2. Rho Service

3. Intellectual Property Rights

4. Account and Users

5. Maintenance and Service Changes

6. Collection, Use, Storage and Disclosure of Personal Information

7. Device Security

8. Prohibited Activities

9. Prohibited Users

10. Transactions

11. Your Relationships

12. Fees

13. Payment of Fees and Other Amounts - ACH Consent

14. Your Representations

15. Indemnification

16. Term and Termination

17. Confidentiality.

18. Limitation of Liability

19. Arbitration

20. General. 

21. Glossary

Rho Terms of Service

Welcome, and thank you for your interest in Under Technologies Inc, dba Rho Technologies (“Rho”, “we”, “our” or “us”) and our website at https://rho.co, along with our related websites, networks, applications, mobile applications, and other services provided by us hereunder (collectively, the “Rho Service”).  These terms of use are a legally binding agreement (the “Agreement”) between you (the business that has accepted this Agreement) and Rho regarding your use of the Rho Service.  Capitalized terms in this Agreement are defined in the glossary at the end of the Agreement.

The Rho Service is integrated with certain third party servicers, that we call Third Party Servicers.  Evolve Bank & Trust, Member FDIC (“Evolve”) is one of our Third Party Servicers. Deposits in the Rho Account are held by Evolve Bank and Trust and insured up to $250,000 by the FDIC. Deposits in the Rho Treasury Management Account are held by a network of over to 300 bank partners including PNC Bank and insured up to $250,000 per institution, per company.

Rho is not a bank. Rho works with federally-chartered partner banks to enable banking services.

By opening a deposit account through the Rho Service, you also agree to Evolve Bank & Trust’s Deposit Agreement (posted at https://synapsefi.com/evolve­bank­deposit­agreement), SynapseFI’s Terms of Service (posted at https://synapsefi.com/tos­evolve) and SynapseFI’s Privacy Policy (posted at https://synapsefi.com/privacy) (all three, collectively, the “Evolve Bank Agreement”).

PLEASE READ CAREFULLY.

BY OPTING TO ACCEPT THIS AGREEMENT OR BY USING THE RHO SERVICE YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND YOU AGREE TO BE BOUND BY THIS AGREEMENT, THE RHO PRIVACY POLICY (POSTED AT https://rho.co/privacy-policy) AND THE EVOLVE DEPOSIT AGREEMENT.  IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THIS AGREEMENT, THE RHO PRIVACY POLICY OR THE EVOLVE DEPOSIT AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE RHO SERVICE.  YOUR USE OF THE RHO SERVICE AND RHO’S PROVISION OF THE RHO SERVICE TO YOU CONSTITUTE AN AGREEMENT BY BOTH YOU AND RHO TO BE BOUND BY THIS AGREEMENT.

ARBITRATION NOTICE.

Except for certain kinds of disputes described in the Arbitration provision below, you agree that disputes arising under this Agreement will be resolved by binding individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND RHO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a single ARBITRATOR and NOT a judge or jury.  See the Arbitration provision below.

Rho Service

2. The Rho Service

Rho will provide the Rho Service to you for the term of this Agreement subject to the payment of applicable Fees and compliance with the terms of this Agreement.  As part of the Rho Service, Rho hereby grants to you a non-exclusive, non-transferable, non-assignable right to use the Rho Service, as per the terms of this Agreement.  You acknowledge that the Rho Service is a cloud-based hosted service and no copies of the Rho Service or Rho System will be delivered to you.  The Rho Service shall be used by you solely for your own purposes and Rho does not convey any right, title or interest in the Rho Service or Rho System to you.  Your right to use the Rho Service shall terminate upon any termination of this Agreement or any suspension of the supply of the Rho Service to you or to all users.

Intellectual Property Rights

3. Intellectual Property Rights

The Rho System, including its source and object codes, documentation (including all descriptive material concerning the functions and technical specifications of the Rho System, user manuals, technical manuals, and other materials issued to you), appearance, structure and organization, is a proprietary product of Rho and is protected by copyright and other laws.  Title to the Rho System, and any copy, update, modification or merged portion thereof, shall at all times remain with Rho.  You acknowledge that Rho expressly reserves the entire right, title and interest in and to the Rho System, and retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, and license to other licensees, the Rho System.  You shall not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or utilize any expression of the Rho System in other than object code form.  You shall not alter or otherwise modify the Rho System.  You shall not remove any trademarks, proprietary legends, or copyright notices from the Rho System, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or sublicense the Rho System in any manner.   Nothing in this Agreement shall confer or grant to you any Intellectual Property Rights in the Rho Service or Rho System. 

