Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2019-093
1D Internal CONFIDENTIAL FIRST AMENDMENT TO MERCHANT PROCESSING APPLICATION AND AGREEMENT This First Amendment (the "Amendment") to the Merchant Processing Application and Agreement ("MPA") is made and entered into as of ("Effective Date"), by and between TD Bank, N.A. ("Bank") and ("Merchant", "you" or "your"). Merchant and Bank may be collectively referred to herein as the "Parties" or individually as a "Party." Capitalized terms not defined in this Amendment have the meanings given to them in the MPA. Details outlined within the Amendment take precedence over any contradictory details contained within the MPA as well as the General Terms & Conditions. RECITALS WHEREAS, Merchant and Bank have entered into, or are entering into in conjunction with this amendment, the MPA; WHEREAS, Merchant and Bank desire to amend the MPA in accordance with the terms and conditions of this Amendment; NOW THEREFORE, in consideration of the mutual covenants set forth below, Bank and Merchant hereby agree as follows: AGREEMENT 1. No Personal Guarantee Notwithstanding any provision of the MPA to the contrary, the Parties agree and acknowledge that the MPA shall not require any personal guarantee. Any reference to a personal guarantee or personal guarantee shall be given no effect. Any signatory to the MPA signs only in their official capacity of the legal entity, Merchant or Bank as applicable, and not in their personal capacity. 2. Amendment to Part I: Confirmation Page, Your Responsibilities, Paragraph (b) Your Responsibilities, Paragraph (b) of the MPA, Part I: Confirmation Page, is hereby deleted and replaced in its entirety with the following new Paragraph (b): b) Intentionally Omitted. 3. Amendment to Part II: General Terms & Conditions, Section 2.2 Section 2.2 of the MPA, Part II: General Terms & Conditions, is hereby amended to address a scrivener's error by inserting the word "have" such that the first sentence reads as follows: If you have otherwise been approved for accepting American Express or WEX, your American Express and WEX transactions will be processed through and funded by American Express or WEX (as applicable). 4. Amendment to Part II: General Terms and Conditions, Section 4.3. Confidential Page 1 of 5 CONFIDENTIAL Section 4.3 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 4.3: 4.3 Advertising. To the extent required by and in accordance with the Card Organization Rules, you shall display Card service marks, as provided by us, to inform the public which Cards shall be honored at your place(s) of business. Your right to use or display Card service marks is solely as authorized by us and shall continue while this Agreement remains in effect or until you are notified by us or a Card Organization to cease their use and display. Subject to our authorization, you may use Card service marks on promotional, printed or broadcast materials only to indicate that Cards are accepted for payment, and you shall not indicate, directly or indirectly, that any Card Organization endorses any of your goods or services. 5. Amendment to Part 11: General Terms and Conditions, Section 15.1 Section 15.1 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 15.1: 15.1 You shall safeguard all confidential information we supply or otherwise make accessible to you (including the terms of this Agreement) using a reasonable degree of care. You shall only use our confidential information for the purposes of this Agreement and shall not disclose our confidential information to any Person, except as we may agree in advance and in writing or as required by Applicable Law. If you are required to disclose our confidential information pursuant to Applicable Law, you will only disclose information to the extent and for the purposes of such required disclosure, and you shall, to the extent practicable and legally permissible, first notify us of the pending disclosure and permit us to seek an appropriate protective or confidential treatment order. Unless prohibited by Applicable Law, at our request you shall return to us or destroy all of our confidential information in your possession or control. 6. Amendment to Part 11: General Terms & Conditions, Section 19.4. Section 19.4 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 19.4: 19.4 Intentionally Omitted. 7. Amendment to Part 11: General Terms & Conditions, Section 19.9. Section 19.9 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 19.9: 19.9 In addition to other termination rights set forth herein, this Agreement also may be terminated upon 90 days prior written notice from either party to the other party, in the terminating party's sole discretion, with or without cause. 8. Amendment to Part 11: General Terms & Conditions, Section 29.1. Confidential Page 2 of 5 Internal CONFIDENTIAL Section 29.1 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 29.1: 29.1 In addition to, but not in lieu of any indemnification provision otherwise contained in this Agreement not pertaining to you, subject to the provisions and limitations of Section 768.28, Florida Statutes, as applicable and as the same may be amended from time to time, you agree to indemnify and hold us, our Affiliates and third party service providers harmless from and against losses, liability, damages, claims, penalties, costs, or expenses incurred arising from:(a) any breach or misrepresentation by you under this Agreement; (b) your or your employees' or your agents' unlawful, willful, negligent or fraudulent action or omission that is in any way related to this Agreement or the obligations of you or us hereunder; (c) your use of the Services, including any Software or Equipment provided under this Agreement; (d) any third party indemnifications or payments we are obligated to make as a result of any action or omission by you or your employees or your agents (including indemnification of any Card Organization or Issuer); (e) your use of any Cardholder Information or other customer information obtained in connection with your use of the Services; (f) the content or delivery of any marketing messages that you send or cause to be sent to any customer; or (g) any other persons authorized or unauthorized access and/or use of any Service, Software or Equipment, whether or not using your unique username, password, or other security features. 9. Amendment to Part II: General Terms and Conditions, Section 29.2 Section 29.2 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 29.2: 29.2 Intentionally Omitted. 10. Amendment to Part II: General Terms & Conditions, Section 30.1 Section 30.1 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 30.1: 30.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to any conflict of laws provisions. 11. Amendment to Part II: General Terms & Conditions, Section 30.2 Section 30.2 of the MPA, Part II: General Terms & Conditions, is hereby deleted and replaced in its entirety with the following new section 30.2: 30.2 Subject to the provisions and limitations of Section 768.28, Florida Statutes, as applicable and as the same may be amended from time to time, you shall be liable for and indemnify us and our affiliates, officers, directors, employees and agents against any and all attorney's fees, costs and expenses incurred by us in the enforcement of your obligations under this Agreement. 12. Amendment to Part II: General Terms & Conditions, Section 31.1 Confidential Page 3 of 5 Internal CONFIDENTIAL Section 31.1 of the MPA, Part II: General Terms & Conditions, is hereby amended to strike the word "faxed," such that the first sentence reads as follows: Unless otherwise expressly stated in this Agreement, all notices hereunder shall be in writing and either hand delivered, sent by electronic mail, sent by overnight courier, or mailed first class (postage prepaid). 13. Amendment to Section 41.2. Section 41.2 of the MPA, Part II: General Terms & Conditions, is hereby amended by deleting the following defined terms: Guarantor: means any party who signs on the Personal Guarantee signature line(s) of the Application. See section 29.2. Personal Guarantee: See section 29.2. Personal Guarantee: see section 29.2. This term may also be referred to as Personal Guaranty. 14. Authority. The Parties represent and warrant that the execution, delivery and performance of this Amendment does not: (i) violate, or result in the breach of, any provision of their respective organizational documents; (ii) conflict with, or result in the breach of, require consent under, or constitute a default under, any contract by which each respective Party is bound, or (iii) violate any Applicable Law or Card Organization Rules applicable to each respective Party, and (iv) upon execution, will constitute a legal binding obligation upon each Party. Each Party further represents that the person signing this Amendment on behalf of the Party is an Authorized Representative. For clarity, the person signing this Amendment on behalf of Bank is not a Sales Representative, is not subject to the restriction on the Merchant application that states "NO SALES REPRESENTATIVE IS AUTHORIZED TO ACCEPT OR AGREE TO ANY ALTERATIONS TO THIS AGREEMENT," and is authorized to accept and agree to alterations of the MPA. 15. Entire Agreement. Except as specifically amended hereby, the MPA, and all terms contained therein, remains in full force and effect. The MPA, as amended by this Amendment, constitutes the entire understanding of the parties with respect to the subject matter hereof. If an inconsistency exists between the terms of the MPA and the terms of this Amendment, the terms of this Amendment shall prevail with respect to such inconsistency. 16. Governing Law. Confidential Page 4 of 5 Internal Internal CONFIDENTIAL This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to any conflict of laws provisions. 17. Captions. The captions in this Amendment are for convenience only and will not be considered a part of or affect the construction or interpretation of any provision of this Amendment. 18. Counterparts. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one agreement. By signing Merchant's Signature: Print Name:' Bob Solari below, I certify I have rea'ati Gp .. Authorized Repreieritativ :o• ,gree to the terms of this Amendment. Bank, N.A. P:Signature: �UNTY,...\, Title: r,i,:.::Chairman Date: June 18, 2019 APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY DYLAN REINGOLD COUNTY ATTORNEY Attest: Jeffrey R. Smith, Clerk of Circuit Court and Comptroller Confidential Print Name: Title: Date: Page 5 of 5 I Resetform MERCHANT PROCESSING APPLICATION AND AGREEMENT (Page I of 3) © Bank Mnnkft Most Con vnnM lank• TD2008 is (1) TELL US ABOUT YOUR BUSINESS Legal Name: Indian River County Board of County Commissions Store #: Loc. 1 of DBA/Outlet Name: Indian River County First/Last Contact Name: Raeanne Cone Address: 1801 27th Street Business Phone: (772) 226-1219 Suite #: city: Vero Beach State: FL zip: 3291 Customer Service Phone: Fax Phone: Cell Phone: E -Mall Address: Website URL Address: TIN Type: Ii7 EIN (Fed Tax ID #) 0 SSN Retrieval Requests: 0 Dedicated 24 hour fax 0 No fax; mail O Dispute Manager NOTE: Failure to provide accurate information may require us to withhold income tax from your funding per IRS regulations. Name (as it appears on your income tax return) Count of Indian River Y IN Federal Tax ID# (as It appears on your Income tax return) 596-00-0674 0 1 certify that 1 am a foreign entity/nonresident alien. (If checked, please attach IRS Form W-8.) Product/Services you sell: Time frame from transaction to delivery: % of orders delivered in: 0-7 days 1 OO % + 8-14 days % + 15-30 days Who performs product/service fulfillment? Direct X + over 30 days % = 100% Vendor If Vendor, add name, address, phone. 0 Other: (specify) Do you use any third party to store, process or transmit cardholder data? 0 Yes M No If yes, give name/address: Please identify any Software used for storing, transmitting, or processing card transactions or authorization requests. (2) OWNERSHIP State Organized: F L Mo/Yr Started: 06/25 0 Sole Ownership 0 Partnership 0 Non Profit/Tax Exempt ❑ Public Corp. 0 Private Corp. 0 LLC O Gov't. Owner/Partner/Officer Name: D.O.B.: Social Security #: Home Phone: Ownership %: Home Address: City: State: Zip: Country: US Form of ID Verified: OK 0 Expiration Date: State: Owner/Partner/Officer Name: D.O.B.: Social Security #: Home Phone: Ownership %: Home Address: City: State: Zip: Country: US Form of ID Verified: OK 0 Expiration Date: State: (3) BUSINESS FINANCIAL DATA Total Annual Volume This Location Cash & Credit $ 325,842,601 MasterCard/Visa $ 3,000,000 All Locations $ 325,842,601 $ 3,000,000 Discover/PayPa1 $ 30,000 $ 30,000 American OptBlue Express $ 21,000 $ 21,000 P Voyager WEX Average Card Sale Amount $ 160 Highest Sale Amount $ 500 Card Present Internet Mail Order/ Direct Marketing Phone Order Total 100 % Swiped Keyed Total 100 % (4) BANKING AND FUNDING INFORMATION ABA: 067014822 DDA: 4308981805 8 Attach a copy of funding check or bank letterhead/logo signed by a bank officer with typed ABA/DDA. Bust include bank name and address. Deduct Fees: 0 Daily (excluding Flat Rate) or O Monthly (fee will apply) Bank Will Fund: E Outlet 0 Head Office (5) PAYMENTS ACCEPTED I3 MasterCard/Visa Credit and Signature Debit B Discover Credit and Signature Debit (Full Service Processing) O PIN Debit O PINIess Debit O American Express OptBlue 0 Voyager Fleet 0 Voyager Tax Exempt Program ❑ WEX Full Acquiring ❑ WEX (Non -Full Acquiring) ❑ MC Fleet ❑ EBT 0 American Express Pass Through SE 0 Split DIaI ❑ EDC May 2018 Manual MPA - CAP # 48360 MERCHANT PROCESSING APPLICATION AND AGREEMENT (Page 2of 3) DBA Name: Indian River County Loc. 1 of TD2008 is (6) EQUIPMENT DETAILS MIGIMIMESU Rental • Purchase Customer -Owned Lease* OTT Ip Equipment Type Industry Type Model Code and Name Unit Price w/o Tax and S&H For Customer -Owned Equipment Track/Version/Serial # Other: ( ) $ Total Amount $ w/o tax ❑ Debit Fees* $ (Applies to Signature, PIN and PINIess Debit) Sales/Return Transaction Fee (124,125) $ Unbundled Debit Transaction Fee (018) $ .15 0 *Plus applicable PIN Debit Network fees. Miscellaneous Fees* (If Applicable) $ TransArmor Data Protection Tokenization & Encryption (per authorization) (12E,12G, 121) $ .01 % % % % PCI Non -Compliance Fee (42G) $ 20.00 0 Monthly Account Minimum Fee (954) $ 15.00 Paper Statement Fee (240) $ 0 (Default Is free electronic statement) Chargeback Fee (205, 725, 20L) $ 25.00 $ Batch Settlement Fee (227) $ 0.19 Monthly Funding Advantage (158) 0.00 AVS (405, 406, 407, 408, 07A, 07B, 07C, 069, 079) $ 0.01 0 MasterCard/Visa/Discover Network Access Fee (505, 504, 526) $ 0.0195 MasterCard License Volume Fee (818) 0.0075 MasterCard Cross Border Fee (605, 606) 0.60 $ American Express Authorization Fee (10P) $ .21 Shipping and Handling: Standard $ 20.00 Overnigh $ 50.00 M Enable EMV *See Equipment Lease Agreement for the Terms and Conditions governing your leased equipment. (7) FEE SCHEDULE Product Subscriptions (Monthly) Clover Services (Per Device)* Clover Insights (Insightics Solution) (2CS) $ (49M) $ *Charges for Clover Services may appear on your monthly statement or may be billed through the Clover App Market, depending on the device. Mobile Payments Solution (Clover Go) Mobile Payments Monthly Fee (Per Terminal ID) (32Y) $ eCommerce/Wireless Solutions Payeezy Monthly Fee (40A) $ Payeezy Authorization Fee (OFC) $ Clover Online Store (2D9) $ Global ePricing MC/Visa Service Fee (897, 898) Third Party Internet Set -Up Fee (30R) $ Third Party Internet Authorization Fee (03R, 04R, 061, 071, 435) $ Third Party Internet Service Fee (394) $ Wireless Access Fee (Per Device) (60J) $ Petroleum Services Datawire Micronode ❑ Yes 0 No Datawire Monthly Fee (354) Voyager WEX Authorization Fee (ODO, OD1, ODV) $ Sales/Credit Discount (766, 767) Full Service Authorization Fee (0D4) $_ Sales/Credit Discount (840, 841, 842, 843) Chargeback Fee (29H) $ Retrieval Fee (291) $ Non -Full Service Authorization Fee (080, OB1, OBV) $ Start -Up Fees Application Fee (Non -Refundable) (321) $ 82 Reprogramming Fee (31A) $ 0 Debit Set -Up Fee (31 B) $ 0 Miscellaneous Fee (31J) $ 0 *Equipment Purchase (ACH) $ Other: ( ) $ Total Amount $ w/o tax *Plus applicable State/City/Local sales tax. Debit Fees* Bundled Debit Discount Rate (120) (Applies to Signature, PIN and PINIess Debit) Sales/Return Transaction Fee (124,125) $ Unbundled Debit Transaction Fee (018) $ .15 (Applies to PIN Debit Only) *Plus applicable PIN Debit Network fees. Miscellaneous Fees* (If Applicable) TransArmor Data Protection Tokenization & Encryption (per authorization) (12E,12G, 121) $ .01 % % % % PCI Non -Compliance Fee (42G) $ 20.00 Monthly Service Charge (329) $ 11.00 Monthly Account Minimum Fee (954) $ 15.00 Paper Statement Fee (240) $ 0 (Default Is free electronic statement) Chargeback Fee (205, 725, 20L) $ 25.00 ACH Reject Fee (401) $ 35.00 Batch Settlement Fee (227) $ 0.19 Monthly Funding Advantage (158) 0.00 AVS (405, 406, 407, 408, 07A, 07B, 07C, 069, 079) $ 0.01 Voice Authorization (10B, 10E, 10K, 100) $ 1.25 MasterCard/Visa/Discover Network Access Fee (505, 504, 526) $ 0.0195 MasterCard License Volume Fee (818) 0.0075 MasterCard Cross Border Fee (605, 606) 0.60 Visa Int'I Service Fee USD (22A) 0.80 % Non -USD (22Z) 1.57 American Express Authorization Fee (10P) $ .21 EBT (18E, 181, 02X, 18H) $ Other: $ *You must reimburse us for all obligations of any kind that a Card/Payments Organization imposes on us in connection with your acceptance of its Card types, in connection with the transactions processed under your MID, or as a result of your actions or failures to act, including but not limited to the fees and costs described in the Interchange Qualification Matrix and American Express OptBlue Guide (both available at www.businesstrack.com). May 2018 Manual MPA - CAP # 48360 MERCHANT PROCESSING APPLICATION AND AGREEMENT (Page 3of3) DBA Name: Indian River County Loc. 1 of (7) FEE SCHEDULE (cont'd) Pricing MethodA MasterCard/ Visa/Discover Ntwk/PayPal 2-Tler MasterCard/ Visa/Discover Ntwk/PayPal 3 -Tier Transaction Fees (Applies to MasterCard/Visa/Discover Ntwk/PayPal 2 -Tier and MasterCard/Visa/Discover Ntwk/PayPal 3 -Tier ONLY) MasterCardNisa/ Discover Ntwk/ PayPal/American Express OptBlue• Discount Rate Interchange Plus Qualified Discount Rates MasterCard/Visa/Discover Ntwk/PayPal Credit Discount Rate (800, 804, 170) % % MasterCard/Visa/Discover Ntwk/PayPal Credit Trans Fee (001, 002, 005, 006, 015, 016) $ y .45 MasterCard/Visa/Discover Ntwk/PINIess POS Signature Debit Discount Rate" (850, 854, 964, 27P) % % MasterCard/Visa/Discover Ntwk Signature Debit Trans Fee (130, 131, 134, 135, 787, 788, 18C) $ q .45 oh, American Express OptBlue• (84A) .45 % Mid -Qualified Discount Rates (Does not apply to MasterCard/Visa/Discover/PayPal 2 Tier) MasterCard/Visa/Discover Ntwk/PayPal Credit Discount Rate (810, 814, 990) % MasterCard/Visa/Discover Ntwk/PayPal Credit Trans Fee (611, 612, 615, 616, 717, 718) $ MasterCard/Visa/Discover Ntwk Signature Debit Discount Rate" (870, 874, 968) % MasterCard/Visa/Discover Ntwk Signature Debit Trans Fee (140, 141, 144, 145, 791, 792) $ Non-Qualtfied Discount Rates MasterCard/Visa/Discover Ntwk/PayPal Credit Discount Rate (820, 824, 994) % % MasterCard/Visa/Discover Ntwk/PayPal Credit Trans Fee (621, 622, 625, 626, 721, 722) $ MasterCard/Visa/Discover Ntwk Signature Debit Discount Rate* (880, 864, 978) % % MasterCard/Visa/Discover Ntwk Signature Debit Trans Fee (150, 151, 154, 155, 795, 796) $ "Fees do not apply If Bundled Debit is chosen MasterCard/Visa/Discover Ntwk/PINIess POS Authorization & Retum Transaction Fee (10A, 10D, 002, 006, 131, 135, 10J, 016, 788, 11P) $ $ .21 Non-OuaI Surcharge Fee(30D) (excluding Card/Payments Organization pass-throuh fees, and any Interchange rate difference) Applies to Non-Quall ied MasterCard, Visa, Discover Ntwk/PayPal, and/or Signature Debit Transactions. Rewards Cards Surcharge Rate (20N) % A Interchange Rates are variable and are determined by how your transactions clear. Please see your Interchange Rate Schedule, Interchange Qualification Matrix and American Express OptBlue° Guide for Interchange Rates & Dues/Assessments and qualifica lon criteria as of he date of this Application. The Interchange Rates and Dues/Assessments are subject to change. American Express OptBlue• has Program Pricing which Is not Interchange and which is subject to change. Swiped/Non-Swiped (If selected, the discount rates below apply to all card types and brands accepted other than petroleum) Swiped or Dipped Transactions of gross transactions (23Z) + $ per transaction (24C) Non -Swiped or Non -Dipped % of gross transactions (24D) Transactions + $ per transaction (24B) (8) AGREEMENT APPROVAL By signing below I certify that: (A) I am an owner, partner, officer or other Authorized Representative of the entity Identified In this Application as the Merchant; and (B) that I am duly authorized to enter Into agreements on behalf of the Merchant; (C) the federal taxpayer Identification number and corresponding filing name provided are correct; (D) the statements made and agreed to In this Application are true, complete and accurate, and may be relied upon as current unless changed or updated In accordance with the Notice provisions of the Agreement; (E) I can read and understand the English language; (F) I have received and read a copy of the Merchant Application and Agreement consisting of (i) Sections 1-9 of this Application, (ii) the General Terms and Conditions, (iii) Confirmation Page and (iv) Interchange Rate/Fee Schedule. Further, l understand that the Interchange Qualification Matrix and American Express OptBlue• Guide and Your Payments Acceptance Guide are available at yvww.businesstrack.con3 upon Merchant Account approval and the signature below is for the entire contents of the listed documents. In addition by signing below on behalf of myself as an Individual, and the Merchant on whose behalf I am signing I: (A) authorize TD Bank N.A. ("Bank"), to Investigate, verify and receive all credit and financial Information, including consumer and business credit reports, about the Merchant and me personally from all references, Including banks and credit reporting agencies, which are hereby released to provide that information from time to time. B) authorize Bank and the applicable Card/Payments Organizations, and Its and their Affiliates, third party subcontractors and/or agents to use, disclose, and share amongst'tQQi��+iI atlon In the Agreement, Application and all credit and financial information obtained from third parties about Merchant and me personalty (i) in connection with Bank's detelttrr'Ijrltdn et r/tFjticeept this Application and enter into this Agreement, (ii) to maintain the Agreement and Merchant Account, and (iii) for any other uses permitted by law. V . ' • '-. � 1 further acknowledge and agree that Merchant will not u$e,(he•Mer nt Accountt tI%,orthe Services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act of 2006 and Regulation GG, or for procasslAg an /Mance Ansa&ions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other Taws enforced by the Office of Foreign Assets Control (OFAC). • cn Notice Regarding the USA Patriot Act: The Bank complies 'Mtn sect n' 26 oft�,_ SAAatdot Act. The Law requires us to verify certain information, including your name, legal address, date of birth, Social Security or tax ID number, while processing our Merchnt" ro esteing Agr ISlent. Merchant's • ed Representatiye-• Si nature' "V G7v T�i.rt. TD Bank N.A. 9 .irk} .V`?; `f ' Print Name? Bob- Solari, Chairman•':9cQ ,� • 06/18/7019 Titiei -O P--- ,-, ..,- „__. .. e ❑ Partner 0 ( Attest: Jeffrey R. Smith, Clerk of Signature Circuit Court and Comptroller Print Nam' a Title: 0 F BY 4 /t4 (_►� Date: er 0 Partner Signature Date: APPROVED AS TO FORM ID LEGAL SUI-FICiENC In exchange for TD Bank N.A.'s ("Bank") acceptance of the Merchant Processing Application and Agreement ("MPA") the undersigned antor" ) unconditionally and irrevocably guarantees the full payment and performance of Merchant's obligations (i) as they now exist or as modified by the parties, (ii) withwt1j�thout mal moll. f �i gggs, arld (iii}•dnring9and after the tern of the MPA; (8) Individually and severalty, hereby agree to be bound by all terms and provisions of this MPA to the samxtenf. ant; (C) waives notice of Merchant's default; (D) shall indemnify the Bank for any and all amounts due from the Merchant; (E) warrants, with knowledge Db : -n 'w,t,n ,� q� same and that this is a Personal Guarantee of payment and not of collection; (F) acknowledges that Bank, may proceed In law directly against the Gu�er y•Y�f , 'Ti Ali Is a continuing personal guarantee and shall not be discharged or affected for any reason. Guarantor agrees that: (A) it has received and reviewed a complete copy of the Application and Merchant Processing Agreement and agrees to be bound by its terms; (B) Bank may investigate, verify and receive all credit and financial information and references about me from all references, including banks and consumer reporting agencies, which are hereby released to provide that Information from time to time; (C) that Bank may use such credit reports in connection with establishing and maintaining Merchant's account and Agreement; and (D) that Bank may share my credit and financial information for any use permitted by law. Signature: Signature: an individual an Individual May 2018 Manual MPA - CAP # 48360 TD2008(ia) PART I: CONFIRMATION PAGE BANK Name: TD Bank, N.A. INFORMATION: Address: 140 Mill Street, PO Box 1377, Lewiston, ME 04240 URL: httpJ/www.tdbank.com/small_business/merchant_solutions.html Customer Service #: 855-5994656 Please read this entire Agreement. It describes the terms on which we will provide merchant processing Services to you.This summary provides answers to commonly asked questions about your Agreement. I. Your Discount Rates and other fees are calculated based on transactions qualifying for certain program pricing and interchange rates levied by the applicable Card Organization. Transactions that fail to qualify for these rates will be charged an additional fee. Interchange and program pricing levied by the Card Organization is subject to change, (see Section 10 of the General Terms & Conditions). 2. We may debit your bank account (also referred to as your Settlement Account) for amounts owed to us. 3. You are liable for Chargebacks and there are many reasons why a Chargeback may occur. When they occur we will debit your Settlement Account. See Section 12 of the General Terms & Conditions. 4. If you wish to dispute any charge or funding, you must notify us within 15 days after the issuance of the relevant Settlement Account statement, or within 45 days after the posting of the disputed debit or credit entry, whichever comes first. 5. This Agreement limits our liability to you. See Section 14 of the General Terms & Conditions for further details. 6. Bank has assumed certain risks by agreeing to provide you with the Services. Accordingly, we may take certain actions to mitigate our risk, including termination of this Agreement, and holding and/or offsetting monies otherwise payable to you (see Sections 19 and 20 of the General Terms & Conditions). 7. By executing this Agreement with Bank you authorize us and our Affiliates to obtain and share financial and credit information regarding your business and the signers and guarantors of this Agreement until all your obligations to us and our Affiliates are satisfied. Information about Bank: a) Your Bank, who is a Visa and MasterCard Member Bank, is TD Bank, N.A. ('Bank"), 140 Mill Street, PO Box 1377, Lewiston, ME 04240 b) Bank is the entity approved to extend acceptance of Visa, MasterCard and Discover Cards directly to you. c) Bank works with First Data Merchant Services LLC ("Processor") to provide the Card transaction, acceptance, processing and settlement services to you. Processor may also provide certain optional services, such as Clover, to you directly under a separate agreement. Bank will bill you and you agree to pay bank for all Processor Provided Services. Your Responsibilities: a) You must comply in full at all times with this Agreement, all Card Organization Rules and all Cardholder and customer data security and storage requirements. If you do not comply with the PCI DSS security requirements, you will be charged a monthly PCI Non - Compliance fee (see Section 10). b) If You terminate this agreement before the end of the Initial Term or any Extended Term, you will be obligated to pay Bank all monthly fees, whether for maintenance, products, equipment, or otherwise for each month remaining in the Initial Term or any Extended Term (see Section 19). c) You may view and download the current version of Your Payments Acceptance Guide at https://wwwbusinesstrack.com upon Merchant Account approval. d) You may view and download the current version of the Interchange Qualification Matrix and American Express OptBluea Guide at https://www.businesstrack.com upon Merchant Account approval. e) You may download the current version of the Visa, MasterCard and Discover rules at: https://usa.visa.com/support/merchant.html http://www.mastercard.com/us/merchant/support/rules.html haps://www.discovernetwork.com/en-us/ I) For your account to stay operational, you must keep fraud and Chargeback levels below Card Organization thresholds. Please retain a signed copy of your Agreement for your records. We will send a copy to the e-mail address provided on your Application. g) Print Merchant's Business Legal Name: Indian River County Board of County Commissioners By signing below, you: (i) confirm that you have received and read the Application, this Confirmation page and the General Terms & Conditions below; (ii) agree to all terms in this Agreement in your capacity as a person authorized to sign on behalf of the Merchant, and; ��IYY Co4;'•�•.� NO SALES REPRESENTATIVE ISAUTHQli1 ED 9 OR AGREE TO ANY ALTERATIONS TO THIS AGREEMENT. O Merchant's Authorized Representative? Signature (Please sign below): Bob Solari Please Print Name of Signer) TD2008(ia) '.•fir ri'i,n0e^\ Attest: Jeffrey R. Smith, Clerk of Circuit Court and Comptroller Chairman (Title) erObsob)76-ith — -- nemutv_Clerk 06/18/2019 (Date) APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY 017 Manual T&C - CAP # 40233 DYLAN INGOLD P'f%AiwiTV ATT/'iI Pd V TD2008(ia) PART 1: DUPLICATE CONFIRMATION PAGE BANK INFORMATION: Name: TD Bank, N.A. Address: 140 Mill Street, PO Box 1377, Lewiston, ME 04240 URL: http://www.tdbank.com/small_business/merchant_solutions.html Customer Service #: 855-5994656 /N. N / / Please read this entire Agreement. It describes the terms on which we will provide merchant processing Services to,you.This summary provides answers to commonly asked questions about your Agreement. / ) \. ..y 5. This Agreement limits our liability to you. See Section 14 of the General Terms & Conditions for f ether details. N-„," 6. Bank has assumed certain risks by agreeing to provide you with the Services. Accordingly, we may taketi ertain actions to mitigate our risk, including termination of this Agreement, and holding and/or offsetting monies otherwise payable to you (see Sections 19 and 20 oNhe General Terms & Conditions). ,// 7. By executing this Agreementwith Bank you authorize us and our Affiliates to obtain and share financial and -credit information regarding your business and the,signers and guarantors of this Agreement until all your obligations to us and our Affiliates are satisfied. I. Your Discount Rates and other fees are calculated based on transactions qualifying for certain program pricing and interchange rates levied by the applicable Card Organization. Transactions that fail to qualify for these rates will be charged an additional fee. Interchange and program pricing levied by the Card Organization is subject to change, (see Section 10 of the General Terms & Conditions). 2. We may debit your bank account (also referred to as your Settlement Account) for amounts owed to us. 3. You are liable for Chargebacks and there are many reasons why a Chargeback may occur. When they occur we will debit your Settlement Account. See Section 12 of the General Terms & Conditions. 4. If you wish to dispute any charge or funding, you must notify us within 15 days after the issuance of the relevant Settlement Account statement, or within 45 days after the posting of the disputed debit or credit entry, whichever comes first. Information about Bank: a) Your Bank, who is a Visa and MasterCard Member Bank, is TD Bank, N.A. ("Bank"), 140 Mill Street, PO Box 1377, Lewiston, ME 04240 b) Bank is the entity approved to extend acceptance of Visa, MasterCard and Discover Cards directly to you. c) Bank works with First Data Merchant Services LLC ("Processor") . to provide the Card transaction, acceptance, processing and settlement services to you. Processor may also provide certain optional services, such as Clover, to you directly under a separate agreement. Bank will bill you and you agree to pay.bank for all Processor Provided Services. Your Responsibilities: a) You must comply in full at all times with this Agreement,'al1 Card Organization Rules and all Cardholder and customer data security and storage requirements. If you do not comply, with the PCI DSS-. security requirements, you will'be charged a monthly PCI Non - Compliance fee (see Section 10). ;b) If You terminate this agreement'before the end of the Initial Term or any Extended Term, you will be obligated to pay Bank all monthly fees, whether for maintenance, products, equipment, or otherwise for each month remaining in the Initial Term or any Extended Term (see Section 19). c) \You may view and download the current version of Your Payments Acceptance Guide at haps://www.businesstrack.com upon Merchant -Account approval. d) You 'may view and download the current version of the Interchange Qualification Matrix and American Express OptBlue® Guide at haps://www.businesstrack.com upon Merchant Account approval. e) You may download the current version of the Visa, MasterCard and Discover rules at: ,/https://usa.visa.corn/support/merchant.html http://www.mastercard.com/us/merchant/support/rules.html haps://www.discovernetwork.com/en-us/ f) For your account to stay operational, you must keep fraud and Chargeback / levels below Card Organization thresholds. g) Please retain a signed copy of your Agreement for your records. We will send a copy to the e-mail address provided on your Application. Print Merchant's Business Legal Name: Indian River County Board of County Commissioners By signing below, you: (i) confirm that you --have received and read the Application, this Confirmation page and the General Terms & Conditions below; (ii) agree to all terms in this Agreement in your capacity as a person authorized to sign on behalf of the Merchant, and; NO SALES REPRESENTATIVE IS AUTHORIZED TO ACCEPT OR AGREE TO ANY ALTERATIONS TO THIS AGREEMENT. Merchant's AuthorizedRepresentative: Signature (Please sign below): i x Please Print Name of Signer Title Date TD2008(ia) August 2017 Manual T&C - CAP # 40233 PART 11: GENERAL TERMS & CONDITIONS I. YOUR PAYMENTS ACCEPTANCE GUIDE AND CARD ORGANIZATION RULES 1.1 The General Terms & Conditions (General Terms), together with your Application, the Fee Schedule and the Your Payments Acceptance Guide constitute the agreement for Card transaction acceptance, processing, settlement and other related Services (this Agreement). 1.2 You agree to comply with the Your Payments Acceptance Guide and the Card Organization Rules relevant to you, as they may change over time. The Your Payments Acceptance Guide is available at www.businesstrack.com. If there are any inconsistencies between the General Terms and the Your Payments Acceptance Guide, the Your Payments Acceptance Guide will govern. 1.3 You agree to comply with the Card Organization Rules, as the same may be amended from time to time. The Card Organization Rules may change with little or no advance notice to you, and you agree to be bound by all such changes, regardless of whether your have received notice of any such changes. In the event of any inconsistency between this Agreement and the Card Organization Rules, the Card Organization Rules shall govern. Without limiting the foregoing, you agree to comply with all Agreement provisions relating to the applicable Card Organizations that we advise you of or provide to you in writing at any time on or after the date of this Agreement, and you acknowledge and agree that such provisions are hereby incorporated by reference with and into this Agreement. 2. BANK SERVICES AND SERVICES PROVIDED BY PROCESSOR 2.1 Your Application will identify the Services you will receive. Certain Services referred to in this Agreement may not be available to you. 2.2 Subject to Card Organization Rules, Services may be performed by us, our Affiliates, our agents, or other third parties we may designate. References to "we" "our" and "us" shall be deemed to be references to Bank. Bank is not responsible for Services provided directly to you by Processor ("Processor Provided Services") or any Third Party Services, including any apps available in an application marketplace or voice or data services you purchase directly from a third party provider. If you decide to use Processor Provided Services or any Third Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with such Services. Any third party content downloaded or otherwise obtained through the use of the Services is downloaded at your own risk. WE WILL NOT BE RESPONSIBLE FOR ANY ACTIONS OR ANY FAILURES TO ACT OF PROCESSOR OR ANY OTHER THIRD PARTY, AND WE EXPRESSLY DISCLAIM ANY LIABILITY RELATED TO ALL PROCESSOR PROVIDED SERVICES AND ANY THIRD PARTY SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PROCESSOR PROVIDED SERVICES AND ANY THIRD PARTY SERVICE OR PRODUCT ADVERTISED OR OFFERED THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF PROCESSOR PROVIDED SERVICES AND ANY THIRD PARTY SERVICES OR PRODUCTS. 2.3 If you otherwise been approved for accepting American Express or WEX, your American Express and WEX transactions will be processed through and funded by American Express or WEX (as applicable). American Express and WEX will provide you their own agreements governing those transactions. You agree that (a) we are not responsible and assume no liability for any such transactions; and (b) American Express and WEX may charge additional fees for the services they provide. 3. ACCESS AND USE OF SERVICES 3.1 Except as specified in the Your Payments Acceptance Guide, or otherwise agreed in writing, the Services shall be for your internal business use in the United States only. 3.2 You shall not and shall not permit any third party to: (a) access or attempt to access any Service that is not intended to be available to you; (b) access or use (in any format) the Services (or any part) through any time-sharing service, service bureau, network, consortium, or other means; (c) without our advanced written consent, use, ship or access Services (or any part) outside or from outside of the United States; (d) perform or attempt to perform any actions that would interfere with the proper working of any Service, prevent access to or use of any Service by other users, or in our reasonable judgment, impose a large load on our infrastructure, network capability or bandwidth; or (e) use the Services (or any part) except as permitted in this Agreement. 3.3 We have the right to rely on user names, password and other sign on credentials/access controls for the Services or any Software provided or approved by us to authenticate access to, and use of, the Services and any Software. 4. ACCEPTANCE OF CARDS AND ADVERTISING 4.1 Honoring Cards: Subject to the Card Organization Rules, you shall promptly honor without discrimination any valid Cards properly presented for payment for goods and services provided by you. Cards shall be accepted for the sole purpose as payment for bona fide sales or leases of goods or services made in the ordinary course of your business consistent with current practices, and not for any other purposes. However, consistent with the Card Organization Rules and Applicable Law, you may in your discretion refuse to honor any Card when there is reasonable doubt as to its validity or as to the identity or authorization of the Person presenting the Card for payment. 4.2 Prohibitions on Honored Cards: You shall not charge any Cardholder a service, finance, carrying charge or other amount for any Card transactions, in addition to the price and other amounts that would have been charged for the transaction had it been for cash. You shall not require any Cardholder to provide personal information, such as a home or business telephone number, home or business address, or driver's license number, as a condition for acceptance of the Card, unless required by the Card Organization Rules or if provision of such information is required under specific circumstances, such as mail, telephone or internee orders. You shall not establish minimum transaction amount of more than $10.00 for any credit cards or debit cards. You shall not establish a maximum transaction amounts for sales to Cardholders as a condition for completing transactions with Cards, except as permitted under the applicable Card Organization Rules. 