End User License Agreement

Last Updated: 7-08-2016

This End-User License Agreement (the “Terms” or this “Agreement”) sets forth the terms and conditions that govern access to and use of the merchant check acceptance app (the “App”) made available by TeleCheck Services, Inc. (“TeleCheck”, “we,” or “us”), and the check acceptance processing services that we provide via the app for point of sale devices (each, a “Device”) that operate on the platform offered by CloverTM Network, Inc. (“Clover”). These Terms are a legal agreement between the person or entity who has an agreement to use the Device on which the App is loaded (“you,” “your” or “Entity”) and TeleCheck. By clicking to “Accept” these Terms and/or by using our check acceptance services, you agree to be bound by these Terms. TeleCheck will provide one or more of the following services (“TeleCheck Services”) as you selected in your enrollment for the TeleCheck services: In Person Electronic Warranty Service (“In Person Electronic Warranty Service”), By Mail/Drop Box Warranty Service (“By Mail/Drop Box Warranty Service”), or Specialty Item Non-Warranty service (“Specialty Item Service”) (all such services are collectively, the “Services”). The person who clicks to “Accept” these Terms represents and warrants that he or she has the authority to act on your behalf to download and use the App and to agree to these Terms. These Terms do not alter in any way the terms or conditions of any other agreement you may have with any other party for products, services or otherwise. Any of the TeleCheck services, including, without limitation, funds settlement, billing and customer service, may be performed by one or more of TeleCheck’s affiliates.

1. Additional Terms

Your use of the Device is subject to any terms and conditions that originate from the supplier of your Device (and not TeleCheck), and you agree to comply with such terms and conditions. You represent and warrant that you are authorized to use the Device upon which you install, access and use the App. You are not authorized to use the Services in connection with any transaction conducted, in whole or in part, over the Internet or in any non face-to-face transaction except as specifically provided for in this Agreement. You will not resell the Services to any third party. This Agreement is solely between you and TeleCheck; and while this Agreement is in effect, you will process all of the Items you receive from Consumers as payment for your goods or services using TeleCheck’s Services prior to accepting such Items.

2. Term, Termination and Amendment. The App enables you to use the Services as provided in this Agreement. This Agreement shall be effective from the date you install the App (“Effective Date”) and shall continue until terminated as provided for in this Agreement. We reserve the right to amend, at our discretion, this Agreement, including, without limitation, any rates, fees, addenda and/or the TeleCheck Operational Procedures, by providing you notice and such amendments shall be effective 30 days from the date notice is mailed to you by regular mail or provided to you by email. In the event we changes the rates, fees or warranty limits hereunder, you may terminate this Agreement upon written notice received by us within such 30 day period. We may terminate this Agreement at any time upon notice to you. You may cancel this Agreement and your use of the App at any time by uninstalling the App via your Device. Your cancellation will become effective upon the end of the billing cycle in which such cancellation occurs. In the event of such cancellation or any other termination, you will not receive any refund for the billing period during which such cancellation occurs.

3. Definitions.

As used in this Agreement, the following definitions apply: ACH Network” means the Automated Clearing House Network, a processing and delivery system that provides for the distribution and settlement of electronic credits and debits. “Authorization” means the written or electronic authorization, in the form approved by TeleCheck, signed by Consumer authorizing the payment for each In Person Electronic Warranty Transaction. “Batch” means a collection of saved transactions transmitted to TeleCheck for settlement processing. “Claim” means any claim, demand, directive, suit or other proceeding, notice, damage, expense (including reasonable attorney’s fees), assessment, fine or liability of any kind. “Check Image” is defined in Section 5.1 (a) below. “Consumer” means a person or entity that authorizes an Item. “Consumer Authorization Format” means the required format (including, without limitation, all verbiage for payment authorization, return item fees, check approvals and declines, etc.), provided by TeleCheck to you, as amended from time to time, for processing Consumer payments to you by an Electronic Item. “In Person Electronic Warranty Transaction” means a transaction processed by TeleCheck under In Person Electronic Warranty Service, as an electronic funds transfer, a remotely created check or a paper check for the contemporaneous purchase of goods or service by a Consumer at your physical location. For avoidance of doubt, an In Person Paper Warranty Transaction is included in the definition of In Person Electronic Warranty Transactions. “In Person Paper Warranty Transaction” is defined in Section 4.1 below. “Specialty Items Service” is defined in Section 6.1 below. “Specialty Item Transaction” means a check transaction processed by TeleCheck under the Specialty Item Service for the contemporaneous purchase of goods or service at your physical location, or for a check mailed in for the purchase of goods or services. “Item” means an outstanding financial obligation pursuant to a paper check, electronic funds transfer or remotely created check processed under this Agreement. “Electronic Transaction” or “Electronic Item” means an In Person Electronic Warranty Transaction, Specialty Item Transaction or By Mail/Drop Box Warranty Transaction. “By Mail/Drop Box Warranty Transaction” means the payment of goods or services by a paper check sent to you through the U.S. mail or delivered to your drop box, which payment is processed by TeleCheck as an electronic fund transfer, a remotely created check or a paper check under the By Mail/Drop Box Warranty Service. For avoidance of doubt, By Mail/Drop Box Paper Warranty Transactions and Pro-21 Check Transactions are included in the definition of By Mail/Drop Box Warranty Transaction. “By Mail/Drop Box Paper Warranty Transaction” is defined in Section 5.1 (b) below. “Check Image Transaction” is defined in Section 5.1(a) below. “NACHA Rules” means the National Automated Clearing House Association Operating Rules and Guidelines, as amended from time to time, that govern the ACH Network. In Person Paper Warranty Transaction is defined in Section 4.1 below. Return Item Fee” means any fee or exemplary damages allowed by law that may be assessed on a Return Item. “Return Items” mean any Items that are dishonored, returned, reversed, charged back or otherwise unpaid by a Consumer’s financial institution upon presentment for payment, regardless of the reason or timing. “Returned Payment” means any financial obligation pursuant to this Agreement not paid by your financial institution. “Subscriber’s Account” means your financial institution account. “TeleCheck Approval Code” means (a) for warranty services, that TeleCheck has authorized an Item for warranty coverage under this Agreement, and (b) for non-warranty services, that TeleCheck has authorized an Item as eligible for processing. “TeleCheck Operational Procedures” means TeleCheck’s published policies and procedures contained in various documents provided to you concerning the services, equipment and maintenance provided pursuant to this Agreement. “TeleCheck Parties” means TeleCheck, its affiliates, officers, directors, employees, shareholders, agents and attorneys. “Warranty Maximum” means the lower of (i) the face amount of the Item or (ii) $25,000.00; provided, however that for an In Person Paper Warranty Transaction, it means the lower of (i) the face amount of the item or (ii) $99,000.00.

