HomeMy WebLinkAboutContract 1747 SCHOOL/GOVERNMENT
MERCHANT PROCESSING AGREEMENT APPLICATION
SALES REP: SHERRIE ERDENBERG SALES REP#:
DBA Business Name (if different from Legal Name): Corporate/Legal Name:
City of Columbia Heights
Address (Physical Location): Mailing Address:
590 40th Avenue N.E., Columbia Heights MN 5542
City: State: Zip: City: State: Zip:
Columbia Heights MN 55421
Emall Address: Laurie. Breckenitch@ci. columbia- Webslte Address: www. ci. columbia-heights, mn. us
Contact Name: Title: heights, ran. u,~ Contact Name: Title:
Laurie Breckenitch Finance-Utility Billing
Business Phone #: Fax #: Business Phone #: Fax #:
763-706-3640 763-706-3637
Name and Address to Appear on Statement [] DBA [] Legal Fed Tax ID # 41-6005069
Merchant Expected Average Ticket: Monthly MC/Visa Volume:
Current Processor: Primary Auth/Data Provider:
SIC Code: L~O 0 Mail/Telephone Y or N
State specifically merchandise type or the exact services offered:
C_~ t7"r¢ (../7-/z-/¢-/~-.5 /¢/VO o ~c-~ ~ / 7-¢
Give specific comments concerning location:
Deposit Routing/Transit#: I I I I I I I I I I Deposit Account#: I I I I I I I I I I I I I I I I
ChargebackRouting/Transit#: I I I I I I I I I I Chargeback Account #: I I I f I I I I I I I I I I I I
Merohant hereby authorizes Certegy to initiate credit and/or debit entries for amounts originating under the Merchant Processing Agreement and the provision of related
services, software and equipment (via ACH or otherwise) including any reversals or adjustments on original entries to the Merchant's Bank Account (as defined in the
Merchant Processing Agreement Fees)/Attach Voided C_h~k or Depo. sit Slip.
Signatu _ ~.~ ,~ ~. . Date
11/19/02
:oertegy
SCHOOL/GOVERNMENT
MERCHANT PROCESSING AGREEMENT FEE SCHEDULE
I Description Discount Per Item
Visa/MC Swiped 1.99% 0.28
Visa/MC Mail/Phone 2.99% 0.28
Visa/MC Website 3.29% 0.33
IVisa/MC Non Qualified 3.49% 0.28
Other Fees Amount
Voice Authorization 0.50
T & E Authorization 0.50
Chargebaek 10.00
Rejected ACH ' 50.00
Monthly Statement Single User 9.95/mo
Monthly Statement Multiple Users 29.95/mo
Additional Locations 9.95/mo
Card Reader 4.95/mo
Monthly Statement Web/Site License 89,95/mo
Application N/A
Setup N/A
Monthly Minimum N/A
The parties hereto agree to abide by the terms and conditions contained in the Merchant Processing Agreement to which this signature page is attached.
MERCHANT: The undersigned hereby authorizes Certegy to investigate the credit of each person listed on the Merchant Application and Fee Schedule and
represents that he/she has the authority to provide such authorization mad to execute this Agreement.
CERTEGY CARD SERVICES, INC.:
CERTEGY, Witnessed by Signature
Date
Merchant:
Signature of Officer
SHERRIE ERDENBERG SALES REP
Print Name Title
Walter Fehst
City Manager
Print Name Title
:oe egy
SCHOOL/GOVERNMENT
MERCHANT PROCESSING AGREEMENT APPLICATION
INSTI~TION S~PP~ F~NAN~ SALESREP: SHERRIE ERDENBERG SALESREP#:
DBA Business Name (if different from Legal Name): Corporate/Legal Name:
CITY OF COLUMBIA HEIGHTS
Address (Physical Location): Mailing Address:
590 40TH AVENUE NE
City: State: Zip: City: State: Zip:
COLUMBIA HEIGHTS MN 55421
Email Address: Website Address: WW~. ci. columbia-heights .tm3. US
Contact Name: Title: Contact Name: Title:
BILL ELRITE FINANCE DIR.