Account and Users

4. Account and Users

So long as you are not in breach of this Agreement, you shall be granted a unique and private Account accessible through the Service. The Account shall be a record of your Transactions and Fees.  Rho shall provide you with access codes for the Account.  You shall not disclose such codes or permit any third party to use them on penalty of forfeiting the whole of the Account.  You assume full responsibility for the use of your Account.  From time to time, you will be invited to enter certain preferences and specifications within the Account that will apply to the Rho Service; you assume exclusive responsibility for such selections even if they contain errors by you, or result in losses to you.  Any additional terms and conditions posted to the Site with respect to the Account or specific Rho Service preferences selected by you are incorporated herein by reference. 

An Admin User may be granted administrative rights in your Account, including the right to allow more than one individual User from your organization to access your Account.  Where there is more than one User in your Account, you are responsible for all acts and omissions of each individual User. You guarantee that each User shall comply with the terms of this Agreement.  Each reference to you in this Agreement shall refer to both you and each of your Users.

Except as required to deliver the Rho Service or as otherwise required by law, Rho shall not grant any third party access to your Account. You shall notify Rho by email to bank@rho.co immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.  This notification must be made to Rho by the means outlined below and confirmed receipt by Rho.  Rho may interrupt or refuse all access and any orders made using this password within one (1) business day following the receipt of the notification.

Maintenance and Service Changes

5. Maintenance and Service Charges

Rho shall use commercially reasonable efforts to ensure smooth operation of the Rho Service for the duration of this Agreement.  Rho shall not, however, have any liability whatsoever to you in the event of any failure or bugs in the Rho Service, or interruptions of the Rho Service.  When made aware either by you or otherwise, of any error, anomaly, malfunction or bug, Rho shall respond in the manner it determines to be appropriate, or decide to not respond, in its sole discretion.

During the term of the Agreement, Rho shall maintain, update or replace the Rho Service and the Site in such a manner as it determines to be appropriate.  Rho may, but has no duty to, provide new Rho Service versions for you to correct errors, improve, develop or adapt the existing version and adding new functions and features.

Rho does not have the obligation to provide any specific developments or error corrections in the Rho Service or any such future developments or corrections separately, even if specific developments are provided and used in connection with specific Rho Service. Rho reserves the right to modify Rho Service at its sole discretion, even if such modifications reduce the functionality of the Rho Services.

Collection, Use, Storage and Disclosure of Personal Information

6. Collection, Use, Storage and Disclosure of Personal Information

YOU HEREBY AUTHORIZE RHO TO, DIRECTLY OR THROUGH THIRD PARTIES, MAKE ANY INQUIRIES AND CONDUCT ANY INVESTIGATION TO VERIFY YOUR IDENTITY.

The Rho Service requires certain information concerning you, including but not limited to your name, address, phone number, email address, Bank Account information and other Third Party Servicer account information.  You represent that any information you provide to Rho shall be complete and accurate and you shall promptly correct any errors in the information provided to Rho.

You grant Rho the right to collect, store, use and disclose your Data for the limited purpose of providing the Rho Service and its integration with Third Party Servicer Services that you use, or wish to use.  To the extent that your Data includes data concerning third parties, you represent that you have obtained the necessary consents for Rho to collect, process, store such data hereunder from the relevant data subjects.  Your Data collected by Rho is subject to the Rho Privacy Policy, posted at the Site and incorporated herein by reference.  Subject to applicable law, where Rho is subject to a subpoena request for your Data, Rho shall provide you with an opportunity to contest the request, failing which Rho shall cooperate with the request.

You hereby consent for Rho to obtain from Evolve, and each other Third Party Servicer whose services are integrated with your Rho Service Account, information concerning the Bank Account and their respective services in order that such Data can be used by Rho to assist in the supply of the Rho Services.  Where required by Law, we will disclose your Data to law enforcement agencies.

Rho reserves the right to keep your Data for the term of this Agreement plus seven (7) years.

Device Security

7. Device Security

You shall use commercially reasonable efforts to secure your Data in your possession or under your control.  You assume exclusive responsibility for ensuring the security of your Device and the Data on it.  You shall use a password or other security device to lock your Device.  You shall immediately notify Rho of any actual or suspected breaches in the security of Data, whether in your Devices or otherwise.  Rho is not liable for the operation or failure of your Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers.  You will not operate your Device in a manner that does not meet the applicable security requirements of Third Party Servicers.

