Merchant Agreement

Last Updated: December 4, 2023

This Merchant Agreement (“Merchant Agreement”) is entered into by and between such entity or other business organization that agrees to the terms and conditions hereof (“Merchant”) and Affirm, Inc. (“Affirm”) (each, a “Party” and collectively, the “Parties”) and effective as of the date on which Merchant agrees to the terms of this Merchant Agreement in the Merchant Portal (as defined below) (the “Effective Date”). 

The terms and conditions set forth in any attachments referenced herein are hereby incorporated by reference into this Merchant Agreement. This Merchant Agreement will apply to and govern Affirm’s provision of and Merchant’s access to and use of any Services agreed upon by the Parties and any other writing agreed upon by the Parties (collectively, the “Agreement”).

1.          General Terms and Conditions.

1.1          General. Affirm (itself or through its Affiliates or bank partners) offers certain products and services  (collectively, “Affirm Products”) through Affirm’s proprietary platform and related application programming interfaces (“APIs”), virtual card networks, and other technology and access solutions (collectively, the “Services”). Any reference to “Services” in this Agreement means the Services as offered through Amazon Pay, provided that “Services” does not include Amazon’s own products, services, or intellectual property. Merchant desires to use certain Services to market and offer Affirm Products to its customers to enable such customers to purchase Merchant’s goods and services (“Merchant Products”). Merchant may use the Services in accordance with the Agreement. A “Customer” is any person who applies to use the Services or who uses the Services in accordance with this Agreement,  to purchase Merchant Products.  A “Representative” of each Party means its employees, personnel, contractors, representatives or agents.  As between the Parties, Customer underwriting, credit decisioning, Customer APR, loan amounts and cart amount will be determined by Affirm in its sole discretion and may be changed by Affirm at any time without notice. “Affiliate” means a person, company or entity that directly or indirectly controls, is controlled by, is under common control, or working in concert, with a Party hereto, where control means ownership of at least 50% of the equity interests of such entity or the right to direct the affairs of such entity.

1.2          Authorized Channels. Merchant agrees that the rights and obligations set forth in the Agreement will apply to all Merchant Sites in which the Parties agree to market and offer the Services. Merchant may make the Services available on a new URL only with prior approval from Affirm. Any marketing and offering of the Services through on any Merchant Site will be conducted in accordance with the terms of this Agreement. Merchant may not change the ownership or control of any Merchant Site and subsequently offer Affirm’s Services without Affirm’s prior approval. The “Merchant Site” means the Merchant URL provided to Affirm by Amazon and any other URL approved by Affirm in writing to display the Services during the Term.

1.3          Territories. The Services will only be available in those territories authorized by Affirm and Amazon Payments, Inc. (“Amazon”) for the applicable Product (each, a “Territory”).

1.4          Merchant Policies. Merchant will maintain and comply with Merchant’s internal policies, including policies for shipping and fulfillment of customer orders, privacy of customer information, customer refunds and returns, and customer dispute resolution that meet or exceed good industry standards for merchants similar to Merchant (collectively, “Merchant Policies”), provided that the Agreement will control in the event of a conflict, ambiguity, or inconsistency between the Agreement and a Merchant Policy.

1.5          Affirm Policies.

(a)          Healthcare Services. To the extent that (i) any Merchant Products include: (A) constituting the practice of medicine or the practice of dentistry; or B) within the scope of practice of any licensed healthcare professional for which an individual must obtain a professional license in order to perform or be supervised by a licensed professional (“Healthcare Services”) or (ii) to the extent a Merchant’s technology and software services are utilized by any provider of Healthcare Services (“Healthcare Providers”), the Parties will comply with the applicable healthcare services policies, terms and conditions that apply to the Services (collectively, the “Healthcare Service Terms”) located at https://www.affirm.com/terms/merchant-policies.

1.6          Product Terms. 

(a)          Installments Product. Affirm offers the “Installments Product” as a closed-end installment loan for customers to finance the purchase of Merchant Products at 0%-36% APR or as otherwise determined in Affirm’s sole discretion, with various loan terms. Affirm will use one or more state-chartered banks, FDIC-insured institutions, or Affirm Loan Services, LLC, or a combination thereof, to originate the Installments Product for Customers in the Territory. 

(b)          Pay in 4 Product. Affirm offers the “Pay in 4 Product” as a closed-end installment loan for Customers to finance the purchase of Merchant Products at 0% APR, which will be repaid by Customer in four or fewer installments. Affirm Loan Services, LLC will originate the Pay in 4 Product for Customers in the Territory.

1.7          Checkout Configurations. The following terms and conditions apply to Affirm’s provision of and Merchant’s access to and use of one of the following checkout configurations (each, a “Checkout Configuration”) to the extent that such checkout configuration is part of the Services.

(a)          Adaptive Checkout. “Adaptive Checkout” means a checkout experience where Customers are dynamically offered personalized payment options, at Affirm’s sole discretion, for each transaction, which may include Pay in 4, Installments, or both. Merchant will pay Affirm the applicable Fees corresponding to the Affirm Product term length a Customer selects with Affirm.

1.8          Currency. Unless otherwise specified in the Agreement, all references to currency, monetary values and dollars set forth herein will mean United States dollars (USD) and all payments hereunder will be made in USD.

1.9          Liens Imposed on Merchant.   In the event that any encumbrance, debt, mortgage, attachment, pledge, charge, claim, lien, or other security interest, including any filing authorized by Merchant of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction (each, a “Lien”) is created, incurred, assumed, or otherwise suffered to exist upon any Merchant Product, including inventory, assets, or any other property of Merchant, that is the subject of a Successful Transaction, (A) Merchant will promptly notify Affirm in writing of any such Lien, and (B) upon becoming aware of such Lien, either through notice by Merchant or by other means, Affirm may immediately suspend or terminate the Services, terminate all or part of the Agreement, or exercise any other rights and remedies available under the Agreement, at law or in equity.