TERMS APPLICABLE TO TELECHECK IN PERSON ELECTRONIC

WARRANTY SERVICE

4.1. Description. The TeleCheck In Person Electronic Warranty Service provides you with: (a) coded information to assist you in deciding whether or not to accept an In Person Electronic Warranty Transaction; (b) check based payment processing services that convert eligible paper checks to electronic fund transfers for payment into the Subscriber Account.; and (c) warranty services that comply with the warranty requirements of Section4.2, all in accordance with this Agreement. In some instances, transactions that are initiated for settlement processing may be approved as a paper check only transaction under which paper checks are not converted into an electronic fund transaction. In this case TeleCheck would approve such checks as a “paper only transaction”, and you would receive a message instructing you to deposit the check at your bank (in such case this In Person Electronic Warranty Transaction can also be referred to as an “In Person Paper Warranty Transaction”).

4.2. Warranty Requirements. TeleCheck warrants the accuracy of its information provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to purchase from you one Item per In Person Electronic Warranty Transaction for which a TeleCheck Approval Code was inaccurate; provided, however, that TeleCheck’s liability shall be limited by the Warranty Maximum and warranty requirements, and shall not exceed the amount of the Item. Your sole and exclusive remedy for breach of warranty shall be the right to require TeleCheck to purchase such Item subject to the terms and conditions contained in this Agreement. You represent, warrant and agree with respect to each In Person Electronic Warranty Transaction submitted to TeleCheck for processing under this Agreement that:

  1. ) The check is a first party check drawn on Consumer’s deposit account at a United States financial institution, completely and properly filled out and made payable to you. The name and address of the Consumer is imprinted or typed on the check by the check manufacturer. If a P.O. Box is used, or an address is not imprinted by the check manufacturer, a physical address (which may be a rural route or highway location number) is written on the check according to TeleCheck’s Operating Procedures.
  2. ) The transaction represents an obligation of Consumer at the point of sale (no phone, mail or internet orders) for goods sold or rented or services rendered for the price of such goods or services, and the transaction is not for credit, cash or payment on an account, debt or check already due you;
  3. ) You (a) submitted the Item to TeleCheck in accordance with TeleCheck’s Operating Procedures, (b) submitted the check’s MICR (magnetic ink character recognition) line information, and Consumer’s identification type and number, (c) obtained a single TeleCheck Approval Code for each Item, and (d) did not perform the In Person Electronic Warranty Transaction in an attempt to avoid the warranty requirements or Warranty Maximum (as more fully described in Section 4.4(vi) including through split sales;
  4. ) The signature of Consumer on the Authorization is not substantially different from the name imprinted on the check. For a Paper Warranty Transaction, the Consumer’s signature in the signature block on the check is not substantially different from the name imprinted on the check;
  5. ) For an In Person Paper Warranty Transaction, your Merchant ID, the Consumer's telephone number (including area code), identification type and number, and TeleCheck Approval Code are all printed or written on the check according to TeleCheck’s Operating Procedures;
  6. ) The date of the check and the In Person Electronic Warranty Transaction accurately coincides within 1 calendar day of (i) the date of the inquiry call to TeleCheck, and (ii) the date the transaction actually occurred. (Checks may not pre-date or post-date by more than 1 calendar day the date of the inquiry call and the transaction date);
  7. ) For an In Person Paper Warranty Transaction, you deposited the check in Subscriber's Account and, upon the check becoming a Return Item, we received the Return Item for purchase within thirty (30) days of the date that you originally received the check. Further, your financial institution must send the Return Item to us for purchase after presenting the Item for payment only once (i.e., Items may not be sent to us for purchase in connection with warranty services after re-presentment, whether paper or electronic);
  8. ) You have no reason to question or have notice of any fact, circumstance or defense which would impair the validity or collectability of Consumer’s obligation or relieve Consumer from liability;
  9. ) The transaction is not subject to any stop payment, dispute or set-off;
  10. ) You have complied with and shall comply with all applicable laws, rules, regulations, and NACHA Rules including, without limitation, posting notice to authorize the In Person Electronic Warranty Transaction and the Return Item Fee in a prominent and conspicuous location, and providing a copy of the notice to the Consumer, all in accordance with Regulation E (12 C.F.R. Part 205);
  11. ) Consumer authorized the debiting of Consumer’s account and the debit entry is in an amount agreed to by Consumer. The consumer signed a separate and completed Authorization from Consumer for each In Person Electronic Warranty Transaction;
  12. ) The paper check to which the In Person Electronic Transaction relates to is voided on the front by Consumer or you, and is returned to Consumer (unless the transaction is a Paper Check Transaction);
  13. ) The amount shown in words and figures on the check is (a) less than or equal to the amount entered into the TeleCheck system, or (b) no more than $1.00 over the amount entered into the TeleCheck system, and does not exceed the Warranty Maximum. The amount entered into the TeleCheck system and on the Authorization match exactly and does not exceed the Warranty Maximum; and
  14. ) You agree to cooperate in good faith with us to promptly identify Consumers that have filed bankruptcy and notified you of such bankruptcy.

4.3. Assignment of In Electronic Person Warranty Transactions. By electing to subscribe to the In Person Electronic Warranty Service, you ASSIGN, TRANSFER AND CONVEY to TeleCheck all of your rights, title and interest in any In Person Electronic Warranty Transaction submitted by you to TeleCheck under this Agreement. You shall, at TeleCheck’s request, endorse such check and take any action reasonably deemed necessary by TeleCheck to aid in the enforcement of TeleCheck’s rights hereunder.

4.4. Chargeback and Reassignment. TeleCheck may chargeback any In Person Electronic Warranty Transaction it processed as a check, electronic fund transfer or remotely created check, or reassign any paper check or Item to you that it purchased in any of the following circumstances:

  1. ) The goods or services (in whole or in part) for which the Item was issued have been returned to you, have not been delivered by you, or are subject to any stop payment, dispute or setoff;
  2. ) You received full or partial payment or security in any form to secure payment of the Item, or the goods or services for which the Item was issued were initially delivered on credit or under a lease;
  3. ) The In Person Electronic Warranty Transaction is for any reason void or invalid, or any applicable law prevents the purchase by or transfer of the Item to TeleCheck, or a court of law determines that the Item is (in whole or in part) not due and payable by Consumer (unless such determination results from a bankruptcy proceeding);
  4. ) Any of the applicable warranty requirements for In Person Electronic Warranty Transactions set forth in this Agreement are breached;
  5. ) You failed to comply with this Agreement;
  6. ) You, or any of your owners, agents or employees (a) materially altered the Item or Authorization, (b) processed the In Person Electronic Warranty Transaction with reason to know (or should have reasonably known) that it was likely to be dishonored (including failure to receive a TeleCheck Approval Code), or that the identification used or signature provided (to the extent an identification or signature is required under the applicable warranty requirements) was forged or did not belong to the Consumer; or (c) processed the In Person Electronic Warranty Transaction in a manner which was an attempt to avoid the warranty requirements or Warranty Maximum. “Knowledge” will be presumed in the presence of facts or circumstances which, if known, would cause a non-subscribing merchant, using commercially reasonable judgment, to independently refuse to accept an Item. “Knowledge” is also presumed where there is evidence of your attempt to avoid warranty limitations through manipulation of transactions, including, but not limited to the splitting of a single transaction into smaller components or resubmission of a previously denied transaction;
  7. ) A duplicate Item related to the same transaction was received and processed; or, in the case of a In Person Electronic Warranty Transaction processed as an electronic fund transfer, the check giving rise to the Item was deposited, thereby creating a duplicate entry against Consumer’s financial institution account;
  8. ) The closeout of any batches (if applicable) or transmission of In Person Electronic Warranty Transactions to TeleCheck for settlement processing did not occur within seven (7) business days (or such timeline that is specifically set forth in the warranty requirements) from the date the TeleCheck Approval Code was issued for the corresponding In Person Electronic Warranty Transactions;
  9. ) The Consumer disputes authorizing the Item, or the validity or accuracy of a debit made to the Consumer’s financial institution account in connection with a In Person Electronic Warranty Transaction (except in the case of a fraud committed by a third party using a Consumer’s check); or
  10. ) Any Authorization required by the NACHA Rules, Regulation E or applicable law was incomplete or unsigned.

You will immediately notify TeleCheck if you have Knowledge that any of the above circumstances has occurred in connection with a In Person Electronic Warranty Transaction. TeleCheck may debit Subscriber’s Account, or offset amounts due you, in the amount paid by TeleCheck for any In Person Electronic Warranty Transaction that is reassigned or charged back under this Section; or, promptly upon request, you will remit the amount of the Item to TeleCheck. TeleCheck may also charge back to you any amount over the Warranty Maximum on any In Person Electronic Warranty Transaction for which TeleCheck has not received payment from a Consumer or a Consumer’s financial institution within sixty (60) days of the date of the In Person Electronic Warranty Transaction. Upon reassigning, charging back or charging back any amount in connection with an Item, TeleCheck will have no further liability to you for the Item. You will continue to bear full responsibility for any chargebacks and adjustments made under this Section following expiration or termination of this Agreement.

TERMS APPLICABLE TO TELECHECK BY MAIL/DROP BOX WARRANTY SERVICE

5. By Mail/Drop Box Warranty Service.

5.1. Description. The TeleCheck By Mail/Drop Box Warranty Service provides you with: (a) coded information to assist you in deciding whether or not to accept an Item; (b) settlement processing services; and (c) warranty services for By Mail/Drop Box Warranty Transactions, all in accordance with this Agreement. While TeleCheck converts most checks receiving a TeleCheck Approval Code into an electronic funds transfer for settlement processing, certain checks require different processing as follows:

(a) Check Image. TeleCheck may determine that certain checks which it issues a TeleCheck Approval Code are not available for settlement as an electronic funds transfer from the check writer’s account. In such case TeleCheck will submit the check image (“Check Image”) provided by you from your point of sale terminal to the banking check collection system for settlement (“Check Image Transaction”). TeleCheck will include a message for you to maintain the check in your possession for 60 days. TELECHECK MAKES NO REPRESENTATION OR WARRANTY THAT A CHECK IMAGE CAN OR WILL BE SETTLED FOR PAYMENT. YOU ACKNOWLEDGE THAT CERTAIN IMAGES MAY BE REJECTED BY THE CHECK COLLECTION SYSTEM AS INELIGIBLE FOR SETTLEMENT, INCLUDING, WITHOUT LIMITATION, DUE TO IMAGE QUALITY. YOU FURTHER ACKNOWLEDGE AND CONFIRM THAT TELECHECK HAS ADVISED YOU TO MAINTAIN ALL ORIGINAL CHECKS FOR AT LEAST 60 DAYS FROM SUBMISSION TO TELECHECK. YOU SHALL SECURELY STORE ALL ORIGINAL IMAGED CHECKS UNTIL DESTRUCTION AND USE APPROPRIATE MEASURES TO ENSURE THAT THE ORIGINAL CHECK IS NOT DEPOSITED UNLESS TELECHECK OTHERWISE ADVISES THAT THE IMAGED CHECK IS NOT ELIGIBLE FOR SETTLEMENT

(b) Keep as Paper. TeleCheck may determine that certain checks for which it issues a TeleCheck Approval Code cannot be settled by TeleCheck either as an electronic funds transfer or as a check image. In this case TeleCheck would approve such checks as a “paper only transaction” (“By Mail/Drop Box Paper Warranty Transaction”), and you would receive a message instructing you to deposit the check at your bank.

5.2. Warranty Requirements. TeleCheck warrants the accuracy of its information provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to purchase from you one Item per By Mail/Drop Box Warranty Transaction for which a TeleCheck Approval Code was inaccurate; provided, however, that TeleCheck’s liability shall be limited by the Warranty Maximum and warranty requirements, and shall not exceed the amount of the Item. Your sole and exclusive remedy for breach of warranty shall be the right to require TeleCheck to purchase such Item subject to the terms and conditions contained in this Agreement. You represent warrant and agree (as applicable) with respect to each By Mail/Drop Box Warranty Transaction submitted to TeleCheck for processing under this Agreement that:

  1. ) The check is a first party check drawn on Consumer’s deposit account (including, without limitation not a corporate check) at a United States financial institution, completely and properly filled out, and made payable to you. The name of the Consumer and check serial number are imprinted on the check by the check manufacturer;
  2. ) The check is sent to you through the U.S. mail or delivered to your drop box;
  3. ) You made an inquiry to TeleCheck in strict accordance with TeleCheck Operational Procedures and obtained a single TeleCheck Approval Code. The transaction was not performed in an attempt to avoid the warranty requirements or Warranty Maximum (as more fully described in Section 5.4(f) including through split sales;
  4. ) The signature in the signature block on the check is not substantially different from the name imprinted on the check;
  5. ) The check is not post-dated or dated earlier than 20 days from the date of inquiry to TeleCheck, and the amount called into TeleCheck and the amount shown in words and figures on the check match exactly;
  6. ) The check must not be for a payment which is more than 60 days past due.
  7. ) Consumer did not notify you that the check was not to be converted to an electronic funds transfer;
  8. ) The transaction represents an obligation of Consumer for the purchase or payment for goods or services from you for the price of such goods or services;
  9. ) The transaction is not subject to any stop payment, dispute or set-off;
  10. ) You complied with all applicable laws, rules, regulations, and NACHA Rules including, without limitation, providing a separate notice to authorize each By Mail/Drop Box Warranty Transaction and each Return Item Fee in accordance with Regulation E (12 C.F.R. Part 205);
  11. k) You have no reason to question or have notice of any fact, circumstance or defense which would impair the validity or collectability of Consumer’s obligation or relieve Consumer from liability; and
  12. ) If the By Mail/Drop Box Warranty Transaction is approved as a By Mail/Drop Box Paper Warranty Transaction, each representation, warranty and agreement set forth above in this Section 5.2 shall be applicable to such By Mail/Drop Box Warranty Transaction, except for the additions and modifications as follows:
    1. ) If a physical address (e.g. no P.O. Box) of the Consumer is not imprinted by the check manufacturer, a physical address description must be written on the check according to TeleCheck Operational Procedures;
    2. ) the TeleCheck Subscriber Number, Consumer’s telephone number (including area code), identification type and number and TeleCheck Approval Code must be printed or written on the check; and
    3. ) the check must be deposited in Subscriber’s Account by you and received by TeleCheck for purchase within 45 days of the date of the check. Such check must have been sent to TeleCheck after being presented for payment only once (no re-presentments shall be allowed, whether paper or electronic).
    4. m) For a Check Image Transaction, each representation, warranty and agreement set forth above in this Section 5.2 shall be applicable to such Check Image Transaction (including, without limitation (l) above), except for the additions and modifications as follows: (i) you must maintain the original Check Image for at least 60 days from the date the transaction is submitted to TeleCheck , (ii) you must deposit the original check into its bank account within 2 business days from TeleCheck’s request to deposit the item, and (iii) the check must be received by TeleCheck for purchase within 45 days of the date of the request for you to deposit by TeleCheck. The original paper check must not been deposited (unless otherwise requested by TeleCheck), thereby creating a duplicate check entry against Consumer’s financial institution account.

5.3. Assignment of By Mail/Drop Box Warranty Transactions. By electing to subscribe to the TeleCheck By Mail/Drop Box Warranty Service, you ASSIGN, TRANSFER AND CONVEY to TeleCheck all of your rights, title and interest in any By Mail/Drop Box Warranty Transaction submitted by you to TeleCheck under this Agreement. You shall, at TeleCheck’s request, endorse such check and take any action reasonably deemed necessary by TeleCheck to aid in the enforcement of TeleCheck’s rights hereunder.

5.4. Chargeback and Reassignment. TeleCheck may chargeback to you any By Mail/Drop Box Warranty Transaction processed by TeleCheck, or reassign to you any By Mail/Drop Box Warranty Transaction which has been approved as a paper check and purchased by TeleCheck, in any of the following circumstances:

  1. ) The goods or services, in whole or in part, for which the Item was submitted have been returned to you, have not been delivered by you, are claimed by Consumer to have been unsatisfactory, or are subject to any stop payment, dispute or set-off;
  2. ) You have received full or partial payment or security in any form to secure payment of the Item, or the goods or services for which the Item was issued or authorized were initially delivered on credit or under a lease;
  3. ) The transaction is for any reason illegal, void or invalid; or purchase by or transfer to TeleCheck of the Item is not permitted by applicable law; or a court of law determines that the Item is, in whole or in part, not due and payable by Consumer, unless such determination results from Consumer’s bankruptcy proceeding;
  4. ) Any of the representations made by you as set forth in Section 5.2 are or become false or inaccurate;
  5. ) You failed to comply with this Agreement;
  6. ) You, or any of your owners, agents or employees:
    1. ) materially altered the check; or (ii) processed the transaction with reason to know that the Item was likely to be dishonored (including failure to receive a TeleCheck Approval Code); or
    2. ) processed the transaction in a manner which was an attempt to avoid the warranty requirements or Warranty Maximum. “Knowledge” shall be presumed in the presence of facts or circumstances which, if known, would cause a non-subscribing merchant, using commercially reasonable judgment, to independently refuse to accept a check. “Knowledge” is also presumed where there is evidence of your attempt to avoid warranty limitations through manipulation of transactions, including, but not limited to the splitting of a single transaction into smaller components or resubmission of a previously denied transaction;
  7. ) A duplicate By Mail/Drop Box Warranty Transaction relating to the same transaction was received and processed, or the original paper check was deposited, thereby creating a duplicate entry against Consumer’s financial institution account;
  8. ) Consumer disputes authorizing the transaction or the validity or accuracy of the transaction; or you received notice that Consumer filed bankruptcy and you failed to notify TeleCheck of the bankruptcy within 3 business days of your receipt of such notice.

You shall immediately notify TeleCheck upon the happening of any of the above circumstances. If the Item is charged back or reassigned as provided herein, (a) TeleCheck may debit Subscriber’s Account in the amount paid by TeleCheck for the Item, (b) deduct or offset such Item against any amounts to be paid to you for By Mail/Drop Box Warranty Transactions, or (c) upon request, you shall remit the amount of the Item to TeleCheck. TeleCheck may also chargeback to you any amount over the Warranty Maximum on any By Mail/Drop Box Warranty Transaction where TeleCheck has not received payment for such transaction within 60 days of the date of the By Mail/Drop Box Warranty Transaction. Upon charging back or reassigning an Item, TeleCheck shall have no further liability to you on such Item. Following termination of this Agreement, you shall continue to bear total responsibility for any reassignments, chargebacks and adjustments made under this Section.

5.6. Information Storage. You shall use commercially reasonable methods to securely store the check used in a By Mail/Drop Box Warranty Transaction until destruction and all banking information relating to the transaction.

TERMS APPLICABLE TO SPECIALITY ITEMS SETTLEMENT SERVICE

6. Specialty Items Settlement Service

6.1. Description. Under the Specialty Items Service, certain checks (“Specialty Items Checks”) presented by your customers and receiving a TeleCheck Approval Code will be settled by TeleCheck by using the check image provided by you from your point of sale terminal. The check image will be submitted through the banking collection system for payment. You authorize TeleCheck to deposit such imaged Specialty Items Checks into TeleCheck’s financial institution account to process such payment.

6.2. Settlement Disclaimer. TELECHECK MAKES NO REPRESENTATION OR WARRANTY THAT AN IMAGED CHECK CAN OR WILL BE SETTLED FOR PAYMENT. YOU ACKNOWLEDGE THAT CERTAIN IMAGES MAY BE REJECTED BY THE CHECK COLLECTION SYSTEM AS INELIGIBLE FOR SETTLEMENT, INCLUDING, WITHOUT LIMITATION, DUE TO IMAGE QUALITY. YOU FURTHER ACKNOWLEDGE AND CONFIRM THAT TELECHECK HAS ADVISED YOU TO MAINTAIN ALL ORIGINAL CHECKS FOR AT LEAST 60 DAYS FROM SUBMISSION TO TELECHECK. YOU SHALL SECURELY STORE ALL ORIGINAL SPECIALITY ITEM CHECKS UNTIL DESTRUCTION AND USE APPROPRIATE MEASURES TO ENSURE THAT THE ORIGINAL CHECK IS NOT DEPOSITED UNLESS TELECHECK OTHERWISE ADVISES THAT THE IMAGED CHECK IS NOT ELIGIBLE FOR SETTLEMENT.

