Terms

Last Updated: September 29, 2022

Please read these Terms and Conditions (the “Terms”) and our Privacy Policy (https://www.zitti.com/privacy-policy) (“Privacy Policy”) carefully because they govern your use of inventory management and trade finance services offered by Zitti, Inc. (“Zitti”) or your use of Zitti’s vendor payment platform (collectively, the “Services”).  

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1. AGREEMENT TO THE TERMS.  By using the Services, you agree to be bound by these Terms.  If you do not agree to be bound by these Terms, you should not use the Services.  If you are accessing and using the Services on behalf of a company (such as an employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms.  
2. PRIVACY POLICY.  Please review our Privacy Policy, which also governs your Use (as defined below) of the Services, for information on how we collect, use and share your information.
3. SERVICES; ACCESS AND USE.

1. Services.  Subject to the terms and conditions of these Terms, Zitti hereby grants you a worldwide, limited, non-exclusive, non-transferable (except in compliance with Section 14(f)) non-sublicensable right to use, access and/or operate the Services in accordance with these Terms and the Documentation (as defined below) (“Use”) the Services during the Term, solely for your internal business purposes subject to any limits, volume or other measurement or conditions of permitted Use for the Services forth in the applicable order form, including any limits on the number of Authorized Users (as defined below) permitted to Use the Services (the “Licensed Volume”).
2. Use Restrictions.  You will not at any time and will not permit any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity (each, a “Person”) (including, without limitation, Authorized Users) to, directly or indirectly: (i) Use the Services in any manner beyond the scope of rights expressly granted in these Terms; (ii) modify or create derivative works of the Services or any accompanying documentation (the “Documentation”), in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the Services to any other Person, or otherwise allow any Person to Use the Services for any purpose other than in accordance with these Terms; (v) Use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Zitti for use expressly for such purposes; or (viii) Use the Services, Documentation or any other Zitti Confidential Information (as defined below) for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
3. Authorized Users.  You will not allow any Person other than an employee or contractor whom (i) you have authorized to Use the Services for purposes of operating and maintaining the Services; and (ii) signs up for an account to Use the Services in accordance with Zitti’s then-current account registration procedures (each, an “Authorized User”) to Use the Services.  You may permit Authorized Users to Use the Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) you ensure each Authorized User complies with all applicable terms and conditions of these Terms and you are responsible for acts or omissions by Authorized Users in connection with their Use of the Services.  You will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Zitti if you know or reasonably suspect that any user name and/or password has been compromised.  Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created.
4.  Third-Party Services.  Certain features and functionalities within the Services may allow you and your Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services.  Zitti does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.  You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Services.
5. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Zitti reserves and, as between the parties will solely own, the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services or any the implementation and/or other professional services, if any, to be provided by Zitti to you as set forth in the relevant order form (“Professional Services”), Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing (collectively, “Zitti IP”) and all rights, title and interest in and to the Zitti IP.  To the extent ownership of any rights in any Zitti IP vests in you, such rights are hereby automatically assigned by you to Zitti.  No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 
6. Feedback.  From time-to-time you or your Authorized Users may provide Zitti with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”).  You hereby grant Zitti a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Zitti’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
7. Fraud or Suspicious Activity.  Without limiting any other provision of these Terms, or our rights or remedies under these Terms or applicable law, if you or your Authorized Users attempts to defraud, or attempts to interfere with the fair operation of the Services (such as, by way of example only, by providing artificial, false or misleading information), we reserve the right to do any or all of the following, in our sole discretion: (i) remove any or all of your content from the Services; (ii) cancel any or all of the your pending Transactions on the Services, and cancel, reverse or charge back any other purchases by you that we determine, in our sole discretion, to be fraudulent or in violation of these Terms; (iii) place limits on your purchasing privileges; (v) charge you for costs, expenses and fees incurred by Zitti as a result of your action or inaction, including refunds to a vendor; and (vi) suspend or terminate your account.  For clarity, if we cancel or reverse a Transaction pursuant to this Section 3(g) and you are a customer, you will have no rights to products concerning the cancelled or reversed Transaction.  You agree to cooperate in any investigation conducted by Zitti, as reasonably requested to you.