Prohibited Activities

8. Prohibited Activities

It is forbidden for you to use the Rho Service to, directly or indirectly, knowingly or unknowingly assist in any Prohibited Activity or any illegal activity.

Prohibited Users

9. Prohibited Users

The Rho Service may not be used for individual consumer use.  You must be a business, charitable organization or not-for-profit organization to be party to this Agreement and access to Rho Service.

The following Persons are prohibited from using the Rho Service: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have procured services from Rho and have been terminated for cause by Rho; and (iv) individual consumers.

Transactions

a)         General

You shall use the Rho Service only for good faith Transactions and not for Transactions on behalf of third parties.  You shall review Transactions and promptly notify Rho of any irregularities or actual or suspected unauthorized activity.  You shall provide Rho and, where applicable, the Third Party Servicer, with all of your Data that is necessary for Rho to carry out a Transaction. Rho does not have the ability to undo Transactions. Depending on the availability of such services from your Third Party Servicer, Transactions may include, for example, the transfer of Data from you to your Third Party Servicer to initiate an outgoing electronic funds transfer payment or a wire transfer, each from your Bank Account or other account held by you with the Third Party Servicer pursuant to your applicable Third Party Servicer Agreement. You hereby grant Rho permission to not deliver Transaction Data to a Third Party Servicer where such Data may result, as determined by Rho or the Third Party Servicer in their sole discretion, in a payment transaction for which your Bank Account or other Third Party Servicer account contains insufficient funds.

Rho offers no guarantee as to the financial results of any Transaction, all of which are the sole and exclusive responsibility of your Third Party Servicers.  Rho makes no representation or warranty as to the accuracy or completeness of any Transaction or other Data all of which is your responsibility.  Rho is under no obligation to monitor the content of Data to, for example, detect fraud by you, Third Party Servicers or other third parties. While certain specific Transaction types are discussed below, there may be other forms of Transactions available from time to time.

b)         Account Aggregation Disclosure

Your use of the automated bank account feeds (“Account Aggregation Services”) in connection with opening your Evolve Bank Account is subject to the following terms.

(i)        Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other websites, including financial institutions. You will not misrepresent your identity or your account information. You represent that you have all the rights to provide such information and license the Content, as defined below. You agree to keep your account information up to date.

(ii)       License. You are licensing to Under Technologies, Inc. and its service providers, including Synapse, any information, data, passwords, materials or other content (collectively, “Content”) you provide through the Account Aggregation Services. You license the Content to the Platform and its service providers to access, use and store the Content. Platform and its service provider may use, display, distribute and reproduce the information obtained via the Account Aggregation Services exclusively for the purposes of delivering Under Technologies, Inc. and banking services to you. You may revoke this license at any time by emailing at  bank@rho.co

(iii)      Third-Party Accounts. By using the Account Aggregation Services, you authorize Under Technologies, Inc. and its service providers to access third-party sites designated by you, on your behalf, to retrieve information requested by you, and to register for accounts/request loans. For all purposes hereof, you grant Platform and its services providers a limited power of attorney, and you hereby appoint Platform and its service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, access third-party internet sites, servers or documents, retrieve information, and use your information exclusively for the purposes of delivering Under Technologies,Inc. and banking services to you. You understand that the Platform and its service providers may access your third-party accounts any time and obtain access to the information in such third-party accounts at any time while you have an account with Under Technologies, Inc..

c)         Card Transactions

Where permitted by Rho in your Account, Rho shall permit Card Transactions.  Each Card Transaction consists of (i) you indicating a payment you wish to make to a Merchant using a Card; (ii) an Issuer issuing a Card; (iii) Rho loading its own funds onto the Card; (iv) Rho providing the Card number for you to use in making a payment to a Merchant thereby creating a claim for such amount payable by you to Rho; and (v) you reimbursing Rho for the amount Rho loaded into the Card. At no time in a Card Transaction are you at risk of loss of your funds.

d)         Limitations

In order to reduce the risk of Rho Services or Third Party Servicer Services being used for money laundering, the financing of terrorism or other Prohibited Activity or otherwise in breach hereof and to limit Rho and Third Party Servicer exposure to excessive security, financial or reputational risk, Rho reserves the right to impose limits on Transactions and other elements of the Rho Service at its sole discretion.

e)         Errors

In the event of an error in a Transaction, you shall immediately notify Rho of the error via bank@rho.co.  Rho shall use commercially reasonable efforts to investigate the error, but makes no representation as to its ability to correct the error.  You shall provide Rho with any information necessary to investigate an error in a Transaction.  Transactions will often result in payments from your Bank Account or in respect of other Third Party Servicer accounts; the availability of error correction or resolution will vary from one Third Party Servicer to another. Some payment transactions, such as wire transfers, are irreversible, so you agree to exercise extreme caution when initiating any Transaction.

