Merchant Agreement

This Merchant Processing Agreement (“Agreement”) is made among ECARD Inc. (“Provider”) having its principal office at 353 Lexington Ave (E 40^th), 5^th Fl. New York, New York 10016. the Bank, and “Merchant”. Provider, Bank, and Merchant hereby agree as follows:

1. Provider and Bank participate in programs which enable holders of Cards to purchase goods and services from selected merchants located in the United States by use of their Cards (the “System”).
2. Provider, through its bank partners, acts as a program manager for purposes of offering Cards to Cardholders for the purpose of conducting transactions at participating merchants in the System.
3. Merchant wishes to participate in the System offered by Provider and Bank at its United States locations for the purpose of conducting transactions for the sale of goods and services to Provider’s Cardholders through the use of Cards.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the parties agree as follows:

 

1. Definitions.

For the purposes of this Agreement, the following terms shall have the meanings set forth below:

Account shall mean an open checking account at Bank or its affiliate, or at another financial institution acceptable to Provider which Bank, Provider, or its agent can access via the ACH system.

Account Change means a change in the Account or the financial institution where the Account is located.

ACH shall mean the Federal Reserve’s Automated Clearing House (“ACH”) system.

Agreement means this Merchant Processing Agreement, the Merchant Price Schedule, and each exhibit, schedule, and addendum attached hereto or referencing this Agreement, as well as all documents and other materials incorporated herein by reference.

Bank shall mean a U.S. financial institution that provides issuance services in connection with this Agreement, as determined by Provider from time to time in its sole discretion.  The current Bank providing issuance services in connection with his Agreement is Global Bank.

Cards shall mean prepaid cards and account numbers assigned to a Cardholder by Bank.

Cardholder shall mean any person authorized to use the Cards pursuant to a Cardholder agreement with Provider and Bank, and the accounts established in connection with the Cards for purposes of conducting transactions at Merchant for goods and services.

Data Incident shall mean any alleged or actual compromise, unauthorized access, disclosure, theft, or unauthorized use of Card or Cardholder information, regardless of cause, including without limitation, a breach of or intrusion into any system, or failure, malfunction, inadequacy, or error affecting any server, wherever located, or hardware or software of any system, through which Card information resides, passes through, and/or could have been compromised.

Event of Default shall mean each event listed in Section 14.

Force Majeure Event shall mean, labor disputes, fire, weather or other casualty, power outages, and funding delays, however caused, governmental orders or regulations, or any other cause, whether similar or dissimilar to the foregoing, beyond Provider’s reasonable control.

Initial Term shall mean [____] months from the first date that the first of Merchant’s locations receive the Services from Provider.

Operating Rules means the operating rules, regulations, or guidelines of Provider or Bank as may be amended from time-to-time.

Service Delivery Process means Provider’s then standard methods of communication, service and support, including but not limited to communication via an online Merchant portal, email communication, statement notices, other written communications, etc.

Merchant Supplier shall mean a third party service provider other than Provider or Bank used by Merchant in connection with the Services received hereunder, including but not limited to, Merchant’s software providers, equipment providers, and/or third party processors

PCI shall mean the Payment Card Industry Data Security Standard.

Service shall mean any and all services, described in, and provided by Provider pursuant to, this Agreement.

Other defined terms and Services applicable to this Agreement have the meaning ascribed to them herein.

 

2. General Services.Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act, or any similar law, rule or regulation, including but not limited to PCI, and any other program or requirement that may be published and/or mandated by Provider or Bank.

Provider represents and warrants that (a) it has all necessary rights, licenses and approvals required to provide the System and Services; (b) the provision of the System and Services in accordance with this Agreement will not infringe upon or violate any patent, copyright, trade secret or other proprietary right; (c) the Services hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (d) Provider’s obligations hereunder are not in conflict with any other of Provider’s obligations; (e) Provider will comply with all applicable law in the performance of the Services; including but not limited to all applicable national and international data protection laws and regulations; and (f) where required by applicable local law, it is duly registered and in full compliance with legislation and regulations regarding data protection.