4.3 Advertising: You shall display Card service marks and promotional materials, as provided by us, to inform the public which Cards shall be honored at your place(s) of business. Your right to use or display Card service marks is solely as authorized by us and shall continue while this Agreement remains in effect or until you are notified by us or a Card Organization to cease their use and display. Subject to our authorization, you may use Card service marks on promotional, printed or broadcast materials only to indicate that Cards are accepted for payment, and you shall not indicate, directly or indirectly, that any Card Organization endorses any of your goods or services. 5. AUTHORIZATIONS 5.1 You agree to follow all procedures provided to you by us regarding the procedures for authorization of Transactions. Unless otherwise instructed by us, you shall obtain a valid authorization for every Transaction, and you shall document such authorization in the appropriate place on the sales data. We shall have no liability of any kind whatsoever arising from any communication or equipment failure which interferes with your ability to obtain authonzation or causes you to receive invalid or improper authorization information. 5.2 You acknowledge and agree that an authorized Transaction does not constitute a guarantee of payment and may be subject to dispute or Chargeback. Moreover, you shall be responsible for each Transaction, regardless of any authorization, if you complete a transaction when: (a) the Cardholder is present and does not present his or her Card at the point of sale; (b) the Cardholder is not present or does not sign the sales receipt; (c) the signature on the sales receipt does not correspond to the signature appearing on the Card; or (d) the signature panel on the Card is blank. 6. SALES RECORDS 6.1 All sales records and credit vouchers shall be: (a) on forms or electronic formats supplied by us; (h) accurately completed with data that include the name of the Cardholder or other authorized user of the Card (if different from the Cardholder), your name, the transaction date, a description of the merchandise sold or services rendered, and the total price of the sale or the amount of the credit adjustment; and (c) except as otherwise specifically permitted under the Card Organization Rules (including sales made on the internet, or by telephone or mail order), signed by the Cardholder or other authorized user, whose signature shall be compared by you to the signature on the Card. 6.2 You agree to deliver to your customers in each Transaction a true and completed copy of a sales record or credit voucher, as the case may be. 7. PRESENTMENT 7.1 Presentment of Card Items: You agree to present all Card Items electronically to us, and to follow our procedures in presenting such Card Items. You shall not deliver to us any Card Item where there is, or would be upon presentment, a violation of any presentment warranty under the provisions of this Agreement and the Card Organization Rules as to that Card Item. All Card Items delivered to us by you shall represent obligations of a Cardholder or other authorized user in amounts set forth therein for goods sold or services rendered only, and shall not involve any elements of credit for any other purpose or otherwise be inconsistent with your Application. Accordingly, you represent and warrant that as of the date any Card Item is delivered to us, you have no knowledge or notice of any fact which would impair the underlying Transaction's accuracy, validity, enforceability or value and that such Transactions are consistent with the type of products and services you listed in your Merchant Processing Application.. 7.2 Disputes and Liability: You agree to bear the risk of loss or destruction of any Card Items until we receive such Card Item in a format acceptable to us. Your right to review, question or dispute your delivery of Card Items to us or our receipt of any Card Items delivered from you shall be limited to a period of 90 calendar days following the transaction date of the Card Item. 7.3 Rejection of Certain Transactions: In the event we identify a suspected restricted, unauthorized or prohibited Transaction (including a "restricted transaction" as defined in the Unlawful Internet Gambling Enforcement Act of 2006 and Regulation GG), we may block or otherwise prevent or prohibit such TD2008(ia) 4 August 2017 Manual T&C - CAP # 40233 Transaction. In addition, we reserve the right to refuse to accept Transactions presented by you for processing, to the extent that we reasonably believe that the processing of such Transactions may result in an increased risk to us, or if we reasonably believe that such Transactions may be subject to an increased likelihood of Chargeback or Cardholder dispute. 8. CHIP CARD REQUIREMENTS 8.1 You agree to implement a Processing Infrastructure that is compatible with our Card processing infrastructure, in accordance with the Card Organization Rules, and agree to be fully responsible for the cost of the implementation of the Processing Infrastructure. 8.2 You agree to permit us, a Card Organization, or our respective agents, to verify the compliance of your Processing Infrastructure with the Card Organization Rules and you agree to be fully responsible for all the costs of verification of your compliance. 8.3 Unless you (i) have implemented the Processing Infrastructure; and (ii) process a Chip Card Transaction in accordance with applicable Card Organization Rules, you will be solely liable for any Chargeback relating to a Transaction involving a Card with either or both a chip and a magnetic stripe. 9. SETTLEMENT 9.1 As part of the Services, we will process transaction data received from you and facilitate the transfer of funds for your Card sales to your Settlement Account. 9.2 We may debit your Settlement Account for any amounts owed to us, including any amounts paid to you in error. We may also offset any amounts owed to us or our Affiliates from any other accounts maintained in your name or, any of your principals, guarantors or authorized signors. 9.3 You are responsible for providing us with accurate information regarding your Settlement Account. If you change the Settlement Account in which you receive the proceeds of your transactions, you must notify us immediately. We shall not be liable for delays in receipt of funds or errors in debit and credit entries caused by you or any other Person, including any delays or errors resulting from errors in Settlement Account information you provide. 9.4 If a Default occurs you agree we may without notice change processing or payment terms and/or suspend credits or other payments of any amounts due or which become due to you. 9.5 Your right to receive any amounts due or to become due from us is expressly subject and subordinate to Chargeback, setoff, lien, security interest and our rights to withhold settlement funds under this Agreement without regard to whether such Chargeback, setoff, lien, security interest and the withholding of settlement fund rights are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured or unmatured. I0. FEES; ADJUSTMENTS; COLLECTION OF AMOUNTS DUE 10.1 You will be charged, and agree to pay us, all fees set out on the Fee Schedule, which may be amended from time to time in accordance with the terms of this Agreement and any other fees or charges otherwise provided in this Agreement. 10.2 The fees specified on your Fee Schedule are based on the assumption that your transactions will qualify at the Anticipated Interchange and Program Pricing Levels associated with your account. If a transaction fails to qualify at the Anticipated Interchange Program Pricing Levels, you will be charged a Non -Qualified Fee, plus a Non -Qualified Surcharge Fee for each such non -qualifying transaction. 10.3 If you accept a Card or transaction other than the type anticipated for your account, we will charge you our then -current transaction fee(s) for the Card and transaction and you will be responsible for the transaction to the same extent as you would be if it was of a Card type elected and approved. 10.4 The fees specified on your Fee Schedule are based on (a) estimated annual volume and average transaction size for all Services provided under this Agreement; and (b) your method of doing business. If the actual volume or average transaction size are not as expected or if you significantly alter your method of doing business, we may adjust our fees without prior notice to you. It is your responsibility to notify us of any such changes to your business. 10.5 We may adjust our fees to reflect new or increased fees, taxes or assessments imposed by any Card Organization or other Persons related to the Services. It is your responsibility to pay all such adjusted fees effective from the date specified in our notice to you. Notwithstanding the terms of this Agreement, we are not required to provide to you the advance notice, if any, required for an amendment of this Agreement for an increase in any fees, expenses and charges in the event that any Card Organization increases its fees and the effective date for implementation of the increase in the fees, expenses and charges is less than such required advance notice. In such cases, we shall make reasonable efforts to provide reasonable notification to you of such increase. However, failure to provide advance notice of such increase in fees, expenses and charges shall not affect your obligation to pay such increased amounts. 10.6 An equipment rental fee will be charged each month for each piece of equipment rented from us, plus tax as applicable. You will also be charged for shipping and supplies. 10.7 An Authorization fee will be charged for each Authorization requested, whether the response is approved or declined. If you are being charged a combined fee for both Authorization and Capture we may charge this fee on the communication of all instructions that you transmit to us from your point of sale device or other systems to our computer systems, whether the communications are for Authorization requests any other capture of information whether or not related to any individual transaction. 10.8 A fee will be charged for each Address Verification Service (AVS) request submitted, whether or not we are able to provide a response to the request. 10.9 You will be charged a monthly PCI Non -Compliance fee unless, within 60 days from the date this Agreement is submitted with your signature and on an annual basis after that: a) you obtain any quarterly or other periodic PCI -approved vulnerability scans that the Card Organization Rules require you to obtain (for example, if your transactions involve the internet in any way); b) you remediate vulnerabilities identified by your scans in ways that enable you to comply with the Card Organization Rules and applicable standards (including the PCI DSS); and c) you confirm that you are following certain data security protocols by providing us with your certificate of PCI DSS compliance. If you materially change the systems you use to accept payments and you wish to avoid paying the monthly PCI Non -Compliance fee, you will need to promptly complete a new Security Assessment Questionnaire ("SAQ") or (using PCI -approved methods) promptly provide us with other written evidence of your PCI DSS compliance. 10.10 If you believe any adjustments should be made to your Settlement Account, you must notify us in writing within 45 days after any debit or credit is or should have been effected. You must notify us in writing within 15 days after the issuance of the relevant Settlement Account statement, or within 45 days after the posting of the disputed debit or credit entry, whichever comes first. We shall have no obligation to investigate the matter or effect any requested adjustment if you fail to provide such timely notice. Any voluntary efforts by us to assist you in investigating such matters do not obligate us to continue such investigation or to conduct any future investigation. 10.11 If you fail to pay any amounts due within 30 days of the due date set out in our merchant statement or other communication with you, then we may, in our sole discretion, charge you interest, for such time that the amount and all accrued interest remain outstanding at the lesser of 12% APR or the maximum rate permitted by applicable law. 10.12 You further agree to pay any and all fines, fees, penalties and assessments assessed by us or a Card Organization on account of your failure to comply with: (a) our payment acceptance rules, regulations or procedures, or (b) the Card Organization Rules. I I. ELECTRONIC FUNDING AUTHORIZATION 11.1 All payments to you shall be made through the automated clearing house system (ACH) and shall normally be electronically transmitted directly to the Settlement Account you have designated or any successor account designated to receive provisional funding of your transactions pursuant to this Agreement. You agree that any Settlement Account designated by you will be a business account. We cannot guarantee the timeframe in which payment may be credited by your financial institution and we will have no liability for failure to timely process. 11.2 You agree to be bound by the operating rules of the ACH and you authorize us to (a) access information from the Settlement Account; (b) initiate credit and/or debit entries by wire or ACH transfer; (c) instruct your financial institution to (i) block or to initiate, if necessary, reversing entries and adjustments for any original entries made to the Settlement Account; and (ii) provide such access and to credit and/or debit or to block the Settlement Account. 11.3 If we cannot process an ACH payment, we may (a) charge you the applicable fee set out in the Fee Schedule; and (b) suspend all subsequent funding until a new electronic funding agreement is signed by you or you notify us that ACH payments can be processed. I2. CHARGEBACKS, FINES AND PENALTIES, RETURNS AND EXCHANGES 12.1 Cardholders and Issuers are authorized by Card Organization Rules and by Applicable law to reverse and Chargeback transactions that you submit to us. Further details are set out in the Your Payments Acceptance Guide and in the Card Organization Rules. 12.2 You shall use all reasonable methods to resolve any disputes with the Cardholder. Should a Chargeback dispute occur, you shall promptly comply with all requests for information from us. We shall not attempt to recharge a Cardholder for an item that has been charged back to the Cardholder, even with the Cardholder's consent. You shall have full liability for the amount of any and all full or partial successful Chargebacks and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Organization Rules. TD2008(ia) 5 August 2017 Manual T&C - CAP # 40233 12.3 You are obligated to reimburse us (and authorize us to debit your Settlement Account) for (a) all refunds, credits, Chargebacks and adjustments relating to transactions that you submit for processing; and (b) any fees, fines, assessments, obligations or other charges a Card Organization imposes on us in relation to your acts or omissions or the acts or omissions of your agents or those acting on your behalf. 12.4 Refunds, Credits, returns and Chargebacks shall be treated as independent transactions with a Transaction Rate as determined by the Card Organization. 12.5 You shall establish a fair policy for the exchange and returns of goods, consistent with the Card Organization Rules and Applicable Law and clearly provide them to, or otherwise make them available to the Cardholder prior to a Transaction. You shall give proper credit to Cardholders for all such returns or other adjustments, and shall issue credit vouchers therefor. Upon the receipt of any such credit voucher, we shall charge your Account for the total amount shown thereon. You shall effect all credit adjustments by credit vouchers and shall not make cash refunds for any Transactions. 13. YOUR REPRESENTATIONS AND WARRANTIES 13.1 By submitting a transaction to us, you represent and warrant that the transaction: a) is genuine and arises from a genuine sale or service that you directly sold or provided as described on your Application. (The submission of Authorization requests and/or Card transaction by you for Card sales or cash advances transacted by another business is considered laundering or factoring and is prohibited); b) represents the correct amount of the goods or services purchased by the Cardholder from your business as identified on your Application; c) is not subject to any dispute, set-off or counterclaim; d) to your knowledge is not the result of fraud and has been authorized by the Cardholder; e) does not violate the law of any applicable jurisdiction, including the jurisdiction where you are located, where the Cardholder is located, or where we are located; f) except for any delayed delivery or advance deposit Card transactions expressly authorized under this Agreement, included your simultaneous delivery of the goods or services to the Cardholder; and g) complies with this Agreement and Card Organization Rules. 13.2 You further represent and warrant, as of the date of this Agreement and at the time of submission of each transaction, that: a) you are validly existing, duly licensed or qualified to do business, in good standing and free to enter into this Agreement; b) the execution, delivery and performance by you of this Agreement does not: (i) violate, or result in the breach of, any provision of your organizational documents; (ii) conflict with, or result in the breach of, require consent under, or constitute a default under, any contract by which you are bound, or (iii) violate any Applicable Law or Card Organization Rules applicable to you; c) that the person signing this Agreement, the Application and any other document provided to us on behalf of Merchant is an Authorized Representative; b) you have not changed the nature of your business or practices in a way not previously disclosed to us; c) each statement made on the Application or other information provided to us in support of this Agreement is true, accurate and complete and you have maintained and updated this information to keep it true, accurate, current and complete; d) you have not filed a bankruptcy petition not previously disclosed to us; e) you will not process any credit transactions that do not correspond to a previous transaction on the original sales draft; 1) you will not at any time during the term of this Agreement or until all amounts have been paid in full under this Agreement, grant or pledge any security interest or lien of any type in any Reserve Account, Settlement Account or in any of the transaction proceeds to any Person without our consent; and g) where you provide FNS, SNAP or WIC Benefits (as described in the Your Payments Acceptance Guide), you are an FNS authorized merchant and are not disqualified or withdrawn from redeeming food stamp coupons or otherwise disqualified or withdrawn by FNS; and h) you have and will comply with this Agreement and all Applicable Laws and Card Organization Rules in connection with your performance of your obligations under this Agreement. I4. NO WARRANTIES, LIMITATIONS ON LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES 14.1 THIS AGREEMENT IS A SERVICE AGREEMENT. USE OF THE SERVICES, SOFTWARE OR ANY EQUIPMENT (INCLUDING ANY SERVICES, PRODUCTS SOFTWARE OR EQUIPMENT PROVIDED BY OR THROUGH PROCESSOR OR A THIRD PARTY) IS AT YOUR OWN RISK AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES, PRODUCTS, EQUIPMENT AND ANY SOFTWARE IS PROVIDED "AS IS" AND WE DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT SERVICES, EQUIPMENT OR ANY SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES, PRODUCTS, EQUIPMENT OR SOFTWARE ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR DO NOT INFRINGE THE RIGHTS OF ANY PERSON. 14.2 IN NO EVENT SHALL WE OR OUR AFFILIATES OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCON- TRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF: THIS AGREEMENT, THE USE OF THE SERVICES, ANY PROCESSOR PROVIDED SERVICES, ANY THIRD PARTY SERVICES OR PRODUCTS OR SERVICES SOLD OR INTRODUCED TO YOU BY US THAT ARE ANCILLARY TO THIS AGREEMENT. 14.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY (INCLUDING SECTION 29): a) WE SHALL, AT OUR OWN EXPENSE, CORRECT ANY TRANSACTION DATA TO THE EXTENT THAT SUCH ERRORS HAVE BEEN CAUSED BY US OR BY OUR SYSTEMS. b) OUR CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CON- TROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE TOTAL FEES PAID TO US UNDER THIS AGREEMENT FOR THE 3 MONTHS PRIOR TO THE TIME THE LIABILITY AROSE; c) ANY LIABILITY THAT WE MAY HAVE TO YOU FOR ANY DELAY IN FUNDING TRANSACTIONS WILL BE LIMITED TO INTEREST COMPUTED FROM THE DATE THAT YOU SUBMIT THE TRANSACTION TO THE DATE THAT WE FUND THE TRANSACTION AT THE RATE OF THE FEDERAL FUNDS AS SET BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW YORK, LESS ONE PERCENT (1%); d) OUR LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY EQUIPMENT OR SOFTWARE SHALL NOT EXCEED THE PURCHASE PRICE OR PRIOR TWELVE MONTH'S RENT OR FEES, AS APPLICABLE, PAID TO US FOR THE PARTICULAR EQUIPMENT OR SOFTWARE INVOLVED; AND. e) WE SHALL HAVE NO LIABILITY FOR ANY PROCESSOR PROVIDED SERVICES, ANY THIRD PARTY SERVICES OR PRODUCTS OR SERVICES SOLD OR INTRODUCED TO YOU BY US UNLESS WE SPECIFICALLY AGREE TO ANY SUCH LIABILITY IN A SEPARATE WRITTEN AGREEMENT. 