2.          License Grants; Intellectual Property.

2.1          Intellectual Property. As between the Parties, Affirm retains exclusive ownership of all right, title, and interest in and to all IP relating to or embodied in the Services, including the APIs, and any Confidential Information provided to Merchant by Affirm (collectively, the “Affirm IP”). Neither Party will, by virtue of the Agreement, gain any rights of ownership of IP owned (prior to, on or after the Effective Date) by the other Party. “IP” means all worldwide rights in and to intellectual, industrial, and other property, whether exclusive or non-exclusive, including rights to inventions, trademarks, trade names, trade dress, service marks, logos, brand names, other indicia of origin, trade secrets, know-how, technology, research tools, data, software, improvements, processes, designs, techniques, works of authorship and rights of attribution, whether or not protected by patents or copyrights, the Marks, patent applications, patents, copyrights, moral rights, all other rights pertaining to intellectual property, and all goodwill associated therewith. Merchant’s submission of any feedback, comments, or suggestions to Affirm related to Affirm IP (“Feedback”) is voluntary. Notwithstanding any other provision of the Agreement, (a) Affirm may use Feedback and incorporate it into Affirm’s products, technologies, and services without any obligation to Merchant or restriction as to Affirm’s use of such Feedback, (b) Merchant hereby waives all rights it or its representatives have or may have, including all IP rights, in and to the Feedback, and will cause its representatives to waive all moral or similar rights that its representatives have to Affirm, and (c) Merchant hereby assigns to Affirm all of Merchant’s rights in and to Feedback and will cause its representatives to assign all of such representatives’ rights to Affirm. In the event Merchant is unable to waive or assign its or its representatives rights in and to Feedback pursuant to Applicable Law, then Merchant hereby grants to Affirm an irrevocable, perpetual, exclusive, royalty-free, fully paid-up, worldwide, license, to use, reproduce, distribute, perform, display and create derivative works of, such Feedback, without the need for a separate writing. Merchant is not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback. If Merchant develops any modifications, corrections, enhancements, derivatives, or extensions of or relating to Affirm IP, all rights, title, and interest in and to all IP therein will be owned exclusively by Affirm. Should Affirm IP become, or in Affirm’s opinion likely become, the subject of an IP infringement claim by a third party, Affirm, at its option, may: (i) procure for Merchant the right to continue using the applicable Affirm IP, (ii) modify the applicable Affirm IP to make it non-infringing provided the same functionality is maintained, or (iii) terminate this Merchant Agreement as to the potentially infringing Services.

2.2          Trademark License. Upon the terms and subject to the conditions of the Agreement, each Party (the “Licensor”) hereby grants to the other Party (the “Licensee”) a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute, and transmit the Licensor’s name, logo, and any other trademarks, trade names, service marks, photographs, graphics, brand imagery, text, and other content, in each case provided by the Licensor, in any and all media formats, whether registered or unregistered (with respect to each Licensor, the “Marks”), in connection with the use and marketing of the Services during the Term. Licensee’s use of the Licensor’s Marks may be subject to usage guidelines and quality control standards that Licensor may provide to Licensee from time to time. Upon Licensor’s request, Licensee will provide to Licensor representative samples of Licensee’s use of the Marks, and Licensor reserves the right to reject any such use in the event that Licensor reasonably believes a deficiency exists in the manner of use of the Marks by Licensee. All goodwill arising out of the use of the Licensor’s Marks will inure to the benefit of the Licensor. Use of a Licensor’s Marks does not create in the Licensee any ownership interest in Licensor’s Marks. Neither Party will register or apply for registration of the other Party’s Marks (or any confusingly similar trademarks, trade names, service marks, logos, or names). Each Party will reasonably cooperate with the other Party with respect to any infringement action regarding such rights.

2.3          Open Source Software. The Services may include software subject to open source or free software licenses (“Open Source Software”). Affirm provides no, and expressly disclaims any and all, representations, warranties, and conditions concerning any Open Source Software. Nothing in the Agreement grants Merchant rights that supersede the terms and conditions of any applicable Open Source Software license.

2.4          Restrictions on Use of the Services. Merchant will not: (a) offer for sale or lease, or sell, resell, or lease, or in any way transfer the Services; (b) attempt to create a substitute or similar service through use of, or access to, the Services; or (c) access or use the Services in a way intended to avoid incurring Fees, misrepresent usage or performance data, misrepresent transaction amounts or item data, misrepresent user information, or knowingly permit Customers and third parties to engage in actions that are prohibited under the Agreement. In addition, Merchant will not, nor will Merchant allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Affirm IP, (ii) make unauthorized copies of Affirm IP, (iii) modify or remove any proprietary notices, disclosures, disclaimers, or Affirm Marks from the Services or Affirm IP, or (iv) use the Services or Affirm IP in any manner or for any purpose other than that for which the Services or Affirm IP have been provided or incorporated.

2.5          Marketing Materials. Merchant will comply with Affirm’s marketing guidelines (“Affirm Approved Marketing Materials”) that will be provided to Merchant by Amazon in a readily available manner (i.e., hosting such Affirm Approved Marketing Materials on a website). Merchant may not use any materials, other than Affirm Approved Marketing Materials, to offer and market the Services, and in all cases such uses are subject to brand and marketing guidelines provided to Merchant by Amazon in a readily available manner, unless an exception is expressly approved by Affirm in writing. Merchant will (a) comply with Affirm’s instructions in displaying Affirm Marks on Merchant Sites and in Merchant marketing materials, and (b) include Affirm Marks wherever Merchant markets, offers, or promotes the Services. Affirm may withdraw its approval of any Affirm Approved Marketing Materials upon notice to Merchant. If Merchant breaches its obligations under this Section, Merchant will immediately (but no later than 5 business days following such breach) cure such breach, including by removing any non-compliant marketing materials from Merchant Sites. Merchant will comply with Affirm’s marketing guidelines located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines, unless an exception is expressly approved by Affirm in writing.

2.6          Affirm Disclosures. Affirm may provide to Merchant disclosures related to the Services. Upon receipt of such disclosures, Merchant will promptly display such disclosures on the Merchant Sites in accordance with Affirm’s instructions. Such disclosures may include notices required by Applicable Law and statements intended to prevent Customer complaints. Affirm may, at any time, review and confirm Merchant’s compliance with Affirm’s instructions regarding such disclosures, and upon receipt of written notice by Affirm, Merchant will modify any disclosures in accordance with Affirm’s instructions.

