Tiptop Labs, Inc.

Partner Agreement

Last Updated: April 22, 2024

This Partner Agreement (Partner Agreement) is entered into by and between the Partner listed in an Order Form (Partner) and the Tiptop counterpart named in such Order Form (Tiptop), as applicable (each, a Party and collectively, theParties) and effective as of the Effective Date referenced in such Order Form. Upon the execution and delivery of an Order Form by a Partner and Tiptop, (i) such Partner will become a party to this Agreement and all references to “Partner” in this Agreement will be deemed to reference such Partner as the context requires, and (ii) such Tiptop counterpart will become a party to this Agreement and all references to “Tiptop” in this Agreement will be deemed to reference such Tiptop counterpart as the context requires, in each case solely with respect to its participation in offering the Services and its actions and omissions on its own behalf conducted under this Agreement. Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Order Form or the Tiptop Service Terms.

The terms and conditions set forth in any attachments or schedules referenced herein (including any terms, conditions, and materials in the Tiptop Service Terms) are hereby incorporated by reference into this Partner Agreement. This Partner Agreement, along with any order form entered into by the Parties (each, an Order Form) and any other writing agreed upon by the Parties (collectively, the Agreement), will apply to and govern Tiptop’s provision of and Partner’s access to and use of any Services agreed upon by the Parties.

1. General Terms and Conditions.

1.1 General. Tiptop (itself or through its Affiliates or bank partners) offers certain products and services (each, an “Tiptop Product” and collectively, Tiptop Products) through Tiptop’s proprietary platform and related application programming interfaces (APIs), card networks, and other technology and access solutions (collectively, the Services). Partner desires to market and offer Tiptop Products to its customers and enable such customers to use the Services to purchase eligible goods and services sold by or through Partner (Partner Products). A Customer is any person who applies to use the Services or who uses the Services in accordance with this Agreement. ARepresentative of each Party means its employees, personnel, contractors, representatives or agents. 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. This Agreement will apply to all channels approved by Tiptop in writing (each, a Channel). Channels may include approved web addresses (each, a Partner Site and such Channel,eCommerce).

1.3 Territories. The Services will only be available in the applicable Territory set forth in the applicable Order Form.

1.4 Service Terms. Partner will maintain and comply with Partner’s internal policies for shipping and fulfillment of customer orders, privacy of customer information, customer refunds and returns, and customer dispute resolution, that meet or exceed (a) good industry standards for merchants similar to Partner; and (b) any requirements set forth in Partner's agreements with applicable Customers (each, a Partner Policy), provided that the Agreement will control in the event of a conflict, ambiguity, or inconsistency between the Agreement and a Partner Policy. Partner will comply with the terms (the Tiptop Service Terms) located at https://tiptop.com/legal/partner-terms (as applicable to the Territory and relevant industry) when offering and using the Services.

2. Intellectual Property; License Grants.

2.1 Intellectual Property. As between the Parties, Tiptop retains exclusive ownership of all right, title, and interest in and to all IP relating to or embodied in the Services (excluding IP owned by Partner), including the APIs, and any Confidential Information provided to Partner by Tiptop (collectively, the Tiptop 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. Partner’s submission of any feedback, comments, or suggestions to Tiptop related to Tiptop IP (Feedback) is voluntary. Notwithstanding any other provision of the Agreement, (a) Tiptop may use Feedback and incorporate it into Tiptop’s products, technologies, and services without any obligation to Partner or restriction as to Tiptop’s use of such Feedback, (b) Partner 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 Tiptop, and (c) Partner hereby assigns to Tiptop all of Partner’s rights in and to Feedback and will cause its Representatives to assign all of such Representatives’ rights to Tiptop. In the event Partner is unable to waive or assign its or its Representatives rights in and to Feedback pursuant to Applicable Law, then Partner hereby grants to Tiptop 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. Partner is not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback. If Partner develops any modifications, corrections, enhancements, derivatives, or extensions of or relating to Tiptop IP, all rights, title, and interest in and to all IP therein will be owned exclusively by Tiptop. Should Tiptop IP become, or in Tiptop’s opinion likely become, the subject of an IP infringement claim by a third party, Tiptop, at its option, may: (i) procure for Partner the right to continue using the applicable Tiptop IP, (ii) modify the applicable Tiptop IP to make it non-infringing provided the same functionality is maintained, or (iii) terminate this Partner Agreement or the applicable Order Form as to the potentially infringing Services. 