1. FEES, PAYMENT AND ZITTI INVENTORY FINANCING.

1. Fees.  If you are a customer, you will pay Zitti the non-refundable fees set forth in the relevant order form in accordance with the terms therein (“Fees”) and without offset or deduction.  Zitti reserves the right to change the Fees or applicable charges and to institute new charges and Fees , upon sixty (60) days’ prior notice to you (which may be sent by email).  Except as otherwise provided in the relevant order form, Zitti will issue monthly invoices to customer during the Term, and you will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.  If you have signed up for automatic billing, Zitti will charge your selected payment method (such as a credit card, debit card, gift card/code, or other method available in your home country) for any Fees on the applicable payment date, including any applicable taxes.  If Zitti cannot charge customer’s selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and Zitti will attempt to charge the payment method again as you may update its payment method information.  In accordance with applicable law, Zitti may update information regarding your selected payment method if such information is provided by your financial institution.
2. Zitti may require payment of a processing/transaction fee but is otherwise commission-free.  You agree to pay such fees as part of the purchase of products via the Services (“Transaction”).  When you make a Transaction, you expressly authorize us (or our third-party payment processor) to charge you for such Transaction.  We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”).  You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information.  When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges).  You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).  By initiating a Transaction, you agree to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to you.  All payments for Transactions are non-refundable and non-transferable by Zitti except as expressly provided in these Terms.  All fees and applicable taxes, if any, are payable in United States dollars.
3. Payments.  Payments due to Zitti under these Terms must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Zitti or such other payment method mutually agreed by the parties.  All payments are non-refundable and neither party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under these Terms.  If you fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Zitti may suspend Services until all payments are made in full.  You will reimburse Zitti for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
4. Payment Processor.  We use third-party payment processors, Balance Payments Inc and Dwolla, Inc. (“Dwolla”), to facilitate Transaction payments.  Your use of Balance Payments Inc’s services are governed by Balance Payments Inc’s account agreement and other such terms available at https://www.getbalance.com/legal/end-user-terms (“Payment Processor Terms”), and not these Terms.  You agree to comply with these Payment Processor Terms. Your use of Dwolla’s services are governed by Dwolla’s Account Terms of Service and Privacy Policy at https://www.dwolla.com/legal/dwolla-account-terms-of-service/ (“Payment Service Provider Terms”), in addition to these Terms, and you agree to comply with such Payment Service Provider Terms.

1. If you use Zitti solely as a vendor to receive funds and do not open an account with Dwolla, you expressly authorize the following:

1. Dwolla to originate credit transfers to your financial institution account; and
2. Zitti to collect and share with Dwolla your personal information including full name, email address, and financial information. Please note that you are responsible for the accuracy and completeness of such information.

1. (ii) If you use Zitti as a restaurant or a vendor (not solely to receive funds), you must open a "Dwolla Account" provided by Dwolla and must accept the Dwolla’s Account  Terms of Service and Privacy Policy at https://www.dwolla.com/legal/dwolla-account-terms-of-service/. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account and authorize Zitti to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information. Please note that you are responsible for the accuracy and completeness of such information. You understand that you will access and manage your Dwolla Account through Zitti’s application, and that any Dwolla account notifications will be sent by Zitti and not Dwolla. If you have any questions concerning your Dwolla Account activity as it relates to Zitti, please reach out to our user support team at contact@zitti.com.
2. Zitti Inventory Financing; Relationship Between the Parties.  

1. If you are a customer, Zitti may support you by providing inventory financing as set forth in your order form(s) and Zitti Trade Finance Supplemental Terms (“Zitti Inventory Financing”). You will be able to request, monitor, and manage your ability to receive Zitti Inventory Financing via Zitti’s online platform (“Dashboard”).  IF YOU USE ZITTI INVENTORY FINANCINGS IN TRANSACTIONS, ZITTI MAY OBTAIN LEGAL “FLASH TITLE” OR BRIEF LEGAL OWNERSHIP OF PRODUCTS FROM A VENDOR AND PASS THIS TITLE TO YOU.  NOTWITHSTANDING THE FOREGOING, ZITTI IS NOT RESPONSIBLE FOR TAKING PHYSICAL POSSESSION OF ANY PRODUCT ORDERED BY YOU.  ZITTI IS NOT A LENDER. ZITTI IS NOT A BANK, PAYMENT INSTITUTION, OR MONEY SERVICES BUSINESS. ZITTI SOLELY PROVIDES A SOFTWARE PLATORM AND SERVICES RELATING TO INVENTORY MANAGEMENT AND RELATED TRADE FINANCE SUPPORT, AS SET FORTH IN THESE TERMS. Zitti Inventory Financings are offered at Zitti’s sole discretion at interest rates and trade finance terms subject to applicable laws. 
2. Zitti may provide you access to a number of financial tools (such as the Zitti Inventory Financing Calculator) and other personalized business tools.  These tools are solely for customer’s guidance and non-commercial use.  ZITTI IS NOT RESPONSIBLE FOR ANY LIABILTY ARISING FROM YOUR RELIANCE ON SUCH TOOLS.
3. If you are a customer, all payments to be made under these Terms shall be made in full (pursuant to the applicable order form) without set-off or counterclaim and free and clear of and without deduction of or withholding for or on account of any tax of any nature now or subsequently imposed unless required by law. 

