data, Merchant’s Account or bank accounts, or Merchant’s customers’ personal data, including without limitation illegal or fraudulent access. All such transaction data and Member’s Account Data shall belong to ESSI and shall constitute ESSI’s confidential information. Notwithstanding anything to the contrary in this Agreement, ESSI may disclose or share any information provided by Merchant: (a) to Merchant’s banks, Merchant affiliates, credit card associations, or ESSI’s vendors in performance of the Services; (b) to comply with applicable laws, regulations, rules, or policies; (c) in response to a request from law enforcement or other government agencies or a court order; or (d) to perform ESSI’s obligations under this Agreement.

1.10.2. Compliance. Merchant represents, warrants, and agrees that it will at all times comply with—and will ensure that all of its vendors, terminals, software, and systems comply with—all applicable and then-current legal obligations, including without limitation all laws and regulations (including without limitation regarding data protection, anti-bribery, and anti-money laundering), card brand rules and procedures, security standards issued by the PCI Security Standards Council LLC, including without limitation the PCI-DSS and PA-DSS standards (“PCI Standards”), and all ESSI security protocols, policies, documentation, notices, and safeguards in effect during the term of this Agreement, as they may be updated from time to time (including without limitation with respect to application programming interface (API) documentation and transaction submission procedures). Without limiting the foregoing, in order to comply with PCI Standards relating to PIN/Security code security requirements, Merchant agrees to implement, document and follow such PCI Standards designed to prevent PIN/Security Code entry devices (PEDs) from being manipulated, exchanged or used in an unintended way. Merchant understands and agrees that ESSI will under no circumstances be held liable for any damages resulting from Merchant’s (or Merchant’s employees, contractors, or agents) non-compliance with any of the above, and Merchant will defend, hold harmless, and indemnify ESSI against all damages resulting from such noncompliance by Merchant or its employees, contractors, or agents.

1.10.3. Passwords. Merchant is solely responsible for maintaining all necessary security and control of any and all user names, passwords, or any other credentials issued to or used by Merchant, in connection with the Services or transaction processing on the HerboPay™. ESSI shall be entitled to rely on information it receives from Merchant and may assume that all such information was transmitted by or on behalf of Merchant, including without limitation where such information is received through the use of Merchant’s credentials or from an email address associated with Merchant’s account. Merchant’s use of the Services shall be restricted to Merchant. Merchant shall not submit transactions using the Services on behalf of any other entity or individual. Any attempt by Merchant to use the Services on behalf of another entity or individual may result in additional fees, charges, fines, assessments and/or account closure.

1.10.4. Data Security. Merchant acknowledges and agrees that Merchant, and not ESSI or its service providers, is responsible for the security of transaction data or for any other information stored on Merchant’s servers, and that ESSI is not responsible for any third-party’s servers. ESSI will not be responsible for the security and safety of data and any unauthorized access or use of such data while held, hosted, stored, accessible through, or transmitted through Merchant’s systems and servers. Merchant agrees to provide notice to its customers that disclose how and why personally identifiable data is collected and used in accordance with applicable law, including the uses governed by this Agreement. Merchant agrees not to use, disclose, sell, or disseminate any Member account, cardholder/Account Holder/Member, or other transaction information obtained in connection with a transaction except for purposes of completing or settlement of the transaction, or to resolve disputes, retrievals, or similar issues involving the transaction, unless otherwise required by a court order, governmental agency request or subpoena, or applicable law. Merchant represents and warrants that it has taken all precautions necessary to ensure that all transaction data, cardholder data, and personally identifiable data are adequately protected, and that Merchant’s electronic systems are secure from access, breach, intrusion, or compromise by any unauthorized third parties. In the event that Merchant’s systems are breached or a unauthorized persons have gained access to such systems, Merchant’s credentials, or any personal data or transaction data, Merchant shall promptly: (a) notify ESSI in writing of such occurrence; (b) notify any affected parties as required under any applicable laws or industry guidelines; (c) take all actions and precautions necessary to prevent any continuous or additional breach; and (d) commence all remedial efforts and other actions required under the applicable laws, regulations, or Network rules.