2.7          No Discrimination or Other Disparate Treatment. Merchant will not discriminate against or otherwise disadvantage (relative to Merchant’s transactions involving other methods of payment) its customers who use or desire to use the Services to purchase a Merchant Product, which discrimination or disadvantaging may include, but is not limited to, (A) imposing surcharges, fees, or other costs on such customers; (B) excluding such customers from receiving or participating in any discounts, rebates, savings, offers, incentives, loyalty program benefits, points, or rewards; and (C) acting in a manner that violates Regulation Z, 12 C.F.R. § 1026.

3.          Merchant Payouts and Merchant Fees.

3.1          Successful Transaction. A “Successful Transaction” is a sale of a Merchant Product to a Customer using the Services that is Captured by Merchant. A sale is “Captured” when a Merchant has fulfilled the Authorized transaction to the Customer by making the Merchant Product available to the Customer except where the Merchant has elected to auto-capture. A sale is “Authorized” when the transaction is placed in a pending state and is available to be Captured by Merchant.  In accordance with Applicable Law, Merchant is solely responsible for determining the gross transaction amount payable by Customers (inclusive of any applicable Taxes or other fees).  Merchant will be responsible for any standard commercial debit interchange or similar processing fees related to the use of credit cards in connection with the Services.

3.2          Merchant Fees.  Fees payable under this Agreement will be set forth in the Seller Central portal (“Merchant Portal”). With respect to each Successful Transaction during the Term, Merchant will pay a fee equal to (a) the applicable percentage (as set forth in the Merchant Portal) of the gross dollar amount of such Successful Transaction (including any down payment paid by Customer) (each, a “Merchant Discount Rate” or “MDR”), plus (b) a transaction fee (as set forth in the Merchant Portal) for such Successful Transaction (the “Transaction Fee”, and together with the MDR, the “Fees”).  Fees paid by Merchant under this Merchant Agreement will not be refundable to Merchant.  Notwithstanding anything to the contrary in the Agreement, Affirm may revise the Fees and such revisions will be effective upon written notice to Merchant by Affirm.   

3.3          Errors.  To the extent (i) Merchant Captures, cancels, or voids a sale or a loan related to the Agreement, directly or indirectly, whether by error or omission or (ii) Merchant uses a payment processor or other similar provider and such provider Captures, cancels, or voids a sale or a loan related to the Agreement, directly or indirectly, whether by error or omission (each, a “Transaction Error”), Affirm will have no liability with respect to any such Transaction Error or Losses related therefrom.  Nothing herein precludes Affirm from making a good faith challenge as to the accuracy of Fees charged or due hereunder and making an adjustment as necessary. 

3.4          Shipping & Fulfillment. Merchant will maintain and comply with shipping and service fulfillment practices that meet or exceed (a) good industry standards maintained and complied with by merchants similar to Merchant, and (b) any requirements set forth in Merchant’s agreements with applicable Customers.

3.5          Risk Evaluation.  Affirm will, promptly after the Effective Date, review and re-evaluate Merchant’s eligibility to offer the Services in its sole discretion and may perform such review and evaluation from time to time.  Merchant will promptly furnish to Affirm all information reasonably requested by Affirm in connection with Affirm’s evaluation, which may include information about Merchant’s general business operations, financial information, and information about Merchant’s directors, principals, and officers.  All information provided by Merchant in response to Affirm requests related to risk evaluations will be considered Merchant Confidential Information.

3.6           Fraudulent Transactions.

(a)          The Parties will work together to prevent fraudulent Customer transactions and minimize the risk of loss associated with such fraudulent transactions. Merchant will designate an individual who will serve as the single point of contact for fraud matters related to the Services.

(b)          Except as otherwise stated in the Agreement, Affirm assumes the risk of loss resulting from fraud by Customers with respect to Successful Transactions. Merchant assumes the risk of loss resulting from fraud (i) caused by Merchant or Merchant’s employees, contractors, representatives, or agents or (ii) in connection with a Customer changing information (including shipping information) previously communicated to Affirm in the checkout flow after Affirm has approved such Customer and prior to the order being submitted to Merchant in the checkout flow (an “Updated Checkout”). Merchant will not allow a Customer to effectuate an Updated Checkout without Affirm’s prior written consent (email sufficient at orderreview@affirm.com). Affirm may terminate the Agreement immediately for breach of the foregoing.

(c)          If Amazon or Affirm informs Merchant that a transaction is fraudulent or likely fraudulent before the sale is Captured, and Merchant subsequently ships or provides the applicable Merchant Product despite such information, Merchant will be liable for any loss resulting from such transaction. If Amazon or Affirm discovers that a Successful Transaction is fraudulent after the applicable sale is Captured, but before the applicable Merchant Products are delivered or otherwise made available to Customer, Merchant will use best efforts to communicate with the carrier or other third party to recall the shipment, or, as applicable for services or electronically delivered Merchant Products, cancel the provision of the applicable Merchant Products. After a Customer’s order is submitted to Merchant in the checkout flow, Merchant will use best efforts to identify suspicious shipping address changes and will notify Amazon of such suspicious changes by email to rts-us-gil@ amazon.com or such other email address as is provided by Amazon or Affirm to Merchant. 

3.7           Returned Products; Refunds. Merchant will maintain and comply with its refund and return policy, as set forth in the applicable Merchant Policies. Such policy must be clearly and conspicuously displayed on Merchant Sites or otherwise easily accessible by Customers prior to each Customer’s completion of checkout. In the event that a Merchant Product is returned to Merchant by a Customer following a Successful Transaction, Merchant will (a) accept the return only if it is compliant with Merchant’s return policy, as set forth in the applicable Merchant Policies; (b) issue full or partial refunds and not store credit; and (c) promptly process such refund and immediately refund appropriate amounts to Amazon so that Amazon may refund Affirm for such amounts and Affirm may credit the Customer’s outstanding balance accordingly. In the case of partial refunds, Merchant will determine the amount of such refund, in its sole discretion, and will be solely liable for any Merchant Customer Dispute relating thereto. Neither Merchant nor Customer may use the Services to pay for any fees, including restocking fees, charged by Merchant in connection with the return of a Merchant Product.