 

3. Application; Change in Business.Merchant represents that all information supplied by Merchant in connection with its application or other request for services is complete and accurate.  In accordance with Section 326 of the USA Patriot Act, Provider is required to review and record information from the documents used in identifying new merchant customers.  The preceding sentence is intended to inform Merchant of Provider’s procedures and of Provider’s responsibility under the USA Patriot Act.  Merchant agrees to provide Provider with 30 days prior written notice of Merchant’s intent to change its business form or entity in any manner (e.g. a change from a limited liability company to a corporation), and/or of Merchant’s intent to sell substantially all of its stock or assets to another entity.

 

4. Card Acceptance.Merchant must accept all Cards and complete all Card transactions in accordance with this Agreement any Operating Rules provided to Merchant. Merchant has identified to Provider the products and/or services for which it intends to accept Cards as payment. Merchant agrees that it shall only complete and deliver to Provider sales transactions produced as the direct result of bona fide sales made by Merchant to Cardholders for such identified products and/or services, unless otherwise agreed by Provider in writing.

 

5. Transaction ProcessingProvider or Bank will initiate payment to Merchant of the total amount of fees owed to Merchant from sales transaction acquired and accepted hereunder, subject to the terms and conditions of this Agreement and applicable law, within ___after Provider receives payment for such sales transactions, and less the amount of fees owed to Provider and Bank hereunder. In addition, Merchant may request Provider of Bank initiate payment to merchant of the amount of fees owed to merchant hereunder one (1) time per 24 hours at no charge, subsequent initiation requests will be subject to one ($1) fee per request. Provider may refuse to acquire any sales transaction or claim the amount of which, in whole or in part, it could chargeback to the Merchant pursuant to this Agreement, if it had acquired the sales transaction or claim.
6. Exception Items.Merchant agrees to reacquire and pay Provider by debit from the Account the amount of any sales transaction, and Provider shall have the right at any time to charge Merchant’s Account therefore for any return, chargeback, compliance case, any other action, or if the extension of credit for merchandise sold or services or sales transactions performed was in violation of law or the rules or regulations of any governmental agency, federal, state, local or otherwise; notwithstanding Provider’s prior payment to Merchant for such sales transaction pursuant to this Agreement. When Provider has determined it has all necessary information and instructions, Merchant hereby authorizes Provider to resolve disputes and respond to retrieval requests and other inquiries without further consulting Merchant.

7. Merchant Suppliers. Merchant may use one or more Merchant Suppliers in connection with the Services and/or the processing of some or all of its Card transactions.  In no event shall Merchant use a Merchant Supplier unless such Merchant Supplier is compliant with PCI and/or the Payment Application Data Security Standard (“PA-DSS”), depending on the type of Merchant Supplier, as required by the Provider. Merchant acknowledges and agrees that Merchant shall cause its Merchant Supplier to complete any steps or certifications required by any network (e.g., registrations, PA-DSS, PCI, audits, etc.). Merchant shall cause its Merchant Supplier to cooperate with Provider in completing any such steps or certifications (if applicable), and in performing any necessary due diligence on such Merchant Supplier.  Merchant shall be solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such steps, registrations, and certifications.  Merchant shall bear all risk and responsibility for conducting Merchant’s own due diligence regarding the fitness of any Merchant Supplier(s) for a particular purpose and for determining the extent of such Merchant Supplier’s compliance with any Operating Rules and applicable law. Merchant expressly agrees that Provider shall in no event be liable to Merchant or any third party for any actions or inactions of any Merchant Supplier used by Merchant, even if Provider introduced and/or recommended the use of such Merchant Supplier to Merchant, or never objected to the use of such Merchant Supplier, and Merchant hereby expressly assumes all such liability.