1. Taxes.  You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Zitti hereunder, other than any taxes imposed on Zitti’s income.  Without limiting the foregoing, in the event that you are required to deduct or withhold any taxes from the amounts payable to Zitti hereunder, you will pay an additional amount, so that Zitti receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

1. CONFIDENTIAL INFORMATION.

1. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with these Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  For clarity, the Services and the Documentation will be deemed Confidential Information of Zitti.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.  Without limiting the foregoing, nothing in these Terms will limit or restrict Zitti’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Zitti or its personnel acquire or obtain in connection with the performance of Zitti’s obligations hereunder.
2. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these Terms; provided that Zitti may use and modify your Confidential Information in deidentified form for purposes of developing and deriving any data that is derived or aggregated in deidentified form from (i) any User Materials (as defined below), in anonymized form; or (ii) your and/or your Authorized Users’ Use of the Services, including, without limitation, any usage data or trends with respect to the Services and its component features and functionalities, in each case in anonymized form (collectively, “Aggregate Data”).  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. 
3. Each party’s obligations of non-disclosure with regard to Confidential Information will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
4. The terms and conditions of these Terms will constitute Confidential Information of each party but may be disclosed on a confidential basis to a party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. 

1. USER MATERIALS AND DATA.

1. Zitti acknowledges that, as between you and Zitti and except as set forth in Section 6(b), you own and retains all right, title and interest in and to all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of you or your Authorized Users through the Services or to Zitti in connection with your and your Authorized Users’ Use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Zitti and made available through or in connection with the Services (collectively, “User Materials”).
2. You hereby grant Zitti a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the User Materials solely for the purpose of hosting, operating, improving and providing the Services, Professional Services and Zitti’s other related products, services and technologies during the Term.    
3. You represent and warrant that (i) you have obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the User Materials (including any personal data provided or otherwise collected pursuant to your privacy policy) as contemplated by these Terms and (ii) Zitti’s use of the User Materials in accordance with these Terms will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between you and any third party.

1. REPRESENTATIONS AND WARRANTIES.  Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into these Terms and (ii) the execution, delivery and performance of these Terms and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.
2. INDEMNIFICATION.

1. Zitti Indemnification.  Subject to Sections 8(b) and 8(e), Zitti will defend you against any claim, suit or proceeding brought by a third party (“Claims”) alleging that your Use of the Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify you and hold harmless against any damages and costs awarded against you or agreed in settlement by Zitti (including reasonable attorneys’ fees) resulting from such Claim.
2. Exclusions.  Zitti’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) your breach of these Terms, negligence, willful misconduct or fraud; (ii) any User Materials; (iii) your failure to use any enhancements, modifications, or updates to the Services that have been provided by Zitti; (iv) modifications to the Services by anyone other than Zitti; or (v) combinations of the Services with software, data or materials not provided by Zitti. 
3. IP Remedies.  If Zitti reasonably believes the Services (or any component thereof) could infringe any third party’s intellectual property rights, Zitti may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for you to continue Use.  If Zitti determines that neither alternative is commercially practicable, Zitti may terminate these Terms, in its entirety or with respect to the affected component, by providing written notice to you.  In the event of any such termination and you are a customer, Zitti will refund to you a pro-rata portion of the Fees that have been paid for the unexpired portion.  The rights and remedies set forth in this Section 8 will constitute your sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services. 
4. Customer Indemnification.  Subject to Section 8(e), you will defend Zitti against Claims arising from (i) any User Materials, including, without limitation, (A) any Claim that the User Materials infringe, misappropriate or otherwise violate any third party’s intellectual property rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of User Materials violates any applicable law, rule or regulation; (ii) any of your products or services; and (iii) Use of the Services by you or your Authorized Users in a manner that is not in accordance with these Terms or the Documentation, including, without limitation, any breach of the use restrictions in Section 3(b), and in each case, will indemnify and hold harmless Zitti against any damages and costs awarded against Zitti or agreed in settlement by you (including reasonable attorneys’ fees) resulting from such Claim.
5. Indemnification Procedures.  The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party. 

1. DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PROFESSIONAL SERVICES AND OTHER ZITTI IP ARE PROVIDED ON AN “AS IS” BASIS, AND ZITTI MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE ZITTI IP, THE SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZITTI HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, ZITTI HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
2. LIMITATIONS OF LIABILITY.

1. Exclusion of Damages.  EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE ZITTI IP OR THE PROVISION OF THE SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
2. Total Liability.  IN NO EVENT WILL ZITTI’S TOTAL LIABILITY TO YOU OR YOUR AUTHORIZED USERS IN CONNECTION WITH THESE TERMS, THE ZITTI IP OR THE PROVISION OF THE SERVICES OR PROFESSIONAL SERVICES EXCEED (I) IF YOU ARE A CUSTOMER, THE FEES ACTUALLY PAID BY YOU TO ZITTI IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (II) IF YOU ARE VENDOR, $10,000, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ZITTI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
3. Basis of the Bargain.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN ZITTI AND YOU, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

1. TERM AND TERMINATION.

1. Termination.  Either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches these Terms, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
2. Survival.  This Section 11(b) and Sections 1, 3(b), 3(e), 3(f), 4, 5, 6, 7, 8, 9, 10,  11 and 13 survive any termination or expiration of these Terms and any order form. 
3. Effect of Termination.  Upon expiration or termination of these Terms: (i) the rights granted pursuant to Section 3(a) will terminate; and (ii) you will return or destroy, at Zitti’s sole option, all Zitti Confidential Information in its possession or control, including permanent removal of such Zitti Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in your possession or under your control, and at Zitti’s request, certify in writing to Zitti that the Zitti Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  No expiration or termination will affect your obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or, unless expressly set forth herein, entitle you to any refund.