6.3. Specialty Items Transaction Requirements and Representations. You represent warrant and agree with respect to each Specialty Items Transaction submitted to TeleCheck for processing under this Agreement that:

  1. ) The check is a first party check completed, signed and payable to you;
  2. ) You complied with all applicable laws, rules and regulations;
  3. ) The transaction represents an obligation of the check writer for the purchase or payment for goods or services from you for the price of such goods or services;
  4. ) The amount shown in words and figures on the check is equal to the amount entered into the TeleCheck system;
  5. ) The original paper check has not been deposited (unless otherwise advised by TeleCheck that the imaged check is not eligible for settlement), thereby creating a duplicate check entry against Consumer’s financial institution account
  6. ) You have no reason to question or have notice of any fact, circumstance or defense which would impair the validity or collectability of the check writer’s obligation or relieve Consumer from liability; and
  7. ) You have not submitted (and will not submit) the item to TeleCheck for authorization under any warranty services it may have with TeleCheck. If so submitted, it will be deemed a violation of the TeleCheck Operating Procedures and warranty requirements and TeleCheck will not warranty the item whether or not TeleCheck issued an approval code for such item under such other service.

6.4. Return Items and Returned Payments. Specialty Items Services are not payment warranty services. TeleCheck will have no liability for any check that is processed using Specialty Items Services that is subsequently returned, dishonored, reversed or otherwise unpaid, and does not warranty the checks processed using the Specialty Items Services. You agree that there shall be no payment to you for any loss from transactions processed through the Specialty Items Services. You assume all risks that Items accepted by you may result in Return Items. You shall be fully responsible and liable to TeleCheck for all Return Items and Returned Payments, regardless of the reason or timing. TeleCheck shall deduct or offset all Return Items and Returned Payments against any amounts to be paid to you for Specialty Items Transactions or, alternatively, TeleCheck may initiate debits to Subscriber’s Account for all such Return Items and Returned Payments.

GENERAL TERMS APPLICABLE TO ALL TELECHECK SERVICES

7. Fees

7.1 Fees. The fees and charges applicable to your access to and use of the App and the Services (“Fees”) are displayed in the Clover App Market prior to your installation of the App or are set forth in this Agreement, as changed from time to time by TeleCheck, plus all applicable taxes. The “Inquiry Rate” is the percentage rate which shall apply to the face amount of each In Person Electronic Warranty Transaction and By Mail/Drop Box Warranty Transaction (up to the Warranty Maximum), for which an authorization inquiry is made to TeleCheck by telephone, electronically or otherwise, whether or not a TeleCheck Approval Code is issued. The “Transaction Fee” is the per transaction charge (which is additional to applicable Inquiry Fees) for each Electronic Item inquiry, whether or not a TeleCheck Approval Code is issued. The following additional fees may also be charged by TeleCheck: The “Customer Requested Operator Call Fee” “CROC” or “Voice Authorization Fee” is an additional fee of $2.50 per each operator or Interactive Voice Response (IVR)-assisted call not requested by TeleCheck. The “Chargeback Fee” is a $5.00 handling fee for each chargeback of an Electronic Item. The “Correction Fee” is a $5.00 fee payable on each Electronic Item that must be corrected due to your error or at your request. The “Recovery Processing Fee” is a $5.00 fee for each Item that fails to meet warranty requirements for which TeleCheck elects, in its discretion, to reimburse you as a “Goodwill Item” for a specific Return Item. A “Terminal Application Update Fee” of $25.00 per terminal shall be charged for each occasion that a terminal application update is made available for additional features, different information or regulatory compliance. Any additional requests or other services not included in this Agreement may be subject to additional fees. Fees for these items may be obtained by contacting TeleCheck. The above fees are in addition to any fees charged by TeleCheck to you under any other agreement. The “Administrative Return Fee” is a $0.10 handling fee for each Return Item that is returned under NACHA Rules, and is classified by TeleCheck as an administrative return.

7.2 Payment. All fees and charges are due upon receipt of invoice. You authorize TeleCheck to debit from Subscriber’s Account, all payments and other amounts owed (including, without limitation, all Return Items, Returned Payments, chargebacks, adjustments, fees and charges, and delinquency charges) under this Agreement or any other agreement between you and TeleCheck or its affiliates, and to credit all amounts owing to you under this Agreement to Subscriber’s Account. If there are insufficient funds in Subscriber’s Account to pay amounts owed to TeleCheck or its affiliates, or if debits to Subscriber’s Account are rejected due to ACH debit blocks, or if there are any amounts otherwise not paid by you when due, including, without limitation, delinquency charges, chargebacks or rejected and reassigned warranty Items, You shall immediately reimburse TeleCheck or its affiliates upon demand, or at TeleCheck’s option, TeleCheck may offset or recoup such amounts against any amounts due you under this Agreement or any other agreement between you and TeleCheck or its affiliates. A delinquency charge of 1-1/2% per month or the highest amount permitted by law, whichever is lower, shall be added to the outstanding balance of any account over 15 days delinquent. TeleCheck shall have the right to suspend all services and obligations to you, including the payment of all warranties due and all transactions previously authorized, during any period in which your account is delinquent. You agree to pay to TeleCheck a fee of $25.00 or the highest amount permitted by law, whichever is lower, for any Returned Payment. You shall also be responsible for paying for all of the point of sale supplies related to the TeleCheck services (i.e., paper and ink for terminals, rubber stamps, if applicable).

