Last Updated: September 12, 2024

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

I hereby represent that I am an authorized representative of Merchant and have read, understood, and agree to be bound by the terms of this Agreement as follows:

1. Affirm Services. Affirm (itself or through its Affiliates or bank partners) offers certain products and services (each, an “Affirm Product” and collectively, “Affirm Products”) through Affirm’s proprietary platform and related application programming interfaces, card networks, and other technology and access solutions (collectively, the “Services”) through applicable Wallets (the “Program”). Merchant desires to market the Program to its customers and enable such customers to use the Services to purchase eligible goods and services sold by or through Merchant (“Merchant Products”) on certain URLs owned or controlled by Merchant that offer the Program (each, a “Merchant Site”) within all U.S. states and any territories as authorized by Affirm (collectively, the “Territory”). A “Customer” is any person who applies to use the Services or who uses the Services on a Merchant Site. “Wallets” means digital wallet applications that enable customers to make electronic transactions through the Services, including but not limited to Apple Pay.

2. Term. This Agreement will become effective on the Effective Date and will continue in full force and effect until it is terminated in accordance with Section 21. 

3. Trademark License. Upon the terms and subject to the conditions of the Agreement, Affirm (the “Licensor”) hereby grants to Merchant (the “Licensee”) a royalty-free, non-exclusive, non-transferable, non-sublicensable limited right and license to use Licensor’s name and logo, in each case provided by the Licensor, in any and all media formats, whether registered or unregistered (the “Marks”) solely in connection with online ads for goods and services sold by Merchant. Licensor hereby reserves all rights not expressly granted to Licensee under this Agreement.

4. Marketing and Disclosures. To the extent Merchant wishes to market the Services other than as provided in https://businesshub.affirm.com/hc/en-us/sections/30332513828628, Merchant will obtain express prior written consent from Affirm. Merchant will at all times comply with the Affirm brand and marketing guidelines located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines (the “Brand Guidelines”). Notwithstanding anything to the contrary, to the extent that Affirm provides required disclosures (“Disclosures”) related to the Services, which may include but are not limited to notices required by Applicable Law and statements intended to prevent Customer complaints, Merchant will promptly display any such Disclosures on Merchant Channels in accordance with Affirm’s instructions. Upon notice to Merchant, Affirm may revise or update elements of Disclosures in the event that Affirm has a reasonable belief that such updates are necessary or appropriate in light of legal or regulatory guidelines or requirements. Upon receipt of such notice from Affirm, Merchant will promptly, but in any event within five (5) calendar days or as otherwise agreed by the Parties, modify applicable Disclosures in accordance with Affirm’s instructions or otherwise take action to come into full compliance with this Section, including by removing any non-compliant language or materials.

5. Confidential Information. In connection with the Agreement, including the negotiation of the Agreement, a Party (“Recipient”) may receive or have access to confidential or proprietary information of the other Party or its Affiliates (“Discloser''), whether received or disclosed by such Parties or their respective Representatives. A “Representative” of each Party means its employees, personnel, contractors, representatives or agents. “Affiliate” means a person, company or entity that directly or indirectly controls, is controlled by, is under common control, or working in concert with, a Party hereto, where control means ownership of at least 50% of the equity interests of such entity or the right to direct the affairs of such entity. As used in the Agreement, “Confidential Information” means the information exchanged by the Parties prior to, during or after the negotiation of the Agreement that should be reasonably understood to be confidential or proprietary in nature, regardless of whether such information was provided subject to a nondisclosure agreement between the Parties, the terms and conditions of the Agreement, any proprietary information, technical data, demographic information, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by either Party either directly or indirectly in any form but excluding information that: (a) was lawfully, and not otherwise as a result of any violation of confidentiality obligations, in Recipient’s possession before receiving it from Discloser; (b) is rightfully received by Recipient from a third party without restriction, and, to Recipient’s knowledge, without a breach of a confidentiality obligation imposed on such third party; (c) is or becomes generally available to the public other than through a breach of the Agreement; or (d) was or is independently developed by Recipient without use of or reference to any Confidential Information. For avoidance of doubt, Affirm’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Affirm’s Confidential Information.

6. Nondisclosure of Confidential Information. Recipient will: (a) keep the Confidential Information of Discloser confidential and not use or copy such Confidential Information other than as expressly authorized by Discloser and as permitted under the Agreement; (b) protect the Confidential Information of Discloser from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid such unauthorized use or disclosure of its own Confidential Information, but in no event any less than reasonable care; (c) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with the Agreement and will be liable for any breach of this Section by such Representatives. It is understood that Discloser’s Confidential Information will remain the sole property of Discloser. In the event that Recipient or any of its Representatives are legally compelled by Applicable Law, subpoena, or similar court process to disclose any Confidential Information of Discloser, Recipient will, to the extent legally permissible, provide Discloser with notice of such circumstances and will limit such disclosure to only what legal counsel for Recipient advises is specifically required by Applicable Law, subpoena, or similar court process. This provision will supersede and replace any previous agreement, whether written or oral, between the Parties hereto regarding Confidential Information. To the extent a Merchant Site is hosted by a third-party intermediary (each, a “Platform”) which requires Affirm to submit certain data for the purpose of fulfilling Affirm’s contractual obligations to such Platform, Affirm may disclose certain Merchant Confidential Information to such Platform during or after the Term, and Affirm will not be liable for any Processing by such Platform related to such Merchant Confidential Information.