1. TRADEMARKS.  You hereby grant Zitti a limited, non-exclusive, royalty-free license to use and display your name, designated trademarks and associated logos (the “User Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Services; and (ii) Zitti’s marketing and promotional efforts for its products and services, including by publicly naming you as a customer or vendor using Zitti and in case studies.  All goodwill and improved reputation generated by Zitti’s use of the User Marks inures to your exclusive benefit.  Zitti will use the User Marks in the form stipulated by you and will conform to and observe such standards as you prescribe from time to time in connection with the license granted hereunder.
2. GENERAL.

1. Entire Agreement.  These Terms, including any applicable order form(s), are the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  These Terms may be amended or modified only by a written document executed by duly authorized representatives of the parties. 
2. Notices.  All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be sent via email to contact@zitti.com. Any notices or other communications provided by Zitti under these Terms will be sent to you via email to your designated email address or through the Services.  For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. 
3. Waiver.  Either party’s failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver.
4. Severability.  If any provision of these Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these Terms will remain in full force and effect. 
5. Governing Law; Jurisdiction.  These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in Los Angeles County, California and the parties irrevocably consent to the personal jurisdiction and venue therein. 
6. Arbitration Agreement. Unless prohibited by federal law, you and we agree to arbitrate any and all claims and disputes relating in any way to this Agreement or the parties’ dealings with one another (“Claims”), except for Claims concerning the validity, scope or enforceability of this Arbitration Agreement, through BINDING INDIVIDUAL ARBITRATION. This Arbitration Agreement involves interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and not by state law. 

1. In any claim or dispute to be resolved by arbitration, neither you nor we will be able to have a court or jury trial or participate in a class action or class arbitration. Other rights that you or we would have if you or we went to court will not be available or will be more limited in arbitration, including the right to appeal. You and we each understand and agree that by requiring each other to resolve all disputes through individual arbitration, WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. The arbitrator(s) may not consolidate the claims of multiple parties without the parties’ express written consent.
2. Arbitrations shall be administered by the American Arbitration Association (“AAA”) pursuant to the applicable AAA rules in effect at the time the arbitration is initiated. You may obtain information about arbitration, arbitration procedures and fees from AAA by calling 800-778-7879 or visiting www.adr.org. If AAA is unable or unwilling to arbitrate a dispute, then the dispute may be referred to any other arbitration organization or arbitrator the parties both agree upon in writing, or selected by a court pursuant to the FAA. The arbitrator’s decision shall be final and binding. The parties agree that this Arbitration Agreement extends to any other parties involved in any Claims.
3. You and we each may exercise any lawful rights to seek provisional remedies or self-help, without waiving the right to arbitrate by doing so. Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire Arbitration Agreement shall be void. If a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Arbitration Agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. If any other portion of this Arbitration Agreement is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Agreement. This Arbitration Agreement will survive the termination of this Agreement, your fulfillment or default of your obligations under this Agreement, and/or your or our bankruptcy or insolvency (to the extent permitted by applicable law).
4. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT, BUT YOU MUST EXERCISE THIS RIGHT PROMPTLY. If you do not wish to be bound by this agreement to arbitrate, you must notify us in writing within sixty (60) days after the date you sign this Agreement. You must send your request by sending an e-mail to: contact@zitti.com. The request must include your full name, address, account number, and the statement “I reject the Zitti Arbitration Agreement.” If you exercise the right to reject arbitration, the other terms of this Agreement shall remain in full force and effect as if you had not rejected arbitration.

1. Assignment.  Neither party may assign or transfer these Terms, by operation of law or otherwise, without the other party’s prior written consent.  Any attempt to assign or transfer these Terms without such consent will be void.  Notwithstanding the foregoing, either party may assign or transfer these Terms to a third party that succeeds to all or substantially all of the assigning party’s business and assets relating to the subject matter of these Terms, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, these Terms is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.
2. Equitable Relief.  Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 5 and Section 3(b), would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
3. Force Majeure.  Neither party will be responsible for any failure or delay in the performance of its obligations under these Terms (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
4. Subcontracting.  Zitti may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Zitti remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in these Terms, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Zitti will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Zitti.
5. Export Regulation.  You will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software, or any User Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. 
6. U.S. Government End Users.  The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations.  Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms.
7. Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing in these Terms will be construed to establish any partnership, joint venture or agency relationship between the parties.  Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.
8. No Third-Party Beneficiaries.  No provision of these Terms is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties and their respective successors and assigns.
9. Counterparts.  These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

ZITTI TRADE FINANCE SUPPLEMENTAL TERMS

These supplemental terms and conditions (“Supplemental Terms”) are effective as of the Effective Date set forth in the first order form, entered into by and between you as a customer (“Customer”) and Zitti (each, a “Party” and collectively, the “Parties”). Capitalized terms not otherwise defined herein have the meanings ascribed to them in Zitti Terms and Conditions  and applicable order form(s).

