Apple Payment Platform Program Manager Customer Terms and Conditions

The following Program Manager Customer Terms and Conditions (the “Terms and Conditions”) set forth the terms and conditions governing Program Manager Customer’s right to participate in the Apple Payment Platform through Program Manager and Issuer in the Territory. These Terms and Conditions may be modified by Apple Inc. (“Apple”) from time to time by providing written notice of such modifications to Program Manager (either directly or through Issuer).

1. Definitions.

a. “Account” means an account in the Territory offered in connection with a Card Program, under which a purchase may be or has been made by a Cardholder (or any Person authorized by such Cardholder) pursuant to a Cardholder Agreement.

b. “Affiliate” means any Person that controls, is controlled by, or is under common control with a party. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies on a Person, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, but not by way of limitation, the direct and indirect ownership of more than 50% of (a) the voting securities or (b) an interest in the assets, profits, or earnings of a Person shall be deemed to constitute “control” of the Person.

c. “Apple Confidential Information” means (i) product plans and roadmaps of Apple and its Affiliates; (ii) these Terms and Conditions; (iii) any and all information related to customers or potential customers of Apple or its Affiliates that is obtained, generated or created by or on behalf of Apple or its Affiliates, including any and all information related to the Apple Payment Platform and the Program; and (iv) any other information that could reasonably be determined to be confidential, whether or not identified in writing as confidential.

d. “Apple Pay Issuer Agreement” has the meaning set forth in Section 18(a).

e. “Apple Payment Platform” means the payment platform that utilizes Apple Technology to enable users to make payments using credit, debit, and prepaid cards and other physical, digital or virtual payment cards, credentials or account access devices and access other related services using Apple products designated by Apple or its Affiliates (or any successor or substitute thereof).

f. “Apple Provisioning Data” means any data supplied by Apple to Program Manager Customer (either directly or through Program Manager, Issuer, or a Payment Network) for the purpose of facilitating Program Manager Customer’s provisioning path decision process.

g. “Apple Technology” means Technology (and all Intellectual Property therein or thereto) that Apple or any Apple Affiliate owned, conceived, reduced to practice, authored, or otherwise created or developed separately and independently of Program Manager Customer and its Affiliates.

h. “Applicable Law” means all laws (including common law), codes, statutes, rules, regulations, published standards, permits, judgments, writs, injunctions or rulings, published regulatory bulletins or orders or decrees of any Governmental Authority that apply to Program Manager Customer and/or Apple (as appropriate) in the Territory.

i. “Card” means any digital or virtual card, account access device, or payment device accessing an Account issued by Issuer, branded under Program Manager Customers or Corporate Client’s name or logo, and offered on a Payment Network.

j. “Card-Issuing Bank” has the meaning set forth in Section 18(a).

k. “Card Program” means those credit, debit and prepaid card programs offered in the Territory for which Program Manager Customer provides program management services.

l. “Cardholder” means an individual or entity that has been issued a Card by the Issuer.

m. “Cardholder Agreement” means the agreement between Issuer and a Cardholder governing the use of a credit, debit, or prepaid Card in connection with a Card Program, together with any amendments, modifications or supplements that may be made to such Cardholder Agreement (and any replacement of such agreement).

n. “Cardholder PII” means Program Manager Customer Data that consists of personally identifiable information of Cardholders.

o. “Claim” means any claim (including counterclaim or cross-claim) or other assertion brought or threatened to be brought in a legal proceeding by a third party, or any investigation or any examination by a Governmental Authority, of the transactions or business relationships that are the basis of this Agreement, where such Claims are not in the ordinary course of business.

p. “Corporate Client” means an entity that has entered into an agreement with Program Manager Customer for card program services, in which such entity will be the Cardholder for Cards in connection with Program Manager Customer’s card program services

q. “Eligible Card” means all Cards offered by Issuer in connection with a Card Program.

r. “Enabled Device” means any Apple product that has been enabled to store and/or transmit the Card credentials of a Cardholder.

s. “Governmental Authority” means any domestic or foreign, federal, state, provincial, municipal or local government, any political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, regardless of form, including any agency, bureau, court, tribunal, or other instrumentality having jurisdiction over Accounts, Cards, any of the services to be provided hereunder, the Parties, or any of their respective Affiliates.

t. “Indemnified Losses” means any and all liabilities, costs, and expenses (including reasonable fees and expenses for attorneys, experts and consultants, reasonable out-of-pocket costs, interest and penalties), settlements, equitable relief, judgments, offsets, or damages (including liquidated, special, consequential, punitive and exemplary damages) based on or resulting from any Claim.

u. “Issuer” means Celtic Bank.

v. “Pass Through Provisions” means the Corporate Client terms set forth in Exhibit C attached hereto.