1.11. Service Warranty. ESSI warrants that it will perform the Services in a workmanlike manner in accordance with industry standards and practices. In the event that Merchant reasonably and in good faith believes that ESSI has substantially failed to provide the Services in accordance with this warranty, Merchant shall notify ESSI in writing with a detailed description of such failure. ESSI’s sole and exclusive liability, and Merchant’s sole and exclusive remedy, shall be for ESSI to re-perform the Services in a good-faith attempt to correct the error. The warranties of this Section will not apply if: (i) a defect has been caused by an error, malfunction, misuse, or compromise of Merchant’s equipment, systems, or software, (ii) the Services are used in any manner inconsistent with or in violation of this Agreement, ESSI’s policies or procedure, or any documentation related to the Services or any related software or hardware systems, or (iii) the Services or related hardware or software (or any portion thereof) have been modified by any individual or entity other than ESSI nor are they used in any manner not authorized by ESSI. THE REMEDIES SET FORTH IN THIS SECTION CONSTITUTE MERCHANT’S SOLE REMEDIES AND ESSI’S SOLE LIABILITY WITH RESPECT TO THE FOREGOING WARRANTIES.

1.12. Record Retention; Information Requests; Audits. You acknowledge and agree that you are responsible for compiling and retaining temporary and permanent records of all applicable data in accordance with applicable law, Network rules, and ESSI policies, including without limitation transaction details and receipts, and information regarding your business operations, practices, financial condition, ownership, and other business information. All such data shall be retained for the term of this Agreement and for a period of three (3) years thereafter, and during this period you agree to provide any such data to ESSI promptly upon request, at no cost or charge to ESSI. Furthermore, during the term of this Agreement and for three (3) years thereafter, ESSI shall be entitled to audit and inspect the agreements and business records of Merchant relating to transactions conducted under this Agreement to verify Merchant’s compliance with this Agreement, at no cost or charge to ESSI. While conducting an audit and inspection, ESSI and its representatives will be entitled to photocopy and retain any document or item for evidentiary purposes. You will notify ESSI in writing within ten (10) days if your ownership changes in whole or in part, whether through a sale of stock or equity, merger, or other change-of-control transaction.

Section 2. General Terms The following terms apply to all Members and Merchants:

2.1. Account Security, Data

2.1.1. Account Credentials. To the extent you are issued or create credentials (such as a user name and password) for accessing your Account, you agree that you are solely responsible for maintaining the confidentiality and security of your Account and all such credentials provided to you. You are responsible for all transactions initiated and fees incurred by use of your Account. ESSI shall be entitled to rely on information submitted using your Account or the credentials, personal information, email address, or security challenge questions associated with your Account, and ESSI may assume that all such information was transmitted by or on behalf of you and is authorized by you. If another person has access to your Account, including without limitation unauthorized access, although not specifically permitted/ authorized by ESSI, we will treat this as if you have authorized such use and you will be liable for, and indemnify and hold ESSI harmless from, all transactions, costs, and damages incurred or caused by those persons. You must immediately notify us by phone at 1-833-464-3726 and in writing to Eco Science Solutions, Inc. 300 S. El Camino Real #206, San Clemente, CA 92672 Attn.: Account Breach if you believe that your credentials have been compromised or if you detect any fraudulent or unauthorized activity involving the Account, including, but not limited to, regarding any unauthorized transaction or withdrawal. Only (1) one Account is permitted per person. You will not be permitted to register or receive access to any additional Account for another person without ESSI’s prior written consent, which may be granted or denied in ESSI’s sole discretion.