8. Cardholder Information.Merchant shall not disclose, sell, purchase, provide, or exchange Cardholder name, address, account number or other information to any third party other than to Provider or for the purpose of completing a sales transaction unless specifically permitted by this Agreement or any Operating Rules. Merchant represents and warrants that neither it nor its Merchant Supplier shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by any Operating Rules and/or this Agreement.

Provider acknowledges responsibility for payment card data on its proprietary systems. Provider will (i) maintain its PCI-DSS certification and (ii) be validated as a PCI-DSS compliant service provider by a qualified security assessor approved by the PCI Security Standards Council (a (“QSA”). A copy of the annual PCI-DSS Report on Compliance shall be provided to Merchant upon request, no more frequently than one time per calendar year.

In the event Provider is deemed not to be in compliance with PCI-DSS, Provider shall make best efforts to become compliant and maintain compliance thereafter. As of the execution of the Agreement, PCI-DSS information and standards can be found at the Payment Card Industry Security Council website at:

https://www.pcisecuritystandards.org/index.htm.

 

9.Term.The term of this Agreement shall commence on the date that the first of Merchant’s locations receive Services from Provider, and shall continue for the Initial Term as defined in Section 1 of this Agreement. Except as hereafter provided, unless either party gives written notice to the other party at least 30 days prior to the expiration of any term, the Agreement including all addenda, schedules and exhibits hereto or referencing this Agreement shall be automatically extended on

a calendar month to calendar month basis.  All obligations of the parties incurred or existing under this Agreement as of the date of termination, shall survive such termination.

 

10. Third Party Assessments.Notwithstanding any other provision of this Agreement, Merchant shall be responsible for all amounts imposed or assessed to Merchant, Provider, and/or Bank in connection with this agreement by Bank and/or third parties such as, but not limited to, Merchant Suppliers (including telecommunication companies), to the extent that such amounts are not the direct result of the negligence or willful misconduct of Provider or any breach of this Agreement by Provider.  Such amounts include, but are not limited to, fees, fines, assessments, sponsorship fees, penalties, loss allocations, etc.  Any changes or increases in such amounts shall automatically become effective upon notice to Merchant via Provider’s Service Delivery Process and shall be payable by Merchant within a reasonable time period after being assessed by Provider.

9.  

11. Non-Exclusivity.Provider and Bank reserve the right to enter into other agreements pertaining to the Services with others including without limitation other merchants.

 

12. Default. The following events shall be considered an “Event of Default”:

9. (i) Merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, , which involuntary proceeding is not dismissed or stayed within 60 days, a receiver is appointed for Merchant, or Merchant makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due; or(ii) Merchant fails to pay or reimburse the fees, expenses or charges referenced herein when they become due; or

   (iii) Merchant is in default of any terms or conditions of this Agreement, other than as a result of any Force Majeure Event or a failure of Provider (or some other third party acting at the request of or on behalf of Provider) to perform any obligation under the Agreement, whether by reason of its own action or inaction or that of another, and such default is not cured within thirty (30) days following receipt of written notice from Provider; or

   (iii) Merchant ceases to do business as a going concern, or there is a change in ownership of Merchant which changes the identity of any person or entity having, directly or indirectly, more than 30% of either the legal or beneficial ownership of Merchant.

   Upon the occurrence of an Event of Default, Provider may at any time thereafter terminate this Agreement by giving Merchant written notice thereof.  However, except in instances where immediate termination is required by any regulatory authority or if Bank and/or Provider reasonably believe that the Event of Default poses material risk to either of them or involves a violation of applicable law, Merchant will have 30 days following Provider’s notice to cure an Event of Default under Section (ii), or (iii) prior to termination under this Section.