w. “Payment Network” means any one or more of Visa, MasterCard, Discover, American Express, or any other similar network permitting businesses and/or consumers to engage in financial transactions using a credit, debit or prepaid Card.

x. “Program” means the availability of the Apple Payment Platform in the Territory for use by Program Manager Customer, Issuer, Program Manager and Cardholders with Eligible Cards, for the purposes of enabling Cardholders to (i) provision their Eligible Cards to their Enabled Devices and (ii) use their Provisioned Cards on such devices (in lieu of physical cards) to make payments in connection with a Card Program.

y. “Program Manager” means Stripe, Inc.

z. “Program Manager Customer Data” means all information related specifically to an Account, Card and/or Cardholder that is obtained, generated or created by or on behalf of Program Manager Customer in connection with Account establishment, processing and maintenance activities, issuing statements to Cardholders regarding their Accounts, customer service and collections, and transaction data (transaction date, currency code, merchant name, amount, industry category, and industry code).

aa. “Program Manager Customer Technology” means Technology (and all Intellectual Property therein or thereto) that Program Manager Customer or any Program Manager Customer’s Affiliate owned, conceived, reduced to practice, authored, or otherwise created or developed separately and independently of Apple and its Affiliates.

bb. “Provisioned Account” means an Account that is associated with a Provisioned Card.

cc. “Provisioned Card” means an Eligible Card that has been provisioned to an Enabled Device so that the Enabled Device may be used to make payments using such Provisioned Card.

dd. “Service Provider” means any subcontractor, independent contractor or third party service provider engaged to provide a service of behalf of a Party.

ee. “Specifications” means the Apple Pay Platform implementation and operation guidelines provided or updated from time to time by Apple.

ff. “Successor Bank” has the meaning set forth in Section 18(c).

gg. “Territory” means the United States.

hh. “User” means a Cardholder who has a Provisioned Account.

2. Program Manager Responsibilities.

a. Program Manager shall be responsible for the management or oversight of Cardholders, including (a) the decision to approve or deny provisioning of the Issuer’s DPAN or other payment credential to an Enabled Device, (b) the on-going management and operation of the Account, including any Provisioned Account, including whether any Account, including any Provisioned Account, should be suspended or deactivated at any time, and (c) providing program management services contemplated under this Agreement to Cardholders in connection with Provisioned Cards, except as otherwise provided herein; provided that in all cases, subject to Section 5, such activities shall be in accordance with the Specifications and Apple’s minimum requirements for ID&V, as provided to Program Manager from time to time. Notwithstanding the foregoing, Apple may provide Users with the ability to suspend or delete a Provisioned Card on an Enabled Device (e.g., upon loss of the Enabled Device) or reactivate a Provisioned Card that the User has suspended on an Enabled Device, subject to Apple’s standard verification methods. In connection with Apple’s exercise of any rights to suspend or terminate Program Manager’s participation in the Program under these Terms and Conditions, Apple shall be entitled to request that Issuer or Payment Network of Issuer suspend either provisioning for additional cards, transaction processing for Eligible Cards, or other services Issuer or any Payment Network may perform for the Apple Payment Platform. Program Manager acknowledges that Apple’s agreements with Issuer and Payment Networks obligate such parties to comply with such requests from Apple.

b. For each Card Program with a Program Manager Corporate Client, Program Manager Customer shall include Pass Through Provisions in accordance with Exhibit C.

3. Fees.

Program Manager Customer shall not charge Cardholders participating in the Program any additional fees for their access to, or participation in, the Program, including, but not limited to, any fees related to the provisioning of an Eligible Card or making payments or obtaining refunds using Provisioned Cards; provided, however, that Program Manager Customer may charge Corporate Client such fees. Such Corporate Client shall be prohibited from passing fees attributable to Apple Pay on to individual Cardholders or individuals authorized to use any Cards issued to Corporate Client.

4. Provisioning of Eligible Cards.

Program Manager Customer will implement clear and Cardholder-friendly provisioning methods for Cardholders with Eligible Cards in accordance with the instructions provided by Apple, Program Manager, Issuer and/or the applicable Payment Network. Program Manager Customer will ensure that the terms of its Cardholder Agreements are consistent with the requirements set forth in these Terms and Conditions.

5. Compliance with Platform Functionality.

Apple will determine and communicate the required Program-related features and functionality to Program Manager Customer (either directly or through Program Manager or Issuer). Program Manager Customer will support the Program-related features and functionality as required by Apple and/or Issuer and further set forth in the Specifications, and ensure that the systems and processes it uses to fulfill its obligations under these Terms and Conditions comply with the Specifications.

6. Non-Discrimination.

Program Manager Customer’s policies and practices will be established in good faith so as not to discriminate against the Program, Apple Pay Transactions and/or the Apple Payment Platform in policy or practice relative to other Transactions and/or platforms of similar risk to Program Manager Customer, including with respect to decline rates, Cardholder experience or merchant experience.