Business Phone #: Fax #: Business Phone 0: Fax #:
(763) 706-3626 (763) 706-3637
Name and Address to Appear on Statement [] DBA [] Legal Fed Tax ID # irJj ~ (o 00
Merchant Expected Average Ticket: $50.00 Monthly MC/Visa Volume: $ 5,000.00
Current Processor: Primary Auth/Data Provider: VITAL
SIC Code: 4900 Mail/Telephone Y or N % 90
State specifically merchandise type or the exact services offered:
UTILITIES~ PERMITS, AND OTHER CITY RELATED ITEMS.
Give specific comments concerning location:
OepositRouting/Transit#: I [ I I I I I I I I Deposit Account#: [ I I [ I I I I I I I I I I I I
ChargebackRoutingfl'ransit#: I I I I t I [ [ I ] Chargeback Account #: I I I I I I I I I [ I I I I I I
Merchant hereby authorizes Certegy to initiate credit and/or debit entries for amounts originating under the Merchant Processing Agreement and the provision of related
services, software and equipment (via ACH or otherwise) including any reversals or adjustments on original entries to the Merchant's Bank Account (as defined in the
Merchant Processing Agreement Fees). Attach ~pided Cheek or Deposit Slip.
S'gnature / A~.,A~--~~~~' ~~--~c~-. Date /~J~ ~/'~ ~
~ (Officer)
11/19/02
[].certegy
SCHOOL/GOVERNMENT
MERCHANT PROCESSING AGREEMENT FEE SCHEDULE
Description Discount Per Item
Visa/MC Swiped 1.99% 0.28
Visa/MC Mail/Phone 2.99% 0.28
Visa/MC Website 3.29% 0.33
Visa/MC Non Qualified 3.49% 0.28
Other Fees Amount
Voice Authorization 0.50
T & E Authorization 0.50
Chargeback I0.00
Rejected ACH 50.00
Monthly Statement Single User 9.95/mo
Monthly Statement Multiple Users 29.95/mo
Additional Locations 9.95/mo
Card Reader 4.95/mo
Monthly Statement Web/Site License 89.95/mo
Application N/A
Setup N/A
Monthly Minimum N/A
The parties hereto agree to abide by the terms and conditions contained in the Merchant Processing Agreement to which this signature page is attached.
MERCHANT: The undersigned hereby authorizes Certegy to investigate the credit of each person listed on the Merchant Application and Fee Schedule and
represents that he/she has the authority to provide such authorization and to execute this Agreement.
CERTEGY CARD SERVICES, INC.:
CERTEGY, Witnessed by Signature
Date
Merchant:
Signature of Officer Date
SHERRIE ERDENBERG
BILL ELRITE
FINANCE DIR.
Print Name Title
Print Name Title
:oertegy
MERCHANT PROCESSING AGREEMENT TERMS AND CONDITIONS
TH~S~~AMER~HANTPR~~E~S~NGAGREEMENT(~Agreement~~entered~nt~as~fthedatesetf~rthbel~wbyandbetween~ SKIPPER FINANCIAL, INC. '
a (Federal/State) banking corporation ('Member Bank"), Certegy Card Services, Inc. ("Certsgy"). and the undersigned U.S. domiciled business (the 'Merchant").
BACKGROUND INFORMATION
Member Bank is a member of both VISA U.S.A. Incorporated ("VISA') and MasterCard International ('MasterCard') (each a 'Card Association"). Certegy processes financial transactions including,
without limitation, the facilitation and processing of bankcard payments by holders of VISA and MasterCard branded bankcards. Member Bank and Certegy have entered into an agreement whereby Certegy acs
as Member Bank's agent and bankcerd processor (Member Bank and/er Certegy shall hereinafter ccilectvely be referred to as 'Processor'), Merchant desires to accept payments from its customers via VISA and
MasterCard branded bankcards for Merchant's goods and/or services and retains Processor to sponsor Merchant's acceptance of such bankcards and provide Merchant with bankcard processing and setitement
services. Processor agrees to provide such services in accordance with the terms and condifioos set forth below. Accordingly, the parties to this Agreement, intending to be legally bound, agree as follows:
OPERATIVE PROVISIONS
1. Services; Operating Procedures Guide. Processor agrees to provide to Merchant, at Merchant's U.S. locations idenfitied in the Application (as defined below), bankcard processing and
settlement services (the "Services") Jn accordance with the terms and conditions of this Agreement and the Operating Procedures Guide, the terms of which are incorporated into this Agreement by reference and
made a part of this Agreement,
2. Definitions. Unless othen,~ise provided, the capitalized terms used in this Agreement have the meanings designated in the Operating Procedures Guide.