3.8          Disputes between Customer and Merchant. All disputes, inquiries, or complaints by a Customer related to Merchant Products or business (each, a “Merchant Customer Dispute”) will be first directed to Merchant for Merchant to resolve in accordance with applicable Merchant Policies. Merchant will work in good faith to resolve each Merchant Customer Dispute in a timely manner. If Merchant, either alone or with Amazon’s reasonable assistance, is unable to resolve a Merchant Customer Dispute, Affirm will reasonably assist in facilitating resolution of the Merchant Customer Dispute in accordance with its customer dispute resolution procedures located at: https://docs.affirm.com/affirm-developers/docs/dispute-resolutions (the “Customer Dispute Resolution Procedures”). With respect to Merchant Customer Disputes, Merchant will comply with Affirm’s reasonable requests, including providing Affirm with supporting documentation to resolve the Merchant Customer Dispute. Merchant will direct any disputes, inquiries, or complaints by a Customer related to the Services or business (each, an "Affirm Customer Dispute") directly to Affirm for resolution.

3.9           Down Payment Collection. A Customer may make a one-time partial (“Down Payment or Partial Payment”) or complete payment (“Complete Payment”) (collectively, an “Upfront Payment”), of the applicable purchase price that is collected by Affirm from a Customer on behalf of Merchant in connection with the Services. Affirm may, in its sole discretion, require a Customer to make an Upfront Payment with respect to using an Affirm Product. An Upfront Payment made by a Customer to Affirm will be considered the same as a payment made directly to Merchant. Merchant understands that Affirm’s obligation to transmit an Upfront Payment to Amazon is subject to and conditioned upon successful receipt of the associated Upfront Payment from Customer. In connection with a Complete Payment, Merchant will pay Affirm (i) the Fee associated with the Complete Payment as stated in the Agreement or (ii) if no Fee for the Complete Payment is stated in the Agreement, the lowest enabled Fees set forth in the Agreement. To the extent an Upfront Payment is required and as applicable, Merchant appoints Affirm Loan Services, LLC and/or Affirm Payments, LLC as its payment collection agent solely for the purpose of accepting such Upfront Payment from Customers on behalf of Merchant and such Upfront Payment will be treated as received by Merchant upon receipt by Affirm Loan Services, LLC and/or Affirm Payments, LLC, as applicable.

3.10          Tax Matters.

(a)          Affirm may charge, collect, deduct or withhold any applicable federal, state or local sales or use taxes (individually, a "Tax" or collectively, "Taxes") that Affirm may be legally obligated to charge, collect, deduct or withhold from any amounts payable to Merchant under the Agreement, and any payment reduced by such Taxes will constitute full payment and settlement of amounts payable to Merchant under the Agreement.  If Affirm is unable to validate any Tax-related identification information Merchant has provided to Affirm, Affirm may (in its sole discretion) deduct such Taxes from amounts otherwise owed to Merchant. If Merchant is exempt from payment of any such Taxes, Merchant must provide Affirm with an original certificate that satisfies Applicable Law demonstrating Merchant's Tax-exempt status. Upon Affirm's reasonable request, Merchant must provide Affirm with any Tax information, forms, documents, invoices, or certifications as may be required to satisfy any Tax obligations of Affirm with respect to the Agreement.

(b)          Merchant will be solely responsible for identifying and paying all Taxes      and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Merchant with respect to or in connection with Merchant's use of the Services. Merchant will have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of Merchant Products or any payments Merchant makes or receives in connection with Merchant's use of the Services; and (ii) assessing, charging, collecting, reporting, and remitting Taxes for Merchant's business to the appropriate Tax and revenue authorities. 

(c)          Pursuant to Applicable Law, Affirm may be required to file periodic informational returns with Tax authorities in relation to Merchant's use of the Services. Affirm is not responsible for any Tax filings of Merchant that are made in reliance upon any information that is provided by Merchant to Affirm.  Merchant expressly consents to receive electronic delivery of copies of such informational returns (including, but not limited to all applicable Form 1099s).  If Merchant would like to withdraw its consent it must notify Affirm in accordance with the terms herein. If consent is withdrawn, Affirm will mail Merchant a paper copy, however, Merchant is obligated to notify Affirm of any and all changes of address.

4.          Service Restrictions.

4.1          Prohibited Businesses.  Merchant will not offer or market the Services in connection with the categories of business and business practices in the Prohibited Business Policy (“Prohibited Business Policy”) located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines and Affirm will have the right to review a Merchant’s eligibility to offer the Services based on Affirm’s Prohibited Business Policy (“Affirm’s Prohibited Business Screen”).  The categories of business and business practices described in the Prohibited Business Policy (each, a “Prohibited Business”) are ineligible for the Services, and Merchant will not allow the Services to be used in connection with any Prohibited Business. In addition, Merchant will not market or offer the Services, or allow the Services to be used, in connection with any Merchant Product that is subject to delayed fulfillment (e.g., preorders or backorders), unless Merchant (a) clearly discloses on the product and checkout pages that such Merchant Product is subject to such delayed fulfillment, and (b) does not Capture the sale for such Merchant Product until Merchant ships such Merchant Product or otherwise makes such Merchant Product available to the Customer. If a Merchant fails Affirm’s Prohibited Business Screen, Affirm may terminate its agreement with Merchant, however, Affirm may continue to service any Customer loans used to purchase a Merchant good or service in connection with the Prohibited Business in accordance with the terms of this Agreement.  Merchant will not discuss Affirm or the Services at any place other than Merchant’s usual place of business, where such prohibition includes, by way of example, discussions in such places as a Customer’s home, a consumer’s workplace, dormitory lounges, and facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds, and restaurants.

