This Agreement for Installation of Point of Sale System and Terms of Services constitute a legal agreement between you and your successors in interest (“You” or “Merchant”) Payment Club Holding LLC, including its affiliated entities (hereafter, the “Company”) and govern your use of the various services offered by the Company, including but not limited to POS equipment, smart terminals and peripheral devices or any other POS equipment and custom POS and smart terminal software and other products and services, (the foregoing collectively referred to as, the “Services”). If you are using the Services on behalf of a business, that business accepts these terms. By using any of the Services you agree to these Terms and Conditions of this agreement, which together with the application form (“Merchant Application”) signed by You and incorporated herein by reference (collectively hereafter referred to as “the” or “this” “Agreement”), become part of your agreement with the Company. By using the Services, You acknowledge that you have read, understand, acknowledge and agree to be bound by all the terms and conditions of the Agreement, along with any new, different or additional terms, conditions or policies that the Company may establish from time to time, in its sole discretion.
PLEASE READ THIS AGREEMENT AND UNDERSTAND EACH PROVISION. IT REQUIRES YOU TO USE THE COMPANY’S PREFERRED PROVIDERS PROCESSING SERVICES. SECTION 11.E REQUIRES ALL CLAIMS OR DISPUTES WITH COMPANY ABOUT ANY COMPANY PRODUCT OR SERVICE TO BE RESOLVED IN BINDING INDIVIDUAL ARBITRATION—NOT IN A CLASS ACTION, AND NOT IN COURT BEFORE A JUDGE OR JURY. SECTIONS 8 & 9 LIMIT COMPANY’S LIABILITY AND YOUR REMEDIES.
Now, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the existence and sufficiency of which is hereby acknowledged by the Company and by the Merchant, the Company and the Merchant agree as follows:
1.1. “Equipment” or the “POS” shall mean any combination of Hardware and/or Software which the Merchant receives into use, and/or partially or in full purchases according to this Agreement from the Company, and includes, with no limitations any and all improvements, installations, accessories installed and/or services of the Company (work done by the Company at the premises of the Merchant or/and outside of the premises of the Merchant). “Hardware” included in the POS shall mean computers, printers, touch screen monitors, monitors, keyboards, routers, card readers, servers, cash drawers, switches, network cables and/or any other equipment. “Software” included in the POS shall mean operating systems, POS, Smart Terminal or applicable software and/or antivirus and/or gift card and/or merchant and/or any other software provided by third parties, and/or any designed and/or modified by the Company software with all appropriate updates and/or upgrades and/or modifications and/or customizations.
1.2. “Merchant” as defined above shall mean also any and all sponsors, partners, principals, contractors, sub-contractors and affiliates of the Merchant.
1.3 “Effective Date” means the date Company approves Merchant’s signed Merchant Application.
1.4. “Install Date” means the date on which the Equipment is installed at the Merchant Location, or the date on which the Merchant starts using the Equipment, whichever occurs first.
1.5 “Merchant Location” means the Merchant’s address listed on the Merchant Application.
1.6 “Processing Services” means Company or preferred providers selected by the Company’s credit, debit, electronic payment, and gift card processing services as provided for under the Company Merchant Transaction Processing Agreement (“Processing Agreement”).
- EXCLUSIVE PROCESSING REQUIREMENT
- Company’s Processing Services.Merchant’s use of the Equipment requires exclusive use of Company’s Processing Services at all times. Merchant agrees not to use credit, debit, electronic payment, or gift card processing services from any provider except Company. By entering into this Agreement, and as a condition precedent to Company providing Equipment to Merchant, Merchant agrees to enter into a Processing Agreement. The Processing Agreement consists of the Merchant Application and the Terms and Conditions, together with its addenda, attachments, and schedules.
- Failure to Process with Company.If at any time after the Install Date Merchant stops using Company’s Processing Services, in whole or in part, then Company shall charge Merchant $75.00 per Equipment terminal for each processing statement period that Company’s Processing Services are not used (“Inactivity Fee”). The Inactivity Fee is in addition to any other fees or charges. Notwithstanding the foregoing, Company reserves the right to terminate this Agreement or suspend Merchant’s access to the Equipment and/or Software for Merchant’s non-use of Company’s Processing Services.