3. Card Association Rules and Regulations. ALL CARD TRANSACTIONS AND THIS AGREEMENT ARE SUBJECT TO, .AND THE PARTIES AGREE TO BE BOUND BY, APPUCABLE
CARD ASSOCIATION OPERATING RULES AND REGULATIONS, including the VISA Cardholder Intormafion Security Program, (COLLECTIVELY, THE "ASSOCIATION REGULATIONS"), AND ANY CHANGES
TO THEM MADE BY A CARD ASSOCIATION FROM TIME TO TIME, WHETHER OR NOT ALL THE PARTIES HAVE BEEN NOTIFIED OF THOSE CHANGES. PROCESSOR SHALL NOT BE RESPONSIBLE
FOR PROVIDING ANY COPIES OF THE ASSOCIATION REGULATIONS TO MERCHANT. PROCESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPEED, AS TO THE
ACCURACY OR COMPLETENESS OF INFORMATION THEY MAY PROVIDE, IF ANY, TO MERCHANT REGARDING THE ASSOCIATION REGULATIONS FROM TIME TO TIME, AND DISCLAIM ANY AND
ALL LIABILITY FOR LOSSES INCURRED BY MERCHANT THAT IN ANY WAY ARISE OUT OF MERCHANT'S FA]LURE TO COMPLY WITH THE ASSOCIATION REGULATIONS. IF THERE IS A CONFLICT
BETVVEEN THIS AGREEMENT AND THE ASSOCIATION REGULATIONS, THE ASSOCIATION REGULATIONS SHALL GOVERN.
4. Fees. The Fees and other charges to be charged by Processor to Merchant for the services provided under this Agreement are set forth in the Merchant Application and Fee Schedule (the
Application), which is made a part of this Agreement. The Discount Rate shall be charged on all new sstes (i.e, sale transactons not including "returns" or credits to cardholders). Processor may change such
Fees from time to time upon 10 days prior written notice to Merchant The Fees set forth in the Fee Schedule do not include, and Merchant hereby agrees to pay, all fees, charges, penalties, fines, assessments
and additional or increased costs of any nature that may be charged by the Card Associations or other third party, whether charged to dirscty or indirectly Incurred by Processor in connection with matters
contemplated by the Agreement, including without limitation, adjustment fees and Interchange fees,
5. Card Transactions. In addition to the requirements for Card Transactions set forth in the Operating Procedures Guide and Association Regulations, Merchant agrees that it will not (a) deposit
into its Bank Account any Sales Draft or Credit Draft for any Card Transacton between a Cardholdar and an entity other than Merchant; (b) accept cash payments from a Cardholder for previous Card
Transactions; or (c) make a cash disbursement to a Cardholder arising out of a Card Trensacton or any other use of a Card.
6. Merchant's Bank Account
a. Merchant shall establish, and at all times during the term of the Agreement, meintsin one or mere Bank Accounts with an In~tution in order to fadtitsts payment of ameunta due from time to time
under this Agreement, which Institution shall be identified in the Fee Schedule. If requested by Processor, Merchant shall arrange for a Bank Account to which automated clearing house ("ACH') transactons may
be made to fadlitate payment of amounts from time to time under this Agreement.
b. .NI credits, charges and debits in connection with Card Transactions and other amounts owing under this Agreement shall be mede to Memhant's Bank Account, including without limitation, all Fees,
Adjustments and Chargebacks. Any Fees or other charges not collected by Processor through a debit to Merchant's Bank Account, for whatever reason, shall be invoiced to Merchant by Processor and are due
upon Merchant's receipt of such invoice.
c. If Merchant has more than one deposit account with its Institution, any or all of such accounts may be treated as Merchant's Bank Account and may be credited, charged or debited in connection with
Card Transactons and other amounts owing under this Agreement as Processor may determine; provided, that Merchant may designate a particular Bank Account(s) with respect to certain amounts to be
credited, charged or debited fromtime to time by Processor in connection with particular Card Transactions. Processor agrees to comply with such designation so long as the designated Bank Account(s) contain
sufficient funds to satisfy such charges or debits.