2.1.2. Account Security, Liability. You should protect access to your Account against theft with the same level of care that you use to protect the cash in your wallet. You understand that we cannot prevent the unauthorized use of your Account by others and cannot replace Network Credit used by any unauthorized user. THE NETWORK CREDIT CANNOT BE REPLACED IF IT IS LOST OR STOLEN. However, notwithstanding the foregoing, unless you have (a) been negligent with the Account (including without limitation with respect to security or sharing of Account credentials), (b) engaged in fraudulent activity(ies) or intentional misconduct, or (c) failed to notify us within two (2) business days of the suspected fraudulent or unauthorized activity, you will not be liable for unauthorized transactions using your lost or stolen Card or Account credentials.

2.1.3. Account Data. Through your use of your Account and the Services, we will have access to certain data relating to you, your Account, the transactions you enter into, and other Account usage data, including without limitation information you provide to us upon Account registration or when you contact us with customer service issues and personal information such as your name, address, email, phone number, and other contact information (collectively, “Account Data”). You understand and agree that ESSI may use Account Data to provide the Services and share such Account Data with third-parties such as our service providers, vendors, and financial institutions (among others): (a) as necessary or helpful for completing a transaction or otherwise to administer the Services; (b) in order to verify the existence and condition of the Account for a third-party (e.g., Merchants); (c) in order to comply with any law or to comply with requirements of any government agency or court order; (d) if you give us your written consent; (e) to service providers who administer the Account or perform data processing, records management, collections, and other services for us, in order that they may perform those services; (f) in order to prevent, investigate or report possible illegal or fraudulent activity; (g) in order to issue authorizations for transactions on the Account; and (h) as otherwise permitted by law. Further terms regarding our use of Account data and communications we may send to you are outlined in the ESSI Privacy Policy, available at www.useherbo.com/privacy and incorporated into this Agreement by reference.

2.2. Transaction Dispute Procedures. If an HerboPay™ transaction is disputed, the Member and Merchant each agree to be bound by the then-current HerboPay™ transaction dispute procedures, issued from time to time by ESSI. Current procedures and policies are available on ESSI’s website at www.useherbo.com and are subject to change by ESSI in its sole discretion.

2.3. Confidentiality. You acknowledge that ESSI will be providing you with certain confidential information, including but not limited to this Agreement and information relating to the pricing, finances, systems, methods, techniques, programs, technology, devices, and operations of ESSI, third-party processors, vendors, banks, and/or credit card associations and brands. You agree not to disclose any such confidential information to any person or entity other than as required to process transactions and use the Services and Accounts, and not to use such confidential information for any purpose other than to exercise your rights or fulfill your obligations under this Agreement. You also agree that you will fully comply with any and all applicable confidentiality and security laws, regulations, rules, and requirements issued by governmental agencies or relevant industry authorities (e.g., credit card associations or banks). A merchant may only disclose confidential information under this Agreement to the Merchant’s employees and contractors who need access to such information to fulfill the Merchant’s obligations hereunder and who are legally bound to keep such information confidential. Upon request by ESSI or upon any termination or expiration of this Agreement, you will return to ESSI all materials, in any medium, that contain, embody, reflect, or references any of ESSI’s confidential information.

2.4. Intellectual Property. You acknowledge that all right, title, and interest (including without limitation all intellectual property rights) in and to the HerboPay™ and all Services, Accounts, and all related software, hardware, source code, technology, trademarks, trade names, trade dress, logos, patents, copyrights, trade secrets, and domain names, including any derivatives made of any of the foregoing, are owned exclusively by ESSI or its licensors and suppliers (collectively, “ESSI IP”). You agree that you shall (a) not use the ESSI IP in any manner other than as expressly permitted under this Agreement; (b) not do anything to contest or impair the ESSI IP, (c) not modify, sell, lease, timeshare, transfer, create derivative works of, or reverse engineer any portion of the ESSI IP; and (d) immediately notify ESSI if you become aware of any unauthorized use of the ESSI IP. You agree that all improvements, enhancements, modifications, or derivative works made from any portion of the ESSI IP (by any party) shall be the exclusive property of ESSI.