7. Marketing and Branding.

a. Program Manager Customer will provide Apple with Program Manager Customer’s trademark(s), logo(s), and other card art reasonably requested by Apple and/or Issuer that is displayed on the Eligible Cards (“Program Manager Customer Marks”). Program Manager Customer shall be responsible for procuring all rights necessary for the presentation of the Program Manager Customer Marks in connection with the Program. Program Manager Customer grants Apple and its Affiliates (and their agents and contractors acting on their behalf), during the Term, a non-exclusive, non-transferable, worldwide, royalty-free, license to use, reproduce, and display the Program Manager Customer Marks as follows: (i) in connection with the use and display of the Apple Payment Platform in Apple products, including the right to embed and display Program Manager Customer Marks within such Apple products; (ii) in the marketing, advertising and promotion of the availability of the Apple Payment Platform in Apple products in any medium, including the right to use screen shots and images of the Program Manager Customer Marks as they may be used in the Apple Payment Platform, including but not limited to use in instructional materials, training materials, marketing materials, and standard advertising in any medium; and (iii) in a publically disclosed list of program managers participating in the Program. Any such use of Program Manager Customer Marks as set forth in items (i) – (iii) will be at Apple’s discretion (i.e., Apple shall have no obligation to display or use any Program Manager Customer Marks, commercial designations or slogans on any Apple products or services or Apple marketing materials for such products and services).

b. Program Manager Customer will provide Apple with Corporate Client’s trademark(s), logo(s), and other card art reasonably requested by Apple and/or Issuer that is displayed on the Eligible Cards (“Corporate Client Marks”). Program Manager Customer shall be responsible for procuring all rights necessary for the presentation of the Corporate Client Marks in connection with the Program. Program Manager Customer grants Apple and its Affiliates (and their agents and contractors acting on their behalf), during the Term, a non-exclusive, non-transferable, worldwide, royalty-free, sub-license to use, reproduce, and display the Corporate Client Marks as follows: (i) in connection with the use and display of the Apple Payment Platform in Apple products, including the right to embed and display Corporate Client Marks within such Apple products; (ii) in the marketing, advertising and promotion of the availability of the Apple Payment Platform in Apple products in any medium, including the right to use screen shots and images of the Corporate Client Marks as they may be used in the Apple Payment Platform, including but not limited to use in instructional materials, training materials, marketing materials, and standard advertising in any medium; and (iii) in a publically disclosed list of Corporate Clients participating in the Program. Any such use of Corporate Client Marks as set forth in items (i) – (iii) will be at Apple’s discretion (i.e., Apple shall have no obligation to display or use any Corporate Client Marks, commercial designations or slogans on any Apple products or services or Apple marketing materials for such products and services).

c. These Terms and Conditions are non-exclusive and grant Program Manager Customer only those rights specifically stated in these Terms and Conditions during the Term. All other rights in and regarding the Apple Marks, whether express or implied, are expressly reserved to Apple. Program Manager Customer acknowledges and agrees that as between the parties, Apple retains ownership of all rights, including Intellectual Property rights, in and to Apple Marks. Program Manager Customer may use Apple Marks set forth in Exhibit A solely for purposes of announcing and promoting Program Manager Customer’s participation in the Program, subject in all cases to Apple’s prior review and written consent. All such use by Program Manager Customer will be in accordance with the Apple Brand Guidelines. Program Manager Customer is not authorized to use Apple Marks on any paid advertising, and should Program Manager Customer wish to use the Apple Marks in any paid advertising, Program Manager Customer must first obtain Apple’s written consent for such advertising.

d. In connection with the launch of Program Manager Customer’s participation in the Program, Apple may issue a press release announcing Program Manager Customer’s participation in the Program. Except as otherwise set forth in the preceding sentence, neither party may issue a press release regarding Program Manager Customer’s participation in the Program without the other party’s prior written consent.

8. Customer Service.

Program Manager Customer, shall provide customer service to Cardholders who have Eligible Cards with respect to the provisioning of Eligible Cards, the use of Provisioned Cards and activities of Program Manager Customer in connection with such Eligible Cards (“Card-Related Inquiries”). Program Manager Customer shall provide customer service for Card-Related Inquiries on parity with the level of customer service it provides for other similar mobile payment platforms. Program Manager shall maintain an adequately trained staff to service Card-Related Inquiries.