2.2 License Grants. 

(a) Licenses. The applicable Tiptop Service Terms will set forth all terms and conditions governing any licenses related to the Services.

(b) 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, subject to the terms herein. 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 Restrictions on Use of the Services. Partner 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, Partner will not, nor will Partner 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, Tiptop IP, (ii) make unauthorized copies of Tiptop IP, (iii) modify or remove any proprietary notices, disclosures, disclaimers, or Tiptop Marks from the Services or Tiptop IP, or (iv) use the Services or Tiptop IP in any manner or for any purpose other than for which the Services or Tiptop IP have been provided or incorporated.

2.4 Disclosures and Marketing Materials. Partner may only use language or materials in the form provided by Tiptop from time to time (Tiptop Approved Materials) to offer or market the Services (unless an exception is expressly approved by Tiptop in writing in accordance with the below Brand Guidelines). In any event, whereverPartner markets, offers or promotes the Services, Partner will (a) include Tiptop Marks and (b) comply with the Tiptop brand and marketing guidelines provided by Tiptop from time to time (the Brand Guidelines), unless, with respect to both (a) and (b), an exception is expressly approved by Tiptop in writing in accordance with the Brand Guidelines. Notwithstanding anything to the contrary, to the extent that Tiptop provides required disclosures (Disclosures) related to the Services, which may include but are not limited to notices required by Applicable Law and statements intended to prevent Customer complaints, Partner will promptly display any such Disclosures on Partner Channels in accordance with Tiptop’s instructions. Upon notice to Partner, Tiptop may revise or update elements of Tiptop Approved Materials or Disclosures in the event that Tiptop has a reasonable belief that such updates are necessary or appropriate in light of legal or regulatory guidelines or requirements. Upon receipt of such notice from Tiptop, Partner will promptly, but in any event within five (5) calendar days or as otherwise agreed by the Parties, modify applicable Tiptop Approved Materials and Disclosures in accordance with Tiptop’s instructions or otherwise take action to come into full compliance with this Section, including by removing any non-compliant language or materials. Tiptop may review and confirm Partner’s compliance with this Section at any time. 

3. Payout and Payment. The applicable Order Form will set forth terms and conditions governing any payouts and payments related to the Services. Except as expressly provided under the Agreement, each Party will bear its own costs and expenses incurred in connection with each Party’s obligations under the Agreement.

4. Confidential Information and Data Security.

4.1 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. For avoidance of doubt, Tiptop’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Tiptop’s Confidential Information.

4.2 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. To the extent a Partner Site is hosted by a third-party intermediary (each, a Platform) which requires Tiptop to submit certain data for the purpose of fulfilling Tiptop’s contractual obligations to such Platform, Tiptop may disclose certain Partner Confidential Information to such Platform during or after the Term, and Tiptop will not be liable for any Processing by such Platform related to such Partner Confidential Information.

4.3 Privacy; Data Security. The Parties will process information under this Agreement in compliance with Applicable Law and the terms and conditions set forth in the applicable Tiptop Service Terms. 

5. Representations and Warranties.

5.1 Each Party represents and warrants that as of the Effective Date: (a) it is duly formed, validly existing, and in good standing under the laws of its state, province or other jurisdiction of incorporation or formation; (c) it has the right, power, and authority to enter into the Agreement; (ic) the Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (d) it is in compliance with Applicable Law in connection with carrying out its obligations under the Agreement; (e) 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 (f) 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. Partner represents, warrants, and covenants that it will convey good and valid title to the Partner 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. As applicable, Partner has all third-party licenses or consents required to enable, Tiptop to use Partner Marks in marketing or promotional materials in connection with the Services, at no additional cost to Tiptop.


6. Indemnification.

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

6.2 Indemnification Procedure. A right to indemnification under the Agreement is conditioned upon the following: (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). 

7. Limitation of Liability. In no event will Tiptop 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). Tiptop’s liability for any Losses arising out of or relating to Tiptop’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 Tiptop under the applicable Order Form 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 Tiptop’s performance or failure to perform its obligations under the Agreement must be filed within the applicable statute of limitations of the relevant jurisdiction. 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.

8. Dispute Resolution.

8.1 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 (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.