15. CONFIDENTIALITY 15.1 15.2 15.3 15.4 You shall safeguard all confidential information we supply or otherwise make accessible to you (including the terms of this Agreement) using a reasonable degree of care. You shall only use our confidential information for the purposes of this Agreement and shall not disclose our confidential information to any Person, except as we may agree in advance and in writing. At our request you shall return to us or destroy all of our confidential information in your possession or control. You shall not disclose, use or sell Cardholder Information, except as necessary to complete a Transaction or to comply with this Agreement, You agree that breach of the restrictions on use or disclosure of our confidential information would result in immediate and irreparable harm to us, and money damages would be inadequate to compensate for that harm. We shall be entitled to equitable relief, in addition to all other available remedies, to redress any breach. You may submit comments or ideas about our Services, including about how to improve our Services. By submitting any idea, you agree that: a) we expressly disclaim any confidentiality obligations or use restrictions, express or implied, with respect to any of your ideas; b) your submission will be non -confidential; and c) we are free to use and disclose any of your ideas on an unrestricted basis without notifying or compensating you. You release us from all liability and obligations that may arise from our receipt, review, use or disclosure of any portion of any idea. I6. USE OF DATA 16.1 You agree we may use Transaction Data for any lawful purpose including but not limited to providing additional products and services to you, other merchants, or third parties. This includes using Cardholder information, dates, transaction details, and other Transaction Data to provide you with analytics products and services as well as collecting and using Transaction Data aggregated with other merchants' transaction data to provide you, other merchants, and third parties with analytic products and services. TD2008(ia) 6 August 2017 Manual T&C - CAP # 40233 16.2 In the course of providing Services, we may collect information relating to activities on your network, including network configuration, TCP/IP packet headers and contents, log files, malicious codes, and Trojan horses. We retain the right to use this information or aggregations of this information, in addition to the Transaction Data described above, for any reasonable purpose. 16.3 You agree that we may obtain relevant information from any applicable telecom- munications provider you utilize, as necessary to investigate any allegation of fraud, suspected fraud or other actual or alleged wrongful act by you in connection with the Services. 17. INTELLECTUAL PROPERTY RIGHTS 17.1 All right, title, and interest in and to all confidential information and intellectual property related to the Services (including the Marks, all Software, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or modifications to or derivative works from such intellectual property), owned, developed or licensed by us prior to, during the term of, or after this Agreement, or employed by us in connection with the Services, shall be and remain, as among the parties, our or our affiliates', our vendors' or our licensors' (as applicable) sole and exclusive property and all right, title and interest associated with the Services, Equipment and Software not expressly granted by us in this Agreement are deemed withheld. You may not use our Marks or those related to the Services in any manner, including in any advertisements, displays, or press releases, without our prior written consent. 17.2 You may not, nor may you permit any third party to do any of the following: (a) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the Service, Software or Equipment (or any part), except to the extent that such restriction is expressly prohibited by law; (b) modify, translate, or alter in any manner, the Service, Software or Equipment (or any part) or our Marks; (c) create derivative works of or based on the Service (or any part), Software or our Marks; (d) except for backup and archival purposes, directly or indirectly copy the Service or any Software (or any part); (e) republish, upload, post, transmit, disclose, or distribute (in any format) the Service or Software (or any part) except as permitted in this Agreement; or (f) remove, relocate, or otherwise alter any proprietary rights notices from the Service, Software or documentation (or any part) or our Marks. 17.3 If we provide you with copies of or access to any Software or documentation, unless otherwise expressly stated in writing, that Software and documentation is provided on a personal, non-exclusive, non -transferable, non -assignable, revocable limited license for the period of your subscription to the applicable Service and solely for you to access and use the Software and documentation to receive the relevant Services for its intended purpose on systems owned or licensed by you. Software can only be used with certain computer operating systems and it is your responsibility to ensure that you have the appropriate hardware and software to use the Software. 17.4 You shall not take any action inconsistent with the stated title and ownership in this Section 17. You will not file any action, in any forum that challenges the ownership of any part of the Service or any Software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement. We have the right to immediately terminate your access to and use of the Service in the event of a challenge by you. I8. ASSIGNMENT 18.1 Any attempt to transfer or assign this Agreement in whole or part, or rent, lease, sell, sublicense or otherwise transfer any licensed rights, without our prior written consent, including by operation of law, transfer of voting control of you or your parent or otherwise, is prohibited and voidable by us and, in such event we may: (a) suspend Services at any time and without notice, (b) hold you and your guarantors liable for all obligations incurred by such purchaser or transferee, and (c) offset funding and obligations incurred on your accounts without regard to whether such funding or obligations relate to activities of you or of such purchaser or transferee. 18.2 You shall not make an assignment (or provide a security interest) or encumber any of your rights to any payment, receivable or other amount due to you pursuant to this Agreement or otherwise covered by this agreement without our prior written consent. Failure to obtain our consent shall be deemed to be a material breach of this Agreement, not subject to cure. Any permitted assignee or successor entity to you must provide such additional information and execute such additional documen- tation or take any further actions as we may request in order to ensure continued performance of services by us under this Agreement. If you breach the forgoing covenant then we may, at our option, elect to: (a) refuse to acknowledge such assignment unless accompanied by an authorization to both initiate debits or credits to the bank account of the assignee; (b) terminate this Agreement immediately; or (c) charge for any transfers that we are called upon to make manually to fulfill such an assignment at the rate of $100 per transfer. 18.3 Subject to Card Organization Rules, and without providing notice to you or obtaining your consent, we may assign or transfer this Agreement and our rights, duties and obligations under this Agreement and may delegate or subcontract our rights, duties and obligations, in whole or in part, to any Person. 18.4 If this Agreement is assigned with our permission or by operation of law, the restriction against assignment shall continue to apply to the assignee, who will not be authorized to further assign this Agreement except as described in this Section 18. I9. TERM; EVENTS OF DEFAULT 19.1 This Agreement becomes effective only when your Application is approved by Bank. We reserve the right to immediately suspend or terminate your account and this Agreement if you fail to meet our policies even if your account has been activated to submit transactions prior to your approval by us. This Agreement will continue in full force and effect until it is terminated by Merchant or Bank in Accordance with the terms of this Agreement. 19.2 The initial term of this Agreement is three years from the date of your approval by Bank (the Initial Term). After the Initial Term, subject to Section 19.3, this Agreement shall automatically extend for additional period of three years each (each an Extended Term). 19.3 A party may give written notice to the other party, not later than 60 days before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be. Should you fail to notify us in writing that you wish to terminate this Agreement under this Section 19.3 you agree that you will continue to be charged certain fees pursuant to this Agreement even if you are not using your account. If you have an equipment lease termination of this Agreement does not terminate that equipment lease. 19.4 If you terminate this agreement before the end of the Initial Term or any Extended Term, you will be obligated to pay Bank all monthly fees, whether for maintenance, products, equipment, and an Early Termination Fee of $350.00. The Early Termination fee will be automatically deducted from your Settlement Account when your Merchant Account is closed. 193 We may terminate this Agreement or suspend any or all of the Services immediately and without notice in the following circumstances (each, a "Default"): a) we, in our sole discretion, are not satisfied with your financial condition or believe that you may not be able to continue to satisfy your obligations under this Agreement; b) any assignment or transfer of voting control of you or your parent or sale of all or a substantial portion of your assets; c) irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by Bank, or any Card Organization, or any other Person, or an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; d) you breach any of your representations, warranties or covenants in this Agreement or you default in any material respect in the performance or observance of this Agreement or in any other agreement with us or any of our respective Affiliates, including the establishment or maintenance of a Reserve or any failure to notify us of any change to the information in your merchant profile; e) your actions come under investigation by any Card Organization resulting in the Card Organization directing us to terminate or suspend our Services or Agreement with you; f) you engage in conduct that creates or may create harm or loss to the goodwill of any Card Organization, the Bank, Processor, or their respective Affiliates or agents; g) you or any of your affiliates are listed in one or more databases of terminated or high risk parties maintained by any Card Organization; h) you are subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding, and such proceeding shall continue undismissed or unstayed for a period of 60 consecutive days; or i) you violate any applicable law or Card Organization Rule or we reasonably believe that termination of this Agreement or suspension of Services is necessary to comply with any law, including the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury 19.6 We may suspend or terminate this Agreement or our provision of one or more Services to you immediately without notice and without penalty if: (a) the Service is generally discontinued; (b) our arrangement with the Card Organization or third party vendor in relation to the Service expires or terminates; (c) we are directed to end the service to you by any Card Organization; (d) we are prevented from providing the Service by any law, regulation, requirement, ruling or notice issued in any form whatsoever by judicial or governmental authority; (e) in the event that an Adverse Development arises or (f) if in our sole judgement, for any other reason our continued performance under this Agreement is impossible or impracticable under the circumstances. 19.7 We may also suspend Services if, in our sole judgement, it is necessary to: (a) prevent damages to, or degradation of, our or a third party vendor or network's network integrity that may be caused by a third party; (b) comply with any law, regulation, court order or other governmental request which requires immediate action; or (c) otherwise protect us or a third party vendor from potential legal liability. To the extent practicable, we shall give notice to you before suspending any Services in these circumstances. Availability of Services may vary due to events beyond the TD2008(ia) 7 August 2017 Manual T&C - CAP # 40233 control of us or our third party vendors. In the event of a suspension of a Service under this Section, we or the applicable third party vendor shall promptly restore the Services after the event giving rise to the suspension has been resolved. 19.8 You may terminate this Agreement immediately upon written notice by you to us in the event that we breach any term or condition of this Agreement, and such breach remains uncured 30 days after our receipt of written notice of such breach from you. 19.9 In addition to other termination rights set forth herein, this Agreement also may be terminated upon 30 days prior written notice from either party to the other party, in the terminating party's sole discretion, with or without cause. Merchant will be subject to the Early Termination Fee described in Section 19.4. 19.10 Survival. The expiration or termination of this Agreement shall not affect the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive, including Sections 7.2, 12, 10, 14, 15, 17, 18, 20, 22, 26 28, 29, 30, 31 and 33. 19.11 After expiration or termination of this Agreement or your subscription to a particular Service for any reason: (a) your right and license to access and use the Software and documentation associated with the Service shall immediately cease and, within five (5) days after such event, you shall either return to us or destroy all Software and documentation provided to you by us and shall so certify to us in writing; and (b) you shall continue to bear total responsibility for all transactions you have submitted to us and all Chargebacks, fees, Card Organization fines imposed on us as a result of your acts or omissions, credits and adjustments resulting from Card transactions processed pursuant to this Agreement, and all other amounts then due or which may become due under this Agreement. On termination due to a Default, all amounts owing to us shall be immediately due and payable. 19.12 If you file for protection under the U.S. bankruptcy code or any other laws relating to bankruptcy, insolvency, assignment for the benefit of creditors or similar laws, and you continue to use our Services, it is your responsibility to open new accounts to distinguish pre and post filing obligations. You acknowledge that as long as you utilize the accounts you established prior to such filing, we will not be able to systematically segregate your post -filing transactions or prevent set-off of the pre- existing obligations. In that event, you will be responsible for submitting an accounting record supporting any adjustments that you may claim. 19.13 The Card Organizations maintain merchant lists such as the Member Alert To Control High-risk (Merchants) (MATCH) who have had their merchant agreements or card acceptance rights terminated for cause. If this Agreement is terminated for cause, you (a) agree that we may report your business name and the names and other information regarding your principals to the Card Organizations for inclusion on such list(s); and (b) waive and hold us harmless from and against any and all claims which you may have as a result of such reporting. 20. RESERVE; SECURITY INTEREST 20.1 You agree that in addition to any other rights we have under this Agreement, we may at any time unilaterally establish a Reserve consisting of cash or other assets that we will hold to satisfy your obligations or potential obligations under this Agreement or any other agreement with us or our Affiliates. 20.2 The amount of the Reserve shall be set by us in our sole discretion based upon your processing history and the potential risk of loss to us, as we may determine. 20.3 The Reserve shall be fully funded upon three days' notice to you or immediately in instances of suspected fraud or a Default. If you fail to establish or maintain any required Reserve, we may immediately terminate this Agreement and exercise any and all of our other rights. Your obligations arising pursuant to this Section 20 shall survive any termination of this Agreement. 20.4 The Reserve may be funded by all or any combination of: (a) one or more debits to your Settlement Account or any other accounts held by Bank or any of its Affiliates, at any financial institution maintained in your name or in the name of any of your principals, or any of your Guarantors, or if any of same are authorized signers on such account; (b) any payments otherwise due to you from us or our Affiliates; or (c) any other collateral that you agree to provide and we agree to accept in our mutual discretion. 20.5 If this Agreement is terminated by any party, an immediate Reserve may be established without notice in the manner provided above. In these circumstances, the Reserve will be held by us for 10 months after termination of this Agreement or for such longer period of time as is consistent with resolution of all liability from your Card acceptance including Chargebacks, fines, fees or obligations of any other kind. 20.6 Any funds we hold in Reserve represent general payment obligations to you which do not become due until all potential contingent liabilities arising from your Card transactions have expired or lapsed. We may set-off any obligations that you owe to us before returning the balance of the Reserve. Unless specifically required by law, you shall not be entitled to interest on any funds held by us in the Reserve, and we shall be entitled to accrued interest in such funds. 20.7 Notwithstanding Section 20.6 you agree that we have a security interest in all funds or other assets that we hold in Reserve and to provide us with any documentation we may request to perfect our security interest in the Reserve. 20.8 If any funds we hold in Reserve are not sufficient to cover the Chargebacks, adjustments, fees and other charges and amounts due from you, or if the funds in Reserve have been released, you agree to promptly pay us such sums upon request. 2I. BUSINESS INFORMATION,AUTHORIZATIONTO OBTAIN INFORMATION FROM THIRD PARTIES 21.1 You are solely responsible for: (a) ensuring the accuracy of all information and data regarding your business that you provide to us or our service providers in connection with the Services, including any menus loaded onto a Device; (b) verifying that all information and data loaded onto a Device by us or our service providers at your request are accurate prior to your business use of such Device; and (c) immediately notifying us should any information you have provided to us become inaccurate or misleading. We and our service providers disclaim any and all liability arising out of any inaccuracies with respect to such information or data. 21.2 Upon request, you will provide us and our Affiliates quarterly financial statements within 30 days of the end of each fiscal quarter and annual audited financial statements within 90 days of the end of each fiscal year. Any financial statements provided must be prepared in accordance with generally accepted accounting principles. You will also provide other information concerning your business and your compliance with the terms and provisions of this Agreement as we may reasonably request. 