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43.3.3. If Servicers reasonably suspect that Client is not in compliance with Card
<br />Organization Rules or the terms of this Section (including Section 43.2.4 above),
<br />Servicers, in their sole discretion, may: (a) immediately cease processing Client's
<br />GeP Sales Transactions until such time as the Client verifies compliance to Servicer'
<br />s satisfaction, and/or (b) terminate this agreement immediately.
<br />43.3.4. Servicers may terminate this Service:
<br />a) Immediately upon a breach by Client of its confidentiality obligations under this
<br />Section;
<br />b) For any of the reasons set forth in the Agreement that permit Servicers to
<br />terminate the Agreement if applicable to the GeP Services; or
<br />c) As otherwise set forth in this Section.
<br />43.3.5. Client may terminate this GeP Service for any of the reasons set forth in the
<br />Agreement that permit Client to terminate the Agreement if applicable to the GeP
<br />Services, or as otherwise set forth in this Section.
<br />43.3.6. Termination of the Agreement shall effect a termination of this GeP Service.
<br />43.4. Third Party Beneficiaries. Servicers are direct and intended third party
<br />beneficiaries to the Global ePricing Service, and may enforce their rights under this
<br />Section directly against Client.
<br />43.5. Indemnification.
<br />43.5.1. All limitations of liability and liability disclaimers set forth in the Agreement
<br />shall apply to any liability of Servicers and the liability of Servicers shall be limited to
<br />the same amount and to the same extent as Servicers' limitations set forth in the
<br />Agreement.
<br />43.5.2. In addition to the indemnification obligations in the Agreement, Client agrees
<br />to indemnify and hold harmless Servicers from and against all losses, liabilities,
<br />damages, and expenses (including reasonable attorneys' fees and collection costs)
<br />resulting from third party claims related to any acts or omissions of Client in
<br />connection with any GeP Sales Transaction or other GeP transaction, including any
<br />alleged misrepresentation or deceptive or unlawful trade practice, a violation of
<br />applicable law or the Card Organization Rules, or a breach of any of Client's
<br />obligations under this Section. Any limitations on Client's liability which may be
<br />specified in the Agreement shall not be applicable to Client's indemnification
<br />obligation set forth in the preceding sentence.
<br />F_ 44. Choice of Law; Venue; Waiver of Jury Trial i
<br />44.1. Choice of Law. Choice of Law. Our Agreement shall be governed by and
<br />construed in accordance with the laws of the State of New York (without regard to
<br />its choice of law provisions).
<br />44.2. Venue. We have substantial facilities in the State of New York and many of
<br />the services provided under this Agreement are provided from these facilities. The
<br />exclusive venue for any actions or claims arising under or related to this Agreement
<br />shall be in the appropriate state or federal court located in Suffolk County, New York.
<br />44.3. Waiver of Jury Trial. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL
<br />RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL
<br />PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER
<br />THIS AGREEMENT.
<br />45. Sther
<br />45.1. Force Majeure. No party shall be liable for any default or delay in the
<br />performance of its obligations under this Agreement if and to the extent such default
<br />or delay is caused, directly or indirectly, by (i) fire, flood, earthquake, elements of
<br />nature or other acts of God;(ii) any terrorist attacks or outbreak or escalation of
<br />hostilities, war, riots or civil disorders in any country; (iii) any act or omission of the
<br />other party or any government authority;(iv) any labor disputes (whether or not
<br />employees' demands are reasonable or within the party's power to satisfy); or (v)
<br />the nonperformance by a Person for any similar cause beyond the reasonable
<br />control of such party, including without limitation, failures or fluctuations in
<br />telecommunications or other equipment. In any such event, the non-performing
<br />party shall be excused from any further performance and observance of the
<br />obligations so affected only for as long as such circumstances prevail and such
<br />party continues to use commercially reasonable efforts to recommence performance
<br />or observance as soon as practicable. Notwithstanding anything to the contrary in
<br />this paragraph, your failure to receive payment or funds from a Person shall not
<br />excuse the performance of your obligations to us under this Agreement.
<br />45.2. Compliance with Laws. In performing its obligations under this Agreement,
<br />each party agrees to comply with all laws and regulations applicable to it. You
<br />further agree to cooperate and provide information requested by Servicers, as
<br />Servicers determine necessary, to facilitate Servicers compliance with any
<br />applicable law including without limitation the rules and regulations promulgated by
<br />the Office of Foreign Assets Control of the US Department of the Treasury. You
<br />further acknowledge and agree that you will not use your merchant account and/or
<br />the Services for illegal transactions, for example, those prohibited by the Unlawful
<br />Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may be
<br />amended from time to time, or those involving any Person listed on the U.S.
<br />Department of Treasury, Office of Foreign Assets Control, Specially Designated
<br />Nationals and Blocked Persons List (available at www.treas.gov/ofac) or the U.S.
