EDENS ONLINE BILL PAYMENT AND GROSS SALES REPORTING

TERMS AND CONDITIONS

Welcome to the EDENS Online Bill Payment and Gross Sales Reporting (“EOPB”) web site (the “Web Site”). EDENS is willing to provide online bill payment and gross sales reporting services (collectively, the “Services”) to you conditioned upon your agreement that your access and use of the Services is subject to the following terms of services (collectively, “TOS”). The TOS are an agreement between EDENS and users of the Services (“you”). By using the Services, you confirm that you have read and understand the TOS and agree to be bound by them and the EDENS Privacy Policy located at c/o Edens Limited Partnership, 1221 Main Street, Suite 1000, Columbia, SC 29201. The TOS may be revised at any time and from time-to-time without notice and become immediately effective upon posting on the Web Site and your use of the Web Site. The TOS were last revised on April 23, 2019.


1.DESCRIPTION OF SERVICES

The Services provide users with access to various on-line resources, including applications that allow you to view and pay your bills and report sales from your business. Unless explicitly stated otherwise, any new feature that augments or enhances the current Services, including the release of new Services, will be subject to the TOS. Use of the Services acknowledges your acceptance of the TOS, and EDENS grants you a personal, nonexclusive, nontransferable, license to access and use the Services, subject to the TOS, solely for your internal purposes related to your business with EDENS and/or its affiliates. The forgoing license includes the specific rights to use the available applications and functionalities of the Services and to print information from the Services. EDENS does, however, reserve the rights to, without notice to you: (a) modify, suspend or terminate operation of or access to any or all of the Services at any time for any reason or no reason whatsoever; (b) modify or change the Services or the applicable operating policies at any time; and (c) interrupt the Services as necessary to perform routine and non-routine maintenance, error corrections, or other changes. As set forth above, EDENS reserves the right to modify the TOS at any time and your continued use of the Services constitutes your agreement to the revised TOS. Please check the Site regularly to view the current TOS.

A. ONLINE BILL PAYMENT SERVICE

When you initiate a Payment Instruction, you authorize EDENS to debit your Payment Account and remit funds to EDENS on your behalf so that the funds arrive as close to the Business Day designated by you as is reasonably possible. While it is anticipated that most transactions will be processed on the day you choose, it is understood that due to circumstances beyond the control of EDENS, some transactions may take a day or so longer to be credited to your Account. If we are unable to obtain funds for a bill payment for any reason associated with your Payment Account (for example, there is not a sufficient balance available in your Payment Account to cover the transaction), then we will not complete your bill payment transaction. If there is a problem in processing your Payment, EDENS may attempt to contact you, using the telephone number and/or email address that you have provided. If EDENS makes a bill payment to your Account but is unable to obtain funds for that payment or Payment Account, you agree that EDENS has the absolute right to reverse your bill payment.

B. GROSS SALES REPORTING SERVICE

The Web Site contains a link whereby you can provide online gross sales submissions (each a “Gross Sales Submission”, and collectively, “Gross Sales Submissions”) in accordance with your lease agreement with an affiliate of EDENS (the “Lease”). The information provided with each Gross Sales Submission must include the name of the Shopping Center, Tenant’s Trade Name, the store space number of the Premises, and the applicable period of Gross Sales; provided, however, EDENS reserves the right to modify the information that must be included with the Gross Sales Submissions. You acknowledge and agree that you assume all risk associated with providing online Gross Sales Submissions and, if EDENS fails to receive any Gross Sales Submission in accordance with your Lease for any reason whatsoever, that EDENS and its affiliated entities retain all rights and remedies with respect to the same as set forth in the Lease.

C. LIABILITY OF EDENS FOR FAILURE TO COMPLETE TRANSACTIONS

EDENS will use commercially reasonable efforts to process your bill payments in accordance with your Payment Instructions. However, EDENS will not incur any liability if a bill payment is not made in a timely manner or if EDENS is unable to complete any payments initiated by you through the Bill Payment Service because of the existence of any one or more of the following circumstances: (i) sufficient funds are not available through your Payment Account; (ii) failure of any Payee to account correctly for or credit the payment in a timely manner, or otherwise mishandle or delay the payment; (iii) the Services are not working properly and you know or have been advised by EDENS about the malfunction before you execute the transaction; (iv) you do not provide EDENS with all required information to complete the bill payment, such as your correct name, telephone number, or your complete and correct Payment Account information; or (v) circumstances beyond EDENS control including, but not limited to large-scale technical malfunctions, including, but not limited to loss of access to the Internet or loss of access to the Federal Reserve System, prolonged outages of phone lines, electricity or similar infrastructure, acts of God, war, riot, civil disobedience or similar events of insurrection, governmental or court orders, regulatory or legislative changes by any local, state or federal governmental agency, strikes, work stoppages, or other similar occurrences or circumstances.

