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32.11.IndE "'--"- " ' "` iemnify and hold us harmless from 32.16.Should your terminal become inoperable due to manufacturer's
<br /> and against 6.�.D. - Pag@ 42 �s,damages and expenses resulting defect in our reasonable determination,we will provide you with a replace-
<br /> from(a)the operatfon,use,conditfon,liens against,or return of the ment unit at no cost for the term of your lease so long as you are actively
<br /> Leased Equipment or(b)any breach by you of any of your obligations processing with us.If the leased equipment is obsolete or defective due
<br /> hereunder,except to the extent any losses,liabilities,damages or to operator error,you can upgrade to a new unit by entering into a new
<br /> expenses result from our gross negligence or willful misconduct. lease contract.For such replacements contact the POS Help Desk.
<br /> 32.12.Default;Remedies.
<br /> a. If any debit of your Settlement Account initiated by us is rejected when 33.1. Choice of Law. Our Agreement shall be governed by and
<br /> due,or if you otherwise fail to pay us any amounts due hereunder construed in accordance with the laws of the State of New York(without
<br /> when due,or if you default in any material respect in the performance
<br /> or observance of any obligation or provision of this Lease Agreement regard to its choice of law provisions).
<br /> or any agreement with any of our affiliates or joint ventures,any such 33.2. Venue. We have substantial facilities in the State of New York and
<br /> event shall be a default hereunder.Without limiting the foregoing,any many of the services provided under this Agreement are provided from
<br /> default by you under a processing Agreement with us or with an these facilities.The exclusive venue for any actions or claims arising under
<br /> affiliate or joint venture to which we are a party will be treated as a or related to this Agreement shall be in the appropriate state or federal
<br /> default under this Lease Agreement.Such a default would include a court located in Suffolk County,New York.
<br /> default resulting from early termination of the Merchant Agreement. 33.3. Waiver of Jury Trial. ALL PARTIES IRREVOCABLY WAIVE ANY AND
<br /> b. Upon the occurrence of any default,we may at our option,effective ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL
<br /> immediately without notice,either(i)terminate this lease and our PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER
<br /> future obligations under this Lease Agreement,repossess the Leased THIS AGREEMENT.
<br /> Equipment and proceed in any lawful manner against you for
<br /> collection of all charges that have accrued and are due and payable,or
<br /> (ii)accelerate and declare immediately due and payable all monthly Gift Card Services are provided to you by Processor,and for the purposes
<br /> lease charges for the remainder of the applicable lease period together of this section,the words"we;"'our;'and"us"refer only to the Processor
<br /> with the fair market value of the Leased Equipment(as determined by and not to the Bank.The terms and conditions set forth in this Section
<br /> us),not as a penalty but as liquidated damages for our loss of the
<br /> bargain.Upon any such termination for default,we may proceed in 9overn the provision of Gift Card Services.
<br /> any lawful manner to obtain satisfaction of the amounts owed to us 34.1. Definitions. Capitalized terms used herein shall have the meanings
<br /> and,if applicable,our recovery of the Leased Equipment,including given to such terms as set forth in this Section 34.1 or as defined in the
<br /> entering onto your premises to recover the Leased Equipment.In any Glossary or elsewhere in this Section.
<br /> case,you shall also be responsible for our costs of collection,court a. "ACH"means the Automated Clearing House system.
<br /> costs as well as applicable shipping,repair and refurbishing costs of
<br /> recovered Leased Equipment.You agree that we shall be entitled to b. "Affiliate"means,with respect to either party,any entity that controls,
<br /> recover any amounts due to us under this Lease Agreement by is controlled by or is under common control with such party.
<br /> charging your Settlement Account or any other funds of yours that c. "Affiliated Issuer(s)"means each Client Affiliate and/or franchisee that
<br /> come into our possession or control,or within the possession or enters into an Affiliated Issuer Agreement,in the form required and
<br /> control of our affiliates orjoint ventures,or by setting off amounts that provided by Processor.
<br /> you owe to us against any amounts we may owe to you,in any case
<br /> without notifying you prior to doing so.Without limiting the foregoing, d. "Database"means the database on which Gift Card Data for each Gift
<br /> you agree that we are entitled to recover amounts owed to us under Card issued under the Program is maintained.
<br /> this Lease Agreement by obtaining directly from an affiliate or joint e. "Designated Location"means any store or other place of business
<br /> venture to which we are a party and with which you have entered into (including a direct marketing program or Internet site),located in the
<br /> an Merchant Agreement any funds held or available as security for U.S.A.,and at or through which Client issues Gift Cards and/or processes
<br /> payment under the terms of the Merchant Agreement,including funds transactions using Gift Cards issued under the Program.Designated
<br /> available under the"Reserve Account;Security Interest"section of the Locations include any help desk or IVR through which transactions are
<br /> Merchant Agreement,if applicable. processed under the Program.
<br /> 32.13.Assignment. You may not assign or transfer this Lease Agreement, f. "Gift Card"means an encoded device that accesses Gift Card Data
<br /> by operation of law or otherwise,without our prior written consent.For maintained in the Database.
<br /> purposes of this Lease Agreement,any transfer of voting control of you or
<br /> your parent shall be considered an assignment or transfer of this Lease 9• '�Gift Card Data"means the current value and record of transactions
<br /> Agreement.We may assign or transfer this Lease Agreement and our corresponding to each Gift Card issued under the Program.
<br /> rights and obligations hereunder,in whole or in part,to any third party h. "Gift Card Equipment"means any POS Terminal,software or other
<br /> without the necessity of obtaining your consent.We intend to assign this similar telecommunications equipment that has been programmed
<br /> Lease Agreement shortly after its execution to First Data Merchant and certified to Processor's specifications in order to transmit Gift Card
<br /> Services Corporation. Data and process online transactions under the Program.
<br /> 32.14.Lease Guaranty. No guarantor shall have any right of subrogation i. "Gift Card Holder"means any person in possession of or that uses a
<br /> to any of our rights in the Leased Equipment or this Lease Agreement or Gift Card.
<br /> against you,and any such right of subrogation is hereby waived and
<br /> released.All indebtedness that exists now or arises after the execution of 1• '"Gift Card Number"means the identifying number of a Gift Card.
<br /> this Lease Agreement between you and any guarantor is hereby k. "Gift Card Production Company"means a company selected and
<br /> subordinated to all of your present and future obligations,and those of retained by Processor or Client to produce Gift Cards and provide
<br /> your guarantor,to us,and no payment shall be made or accepted on such related products or services for the Program.
<br /> indebtedness due to you from a guarantor until the obligations due to us I. "IVR"means an automated Interactive Voice Response system accessed
<br /> are paid and satisfied in full.
<br /> via a toll-free telephone number.
<br /> 32.15.Notices. All notices must be in writing,and shall be given(a)if
<br /> sent by mail,when received,and(b)if sent by courier,when delivered; m."PIN"means a Personal Identification Number.
<br /> if to you at the address appearing on the Merchant Agreement,and if to n. "POS Terminal"means an electronic Point-Of-Sale terminal placed in a
<br /> us at 4000 Coral Ridge Drive,Coral Springs,Florida 33065.Attn:Lease Designated Location which is connected to Processor's system via
<br /> Department.Customer Service toll free number 1-877-257-2094. telephone lines and is designed to swipe Gift Cards.
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