Your Relationships

Your Relationships

Rho is not party any of your Relationships, being the relationships that give rise to Transactions or your other use of the Rho Service.  You are solely responsible for any Transactions placed through the use of the Rho Service or other use of the Rho Service.  Rho shall not be liable for any errors caused by you or interruptions of any hosting company computer systems or communication lines.  Where your Relationship or a Transaction relates to the purchase or sale of Product, Rho has no liability with respect to Product or any third party supplier thereof.

Fees

Fees

The Rho Service is available to you subject to your payment of Fees.  Fees are disclosed on the Site, which disclosure is incorporated herein by reference. Rho may make promotional Fee offers that will not necessarily apply to you.  Fees vary depending on the Rho Service you select.  You shall pay Fees and other amounts owing to Rho no later than fifteen (15) days of the date of the invoice which Rho provides to you.  All Fees and costs are non-refundable.  Should you not pay sums owed to Rho by the agreed upon date, Rho reserves the right to suspend or terminate the Rho Service.  In addition to suspension and termination rights, Rho reserves the right to charge interest from the payment due date at the lower of 18% per annum, or the maximum amount allowed by law.

Fees are exclusive of all taxes, levies or duties imposed by any national, federal, state or local taxing authorities.  You shall be solely responsible for payment of all such taxes.  Should Rho be required to pay any such taxes, you shall reimburse Rho for all tax payments in full, within thirty (30) days of receipt of an invoice therefore.

Third Party Servicers charge their own fees for Third Party Servicer Services; unless otherwise indicated on the Site, Fees hereunder do not include amounts you may owe Third Party Servicers under Third Party Servicer Agreements.

Payment of Fees and Other Amounts - ACH Consent

Payment of Fees and Other Amounts - ACH Consent

Fees shall be paid as per the payment methods that are acceptable to Rho and integrated with the Account.  You grant Rho the right to debit or ACH the amount of the Fees, plus other amounts due under this Agreement from your Bank Account(s) as per the ACH Consent (set out below).  You agree to maintain sufficient funds in your Bank Account to cover the ACH transactions hereunder.

The following is the “ACH Consent”: You desire to effect settlement of credits and debits from your Bank Account(s) by means of ACH and/or wire transfer in conjunction with the Rho Service for you by Rho.  In accordance with this desire, you authorize Rho and/or its affiliates to initiate debit and credit entries to your Bank Account (the details of which are provided by you through the Account or by other means acceptable to Rho).  You shall maintain sufficient funds in your Bank Account to cover such debit transactions.  You state that you have the authority to agree to such transactions and that your Bank Account indicated is a valid and legitimate account for the handling of these transactions.  This authority is to remain in effect until Rho receives written notice from you revoking it.  This authorization is for the payment of Fees or any other sums owed to Rho.  You certify that the appropriate authorizations are in place to allow you to authorize this method of settlement.  All changes to the identification of your Bank Account under this authorization must be made in writing in accordance with the Agreement.  You understand that if the information supplied as to the ABA Routing Number and Account Number of the your Bank Account is incorrect, and funds are incorrectly deposited, Rho will attempt to assist you in the recovery of such funds but has no liability as to restitution of the same.  Rho’s assistance in recovering the funds, where available, will be billed to you at Rho’s current hourly rate for such work.  You acknowledge that the origination of ACH transactions to the your Bank Account must comply with the provisions of U.S. law.

Your Representations

Your Representations

You hereby represent, warrant and covenant to Rho that:

a)    Legal Authority.

You have the legal authority to bind your organization to this Agreement and to perform hereunder and under each Third Party Servicer Agreement to which you are a party.  You are the exclusive owner of the Account and are not operating the Account on behalf of any third party.

b)    Legal Capacity. 

You gave the legal capacity to enter into this Agreement and perform your obligations hereunder.

c)     Business Use Only.    

