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15. Indemnification
<br />Company will indemnify, defend, and hold TeleCheck harmless for all losses,
<br />damages, costs, or expenses (including reasonable attorney's fees) claimed against
<br />it by third parties, which arise from Company's gross negligence, willful misconduct,
<br />or breach under this Agreement.
<br />ottamages
<br />Neither party will be liable to the other for lost profits, revenues or business
<br />opportunities, nor any exemplary, punitive, special, indirect, incidental, or
<br />consequential damages (whether any are direct or indirect); regardless of whether
<br />these damages were foreseeable or either party was advised they were possible.
<br />17. Limitation of Liability
<br />TeleCheck' aggregate liability to Company for losses arising from any cause
<br />(regardless of the form of action or legal theory) in connection with this Agreement
<br />will be limited to $75,000.00
<br />18. Notices
<br />Written notices (other than normal operations) required under this Agreement will be
<br />sent by certified mail or national courier (with tracking and delivery confirmation).
<br />TeleCheck may also provide written notices required under this Agreement by
<br />regular mail. Notices will be effective upon receipt. Notices to Company will be sent
<br />to the address it provides on the TeleCheck Service Application and Agreement.
<br />Notices to TeleCheck will be sent to: TeleCheck Services, Inc., Attn: TeleCheck
<br />Merchant Services, Mail Stop A-12; 7301 Pacific Street, Omaha, NE 68114; with
<br />copies to TeleCheck Services, Inc., Attn: General Counsel's Office, 3975 N.W.
<br />120th Avenue, Coral Springs, FL 33065 and legal2apers cDfirstdata com
<br />19. Third Party Beneficiaries
<br />There are no third party beneficiaries to this Agreement other than TeleCheck'
<br />subsidiaries and affiliates involved in providing the Services to Company. Each party
<br />is responsible for the performance of any third parties it uses in connection with the
<br />Services, and their compliance with the terms of this Agreement. TeleCheck is not
<br />responsible or liable to Company for any errors or breaches of this Agreement that
<br />occur because of Company's third party providers (e.g., without limitation, issues
<br />that arise from ACH network participants, or if Company uses third party providers
<br />or applications to capture electronic images of Items to submit to TeleCheck).
<br />TeleCheck may audit Company's compliance with this Agreement upon reasonable
<br />notice, during normal business hours, and at TeleCheck's expense; and as required
<br />by the NACHA Rules. TeleCheck's Originating Depository Financial Institution may
<br />also audit Company's compliance with this Agreement and the NACHA Rules.
<br />i
<br />. Waivers
<br />A party's delay or failure to exercise any of its rights under this Agreement will not
<br />be a waiver of those rights.
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />J.R. SMITH, CLERK
<br />21.1. Compliance with Law. The parties will comply with all laws, regulations, and
<br />rules (including ACH's network rules, requirements, and standards; the NACHA
<br />Rules)(together Laws) that are applicable to their respective performance
<br />obligations under this Agreement. Company acknowledges that it is the Originator
<br />under the NACHA Rules with respect to its transactions and agrees to comply with
<br />its obligations as an Originator. Company certifies that it has a legitimate business
<br />need for the information that TeleCheck provides through its Services, will use the
<br />information in connection with submitting payment transactions to TeleCheck for
<br />processing and for no other purpose, and will use the information only for
<br />permissible purposes under the Fair Credit Reporting Act (Company will not use
<br />TeleCheck's information for employment related purposes).
<br />21.2. Choice of Law; Waiver of Jury Trial. This Agreement will be governed by
<br />New York law (without regard to its choice of law provisions). The courts of New
<br />York, New York will be the proper venue for legal proceedings brought in connection
<br />with this Agreement. TeleCheck and Company each waive their right to a jury
<br />trial for claims arising in connection with this Agreement.
<br />22. Entire Agreement, Amendment, Counterparts
<br />The defined term Agreement includes its schedules, addenda, and any
<br />amendments (capitalized terms used in the schedules, addenda, or amendments
<br />without definition will have the meanings given to them in this Agreement). This
<br />Agreement is the entire agreement between the parties and replaces any prior
<br />agreements or understandings (written or oral) with respect to its subject matter.
<br />Except as set forth in Section 11.2, modifications to this Agreement must be in
<br />writing, executed by the parties. This Agreement and any amendments may be
<br />executed electronically and in counterparts, each of which constitutes one
<br />agreement when taken together. Electronic and other copies of the executed
<br />Agreement are valid.
<br />23. Assignment
<br />Company may not assign this Agreement without TeleCheck's written consent.
<br />TeleCheck may assign this Agreement upon notice to Company. This Agreement
<br />will be enforceable against a party's permitted successors or assigns. This
<br />Agreement may not be continued, assumed, or assigned in the event of a
<br />bankruptcy or other insolvency event without consent from the non -bankrupt or
<br />insolvent parties.
<br />CardCo2305 45
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