8. Security Interest. To secure your obligations to TeleCheck and its affiliates under this Agreement and any other agreement (including any check or credit card processing services), you grant to TeleCheck a lien and security interest in and to any of your funds pertaining to the transactions contemplated by this Agreement now or hereafter in the possession of TeleCheck or its affiliates, whether now or hereafter due or to become due to you from TeleCheck. Any such funds may be commingled with other funds of TeleCheck, or, in the case of any funds held in a reserve account, with any other funds of other subscribers of TeleCheck. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, TeleCheck is hereby authorized by you at any time and from time to time, without notice or demand to you or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all such funds against and on account of your obligations to TeleCheck and its affiliates under this Agreement and any other agreement, including, without limitation, fees for any other services (including any check or credit card processing services), whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. You agree to duly execute and deliver to TeleCheck such instruments and documents as TeleCheck may reasonably request to perfect and confirm the lien, security interest, right of set off, recoupment and subordination set forth in this Agreement

9. Processing Services. For each Electronic Transaction that TeleCheck issues a TeleCheck Approval Code that is processed by TeleCheck as an electronic funds transfer or remotely created check, TeleCheck shall, via an electronic funds transfer, effect a credit to Subscriber’s Account for the amount of such transaction as part of a batch credit within 2 banking days following TeleCheck’s receipt and acceptance of your completed Electronic Transaction to TeleCheck for settlement processing, provided that the transaction is received by TeleCheck by 9:00 p.m. Central Time. You authorize TeleCheck on its behalf to initiate debits to the Consumers’ accounts for each such Electronic Transaction. TeleCheck may reduce such credit, or initiate a debit, by the amount of any necessary adjustments for Electronic Transactions, including, without limitation, chargebacks or partial adjustments, to Subscriber’s Account. TeleCheck reserves the right to decline to process any transaction as an Electronic Transaction. As required by the NACHA rules TeleCheck’s Originating Depository Financial Institution (as defined by the NACHA Rules) shall have the right to audit your compliance with this Agreement and the NACHA Rules.

TeleCheck shall not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including, without limitation, any ACH Network participant or your financial institution. Notwithstanding anything contained herein to the contrary, TeleCheck shall be entitled without notice to place a hold on or suspend payment of any amounts now due or hereafter to become due (“Funds Hold”) should any questionable activity occur as determined by TeleCheck in its sole discretion including, without limitation, an excessive amount of Return Items or a breach of the NACHA Rules, or as otherwise required by the Originating Financial Depositary Institution or by law. In addition to the right to place a Funds Hold with respect to any payment, TeleCheck is also entitled without notice to freeze or terminate all processing activities. In addition to any other remedies available to TeleCheck under this Agreement, you agree that, if you breach or fail to comply with this Agreement, TeleCheck may, with notice to be provided within 3 business days following such action, change processing or payment terms, suspend settlement or other payments of any amounts now due, or hereafter to become due, until TeleCheck has had reasonable opportunity to investigate such event. Continuance of service and payment processing during any period of delinquency shall not constitute a waiver of TeleCheck’s rights of suspension or termination. In the event TeleCheck makes a partial adjustment to an Item or a credit to a Consumer’s account at the request of you or as a result of your error, and the Item becomes a Return Item, TeleCheck may recover all such amounts from you. TeleCheck may also recover from you the amount of any fees paid by a Consumer to Consumer’s financial institution which resulted from your error.

10. Account Reconciliation. Payments processed by TeleCheck will be reflected on settlement reports made available to you by TeleCheck. You agree to notify TeleCheck promptly of any discrepancy between your records and the information provided in the reports, or of any funding failures or errors. In the event any Electronic Transaction is not funded or otherwise paid by TeleCheck in accordance with Section 9, you are required to notify TeleCheck in writing within 45 days from the date of such transaction. If you fail to notify TeleCheck within such 45 day period of the discrepancy, funding failure or error, TeleCheck shall have no liability and you are precluded from asserting any claims, damages or losses arising from such discrepancy, funding failure or error.

11. Reserve Account Establishment and Funding. You expressly authorize TeleCheck to establish a reserve account for Electronic Transactions. The amount of the reserve account shall be set by TeleCheck, in its sole discretion, based upon your processing history and the anticipated risk of loss to TeleCheck. The reserve account shall be fully funded upon 3 days’ notice to you or in instances of fraud or breach of this Agreement, the reserve account may be funded immediately at TeleCheck’s election. The reserve account may be funded by all or any combination of the following: (a) one or more debits to Subscriber’s Account (and TeleCheck is hereby authorized to make such debits); (b) one or more deductions or offsets to any payments otherwise due to you from TeleCheck or any of its affiliates; or (c) your delivery to TeleCheck of a letter of credit issued or established by a financial institution acceptable to, and in a form satisfactory to, TeleCheck. In the event of termination of this Agreement by either TeleCheck or you, an immediate reserve account may be established without notice in the manner provided above. Any reserve account will be held by TeleCheck for 10 months after termination of this Agreement. Your funds may be held in a commingled reserve account for the reserve funds of TeleCheck’s subscribers without involvement by an independent escrow agent, and shall not accrue interest. If your funds in the reserve account are not sufficient to cover the delinquent fees, chargebacks or rejected and reassigned warranty Items, or any other fees and charges due from you to TeleCheck or its affiliates, or if the funds in the reserve account have been released, you shall immediately pay TeleCheck such sums upon request. In the event of a failure by you to fund the reserve account, TeleCheck may fund such reserve account in the manner set forth above.

12. “Goodwill” of a Non-Compliance Item. TeleCheck, in its sole discretion, may voluntarily elect not to chargeback or reassign to you a specific non-compliance Item which fails to comply with the warranty requirements set forth in Section 4.2 or Section 5.2. Such discretionary election by TeleCheck shall not (a) constitute a course of dealing or a waiver of TeleCheck’s right to chargeback or reassign any other Return Item, or (b) relate to any other past or subsequent Return Item, or (c) act as a waiver of TeleCheck’s right to decline to pay any other Return Item.

13. Point of Sale Notices; Return Item Fees. You agree to follow procedures and post and provide at TeleCheck’s direction any notices (including any updates to such notices) which in TeleCheck’s opinion may be required for TeleCheck to process the Item and/or the Return Item Fee, as an electronic funds transfer, draft or otherwise. You also agree to assess a Return Item Fee on all Return Items, and that TeleCheck shall be entitled to collect and retain the Return Item Fee from Consumer.

14.TeleCheck Approval Code. You acknowledge that TeleCheck will use its internal and proprietary risk management systems to evaluate the risk associated with any particular Item and to assist in its decision whether or not to issue a TeleCheck Approval Code. The decision to issue a TeleCheck Approval Code shall be within the discretion of TeleCheck.

14. Credit Law Compliance. You certify that: (a) You have a legitimate business need, in connection with a business transaction initiated by Consumer, for the information provided by TeleCheck under this Agreement regarding such Consumer; and (b) the information provided by TeleCheck shall only be used for permissible purposes as defined in the Fair Credit Reporting Act, and applicable state and federal laws, with the exception that the information shall not be used for employment purposes, and shall not be used by you for any purpose other than a single business transaction between Consumer and you occurring on the date of the inquiry call to TeleCheck. Neither you, nor your agents or employees, shall disclose the results of any inquiry made to TeleCheck except to Consumer about whom such inquiry is made and in no case to any other person outside your organization. If you decide to reject any transaction, in whole or in part, because of information obtained from TeleCheck, you agree to provide Consumer with all information required by law and TeleCheck.