9. Platform Change, Suspension, Discontinuation.

Apple reserves the right to change, discontinue, or suspend (for any period of time) any or all functionality, Cardholder interface, or any other aspect of the Apple Payment Platform (whether software, hardware, or any part of the Apple Pay Platform service) at any time, including suspension of provisioning and transaction usage. Apple shall inform Program Manager Customer as soon as commercially practicable of its intent to suspend or discontinue transaction usage and communicate in good faith to Program Manager Customer about the potential duration of such suspension or discontinuance and the contemplated date (if any) of those aspects of the Apple Payment Platform resuming prior to taking any such action.

10. Confidentiality; Data Protection.

a. Program Manager Customer shall authorize Program Manager, Issuer and their Payment Networks to provide Program Manager Customer Data to Apple in accordance with the applicable specifications to be provided to Program Manager Customer by Apple, Program Manager, Issuer or the applicable Payment Network.

b. In the case of any use or disclosure of Cardholder PII to Apple or any of its Affiliates, Apple (1) must de-identify (as to an individual or Enabled Device) such Cardholder PII, (2) may use or disclose such Cardholder PII only as so de-identified and in aggregate form, (3) shall not attempt to re-identify such Cardholder PII or associate any of such Cardholder PII with any individual or Enabled Device, and (4) must use such Cardholder PII in a manner that conforms with Apple’s Privacy Policy, complies with all Applicable Laws, and the terms set forth in the Program terms and conditions that are accepted by the Cardholders.

c. Program Manager Customer will protect all Apple Confidential Information from unauthorized dissemination and use with the same degree of care that it uses to protect its own like information. Except as expressly set forth herein, Program Manager Customer will not use the Apple Confidential Information for purposes other than those necessary to directly further the purposes of these Terms and Conditions. Except as expressly permitted under these Terms and Conditions, Program Manager Customer will not disclose to third parties the Apple Confidential Information without the prior written consent of Apple, including (i) the public disclosure of any metrics related to the Program, and (ii) Program Manager Customer’s planned participation in the Program prior to the public launch of Program Manager Customer’s participation in the Program.

d. To the extent Program Manager Customer provides any ideas, requests, feedback, reports, suggestions or recommendations to Apple, in writing, orally, by demonstration or otherwise, regarding the Apple Confidential Information, Program Manager Customer hereby grants to Apple a non-exclusive, fully paid-up, perpetual, irrevocable, worldwide license to make, use, reproduce, incorporate, modify, display, perform, sell, make or have made derivative works of, distribute (directly or indirectly) and sublicense, such feedback in connection with Apple’s products and services.

e. To the extent Program Manager Customer receives Apple Provisioning Data (whether from a Payment Network, Program Manager, or Issuer, or directly from Apple) the following provisions will apply:

 i. Program Manager Customer shall use the Apple Provisioning Data only for the purposes of ensuring satisfactory performance of its obligations in connection with the provisioning approval and implementation process for the Apple Payment Platform. For the avoidance of doubt, Program Manager Customer and its Affiliates shall not use any Apple Provisioning Data or any transaction or customer data that is provided by Apple or its Affiliates to Program Manager Customer or its Affiliates exclusively in connection with the Apple Payment Platform or the Program to solicit customers or potential customers to become a Program Manager Customer customer.

 ii. Program Manager Customer shall only share Apple Provisioning Data with Issuer only for the purposes of ensuring satisfactory performance of its obligations in connection with the provisioning approval and implementation process for the Apple Payment Platform.

 iii. Program Manager Customer agrees to erase/delete the Apple Provisioning Data as immediately following making the provisioning path decision (i.e. green path, yellow path, red path decision). No storage of the Apple Provisioning Data by Program Manager is permitted.

 iv. All Apple Provisioning Data to be furnished hereunder is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.

11. Reporting Data.

Program Manager Customer will provide information and assist Program Manager, Issuer and each applicable Payment Network in preparing frequent reports related to Program Manager Customer’s participation in the Program (the “Reports”). The content and frequency of the Reports will be as set out in Exhibit B. Program Manager will also provide information to Issuer regarding whether any Provisioned Account is funded using a cryptocurrency. If Program Manager is unable to provide any Report information to Issuers or any of its Payment Networks for delivery to Apple (e.g., due to Issuer’s or such Payment Network’s inability to accept or forward such information), Program Manager shall provide such Report information directly to Apple. To the extent Program Manager relies on Issuer or a Payment Network to fulfil any of its reporting requirements under these Terms and Conditions, Program Manager will authorize Issuer and each applicable Payment Network to (a) provide the Reports and the data contained therein to Apple, and (b) provide to Apple any other reports that may contain data related to Program Manager’s participation in the Program that is otherwise in the possession of Issuer or an applicable Payment Network. Program Manager grants Apple the right and license to use any information contained in the Reports for purposes of Apple (i) performing its obligations and exercising its rights under these Terms and Conditions and (ii) improving the Apple Payment Platform.