You are a business, charitable organization or not-for-profit organization and shall use the Rho Service for only business purposes and not for individual consumer purposes.

d)    Notice of Defects. 

You shall immediately advise Rho of defects in the Rho Services or any claim or threatened claim against Rho.  You shall immediately notify Rho of any defects in a Product for which a Third Party Servicer has been used as a payment method;

e)    Compliance with Laws. 

Your use of the Rho Services conforms to all applicable laws and the terms of this Agreement.

f)     Rho Not Liable for Product.   

As between you and Rho, you assume all responsibilities and liabilities associated with any Product that you purchase or sell and your Relationships.

g)    Latest Version Only.  

You shall promptly install any and all upgrades, bug fixes and other improvements to the Rho Service, such as they may be from time to time.

h) Legal Counsel.

You have had the opportunity to review this Agreement with legal counsel prior to accepting the terms hereof.

Indemnification

You shall defend, indemnify and hold harmless Rho, its directors, officers, employees, agents, assigns, processors, suppliers and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action, costs and expenses (including attorneys’ fees and expenses) arising out of or resulting from: (i) your performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by you; (ii) the negligent or wilful acts or omissions of you or your Users, agents and/or employees; (iii) any statements, claims, representations or warranties made by you or your Users, agents and/or employees, relating to the Products or any other matter; (iv) your provision or, or failure to provide Product; (v) any of your Relationships; (vi) your acts or omissions; (vii) you relationship with any Third Party Servicers or any other third party; (viii) any and all tax liabilities associated with Transactions, the sale of Product, regardless of which party has a legal duty to collect and remit the same; (ix) use of the Account; (x) any vendor to you; (xi) attorneys’ fees and other costs and expenses paid or incurred by Rho in the enforcement of this Agreement, or in collecting any amounts due from you hereunder; (xii) responding to requests for Data or your information by third parties including but not limited to subpoenas or court orders for the same; and (xiii) Transactions or financial transactions of you, Third Party Servicers or other third parties.

Term and Termination

Term and Termination

a)    Term. 

The term of this Agreement shall start on the earlier of the date that you have accepted the terms of this Agreement via the Site, or your use of Rho Services, and end thirty (30) days thereafter, after which it shall be renewed automatically for additional consecutive thirty (30) day periods, unless earlier terminated in accordance with the terms hereof.

b)    Termination.  

You can terminate this Agreement at any time by closing your Account or by sending notice to Rho that you wish to terminate this Agreement.  Rho can terminate or suspend performance hereunder at any time for no reason or for any reason without prior notice or consent to you.  Rho also reserves the right to suspend supply of the Rho Service or terminate this Agreement without prior notice to you in the event that Rho determines, in its sole discretion, that continuing to perform hereunder would expose Rho to excessive security, financial or reputational risk.

c)     Procedure upon Termination.

Upon any termination of this Agreement, you shall no longer be entitled to use the Account, Rho Service or the Site.  Upon request by Rho at termination, you shall either destroy or return all Rho Data and documentation related to the Site and Service, in all forms, both complete and partial, in all media.  All provisions regarding indemnification, representations, warranties, liability and limits thereon and Confidential Information shall survive termination.  Termination of this Agreement shall not relieve you of your obligations to pay accrued Fees or other liabilities of yours hereunder.

d)    Discontinuance.         

Rho reserves the right to suspend or discontinue the Service at any time at its sole discretion without liability or penalty hereunder.

Confidentiality.

Confidentiality

Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement.  All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein.  Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information.  Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement.  Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.  Nothing in this Agreement shall prevent Rho from collecting, storing, using and disclosing you Confidential Information for the purpose of providing the Rho Service.

For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services or clients.  Confidential Information shall include lists, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law.  Without limitation, the terms of this Agreement shall be Confidential Information of Rho only.