    

15. Provider Nonperformance.In the event Merchant, in good faith, reasonably believes that Provider has substantially failed to provide the Services, other than as a result of (i) a failure by Merchant (or any Merchant Supplier, or other third party acting at the request of or on behalf of Merchant) to perform any obligation under the Agreement, or to provide accurate data to Provider upon which Provider is dependent to provide accurate and timely Services to Merchant,  or (ii) any Force Majeure Event, Merchant agrees to notify Provider in writing within 30 days of the date upon which such failure first occurred.  Merchant agrees that such notice shall be sent in accordance with the terms of this Agreement, and shall specifically describe the nature of such failure by Provider, specify the date such failure first occurred and specifically reference this Section.

Provider will attempt to resolve such failure within 30 days of Provider’s actual receipt of such notice from Merchant.  Should Provider not resolve such failure within the cure period described in the foregoing sentence, Merchant may terminate this Agreement upon immediately upon written notice to Provider.

 

16. Taxes.Any sales, use, excise or other taxes (other than Provider’s income taxes) payable in connection with or attributable to the Services provided to the Merchant per this Agreement shall be paid by Merchant.  Provider may, but shall not have the obligation to, pay such taxesIn the event Provider pays such taxes, Merchant shall reimburse Provider within thirty days after receipt of Provider’s invoice or Provider may, at Provider’s sole option, charge Merchant’s Account.

 

17. Binding on Successors; Assignment.This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, successors, transferees and assignees.  Neither this Agreement nor any interest herein may directly or indirectly be transferred or assigned by Merchant, in whole or in part, without the prior written consent of Provider, which will not be unreasonably delayed or withheld.  Merchant will remain liable for any amounts owed under this Agreement after an unauthorized transfer or assignment by Merchant, even if Provider continues to provide Services to such transferee or assignee.  This Agreement is for the benefit of, and may be enforced only by, Provider and Merchant 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.

 

18. Notices.All notices, requests, demands and other communications to be delivered hereunder unless specified otherwise herein shall be in writing and shall be delivered by nationally recognized overnight carrier, registered or certified mail, postage prepaid, to the following addresses:

 

• if to Provider: to the Provider address provided above, Attention President/Owner; or to such other address or to such other person as either party shall have last designated by written notice to the other party.
• if to Merchant: to the Merchant address provided above, Attention President/Owner; or to such other address or to such other person as either party shall have last designated by written notice to the other party.

Notices, etc., so delivered shall be deemed given upon receipt.

 

19. Unenforceable Provision.If any term or provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision shall not be affected thereby.

 

20. Indemnification.

Subject to the other limitations, terms and conditions of this Agreement, Provider shall indemnify, defend, and hold harmless Merchant, and its directors, officers, employees, affiliates and agents from and against all third party proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Merchant, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of Provider’s breach of this Agreement, negligence, willful misconduct, or any Data Incident, any infiltration, hack, breach, or violation  of the processing System of Provider or by reason of any breach or nonperformance of any provision of this Agreement on the part of the Provider, or its employees, agents, or customers.

Merchant shall indemnify, defend, and hold harmless Provider, Bank, and each of their directors, officers, employees, affiliates and agents from and against all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Provider, its directors, officers, employees, affiliates and agents resulting from or arising out of the System and Services in this Agreement, Merchant’s processing activities, any noncompliance with applicable law or any Operating Rules by Merchant or its agent (including any Merchant Supplier), any Data Incident, any infiltration, hack, breach, or violation  of the processing system of Merchant, its Merchant Supplier, or any other third party processor or system, or by reason of any breach or nonperformance of any provision of this Agreement on the part of the Merchant, or its employees, agents, Merchant Suppliers, or customers.

The indemnification of each party shall survive the termination of the Agreement. The indemnified party shall (i) provide prompt written notice of any claim to the indemnifying party; (ii) cooperate with all reasonable requests of the indemnifying party; and (iii) surrender exclusive control of the defense and settlement of any third party claim to the indemnifying party provided that the indemnifying party will obtain the indemnified party’s written consent prior to agreeing to any settlement or agreement that requires the indemnified party to make any admission of fault or to pay any amounts in connection with such settlement or agreement that are not fully paid for by the indemnifying party.  The indemnified party shall not unreasonably withhold or delay any consent required under this Section.  The indemnified party may elect to participate in the action with an attorney of its own choice at its own expense.