- TERM COMMITMENT
a, Term. This Agreement begins on the Effective Date and continues for the period stated in the Merchant Application or failing any such stated period, for a term of 48 months (“Initial Term”). At the expiration of the Initial Term, this Agreement automatically renews for additional three (3)-year periods (each such period, a “Renewal Term”) unless Merchant provides Company with written notice of Merchant’s intent not to renew the Agreement at least 30 days prior to the expiration of the Initial Term or any Renewal Term.
- Term Commitment.Merchant understands that it is receiving Equipment and Software from Company at favorable pricing in exchange for Merchant’s term commitment. Merchant may terminate this Agreement subject to the following conditions:
(I). Merchant may terminate this Agreement for any reason prior to the Install Date. Merchant will pay a restocking fee of $250.00 per ordered Equipment terminal (“Restocking Fee”). All Equipment must be returned to Company, at Merchant’s expense, within 30 days following termination.
(ii). Merchant may terminate this Agreement for any reason after the Install Date. Merchant will pay an early termination fee equal to the Total Monthly Service Fee listed on Merchant Application multiplied by the number of months remaining on the Initial Term and/or a Renewal Term (“ETF”).
(iii). Company may debit the Restocking Fee and/or the ETF from Merchant’s bank account on file with Company within 30 days of the date this Agreement is terminated. Merchant is responsible for all additional fees and charges (including taxes) incurred under this Agreement.
- Company’s Termination Rights.Company may, without notice, suspend Merchant’s access to the Equipment and Software and/or terminate this Agreement for any of the following reasons: (i) material breach of this Agreement; (ii) unlawful use of the Equipment, Software, or Processing Services; (iii) unauthorized modification of the Equipment or Software or installation of unauthorized third-party software; (iv) failure or refusal to pay fees or charges on time; (v) material breach of the Merchant Transaction Processing Agreement; or (vi) insolvency or bankruptcy. Company may, in its sole discretion, withhold Merchant’s funds derived from use of the Processing Services in order to satisfy all fees and charges incurred under this Agreement.
- FEES AND PAYMENT
Merchant shall pay all fees due on the first business day of each month starting on the Install Date. Merchant permits Company to re-debit Merchant’s bank account should any attempt to collect fees reject for any reason.
- Changes to Terms and Fees.Company may change any terms, conditions, rates, fees, expenses, or charges incurred under this Agreement upon 30 days’ written notice to Merchant. Using the Equipment or Service after a change takes effect constitutes acceptance of the change.
- Billing, Payments, and Credit Authorization.Merchant grants to Company Automated Clearing House (“ACH”) Authorization to credit and debit Merchant’s demand deposit account for all fees and charges incurred under this Agreement. Should any ACH debit made upon Merchant’s demand deposit account for payment due under this Agreement reject for any reason, Merchant shall be charged a $25.00 Non-Sufficient Funds Fee (“NSF Fee”). This authorization shall survive termination and last as long as Merchant owes any fees or charges, incurred under this Agreement.
- MERCHANT’S RESPONSIBILITIES
- Equipment Failure.Merchant must notify Company immediately upon Equipment or Software failure. Merchant must allow Company unrestricted and free access to the Equipment and Software to correct failures. Merchant must provide any necessary data communication facilities and equipment at no charge to Company.
- Activation of Equipment.Upon installation of the Equipment at the Merchant Location, Merchant represents and warrants that: (i) Merchant received and accepts the Equipment; (ii) customization of the Equipment and/or Software (for example, the menu and printers) was satisfactorily programmed to Merchant’s specifications; (iii) the Equipment is in good working order; and (iv) the Equipment was tested and is capable of performing Processing Services.