21.3 You agree to provide us at least 30 days prior written notice of your intent to change current product lines or services, the types of payments that you accept, or the manner by which you accept such payments. You also agree to provide us with prompt written notice upon the occurrence of any of the following: (a) you are subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding; (b) you experience any adverse change in your financial condition; (c) you expect or experience any liquidation or substantial change in the nature of your business; (d) you expect or experience at least 25% of the total value of your assets becoming encumbered or subject to a judgment, levy or attachment; (e) you agree to sell or transfer (or complete such sale or transfer) of at least 25% of the total value of your assets; (f) you expect or experience a change in the control or ownership of you that results in a change of more than 25% of the total outstanding equity in you as of the date of this Agreement; or (g) any of the information provided to us on the Application is or becomes inconsistent with your activities. 21.4 Upon our request you shall use commercially reasonable efforts to assist us in the resolution of any Chargeback, dispute or complaint and shall provide to us all related documentation in your or your agents' possession relating to such Chargeback, dispute or complaint. 21.5 Upon 3 days written notice at any time, you shall provide us with such financial and other information as we may request relating to you and/or your ability to satisfy your financial and other obligations under this Agreement. 21.6 You authorize us and our Affiliates to obtain from third parties financial, employment and credit information relating to you and your Authorized Representatives in connection with our determination whether to accept your Application and enter into this Agreement and our continuing evaluation of your financial and credit status. We may also access and use information which you have provided to us for any other reason. You have the right to ask if a consumer credit report is requested by us, and if you ask you will be informed of the name and address of the consumer reporting agency that furnished the report. You understand and agree that we can and will furnish certain information about you, including information concerning your personal or business accounts, to consumer reporting agencies and others who may properly receive such information. 21.7 You hereby grant us a security interest in any transactional documentation related to the Transactions, and you grant us the right to access such transactional information and to copy such transactional information, as requested from time to time by us in our sole discretion. 21.8 You authorize us to share information provided by you in your Application or otherwise with other relevant organizations, including those involved in the provision of the Services. 22. AUDIT RIGHTS 22.1 With prior notice and during Merchant's normal business hours, Bank's duly authorized representatives may visit Merchant's premises and examine books and records that pertain to the Services, Transactions or Merchant's compliance with this Agreement. Any such audit shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business. 22.2 You shall cooperate fully with any investigation or audit we or any Card Organization may undertake in relation to Transaction, data security and the services and you authorize us to share the details of any questionnaire or compliance report with the Card Organizations and others as allowed or required by law. 23. SOFTWARE UPDATES AND MAINTENANCE 23.1 We may perform maintenance on Software or Services which may result in service interruptions, delays, or errors. We will not be liable for any such interruptions, delays, errors, or bugs. You agree that we may contact you in order to assist you with the Software or Services and obtain information needed to identify and fix any errors. 23.2 We may, at our discretion, release enhancements, improvements or other updates to any Software. If we notify you of any such update, you shall integrate and install TD2008(ia) 8 August 2017 Manual T&C - CAP # 40233 such update into your systems within thirty (30) days of your receipt of such notice. You acknowledge that failure to install any updates in a timely fashion may impair the functionality of the Software or Services. We shall have no liability for your failure to properly install the most current version of any Software or any update, and we shall have no obligation to provide support or services for any outdated versions. 23.3 You acknowledge and understand that certain Software can automatically install, download, and/or deploy updated and/or new components, which may include a new version of the Software itself. You shall not, in any event or in any manner, impede the update process. You agree to assume full responsibility and indemnify us for all damages and losses, of any nature, for all adverse results or third party claims arising from your impeding the update process. 23.4 We and our Wireless Vendor(s) reserve the right to make changes in the configuration of Wireless Services, Wireless Networks, Wireless Equipment, Wireless Software, rules of operation, accessibility periods, identification procedures, type and location of equipment, allocation and quantity of resources utilized, programming languages, administrative and operational algorithms and designation of the control center serving you at the particular address. 23.5 The default version and functionality of Clover software applications that are accessible at the time you acquire a Clover Device may vary. 24. ACCESSING SERVICES VIA WIRELESS SERVICES, THE INTERNET OR THIRD PARTIES 24.1 You may access certain of our Services through a Device using a wired (ethernet) or wireless (wifi or cellular) connection to the internet. You are solely responsible for the payment of any fees that may be imposed by your internet/data provider. Your use of any Services accessed wirelessly or through the internet is subject to: (a) the terms of any agreements you have with your internet/data provider; and (b) availability, transmission range and uptime of the services and any wireless equipment. 24.2 You agree that we shall not be liable to you for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (a) any termination, suspension, delay or disruption of service (including billing for a service) by the internet, any common carrier or any third party service provider; (b) any failure, disruption compatibility or malfunction of any of the Services, the Internet, or any communications network, facility or equipment beyond our or a third party's reasonable control, whether or not attributable to one or more common carriers; (c) your failed attempts to access any Services or to complete transactions via any of the Services; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you. 24.3 We may alter which Devices and browsers are approved as compatible with particular Services in our discretion. 24.4 If a Service relies on online connectivity to provide up-to-date data, you assume all risk, responsibility and liability associated with any transaction that you choose to conduct while the Service is offline. 25. SERVICE INTEGRATION 25.1 Unless otherwise agreed in writing, you have the sole responsibility to select and employ any competent programming agent(s) to accomplish any programming required to make your systems function correctly with our platforms, equipment and devices ("Integration"). You shall be responsible for all technical support for your systems and Integration related issues. You agree that you will use commercially reasonable efforts to complete any Integration as soon as possible. You will be responsible for all of your own development and implementation costs associated with such Integration. 25.2 You acknowledge that unless and until you complete any Integration, no Services which require such Integration shall need be provided by us to you pursuant to this Agreement. 25.3 Upon your request to us, and upon payment of any applicable fees, we may provide you with set-up services to assist with any integration. 26. DATA SECURITY, DATA BREACH 26.1 You agree to establish and maintain security procedures to protect Cardholder Information and Transaction Data and to comply with the data security requirements of any Card Organization, including compliance with the Payment Card Industry Data Security Standards (PCI DSS). You acknowledge that PCI DSS applies to you and to any agent or third party provider that you may use to store, process or transmit Cardholder Information and that such agents or third party providers must be registered with the applicable Card Organization. Therefore, you shall: (a) notify us in writing of any agent or third party provider that engages in, or proposes to engage in, the provision of payment related services and/or the storing, processing or transmission of Cardholder Information on your behalf, regardless of the manner or duration of such activities; and (b)ensure that all such agents and third party providers are (i) registered with the applicable Card Organization; and (ii) complies with all applicable data security requirements, including PC1 DSS. 26.2 You are solely responsible for the compliance of any and all third parties that are given access by you to Cardholder information and of any third party software that you may use, including any point-of-sale solution, application or software for facilitating payment processing. 26.3 The Card Organization or us, and our respective representatives, may inspect your premises and systems for compliance with security requirements. You acknowledge that any failure to comply with applicable security requirements may result in the imposition of restrictions on you, the prohibition of your participation in acceptance programs by the Card Organization, and/or the termination of this Agreement. 26.4 You further acknowledge that your compliance with the data security requirements of the Card Organization and PCI DSS may not prevent a breach of or intrusion into any of your systems, and may result in possible subsequent Card Organization fines or penalties, for which you shall be solely responsible. It is your sole and exclusive obligation to be vigilant in maintaining and updating your security posture on a continuous basis to protect Cardholder Information and Transaction Data. 26.5 You shall provide us with evidence of compliance upon request. Failure to comply with these requirements may result in a PCI Non -Compliance Fee, Card Organization fine and/or termination of this Agreement. 26.6 In the event of a suspected or confirmed breach of Cardholder Information or if any other Data Security Event occurs, you shall immediately (within 24 hours) notify us. You further acknowledge and agree to comply with Card Organization requirements related to a breach of Cardholder Information, which may include engaging an authorized Card Organization third party incident response assessor. You agree to fully cooperate with any such investigation and comply with all requirements and requests by us and/or the Card Organization, including: (a) assisting with any mitigation efforts to contain any further unauthorized release of Cardholder Information, (b) providing immediate access to all facilities, systems, procedures, equipment, and documents as may be deemed appropriate by us and/or the Card Organization for inspection or audit, as deemed appropriate in our sole discretion (you shall be responsible for all costs incurred by us or the Card Organization with respect to such inspection and audit); (f) granting us and our vendors the right to access and perform a scan of the IP addresses identified within your profile (and you agree and authorize payment for the additional scan). 26.7 We reserve the right to deny you access to the Services, in whole or in part, if we believe that any loss, theft or unauthorized use of any data or access to information has occurred. 26.8 If you have not purchased data breach protection from us that covers some of the costs that may be related to a data breach, you shall be responsible for all data breach remediation costs or fines and penalties, including the costs associated with credit monitoring for affected Cardholders. If you have purchased data breach protection from us, you shall be responsible for any data breach remediation costs or fines and penalties not covered by such data breach protection product. 26.9 You are responsible for all electronic communications sent to us or to any third party. When we receive communications from you we will assume you sent it to us. 26.10 You will not obtain ownership rights in any Cardholder Information. You must not use, disclose, store, sell or disseminate any Cardholder Information except for purposes of authorizing, completing and settling Card transactions and resolving any Chargebacks, retrieval requests or similar issues involving Card transaction. 27. SUPPLY OF EQUIPMENT 27.1 We will sell to you, and you will buy from us Equipment identified in Equipment Documents as being sold to you (individually and collectively, the Purchased Equipment). We will rent to you and you agree to accept and rent from us Equipment identified in Equipment Documents as being rented to you (individually and collectively, the Rental Equipment). 27.2 Any Equipment sold or rented to you is being sold or rented to you solely for business use and not for household or personal use. 27.3 Warranties, if any, for the Equipment or any related Software will be contained within the packaging and originate from the applicable third party provider or manufacturer (Vendor) not us. 27.4 YOU ACKNOWLEDGE THAT ANY EQUIPMENT AND/OR SOFTWARE YOU PURCHASE OR RENT FROM US MAY NOT BE COMPATIBLE WITH ANOTHER PROCESSOR'S SYSTEMS. WE DO NOT HAVE ANY OBLIGATION TO MAKE SUCH SOFTWARE AND/OR EQUIPMENT COMPATIBLE WITH ANY OTHER PROCESSING SYSTEMS. IF YOU ELECT TO USE ANOTHER PROCESSING SERVICE PROVIDER ON TERMINATION OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE RENTED OR PURCHASED UNDER THIS AGREEMENT. 27.5 We will provide you supplies as requested by you. You shall pay the purchase price for such supplies, plus shipping and handling charges, including all applicable tax, prior to delivery of the supplies or upon invoice, as specified by us, or at our option, such amounts will be collected by us by debits or deductions pursuant to this Agreement. 27.6 We will deliver the Equipment to the site you designate. You are deemed to have accepted each piece of Equipment at the earlier of: (a) your actual acceptance after installation; (b) delivery to you if your site is not prepared and ready for installation; or (c) for Equipment that we have not agreed to install for you, seven (7) days after TD2008(ia) 9 August 2017 Manual T&C - CAP # 40233 shipment of each such piece of Equipment. The rental period for each piece of Rental Equipment starts on the date the Equipment is deemed accepted and terminates at the scheduled termination date in the Equipment Documents. 27.7 You will prepare the installation site(s) for the Equipment, including the power supply circuits and phone lines, in conformance with the manufacturer's and our specifications and will make the site(s) available to us by the confirmed shipping date. Any alterations required for installation of Equipment will be done at your expense. 27.8 You shall cause the Equipment to be operated by competent and qualified personnel in accordance with any operating instructions furnished by us or the manufacturer. You shall not use the Equipment, or permit the Equipment to be used, in any manner or for any purpose for which the Equipment is not designed or reasonably suited. 27.9 You may not relocate, remove, disconnect, modify or in any way alter any Equipment without our prior consent. 27.10 You are responsible for safeguarding Equipment from (and shall immediately notify us of any) loss, damage, unauthorized use, misuse or theft. 27.11 You shall keep the Rental Equipment adequately insured against loss by fire, theft and all other hazards (comprehensive coverage). The loss, destruction, theft of or damage to the Rental Equipment does not relieve you of your obligation to pay the full purchase price or rent payable under this Agreement. 27.12 If Equipment is defective, you must immediately call the us. If necessary, we will assist you in obtaining replacement Equipment. If you fail to return any defective Equipment, you may be responsible for its replacement value and for any legal and/or collection costs incurred by the Equipment owner in connection with recovering Equipment. 27.13 Rented Equipment may not be subleased at any time and you must keep all Equipment free of any claims, liens and legal processes initiated by creditors. 27.14 Promptly upon termination of all applicable rental periods or promptly following any action by us following a Default, you shall deliver possession of all Rental Equipment (including all attachments and parts) to us at your cost in the same operating order, repair, condition and appearance that the Rental Equipment had at the time of its delivery to you, except for reasonable wear and tear. For each item of Rental Equipment not so returned 14 calendar days after (a) termination of the applicable rental period, or (b) any action by us following a Default, you agree to pay us the greater of $250 or the fair market value of such item of Equipment if it were in the condition described above, as determined by us. 27.15 Except for Purchased Equipment that has been paid for in full, the Equipment shall remain our personal property and shall not under any circumstances be considered to be a fixture affixed to your real estate. You shall permit us to affix suitable labels or stencils to the Equipment indicating our ownership. 27.16 You shall return Equipment in accordance with the procedure set out in the Your Payments Acceptance Guide. Rental fees may be continued until Equipment is returned. 27.17 You hereby grant to us a security interest in (a) all Purchased Equipment and the related Software to secure payment of the purchase price; and (b) all Rental Equipment and the related Software to secure payment of the monthly payments and authorize us to file financing statements with respect to the Equipment and the Software in accordance with the Uniform Commercial Code, signed only by us or signed by us as your attorney-in-fact. 27.18 You agree that in order to access any Wireless Services, you must use wireless POS Terminals and accessories approved for use with the Wireless Services by us in our sole discretion (Wireless Equipment). 27.19 You agree to obtain any and all licenses, permits or other authorizations required by the Federal Communications Commission (FCC) or any other regulatory authority, if any, for the lawful operation of any Wireless Equipment used by you. You shall promptly provide us with all such information as we may reasonably request with respect to matters relating to the rules and regulations of the FCC. 28. COMPLIANCE WITH LAWS 28.1 You agree to comply with all Applicable Law, including requirements regarding anti - money laundering, the completion of Transactions and the submission to us and use of Transaction Data, the performance of your obligations under this Agreement, and the conduct of your business You shall not use the Services for illegal purposes. 28.2 You are solely responsible for obtaining all required permits and monitoring legal developments applicable to the Services and the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program. 29. INDEMNIFICATION, PERSONAL GUARANTEE 29.1 You agree to indemnify and hold us, our Affiliates and third party service providers harmless from and against losses, liability, damages, claims, penalties, costs, or expenses incurred arising from:(a) any breach or misrepresentation by you under this Agreement; (b) your or your employees' or your agents' unlawful, willful, negligent or fraudulent action or omission that is in any way related to this Agreement or the obligations of you or us hereunder; (c) your use of the Services, including any Software or Equipment provided under this Agreement; (d) any third party indemnifications or payments we are obligated to make as a result of as a result of any action or omission by you or your employees' or your agents' 1 (including indemnification of any Card Organization or Issuer); (e) your use of any Cardholder Information or other customer information obtained in connection with your use of the Services; (f) the content or delivery of any marketing messages that you send or cause to be sent to any customer; or (g) any other persons authorized or unauthorized access and/or use of any Service, Software or Equipment, whether or not using your unique username, password, or other security features. 