Limitation of Liability

Limitation of Liability

THE RHO SERVICE IS PROVIDED ON AN "AS-IS", "AS AVAILABLE", AND “WITH ALL FAULTS” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RHO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF USABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE RHO SERVICE PROVIDED BY RHO OR THAT THE OPERATION OF THE RHO SERVICE WILL BE INTERRUPTION OR ERROR FREE OR WITHOUT VIRUSES OR OTHER HARMFUL MATERIALS. RHO DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE RHO SERVICE.  ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE RHO SERVICE IS AT USER’S OWN DISCRETION AND RISK.  YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE RHO SERVICE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, RHO, ITS SUPPLIERS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF RHO HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.  EXCEPT AS REQUIRED BY LAW OR PURSUANT TO THE ARBITRATION PROVISION BELOW, IN NO EVENT SHALL RHO’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO YOU, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT (AND ALL OTHER AGREEMENTS BETWEEN RHO AND YOU) EXCEED THE FEES ACTUALLY PAID TO RHO BY YOU DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

RHO IS NOT A BANK, FINANCIAL INSTITUTION OR FINANCIAL ADVISORY SERVICE. RHO DOES NOT PROVIDE FINANCIAL ADVICE. YOU SHALL SEEK THE ADVICE OF A PROFESSIONAL FINANCIAL ADVISOR (E.G. YOUR BANKER) IF YOU ARE UNCERTAIN ABOUT ANY OF YOUR FINANCIAL TRANSACTIONS.

Rho shall use its commercially reasonable efforts to perform its obligations hereunder, however, Rho, its Affiliates, agents or licensors shall not be liable for any loss resulting from the activities of you, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Rho’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment.  Rho’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this Agreement by you. Rho does not represent or warrant that the Rho Service suits your needs.  In addition, in the event of any failure of the Rho Service, or in the event Rho otherwise defaults under any provision of this Agreement, then your sole and exclusive remedy shall be termination of this Agreement and, to the maximum extent permitted under applicable law, you hereby waive and relinquish any and all other rights or remedies it may have at law or in equity.

Arbitration

Arbitration

a)    Generally.

Any dispute arising in connection with this Agreement will be resolved by binding arbitration whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND RHO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

b)   Exceptions.

Notwithstanding the foregoing, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

c)     Arbitrator.

Any arbitration between you and Rho will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Rho. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.  There shall be a single arbitrator who shall be an attorney practicing commercial law in New York.  The arbitration shall take place in English.

d)   Notice of Arbitration; Process.

A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a Rho physical address, then by electronic mail (“Notice of Arbitration”). Rho’s address for Notice is: Under Technologies Inc, dba Rho Technologies, 203 Lafayette Street, C306 , New York, NY 10012. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Rho may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Rho must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Rho in settlement of the dispute prior to the award, Rho will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

e)    Arbitration Fees.

If you commence arbitration in accordance with these Terms, Rho will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Rho for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

f)    No Class Actions.

YOU AND RHO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Rho agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

g)    Modifications to this Arbitration Provision.

If Rho makes any future change to this arbitration provision, other than a change to Rho’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Rho’s address for Notice of Arbitration, in which case your account with Rho will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

General. 

a)    Notices and Electronic Communication.       

You consent to communication under this Agreement by electronic means.  Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested or other recognized courier, facsimile or by email: to Rho at the address set forth above; to you at the address provided therefore upon completion of the Application or registration with the Site; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing.  Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally or by email, or on the fifth (5th) day following mailing or emailing unless there is a disruption of any kind of postal service.

b)    Independent Contractor. 

Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent.  Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or as agents or employees of one another or as authorizing either party to obligate the other in any manner.

c)     On-Line or Written Formation of Contract.  

By acceptance of the terms hereof on-line by you or by execution of a written acceptance of the terms hereof by you, this Agreement together with any supplemental agreements and appendices constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the party making the waiver.

d)    Amendments.

From time to time Rho will post amendments or revisions to this Agreement, including, without limitation, amendments to Fees, on the Site.  Rho will provide notice of these amendments or revisions to you through the Account or the Site.  If the amendment or revision is required in order for Rho and the Rho Service to remain in compliance with applicable laws or regulations, then the amendment or revision shall take effect as of when it is posted to the Site.  If, on the other hand, the amendment or revision is not required under law, and you do not close your Account within thirty (30) days of notice on the Site of the amendment or revision, then you shall be deemed to have accepted the amendment or revision.  Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Rho may reasonably prescribe.  Notwithstanding the foregoing, Rho reserves the right, without any prior notice or consent, to change the method of access to Rho Service or the Account.

e)    Non-Disparagement. 

Neither party shall publish negative statements concerning the other party during the Term of this Agreement.  You shall not use the names, logos or marks of Rho other than as expressly permitted by Rho.

f)     Assignment.   