d. If a debit or Chargebeck to Merchant's Bank Account results in an overdraft, Merchant shall immediately deposit with Institution an amount sufficient to cover such overdraft and any related service
charges or fees.
e. .NI Items credited and debited to Merchant's Bank Account(s) are subject to review, verification and acceptance by Processor. Processor may withhold crediting of quesfionable items pending
verification, investigation and confirmation. In the event of an error, Merchant authorizes Processor, without nofica to Merchant, to credit or debit Merchant's Bank Account(s) and any future depce'~s in Merchant's
Bank AccounL
f. If Merchant desires to change its Institution or if Merchant's Instituaon no longer desires to provide its services to Merchant, Merchant shall notify Processor in writing at least ten (10) days prior to the
effective date of the change and shall follow Processor's procedures for completing the change.
7. Display of Service Marks, Advertising and Promotional Materials
a. Merchant shall prominently display at each Authorized Location any service marks, identification Iogce and any other promotional materials (collectvaly, the 'Service Marks') the Card Associations
fumish to Merchant to alert Cardholdera that Cards will be honored at Merchant's Authorized Locations. This requirement shall not apply to private dubs or other merchants that do not serve the general public or
other class of merchant exempted by a Card Association. The Service Marks for each Card Association must be at least the dimension of and as prominent as any other card program mark or logo displayed.
b. Merchant may use the Service Marks only to indicate that Cards are accepted by Merchant for payment. Merchant shall not state, imply or use the Service Marks to indicate that Processor or any
Card Association endorses, sponsors, produces, offers, sells or is affiliated with any of Merchant's goods or services.
c. Merchant shall not refer to Processor or any Card or Card Association in stafing eligibility for Merchant's merchandise, services or membership.
d. Merchant's use of the Service Marks of any Card ~sociation shall be governed by the Card Association's Regulations and Merchant shall not use any Service Marks in a direct mail solicitation
without prior written approval of the applicable Card Association.
e. Merchant's right to use or display the Service Marks shall confinue so long as this Agreement remains In effect, unless Processor directs that such use or display shall cease. Merchant
acknowledges that the Service Marks are the property of the applicable Card Association and Merchant shall not infringe upon the Service Marks,
8. Term. Thta Agreement will be effective as ofthe date set forth below and will continue In effect for atermof one year fcilowing such date (the "Initial Term"), unless earlier terrrlnated as provided for
below. Following the Initial Term, this Agreement will automatically renew for additional one year renewal terms, unless a party provides written notice to the other padies of its Intent not to renew this Agreement
at least 60 days prior to the expiration of the then current Term (a 'Terminafion Nofice"). If a party provides a Termination Notice to the other parties, this Agreement shall terminate on the expiration of the then
current Term.