 

21. Review of Settlement Activity and Reports; Notice of Failure by Provider.Merchant agrees that it shall review all reports, notices, and invoices prepared by Provider or its agent and made available to Merchant, including but not limited to reports, notices, and invoices provided via Provider’s online reporting tool. Merchant expressly agrees that Merchant’s failure to notify Provider that Merchant has not received any settlement funds within fifteen business days from the date that settlement was due to occur, or fails to reject any report, notice, or invoice within thirty business days from the date the report or invoice is made available to Merchant, shall constitute Merchant’s acceptance of the same.  In the event Merchant believes that Provider has failed in any way to provide the Services, Merchant agrees to provide Provider with written notice, specifically detailing any alleged failure, within 30 days of the date on which the alleged failure first occurred.

 

22. Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to conflicts of law provisions.  The parties hereby consent and submit to service of process, personal jurisdiction, and venue in the state and federal courts in New York County, New York, and select such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement, and/or pertaining in any way to the relationship between Merchant and Provider.  MERCHANT AND PROVIDER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED HEREBY.

 

23. Limit of Liability; Force Majeure.

 

1. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, THE PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  MERCHANT HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND MERCHANT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
2. Without limiting the foregoing, neither party  shall be liable for lost profits, lost business or any incidental, special, consequential or punitive damages (whether or not arising out of circumstances known or foreseeable by the other party) suffered by such party, its customers, or any third party in connection with the Services provided hereunder.  However, nothing in the foregoing sentence is in any way intended, and shall not be construed, to limit (i) Merchant’s obligation to pay any fees, assessments or penalties due under this Agreement; and/or (ii) either party’s obligation to indemnify the other party pursuant to section 21. In no event shall either party be liable for any damages or losses (i) that are wholly or partially caused by the other party, or its employees, agents, or representatives, including, without limitation, Merchant Suppliers, or (ii) in the case of Provider, that were caused due to material errors in data provided by Merchant to Provider.

Other than with respect to a party’s indemnification obligations hereunder, the Merchant’s violation of Section 27, or any Data Incident suffered by Merchant or its service providers, neither party’s liability related to or arising out of this Agreement shall in any event exceed an amount equal to the lesser of (i) actual monetary damages incurred by the party or (ii) fees paid to and retained by Provider for the particular Services in question for the three calendar months immediately preceding the date on which Provider received a written notice from Merchant detailing Provider’s material nonperformance under this Agreement.  For avoidance of doubt, the cap on Provider’s liability set forth in the immediately preceding sentence will not limit Provider’s obligation to settle funds due to Merchant under this Agreement.

Neither party shall not be deemed to be in default under this Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of any Services to the extent resulting from a Force Majeure Event.  Upon such an occurrence, performance by the non-performing party shall be excused until the cause for the delay has been removed and the non-performing party has had a reasonable time to again provide the Services.Provider and Merchant recognize and agree that any limitations of liability set forth in this Agreement are fair and reasonable.

 

24. Controlling Documents.This Agreement (including all addenda and schedules and exhibits hereto and all documents and materials referenced herein) supersedes any and all other agreements, oral or written, between the parties hereto with respect to the subject matter hereof, and sets forth the complete and exclusive agreement between the parties with respect to the Services and, unless specifically provided for herein, other services are not included as part of this Agreement

 

25. Regulatory Remedial Right.Either party may immediately terminate this Agreement if:  (i) in that party’s commercially reasonable opinion, any Service or obligation violates or would violate any Operating Rules, or any federal, state or local statute or ordinance, or any regulation, order or directive of any governmental agency or court; (ii) the other party is accused by any federal, state or local jurisdiction of a violation of any applicable statute or ordinance or any regulation, order or directive of any governmental agency or court, or if a party reasonably believes, based upon the opinion of its legal counsel, that the other party may be in violation of any of the foregoing; and/or (iii) if in a party’s reasonable opinion, the other party’s activities may result in increased regulatory scrutiny or reputational harm. Provider may also suspend or cease providing any Service in this Agreement to Merchant if directed to do so by Bank.