12. Intellectual Property.

a. Program Manager Customer and its Affiliates shall own all of their respective rights in Program Manager Customer Technology conceived, reduced to practice, authored, or otherwise created or developed separately and independently of Apple and Apple’s Affiliates. Apple and its Affiliates shall own all of their respective rights in Apple Technology conceived, reduced to practice, authored, or otherwise created or developed separately and independently of Program Manager Customer and Program Manager Customers’s Affiliates.

b. Except as expressly granted under this Agreement, or otherwise agreed in writing by the Parties, no other rights or licenses to distribute, disclose, sell, adapt, modify, reproduce, copy, publish, display, perform, prepare derivative works, or otherwise use, in any manner, form or media, any of the Technology or Intellectual Property of the other Party are granted. For the avoidance of doubt, this is not a “work made for hire” agreement, as that term is defined in the United States Copyright Act, 17 U.S.C. § 101 or any similar legislation in the Territory, nor shall it be considered as equivalent under any equivalent provision elsewhere in the world. Nothing contained in these Terms and Conditions shall be construed as constituting a transfer or an assignment by one party to the other party of any of the Technology or Intellectual Property of a party. Each party’s Technology and Intellectual Property is being licensed hereunder, not sold. Each party and its Affiliates and Service Providers, as applicable, must reproduce the copyright and all other proprietary notices displayed on the other party’s Technology on all copies of such materials.

c. Program Manager Customer will not assert any claim for infringement, misappropriation or violation of any Intellectual Property against Apple, any Apple Affiliates, any Apple Service Providers or any entity participating in the Apple Payment Platform with respect to the Apple Payment Platform (including the operation of the Apple Payment Platform and the making, issuing, processing and acquisition of transactions for credit cards, debit cards and prepaid cards on the Apple Payment Platform).

13. Compliance with Law.

Each Party shall comply with all Applicable Laws related to the performance of its obligations under these Terms and Conditions. As part of its compliance obligations, Program Manager Customer shall be responsible for adherence to Applicable Law relating to the provisioning and use of the Accounts, use, management, suspension and termination of the Cards, as well as its compliance with the policies and procedures of Issuer or any Payment Network of Issuer.

14. Program Manager Customer Representations and Warranties.

Program Manager Customer represents and warrants that:

a. It: (i) is duly incorporated, registered, and in good standing under the laws of its jurisdiction of formation; (ii) is duly qualified, registered and in good standing under the laws of the Territory where the conduct of its businesses requires such qualification or registration; (iii) has the requisite power and authority and the legal right to conduct its businesses as now conducted and hereafter contemplated to be conducted, enter into these Terms and Conditions; and (iv) is in compliance with its articles of association, charter and/or other organizational documents.

b. No legal proceeding or regulatory action is pending or, to its knowledge, threatened against it that would reasonably be expected to have a material adverse effect on its ability to perform its obligations under these Terms and Conditions.

c. Except as would not reasonably be expected to have a material adverse effect on its ability to perform its obligations under these Terms and Conditions, (i) it is in compliance with all Applicable Laws and (ii) it is not subject to any order or ruling that restricts in any respect its ability to perform its obligations under these Terms and Conditions.

15. Operating Standards and Security Procedures.

Program Manager Customer shall maintain written operating standards and security procedures for its data centers, data management, security, handling and protection practices that comply with all Applicable Laws (including data protection laws) and apply industry standards, and shall use its commercially reasonable efforts to secure Cardholder PII through the use of appropriate physical and logical security measures including appropriate network security and encryption technologies.

16. Term.

The initial term of these Terms and Conditions will terminate at 11:59 p.m. Pacific Standard Time, on the third (3rd) anniversary of the Effective Date (the “Initial Term”), unless terminated earlier as provided herein. Either party may terminate Program Manager Customer’s participation in the Program by providing the other party with written notice of its intent to exit the Program not less than ninety (90) days prior to the expiration of the Initial Term or any then-current Extension Term. In the event no such notice is given, these Terms and Conditions shall extend for additional one (1) year term(s) (each such one-year period, an “Extension Term”, and together with the Initial Term, the “Term”) under the same terms and conditions set forth herein.