You may not assign this Agreement, or any rights hereunder, directly or by operation of Law, without the prior written consent of Rho which consent may be withheld for any reason, at Rho's sole discretion.  Rho may assign any of its rights or obligations hereunder without prior notice to or consent from you.  Any assignment hereof not in accordance with this provision shall be null and void.

g)    Successors.    

This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

h)    Remedies.      

All remedies of either party hereunder are cumulative and may be exercised concurrently or separately.  The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy.  No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.

i)      Governing Law.          

This Agreement is governed by the laws of the State of New York without regard to conflict of law principles. You and Rho submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under this Agreement. The Rho Service operates from the Rho offices in New York, New York and Rho makes no representation that the Rho Service is appropriate or available for use in other locations.

j)      Claims. 

No legal action of any kind arising out of this Agreement may be brought by you against Rho if the event giving rise to said legal action occurred more than one (1) year before the legal action is commenced. To the extent permitted by law, the parties agree to waive their rights to a jury trial or class action.

k)     Third Party Beneficiaries.      

Each Third Party Servicer with whom you have a Third Party Servicer Agreement is a third party beneficiary under this Agreement entitled to enforce the rights of Rho versus you.

l)      Publicity.

Any publicity by either party, including but not limited to press releases, shall be subject to the prior written approval of both parties. Rho may include you in its public list of customers. you authorize Rho to display its logo and include “Powered by Rho” on your user interface to the Rho Service.

m)  Support.

We are under no obligation to provide support for the Rho Service. Questions, comments or requests submitted to Rho customer service department shall be handled via the contact information for Rho provided on the Site.

n)    Suggestions.

If you choose to provide input and suggestions regarding the Rho Service (“Feedback”), you hereby grant Rho an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Rho Service and create other products and services.

o)    Severability.   

The provisions of this Agreement are severable, and if any part of it is found to be unenforceable, the other portions shall remain fully valid and enforceable. In the event that any provision of this Agreement is not enforceable in accordance with its terms, such provision shall be reformed to make such provision enforceable in a manner that provides Rho the maximum rights and protection permitted at law.

p)    Whole Agreement.    

References to “this Agreement” include any Account Fees, schedules, supplementary agreements, addendum, appendices and amendments and any other agreements, schedules appendices and amendments promulgated by Rho and furnished to you from time to time.  This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.

q)    Contact Information.

The Rho Service is offered by Under Technologies Inc, dba Rho Technologies, located at 203 Lafayette Street, C306, New York, NY 10012. You may contact us by sending correspondence to that address or by emailing us at bank@rho.co.  Bank services are provided by Evolve Bank & Trust, Member FDIC, through our banking software provider, SynapseFI, and other FDIC insured institutions. To report a complaint relating to the bank services, email help@synapsefi.com.

r)    Messages. 

You may be able to send messages to others through certain functionality on the Rho Service. You represent and warrant that: (i) you will only send messages to others who have given you their express consent to receive messages; (ii) you, and only you, are responsible for sending messages and Rho merely acts as a Data transfer service; and (iii) you will indemnify and hold Rho harmless from any and all claims arising out of your messages.  If a recipient of messages you send requests that we prevent you from sending additional messages to them through the Rho Service, then we will abide by such recipient’s request and block you (and other users of the Rho Service) from sending messages to such persons.

s)    Notice to California

Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Rho Service or to receive further information regarding use of the Rho Service.

t)     Notice for Apple Users.         

This paragraph applies only to the extent you are using our mobile application on an iOS device. You acknowledge that this Agreement is between you and Rho only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Rho Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Rho Service. If the Rho Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Rho Service. Apple is not responsible for addressing any claims by you or any third party relating to the Rho Service or your possession and/or use of the Rho Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Rho Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Rho Service and/or your possession and use of the Rho Service infringes a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Rho Service. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Glossary

Glossary

The following terms shall have the meanings indicated below:

“Account” means an account made available to you through which you can transmit instructions or receive information in relation to the Rho Service;

"ACH” means Automated Clearing House payment transaction;

“Admin User” means a User that you have authorized to make Rho Service selection preferences on your behalf, activate and deactivate other Users and exercise administrative privileges in your Account;

“Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest.