29.2 Personal Guarantee. As a primary inducement for us to enter into this Agreement with you, the Guarantor(s), individually and severally, hereby agree to be bound by all terms and provisions of this Agreement to the same extent and in the same manner as you ("Guarantor") and (a) unconditionally and irrevocably guarantees the full payment and performance of Merchant's obligations (i) as they now exist or as modified by the parties, (ii) with or without actual notice of changes, and (iii) during and after the term of this Agreement; (b) individually and severally, hereby agree to be bound by all terms and provisions of this Agreement to the same extent and m the same manner as the Merchant; (c) waives notice of Merchant's default; (d) shall indemnify Bank for any and all amounts due from the Merchant; (e) warrants, with knowledge that Bank is acting in full reliance of the same, and that this is Personal Guarantee of payment and not of collection; (f) Acknowledges that Bank may proceed in law directly against the Guarantor and not the Merchant; and (g) that this is a continuing personal guarantee and shall not be discharged or affected for any reason. Guarantor agrees that (a) Bank may investigate, verify and receive all credit and financial information and references about Guarantor from all references, including banks and consumer reporting agencies, which are hereby released to provide that information from time to time; (b) that Bank may use such credit reports in connection with establishing and maintaining Merchant's account and Agreement; and (c) that Bank may share Guarantor's credit and financial information. 30. GOVERNING LAW; ATTORNEY'S FEES; WAIVER OF JURY TRIAL 30.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to any conflict of laws provisions. Any action, proceeding, litigation, mediation or arbitration relating to or arising from this Agreement shall be brought exclusively in the federal courts in the county of New Castle in the State of Delaware. 30.2 You shall be liable for and indemnify us and our affiliates, officers, directors, employees and agents against any and all attorney's fees, costs and expenses incurred by us in the enforcement of your obligations under this Agreement. 30.3 THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. 31. NOTICES 31.1 Unless otherwise expressly stated in this Agreement, all notices hereunder shall be in writing and either hand delivered, faxed, sent by electronic mail, sent by overnight courier, or mailed first class (postage prepaid). Notices shall be deemed to be received: (a) upon physical receipt, if hand delivered; (b) on the same day as delivery, if faxed or sent by electronic mail; (c) on the immediately succeeding day after the notifying party delivers the notice to a courier, if sent by overnight courier; and (d) on the third day after the notifying party sends the notice, if mailed first class (postage prepaid). All notices and other communications required or permitted under this Agreement (other than those involving normal operational matters relating to the processing of Card transactions) shall be in writing and sent: a) if to you, to your email address or postal address appearing on the Application; b) if to Bank, to the address appearing on the confirmation page. 31.2 Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective nonce to you under this Agreement. 31.3 You must give us 30 days prior notice of any change to your address. Failure to provide us with a valid address may result in the termination of this Agreement. 31.4 All notices must include your name(s) and merchant number(s). 32.1 You agree that we, our affiliates and our third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes. 32.2 You consent to receiving commercial electronic messages, including email messages, SMS and text messages, and telephone calls, from us, our Affiliates, and our third party subcontractors and/or agents. 32. COMMUNICATIONS TD2008(ia) 10 August 2017 Manual T&C - CAP # 40233 33. WHOLE AGREEMENT; WAIVER; SEVERABILITY, RELATIONSHIP, CUMULATIVE RIGHTS AND REMEDIES, HEADINGS, COUNTERPARTS AND RULES OF CONSTRUCTION 33.1 This Agreement represents the entire understanding between the parties with respect to the matters contained herein and supersedes any prior agreements between the parties with respect to such matters. You agree that in entering into this Agreement you have not relied on any statement of us or our representatives. 33.2 No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition. 33.3 Should any provision of this Agreement be determined to be invalid or unenforceable under Applicable Law or Card Organization Rules, such determination shall not affect the validity or enforceability of any other provision of this Agreement, You acknowledge that we can and will replace any invalid or unenforceable provision with a valid, enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 33.4 It is understood and agreed that the relationship of the parties is that of independent contractors, and nothing in this Agreement may be construed as constituting a partnership, joint venture or agency between us and you. 33.5 All of our rights and remedies provided for in this Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to us at law, in equity or otherwise. 33.6 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one original document. 34. AMENDMENT 34.1 We may amend this Agreement at any time, and from time to time, upon not less than 5 days prior written notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Organization Rules or Applicable Law, such amendment shall be effective immediately. Your continued submission of Transactions to us following any amendment of this Agreement shall be deemed to constitute your acceptance of such amendment. 34.2 Notwithstanding Section 34.1, we may at any time modify this Agreement in accordance with Section 10.5 or to reflect changes in applicable law, the Card Organization Rules or security procedures and your right of termination shall not arise in such circumstances. 34.3 You May not amend this Agreement. 35. THIRD PARTY BENEFICIARIES 35.1 Our Affiliates and any Persons we use in providing the Services are third party beneficiaries of this Agreement and each of them may enforce its provisions as if they are a party to it. The rights of the parties to rescind or agree to any variations, waiver or settlement under this Agreement are not subject to the consent of any Person. 35.2 Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall have no rights or remedies under this Agreement. 36. 6050W OF THE INTERNAL REVENUE CODE 36.1 Under Section 6050W of the Internal Revenue Code, you will receive a Form 1099- K reporting the gross dollar amount of card transactions processed through your merchant account with us in each year. 36.2 Amounts reportable under Section 6050W are subject to backup withholding requirements. We will be required to perform backup withholding by deducting and withholding income tax from reportable transactions if (a) you fail to provide your taxpayer identification number (TIN) to us, or (b) if the IRS notifies us that the TIN (when matched with the name) provided by you is incorrect. Accordingly, to avoid backup withholding, it is very important that you provide us with the correct name and TIN that you use when filing your tax return that includes the transactions for your business. 37. FORCE MAJEURE 37.1 Neither party shall be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective Party has no reasonable control, provided that nothing in this sentence shall affect or excuse your liabilities and obligations for compliance with Card Organization Rules, Chargebacks, refunds, or unfulfilled products and services. 38. SPECIAL PROVISIONS TRANSARMOR REGARDING DATA PROTECTION SERVICE ("DATA PROTECTION SERVICE") 38.1 If Merchant elects to utilize the Data Protection Service, the terms and conditions of this Section 38 shall apply. 38.2 The Data Protection Service provided, transactions processed and other matters contemplated under this Section 38 are subject to the rest of this Agreement, as applicable, except to the extent the terms of this Section 38 directly conflict with another provision of this Agreement, in which case the terms of this Section 38 will control. 38.3 Definitions. For purposes of this Section 38 only, the capitalized terms used in this Section 38 shall have the meaning given as defined in this Section 38, and if not defined in this Section 38, as defined elsewhere in this Agreement. 38.4 Grant of License. Bank grants to Merchant a non -transferable, non -assignable, non-exclusive, revocable sub -license during the term of this Section 38 to use the Data Protection Service and the Data Protection Service Marks (as identified in the Data Protection Rules and Procedures) in the United States, excluding any United States territories or possessions, in accordance with this Section 38, including without limitation the Data Protection Rules and Procedures. Any rights with respect to the Data Protection Service not expressly granted by Bank in this Section 38 are withheld. 38.5 Services. The Data Protection Service applies only to Card transactions sent from Merchant to Bank or its third party providers for authorization and interchange settlement pursuant to the Agreement, and specifically excludes electronic check transactions, closed-loop gift card transactions, STAR contactless transactions read in contactless mode, Wright Express Transactions, Voyager Transactions, and other Card types that are not capable of being Tokenized. Bank or its third party providers will provide an encryption key to Merchant to be used to encrypt (make unreadable) Card data during transport of the authorization request from Merchant's point of sale to systems of Bank. During the period when the transaction is being transmitted to Bank or its third party providers for authorization processing, all historical transaction data, including Card number and full magnetic stripe data (track data and expiration date), will be encrypted. Bank or its third party providers will then generate or retrieve a unique, randomly generated token assigned to the Card number that will be returned to Merchant in the authorization response ("Token"). 38.6 Responsibilities of Merchant. Merchant is responsible to comply with the following regarding Merchant's use of the Data Protection Service: (a) Merchant is required to comply with the Card Network Rules, including taking all steps required to comply with the Payment Card Industry Data Security Standards ("PCI DSS"). Merchant must ensure that all third parties and software use by Merchant in connection with [Merchant's] payment processing is compliant with PCI DSS. Use of the Data Protection Service will not cause Merchant to be compliant or eliminate Merchant's obligations to comply with PCI DSS or any other Card Network Rule. Merchant must demonstrate and maintain Merchant's current PCI DSS compliance certification. Compliance must be validated either by a Qualified Security Assessor with corresponding Report on Compliance or by successful completion of the applicable PC1 DSS Self - Assessment Questionnaire or Report on Compliance, as applicable, and if applicable to[Merchant's business, passing quarterly network scans performed by an Approved Scan Vendor, all in accordance with Association Rules and PCI DSS. (b)Use of the Data Protection Service is not a guarantee against an unauthorized breach of Merchant's systems or point-of-sale devices (collectively, "Merchant's Systems"). (c) Merchant must deploy the Data Protection Service (including implementing any upgrades to such service within a commercially reasonable period of time after receipt of such upgrades) throughout Merchant's Systems, including replacing existing Card numbers on Merchant's Systems with Tokens. Full Card numbers must never be retained, whether in electronic form or hard copy. (d)Merchant must use the Token in lieu of the Card number for ALL activities subsequent to receipt of the authorization response associated with the transaction, including without limitation, settlement processing, retrieval processing, chargeback and adjustment processing and transaction reviews. (e) Any point of sale device, gateway and/or value added reseller "VAR" use by Merchant in connection with the Data Protection Service must be certified for use with the Data Protection Service. (f) If Merchant sends or receives batch files containing completed Card transaction information to/from Bank, Merchant must use the service provided by Bank or its third party providers to enable such files to contain only Tokens or truncated information. (g) Merchant must use truncated report viewing and data extract creation within reporting tools provided by Bank. (h) Merchant is required to follow rules or procedures Bank may provide to Merchant from time to time related to Merchant's use of the Data Protection Service ("Data Protection Rules and Procedures"). Bank will provide Merchant with advance written notice of any such rules or procedures or changes to such rules or procedures. (i) Merchant has no right, title or interest in or to the Data Protection Service, any related software, materials or documentation, or any derivative works thereof, and nothing in this Agreement assigns or transfers any such right, title or interest to Merchant. Merchant shall not take any action inconsistent with the stated title and ownership in this Section 38. Merchant will not file any action, in any forum, TD2008(ia) 11 August 2017 Manual T&C - CAP # 40233 that challenges the ownership of the Data Protection Service, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement. Bank has the right to immediately terminate this Section 38 and Merchant's access to and use of the Data Protection Service in the event of a challenge by Merchant. No additional rights are granted by implication, estoppel or otherwise. (j) Merchant will not: (i) distribute, lease, license, sublicense or otherwise disseminate the Data Protection Service or any portion of it to any third party; (ii) modify, enhance, translate, supplement, create derivative works from, reverse engineer, decompile or otherwise reduce to human -readable form the Data Protection Service or any portion of it; or (iii) sell, license or otherwise distribute the Data Protection Service or any portion of it; (iv) make any copies, or permit any copying, of the Data Protection Service or any portion of it; or (v) use any portion of the Data Protection Service as a standalone program or in any way independently from the Data Protection Service. If any portion of the Data Protection Service contains any copyright notice or any other legend denoting the proprietary interest of Bank or any third party, Merchant will not remove, alter, modify, relocate or erase such notice or legend on such item. (k)Merchant will only use the Data Protection Service for its internal business purposes in a manner consistent with this Agreement. (1) Merchant will use only unaltered version(s) of the Data Protection Service and will not use, operate or combine the Data Protection Service or any related software, materials or documentation, or any derivative works thereof with other products, materials or services in a manner inconsistent with the uses contemplated in this Section 38. (m) Merchant will promptly notify Bank of a breach of any terms of this Section 38. 38.7 Amendment;Termination. (a) Unless prohibited by applicable law, Bank may modify this Section 38 by providing written notice of such modifications to Merchant. (b) The Data Protection Service being provided under this Section 38 may be terminated upon thirty days written notice from one party to the other party. 38.8 Data Protection Limited Warranty. Bank provides the following limited warranty to Merchant with respect to the Data Protection Service: SUBJECT TO SECTION 38.10, BANK WARRANTS TO MERCHANT THAT THE TOKEN RETURNED TO MERCHANT AS A RESULT OF USING THE DATA PROTECTION SERVICE CANNOT BE USED TO INITIATE A SALE TRANSACTION BY AN UNAUTHORIZED PERSON/ENTITY OUTSIDE OF MERCHANT'S COVERED SYSTEMS. "Covered Systems" means Merchant's systems or point-of-sale devices that are using the TransArmor Data Protection Service. 38.9 Exclusive Remedy for Breach of Limited Warranty. Subject to Section 38.10 of these Special Provisions and the terms of the Agreement (including the damages cap(s), damages exclusion(s), and other limitations on liability in Section 14 and Section 38 of the Agreement), Bank will indemnify Merchant for direct damages resulting from Bank's breach of the Data Protection Service limited warranty in Section 38.8. For clarity, "direct damages" includes third party claims asserted against Merchant arising from Bank's breach of the limited warranty in Section 38.8. THE INDEMNIFICATION IN THIS SECTION 38.9 IS THE SOLE AND EXCLUSIVE REMEDY, AND BANK'S ENTIRE LIABILITY, FOR BANK'S BREACH OF THE LIMITED WARRANTY IN SECTION 38.8. 38.10 Exceptions to Limited Warranty and Exclusive Remedy. The limited warranty in Section 38.8 and the indemnification in Section 38.9 will not apply and will be voidable at Bank's election, and Bank will have no liability of any kind arising from the limited warranty if Merchant (a) is not receiving authorization and settlement services from Bank under this Agreement, (b) is not in compliance with all terms of this Agreement and any other agreement relating to payment forms eligible for the Data Protection Service, (c) uses the Data Protection Service in a manner not contemplated by, or in violation of, this Agreement, (d) is grossly negligent, or (e) engages in intentional misconduct. 38.11 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 38.8 AND IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE AGREEMENT, BANK AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR IMPOSED BY STATUTE OR OTHER LAW, THAT ARISE OUT OF OR RELATE TO THE SPECIAL PROVISIONS OF THIS SECTION, THE DATA PROTECTION SERVICE, OR ANY ASPECT OF THE DATA PROTECTION SERVICE, INCLUDING: (a) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (b) WARRANTIES OF NON -INFRINGEMENT OR NON-INTERFERENCE, AND (c) ANY WARRANTY THAT THE DATA PROTECTION SERVICE (OR ANY ASPECT OF THE DATA PROTECTION SERVICE) WILL (i) MEET MERCHANT'S REQUIREMENTS, (ii) OPERATE ACCORDING TO MERCHANT'S EXPEC- TATIONS, (iii) DETECT EVERY VULNERABILITY ON MERCHANTS SYSTEMS, (iv) GUARANTEE COMPLIANCE WITH APPLICABLE LAW, ASSOCIATION RULES, OR APPLICABLE STANDARDS (INCLUDING PCI DSS), (v) PREVENT A DATA BREACH OR COMPROMISE OF DATA SECURITY, (vi) PROVIDE ACCURATE OR COMPLETE DATA, OR (vii) OPERATE UNINTERRUPTED OR ERROR FREE. 38.12 Third Party Beneficiary. Bank has been granted the right by First Data Merchant Services LLC ("FDMS") to sublicense the Data Protection Service and the Data Protection Service Marks to Merchant. As such, FDMS (including its successors or assigns) is a third -party beneficiary of this Section 38, with the right to receive all benefits that Bank receives under this Section 38 and the right to initiate enforcement of the terms of this Section 38, including applicable terms of this Agreement, against Merchant at FDMS' sole discretion. 39. AMERICAN EXPRESS OPTBLUE TERMS 39.1 if Merchant elects to utilize the American Express OptBlue Service, the terms and conditions of this Section 39 shall apply. 39.2 Arbitration Agreement for Claims Involving American Express. (a) Definitions. For purposes of this Section 39 only, (i) "American Express" includes its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) "You" includes your Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) "Claim" means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or any other entity (including you or us) that American Express has the right to join, including any allegation involving a transaction using an American Express product or network or regarding an American Express policy or procedure. (b) Arbitration Agreement for Claims Involving American Express. In the event that you or we are not able to resolve a Claim, this Section 39 explains how Claims may be resolved through arbitration. You or we or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator. If arbitration is elected by any Party to resolve a Claim, the Parties understand and agree that neither you nor we nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, you, we, and American Express understand and agree that the Parties will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this OptBlue Schedule. Arbitrator's decisions are final and binding, with very limited review by a court, and once confirmed by a court of competent jurisdiction, an arbitrator's final decision on a Claim is generally enforceable as a court order. Other rights you, we, or American Express would have in court may also not be available in arbitration. (c) Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected by the Party electing arbitration. Claims will be resolved pursuant to this Section 39 and the selected arbitration organization's rules in effect when the Claim is filed, except where those rules conflict with this OptBlue Schedule. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all Parties agree in writing, if American Express or we, on one hand, selects the organization and you, on the other hand, select the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in New York, NY. (d) Limitations on Arbitration. If any Party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator's authority is limited to Claims between you, us, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by you, us or American Express and cannot be used in any other case except to enforce the award as between you, us and American Express. This prohibition is intended to, and does, preclude you from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Section 39, if any portion of these Limitations on Arbitration set forth in this Section 39 (ii) is found invalid or unenforceable, then the entire Section 39 (other than this sentence) will not apply, except that you, we, and American Express do not waive the right to appeal that decision. (e) Previously Filed Claims/No Waiver. You, we, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. You, we, or American Express may choose to delay enforcing or to not exercise rights under this Section 39, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this Section 39 applies to any class-action lawsuit relating to the "Honor All Cards," "non-discrimination," or "no steering" provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the effective date of the Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express. (0 Arbitrator's Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized TD2008(ia) 12 August 2017 Manual T&C - CAP # 40233 under this OptBlue Schedule. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Section 39. (g) Split Proceedings for Equitable Relief. You, we, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This Section 39 shall be enforced by any court of competent jurisdiction. (h) Small Claims. American Express will not elect arbitration for any Claim you properly file in a small claims court so long as the Claim seeks individual relief only and is pending only in that court. (i) Governing Law/Arbitration Procedures/Entry of Judgment. This Section 39 is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator's decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where your headquarters or your assets are located. (j) Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non - discoverable solely as a result of its use in the arbitration. (k) Costs of Arbitration Proceedings. You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. American Express will be responsible for any additional arbitration fees. At your written request, American Express will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause. (1) Additional Arbitration Awards. If the arbitrator rules in your favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator's award will include: (1) any money to which you are entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and other witness fees incurred by you. Additional Provisions for AMEX Transactions - For merchants participating in the American Express OptBlue® Program, you should review the operating guide made available to you at www.americanexpress.com/merchantopguide. 40. SPECIAL PROVISIONS REGARDING FIRST DATA PAYEEZY GATEWAYSM SERVICES If you elect to utilize the Payeezy Gateway Services ("Gateway Services"), the following additional terms and conditions of this Section 40 shall apply. The Gateway Services provided and other matters contemplated under this Section 40 are subject to the rest of this Agreement, as applicable, except to the extent the terms of this Section 40 directly conflict with another provision of this Agreement, in which case the terms of this Section 40 will control. 40.1 Definitions. For purposes of this Section 40 only, the Capitalized terms used in this Section 40 shall have the meaning given as defined in this Section, and if not defined in this Section, as defined elsewhere in this Agreement. (a) Claim means any arbitration award, assessment, charge, citation, claim, damage, demand, directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice, infringement or misappropriation of any Intellectual Property Right or violation of any law, and any consequential, indirect, special, incidental or punitive damages and any attomey's fees and expenses incurred in connection therewith. For purposes of the foregoing Claim definition, a Claim shall be considered to exist even though it may be conditional, contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated, or unmatured. (b) Confidential Information means the Gateway Services, Documentation, operational procedures, the terms and conditions of this Section 40 (including any schedule, exhibit or addendum), pricing or other proprietary business information, and any other information provided to you by us, whether or not such information is marked as confidential; provided, however, that Confidential Information will not include information that: (a) is or becomes generally known to the public through no fault of yours; (b) was lawfully obtained by you from a third party free of any obligation of confidentiality; (c) was already in your lawful possession prior to receipt thereof, directly or indirectly, from the disclosing party; (d) is independently developed by you without the use of the Confidential Information; (e) is disclosed with our express written permission; or (0 is disclosed pursuant to a lawful court or governmental order, provided you provide us with prompt prior written notice of any proceeding that may involve such an order, and an opportunity to contest any disclosure at such proceeding. (c) Customer means your customer who would like to provide payment for your goods or services. (d) Documentation means any and all manuals and other written materials in any form provided for use with the Software, as amended by us from time to time, the terms of which are incorporated in this Section 40 as if fully set forth herein. (e) Intellectual Property Rights means any and all patents, copyrights, trademarks, trade secrets. service marks, and any other intellectual property rights, and any applications for any of the foregoing, in all countries in the world. (f) Merchant Account shall mean an account set up for a merchant that requires a card processor, bank, merchant ID., terminal ID., merchant account number, or otherwise named unique merchant number. Multiple physical or virtual storefronts that process transactions under the same unique merchant number shall be deemed as one (1) Merchant Account. (g) Operational Procedures means our published policies and procedures contained in the various documents provided to you, as amended from time to time, concerning the Gateway Services provided pursuant to this Section, the terms of which are incorporated in this Section as if fully set forth herein. (f) Payeezy Gateway Services or Gateway Services means the payment processing services offered through the Platform (including, but, not limited to authorization of transactions, routing transactions to the appropriate payment processing network or third party service provider, transaction responses (approved, declined), and the detailed reporting of those transactions) and related Software, as applicable. The Gateway Services do not include alternative payment products or services that are supported by or may be accessed through the Platform and with respect to which you enter into an agreement: (i) with us (which agreement may consist of an amendment to this Agreement or specific terms in this Agreement expressly covering such alternative payment products or services) (such alternative payment products or services, "Separate Products"), or (ii) a third party service provider (e.g., PayPal) regarding your participation in such alternative payment products or services (together with Separate Products, the "Excluded Products"). (h) Platform means our operated, or approved, electronic payment platform(s) and/or gateway(s) (also referred to as the "Payeezy Gateway") through which the payment services contemplated under this Section 40 are provided. (i) Software means all applications, protocols, software components and other interfaces and software provided by us to you pursuant to this Section 40, and any and all Updates. (1) Updates means an embodiment of the Software that provides enhancements and/or improvements. (k) Your Systems means any web site(s) or interface(s) to the Gateway Services that are operated or maintained by you or on your behalf through which transactions are submitted for processing, and all of your other associated systems. 40.2 Fees. You shall pay us the fees for the Gateway Services as set forth on the Application. A separate account with us for the Gateway Services shall be required for each separate Merchant Account held by you. 40.3 Term;Termination. The Gateway Services shall commence as of the effective date of this Agreement and shall remain in effect until terminated by either party as provided herein. Either party may terminate the Gateway Services s upon giving the other party at least thirty (30) days prior written notice. We may suspend or terminate your access to Gateway Services without prior notice, with or without cause. Regardless of the reason for termination, you shall be responsible for the payment of all fees due up to and including the effective date of termination. 40.4 License Grant. 40.4.1 License. Subject to the terms and conditions of this Agreement (including additional rights and licenses granted in the Documentation), we grant to you a non- sublicensable, royalty free, non-exclusive, nontransferable, revocable limited license to use the Gateway Services during the term of this Agreement for the sole and limited purpose of submitting payment transactions to us for processing and otherwise using Gateway Services as set forth herein. For clarity, all references to Gateway Services in this Agreement shall include the applicable Software. 40.4.2 Documentation License. Subject to the terms and conditions of this Agreement, we grant to you, and you hereby accept, a royalty free, non-exclusive, non -transferable, revocable limited license, without right of sublicense, to use the Documentation during the term of this Agreement for the sole and limited purpose of supporting your use of the Gateway Services. You shall strictly follow all Documentation provided to you, as it may be amended from time to time by us, in TD2008(ia) 13 August 2017 Manual T&C - CAP # 40233 our discretion. To the extent that there is any conflict between the Documentation and the terms of this Agreement, the terms of this Section 40 shall govern and control. 40.4.3 Use Restrictions. You acknowledge that the Gateway Services and Documentation constitute our intellectual property, therefore, you shall not, and shall not cause or permit any third party to: (i) use the Gateway Services in any way, other than in accordance with this Agreement, the Documentation or as otherwise instructed by us in writing; (ii) use the Gateway Services or Documentation, either directly or indirectly, for benchmarking purposes or to develop any product or service that competes with the products and services provided under this Section 40; (iii) disassemble, decompile, decrypt, extract, reverse engineer or modify the Gateway Services, or otherwise apply any procedure or process to the Gateway Services in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Gateway Services or any algorithm, process, procedure or other information contained in the Gateway Services, except as otherwise specifically authorized in accordance with this Section 40; (iv) provide the Gateway Services or Documentation to any third party, other than to your authorized employees and contractors who are subject to a written confidentiality agreement, the terms of which are no less restrictive than the confidentiality provisions of this Section 40; (v) use, modify, adapt, reformat, copy or reproduce the Gateway Services or Documentation or any portion thereof, except as is incidental to the purposes of this Section 40, or for archival purposes (any copies made hereunder shall contain all appropriate proprietary notices); (vi) rent, lease, upload, assign, sublicense, transfer, distribute, allow access to, or timeshare the Gateway Services or Documentation; (vii) circumvent or attempt to circumvent any applicable security measures of the Gateway Services; (viii) attempt to access or actually access portions of the Platform or Gateway Services not authorized for your use; and/or (ix) use the Gateway Services in any unlawful manner or for any unlawful purpose. 40.4.4 Updates. From time to time we may, at our discretion, release Updates or modify the Software. In the event we notify you of any such Update, you shall integrate and install such Update into Your Systems within thirty (30) days of your receipt of such notice. You acknowledge that failure to install Updates in a timely fashion may impair the functionality of the Platform or any of our Gateway Services provided hereunder. We will have no liability for your failure to properly install the most current version of the Software or any Update, and we will have no obligation to provide support or Gateway Services for any outdated versions. 40.4.5 Licensors. The licenses granted hereunder may be subject to other licenses currently held by us or our subcontractors. Should any license held by us to certain technology or software be terminated or suspended, the corresponding license(s) granted to you hereunder may also be terminated or suspended in our sole and absolute discretion. You acknowledge and agree to such potential termination or suspension and hereby waive any and all damages, whether actual, incidental or consequential resulting therefrom. 40.4.6 Export Compliance. You agree not to export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any country to which the United States has embargoed goods (or any national or resident thereof); (0) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders; or (iii) in any manner not in full compliance with the requirements of the United States Bureau of Industry and Security and all applicable Export Administration Regulations. If you have rightfully obtained the Software outside of the United States, you agree not to re-export the Software except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software. You warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. 40.4.7 Federal Acquisition Regulations. If you are acquiring the Software on behalf of any part of the United States Government (the "Government"), the following provisions apply: Any use, duplication, or disclosure by the Government is subject to the restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software -Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. We are the contractor/manufacturer, with the address set forth below. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the Government or any of its agencies shall be governed solely by the terms of this Section and shall be prohibited except to the extent expressly permitted by the terms of this Section 40. 40.4.8 Return/Destruction. Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate, and within five (5) days thereof, you shall either return to us or destroy the Software and the Documentation, and shall so certify to us m writing. 40.4.9 No other Licenses. Except as expressly provided above, no license for any patents, copyrights, trademarks, trade secrets or any other Intellectual Property Rights, express or implied, are granted hereunder. 40.4.10 Use of Transaction Data. As permitted by applicable law and regula- tions, we reserve the right to copy and distribute to third parties, any information associated with your use of the Gateway Services or your activities on the Platform. 40.5 Platform Matters. 40.5.1 Integration with Your Systems. While we provide Software to you, you acknowledge that the Software itself is insufficient to allow Your Systems to function with the Platform. Programming, development and maintenance of Your Systems and their functionality are your sole responsibility. You have the sole responsibility to select and employ any competent programming agent(s) to accomplish the programming required to make Your Systems function correctly with the Platform and the payment services contemplated hereunder ("Integration"). You shall be responsible for all technical support for Your Systems and Integration related issues. You agree that you will use commercially reasonable efforts to complete the Integration as soon as possible. You will be responsible for all of your own development and implementation costs associated with such Integration. Notwithstanding any other provision of this Section 40, you acknowledge that unless and until you complete the Integration, no Gateway Services need be provided by us to you pursuant to Section, except as otherwise specifically provided in Section 40.5.2 below. In addition, you acknowledge and agree that, even if you have completed Integration, if you have not entered into a valid merchant processing agreement with an authorized bank card processor, you cannot receive the Gateway Services through the Platform. 40.5.2 Set -Up Assistance Services. Subject to Section 40.5.1 above, upon your request to us, and upon payment of any applicable fees, we will provide you with set- up services to assist with the Integration. 40.5.3 Shut Downs. We reserve the right, from time to time, without prior notice, to shut down and restart the Platform for maintenance and/or software upgrades for reasonable time periods of one minute or more. 40.5.4 Orders by Customers. You are solely responsible for accepting, processing, and filling any orders for purchases by your Customers, and for handling any inquiries arising therefrom. You shall use the highest standards in the industry in responding to complaints by Customers. We are not responsible or liable for any unauthorized access to your data or Your Systems by any means or device. 40.6 Security of Information. We will use commercially reasonable efforts to maintain the security of the Gateway Services and the Platform. You will use commercially reasonable efforts to maintain the security of Your Systems. Such steps by you will be taken at your sole cost and expense, and shall include, without limitation: (i) creating firewalls to protect against unauthorized access to Your Systems by your employees, contractors, Customers, or by any other person; and (0) implementing reasonable protective techniques suggested by us. You further agree that you will be bound by and comply with all of our and all Card Organization security rules and regulations as they now exist or as each may be amended or supplemented from time to time. Notwithstanding the foregoing, the parties recognize that there is no guarantee or absolute security of information that is communicated over the internet. 40.7 Privacy. We have adopted online Privacy Statement(s) for the Gateway Services to inform individuals as to online collection and use of personal information. You agree that, during the term of this Agreement, you will adequately communicate and comply with an appropriate privacy policy explaining your online collection and use of the personal information of your Customers. Unless required by law, Card Organization Rules, or done pursuant to this Agreement, you shall not, under any circumstances, sell, purchase, provide, or otherwise disclose any customer's account information, transaction information, or other personal information to any third party. You shall store all data securely. We may advise potential users of the services that we have a relationship with you. 40.8 Audit Rights. Upon notice to you, we may audit your usage, records and security of the Gateway Services, your Customer's payment processing information, and the services provided hereunder to ensure (i) that you are using the Gateway Services in full compliance with the provisions of this Section 40; (0) that all applicable fees have been paid; (iii) that you are adhering to your privacy policy; and; (iv) that you are in full compliance with all applicable laws, regulations and rules (including but not limited to Card Organization Rules). Any such audit shall be conducted during regular business hours at your offices and shall not interfere unreasonably with your business. 