7. Privacy; Data Processing and Security. Each Party will comply with the Data Processing Addendum located at: https://www.affirm.com/terms/merchant-policies/global-dpa.

8. Representations and Warranties. Each Party represents and warrants that as of the Effective Date: (a) it is duly formed, validly existing, and in good standing under the laws of its state, province or other jurisdiction of incorporation or formation; (b) it has the right, power, and authority to enter into the Agreement; (c) the Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (d) it is in compliance with Applicable Law in connection with carrying out its obligations under the Agreement; (e) there is no pending or, to such Party’s knowledge, threatened litigation, arbitration matter, or other dispute to which such Party or any of its Affiliates is a party that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such Party’s ability to fulfill its obligations under the Agreement; and (f) the execution and delivery of the Agreement will not conflict with, or result in a violation or breach of, any of the terms, conditions, or provisions of such Party’s organizational documents or any legal restriction or any agreement or instrument to which such Party is now a party or by which it is bound, or require the consent of any person or entity not subject to the Agreement. Merchant represents, warrants, and covenants that it will convey good and valid title to the Merchant Products delivered or otherwise made available to a Customer as a result of any Successful Transaction, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind. As applicable, Merchant has all third-party licenses or consents required to enable Affirm to use Merchant Marks in marketing or promotional materials in connection with the Services, at no additional cost to Affirm. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AFFIRM MAKES NO OTHER WARRANTY OF ANY KIND REGARDING THE SERVICES, AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

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

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

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

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

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

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

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

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

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

18. Amendments. Affirm may update, amend and/or change this Agreement at any time. Merchant is advised to check the terms of this Agreement from time to time for any updates or changes that may be of impact. Merchant's continuing use of the Services constitutes Merchant's consent and agreement to such additions, removals and amendments. 

19. Termination. Affirm may terminate the Agreement without cause at any time upon notice to Merchant. Neither Party will be liable for any damages arising in connection with its termination or suspension of the Services pursuant to the foregoing. This Agreement will automatically terminate in the event that (i) Merchant executes an agreement with Affirm (or a partner of Affirm) for the purpose of accessing or offering the Services other than through the Program or (ii) Merchant no longer offers the Services through the Program.

20. Obligations upon Termination. Termination will not release either Party from financial obligations owed to the other Party for Services delivered or payments owed for Services delivered prior to or after termination of this Agreement. The Parties will cooperate to complete all outstanding obligations to Customers related to the Services. A “Customer” is any person who applies to use the Services or who uses the Services on a Merchant Site. Upon termination of the Agreement: (a) all authorizations and licenses granted by Affirm will immediately terminate, and all rights will revert to Affirm; and (b) upon request, and except as required by Applicable Law or, with respect to Affirm, as required to maintain or retain for servicing Customers, each Party will immediately destroy or return to the requesting Party, and upon request, certify such destruction of, all of the requesting Party’s Confidential Information, including materials derived from such Confidential Information.

21. Miscellaneous. Except as expressly set forth in this Agreement, the Agreement is for the benefit of, and may be enforced only by, Merchant and Affirm and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party. Each Party will, upon the request of the other Party, promptly execute and deliver such documents and perform such acts as may be necessary to give full effect to the terms of the Agreement. The headings in the Agreement are for reference only and will not affect the interpretation of the Agreement. The failure of any Party to enforce any of the terms and conditions of the Agreement will not constitute a waiver of that Party’s right thereafter to enforce each and every term and condition of the Agreement. Any single or partial exercise of any right hereunder will not preclude further exercise of the same right or the exercise of any other right hereunder by either Party. The waiver by any Party of any default or breach of the Agreement will not constitute a waiver of any other default or breach. This Agreement (and any schedules, exhibits, annexes or similar agreements attached or referenced herein and therein) constitutes the entire understanding and contract between the Parties and supersedes all prior agreements (including any prior nondisclosure agreements entered into between the Parties), understandings, arrangements, commitments, or representations, oral or written, between the Parties with respect to the subject matter hereof; provided, that to the extent Affirm and Merchant have entered, or do enter, into a separate agreement for the purpose of offering or accessing the Services, that agreement will supersede this Agreement in all respects. The Agreement may be executed in two or more counterparts, each of which will be an original instrument, but all of which will constitute one and the same agreement. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. 

22. Survival. Sections 3 (Trademark License), 4 (Marketing and Disclosures),, 5 (Confidential Information), 6 (Nondisclosure of Confidential Information), 7 (Privacy; Data Processing and Security), 8 (Representations and Warranties), 9 (Indemnification), 10 (Indemnification Procedure), 11 (Limitation of Liability), 12 (Applicable Law), 13 (Arbitration), 14 (Governing Law), 15 (Notices, Acceptances and Approvals), 16 (Independent Contractors), 17 (Assignment), 19 (Termination); 20 (Obligations Upon Termination), 21 (Miscellaneous), as well as any other provision of the Agreement that contemplates performance or compliance subsequent to termination or expiration of the Agreement, will survive termination of the Agreement; provided that with respect to Section 6 ‎‎(Nondisclosure of Confidential Information), such survival will expire on the third anniversary of the effective date of the termination or expiration of the Agreement.