2.5. Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, ESSI MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, RELATED TO THE HerboPay™, SERVICES, AND ACCOUNTS, AND ESSI EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AVAILABILITY, AND NON-INFRINGEMENT. THE Herbo™ SERVICES, AND ACCOUNTS ARE PROVIDED SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS. MEMBER AND MERCHANT UNDERSTAND AND AGREE THAT THE HerboPay™, SERVICES, AND ACCOUNTS MAY NOT BE AVAILABLE, UNINTERRUPTED, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR COMPATIBLE WITH CERTAIN HARDWARE OR SOFTWARE PLATFORMS. NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IS PROVIDED FOR LOSS OF DATA, PERFORMANCE, OR REVENUE, OR FOR FAILURE TO FUNCTION PROPERLY OR MEET MEMBER’S OR MERCHANT’S NEEDS. ESSI DOES NOT WARRANT OR GUARANTEE ACCESS TO THE HerboPay™, SERVICES, AND ACCOUNTS, AND HAS NO LIABILITY FOR ANY DOWN-TIME OF SERVERS RELATED TO PROCESSING OF TRANSACTIONS. NEITHER MEMBER NOR MERCHANT MAY RELY ON ANY REPRESENTATION OR WARRANTY REGARDING ESSI, THE HerboPay™, THE SERVICES, OR ACCOUNTS FROM ANY THIRD-PARTY.

2.6. Limitation of Liability. ESSI WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS, OR COST OF SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, ESSI’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT (INCLUDING FOR NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED THE GREATER OF $5,000 AND (A) FOR MEMBERS, THE INITIAL VALUE LOADED INTO THE ACCOUNT, AND (B) FOR MERCHANTS, THE AMOUNT IN FEES PAID BY MERCHANT TO ESSI IN THE THREE (3) MONTHS PRECEDING THE CLAIM. ESSI IS NOT RESPONSIBLE TO MERCHANT FOR FRAUD, DUPLICATE CHARGES CREATED OR CAUSED BY MEMBERS OR MERCHANT’S CUSTOMERS, NOR CAN ESSI REFUND THESE PROCESSING CHARGES TO MERCHANT. NO CLAIM MAY BE MADE AGAINST ESSI BY MEMBER OR MERCHANT AFTER TWELVE (12) MONTHS FOLLOWING THE DATE OF FIRST ACCRUAL OF LIABILITY.

2.7. Indemnification. You agree to hold ESSI harmless from any and all claims, causes of action, demands, judicial and administrative proceedings, errors, liabilities, damages, losses, costs, and expenses, including without limitation court costs and reasonable attorney’s fees, arising from or relating to your (or your employees’, representatives’, or agents’): (i) use of the Services, including Accounts; (ii) breach or alleged breach of this Agreement; (iii) actual or alleged negligence, fraud, dishonesty or willful misconduct; (iii) violation or alleged violation of any applicable law, rule, regulation, or policy; or (iv) actual or alleged infringement of any person’s intellectual property rights.

2.8. Dormant Accounts. If any Account is dormant or unclaimed following termination or expiration of this Agreement or termination of the Account for the amount of time specified in the applicable state’s escheat laws, such escheat laws may apply to the Account, and if so, the then-current value of the Network Credit in the Account will be remitted to the applicable state.

2.9. Term and Termination

2.9.1. For Members. This Agreement is effective as of the Effective Date, shall continue until either party notifies the other party in writing of its intent to terminate this Agreement or close/deactivate the Member’s Account.

2.9.2. For Merchants. This Agreement is effective as of the Effective Date, shall continue for an initial period of three (3) years, and shall automatically renew for additional successive one (1) year periods, unless either party notifies the other party in writing of its intent not to renew at no less than ninety (90) days prior to the end of the then-current initial or renewal period, or unless this Agreement is otherwise terminated in accordance with this Section.