“Application” means the paper or online application completed by you when applying for the Rho Service all of which is incorporated herein by reference;

“Bank Account” means your account, if any, with Evolve or another Third Party Servicer;

“Card Transaction” means: (A) Rho (i) causing a Card to be issued by an Issuer; (ii) Rho using its own funds to load such Card with Transaction funds; and (iii) permitting you to use the Card to complete a payment Transaction with a Merchant; and (B) after the Merchant has processed the Transaction, you reimbursing Rho for the amount thereof from your Bank Account or otherwise;

“Card” means (i) a credit or debit card in the form issued under license from Visa, MasterCard; or (ii) any other valid credit card, charge card or debit card accepted as a method of payment by Merchant with Company's prior written approval;

“Data” means your Data or Rho Data;

“Fees” means those amounts for which yous are liable to pay in consideration of the Rho Service posted on the Site, such as they are from time to time.

“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;

“Issuer” means a member of a Payment Network that is in the business of issuing Cards;

“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction;

"MasterCard” means MasterCard International, Inc.;

“Merchant” means a Third Party Servicer that is a merchant offering to sell you goods or provide you with services for which you wish to make a payment;

“Payment Network” means any of Visa, MasterCard or any other valid credit card, charge card or debit card accepted as a method of payment by a Merchant or through which an Issuer issues Cards;

“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;

“Product" means any product or service for sale or provided by you or for which a Third Party Servicer is used to make payment or for which Rho Service is used to assist in a payment;

“Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following any act that is illegal in the United States or in the jurisdiction where the person carrying out the activity is resident, domiciled or located; bath salts and herbals; bill payment services; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses including lead generation businesses; infomercial sales; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to:  designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Rho Service as a means to transfer funds between bank accounts held in the same name; using the Rho Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Rho Service in a manner that Rho or any payment card network reasonably believes to be an abuse of the payment card system or a violation of payment card network rules; using the Rho Service in any manner that could damage, disable, overburden, or impair Rho including without limitation, using the services in an automated manner; using the Rho Service in violation of the terms of this Agreement, as reasonably determined by Rho; using the Rho Service that in any way assists others in violation of any law, statute or ordinance; using the Rho Service to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs; using the services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Rho Service to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about others, registered recipients, or third parties without their consent; using the Rho Service to intentionally interfere with another person’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; using the Rho Service to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Rho Service to send or receive what Rho considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Rho Service while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or weapons including replicas and collectible items; weight loss programs; wire transfer money orders;

“Rho Data” means information concerning Rho Service or provided to you by Rho through the Account or otherwise;

"Rho Privacy Policy” means the privacy policy of Rho posted at https://rho.co/privacy-policy, such as it is from time to time.

“Rho Service” means our Site, along with our related websites, networks, applications, mobile applications, and other services provided by us hereunder a service for businesses including (i) the secure communication of Data between you, Third Party Servicers and Rho; (ii) the Card Transactions; and (iii) such other services as are available to you through the Account from time to time;

“Rho System” means a cloud-based system operated by Rho that allows you to access your Account and initiate Transactions;

“Rho”, “Under Technologies, Inc.”, “Platform”, “we”, “our” or “us” means Under Technologies, Inc. dba Rho Technologies, a company located at 203 Lafayette Stree, C306 New York, NY 10014 USA;

“Rules” means the rules andregulations of Payment Networks including those of Visa (available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf) MasterCard (available here https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html);

“Site” means https://rho.co or such other sites as Rho indicates are engaged in the supply of the Service.

“Third Party Servicer Agreement” means an agreement between you and a Third Party Servicer concerning the supply of Third Party Rho Service.  The Evolve Bank Agreement is a Third Party Servicer Agreement;

“Third Party Servicer Service” means the services of Third Party Servicers pursuant to Third Party Servicer Agreements, such as, for example, banking services from Evolve;

“Third Party Servicer” means a party to a Third Party Servicer Agreement with you, such as, for example Evolve or an Issuer;

“Transaction” means (i) sending or attempted sending of Data, by way of the Rho Service, between any of you, Rho and a Third Party Servicer; or (ii) a Card Transaction;

“Visa” means Visa U.S.A., Inc. or Visa International, Inc.;

“User” means an individual user of your Account for the Rho Services;

“you” means the business that has accepted this Agreement, as identified in an Application, on the Site, in the Account or by other means acceptable to Rho;

“your Data” means any and all non-public personal information of yours related to Transactions, such as for example, Card information;

“your Deposit Account” means a bank account designated by the you in the Application, through the Account as the account form which Fees can be debited;

“your Relationship” means the agreement or other relationship between you and a Third Party Servicer or other third party that gives rise to you wishing to use the Rho Service and carry out Transactions;

“your Device” means computer system, tablet or phone used by you to manage Data or your business;

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