- Title to Equipment.(i) Title to the Equipment remains in Company and Merchant will not pledge, loan, or attempt in any other manner to dispose of the Equipment (or any interest in it) or to permit any liens, encumbrances, or legal process to be incurred or levied on the Equipment while in Merchant’s possession or control. In the event Merchant materially breaches this Agreement, Company may demand return of the Equipment, and Merchant shall be required to return the Equipment to Company within 15 days of receiving Company’s written request. If Merchant fails to return the Equipment, Company may charge the Merchant for Company’s full cost of the Equipment. The requirement to return the Equipment to Company shall be in addition to and shall not preclude Company from exercising any other right or remedy under this Agreement or applicable law. (ii). Security Interest. Merchant hereby grants to Company a first priority purchase money security interest in the Equipment (including any replacements, substitutions, additions, attachments and proceeds). Merchant agrees that Company may file, on Merchant’s behalf, a UCC-1 Financing Statement and/or other necessary documentation sufficient to protect and secure Company’s security interest. Merchant will promptly execute any other required documents and/or records reasonably requested by Company for the purpose of securing Company’s rights in the Equipment.
- Taxes.Merchant shall be responsible for all sales, use, excise, stamp, documentary, value added, and ad valorem taxes, license and registration fees, assessments, fines, penalties, and similar charges imposed on the ownership, possession, or use of the Equipment by any state, local, or federal governmental or regulatory authority and shall issue, where required and requested, a valid tax exemption certificate to Company. Merchant will reimburse Company for any of these taxes that Company pays or advances on behalf of Merchant.
- Merchant’s Maintenance Efforts.Merchant shall maintain and protect the Equipment in good operating condition, repair, and appearance, and protect the Equipment from deterioration other than normal wear and tear; shall use the Equipment in the regular course of its business, within its normal operating capacity, without abuse, and shall comply with all laws, regulations, directives, requirements, and rules with respect to the use, maintenance, and operation of the Equipment and Software; Merchant shall use the Equipment and Software solely for business purposes; shall not make any modification, alteration or addition to the Equipment or Software without the written consent of Company; shall not affix, and shall not remove the Equipment from the Merchant Location without Company’s written consent, which shall not be unreasonably withheld.
- Equipment Condition and Return.All Equipment must be returned to Company by Merchant within the timeframes specified by this Agreement in good operating condition other than normal wear and tear. Merchant will not change or remove any lettering or numbering on the Equipment. To extent permitted by applicable law, without demand or legal process, Company and its agents may enter into the premises, including the Merchant Location, where the Equipment may be found and take possession of and remove the Equipment, without incurring any liability for such retaking. To the extent liability arises, Merchant shall indemnify and hold harmless Company from any such liability. Any Equipment that is, in Company’s sole discretion, damaged beyond normal wear and tear or is not returned when due will result in a charge to Merchant of the full cost of the Equipment to Company.
- Merchant Security.Merchant shall be responsible for (i) maintaining virus protection and security for all of its systems, data, and overall network access, and (ii) all risk of loss, theft, damage, or destruction of the Equipment from any cause whatsoever after taking possession of the Equipment. Merchant acknowledges that security and access to any Equipment located on its premises is solely Merchant’s responsibility and agrees to notify Company immediately if Equipment is lost, destroyed, stolen, or taken by any other person. Merchant shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Merchant’s sole cost and expense. Merchant shall be solely responsible for storing and backing up Merchant’s data stored on the Equipment. Company shall have no liability to Merchant for loss or destruction of Merchant’s data.
- Insurance.While the Equipment is in Merchant’s possession or control, Merchant shall insure the Equipment at its own cost and expense against loss or damage from fire, theft, bodily injury, or other casualty in an amount not less than the Total Monthly Service Fee listed on Merchant Application multiplied by the number of months remaining on the Initial Term and/or a Renewal Term (“ETF”).
At Company’s request, Merchant shall provide a certificate of insurance to Company naming it as a loss payee or additional insured with respect to loss of or damage to the Equipment during the Initial Term.