2.9.3. Other Termination. ESSI may immediately terminate this Agreement, in addition to any other remedies ESSI may have under this Agreement or in law or equity, if, in ESSI’s sole determination and discretion, Member or Merchant breaches any provision of this Agreement or is or may be involved in any illegal or fraudulent activity. In addition, ESSI may immediately terminate this Agreement if ESSI’s relationship or contract with its processor or service provider terminates or if changes in law, regulation, or card brand rule makes it impossible or commercially unreasonable for ESSI to continue to provide the Services, all at ESSI’s sole discretion.

2.9.4. Effect of Termination. Upon termination or expiration of this Agreement, you shall immediately cease using the Services, Accounts, ESSI Marks, ESSI IP, and all other material of ESSI, and you shall immediately return (or, at ESSI’s instruction, destroy) all confidential information of ESSI. You may not use any Network Credit, except to convert such network Credit to cash as follows: If you have remaining Network Credit in your Account upon termination, we will redeem such Network Credit from you to convert such Network Credit to cash; we will send you the resulting funds by check, ACH, or otherwise, at our sole discretion, less any fees owed to ESSI as of the effective date of such termination or incurred in the course of such conversion and return of funds. Termination or expiration of this Agreement shall not relieve Member or Merchant from any liability or obligation to ESSI incurred prior to the effective date of termination. Sections 1.10–1.12, Sections 2.6–2.12, and Section 3 shall survive termination or expiration of this Agreement for any reason.

2.10. Disputes Involving ESSI

2.10.1. Arbitration and Waiver of Jury Trial. The parties agree that any dispute arising out of or relating to this Agreement or your use of the HerboPay™, Services, or Accounts will be resolved by binding arbitration rather than in court, unless you and ESSI expressly agree otherwise in writing. This agreement to arbitrate is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the substantive law of the State of California (without applying its choice-of-law rules). PLEASE READ THIS PROVISION CAREFULLY. UNLESS YOU EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY TRIAL, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED FOR IN THE ARBITRATION RULES), AND TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS OR IN ANY CONSOLIDATED ARBITRATION PROCEEDING OR AS A PRIVATE ATTORNEY GENERAL. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE IN ARBITRATION.

2.10.2. Arbitration Procedures. The party asserting a claim or demand shall initiate arbitration, provided that the parties shall first try to resolve the matter informally or through customary business methods, including collection activity. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules. Arbitration for disputes involving Members will be conducted under the Consumer Arbitration Rules and arbitration for disputes involving Merchants will be conducted under the Commercial Arbitration Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, except that the initial filing fee must be paid by the claimant. The arbitration shall be conducted by telephone, based on written submissions, or in a location within the State of California. The arbitrator shall apply applicable federal and California substantive law and the terms of this Agreement (including without limitation the waiver of class-wide arbitration). The arbitrator shall make written findings and the arbitrator’s award may be filed with any court having jurisdiction. The arbitrator has the ability to award all remedies available by statute, at law, or in equity to the prevailing party, provided that the arbitration award must be supported by substantial evidence and must be consistent with this Agreement and with applicable law; if it is not, the award may be set aside by a court.

2.10.3. Waiver of Jury Trial. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL, TO HAVE A COURT DECIDE DISPUTES, TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. You and we agree that the arbitrator has no authority to conduct class-wide arbitration proceedings and is only authorized to resolve the individual disputes between you and us. The validity, effect, and enforceability of this waiver of class action lawsuit and class-wide arbitration, if challenged, are to be determined solely by a court of competent jurisdiction and not by the arbitrator. If such court refuses to enforce the waiver of class-wide arbitration, the dispute will proceed in court and be decided by a judge, sitting without a jury, according to applicable court rules and procedures, and not as a class action lawsuit.