1. RELATIONSHIP BETWEEN CUSTOMER AND ZITTI. Customer and Zitti are party to a set of Terms pursuant to which Zitti provides certain inventory management and trade finance services, including providing the Customer with access to certain Zitti Inventory Financings to purchase goods and services (each, a “Customer Product”) from third party vendors.
2. INVENTORY FINANCING SERVICES. Zitti provides inventory financing for certain eligible Customers. In order to apply for financing from us, you must an order form that set forth the expenses associated with your product(s) including inventory costs; when those costs are expected to be incurred; and projections for when you expect to receive the inventory and how long it will take to sell it (collectively, “Inventory Costs”). we will then evaluate your order form and determine in our sole discretion whether or not to offer financing. If we elect to offer financing to you, we will provide a written offer (“Offer”) through the Dashboard and by electronic mail.

1. The financing we provide to Customers is not a loan. Instead, we purchase a set amount of the revenue you receive from your future sales of the inventory we finance (the “Amount Sold” other called the “Future Revenue”). The amount we pay you for the Amount Sold is the “Purchase Price.” By accepting each Offer from us, you agree to sell and assign to us the Amount Sold, and to remit the Amount Sold to us on the schedule set forth in our Offer and the “Payments” shown through your account through the Dashboard, as it may be adjusted from time to time.
2. The Payments is designed to schedule our payment(s) to you of the Purchase Price when you need to pay the costs detailed in the order form, and to schedule your remittances of the Amount Sold when you receive revenue from inventory sales. It shows when we will remit to you installments of the Purchase Price and when you will remit to us installments of the Amount Sold. The Payments is based in part on the projections and information you supplied to us in the order form, and it is subject to change if those projections and information prove to be incorrect. we are under no obligation to monitor your sales or future revenue or any other event that may affect the Payments. For example, if shipment of a batch of inventory is delayed, or if it simply takes longer than expected to sell the inventory, you are required to amend and update the order form (by contacting us) through the Dashboard to provide updated projections and information. we will then evaluate the amended order form and, provided that you have not breached this Agreement, we may agree to update the Payments based on the new information. The Amount Sold will not change when we change the Payments.
3. You are only required to remit the Amount Sold to us when (and if) you sell the inventory we financed. If you go out of business in the ordinary course or file for bankruptcy before remitting the entire Amount Sold to us, you will not be required to pay the balance of the Amount Sold. Similarly, if inventory sales are slower than originally projected, you will not have to pay more to us because we do not charge interest. However, you are prohibited from engaging in certain activities (“Breaches”) as defined in more detail below. Breaches unfairly prevent us from receiving what we paid for. For example, it is a Breach to misrepresent the revenue you receive from inventory sales or to close your restaurant and soon thereafter open a similar restaurant selling the same inventory. If you commit a Breach, you will have to pay us the remaining balance of the Amount Sold and other amounts due to us under this Agreement.

1. CUSTOMER’S USE OF SERVICES.  If Zitti offers an Zitti Inventory Financings in accordance with Section 2 and customer accepts, Zitti will be the creditor at origination for any resulting successful transaction between Customer and applicable vendor, and Zitti will cause payment to be made directly to applicable vendor. The use of Services is limited to vendors in the United States.
2. EXCLUSIVITY.  Customer agrees that it will not integrate any consumer financing products or services that are similar to Zitti Inventory Financings, unless otherwise approved by Zitti in writing, as a part of the same transaction with vendor. However, Customer will not be prohibited under this Section 4 from accepting generally accepted multi-purpose credit, charge cards, debit or secured cards (e.g., MasterCard or Visa cards).
3. PAYMENTS. Sale and Assignment of Future Revenue. By accepting an Offer from us, you will sell and assign to us all right, title, and interest in the Amount Sold shown in the Offer in exchange for the Purchase Price shown in the Offer. The Amount Sold is our property, and you agree to hold it in trust for us as you receive it from sales of the inventory we finance.