17. Suspension and Termination.

Prior to the end of the Term:

a. Program Manager Customer’s participation in the Program with respect to one or more Card Programs may be suspended or terminated by mutual written consent of the Program Manager Customer and Issuer;

b. Program Manager Customer’s participation in the Program with respect to one or more Card Programs shall automatically be suspended or terminated effective upon the suspension or termination of any Apple Pay Issuer Agreement applicable to such Card Programs;

c. Program Manager Customer’s participation in the Program with respect to one or more Card Programs may be suspended or terminated by Apple, Program Manager, or Issuer immediately upon written notice to Program Manager Customer, in the event of Program Manager Customer’s material breach of these Terms and Conditions that is inherently incurable, or not otherwise cured within thirty (30) days of Program Manager Customer receiving notice of such breach;

d. Apple, Program Manager or Issuer (upon Apple’s request) may suspend Program Manager Customer’s participation in the Program immediately upon giving written notice to Program Manager Customer in the event of material Program Manager Customer Security Breach that threatens to, or has destroyed, the integrity of Apple’s systems or business;

e. Program Manager Customer acknowledges that Apple may direct Program Manager, Issuer or the applicable Payment Network to suspend or terminate Program Manager Customer’s participation in the Program (whether in whole or in part) and that Program Manager, Issuer or such Payment Network will follow Apple’s instructions and will play no role in adjudicating any disputes between Apple and Program Manager Customer related to any such instructions by Apple;

f. Program Manager Customer may suspend its participation in the Program in the event (i) Program Manager Customer learns or has reason to believe that there has been a material breach of Apple’s security measures related to the Program; (ii) the Program does not comply with Applicable Law in such a way that has a material adverse effect on Program Manager Customer’s ability to perform its obligations set forth in these Terms and Conditions; or (iii) Apple amends these Terms and Conditions in such a way that makes it materially impracticable for Program Manager Customer to participate in the Program in a manner that complies with Applicable Law;

g. Program Manager Customer may terminate its participation in the Program on ninety (90) days written notice in the event (i) Program Manager Customer suspends its participation due to an event set forth in Section 17(f) and the duration of such suspension lasts longer than thirty (30) days or (ii) Apple makes a material change to the Apple Payment Platform or the Program that makes it commercially unreasonable for Program Manager Customer to perform in the Program. In the event of such termination, Program Manager Customer will work in good faith with Program Manager, Issuer and Apple, for a period of ninety (90) days after the ninety (90) day notice period ends, to unwind Program Manager Customer from the Program in a way that minimizes the impact on the Cardholders;

h. Upon receiving written notification from Apple that Program Manager Customer has failed to obtain certification from Apple for participation in the Program and Apple will not be admitting Program Manager Customer into the Program, Issuer may terminate these Terms and Conditions immediately by giving written notice to Apple. In addition, any authorization to use Apple trademarks granted under Section 7(b) will terminate immediately.

18. Program Transition.

a. Required Agreement with Card-Issuing Bank. Program Manager Customer acknowledges and agrees that the participation of any Card Program in the Apple Payment Platform is contingent upon Apple having entered into a binding agreement with the entity responsible for issuing the cards and accounts offered in connection with such Card Program (such entity, the “Card-Issuing Bank”) that provides the terms under which such cards and accounts may participate in the Apple Payment Platform (the “Apple Pay Issuer Agreement”), and the Card-Issuing Bank fulfilling its obligations under such Apple Pay Issuer Agreement (including, for example, complying with the Specifications, successfully completing any required Certification Testing, etc.).

b. Termination of Card Programs. Except as otherwise agreed in writing by Apple, these Terms and Conditions will automatically terminate with respect to a Card Program, and such Card Program will cease to participate in the Apple Payment Platform, in the event that: (i) the applicable Apple Pay Issuer Agreement is terminated; or (ii) Issuer ceases be the Card-Issuing Bank of such Card Program and such Card Program has not been successfully transitioned to a Successor Bank in the manner provided for in Section 18(c) of these Terms and Conditions or as agreed by Apple in writing. During any suspension of an Apple Pay Issuer Agreement, the applicable Card Program will be suspended with respect to its participation in the Apple Payment Platform under these Terms and Conditions.

c. Card Program Transition. Program Manager Customer may transition any Card Program to an alternative Card-Issuing Bank (a “Successor Bank”). Program Manager agrees to provide Issuer and Apple with reasonable prior notice, but in no event less than ninety (90) days notice, in the event it intends to transition any Card Program to a Successor Bank. In the event such Successor Bank agrees to the terms of the Apple Pay Issuer Agreement: (i) Issuer, Program Manager Customer, Apple and the Successor Bank shall promptly meet and establish a mutually acceptable transition plan that details the timelines and manner by which the Card Program will be transitioned to the Successor Bank in manner that minimizes any possible burdens, outages, or confusion for Users; and (ii) Program Manager Customer agrees to execute any reasonably necessary agreements or amendments to these Terms and Conditions or take any other reasonably necessary action to transition the Card Program to such Successor Bank.