4.2          Exclusivity. During the Term, Merchant will not integrate, market, offer, sell, or promote Klarna, Afterpay, Zip/QuadPay and/or Sezzle (or any successor entity) within the Amazon Pay widget on Merchant Sites unless otherwise approved in writing.

4.3          Sanctions Screen. To the extent that a Merchant operates a marketplace or is the merchant of record for multiple merchants, retailers, contractors or similar third party service providers, Merchant will establish, maintain, and comply with a comprehensive sanctions program that meets the minimum requirements set forth in the Merchant Sanctions Policy located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines.  Merchant will not act in a manner that violates 15 C.F.R. § 760 (Restrictive Trade Practices or Boycotts), including requiring any person or company to not do business with Israel or any other country subject to a boycott. If Merchant is involved in international business transactions, Merchant will file a report with the applicable foreign jurisdiction as required by Applicable Law in the event any third party requests Merchant to comply with or support an international boycott.

5.          Confidential Information and Data Security.

5.1          Confidential Information. In connection with the Agreement, including the negotiation of the Agreement, a Party (“Recipient”) may receive or have access to confidential or proprietary information of the other Party or its Affiliates (“Discloser”), whether received or disclosed by such Parties or their respective Representatives. As used in the Agreement, “Confidential Information” means the information exchanged by the Parties prior to, during or after the  negotiation of the Agreement that should be reasonably understood to be confidential or proprietary in nature, regardless of whether such information was provided subject to a nondisclosure agreement between the Parties, the terms and conditions of the Agreement, any proprietary information, technical data, demographic information, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by either Party either directly or indirectly in any form but excluding information that: (a) was lawfully, and not otherwise as a result of any violation of confidentiality obligations, in Recipient’s possession before receiving it from Discloser; (b) is rightfully received by Recipient from a third party without restriction, and, to Recipient’s knowledge, without a breach of a confidentiality obligation imposed on such third party; (c) is or becomes generally available to the public other than through a breach of the Agreement; or (d) was or is independently developed by Recipient without use of or reference to any Confidential Information. Merchant acknowledges and agrees that Affirm may disclose Merchant Confidential Information to Amazon during or after the Term, and Affirm will not be liable for any use, disclosure or other act or omission by Amazon related to such Merchant Confidential Information. For avoidance of doubt, Affirm’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Affirm’s Confidential Information.

5.2          Nondisclosure of Confidential Information. Recipient will: (a) keep the Confidential Information of Discloser confidential and not use or copy such Confidential Information other than as expressly authorized by Discloser and as permitted under the Agreement; (b) protect the Confidential Information of Discloser from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid such unauthorized use or disclosure of its own Confidential Information, but in no event any less than reasonable care; and (c) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with the Agreement and will be liable for any breach of this Section  by such Representatives. It is understood that Discloser’s Confidential Information will remain the sole property of Discloser. In the event that Recipient or any of its Representatives are legally compelled by Applicable Law subpoena, or similar court process to disclose any Confidential Information of Discloser, Recipient will, to the extent legally permissible, provide Discloser with notice of such circumstances and will limit such disclosure to only what legal counsel for Recipient advises is specifically required by Applicable Law subpoena, or similar court process. This provision will supersede and replace any previous agreement, whether written or oral, between the Parties hereto regarding Confidential Information.

5.3          Privacy; Data Security.  The Parties will process information under this Agreement in compliance with Applicable Law and each Party will comply with the Data Processing Agreement located at: https://www.affirm.com/terms/merchant-policies/global-dpa.         

6.          Representations and Warranties.

(a)          Each Party represents and warrants that as of the Effective Date: (i) it is duly formed, validly existing, and in good standing under the laws of its state, province or other jurisdiction of incorporation or formation; (ii) it has the right, power, and authority to enter into the Agreement; (iii) the Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (iv) it is in compliance with all Applicable Law in connection with carrying out its obligations under the Agreement; (v) there is no pending or, to such Party’s knowledge, threatened litigation, arbitration matter, or other dispute to which such Party or any of its affiliates is a party that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such Party’s ability to fulfill its obligations under the Agreement and (vi) the execution and delivery of the Agreement will not conflict with, or result in a violation or breach of, any of the terms, conditions, or provisions of such Party’s organizational documents or any legal restriction or any agreement or instrument to which such Party is now a party or by which it is bound, or require the consent of any person or entity not subject to the Agreement. Merchant represents, warrants, and covenants that: (1) it will convey good and valid title to the Merchant Products delivered or otherwise made available to a Customer as a result of any Successful Transaction, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind; (2) it is not an “institution of higher education” under the Higher Education Act (20 U.S.C. §§ 1001-1002) and implementing regulations (34 C.F.R. Part 600).  Examples of “institutions of higher education” are certain for-profit schools and vocational schools that are regulated by the U.S. Department of Education; (3) it would not qualify as an “institution of higher education” even if it were to become accredited by an accrediting agency recognized by the U.S. Department of Education.  Merchant agrees to notify Affirm if the foregoing representations and warranties become untrue. As applicable, Merchant has all third-party licenses or consents required to enable Affirm to use Merchant Marks in marketing or promotional materials in connection with the Services, at no additional cost to Affirm.

(b)          EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AFFIRM MAKES NO OTHER WARRANTY OF ANY KIND REGARDING THE SERVICES, AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

7.            Indemnification.

7.1          Merchant Indemnification. Merchant will defend, indemnify, and hold harmless Affirm, its Affiliates, and their respective officers, directors, agents, employees, successors, and assigns (individually and collectively, an “Affirm Party”) from and against all penalties, damages, losses or expenses (including reasonable attorneys’ fees) (collectively, “Losses”) suffered, incurred, or sustained by any Affirm Party resulting from or arising out of any claim relating to: (a) Merchant’s breach of an obligation under the Agreement, including fines or penalties arising from such breach; (b) personal injury (including death) or property damage resulting from Merchant’s acts or omissions; (c) Merchant’s breach of its obligations under the Agreement with respect to the offering, marketing, sale, or distribution of goods or services that are Prohibited Businesses; (d) the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, discrimination, or product defects; (e) any Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Merchant with respect to or in connection with Merchant's use of the Services and any Taxes in connection with Merchant's business; (f) Merchant’s violation, misappropriation, or infringement of the IP of a third party; (g) fraud, gross negligence, or willful misconduct of Merchant; (h) the acts or omissions of Merchant Representatives; or (i) a Security Incident of Affirm Personal Data on information systems owned, controlled, or subcontracted by Merchant or by a Merchant Subprocessor resulting from Merchant’s or Merchant Subprocessor’s negligent acts or omissions.