9. Events of Default. An 'Event of Default" shall mean the occurrence or existence of one or mom of the following events or conditions, whatever the reason for such Event of Default and whether
voluntary, involuntary or effected by operefion of law: (a) Merchant fails to pay any obligation under this Agreement to Processor when due; (b) any representafion or warranty mede by Merchant under this
Agreement, the Fee Schedule or any financial statement, certificate, report, exhibit or document required to be furnished by Merchant to Processor pursuant to this Agreement shall prove false or misleading in any
material respect as of the fime when mede, including any omission of material information necessary to make such representafion, warranty or statement not misleading or the failure to provide required
information; (c) Merchant shall default in the performance or observance of any covenant, agreement or duty under this Agreement or any Association Regulation; (d) Merchant is no longer allowed by a Card
Association to accept their Cards as payment or Merchant's name appears on a Card Association's terminated merchant file; (e) Processor reassnabiy concludes that any criminal, fraudulent, unauthorized or
suspicious activity has occurred or is imminent with respect to Merchant's acceptance of bankcards or Merchant's performance under this Agreement; (f) there is an unexplained material change In Merchant's
processed volume, average ticket size er mede of sale; (g) Processor reasonably concludes that there exists a risk of an abnormal level of Chargebacks or that Merchant may not fund Chargebacks, fees or other
charges as they occur; (h) Merchant has defaulted on any obligation for borrowed money and the effect thereof may permit the holder of such indebtedness to accelerate the time when repayment is due; (i) there
is an adverse material change in Merchant's business, operations, financial condition, properties, assets or prospects; (j) one or mere judgments against Merchant for the payment of money remain undischarged,
unsatisfied or unstayed for a period of 45 consecutive days; (k) Merchant's lender takes possession cf Merchant's inventory; (I) a writ or warrant of attachment, garnishment, execution, disfl'aint or similar process
shall have been issued against Merchant or any of its assets; (m) a proceeding shall have been instituted with respect to Merchant (1) seeking an order for relief or a declaration entailing a finding that Merchant is
insolvent or seeking a similar declaration or finding, or seeking dissolution, winding up, charter revocafion or forfeiture, liquidation, reorganization, arrangement, adjustment, composition or other similar relief with
respect to Merchant, its assets or its debts under any law relating to bankruptcy, insolvency, relief of debtors or prote~on of creditors, termination of legal entities or any other similar law now or hereafter in effect,
or (2) seeking appointment of a receiver, trustee, custodian, liquidator, assignee, sequssttstor ar other similar official for Merchant or for all or any substanfial part of its assets; or (n) Merchant shall become
insolvent, shall become generally unable to pay its debts as they become due, shall voluntarily suspend transacten of its business, shall make a general assignment for the benefit of creditors, shall institute a
proceeding described in subsection (m)(1) above, or shall consent to any such order for relief, declaration, finding or relief described therein, shall institute a proceeding described in subsection (m)(2) above, or
shall consent to any such appointment or to the taking of possession by any such official of all or any substsnfial part of its assets, shall dissolve, windup, revoke or forfeit its charter (or other constituent
documents) or liquidate itself or any substantial part of its assets, or shall take any action in furtherance of any of the foregoing.
Merchant shall notify Processor in writing immediately upon becoming aware of an Event of Default or an event which, with the passing of time or the giving of notice, or both, would constitute an Event of
default.
10. Remedies Upon Event of Default. Upon the occurrence of any Event of Default, Processor may employ any or all of the following remedies it deems appropriate: (a) terminate this Agreement
immediately upon notice to Merchant; (b) without prior notice to Merchant, refuse to accept or revoke acceptance of any Sales Draft or Credit Draft, or the elecb'onic transmission thereof if applicable, received by
Processor on or at any firne after the occurrence of any Event of Default; (c) without prior notice to Merchant debit Merchant's Bank Account in an amount equal to any amount then owed f~0 P. roceesor, 03)
estabtish a ressonable rssewe using Merchant funds n Precsssor's possession to cover foreseeahie Chargebacks, cardhdidsr credits or Fees; (e) ncreass the Fees payable by Mer~ihant ~ereund, ei'
commensurate with the increased risk; (0 require Merchant to deposit, as cash collateral, such amounts as Processor may require to secure Merchant's obligations hereunder;, (g) report to one oi"inom. =redl~
reporang agencies any outstanding Merchant or guarantor indebtedness to Processor;, or (h) take such other action as may be permitted by law.
11. Liquidated Damages. For purposes of this Section 11, a "Uquidated Damage Termination' shall mean:
(i) a termination of this Agreernent by Processor following an Event of Default specified in Section 9 above; or
(ii) a termination of this .4~rssment by Merchant for any reason whatsoever, other than fdilowing written notice given by Merchant pursuant to Section 8 or 13.
The partes agree that the actual damages which will result to Processor from a Liquidated Damage Termination are not readily ascertainable as of the effective date of this Agreement. In addition, Merchant
acknowledges and agrees that in reliance on this Agreement and other long-term agreements, Processor will incur additional long-term costs, including without limitation, computer hardware, software, labor, and
other fixed costs. Accordingly, upon the occurrence of a Liquidated Damage Termination, Merchant shall pay to Processor, in addition to all amounts owed each for the services provided to Merchant pursuant to
this Agreement, liquidated damages of the greater of (i) $5,000.00; or (ii) ['THIRTY PERCENT (30%) of the average total monthly fees incurred during the preceding 6 months (or such shorter period if this
Agreement has not been In effect for 6 months), times the number of months, or portion thereof, remaining in the then current term of this Agreement, The partes intend that the liquidated damages be in lieu cf
Processor's lost profits for the remainder of the term of this Agreement, bat not in lieu of any other damages to which Processor might otherwise be entitled arising out of wrongful acts or omissions of Merchant.