- COMPANY’S RESPONSIBILITIES
- Installation.Merchant shall be entitled to a one-time installation of the Equipment at the Merchant Location. Merchant must make an installation appointment with Company Technical Support and confirm that appointment at least 48 hours prior to the appointment. Merchant shall be billed a $150.00 reschedule fee if (i) Merchant reschedules the installation less than 24 hours prior to the appointment; (ii) an authorized representative of the Merchant is not available to acknowledge the installation in writing; or (iii) the Merchant Location, in Company’s reasonable discretion, is not suitable to conduct the installation (“Reschedule Fee”).
- Equipment / Software Support and Maintenance.Company shall provide Merchant with 24 hours a day, 7 days a week remote technical support for the Equipment and Software. Company will use commercially reasonable efforts to answer questions and resolve any problems related to the Equipment and Software, but does not guarantee resolution of the problems reported. Company shall provide remote support to determine if the Equipment is defective and, if so, at Company’s sole discretion, it will: repair Equipment, send replacement parts, and/or replacement Equipment. Merchant must return all defective Equipment to Company within 15 days of receipt of the replacement Equipment. Merchant’s failure to maintain the Equipment shall result in additional charges for service and/or replacement of the Equipment.
- Training.During the installation of the Equipment, Merchant shall receive a complimentary training session. Merchant may request additional onsite training, subject to Company’s approval and technician availability; additional charges may apply.
- Software Customization.Company shall provide reasonable Software customization based on the information requested by Company and provided by Merchant. Any additional customization after the Equipment has been shipped to Merchant is excluded from this Agreement and will be charged at Company’s then current rate. COMPANY DOES NOT WARRANT THAT CUSTOMIZATION WILL BE FREE FROM DEFECTS OR MISTAKES. COMPANY EXPRESSLY DISCLAIMS AND MERCHANT AGREES TO HOLD COMPANY HARMLESS FOR ANY ERRORS IN THE EQUIPMENT AND SOFTWARE.
- Software Updates.Company may, in its sole discretion, make Software updates available to Merchant. Merchant must install all Software updates within 30 days. Company reserves the right not to provide support services, or charge Merchant additional fees for support, if Merchant does not install a Software update on time. Company will use commercially reasonable efforts, in the event of Software failure, to assist Merchant in recovering Software backup files to facilitate the successful operation of the Equipment.
- Non-standard Support and Maintenance.Company may, in its sole discretion and for additional charges, provide services and repair, redesign, reinstall, reconfigure, or replace the Equipment when either such services are required due to causes not attributable to normal wear and tear, including: (i) Merchant’s failure to continually maintain the Merchant Location in conformance with commercially reasonable standards; (ii) impairments in the performance of the Equipment resulting from changes to the Equipment made by Merchant or mechanical, electrical, or electronic interconnections made by Merchant; (iii) damage caused by accidents, natural disasters, or the negligence of, or improper use or misuse of, the Equipment by Merchant; (iv) damage or necessity of repair resulting from unauthorized maintenance by Merchant or any third party other than Company or its authorized representative; (v) damage or repair necessitated as a result of relocation of the Equipment; (vi) change in laws or Card Association rules that require service, repair, or replacement beyond normal day-to-day maintenance; (vii) any third-party hardware or software in conjunction with the use of the Equipment without Company’s express written consent; or (viii) theft of the Equipment.
- LIMITED SOFTWARE LICENSE
Company grants to Merchant a non-exclusive, non-transferrable, royalty free license, without the right to sublicense, to use the Software internally in conjunction with the Equipment. Company reserves all rights not extended hereunder. Merchant may not alter, reverse engineer, decompile, or disassemble the Software, or otherwise attempt to derive source code from the Software. Merchant may not manufacture, copy, sublicense, distribute, replicate, transfer or otherwise dispose of any copies of the Software. Nothing contained in this Agreement shall give Merchant any ownership interest, or title to, the Software, source code, and the related documentation. Merchant acknowledges that the performance of the Software is conditioned on Merchant providing, at its sole cost and expense a continuously available and secure network. This license shall immediately terminate upon expiration or termination of this Agreement. This license is not a license of any trademarks, service marks, trade names, or logos, and does not include any software other than the Software. Company reserves the right to amend or otherwise modify this license upon notice to Merchant at any time. Using the Software after an amendment or modification takes effect constitutes acceptance of it.