7.2          Indemnification Procedure.  A right to indemnification under the Agreement is conditioned upon the following: (a) a  notice by the indemnified Party (the “Indemnified Party”) to the other Party (the “Indemnifying Party”) after the Indemnified Party’s receipt of the assertion or the commencement of any third-party action, proceeding, or other claim with respect of which the Indemnified Party will seek indemnification under the Agreement; (b) control of the investigation, preparation, defense, and settlement thereof by the Indemnifying Party (provided, however, that the Indemnifying Party will not, without the prior consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to the indemnified claim); and (c) cooperation by the Indemnified Party, at the Indemnifying Party’s  request, in the Indemnifying Party’s defense of the indemnified claim. The Indemnified Party will have the right to participate in the defense of the indemnified claim at the Indemnified Party’s expense (notwithstanding any indemnification obligations under the Agreement).

8.          Limitation of Liability.

In no event will Affirm be liable or obligated for any special, indirect, incidental, punitive, exemplary, or consequential damages or lost profits, whether in contract or tort (including breach of warranty, negligence, and strict liability). Affirm’s liability for any losses arising out of or relating to Affirm’s performance or failure to perform its obligations under the agreement will be limited, in the aggregate, to an amount equal to the total fees payable to Affirm for the 12 months prior to the month in which the most recent event giving rise to such liability occurred. All claims for any Losses arising out of or relating to Affirm’s performance or failure to perform its obligations under the Agreement must be filed within two years from the date giving rise to such claim. This limitation of liability will apply to the maximum extent permitted by Applicable Law and notwithstanding the failure of any limited remedy.  Each Party enters into this Agreement in reliance upon the limitations of liability set forth in this Section, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.

9.          Dispute Resolution.

9.1          Informal Dispute Resolution. Prior to the initiation of arbitration, the Parties will first attempt to resolve their Dispute informally as set forth in this Section ‎9.1 (the “Informal Dispute Resolution Process”). Either Party may initiate the Informal Dispute Resolution Process by giving notice of a Dispute to the other Party (the “Notice of Dispute”), which will include a reasonably detailed statement of the Dispute. During the Informal Dispute Resolution Process, each Party will honor all reasonable requests made by the other Party for non-privileged information reasonably related to the Dispute, which will include, but not be limited to, records pertaining to its receipt and handling of transactions processed through the Services that are directly relevant to verifying the accuracy of financial obligations owed to the other Party. All negotiations and proceedings pursuant to this Section will be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

9.2          Formal Dispute Resolution. Either Party may seek formal resolution of a Dispute upon the earliest to occur of the following: (a) 30 days have elapsed from the delivery of the Notice of Dispute; (b) commencement of arbitration is appropriate to avoid the expiration of an applicable limitations period or to preserve a superior position with respect to other creditors; or (c) a Party makes a good-faith determination that a breach of the Agreement by the other Party is such that injunctive relief is necessary.

9.3          Arbitration. Except with respect to the specific aspect of any Dispute that reasonably requires injunctive relief as a remedy (in which case, the applicable Party may seek injunctive relief from a court of competent jurisdiction located in the Northern District of California or a California state court located in San Francisco), any Dispute will be determined by final and binding arbitration conducted by JAMS according to the rules and procedures in effect at the time the arbitration is commenced. Disputes with amounts claimed greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures, and Disputes with amounts claimed less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitration will be conducted before a single neutral arbitrator in San Francisco, California. Judgment on the award may be entered in any court of competent jurisdiction. This clause will not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In all arbitrations, each Party will bear the expense of its own counsel, experts, witnesses, administrative fees and expenses, and preparation and presentation of evidence at the arbitration. Arbitration proceedings and information related to them will be deemed and maintained as Confidential Information of each Party, including the nature and details of the Dispute, evidence produced, testimony given, and the outcome of the Dispute, unless agreed otherwise or such information was already in the public domain or was independently obtained. Merchant and Affirm, and all witnesses, advisors, and arbitrators will share such information only as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by Applicable Law. 

9.4          Governing Law. The Agreement and performance under the Agreement will be governed by and construed in accordance with the laws of the State of California notwithstanding any conflict of law rules; provided, however, that transactions under the Agreement may involve matters of interstate commerce, and notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern the agreement to arbitrate. To the fullest extent permitted by Applicable Law, any dispute, claim, or controversy arising out of or relating to the Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including whether any claim is arbitrable (“Dispute”) arising out of or in connection with the Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a Dispute proceeds in court rather than through arbitration, each Party knowingly and irrevocably waives any right to a trial by jury in any action, proceeding or counterclaim arising out of or relating to the Agreement or any of the transactions contemplated between the Parties.

10.          Force Majeure.

10.1          Force Majeure Event. Except for each Party’s payment obligations, neither Party will be liable for any failure or delay in performance of its obligations under the Agreement if and to the extent such failure or delay is caused, in whole or in part, directly or indirectly, by fire, storm, earthquake, flood or other weather, terrorism, epidemic, pandemic, unavailability of necessary utilities or raw materials, unavailability of components, war, riot, elements of nature or acts of God, regulation, ordinance, instructions of government or other public authorities, any other event that is traditionally recognized by California courts as an event of force majeure, or any other cause beyond the reasonable control of such Party, provided that the nonperforming Party is without fault in causing such failure or delay, and such failure or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the nonperforming Party through the use of alternate sources, workaround plans, or other means.