15. Use of TeleCheck Materials and Marks. Pursuant to authorization granted to TeleCheck by TeleCheck International, Inc., the owner of the trademarks referenced in this section, TeleCheck grants to you, and you accept, a nonexclusive, non-assignable and nontransferable limited license, uncoupled with any right or interest, to use the TELECHECK and the TELECHECK logo service marks, and for those subscribers who are receiving In Person Electronic Warranty Service, the TELECHECK ELECTRONIC CHECK ACCEPTANCE and ECA Service marks (collectively, the “TeleCheck Marks”) as follows. You may use and display decals, identification data and other materials provided by TeleCheck during the term of this Agreement at your location solely in connection with the offering of TeleCheck services as authorized under this Agreement. You shall not permit any persons other than its own officers or employees at your locations to use the TeleCheck Subscriber number assigned by TeleCheck. You agree that upon termination of this Agreement you will, at your own expense, either return or destroy all TeleCheck materials (including the prompt removal of any TeleCheck decals, electronic files, logos or other materials or references to TeleCheck that are displayed to the public, including those affixed to equipment, doors or windows). The monthly fees payable by you will apply for all months or fractions of a month that any materials or TeleCheck-owned equipment remain in use. You shall not create any print, electronic or Internet-based materials including but not limited to any advertising or promotional materials using any TeleCheck Marks without the prior written consent of TeleCheck. You acknowledge TeleCheck International, Inc.’s ownership of the TeleCheck Marks and will not contest the validity of the marks or the ownership thereof. You further agree to refrain from performing any acts that might discredit, disparage, dilute, infringe or negatively affect the value of the TeleCheck Marks or constitute unfair competition to TeleCheck or TeleCheck International, Inc. You agree promptly to bring to TeleCheck’s attention any unauthorized use of the TeleCheck Marks by third parties of which you become aware. You shall use the TeleCheck Marks pursuant to any guidelines provided by TeleCheck, as may be amended from time to time. The following shall appear at least once on every piece of advertising or promotional material created by you which uses the TeleCheck Marks and has received prior written approval from TeleCheck: “The (“Applicable Mark”) trademark is owned by TeleCheck International, Inc. and is licensed for use by (“Subscriber Name”)”.

16. Use of Information. You agree that: (a) any data and other information relating to an Item or Consumer obtained by TeleCheck in connection with any service provided hereunder (including any electronic or other image of all or any portion of any check or driver’s license or other identification) shall be owned by TeleCheck, with all right, title, and interest thereto; (b) TeleCheck may use any credit information provided to a TeleCheck affiliate for TeleCheck’s credit review; and (c) TeleCheck may provide or receive any experiential information regarding you or your customers to or from any TeleCheck affiliate.

17. TeleCheck Operational Procedures. You shall strictly follow all TeleCheck Operational Procedures provided to you, as may be amended from time to time by TeleCheck, in its discretion.

18. Equipment Software, Firmware License. TeleCheck grants to you, and you accept, a nonexclusive, non-assignable and nontransferable limited license to use the App and any software and firmware provided with the equipment; provided, you will not: (i) export the equipment, software or firmware outside the US; (ii) copy or use the software, firmware or documentation provided by TeleCheck with the equipment; (iii) sublicense or otherwise transfer any portion of such software, firmware, documentation or the equipment; (iv) alter, change, reverse engineer, decompile, disassemble, modify or otherwise create derivative works of such software, firmware, documentation or the equipment; or (v) remove or alter any intellectual property or proprietary notices, markings, legends, symbols, or labels appearing on, in or displayed by such software, firmware, documentation or the equipment.

19. Limitation of Liability. In no event shall TeleCheck be liable to you or any other person or entity, under this Agreement, or otherwise, for any punitive, exemplary, special, incidental, indirect or consequential damages, including, without limitation, any loss or injury to earnings, profits or goodwill, regardless of whether such damages were foreseeable or whether such party has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained in this Agreement, in no event shall TeleCheck’s liability under this Agreement for all Claims arising under, or related to, this Agreement exceed, in the aggregate (inclusive of any and all Claims made by you against TeleCheck, whether related or unrelated), the lesser of: (a) the total amount of fees paid to TeleCheck by you pursuant to this Agreement during the 12 month period immediately preceding the date the event giving rise to such Claims occurred; or (b) $75,000.00.

20. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TELECHECK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT OR FROM PERFORMANCE BY TELECHECK, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, ALL OF WHICH ARE EXPRESSLY WAIVED BY SUBSCRIBER. All decisions to reject any Item, driver’s license or other form of identification or payment for your products or services are solely your responsibility.

21. Changes in Law or NACHA Rules. Notwithstanding anything to the contrary in this Agreement, if the continued performance of all or any portion of the obligations of TeleCheck becomes impossible or illegal due to changes in applicable federal, state or local laws or regulations, or by NACHA Rules, as determined by TeleCheck in its reasonable discretion, TeleCheck may, upon 30 days written notice to you, modify or discontinue TeleCheck’s performance of its obligations to the extent necessary to avoid a violation of law or NACHA Rules or, if TeleCheck chooses in its sole discretion to incur additional expenses to comply, increase its fees to cover the additional cost of compliance. Additionally, if any fees or charges to TeleCheck increase for processing transactions through the ACH Network, TeleCheck may increase its fees by providing you 30 days written notice. Any notice under this section to increase fees or modify obligations will be effective 30 days from the date notice is mailed to you, and in such event you may terminate this Agreement upon written notice received by TeleCheck within such 30 day period.

22. Data Security. You shall implement commercially reasonable and prudent policies and procedures, including administrative, physical and technical safeguards which are designed to meet the following objectives: (a) ensure the security and confidentiality of Customer Information, (b) protect against any reasonably anticipated threats or hazards to the security or integrity of such Customer Information, and (c) protect against unauthorized access to or use of Customer Information that could result in substantial harm or inconvenience to your customer. “Customer Information” means all you customer information received by you in connection with any transaction contemplated by this Agreement. You agree to comply with all provisions of applicable federal and state laws and regulations and NACHA Rules, as amended from time to time, related to the protection of Customer Information.

23. Updating Information. With regard to any Return Items submitted to TeleCheck, you shall promptly notify TeleCheck if: (a) a Consumer makes any payment to you; (b) there is a return of goods or services, in whole or in part; or (c) there is a dispute of any amount, notice of bankruptcy or any other matter.

24. Confidentiality. You shall maintain the confidentiality of this Agreement and any information provided to you by either TeleCheck, including, without limitation, TeleCheck Operational Procedures, pricing or other proprietary business information, whether or not such information is marked confidential. Such information shall not be used except as required in connection with the performance of this Agreement or disclosed to third parties.

25. No Resale, Assignment of Agreement. This Agreement is solely between TeleCheck and you. You shall not provide or resell directly or indirectly, the services provided by TeleCheck to any other third party. This Agreement may be assigned by you only with the prior written consent of TeleCheck. TeleCheck may freely assign this Agreement, its rights, benefits or duties hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of TeleCheck and your heirs, executors, administrators, successors and assigns.