2. USER NAME AND PASSWORD

During the registration process for the Services, a user name and password (collectively, “Authentication Materials”) will be established in order to access the Services. The Authentication Materials are for your use only. You agree: (a) not to disclose such Authentication Materials to any third party, (b) to take reasonable care to protect such Authentication Materials from inadvertent disclosure to third parties, and (c) to immediately notify EDENS of any loss or unauthorized use of the Authentication Materials. You agree that you will be responsible all actions taken using your Authentication Materials.

3. YOUR REPRESENTATIONS

You hereby represent to EDENS and agree that: (i) any and all information that you provide to EDENS through the Services or Web Site will be accurate and complete; (ii) you will not use the Services to access information about any account unless you are of legal age, not prohibited by Law from using the Services, and otherwise have authority to do so by the person or company whose account you are accessing; (iii) you will not provide any information to EDENS through the Web Site or Services, including account information, unless you have the authority to provide such information to us; (iv) you will not use the Web Site or the Services for any illegal or improper purposes; (v) you will not use: (a) use any robot, spider, other automatic device to monitor or copy portions of the Web Site or Services or the content contained therein without EDENS prior written permission, or (b) any device, software or routine to interfere or attempt to interfere with the proper working of the Web Site or Services; (vi) you will not download, reproduce, duplicate, copy or otherwise exploit any portion of the Web Site or Services for the purpose of sale, resale, or making other commercial use thereof; (vii) you will not access or use the Web Site or Services in any manner that could damage, disable, overburden or impair any EDENS server or network; (viii) you will not disrupt or interfere with the security of, or otherwise cause harm to, the Web Site or Services, accounts, passwords, servers or networks connected to or accessible through the Web Site or any affiliated or linked sites; (ix) you will not disrupt, interfere with or inhibit any user of the Web Site from using the Web Site or the Services; (x) you will not reproduce, sell, trade, resell or exploit for any commercial purpose any portion of the Web Site or the Services; and (xi) you will use the Services only for the purposes permitted by the TOS and any applicable law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction (“Law”).

4. VIOLATIONS; TERMINATION OF SERVICES; DISCOLSURE OF INFORMATION

EDENS may investigate any potential violations of these Terms of which it may become aware, and EDENS may, immediately terminate, to the extent practicable, your license to use the Web Site and/or the Services without notice to you. If, as a result of any EDENS investigation, EDENS believes that criminal activity may have occurred, EDENS reserves the right to refer the matter to, and cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, EDENS may disclose any information, including the Authentication Materials, in connection with your use of the Services to (i) comply with applicable Law, legal process or governmental request; (ii) enforce the TOS; (iii) respond to any claims that your use of the Web Site or the Services violates the TOS or rights of third parties; or (iv) protect the rights, property or personal safety of EDENS, its users or the public, and law enforcement or other government officials, as EDENS believes to be necessary or appropriate.

5. RELIANCE ON INFORMATION FROM THE SERVICES

While EDENS will exercise reasonable efforts to ensure the accuracy of information on our Web Site and accessible through the Services, you acknowledge and agree that your use of the Web Site or Services, and your reliance upon any data or information accessed using the Web Site or Services, is at your own risk. You agree to make and rely on your own independent investigation of the completeness, accuracy and suitability of any information, data, or analytical product available on the Web Site or Services before reliance thereon.

6. WARRANTY DISCLAIMERS

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND THE WEB SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT USE OF THE SERVICES AND THE WEB SITE IS AT YOUR SOLE RISK. EDENS MAKES NO WARRANTY WHATSOEVER ABOUT THE SERVICES, THE WEB SITE, THE OPERATION OR AVAILABILITY OF EITHER, THE ACCURACY OF INFORMATION PROVIDED ON OR THROUGH THE SERVICES OR WEB SITE, OR THE SECURITY OF THE SERVICES OR WEB SITE. MOREOVER, EDENS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE WEB SITE AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EDENS MAKES NO WARRANTY THAT (A) THE WEB SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, (B) ACCESS TO THE WEB SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) TRANSMISSION OF DATA TO AND FROM THE WEB SITE OR SERVICES WILL BE TIMELY OR ERROR-FREE, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEB SITE OR SERVICES WILL BE ACCURATE OR RELIABLE. YOU AGREE THAT NEITHER EDENS NOR ITS AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, OPINION, ADVICE OR STATEMENT ON THE SERVICES OR THIS WEB SITE.

7. LIMITATIONS OF LIABILITY

IN NO EVENT WILL EDENS ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EDENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE WEB SITE OR SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEB SITE OR SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEB SITE OR SERVICES; OR (e) ANY OTHER MATTER RELATING TO THE WEB SITE OR SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION MAY NOT APPLY TO YOU.
In the absence of any of the exclusions set forth above, it shall be EDENS responsibility to correct any transactions not completed that are otherwise in strict accordance with the TOS and your Payment Instructions. In the event that EDENS is unable to correct the transaction, we will refund the amount of funds received from you and this refund will constitute your sole and exclusive remedy. In no event will the liability of EDENS to you ever exceed the amount of funds that we receive from your Payment Account for a bill payment.THE FOREGOING SHALL CONSTITUTE EDENS ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY. IN NO EVENT SHALL EDENS BE LIABLE FOR ANY OTHER LOSS, INJURY, OR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY, INCLUDING LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF YOUR USE OF THE SERVICES. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN, WE SPECIFICALLY DISCLAIM AND YOU UNDERSTAND THAT WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESSED OR IMPLIED AND THE SAME ARE HEREBY EXCLUDED FROM THESE TERMS AND CONDITIONS AND ALL TRANSACTIONS CONTEMPLATED HEREBY.