 

 

26. Confidential Information.

 

(i) Confidential Information Supplied by Provider: Merchant acknowledges that Provider will be providing Merchant with certain confidential information, including but not limited to, this Agreement, third party audit reports, and information relating to the finances, systems, methods, techniques, programs, devices and operations of Provider.  Merchant shall not disclose any such confidential information to any person or entity (other than to those employees and Merchant Suppliers of Merchant who participate directly in the performance of this Agreement and need access to such information). Without limiting the foregoing, Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule, or regulation).

 

(ii) Confidential Information Supplied by Merchant: Provider acknowledges that Merchant will be providing Provider with certain confidential information, including information relating to the methods, techniques, programs, devices and operations of Merchant.  Such confidential information does not include transaction information which has been de-identified or aggregated.  Provider will not disclose confidential and proprietary information about Merchant to any person or entity (other than to those employees and agents of Provider who participate directly in the performance of this Agreement and need access to such information).  Notwithstanding anything to the contrary in this Agreement, Provider may use, disclose, share, and retain any information provided by Merchant and/or arising out of the Services, during the term and thereafter,: (a) with Merchant’s franchisor, Merchant’s franchisee(s), (b) with any affiliate of Merchant; (c) in response to subpoenas, warrants, court orders or other legal processes; (d) in response to requests from law enforcement agencies or government entities; (e) to comply with applicable laws, regulations, or any Operating Rules; (f) with Provider’s affiliates, partners and agents; (g) to perform analytic services for Merchant, Provider and/or others including but not limited to analyzing, tracking, and comparing transaction and other data to develop and provide insights for such parties as well as for developing, marketing, maintaining and/or improving Provider’s products and services; and/or (h) to offer or provide the Services hereunder.

(iii) Miscellaneous:  The parties acknowledge that the injury that would be sustained by the party disclosing information as a result of the violation of this Section 27 cannot be compensated solely by money damages, and therefore agrees that the disclosing party shall be entitled to seek injunctive relief and any other remedies as may be available at law or in equity in the event of a violation of the provisions contained in this Section 27.  The restrictions contained in this Section 27 shall not apply to any information which becomes a matter of public knowledge, other than through a violation of this Agreement or other agreements between the parties.

 

(iv) Publicity:  Merchant and Provider agree that they will work together to issue a mutually agreeable joint press release after the execution of this agreement and/or after the conversion of Merchant to Provider’s Services. In any event, Merchant acknowledges and agrees that Provider may make public the execution of this Agreement by Merchant and/or any of Merchant’s affiliates, and/or the Services that may be or have been provided under the Agreement.  Merchant agrees that Provider may include Merchant’s name and logo on a list of Provider’s customers, which may be made public.  Merchant agrees that, upon Provider’s request, Merchant will provide testimonial information related to the Services received by Merchant hereunder.

 

28. Financial Statements.If at any time Merchant is not a publicly traded company, Merchant shall provide Provider with an audited financial statement for Merchant’s most recent fiscal year end and/or quarterly financial statements prepared and certified by Merchant’s chief financial officer within 15 days of Provider’s request therefore.

 

 

29. No Waiver. If either party waives in writing an unsatisfied condition, representation, warranty, undertaking or agreement (or portion thereof) set forth herein, the waiving party shall thereafter be barred from recovering, and thereafter shall not seek to recover, any damages, claims, losses, liabilities or expenses, including, without limitation, legal and other expenses, from the other party in respect of the matter or matters so waived.  Except as otherwise specifically provided for in this Agreement, the failure of any party to promptly enforce its rights herein shall not be construed to be a waiver of such rights unless agreed to in writing.  Any rights and remedies specifically provided for in any addendum or schedule or exhibit are in addition to those rights and remedies set forth in this Agreement and/or available to Provider at law or in equity.