8.2 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. Terms and conditions governing other dispute resolution, such as arbitration, will be set forth in the applicable Tiptop Service Terms.

8.3 Governing Law. Governing law will be set forth in the applicable Tiptop Service Terms.

9. Force Majeure.

9.1 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.

9.2 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 Section 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 for more than 90 days. 

10. Term and Termination.

10.1 Term. The Agreement will become effective on the Effective Date of the Order Form first executed by the Parties and will continue in full force and effect until the expiration or termination of the last Order Form that is subject to this Partner Agreement.

10.2 Termination. Tiptop may terminate the Agreement without cause at any time by giving Partner notice. 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, Tiptop may suspend the Services terminate the Agreement in the event that (i) Tiptop discovers that Partner misrepresented, omitted, or falsified any information or documentation provided to Tiptop; (ii) in Tiptop’s reasonable discretion, the Services as provided hereunder could (A) damage or disparage the reputation or goodwill of Tiptop, its personnel, or the Services or (B) harm or cause a loss of business or revenue to Tiptop; (iii) Partner breaches, or Tiptop reasonably suspects that Partner has breached, any provision of the Agreement; (iv)in order to comply with Applicable Law; or (v) Tiptop has a reasonable suspicion of fraudulent transactions or other suspicious activity related to the Services. Tiptop will not be liable for any damages arising in connection with its termination or suspension of the Services pursuant to the foregoing.

10.3 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 Partner Agreement (or applicable Order Form). 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 Tiptop may continue to use Partner Marks to the extent reasonably necessary to complete all outstanding obligations to Customers related to the Services. Partner will immediately cease to represent itself as an Tiptop partner and cease its use of any of the Tiptop Marks.

(b) Upon request, and except as required by Applicable Law or, with respect to Tiptop, 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.

11. Miscellaneous.

11.1 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 Partner to the electronic mail address set forth in the Tiptop Service Terms, (b) sent via electronic mail by Tiptop to the electronic mail address submitted by Partner on the most current Order Form, or (c) captured in the Partner Portal or 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.

11.2 Applicable Law. Partner 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 Partner’s business, the marketing and offering of the Services, and Partner’s use of Tiptop IP. Tiptop will comply with Applicable Law applicable to its provision of the Services under this Agreement.

11.3 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.

11.4 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 Tiptop may assign the Agreement (whether by operation of law, merger or other combination) to an Affiliate or subsidiary without the prior consent of Partner. 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. Notwithstanding anything to the contrary in the Agreement, Partner must obtain Tiptop’s prior consent if Partner or a Partner Channel undergoes a change of majority ownership or control; provided, however, that such consent will not be required and Partner must promptly notify Tiptop in the event Partner or a Partner Channel undergoes a change of majority ownership or control to a Partner Affiliate.

11.5 No Third-Party Beneficiaries. Except as expressly set forth in the applicable Tiptop Service Terms, the Agreement is for the benefit of, and may be enforced only by, Partner and Tiptop 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. 

11.6 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.

11.7 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 ‎11.1 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, all references herein to days, months, quarters, or years shall be deemed references to calendar days, calendar months, calendar quarters, or calendar years. 

11.8 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.

11.9 Entire Agreement. The Agreement (and any schedules, exhibits, annexes or similar agreements attached or referenced herein and therein), including the Tiptop Service Terms and Order Forms (and any attachments or references therein), constitute 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. Unless otherwise stated in the Agreement with respect to a specific provision, any conflicts between provisions in the Agreement will be resolved in accordance with the following descending order of precedence: the provisions of the Tiptop Service Terms, the provisions of any materials referenced in the Tiptop Service Terms, the provisions of this Partner Agreement, and the provisions of the applicable Order Form. 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.

11.10 Amendments and Severability. Tiptop may amend the Agreement effective upon 30 days’ prior notice to Partner. Partner’s continued use of the Services beyond the effective date of the amendment constitutes acceptance thereof. 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.

11.11 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 Tiptop 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. Sections ‎2 and 4-11 herein, as well as any other provision of the Agreement that contemplates performance or compliance subsequent to termination or expiration of the Agreement and those sections that survive in accordance with the terms of the Tiptop Service Terms, will survive termination of the Agreement until all such obligations are completed; provided that with respect to Section ‎‎4 herein (Confidential Information and Data Security), such survival will expire on the third anniversary of the effective date of the termination or expiration of the Agreement.