26. Indemnification. In the event you (a) fail to strictly comply, in whole or in part, with any: (i) terms and conditions of this Agreement and any addenda hereto or TeleCheck Operational Procedures; or (ii) applicable law, rules, regulations and NACHA Rules, or (b) makes any false or inaccurate representation, you shall indemnify, defend and hold harmless the TeleCheck Parties from and against any and all Claims arising therefrom, including payment of all costs and reasonable attorneys’ fees for actions taken by TeleCheck, whether by suit or otherwise, to defend the TeleCheck Parties from any Claim related thereto or to preserve or enforce TeleCheck’s rights under this Agreement. In the event of any legal action with third parties or regulatory agencies concerning any transaction or event arising under this Agreement, you shall: (a) promptly notify TeleCheck of the Claims or legal action; (b) reasonably cooperate with TeleCheck in the making of any Claims or defenses; and (c) provide information, assist in the resolution of the Claims and make available at least one employee or agent who can testify regarding such Claims or defenses. Upon written notice from TeleCheck to you, you shall immediately undertake the defense of such Claim by representatives of its own choosing, subject to TeleCheck’s reasonable approval; provided, however, that TeleCheck shall have the right to control and undertake such defense by representatives of its own choosing, but at your cost and expense, if the Claim arises out of patent, trademark, or other intellectual property rights or laws.

27. Force Majeure. TeleCheck shall not be held responsible for any delays in or failure or suspension of service caused by mechanical or power failure, computer malfunctions (including, without limitation, software, hardware and firmware malfunctions), transmission link failures, communication failures, failure, delay or error in clearing or processing a transaction through the ACH Network or Federal Reserve system, failure, delay or error by any third party or any other third party system, strikes, labor difficulties, fire, inability to operate or obtain service for its equipment, unusual delays in transportation, act of God or other causes reasonably beyond the control of TeleCheck.

28. Compliance with Laws, Governing Law; Integration and Waiver of Jury Trial. The parties agree to comply with all federal and state laws, regulations and rules, including NACHA Rules, each as amended, relating to the services provided hereunder. You further acknowledge and agree that you will not use Subscriber’s Account and/or Services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq., as may be amended from time to time. You certify that you have not been suspended by NACHA or any credit card association, or cancelled by an ODFI or Third Party Sender (as defined in the NACHA Rules). This Agreement, plus any addenda attached hereto, constitutes the entire Agreement between the parties concerning subject matter hereof and supersedes all prior and contemporaneous understandings, representations and agreements in relation to its subject matter. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.

ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.

29. Severability and Interpretation; Third Party Beneficiaries. If any provision, in whole or in part, of this Agreement is held invalid or unenforceable for any reason, the invalidity shall not affect the validity of the remaining provisions of this Agreement, and the parties shall substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Neither this Agreement, nor any addenda or TeleCheck Operational Procedures, shall be interpreted in favor or against any party because such party or its counsel drafted such document. No course of dealing, usage, custom of trade or communication between the parties shall modify or alter any of the rights or obligations of the parties under this Agreement. This Agreement is solely for the benefit of TeleCheck (and its affiliates) and you and no other person or entity shall have any right, interest or claim under this Agreement.

30. Amendment and Waiver; Notices.

30.1 Amendment and Waiver. No modification, amendment or waiver of any of the terms and conditions of this Agreement shall be binding upon TeleCheck unless made in writing and approved and signed by TeleCheck. No waiver of any rights hereunder shall be deemed effective unless in writing executed by the waiving party. No waiver by any party of a breach or any provision of this Agreement shall constitute a waiver of any prior or subsequent breach of the same or any other provision of this Agreement. The parties agree that no failure or delay in exercising any right hereunder shall operate as a waiver of any such right. All of TeleCheck’s rights are cumulative, and no single or partial exercise of any right hereunder shall preclude further exercise of such right or any other right.
30.2 Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing, if to you at your address appearing in your merchant processing agreement by any electronic means including, not limited to the email address you have provided on the TeleCheck Service Application , or if to TeleCheck at TeleCheck Merchant Services, Mail Stop A-12, 7301 Pacific Street, Omaha, NE 68114, with a copy to General Counsel’s Office, 3975 N.W. 120th Avenue, Coral Springs, FL 33065, and shall be deemed to have been properly given (a) upon receipt if by facsimile transmission, as evidenced by the date of transmission indicated on the transmitted material, (b) upon receipt if deposited on a prepaid basis with a nationally recognized overnight courier for next business day delivery, or (c) on the date of delivery indicated on the return receipt, if mailed by certified or registered mail. Notices sent to your last known address (including email address) as indicated in our records, shall constitute effective notice to you under this Agreement. TeleCheck shall also be permitted to provide notice by regular mail and such notice shall be deemed effective 10 days after mailing, unless otherwise provided in this Agreement. The parties’ addresses may be changed by written notice to the other party as provided herein.

31. Financial and Other Information

31.1 Upon request, you will provide us and our affiliates, quarterly financial statements within 45 days after the end of each fiscal quarter and annual audited financial statements within 90 days after the end of each fiscal year. Such financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide such other financial statements and other information concerning its business and compliance with the terms and provisions of this Agreement as we may reasonably request. You authorize TeleCheck and its affiliates to obtain from third parties financial and credit information relating to you in connection with our determination whether to accept this Agreement and TeleCheck’s continuing evaluation of your financial and credit status. Upon request, you shall provide, and/or cause to be provided, to us and TeleCheck’s affiliates, or TeleCheck’s representatives or regulators reasonable access to you or your service provider’s facilities and records for the purpose of performing any inspection and/or copying of books and/or records deemed appropriate. In such event, you shall pay the costs incurred by TeleCheck or its affiliates for such inspection, including, but not limited to, costs incurred or airfare and hotel accommodations.
31.2. You will provide TeleCheck written notice of any judgment, writ, warrant, or attachment, execution or levy against any substantial part (25% or more in value) of your total assets not later than three (3) days after you becomes aware of the same.

32. Survivability. All representations, warranties, indemnities, limitations of liability and covenants made herein shall survive the termination of this Agreement and shall remain enforceable after such termination.

33. IRS Reporting. Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return for each calendar year beginning January 1, 2011 reporting all payment card transactions and third party network transactions with payees occurring in that calendar year. Accordingly, for applicable transactions, you will receive a Form 1099 reporting your gross transaction amounts for each calendar year. In addition, amounts reportable under Section 6050W are subject to backup withholding requirements. Payors are required to perform backup with holding by deducting and withholding income tax from reportable transactions if (a) the payee fails to provide the payee’s taxpayer identification number (TIN) to the payor, or (b) if the IRS notifies the payor that the TIN (when matched with the name) provided by the payee 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.