 

30. Compliance with Law. Each party represents to the other that it will comply with all applicable federal, state and local laws and regulations in connection with the Services and/or applicable to that party’s business operations.

 

31. Security, Data Incidents.Merchant will be solely responsible for the security, quality, accuracy, and adequacy of all transactions and information supplied hereunder, and will establish and maintain adequate audit controls to monitor the security, quality, maintenance, and delivery of such data.  Without limiting the generality of the foregoing, Merchant represents and warrants to Provider that it has implemented and will maintain secure systems for maintaining and processing information and for transmitting information to Provider.  Provider shall have no liability whatsoever for the security or availability of any communications connection used in connection with the Services provided hereunder. Merchant acknowledges that Provider is responsible only for the security of its own proprietary systems, and not for the systems of any third party, including without limitation any Merchant Supplier of Merchant. Merchant shall notify Provider immediately if Merchant becomes aware of or suspects a Data Incident.  Merchant agrees to fully cooperate with Provider with respect to any investigation and/or additional requirements related to a suspected Data Incident.

 

32. Audits.During regular business hours and upon fourteen (14) days’ notice to Merchant, Merchant shall allow auditors, including the auditors any third party designated by Provider or Bank, to review the files held and the procedures followed by Merchant directly related to this Agreement at Merchant’s primary place of business.  Such audit shall be at Provider’s expense.  Merchant will assist such auditors as may be necessary for them to complete their audit.

 

33. System Requirements and Upgrades.Merchant agrees that the Services shall be provided in accordance with Provider’s then current systems, standards and procedures and that Provider shall not be required to perform any special programming, to provide any special hardware or software or to implement any other system, program or procedure for Merchant.  Unless otherwise agreed in writing by Provider, all sales transaction, settlement and other data and information used in connection with the Services shall be provided to Provider in Provider’s then current data formats and by means of Provider’s then current telecommunications configurations and protocols. Provider may make changes in the System or Services based upon, but not limited to, technological developments, legislative or regulatory changes, or the introduction of new services by Provider.  Merchant shall comply with all reasonable time deadlines, equipment and software maintenance and upgrading requirements to the extent required by Provider.  Merchant shall use best efforts to comply with all other reasonable time deadlines, equipment and software maintenance and upgrading requirements which Provider may reasonably impose on Merchant from time to time.

34.Title to the Services.Merchant agrees it is acquiring only a nontransferable, nonexclusive right to use the System and Services.  Provider shall at all times retain exclusive title to the System and Services, including without limitation, any materials delivered to Merchant hereunder and any invention, development, product, trade name, trademark, service mark, software program, or derivative thereof, developed in connection with providing the Services or during the term of this Agreement.

35.Security Interest.

(i) Merchant’s Grant of Security Interest:  To secure Merchant’s performance of its obligations under this Agreement, and any other agreement with Provider, Merchant grants Provider a security interest in each transaction and its proceeds, the Account, and in the proceeds of all those accounts, any funds due to Merchant from Provider and any of Merchant’s property held by Bank or Provider (collectively, the “Secured Assets”).  Merchant represents and warrants that no other person or entity has a security interest in the Secured Assets. With respect to such security interests and liens, Provider will have all rights afforded under the Uniform Commercial Code and any other applicable law and in equity.  Merchant must obtain Provider’s written consent prior to granting a security interest of any kind in the Secured Assets to a third party.  Provider may enforce these security interests without notice or demand. The security interests granted under this Agreement will continue after this Agreement terminates, until Merchant satisfies all its obligations to Provider.

Furthermore, and with respect to any security interests granted herein, Provider will have all rights afforded under the Uniform Commercial Code, as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, then Provider will have all rights afforded under the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law.