10.2          Obligations. In the event of such a force majeure event, the nonperforming Party will give prompt notice to the Party to whom performance is due that describes at a reasonable level of detail the circumstances causing such failure or delay and the expected period of time the nonperformance will continue. The nonperforming Party will be excused under this Section10 so long as such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay; however, notwithstanding the foregoing, such delay will not be excused under this Section      ‎10 for more than 90 days.

11.          Term and Termination.

11.1          Term. The Agreement will become effective on the Effective Date and will continue in full force and effect until the expiration or termination of this Merchant Agreement.

11.2          Termination. This Agreement will terminate immediately upon termination of the Merchant’s agreement with Amazon Payments, Inc. Merchant may terminate this Agreement immediately without cause at any time upon prior written notice of termination to Affirm or Amazon Payments, Inc.  Affirm may terminate the Agreement, without cause at any time by giving Merchant prior written notice. Affirm may terminate this Agreement immediately if Merchant fails Affirm’s Office of Foreign Assets Control (“OFAC”) compliance screen (“Affirm’s OFAC Review”). Either Party may terminate the Agreement for a material breach that is not cured within 30 days after notice by the other Party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within 30 days. Either Party may terminate the Agreement immediately if the other Party (a) terminates its business operations; (b) becomes insolvent; (c) suffers the appointment of a receiver or makes an assignment for the benefit of a creditor; or (d) enters into any voluntary or involuntary bankruptcy proceedings.  In addition, Affirm may terminate the Agreement immediately if (i) Affirm discovers that Merchant misrepresented, omitted, or falsified any information or documentation provided to Affirm; (ii) in Affirm’s reasonable discretion, Merchant engages in conduct that could damage or disparage the reputation or goodwill of Affirm, its personnel, or the Services or otherwise harms or causes a loss of business or revenue to Affirm; (iii) Merchant violates any Applicable Law; or (iv) as otherwise provided in the Agreement. Any termination by Affirm in accordance with the Agreement will be without cost or penalty.

11.3          Obligations upon Termination. Termination will not release either Party from financial obligations owed to the other Party for services delivered or payments owed for Services delivered prior to or after termination of this Merchant Agreement. The Parties will cooperate to complete all outstanding obligations to Customers related to the Services. Upon termination of the Agreement:

(a)          All authorizations and licenses granted by either Party will immediately terminate, and all rights will revert to the owner, provided that Affirm may continue to use Merchant Marks to the extent reasonably necessary to complete all outstanding obligations to Customers related to the Services. Merchant will immediately cease to represent itself as an Affirm partner and cease its use of any of the Affirm Marks.

(b)          Upon request, and except as required by Applicable Law or, with respect to Affirm, as required to maintain or retain for servicing Customers, each Party will immediately destroy or return to the requesting Party, and upon request, certify such destruction of, all of the requesting Party’s Confidential Information, including materials derived from such Confidential Information.

12.          Miscellaneous.

12.1          Notices, Acceptances and Approvals. All notices, acceptances, approvals, and other communications provided pursuant to the Agreement will be in writing, which may be provided electronically, and deemed duly given when: (a) sent via electronic mail by Merchant to legalnotices@affirm.com, (b) sent via electronic mail by Affirm to the electronic mail address submitted by Merchant in the Merchant Portal, or (c) captured through other electronic means (e.g., “click-to-accept” radio buttons). Notices will be deemed received one business day after being sent or captured in accordance with the foregoing.

12.2          Applicable Law. Merchant will comply with, and will offer the Services in a manner that complies with, all applicable requests by governmental authority, court orders, laws, regulations, codes, rules and guidelines imposed by law, any competent government authority, governing body or regulator in each country and jurisdiction (collectively, “Applicable Law”) applicable to Merchant’s business, the marketing and offering of the Services, and Merchant’s use of Affirm IP. Affirm will comply with Applicable Law applicable to its provision of the Services under this Agreement.

12.3          Other Remedies. 

(a)          In addition to and without limiting any other remedies that Affirm may have under the Agreement, Affirm may suspend the Services, immediately or from such other date as determined by Affirm, upon notice to Merchant in the event that: (i) Merchant breaches, or Affirm reasonably suspects that Merchant has breached, any provision of the Agreement; (ii) Merchant undergoes a change of ownership or control and Affirm is unable to assess such new ownership or Affirm does not approve such new ownership; (iii) Merchant is involved in excessive Customer Disputes or chargebacks; (iv) Affirm reasonably determines that such suspension is necessary to comply with Applicable Law; (v) a Lien has been created, incurred, assumed, or otherwise suffered to exist upon any Merchant Product that is the subject of a transaction between Merchant and a Customer; (vi) Affirm has a reasonable suspicion of fraudulent transactions or other suspicious activity related to the Services; (vii) any Merchant Site undergoes a change in ownership or control; or (viii) Amazon suspends its agreement with Merchant in connection with Amazon Pay.

(b)          Affirm may continue any suspension until: (i) Merchant has rectified Merchant’s breach of the Agreement or has proven that Merchant did not breach the Agreement, in either case, to Affirm’s reasonable satisfaction; (ii) Affirm has assessed and approved in Affirm’s sole discretion, Merchant’s new ownership; (iii) Affirm determines in its reasonable discretion, that Merchant is no longer involved in excessive Customer Disputes and that resuming the Services will not result in excessive Customer Disputes; (iv) Affirm, in its sole discretion, determines that suspension is no longer necessary to comply with Applicable Law; and (vi) Affirm no longer has a basis for reasonably suspecting fraudulent transactions or other suspicious activity related to the Services.  Affirm will not be liable for any damages arising in connection with its suspension of the Services.

12.4          Independent Contractors. The Parties are independent contractors. Nothing in the Agreement will be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties. Neither Party has the authority, without the other Party’s approval, to bind or commit the other Party in any capacity.

12.5          Assignment. Neither Party may assign (whether by operation of law, merger or other combination) all or part of the Agreement without the prior consent of the other Party; provided, however, that such consent will not be required in the case of an assignment in connection with the sale or transfer of all or substantially all the Party’s assets; provided, further, that Affirm may assign the Agreement (whether by operation of law, merger or other combination) to an Affiliate or subsidiary without the prior consent of Merchant. Following any assignment permitted hereunder, the assignee will have the same rights and obligations as the assignor and will agree in writing to be bound by the terms and conditions of the Agreement. Merchant must promptly notify Affirm if Merchant undergoes a change of ownership or control.