19. Program Manager Customer Indemnification.

Program Manager Customer agrees to protect, indemnify, defend and hold harmless Apple, its Affiliates, and the shareholders, employees, officers, and directors of each of Apple and its Affiliates, from and against any and all Indemnified Losses to the extent such Indemnified Losses arise out of, are connected with, or result from any Claim against any of them that arises out of, is connected with, or results from any of the following:

a. any breach by Program Manager Customer of these Terms and Conditions;

b. any breach by Program Manager Customer or Program Manager Customer’s Affiliates of any contract between Program Manager Customer and any Cardholder, or of any representation or fiduciary duty to such Cardholder relating to Card Programs;

c. any and all advertising, promotions and marketing programs, documents or materials conducted by or on behalf of Program Manager Customer related to the Apple Payment Platform;

d. Program Manager Customer’s use of Apple’s Marks in a manner not in accordance with these Terms and Conditions;

e. allegations that the Program Manager Customer Marks, or Apple’s use thereof in accordance with these Terms and Conditions, infringes or misappropriates the trademark rights of a third party; or

f. the gross negligence, fraud or willful misconduct of Program Manager Customer, Program Manager Customer’s Affiliates or any Service Provider of Program Manager Customer.

20. Limitation of Liability.

To the maximum extent permitted under Applicable Law, in no event will Apple be liable to Program Manager Customer for indirect, consequential, incidental, special, punitive or exemplary damages, whether in contract, tort (whether in negligence or strict liability) or other legal or equitable theory, or any loss of profits or revenue, regardless of whether Apple knew or should have known of the possibility of such damages.

21. No Warranties.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, APPLE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE APPLE PAYMENT PLATFORM OR ANY RELATED PRODUCTS AND SERVICES CONTEMPLATED BY THESE TERMS AND CONDITIONS, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, APPLE DOES NOT WARRANT THAT THE USE OF THE APPLE PAYMENT PLATFORM OR ANY RELATED PRODUCTS AND SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.

22. No Apple Liability for Unauthorized Transactions.

Apple shall not be liable for any Unauthorized Transactions paid by Program Manager Customer, Program Manager Customer’s Affiliates, Program Manager, Program Manager’s Affilliates, Issuers or Issuer’s Affiliates, Payment Networks, acquirers, or Cardholders under these Terms and Conditions.

23. Binding Agreement.

The rights and obligations of Program Manager Customer under these Terms and Conditions shall be binding upon and inure to the benefit of Program Manager Customer’s respective successors, executors and administrators, as the case may be. Program Manager may not assign or delegate its rights or obligations under these Terms and Conditions without Apple’s prior written consent, not to be unreasonably withheld.

24. Governing Law.

These Terms and Conditions and any non-contractual obligations arising out of or in connection therewith shall be governed by, construed, and take effect in accordance with California law, without regard to its choice of law principles. The Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.

25. Third Party Beneficiary.

Program Manager Customer acknowledges and agrees that Apple and its Affiliates are intended third party beneficiaries to these Terms and Conditions, and are entitled to the rights and benefits hereunder and may enforce the provisions hereof as if they were parties hereto.

26. Entire Agreement.

These Terms and Conditions, its attachments, and any documents incorporated into these Terms and Conditions constitute the entire understanding and agreement of the parties, whether written or oral, with respect to the subject matter of these Terms and Conditions and supersede any prior or contemporaneous agreements or understandings between the parties with respect to its subject matter.

By agreeing, Program Manager Customer confirms that it has read these Terms and Conditions and agrees to be bound thereby. Program Manager Customer further acknowledges that unless and until Apple certifies Program Manager Customer and sends Program Manager Customer written notification of approval (either directly or through Program Manager, Issuer or a Payment Network), Apple is not obligated to admit Program Manager Customer to the Program.

 

Exhibits

Exhibit A: Apple marks

The following is a non-exhaustive list of Apple Marks:

Apple
Apple logo
Apple Pay logo
Apple Watch (including rights to display images of the Apple Watch device, but only with respect to those models that are technologically capable of being an Enabled Device)
iPad (including rights to display images of the iPad device, but only with respect to those models that are technologically capable of being an Enabled Device)
iPhone (including rights to display images of the iPhone device, but only those models that are technologically capable of being an Enabled Device)
Touch ID
App Store
iCloud
Apple Wallet
Wallet Icon

Exhibit B: Reports

Report Field
Issuer Management Metrics All Elements By Network Where Designated Program is Under Multiple Networks:
Program Transactions (APP)
Program Spend (APP)
Program Decline Amount (APP)
% APP Program Transactions via Remote Transactions vs. POS
% APP Program Spend via Remote Transactions vs. POS
% APP Program Decline Amount via Remote Transactions vs. POS
Total Provisioned Cards
Active Cards vs. Total Provisioned Cards
“Active Cards” for this Exhibit C are all those used at least once in prior month
Usage Frequency Total number of customers transacting (never) with Apple Pay
Total number of customers transacting (1,2,3,4,5….) with Apple Pay
Cohort Activity Number of successfully provisioned DPANs in the calendar month
Number of transacting DPANs from cohorts that successfully provisioned in the prior months
Cohort Deletes Number of deleted DPANs in the calendar month
Number of deleted DPANs from cohorts that successfully provisioned in the prior months

All reports will be delivered on the 10th of the following month, in conjunction with any fee reports due in accordance with Section 11.