8. INDEMNITY

You agree to indemnify, defend and hold EDENS, and its subsidiaries, affiliates, officers, members, agents, or other partners, and employees, harmless from any claim or demand, including reasonable attorneys” fees, made by any third party due to or arising out of information you submit, post to or transmit through the Services, your use of the Services, your connection to the Services, your violation of these TOS, or your violation of any rights of any third party.

9. SUBMISSIONS

Comments, suggestions and questions about the Web Site or Services are welcomed. EDENS does not, however, desire that you send, post or upload any information that is confidential or proprietary to you or to any other person or company. By submitting comments, messages, suggestions, ideas, concepts or other information (collectively, �Materials�) to EDENS, you thereby (a) represent and warrant that such information is not confidential or proprietary to you or to any other person, and (b) grant EDENS and its affiliates an irrevocable, perpetual, royalty-free, non-exclusive, unrestricted, worldwide license to: use, copy, publish, transmit, perform and display the Materials for any purpose; create derivative works from such Materials; and implement and use the Materials and any suggestions, concepts or ideas contained therein without compensation to you. Furthermore, you agree that EDENS is not responsible for the confidentiality of the Materials that you send through the Web Site or in connection with your use of the Services.

10. LINKS

The Web Site or Services may include links that will take users to other websites operated by third parties (“Linked Sites”). The Linked Sites are provided by EDENS as a convenience and the inclusion of links to Linked Sites does not imply any endorsement by EDENS of any Linked Site. EDENS has no control over the Linked Sites or the material contained on such Linked Sites, and you agree that EDENS is not responsible for the availability or contents of any Linked Sites (including any content or material available on such Linked Sites).

11. TRADEMARKS, COPYRIGHTS & RESTRICTIONS

All materials available through the Web Site or Services, including, but not limited to, text, images, illustrations, audio clips, video clips and other data, are protected by copyrights which are owned or licensed by EDENS. Except for the limited license granted above, you may not reproduce, perform, create derivative works from, republish, transmit, or distribute in any way whatsoever any materials from the Web Site or Services, or any other web site owned or operated by EDENS, without the prior written permission of EDENS.

12. MODIFICATION AND TERMINATION

EDENS reserves the right at any time to modify or discontinue, temporarily or permanently, the Web Site or Services (or any part thereof) with or without notice. You agree that EDENS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Web Site or Services. You agree that EDENS, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if EDENS believes that you have violated or acted inconsistently with the letter or spirit of these TOS. You agree that any termination of your access to the Services under any provision of this TOS may be effected without prior notice, and acknowledge and agree that EDENS may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that EDENS will not be liable to you or any third party for any termination of your access to the Services.

13. GOVERNING LAW/ARBITRATION

Use of the Web Site and Services and the TOS shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to the choice of law provisions thereof. Any dispute or claim relating to or arising out of or in connection with use of the Web Site, Services or the TOS will be finally settled by binding arbitration in the District of Columbia using the then current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the District of Columbia, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party. Notwithstanding the foregoing, in the event of your or others” unauthorized access to or use of the Web Site or the Services in violation of the TOS you agree that EDENS will be entitled to injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

14. COMPLETE AGREEMENT/SEVERABILITY/NO THIRD PARTY BENEFICIARIES

The TOS and any agreements governing use of specific portions of the Services constitute the entire understanding between you and EDENS with respect to the Services and your use thereof, superseding all prior written and oral communications and understandings. If any provision or portion of the TOS is not given legal effect by a court of competent jurisdiction, such provision or portion shall drop out of the TOS and the remaining provisions and portions of the TOS will be construed and enforced. Any failure by EDENS to enforce or exercise any provision of the Terms, or any related right, shall not constitute a waiver of that provision or right. The TOS will not be interpreted or construed to confer any rights or remedies upon any third parties

15. DEFINITIONS

The following defined terms are used in these TOS: (i) “Payee” means the landlord or other entity to which you authorize a bill payment to be directed (ii) “Payee Account” means the billing account with the landlord or other entity to which you authorize a bill payment to be directed; (iii) “Payment Instruction” means your instruction and authorization to EDENS to make a bill payment to a Payee using card issued by a credit, debit or stored-value card issuing company or automated clearing house payment; (iv) “Payment Account” means the bank account that you authorize us to debit by electronic funds transfer when you make your bill payment using account information from your business or personal checking or savings account; (v) “Business Day” means Monday through Friday, excluding Federal Reserve holidays; (vi) “Scheduled Payment Date” means the Business Day of your choice upon which EDENS will attempt to complete your bill payment and initiate the appropriate debit to your Payment Account.

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