2.10.4. Right to Opt-Out. If you do not wish to agree to arbitrate all disputes in accordance with the terms and conditions of this Section, you may opt-out without affecting your application or Member/ Merchant status. To opt-out, you must advise us in writing at the following address by either hand delivery or a letter postmarked within thirty (30) days following the date you enter into this Agreement: Eco Science Solutions, Inc. 300 S. El Camino Real #206, San Clemente, CA 92672.

2.10.5. Governing Law. Except as set forth in this Section 2.10 regarding arbitration and jury trial waiver, (i) this Agreement will be governed by, construed and enforced in accordance with federal law and the laws of the State of California, without giving effect to rules regarding conflicts of laws; (ii) any action or proceeding with respect to this Agreement or any services hereunder shall be brought only before a federal or state court in the State of California; and (iii) you agree to pay upon demand all of our costs and expenses incurred in connection with the enforcement of this Agreement. If we are served garnishments, summonses, subpoenas, orders or legal processes of any type, we are entitled to rely on the representations therein and may comply with them at our own discretion without regard to jurisdiction. The provisions of this Section 2.10, including without limitation any provisions regarding arbitration, shall survive: (a) termination, cancellation, payment, charge-off, or assignment of this Agreement; (b) the bankruptcy of any party; and (c) any transfer, sale, or assignment of this Agreement, or any amounts owed under this Agreement, to any other person or entity.

2.10.6. Remedies. You acknowledge and agree that you are responsible for compiling and retaining temporary and permanent records of all applicable data in accordance with applicable law, Network rules, and ESSI policies, including without limitation transaction details and receipts, and information regarding your business operations, practices, financial condition, ownership, and other business information. All such data shall be retained for the term of this Agreement and for a period of three (3) years thereafter, and during this period you agree to provide any such data to ESSI promptly upon request, at no cost or charge to ESSI. Furthermore, during the term of this Agreement and for three (3) years thereafter, ESSI shall be entitled to audit and inspect the agreements and business records of Merchant relating to transactions conducted under this Agreement to verify Merchant’s compliance with this Agreement, at no cost or charge to ESSI. While conducting an audit and inspection, ESSI and its representatives will be entitled to photocopy and retain any document or item for evidentiary purposes. You will notify ESSI in writing within ten (10) days if your ownership changes in whole or in part, whether through a sale of stock or equity, merger, or other change-of-control transaction.

2.11. General

2.11.1. Entire Agreement; Amendments. This Agreement, including all schedules and attachments which are incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement is not binding upon ESSI until either ESSI has approved of you as a Member or Merchant and accepted a transaction submitted by you, or until executed by an authorized representative of ESSI. Except as provided in this Section or elsewhere in this Agreement, this Agreement may not be amended except in writing executed by all parties. ESSI may modify or amend the terms of this Agreement, including related schedules (such as fee schedules) or exhibits, at any time upon prior written notice to you, and you understand and agree that the HerboPay™ and Services and applicable fees are subject to change from time to time at ESSI’s sole discretion. You will have the opportunity to review and accept any modified terms of this Agreement; however, you may be unable to access your Account or continue to use the Services until you accept the modified terms, at our sole discretion. If we are required to modify this Agreement or any features of the Services because of security purposes or to comply with law, regulation, or court order, we may implement such change immediately, without prior notice to you and before such change may be posted to the website (however, we will use commercially reasonable efforts to, in a timely fashion, but no longer than 30 days update the website to reflect any such change). The most up-to-date Agreement can be found at www.useherbo.com.