Exhibit C: Pass Through Provisions

All agreements that address Apple Pay between Program Manager Customer and Corporate Client (“Corporate Client Agreement”) shall include provisions substantively equivalent to the following. All capitalized terms shall have the meaning as set forth in this Terms and Conditions.

  1. The Corporate Client Agreement shall acknowledge, and the Corporate Client must agree, that to the maximum extent permitted under Applicable Law, in no event will Apple be liable to Corporate Client for indirect, consequential, incidental, special, punitive or exemplary damages, whether in contract, tort (whether in negligence or strict liability) or other legal or equitable theory, or any loss of profits or revenue, regardless of whether Apple knew or should have known of the possibility of such damages.

  2. The Corporate Client Agreement shall acknowledge, and the Corporate Client must agree, that Apple shall not be liable for any unauthorized transactions made using Provisioned Cards.

  3. The Corporate Client Agreement shall acknowledge, and the Corporate Client must agree, that it will not discriminate against the Program, Apple Pay Transactions and/or the Apple Payment Platform relative to other transactions and/or platforms of similar kind.

  4. The Corporate Client Agreement shall acknowledge, and the Corporate Client must agree, that the Corporate Client shall comply with all applicable laws related to the performance of its obligations under the Corporate Client Agreement.

  5. The Corporate Client Agreement shall prohibit the Corporate Client from passing fees attributable to Apple Pay on to individual Cardholders or individuals authorized to use any Cards issued to Corporate Client.

  6. The Corporate Client Agreement shall acknowledge, and Corporate Client must agree, that the Corporate Client will protect the Apple Confidential Information obtained pursuant to the Corporate Client Agreement from unauthorized dissemination and use with the same degree of care that it uses to protect its own like information. Except as expressly set forth herein, Corporate Client will not use the Apple Confidential Information for purposes other than those necessary to directly further the purposes of the Corporate Client Agreement. Except as expressly permitted under the Corporate Client Agreement, Corporate Client will not disclose to third parties the Apple Confidential Information without the prior written consent of Apple, including (i) the public disclosure of any metrics related to the Program and (ii) Corporate Client’s planned participation in the Program prior to the public launch of Corporate Client ’s participation in the Program.

  7. The Corporate Client Agreement shall acknowledge, and the Corporate Client must agree, that to the extent Program Manager Corporate Cardholder provides any ideas, requests, feedback, reports, suggestions or recommendations to Apple, in writing, orally, by demonstration or otherwise, regarding the Apple Confidential Information, Issuer hereby grants to Apple a non-exclusive, fully paid-up, perpetual, irrevocable, worldwide license to make, use, reproduce, incorporate, modify, display, perform, sell, make or have made derivative works of, distribute (directly or indirectly) and sublicense, such feedback in connection with Apple’s products and services.

  8. The Corporate Client Agreement shall include a sub-license grant to Apple and its Affiliates (and their agents and contractors acting on their behalf), during the Term, a non-exclusive, non-transferable, worldwide, royalty-free, license to use, reproduce, and display the Corporate Client Marks as follows: (i) in connection with the use and display of the Apple Payment Platform in Apple products, including the right to embed and display Corporate Client Marks within such Apple products; (ii) in the marketing, advertising and promotion of the availability of the Apple Payment Platform in Apple products in any medium, including the right to use screen shots and images of the Corporate Client Marks as they may be used in the Apple Payment Platform, including but not limited to use in instructional materials, training materials, marketing materials, and standard advertising in any medium; and (iii) in a publically disclosed list of Corporate Client participating in the Program. Any such use of Corporate Client Marks as set forth in items (i) – (iii) will be at Apple’s discretion (i.e., Apple shall have no obligation to display or use any Corporate Client Marks, commercial designations or slogans on any Apple products or services or Apple marketing materials for such products and services).

  9. The Corporate Client Agreement shall acknowledge that Apple makes no representations or warranties, express or implied, regarding the Apple Payment Platform or any related products and services, including any implied warranty of merchantability or implied warranty of fitness for a particular purpose, all such warranties being expressly disclaimed. Without limiting the foregoing, Apple does not warrant that the use of the Apple Payment Platform or any related products and services will be error free or uninterrupted.

  10. The Corporate Client Agreement shall acknowledge that Apple reserves the right to change, discontinue, or suspend (for any period of time) any or all functionality, Cardholder interface, or any other aspect of the Apple Payment Platform (whether software, hardware, or any part of the Apple Pay Platform service) at any time, including suspension of provisioning and transaction usage.

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