<br />Department of State's Terrorist Exclusion List (available at www.state.gov), or for
<br />the processing and acceptance of transactions in certain jurisdictions pursuant to 31
<br />CFR Part 500 et seq. and other laws enforced by the
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />Office of Foreign Assets Control ("OFAC")b.iRnPf1b$14{of1LWp(egal activity of any
<br />kind.
<br />45.3. Notices. Except as otherwise specifically provided, all notices and other
<br />commun -ications required or permitted hereunder (other than those involving
<br />normal operational matters relating to the processing of Card transactions) shall be
<br />in writing, if to you at your address appearing in the Application or by any electronic
<br />means, including but not limited to the e-mail address you have provided on the
<br />Application. If to us at our address appearing in Section A.5 of Part IV of this
<br />Agreement, with a copy to Attention: General Counsel's Office, 3975 N.W. 120th
<br />Avenue, Coral Springs, FL 33065, and Notices shall be deemed to have been given
<br />(i) if sent by mail or courier, upon the earlier of five (5) days after mailing or when
<br />actually received or, in the case of courier, when delivered, and (ii) if sent by
<br />facsimile machine, when the courier confirmation copy is actually received. Notice
<br />given in any other manner shall be effective when actually received. Notices sent to
<br />the your last known address (including e-mail address), as indicated in our records,
<br />shall constitute effective notice to the Merchant under this Agreement. If you change
<br />your address (including your e-mail address), you must notify us at least 30 days
<br />prior of the effective date of any such change. Failure to provide us with a valid
<br />address (including e-mail address) may result in the termination of the Agreement.
<br />Notwithstanding the above, all bankruptcy or collection related notices must be sent
<br />to the following address Telecheck Services Inc., PO Box 6806, Hagerstown, MD
<br />21741-6806, Attn: Bankruptcy and Collection Notifications. All such notices must
<br />include the related merchant name and merchant number. Failure to provide Notice
<br />to this address or include this pertinent merchant information will be deemed
<br />ineffective. All notices must include your merchant name(s) and merchant number
<br />(s). Failure to provide notice in the manner described in this Section will be deemed
<br />ineffective.
<br />45.4. Headings. The headings contained in this Agreement are for convenience of
<br />reference only and shall not in any way affect the meaning or construction of any
<br />provision of this Agreement.
<br />45.5. Severability. The parties intend every provision of this Agreement to be
<br />severable. If any part of this Agreement is not enforceable, the remaining provisions
<br />shall remain valid and enforceable.
<br />45.6. Entire Agreement; Waiver. This Agreement constitutes the entire Agreement
<br />between the parties with respect to the subject matter thereof, and supersedes any
<br />previous agreements and understandings. A party's waiver of a breach of any term
<br />or condition of this Agreement shall not be deemed a waiver of any subsequent
<br />breach of the same or another term or condition.
<br />45.7. Amendment. We may modify any provision of this Agreement by providing
<br />written notice to you. You may choose not to accept the requirements of any such
<br />change by terminating the Agreement within twenty (20) days of receiving notice. If
<br />you choose to do so, notify us that you are terminating for this reason so that we
<br />may waive any early termination fee that might otherwise apply. For purposes of this
<br />section, an electronic or "click -wrap" notice intended to modify or amend this
<br />Agreement and which you check "I Accept" or "I Agree" or otherwise accept through
<br />an electronic process, shall constitute in writing as required herein. This Section
<br />45.7 does not apply to fee changes, which are governed by Sections 25.4 and 25.5.
<br />45.8. Third Party Beneficiaries. Our respective Affiliates and any Persons we use
<br />in providing the Services are third party beneficiaries of this Agreement and each of
<br />them may enforce its provisions as it was a party hereto. Except as expressly
<br />provided in this Agreement, nothing in this Agreement is intended to confer upon
<br />any Person any rights or remedies, and the parties do not intend for any Persons to
<br />be third -party beneficiaries of this Agreement.
<br />45.9. Card Organization Rules. The parties acknowledge that the Visa,
<br />Mastercard, Discover Network and PayPal Card Organization Rules give Visa,
<br />Mastercard, Discover Network and PayPal certain rights to require termination or
<br />modification of this Agreement with respect to transactions involving Visa,
<br />Mastercard, Discover Network and PayPal Cards and the Visa, Mastercard,
<br />Discover Network and PayPal Card systems and to investigate you. The parties also
<br />acknowledge that issuers of other Cards, for which we perform services on your
<br />behalf, may have similar rights under their applicable Card Organization Rules with -
<br />respect to this Agreement's applicability to transactions involving such other Cards.
<br />45.10. Publicity. Client may not use the logo, name, trademark, or service mark of
<br />Processor and/or Bank in any manner, including without limitation, in any
<br />advertisements, displays, or press releases, without the prior written consent of
<br />Processor and Bank.
<br />45.11. E -SIGN CONSENT AGREEMENT
<br />45.11.1. Consent
<br />By signing the Confirmation Page, you consent and agree that:
<br />a) Processor can provide disclosures required by law and other information about
<br />your legal rights and duties to you electronically.
<br />CardCo2305 38
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