2.11.2. Notices. All notices, requests, demands and other communications to be delivered hereunder, unless specified otherwise herein, shall be in writing and shall be delivered by nationally recognized overnight carrier, registered or certified mail, postage prepaid, to the following addresses: if to ESSI: Eco Science Solutions, Inc. 300 S. El Camino Real #206, San Clemente, CA 92672 and if to Member or Merchant: to the address provided by the Member or Merchant (as the case may be) in its application or otherwise provided to ESSI. Notices to Member or Merchant may also be sent electronically: to its email address provided to ESSI, or by posting notice of such modification to ESSI’s website and sending an electronic notice to the mailbox accessible to the Account after log-in (which Member and Merchant will be responsible for monitoring). Each party may update its respective address with written notice. Member and Merchant must promptly provide ESSI with any change of address. Notices will be deemed delivered upon receipt.

2.11.3. Assignment. You may not transfer, assign, or delegate this Agreement or any of your rights or obligations, whether by operation of law or otherwise (including in connection with any merger, sale of assets, or change of control), without the prior written consent of ESSI, and any unauthorized attempted assignment will be null and void. ESSI may transfer, assign, or delegate this Agreement, or any rights or obligations related thereto, in ESSI’s sole discretion. Subject to the foregoing, this Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns.

2.11.4. Waiver. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.

2.11.5. Force Majeure. From time to time, Services or Accounts may be interrupted or inoperative. When this happens, you may be unable to use your Account or obtain information about your Account. Please notify us if you have any problems using your Account. You agree that we will not be responsible for temporary interruptions in Services due to maintenance, website changes, or failures, nor shall we be liable for any interruptions due to failures beyond our control, including but not limited to network failure, computer viruses, forces of nature, acts of God, labor disputes, or armed conflicts.

2.11.6. Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents, servants, joint ventures, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party shall make any representation or warranty otherwise. ESSI will have no responsibility for any fee or expense incurred by Member or Merchant in connection with transactions between Member and Merchant, or in connection with Member’s or Merchant’s performance under this Agreement, use of the Services, or business operations. This Agreement is intended solely for the benefit of ESSI and Member or Merchant (as the case may be) and will not be deemed to be for the benefit of any third-party.

2.11.7. Severability. If any provision of this Agreement is deemed illegal, invalid, or unenforceable, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal, invalid, or unenforceable provision is not contained. This Agreement will be deemed modified only to the extent necessary to render enforceable the remaining provisions.

2.11.8. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. Each party acknowledges and agrees that the language chosen in this Agreement represents the mutual intent of the parties, thus no rule of strict construction will be applied against either party executed in one or more counterparts, each of which shall be deemed to be an original and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by electronic documents (such as PDFs) or facsimile copies, and any such copy shall be sufficient to evidence the signature of such party as if it were an original signature. FOR BOTH MEMBERS AND MEMBER MERCHANTS: ESSI OPERATES A MOBILE PAYMENT SOLUTION IN THE FORM OF AMOBILE APP CALLED Herbo™. ESSI EXCHANGES MEMBER U.S. FUNDS FOR COLLATERALIZED CREDIT ON A MEMBERSHIP NETWORK. ALL TRANSACTIONS IN LOOP WITH MERCHANT MEMBERS, INCLUDING EVENTUAL REDEMPTION, ARE INITIATED IN AND UTILIZE THE COLLATERALIZED NETWORK CREDIT ESSI OFFERED YOU IN EXCHANGE FOR YOUR FUNDS IN THE FORM OF A CREDIT CARD LOAD, AN ACH TRANSFER, PAYROLL CONTRIBUTION OR CASH. THEREFORE, ALL DISPUTES MUST BE CARRIED OUT IN KEEPING WITH THESE TERMS AND CONDITIONS OR ESSI RESERVES THE RIGHT TO CANCEL A MEMBER’S MEMBERSHIP, MERCHANT OR OTHERWISE. If you do not agree to the terms of this Agreement, you may not: use the Services; If an HerboPay™ transaction is disputed, the Member and Merchant each agree to be bound by the then-current HerboPay™ transaction dispute procedures, issued from time to time by ESSI. Current procedures and policies are available on ESSI’s website at www.useherbo.com and are subject to change by ESSI at its sole discretion.