12. Change in Me~chant's Business. Merchant shall provide Processor at least forty-five (45) days prior written nctce of its intent to change in any way the basic nature of its business, tnduding
without limitation, a change in the types of merchandise or se[vices sold, or the method of selling such products or services. Upon Its receipt of notice of such change, Processor shall have the right to terminate
this Agreement without further obligation upon providing to Merchant thirty (30) days prior written notice.
13. Termination by Merchant. Merchant may terminate this Agreement upon 30 days prior written notice to Processor in the event of (a) receipt by Merchant of notice of any increase in Fees
payable to Processor pursuant to Section 3 hereof (excluding pass-through fees payable to a Card Association or other third party, or Fee increases pursuant to Section 10 (above); or (b) any material amendment
or modifica~on to this Agreement made by Processor pursuant to Section 19 hereof which adverealy affects Merchant in any material respect (excluding material amendments or modifications required due to
changes to an Associafion Regulation or appiicaUe federal, state or local law or regulation). Merchant's right to terminate pursuant to this Section 13 shall expire 30 days following Merchant's receipt of notice of
any such Fee increase or material amendment or modification.
14. Credit Inquiries; Reporting; Financial Statements. Memhant authorizes Processor to make any credit inquiries they consider necessary to accept or to renew their acceptance of this
Agreement. Merchant also authorizes any person or credit reporting agency to compile information to answer such credit inquiries and to furnish such Information to Processor. Merchant agrees to provide to
Processor such financial statements or other information concemthg Merchant's business or operations as may be requested by Processor from lima to time, in appropriate detail, promptly upon request by
Processor. Upon request by Processor, Merchant shall furnish to Processor, within 120 days after the end of Merchant's fiscal year, an audited finandal statement of profit and loss for such fiscal year and an
au¢~ed balance sheet as of the end of such fiscal year. Processor may, at their discretion, accept unaudited finandal statements prepared by a public accounting firm.
15. Representation and Warranties. Merchant makes the fdilowing representations and warranties which shall be true and correct on the date of this Agreement and at all times thereafter:. (a) all
information contained In Merchant's Appiicafion or any other document delivered to Processor in connection therewith or with this Agreement Is true and complete in all material respects; (b) Merchant has the
power to execute, deliver and perform this Agreement; (c) this Agreement is duly authorized and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject or by which
Merchant's assets are bound; (d) Merchant has alt required licenses, if any, to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (e) there is no acton, suit or
proceec~ng at law or in equity pending, or to the knowledge of Merchant, threatened, by or against or affecting Merchant which if adversely decided to Merchant would impair the right of Merchant to carry on its
business substantially as now conducted or adversely affect its financial condition or operations in any material respect; and (f) Merchant is not now, nor shall it in the future, become engaged in any method of
selling which is now or in the future set forth in the Operating Procedures Guide as an 'Unacceptable Selling Method,'
16. Indemnity. Merchant agrees to indemnity, defend and hold harmless Processor, their rsspectve affiliatss, directors, officers, employees and agents from all claims, liabilities, loss, damage, and
expenses of any nature (Including fees and expenses of legal counsel and costs of lifigafion) arising ftom or in connection with: (a) any dispute or claim made by a Cardhdider with respect to a Card Transaction,
including but not limited to, any such dispute concerning the quality, fitness or delivery of merchandise or the performance or quality of services; and (b) the failure of Merchant to comply with the provisions of this
Agreement, Association Regulations or applicable federal, state or local laws and regulations.