1. Payment of Purchase Price. After you accept an Offer from us, we will disburse the Purchase Price to you via Dashboard designated payment form such as Automatic Clearing House (“ACH”) credits to your Bank Account (as defined below). we will disburse the Purchase Price in installments shown in the Payments, as amended from time to time.
2. Customer Bank Account. You certify that the Bank Account identified in the Dashboard is a checking account in good standing held by you; that you are authorized to withdraw funds from the Bank Account; and that you have designated the Bank Account to be used for your participation in this Agreement. You agree to deposit into the Bank Account all revenue you receive from selling the inventory we finance. You agree to provide us with online viewing access to the Bank Account by supplying login and other information we request, and to provide us with updated login information immediately if it is changed. You agree not to change, close, or terminate the Bank Account without our prior express written consent. If the Bank Account is closed or suspended for any reason, and you are not able to resolve the issue with your bank within five days of the closure or suspension, you agree to obtain a replacement Bank Account and provide us with the replacement Bank Account information we need to debit the account and view account activity within fifteen days after the closure or suspension of the Bank Account. If you replace the Bank Account with a new account in accordance with this provision, the replacement account shall become the Bank Account under this Agreement.
3. Remittances. In order to remit the Amount Sold to us, you hereby authorize us to debit via ACH directly from the Bank Account each remittance due under your Payments, as amended from time to time as provided on the Dashboard. This authorization shall remain in place until the entire Amount Sold and all other amounts due under this Agreement have been remitted to us.
4. Aggregation of Lines. Single Payments. When you apply for additional financing from us by amending the order form to add additional Lines, and we decide to make an Offer for the new Lines, our Offer will include an updated Payments that covers your and our obligations regarding both existing and new Lines. You agree that we are not required to determine what portion of the revenue you deposited to the Bank Account came from sales of inventory from any particular Line, and instead may treat all Lines as consolidated and aggregated for remittance purposes.
5. Payments Adjustments. The Payments is designed to schedule remittances of the Amount Sold when you sell the inventory we financed. You acknowledge that the projections and information you provide in the order form may change over time, such as when inventory shipments are delayed or sales of the inventory are made faster or slower than you originally projected. In order to ensure that remittances of the Amount Sold align with the timing of your future inventory sales, you agree to update the order form whenever there are material variations from the information and projections you previously provided. we are under no obligation to confirm or otherwise review the order form. we will then update the Payments so that we do not debit the Bank Account before you have received the revenue we purchased from you. However, you are solely responsible for ensuring that the Payments is accurate and we are not liable for any costs or losses due to our debiting your Bank Account based on the order form as provided on the Dashboard The order form can be adjusted using the dashboard on the Dashboard. There is no limit on the number of times you may amend the order form, provided that you do so accurately and in good faith. Any attempt to amend the order form for an inaccurate, fraudulent, or otherwise improper reason may be considered a “Breach” as provided below. 
6. Seller Account Access. In order to allow us to monitor your inventory sales and verify information you provide to us, you agree to provide us with online viewing access, including login credentials, to your seller account(s) on the selling platform(s) where you conduct your business. You further agree to provide us immediately with updated login credentials or other information we request if your login credentials are changed or if we are not able to access your seller account for any reason.

1. BOOKS AND RECORDS. Customer will keep complete and accurate books and records pertaining to its receipt and handling of transactions processed through the Services (the “Books and Records”).
2. DISPUTES BETWEEN CUSTOMER AND VENDOR. For any dispute relating to transaction(s) where Customer has used Zitti Inventory Financings, Customer agrees to work in good faith with its supplier to resolve such dispute in a timely manner
3. REPRESENTATIONS, WARRANTIES, AND EVENTS OF DEFAULT

1. Customer Representations, Warranties, and Covenants. Customer represents and warrants to Zitti, and agrees to, the following:

1. Customer has provided and will provide Zitti with true and complete information and copies of all documentation reasonably requested by Zitti in its sole discretion;
2. Customer will not revoke or interfere with Zitti’s access to view activity in the Bank Account;
3. Customer is and shall remain until the entire Amount Sold is paid to Zitti, the legal owner of the Amount Sold, free and clear of any liens, encumbrances, and adverse claims of any other person or entity;
4. Customer has not entered into any agreements or made any offers to any person or entity to sell, transfer, or otherwise encumber the Amount Sold; or to sell, transfer, or otherwise encumber all, or substantially all, of Customer’s assets;
5. The fair market value of Customer’s assets exceeds the fair market value of Customer’s liabilities;
6. Customer is meeting current liabilities as they mature;;;Execution of this Agreement and participation in this program does not constitute a breach of Customer’s obligations to any other person or entity;
7. Customer will not seek any additional funding that would encumber the Amount Sold without Zitti’s prior written approval;
8. Customer is operating its Inventory Costs in compliance with its third party obligations including to Customer customers and/or any e-commerce platform;
9. Customer is a duly formed corporation, validly existing and in good standing under the laws of its state of formation and is duly qualified to do business in every jurisdiction where the nature of the business requires it to be so qualified;
10. Customer is not subject to any bankruptcy proceeding or other insolvency event and is not aware that any third party is looking to initial such proceedings against Customer;
11. Customer does not have reason to believe that Customer’s business will cease operations within the next year and has not considered or discussed with anyone the possibility of filing a bankruptcy petition;
12. Customer is not aware of any pending, threatened, or current litigation, arbitration, regulatory enforcement action or investigation, writ, or restraining order affecting Customer or any of its affiliates, which could reasonably be expected to result in a material adverse change in Customer’s financial condition;
13. Customer will use the Purchase Price solely for business or commercial purposes and not for personal, consumer, family, or household purposes;
14. Customer has the necessary rights and authorizations to sell its goods, and Customer does not, and will not, infringe upon, violate, or misappropriate any intellectual property rights of any third party; and 
15. Customer will comply, at all times, with any and all applicable law related to the provision of Inventory Costs including any data protection obligations;
16. Customer will comply, at all times, with any and all applicable U.S. export laws and regulations, as well as any additional export laws applicable in any jurisdiction in which a customer operates. Customer specifically agrees not to re-export, resell, or otherwise dispose of technology or goods to any prohibited country in violation of any applicable export laws.
17. Breaches. If you commit any of the following Breaches without our prior written consent before we receive the Amount Sold, you will be in default:
18. You sell, transfer, or otherwise encumber, or attempt to sell, transfer, or otherwise encumber, the Amount Sold to another finance company or any other person or entity;
19. you encumber or allow any encumbrance to attach to our interest in the Amount Sold;
20. you sell all or substantially all of your assets used in furtherance of the Inventory Costs to a third party;
21. you materially change the nature and operation of your business from what was represented to us when you applied for financing from us without our express written consent;
22. you change your legal name or jurisdiction of formation, or conduct business affecting the Amount Sold through a different business entity or restaurant or store without our express written consent;
23. you change, close, or terminate the Bank Account without our express written consent;
24. you do not obtain a replacement Bank Account and provide replacement Bank Account information within fifteen days after your bank closes or suspends the Bank Account;
25. you provide us with false or misleading information about your business or future revenue (in your application or otherwise) that is material to our decision to purchase the Amount Sold from you;
26. you deposit revenue from Lines into any account other than the Bank Account;
27. you revoke Zitti’s access to view transactions in the Bank Account;
28. you violate any state or federal law, including, but not limited to, the intellectual property laws and sanctions/export laws;
29. you commit any act or omission specified in this Agreement to be a material breach;
30. you fail to timely update the order form;
31. you attempt to update the order form using false, inaccurate, or otherwise improper information; and
32. your failure to comply with Section 8.

Notwithstanding any of the foregoing, we will not consider any of these acts to be Breaches if they occur because you go out of business in the ordinary course or you are unable to sell enough of the inventory we financed to be able to deliver the entire Amount Sold. These Breaches are prohibited solely to protect our ability to collect the Amount Sold and receive the benefit of our bargain. They do not create any obligation for Customer to deliver revenue to Zitti if the revenue simply was not generated by Customer’s business;

1. Other Breaches. If you commit an act that is not a Breach but that otherwise violates a term or covenant in this Agreement (an “Other Breach”), you will be in default.
2. COLLECTION ACTIVITIES