- WARRANTY LIMITATION AND DISCLAIMER.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE (AND EXPRESSLY DISCLAIMS) ANY REPRESENTATIONS AND WARRANTIES IN RESPECT OF THE EQUIPMENT, SOFTWARE, PROCESSING SERVICES, AND/OR OTHER SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. COMPANY DOES NOT GUARANTEE THAT THE EQUIPMENT OR SOFTWARE WILL SATISFY MERCHANT’S REQUIREMENTS, OR THAT THE OPERATIONS OF SUCH WILL BE UNINTERRUPTED OR ERROR FREE. THE EQUIPMENT, SOFTWARE, AND PROCESSING SERVICES ARE PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT WILL BE WITH THE MERCHANT. SHOULD THE EQUIPMENT OR SOFTWARE PROVE DEFECTIVE, MERCHANT, AND NOT COMPANY, ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. COMPANY SHALL NOT BE LIABLE FOR ANY COSTS OR FOR PERFORMING ANY SERVICES HEREUENDER ARISING IN CONECTION WITH MERCHANT’S NEGLIGENCE, ABUSE, MISUSE, OR FAILURE TO PERFORM ROUTINE MAINTENANCE OR STANDARD OPERATING PROCEDURES. COMPANY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT AFTER THE INITIAL INSTALLATION OF THE EQUIPMENT AND SOFTWARE, THAT THE EQUIPMENT, SOFTWARE OR CUSTOMER’S DATA WILL REMAIN VIRUS-FREE. MERCHANT WAIVES ANY CLAIMS HEREUNDER AGAINST COMPANY ARISING FROM MERCHANT’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, OR FROM A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR MERCHANT’S SYTEMS OR DATA, OR FROM ANY UNAUTHORIZED ACCESS TO MERCHANT’S SYSTEMS. COMPANY FURTHER DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR PROBLEMS FROM MERCHANT’S DECISION TO USE A PARTICULAR INTERNET SERVICE PROVIDER OR MERCHANT’S ABILITY TO CONNECT TO THE INTERNET. MERCHANT ACKNOWLEDGES THAT ITS ABILITY TO ACCESS DATA, RECEIVE REMOTE TECHNICAL SUPPORT, AND OPERATE THE EQUIPMENT, MAY BE AFFECTED BY PROBLEMS WITH MERCHANT’S INTERNET CONNECTIVITY. ANY SUCH PROBLEMS ARE OUTSIDE OF COMPANY’S CONTROL. MERCHANT WAIVES ANY CLAIMS IT MAY HAVE AGAINST COMPANY DUE TO MERCHANT’S INABILITY TO ACCESS DATA OR CONNECT TO THE INTERNET WHICH IS BASED ON OR ARISING OUT OF ANY OF THE FOREGOING REASONS.
- LIMITATION OF LIABILITY
COMPANY AND COMPANY’S AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, AND ASSIGNS SHALL NOT BE LIABLE TO MERCHANT OR MERCHANT’S OWNERS, PARTNERS, SHAREHOLDERS, AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, OR ASSIGNS, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER OR INADEQUATE TAXES CHARGED), OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY ARISING OUT OF THIS AGREEMENT, OR MERCHANT’S USE (OR INABILITY TO USE) THE EQUIPMENT OR SOFTWARE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THE MERCHANT BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN EXCESS OF THE FEES PAID UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF MERCHANT’S FIRST CLAIM OF INJURY OR DAMAGE. IN NO EVENT SHALL COMPANY OR COMPANY’S AFFILIATES (INCLUDING PARENTS, SUBSIDIARIES, AND OTHER RELATED ENTITIES), SUCCESSORS, OR ASSIGNS, BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGE INCURRED AS A RESULT OF DOWNTIME OF THE EQUIPMENT OR SOFTWARE.
- GENERAL INDEMNITY.