17. JURISDICTION; WAIVER. MERCHANT HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING FROM
OR RELATING TO THIS AGREEMENT OR ANY STATEMENT COURSE OF CONDUCT, ACT, OMISSION OR EVENT OCCURRING IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, 'RELATED
LITIGATION') MUST BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN PINELLAS OR HILLSBOROUGH COUNTY, FLORIDA; (B) SUBMITS TO THE
JURISDICTION OF SUCH COURTS (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF PROCESSOR TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM; (C) WAIVES ANY
OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAJM THAT ANY SUCH RELATED
ETIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT
SUCH COURT DOES NOT HAVE JURISDICTION OVER MERCHANT; (D) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED
LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO MERCHANT AT THE ADDRESS DESCRIBED BELOW AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW); AND (E) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
18. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERM[T-rED BY LAW, NO CLAIM MAY BE MADE BY MERCHANT AGAINST PROCESSOR OR ANY OF THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OF ANY OF THEM FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THIS AGREEMENT
(WHETHER*FOR BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF UABIMTY). MERCHANT HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
19. MISCELLANEOUS PROVISIONS.
a. Merchant shall not subcontract, assign nor transfer any interest, obligation or right under this Agreement without the pdor written consent of Processor. Any dissolution, merger, consolidation,
reorganization or transfer ofsubstsnfially all assets or a contrclling percentage ofthe corporats stockof Merchant shall constitute an assignmant ofthisAgreemont, Subject to the foregalng, thisAgreemont shall
be binding upon and inure to the benefit of the parties and their successors or assigns.
b. This Agreement shall be governed by tha laws of the State of Florida. The prevailing party in any such action shall be entitled to the recovery of its reasonable aflomey's fees, costs and expenses.
c. This Agreement may be modified by Processor upon 30 days pdor written notice to Merchant.
d. No party shall, by the more lapse of time, without giving notice or taldng other action, be deemed to have waived any of their rights under this Agreement. No waiver of a breach of this Agreement
shall constitute a waiver of any prior or subsequent breach of this Agreement.
e. In order to maintain quality service, telephone communications with Merchant may be monitored and/or recorded without further notice or disclosure.
f. No party shall be liable for any loss or damage due to cause~ beyond its control, including earthquake, war, fire, flood, power failure, acts of God or other catastrophss.
g. If the Merchant is or becomes the subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or other similar preceeding, federal or state, voluntary or involuntary, under any
present or future law or act, Merchant consents to the immediate and absolute lifting of any stay as to the enforcement of remedies under this Agreement, including specifically the stay imposed by §362 of the
United States Federal Bankruptcy Coda, as amended,
h. Each party and each person signing on behalf of a party represents and warrants that it has the full legal capacity and authority to enter into and perform the obligations of this Agreement without any
further approval.
i. This Agreement and the documents referenced herein cons§tuta the entire understanding of the parties with respect to the subject matter of this Agreement, and all pdor agreements, understandings
and representations are terminated and canceled in their enfirety.
j. This Agreement shall not be construed more strongly against any par[y, regardless of who is more responsible for its preparation.
If there is any conflict between a part of this Agreement and any present or future Association Regulation or applicable federal, state or local law or regulation, only the part of this Agreement that is
affected shall be modified and that modification shall be limited to the minimum necessary to bring this Agreement within the requiremanta of the Association Regulafion, law or regulation.
I. Ail notices, including invoices, given in connection with this Agreement, shall be in writing and deemed received 48 hours after deposit in first class United States mail, postage prepaid, or if given by
other means, upon actual receipt. Nctcss shall be delivered to the appropriate party at its address set forth below.
m. Merchant shall be liable for all taxes, except Processor's income taxes, required to be paid or collected as a result of this Agreement.
n. Ail obligations, warranties and liabilities of Merchant incurred or existing as of the date of termination of this Agreement, indiuding without limitation, Merchant's obligations with respect to subsequent
Adjustments or Chargebacks based upon Card Transactions incurred pdor to termination, shall survive terminafion and shall continue in full force and effect as if the termination had not occurred. The right to
revoke credit as wall as held, retain or set off against amounts due to Merchant, or to debit any Bank Account(s) of Merchant, shall survive the termination of this Agreement and shall continue in full force and
effect as if termination had not occurred.
o. Nothing in this Agreement shall be deemed to create a partnership, Joint venture or any agency relationship between the partes.
(S:~LEGAL\Ccrtcgy Card USLMcr~hant Prccessing~Forms~Application\tinal\TERMS ~ CONDITIONS.do~)