1. Collection. You are responsible for collecting the Amount Sold using commercially reasonable, customary and appropriate commercial collection activities in accordance with applicable laws. In connection with your servicing obligations, you will perform your obligations and exercise your rights under each applicable agreement with your customers with the same care and applying the same policies as you would had we not purchased the Amount Sold. You may perform any and all of your duties and exercise its rights and powers as servicer by or through any one or more agents appointed by you, provided that, notwithstanding the appointment of any such agents, you shall remain liable for the performance of the obligations in this Section 9.
2. Reconciliation. You are responsible for identifying, matching and reconciling any payments applicable to the Amount Sold. You must ensure that all payments received by you applicable to the Amount Sold are transferred to the Bank Account. You are also responsible for notifying us immediately upon you identifying any shortfall in payments as projected in the order form.
3. Shortfalls. So long as you are in compliance with this Agreement, if you do not receive the projected amount of payments as provided in the order form for any reason, you must immediately consult us and we agree to work together on the course of action and will cooperate together, in good faith, in taking any action we both agree to.
4. Remedies for Breaches. If Customer commits any of the Breaches listed in Section 9 above, Zitti may exercise any and all rights available to it under applicable law, including without limitation all rights and remedies under this Agreement and the Uniform Commercial Code (“UCC”). If Customer commits a Breach, Customer is liable to Zitti in an amount in cash equal to the portion of the Amount Sold that has not been remitted, along with any other amounts due under this Agreement and any additional amounts owed for committing an Other Breach. These amounts become immediately due and payable when Customer commits a Breach. If you do not pay the amounts due, we have the right to withdraw the amounts from your Bank Account without notice; commence a suit in equity or action at law, or both; or to enforce Zitti’s rights as a secured party under the UCC. All rights and remedies available to us are cumulative and not exclusive to any other remedies available to us in law or equity, or under other sections of this Agreement.
5. Remedies for Other Breaches. If Customer commits an Other Breach as described in Section 10 above, Customer will be liable to Zitti for all damages resulting from the Other Breach, including, but not limited to, Zitti’s reasonable attorneys’ fees, expenses, and costs incurred in any proceeding pursued against you to recover the amounts due under this Agreement. If you do not pay the amounts due, we have the right to withdraw the amounts from your Bank Account; commence a suit in equity or action at law, or both; or enforce Zitti’s rights as a secured party under the UCC. All rights and remedies available to us are cumulative and not exclusive to any other remedies available to us in law or equity, or under other sections of this Agreement.
6. Security Interest and Collateral Pledged. You hereby grant us a continuing security interest (the “Security Interest”), which will remain in full force and effect until the Amount Sold has been reduced to zero and all other amounts due to us under this Agreement have been remitted or paid. This Security Interest is granted in all of your personal property and fixtures, tangible and intangible, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof (the “Collateral”), including without limitation: all equipment, furniture, artwork, inventory, instruments, investment property, documents, general intangibles, deposits, contract rights, tradenames, trademarks, patents, supporting obligations, payment intangibles, chattel paper, commercial tort claims, licenses, liquor licenses, permits, franchise agreements, payments due from credit card and bank card companies or processors, accounts receivable, accounts, leases, deposit accounts, refunds of bonds, monies due or to become due from the State Liquor Authority and/or State Division of Alcoholic Beverage Control and, to the extent not listed above as original collateral, all products and proceeds of all of the Collateral in whatever form, including, without limitation, all payments under insurance, whether or not we are the loss payee thereof, all proceeds of any governmental taking, and any indemnity, warranty, letter of credit (including the right to draw on such letter of credit), or guaranty payable by reason of any default under, loss of, damage to or otherwise with respect to, any of the foregoing. The Security Interest that you grant us is being given solely for the purpose of ensuring that you do not act to deprive us of our bargained-for ability to collect the Amount Sold as it is generated in the ordinary course of your business, as your business was described to us when we considered your application for financing.
7. Financing Statements. You authorize us (or any designee, nominee, transferee or servicer) to file UCC-1 or comparable statements as we deem necessary or appropriate to provide notice of our purchase of the Amount Sold under this Agreement, noting that the transaction is intended as a sale and not as security for a loan; and perfect the security interest granted by you to us under this Agreement. You agree to promptly furnish upon our request written statements and schedules identifying and describing the Collateral in such detail as we may require.

1. TERM AND TERMINATION

1. Term. This Agreement shall continue in effect until the Termination Date (“Inventory Financing Term”). Termination of this Agreement shall not affect the rights and obligations of the parties hereunder that expressly survive termination hereof.
2. Termination Date. This Agreement will terminate (“Termination Date”) upon the following occurring:

1. Upon notice from us for any reason;
2. Upon a Breach occurring; or
3. With ninety days prior notice from you once the Amount Sold is received by us.

1. Survival. All covenants, representations and warranties made herein shall continue in full force and effect until the Termination Date; provided that, your obligations to indemnify us pursuant to Section 12 will survive until one (1) year following the date in which the Amount Sold has been paid to us.

1. SUSPENSION OF ACCESS TO SERVICES AND ZITTI INVENTORY FINANCINGS. In addition to and without limiting any other remedies that Zitti may have under the Terms and these Supplemental Terms, immediately or from such other date as determined by Zitti, upon written notice to Customer, Zitti may suspend Services and/or Zitti Inventory Financings in the event that: (a) Customer breaches, or Zitti reasonably suspects that Customer has breached, any provision of the Terms and these Supplemental Terms; (b) Customer is involved in excessive disputes with vendor(s); (c) Zitti reasonably determines that such suspension is necessary to comply with applicable law; (d) there are any outstanding past due amounts payable under the Terms and these Supplemental Terms; (e) a Lien has been created, incurred, assumed, or otherwise suffered to exist upon any Customer Product, including inventory, assets, or any other property of Customer, that is the subject of a transaction between Customer and a vendor; (f) Zitti has a reasonable suspicion of fraudulent transactions or other suspicious activity related to the Services; or (g) in Zitti’s reasonable discretion, Customer engages in conduct that could damage or disparage the reputation or goodwill of Zitti, its personnel, or the Services or otherwise harms or causes a loss of business or revenue to Zitti. ZITTI WILL NOT BE LIABLE FOR ANY DAMAGES ARISING IN CONNECTION WITH ITS SUSPENSION OF SERVICES.
2. INDEMNIFICATION. In addition to the Customer indemnification obligations set forth in the Terms, Customer will defend, indemnify, and hold harmless Zitti from and against all third-party Claims arising out of or relating to Customer’s use of Zitti Inventory Financings.
3. 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 this Agreement.

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