Merchant agrees to indemnify, defend, and hold Company, Company’s affiliates (including parents, subsidiaries, and other related entities), employees, contractors, subcontractors, successors, assigns, and agents (collectively the “Company Indemnified Parties”) harmless from and against any and all costs, damages, penalties, claims, actions, suits (collectively “Claims”) of whatsoever kind and nature arising out of, related to, arising from, or in connection with Merchant’s unauthorized modification or misuse of the Equipment or Software, or Merchant’s breach of this Agreement, or from Merchant’s negligent acts or omissions. Merchant’s indemnification obligation includes payment of all reasonable attorneys’ fees, costs and expenses. Merchant shall promptly notify Company in writing of any Claim and any such suit will not be settled without Company’s consent, such consent not to be unreasonably withheld. Merchant shall retain counsel reasonably acceptable to Company and Company shall cooperate in the defense of such claim. Company may appear, in its sole discretion and at its own expense, through counsel it selects.
- MISCELLANEOUS TERMS INCLUDING BINDING ARBITRATION AGREEMENT
- Assignment.Merchant shall not have the right to assign or otherwise transfer its rights or obligations under this Agreement except with the written consent of Company. Company shall have the right to assign any or all of its interest, rights, and obligations in this Agreement without the need for consent from Merchant. Any prohibited assignment shall be null and void. This Agreement shall be binding upon the heirs, successors, and permitted assigns of the parties.
- Amendments.This Agreement may be amended by Company, Company’s affiliates, or assigns, upon 30 days’ written notice. Using the Equipment after a change takes effect constitutes acceptance of the amendment.
- Notices.Notices permitted or required to be given hereunder shall be deemed sufficient if given by courier service that requires a signature upon delivery, registered or certified mail return receipt requested, addressed to Merchant’s address on Merchant Application or Company’s address published on its website (or other addresses the parties may designate by like notice from time to time). Notices so given shall be effective as of the date stamped on the receipt.
- Severability.In the event that any of the terms of this Agreement are in conflict with any rule of laws, regulations, provisions or otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed amended so that such term of provision complies with such applicable law or regulation, but such invalidity, unenforceability, or revision shall not invalidate any of the other terms of this Agreement and it shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
- Binding Arbitration Agreement.The term “Merchant” in this Section 11.e (“Arbitration Agreement”) includes Merchant and the Guarantor(s) listed on Merchant Application. This Arbitration Agreement binds all of them and Company.
(i). Company and Merchant agree to resolve all claims and disputes of every kind between them or their respective owners, partners, shareholders, affiliates (including parents, subsidiaries, and other related entities), predecessors, successors, or assigns only through binding individual arbitration before the American Arbitration Association (“AAA”). This Arbitration Agreement is to be broadly interpreted. It includes: (A) claims or disputes relating to any aspect of the relationship between Company and Merchant including claims or disputes relating to this Agreement, the Equipment, the Software, the Processing Agreement, any Company product or service, and any agreement to which Merchant and Company are parties (even if the claim or dispute does not involve the Agreement) , whether based in contract, tort, statute, fraud, misrepresentation, omission, or any other theory; (B) claims or disputes that arose before this Agreement or any other agreement became effective (including claims or disputes relating to advertising); (C) claims or disputes that are the subject of purported class action litigation on the date this Agreement becomes effective but Merchant is not a member of a certified class on that date; and (D) claims or disputes that arise after the termination of this Agreement but relate to it or to the Equipment or Software.
(ii). Class Action Waiver. Merchant and Company waive their rights to sue before a judge or jury and to participate in a class action, class-wide arbitration, private attorney general action, or any other proceeding in which a party acts in a representative capacity. Instead, any claim or dispute will be resolved on an individual basis by a neutral arbitrator whose decision (called an “award”) will be final except for a limited right of appeal under the Federal Arbitration Act. The arbitrator may not join or consolidate proceedings together without the consent of all parties to all proceedings.