(ii) Perfection of Security Interest:  Upon request of Provider, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Provider under this Section 35.  Merchant shall cooperate with Provider in obtaining any control agreement or similar agreement with a depository bank necessary to perfect the security interests granted herein. In addition, Merchant agrees that its signature on this Agreement will be considered Merchant’s signature agreeing to any control agreement as defined in Article 9 of the Uniform Commercial Code among Merchant, Provider, and any other financial institution under which Provider, Merchant and any other financial institution agree to the disposition of funds in the Account or any other deposit account without further consent by Merchant.

(iii) Set-off: Provider has the right of recoupment and set-off.  This means that Provider may offset any outstanding or uncollected amounts owed to Provider from: (a) any amounts owed to Merchant that Provider would otherwise be obligated to deposit into the Account, (b) any other amounts Provider may owe you under this Agreement or any other agreement, and (c) the Account.

36. Modification of Agreement.Except as provided in this Agreement, this Agreement including any addendum or schedule or exhibit hereto shall only be modified or amended by an instrument in writing signed by Merchant and Provider. Any changes, additions, stipulations or deletions, including lining out, by Merchant, except where indicated by a space to be filled in (e.g., the space for Merchant’s name and address), shall not be deemed to be agreed to or binding upon Provider unless agreed to in writing in the form of an amendment signed by each party hereto.

 

37. Headings and Construction.The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision.  Merchant and Provider each acknowledge that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiation between the parties and represent the parties’ voluntary agreement.  The parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this document.

 

38. Authorization.Each of the parties hereto represents and warrants on behalf of itself that it has full power and authority to enter into this Agreement; that the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate, limited liability company or partnership or other appropriate authorizing actions; that the execution, delivery and performance of this Agreement will not contravene any applicable bylaw, corporate charter, operating agreement, partnership or joint venture agreement, law, regulation, order or judgment; that execution, delivery and performance of this Agreement will not contravene any provision or constitute a default under any other agreement, license or contract which such party is bound; and, that this Agreement is valid and enforceable in accordance with its terms.

 

39. Counterparts.This Agreement may be executed and delivered in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

40. Facsimile and Electronic Signatures. Merchant and Provider agree that electronic signatures will have the same legal effect as original (i.e. ink) signatures and that an electronic, scanned, facsimile, or duplicate copy of any signatures will be deemed an original may be used as evidence of execution.

 

41. Bank.The Provider and Bank may jointly or individually assert or exercise any rights or remedies provided to Provider and Bank hereunder.  Provider and Bank reserve the right to allocate the duties and obligations assigned hereunder to Provider between themselves, as they deem appropriate in their sole discretion.Provider is party to an agreement with Bank and under such agreement is authorized to provide the services described herein. This Agreement shall be deemed accepted by Bank as of the date the first transaction is acquired under this Agreement. The Bank may delegate certain or all of its duties to an affiliate of the Bank at any time.  The Bank may be changed, and its rights and obligations assigned to another party by Provider at any time without notice to Merchant.

 

Terms and Conditions: I understand and agree that any and all changes in my account information, including requests to terminate this agreement, must be in writing and be delivered to CUSTOMER SERVICE ADDRESS, at least 21 days prior to the next due date. If the payment due date falls on a weekend or holiday, I understand and agree that the payment may be executed on the next or prior business day. I understand and agree that as this is an electronic transaction, adequate funds must be available for withdrawal from or debit to my account by the payment due date. In the case of a charge being rejected for Non-Sufficient Funds (NSF),
submission error, or other bank related return reasons I understand and agree that the company may at its discretion resubmit the debit transaction within thirty (30) days. I acknowledge that the debit to my account must comply with provisions of U.S. law and agree not to dispute this recurring billing with my bank so long as the transactions correspond to the terms indicated in this authorization form.

INCLUDE THE BELOW STATEMENT IF YOU ARE GOING TO CHARGE FOR RETURNS OR DECLINES

I also understand and agree that a return item charge of HOW MUCH MONEY may be assessed for each decline or returned debit.