12.6          No Third-Party Beneficiaries. Except as expressly set forth in this Section ‎, the Agreement is for the benefit of, and may be enforced only by, Merchant and Affirm and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party. Notwithstanding the foregoing, Merchant acknowledges and agrees that (a) Affirm Loan Services LLC and Affirm Payments, LLC will be third-party beneficiaries under the Agreement, (b) the Agreement confers on Affirm Loan Services LLC and Affirm Payments, LLC the rights and remedies set forth herein, (c) Affirm Loan Services LLC and Affirm Payments, LLC may each enforce any and all rights of Affirm hereunder, except as prohibited by Applicable Law, and (d) neither Affirm Loan Services LLC nor Affirm Payments, LLC will be required to perform any of Affirm’s obligations under the Agreement or be liable for Affirm’s performance of or failure to perform such obligations. Affirm Loan Services LLC’s and Affirm Payments, LLC’s rights under this Section ‎ transfer to any successor of Affirm Loan Services LLC or Affirm Payments, LLC, as applicable.

12.7          Further Assurances. Each Party will, upon the request of the other Party, promptly execute and deliver such documents and perform such acts as may be necessary to give full effect to the terms of the Agreement.

12.8          Interpretation. For purposes of the Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole. Where agreement, approval, authorization, acceptance, consent, or similar action by either Party is required under the Agreement, such action will be performed in accordance with Section ‎and, except where expressly provided as being in the discretion of a Party, will not be unreasonably delayed or withheld. The headings in the Agreement are for reference only and will not affect the interpretation of the Agreement. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.  Unless otherwise specified, “days” as used herein refers to calendar days. 

12.9          Waiver. The failure of any Party to enforce any of the terms and conditions of the Agreement will not constitute a waiver of that Party’s right thereafter to enforce each and every term and condition of the Agreement. Any single or partial exercise of any right hereunder will not preclude further exercise of the same right or the exercise of any other right hereunder by either Party. The waiver by any Party of any default or breach of the Agreement will not constitute a waiver of any other default or breach.

12.10          Entire Agreement. The Agreement (and any attachments referenced herein) constitutes the entire understanding and contract between the Parties and supersedes all prior agreements (including any prior nondisclosure agreements entered into between the Parties), understandings, arrangements, commitments, or representations, oral or written, between the Parties with respect to the subject matter hereof. The Agreement may be executed in two or more counterparts, each of which will be an original instrument, but all of which will constitute one and the same agreement.

12.11          Amendments and Severability. Affirm may update, amend and/or change this Agreement (any such update, amendment or change, an “Amendment”). Merchant is advised to check the terms of this Agreement from time to time for any updates or changes that may be of impact. Merchant's continuing use of the Services constitutes Merchant's consent and agreement to such additions, removals and amendments. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.

12.12          Survival. Termination of the Agreement will not release either Party from any payment incurred prior to or after termination of the Agreement, including Fees, refunds, or other amounts payable to Affirm with respect to Successful Transactions, or other obligations owed to the other or affect any rights or liabilities of either Party with respect to any breach of the Agreement. Articles ‎2, ‎3, 5, 6, 7, 8, 9, 11 and 12, as well as any other provision of the Agreement that contemplates performance or compliance subsequent to termination or expiration of the Agreement, will survive termination of the Agreement until all such obligations are completed; provided that with respect to Section 5, such survival will expire on the third anniversary of the effective date of the termination or expiration of the Agreement.

ARTICLE II

BASIC INSTALLMENTS PACKAGE TERMS

These Basic Installments Package terms supplement and supersede the Affirm Merchant Agreement, located in Article I, including any other schedules, exhibits, attachments, and other documents incorporated by reference therein, or that the Parties may execute from time to time (the “Merchant Agreement”), and, together with the Merchant Agreement, constitute the agreement (the “Agreement”) between Merchant and Affirm for the respective use and provision of the Services.  

If any of these Basic Installments Package terms conflict with the Merchant Agreement, the Interest Bearing Installment only terms will control. Capitalized terms used but not defined below shall have the meanings set forth in the Merchant Agreement.

1.          Product Terms.

(a)          Basic Installments Package. The “Basic Installments Package” is offered by Affirm through Amazon Pay as a closed-end installment loan for customers to finance the purchase of Merchant Products at an interest-bearing rate only and up to 36% APR or as otherwise determined in Affirm’s sole discretion, with various loan terms. Affirm will use one or more state-chartered banks, FDIC-insured institutions, or Affirm Loan Services, LLC, or a combination thereof, to originate the Basic Installments Package for Customers in the Territory. The Basic Installments Package is a separate offering from the Installments Product, the Pay in 4 Product, and Adaptive Checkout. For the avoidance of doubt, a Merchant may offer the Basic Installments Package and another Affirm Product concurrently. 

2.           Payout and Payment Terms. 

(a)          Merchant will not owe Affirm any “Fees” as defined in the Agreement for the Basic Installments Package. 

3.          Communications.  Communications, notices or other materials related to the Services may come from Amazon or directly from Affirm.

4.          Limitation of Liability. Notwithstanding anything to the contrary in the Merchant Agreement, Affirm’s liability for any Losses arising out of or relating to Affirm’s performance or failure to perform its obligations under the Agreement will be limited, in the aggregate, to five thousand dollars ($5,000.00).

5.          Tax. In addition to the Tax provision in the Merchant Agreement and pursuant to Applicable Law, Amazon Payments may be required to file periodic informational returns with Tax authorities in relation to Merchant's use of the Services. Affirm has no responsibility with respect to any informational returns Amazon may file in relation to Merchant's use of the Services. 

6.          Inapplicable Provisions.

(a)          The following sections in the Agreement will not apply: “Product Terms” and “Adaptive Checkout”. 

(b)          Any reference to “Affirm may revise the Fees” in the Agreement will not apply to the Basic Installments Package.