(iii). Before seeking arbitration, Company or Merchant must first send to the other, by certified mail return receipt requested or a courier service that requires a signature upon delivery, a written Notice of Dispute (“Notice”). A Notice to Company must be addressed to: Company Legal Department, 3363 NE 163rd Street, North Miami Beach, Florida 33160. A Notice to Merchant must be addressed to its address in Company’s records. The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought. If Company and Merchant do not reach an agreement to resolve the claim or dispute within 30 days after the Notice is received, Merchant or Company may commence an arbitration.
(iv). The AAA’s Commercial Arbitration Rules, as modified by this Arbitration Agreement, apply.
(v). The arbitrator may award the same relief as a court could but may award declaratory or injunctive relief only to the individual party and only to the extent necessary to provide relief for that party’s individual claim. Any court with jurisdiction may enforce the arbitrator’s award.
(vi). If the class action waiver in Section 11.e(ii) is found to be illegal or unenforceable as to all or any part of a claim or dispute, then the Arbitration Agreement is null and void as to that part, which shall proceed in court with the rest proceeding in individual arbitration. If any other provision of the Arbitration Agreement is found to be illegal or unenforceable, that provision shall be severed and the rest will continue to apply in individual arbitration.
(vii). Notwithstanding any provision to the contrary, if Company makes any future change to this Arbitration Agreement (other than address changes) during the Initial Term or a Renewal Term, Merchant may reject that change by sending Company written notice within 30 days of receiving notice of the change to the address in Section 11.e(iii). The version of the Arbitration Agreement in force just before the rejected change will govern.
- Governing Law.This Agreement is construed according with and shall be governed (including with no limitations any matters arising out of this Agreement, relating to this Agreement (including those which may be in the Agreement or not, tort, or otherwise)) by the laws of the State of Florida, County of Miami-Dade, USA and without any consideration of possible conflicts of law. This Agreement shall be considered to be fully executed and delivered in the State of Florida, county of Miami-Dade.
- One-Year Limit on Claims and Disputes.Any claim or dispute must be filed in within one (1) year of the date it first could be filed. Otherwise it is permanently barred.
- Conflicting Terms.This Agreement shall prevail over any conflicting terms or oral statements that may be contained in any instructions or other communications Merchant submits to Company with respect to this Agreement.
- Independent Contractor.Nothing in this Agreement or in its performance shall be construed to create any partnership, joint venture, or relationship of principal and agent or employer and employee between Company and Merchant or any of their respective affiliates or subsidiaries. Company and Merchant are and shall remain independent contractors. As such, neither Merchant nor any employees, agents, or affiliated persons of Merchant shall be entitled under any circumstances to maintain any action against Company for any bodily injury incurred by Merchant or any employees, agents, or affiliated persons of Merchant (including, but not limited to, the filing of claims under the workers’ compensation laws of any state). Furthermore, Merchant acknowledges that Merchant shall be solely responsible for the purchase and maintenance of employment, and workers’ compensation, and liability insurance coverage related to its employees, agents, or contractors, and that Company shall have no responsibility for any such coverage.
- Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for payment of fees or charges incurred under this Agreement or the requirement to file claims or disputes within one (1) year) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
- No Waiver of Rights.Unless expressly provided herein, no failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right.
- Entire Agreement.COMPANY’S REPRESENTATIVES MAY HAVE MADE ORAL STATEMENTS REGARDING THE EQUIPMENT, SOFTWARE, OR SERVICES. NONE OF THE ORAL STATEMENTS CONSITUTE WARRANTIES, MERCHANT SHALL NOT RELY ON ANY OF THEM, AND THEY ARE NOT PART OF THIS AGREEMENT. THIS AGREEMENT, INCLUDING ITS EXHIBITS, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PREVIOUS PROPOSALS, ORAL OR WRITTEN, AND ALL NEGOTIATIONS, CONVERSATIONS, OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED TO THIS AGREEMENT. MERCHANT ACKNOWLEDGES THAT IT HAS NOT BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY ANY REPRESENTATIONS OR STATEMENTS, ORAL OR WRITTEN.