40.9 Indemnification. You shall indemnify, defend, and hold us, our subsidiaries and affiliates and our and their officers, directors, employees, shareholders, agents and attorneys from any Claim(s) arising from the conduct of your business, any Transactions submitted through the Platform hereunder for payment processing, any false or inaccurate representation made by you or the negligence, fraud, dishonesty or willful behavior of any of your employees or agents, or from your failure to strictly comply, in whole or in part, with any: (i) terms and conditions pursuant to this Agreement and any addenda hereto or Documentation; or (0) applicable law, regulations or rules. Upon written notice from us to you, you shall immediately undertake the defense of such Claim by representatives of your own choosing, subject to our reasonable approval. TD2008(ia) 14 August 2017 Manual T&C - CAP # 40233 40.10 Limitation of Liability. 40.10.1 We are not liable for your use or misuse of the Gateway Services, including the merit and legitimacy of the orders forwarded by you. All liability for validity of orders remains with you. We are not responsible for any data entry errors, Customer misrepresentations, or reporting errors resulting from your actions. We shall not be liable to you or your Customer for the accuracy of the information provided by the Gateway Services. 40.10.2 In no event shall we be liable to you, or to any other person or entity, under this Section 40, or otherwise, for any punitive, exemplary, special, incidental or consequential damages, including, without limitation, any loss or injury to earnings, profits or goodwill. 40.10.3 Notwithstanding any provision in this Agreement to the contrary, in no event shall our liability under this Section 40 for all Claims arising under, or related to, this Section 40 exceed, in the aggregate (inclusive of any and all Claims made by you against us, whether related or unrelated), the lesser of: (i) the total amount of fees paid by you for the Gateway Services during the 12 -month period immediately preceding the date the event giving rise to such Claim(s) occurred; or (ii) $50,000.00. 40.10.4 Notwithstanding provisions set forth herein, we will not be liable for any Claims under this Agreement arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of service (including billing for a service) by the internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Service provided hereunder or the internet, or any communications network, facility or equipment beyond our reasonable control, whether or not attributable to one or more common carriers or third party service providers; (c) any failed attempts by you or your Customers to access any Systems or to complete processing transactions; (d) any failure to transmit, obtain or collect data from Customers; or (e) human, machine or software errors or faulty input or your or your Customer's erroneous input. 40.10.5 Except as expressly agreed to by us in writing with respect to any Separate Product, we are not liable for any Excluded Products. 40.11 Disclaimer of Warranties. You acknowledge and agree that the use of the Gateway Services and Documentation are at your sole risk and we make no representation or warranty, express or implied, and no implied at law warranty shall arise from this Section, the Gateway Services, the Documentation, our procedures, or other services provided by or performed by us hereunder, including, without limitation: (a) any implied warranties of merchantability or fitness for a particular purpose; (b) any warranties of noninterference or non -infringement; or (c) any warranties that any product or Service provided hereunder (including but not limited to the Software) will (i) meet your requirements; (ii) operate according to your expectations; (iii) provide accurate data; or (4) operate uninterrupted or error free. Any and all such warranties are expressly disclaimed by us and waived by you. We do not warrant that any errors will be corrected. Except as otherwise specifically set forth herein, the Platform, Gateway Services and Software provided hereunder are provided on an "As -Is, with all faults" basis. This disclaimer of warranties constitutes an essential part of this Agreement. All decisions to reject any processing transaction or payment for your products or services are solely your responsibility. 40.12 Subcontractors. We may subcontract all or part of the Gateway Services using a variety of providers globally, but, notwithstanding any such subcontract, we shall remain fully responsible for performance of Gateway Services, including ensuring the compliance of subcontractors with the terms of this Agreement applicable to such subcontractors. Each of our subcontractors for the Gateway Services is a third party beneficiaries of Sections 40.4, 40.5, 40.7, 40.8, 40.9, 40.10, 40.11, 40.13 and 40.14 of this Section with rights to enforce the applicable terms of this Section against you. 40.13 Survival. Upon termination or expiration of this Section 40 or the Agreement, a party's obligations shall cease except for those remaining or required to be performed following such termination. For the avoidance of doubt, the parties agree that those provisions of this Section that logically should survive its termination or expiration in order to accomplish its fundamental purposes will do so. All representations, warranties, indemnities and covenants made herein shall survive the termination of this Section and shall remain enforceable after such termination. 41. INTERPRETATION; DEFINITIONS 41.1 The headings contained in this Agreement are for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement. References in this Agreement to include, including, or in particular shall not be given a restrictive meaning and shall be interpreted without limitation. Reference to any legislation is to such legislation as amended or supplemented in the future. The words "herein" and "hereunder" and other words of similar import refer to this Agreement in its entirety and not to any part of this Agreement unless the context requires otherwise. 41.2 Certain terms used in this Agreement are defined below: Address Verification Service (AVS): A tool provided by credit card processors and issuing banks to merchants in order to detect suspicious credit card transactions. The Address Verification Service (AVS) checks the billing address submitted by the card user with the cardholders billing address on record at the issuing bank. This is done as part of the merchant's request for authorization of the credit card transaction. The credit card processor sends a response code back to the merchant indicating the degree of address matching, depending on which the credit card transaction may be accepted or rejected. Adverse Development: means any event, development, circumstance, state of facts or effect (including a change in Applicable Law or a change in the Card Organization Rules) that, individually or in the aggregate, (a) has had or would reasonably be expected to have an adverse effect, other than a de minimis adverse effect, on the business, operations or financial condition of us, or (b) has impaired or would reasonably be expected to impair, other than a de minimis impairment, our ability to perform our obligations under this Agreement (and, for the avoidance of doubt, any adverse or negative publicity mentioning us, or damage to our reputation). Affiliate: a Person that, directly or indirectly, (i) owns or controls a party to this Agreement or (ii) is under common ownership or control with a party to this Agreement. Agreement: has the meaning set forth in Section 1.1 of this document. Anticipated Interchange and Program Pricing Level: your initial anticipated Card Organization interchange and program pricing rates as indicated in your initial Fee Schedule. Application: the application for Services executed by you. Applicable Law: means, with respect to any party, any law (including common law), ordinance, statute, treaty, order, rule, regulation, directive, regulatory guidance, opinion, interpretation, consent, approval, authorization or other determination or finding of any governmental body with jurisdiction over such party that is applicable to or binding upon such party or to which such party or its assets is subject, whether federal, state, county, local, foreign or otherwise. Authorization: approval by, or on behalf of, the Issuer to validate a transaction. An Authorization indicates only that the Issuer has confirmed there is sufficient availability of funds on the Cardholder's account at the time the Authorization is requested. Authorization and Capture: the communication of instructions from your POS or other systems to our computer systems, whether the communications are for authorization requests or any other capture of information. Authorized Representative: means an owner, partner, officer, or other Agent of the Merchant that is duly authorized to enter into agreements on behalf of the Merchant and legally bind Merchant to such agreements. Bank: means TD Bank, N.A. Card: See either Credit Card or Debit Card. Cardholder: the Person whose name is embossed on a Card and any authorized user of such Card, also referred to as a Card Member by American Express. Cardholder Information: the data contained on a Card, or otherwise provided to you, that is required by the Card Organization or us in order to process, approve and/or settle a Card transaction, including the names, addresses and Card account numbers of Cardholders. Card Organization: any entity formed to administer and promote Cards, including MasterCard Worldwide (MasterCard), Visa U.S.A., Inc. (Visa), DFS Services LLC (Discover Network), PayPal, Inc. (PayPal), American Express Travel Related Services Company, Inc. (American Express) and any applicable debit networks. Card Organization Rules: the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Organization and related authorities, including those of the PCI Security Standards Council, LLC and the National Automated Clearing House Association (including, with respect to EBTs, the Quest Operating Rules). Chargeback: a Card transaction (or disputed portion) that is returned to us by the Issuer. You are responsible for payment to us for all Chargebacks. Card Item: means sales records, credit vouchers, and similar documents and items used in connection with the processing of a Transaction, including Transaction Data. Chip Card: A Card that includes an embedded secure integrated circuit that can be either a secure microcontroller or equivalent intelligence with internal memory or a secure memory chip alone. The card connects to a reader with direct physical contact or with a remote contactless radio frequency interface. With an embedded microcontroller, chip cards have the unique ability to securely store large amounts of data, carry out their own on -card functions (e.g., encryption and mutual authentication) and interact intelligently with a card reader. Clover: Clover Network, Inc. Clover Service: the website associated with the Clover Service, the object code version of Clover software applications (whether owned or licensed by Clover) resident on a Device at the time we provide you with the Device and the object code version of the software that enables the applications resident on a Device at the time of provisioning, and any related updates (including software maintenance or bug fixes) that are designed to assist with the management of your business and enable payment processing at the point of sale, and any materials, documentation and derivative works released by us. Credit Card: a card bearing a valid Mark of Visa, MasterCard, Discover Network, PayPal or American Express (or any other Card Organization specified by us in writing) and authorizing the Cardholder to buy goods or services. Credit Limit: the credit line set by the Issuer for the Cardholder's Credit Card account. TD2008(ia) 15 August 2017 Manual T&C - CAP # 40233 Data Security Event any actual or suspected unauthorized or fraudulent access to (or use, disclosure, or alteration of) Transaction Data (including but not limited to Cardholder Information) whether consisting of a single event, a continuous course of events, or a series of related events. Debit Card: a card bearing a valid Mark of Visa, MasterCard, Discover Network or American Express or any debit network that is used to access funds in a Cardholder's bank account or a prepaid account, Default: See Section 19.5. Device: a tablet, smartphone, or other mobile or fixed form factor identified by us as compatible with and capable of accessing and/or supporting a particular Service. Discount Rate: a percentage rate or amount charged to a merchant for processing its qualifying daily Credit Card and Non -PIN Debit transactions, as set forth in the Application. Dispute: any dispute, claim, or controversy related to or arising under any aspect of your relationship with us, whether directly with Processor and/or Bank, or indirectly with any other Person or entity related to the relationship, and arising at any time during, before, or after that relationship. Early Termination Fee: see Section 19.4 EMV Upgrade Costs: the costs you agree to incur to upgrade payment acceptance and processing hardware and software to enable you to accept and process EMV-enabled Cards in a manner compliant with the PCI DSS. Equipment: equipment purchased by you under this Agreement and any Equipment Documents. Equipment Documents: documents setting out additional terms on which Equipment is rented to or purchased by you under this Agreement. Extended Term: see section 19.2. Fee Schedule: Includes the pricing and other information provided in Section 7 of your Application and the Interchange Rate/Fee Schedule. Foreign Currency: a currency other than the Local Currency and supported by us for a particular service. General Terms: these general terms and conditions on which the Services are provided, including any amendments or modifications. Guarantor: means any party who signs on the Personal Guarantee signature line(s) of the Application. See section 29.2. Issuer: the financial institution or Card Organization that has issued a Card to a Person. Local Currency: the currency associated with your place of domicile and approved by us. Integration: see section 22.1. Marks: names, logos, emblems, brands, service marks, trademarks, trade names, tag lines or other proprietary designations belonging to a party to this Agreement or their respective Affiliates or agents. Merchant: the legal entity or business identified in the Application and whose name and signature appears on this Agreement and the Application and who may be referred to in this Agreement, you or your. Merchant Account: shall mean an account set up for a merchant that requires a card processor, bank, merchant i.d., terminal i.d., merchant account number, or otherwise named unique merchant number. Multiple physical or virtual storefronts that process transactions under the same unique merchant number shall be deemed as one (1) Merchant Account. Merchant Account Number: a number that numerically identifies each merchant location, outlet, or line of business to us for accounting and billing purposes. MID: merchant identification number. Mitigation Service: a service provided to a Cardholder whose information is the subject of a Data Security Event, where the primary purpose of the service is to mitigate the effects of the Data Security Event, including identity theft education and assistance and credit monitoring. Non -PIN Debit a transaction using a Debit Card that is processed without the use of a PIN. Non -Qualified Fee: the difference between the interchange or program pricing associated with the Anticipated Interchange and Program Pricing Level and the interchange or program pricing associated with the more costly interchange or program pricing level at which the transaction actually processed. Non -Qualified Surcharge Fee: a surcharge applied to any transaction that fails to qualify for the Anticipated Interchange and Program Pricing Level and is therefore downgraded to a more costly interchange or program pricing level. The Non -Qualified Surcharge Fee (the amount of which is set out on the Fee Schedule) is in addition to the Non -Qualified Fee, which is also your responsibility. PCI: Payment Card Industry. PCI DSS: Payment Card Industry Data Security Standard, as amended from time to time. See section 26.1. PCI Non -Compliance Fee: See section 10.10. Person: an individual, corporation, partnership, sole proprietorship, trust, association or any other legally recognized entity or organization, other than you or us. Personal Guarantee: See section 29.2. PIN: a Personal Identification Number entered by the Cardholder to submit a PIN Debit transaction. PIN Debit: a transaction using a Debit Card where a Cardholder -enters a PIN via a PIN Pad. Processing Infrastructure: means a Card processing infrastructure capable of processing a Chip Card. Processor: TD Bank, N.A. Processor Provided Service: has the meaning set forth in Section 1.1 of this document and includes Services provided directly to merchant by Processor or their affiliates as part of the suite of Services offered by Bank. These Services include but are not limited to Clover, Clover Go and Insightics Solution. Reserve: funds that are otherwise payable to you which we hold to secure your obligations under this Agreement, pursuant to Section 17 of this Agreement. The Reserve may also refer to other collateral that you may provide to us to secure such obligations. References to "Reserve Account" shall refer to our records and accounting of such funds or other collateral. Security Event Expenses: means: (a) any obligation that you have to us arising from a Data Security Event, including EMV Upgrade Costs; (b) the cost of a security assessment conducted by a qualified security assessor approved by a Card Organization or PCI to determine the cause and extent of a Data Security Event; and (c) any reasonable fees or expenses incurred by us, or by you with our prior written consent, for any Mitigation Service specifically approved by us in writing but only if the Mitigation Service is provided within one (1) year after discovery of the relevant Data Security Event. Services: the activities undertaken by us to authorize, process and settle Card transactions undertaken by Cardholders at your location(s), and all other services provided by us under this Agreement. Settlement Account: an account or account(s) at a financial institution designated by you as the account to be debited and credited by us for Card transactions, fees, Chargebacks and other amounts due under this Agreement or in connection with this Agreement. Initial Settlement account information is provided in Section 4 of the Merchant Processing application. Software: all software, computer programs, related documentation, technology, know- how and processes embodied in the Equipment i.e. firmware or otherwise provided to you under this Agreement. For the avoidance of doubt, the term Software shall not include any software available as part of a Processor Provided Service or Third Party Service or which may be obtained by you as part of the Services or separately from the Services (e.g. any applications downloaded by you through an application marketplace). Third Party Services: services, products, promotions or applications provided by someone other than us. Bank, Processor or the respective Affiliates or agents. Transaction: means a transaction conducted between a Cardholder and you utilizing a Card in which consideration is exchanged between the Cardholder and you. Transaction Data: data collected as part of performing Services for you. Transaction Rate: the then -current Foreign Currency exchange rate used by the Card Organizations or their designee to convert the net funding amount into the Local Currency. Wireless Networks: certain cellular telephone and data networks to which we have access though Wireless Vendors. Personal Guarantee: see section 29.2. This term may also be referred to as Personal Guaranty. Processor: Fist Data Merchant Services Corporation. Wireless Services: wireless data communication services that use radio base stations and switching offered by Wireless Networks in order to allow you to capture and transmit to us certain wireless Card Authorization transactions or to transmit other communications to our system. Wireless Software: wireless software (including any documentation relating to or describing the wireless software) downloaded by you or your designee from our systems onto the Wireless Equipment. Wireless Vendors: one or more third party vendors selected by us in our sole discretion through whom we have acquired the right to, resell Wireless Services. You,Your: the Merchant signing this Agreement and Application. Your Payments Acceptance Guide: the information prepared by us, containing operational procedures, instructions and other rules and requirements relating to Card transactions. TD2008(ia) 16 August 2017 Manual T&C - CAP # 40233