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Issuers,z '"'�' ` " `" `'y or indirectly either itself or through termination of the Gift Card Services;provided,however,that Processor
<br /> a cn�rd p 6.1.D. - Page 44 other proprietary,closed network, shall not activate any new Gift Cards after the effective date of
<br /> online Gitt c.ard or similar access device. termination.Processor's obligation to provide continuing Services after
<br /> k. Client may allow Affiliated Issuers to participate in the Program;pro- termination is contingent upon Client's agreement to pay for such
<br /> vided,however that(i)Client shall be responsible for ensuring that all Services and to conduct its operations in accordance with the terms of
<br /> Affiliated Issuers comply with the terms and conditions of this Section this Section,and Processor may require advance payment for some
<br /> and the separate Affiliated Issuer Agreement,and(ii)Client shall be portion or all of the estimated cost of such Services to be provided
<br /> jointly and severally liable for all fees and other amounts payable to after termination.
<br /> Processor in connection with any activities of Affiliated Issuers related d. Termination of the Gift Card Services shall not affect Client's obligation
<br /> to this Section,including but not limited to Gift Card transactions. (including any obligation incurred by an Affiliated Issuer)to pay for
<br /> I. Client is responsible for any settlement of funds among Affiliated services rendered or obligations due or owing under this Section prior
<br /> Issuers and Designated Locations. to termination.
<br /> 34.4. Fees and Payment. e. The provisions of Sections 343(f),(g),(h),(i),(k)and(I),and Sections
<br /> a. Client shall pay Processor the fees set forth on the Gift Card Set-Up 34.4,34.5(b),34.5(c),34.5(d),34.6 and 34.7 hereof shall survive any
<br /> Form.Client shall also be responsible for the payment of any taxes termination or expiration to effectuate their intent shall survive
<br /> imposed by any applicable governmental authority in connection with termination of the Gift Card Services.
<br /> any products or services covered by this Section(other than those taxes 34.6. Indemnification.
<br /> based solely on the net income of Processor).All fees for the Services a. Client shall indemnify and hold harmless Servicers,their directors,
<br /> shall be paid via an ACH transfer of funds from a bank account desig- officers,employees,agents and Affiliates from and against any and all
<br /> nated by Client.To authorize the ACH transfers,Client agrees to third party claims,losses,liabilities,damages and expenses,including
<br /> execute the ACH Authorization on the Gift Card Set-Up Form.In the reasonable attorneys'fees,(collectively"Claims")to the extent that any
<br /> event that fees cannot be collected from Client as set forth above, such Claim is caused by or arises out of:(i)any failure of Client or an
<br /> Processor reserves and may exercise all other rights to collect any fees
<br /> due.All fees not paid within thirty(30)days of the date of Processor's Affiliated Issuer to comply with any law or regulation applicable to the
<br /> merchant statement setting forth such fees shall incur interest at the Program;(ii)any dispute between Client and any Affiliated Issuer,or
<br /> rate equal to the lesser of(i)ten percent(10%)per annum,or(ii)the Client and any Gift Card Holder,or an Affiliated Issuer and any Gift Card
<br /> maximum rate permitted by applicable law from the date on which Holder,including,without limitation,any dispute regarding the goods
<br /> payment should have been made until the date on which Processor or services purchased using a Gift Card or the payment of any amounts
<br /> receives the payment. owed or alleged to be owed by one or more such persons to any other
<br /> such persons;(iii)any instructions or procedures that Client may
<br /> b. Processor may increase rates from time to time to the extent necessary provide to Processor in connection with the Program and Processor's
<br /> to pass through increases in the costs of the underlying goods and compliance therewith;(iv)any actual or alleged loss or theft of,
<br /> services used or provided by Processor in connection with the provision alteration or damage to,or fraudulent,improper or unauthorized use
<br /> of Services.Any such adjustments shall become effective upon written of any Gift Card,Gift Card Number or PIN;(v)use or operation of Gift
<br /> notice to Client. Card Equipment by Client or an Affiliated Issuer;and(vi)any Claim or
<br /> c. Processor may also increase rates for any other reason upon 30 days' action against Servicers for actual or alleged infringement of any
<br /> written notice to Client. patent,copyright,trademark,trade secret or other proprietary right of
<br /> 34.5. Termination. any person arising in connection with the production of Gift Cards or
<br /> a. The provision of Gift Card Services may be terminated at any time: related products for Client using artwork,designs,specifications or
<br /> (i)by either party in the event that the other materially breaches any concepts provided by Client.
<br /> term or condition of this Section and fails to cure such breach within b. Processor shall indemnify and hold harmless Client and its directors,
<br /> thirty(30)days of written notice of such breach from the non-breaching officers,employees,agents and Affiliates from and against any and all
<br /> party;(ii)by Processor if Client fails to pay any amount due within ten third party Claims to the extent that any such Claim is caused by or
<br /> (10)Business Days after written notice to Client of its failure to pay arises out of:(i)any failure of Processor to comply with any law or
<br /> such amount;(iii)by Processor upon written notice to Client in the regulation applicable to Processor's business as a service provider;or
<br /> event that Client's operation of the Program results in a violation of law (ii)any error in the Database,unless the error is caused by incorrect
<br /> or regulation(by Client,an Affiliated Issuer or Processor);(iv)by Client information submitted by Client or is otherwise made in accordance
<br /> if Processor increases its rates under Section 34.4(c)above and Client with Client's instructions.
<br /> provides thirty(30)days written notice of termination within thirty(30) 34.7. Patents,Copyrights,Intellectual Property,etc. Client shall have
<br /> days of receiving notice of said increase;or(v)by either party upon
<br /> written notice to the other after the filing by the other of any petition no interest whatsoever,including copyright interests,franchise interests,
<br /> in bankruptcy or for reorganization or debt consolidation under the license interests,patent rights,property rights or other interest in the
<br /> federal bankruptcy laws or under any comparable law,or upon the Services provided hereunder.These provisions are not to be construed as
<br /> other party's making of an assignment of its assets for the benefit of granting to Client any patent rights or patent license in any patent,which
<br /> creditors,or upon the application of the other party for the appoint- may be obtained in respect of the Services.Artwork created by Processor
<br /> ment of a receiver or trustee of its assets. on behalf of Client remains the property of Processor.Client retains
<br /> ownership of any artwork supplied to Processor.
<br /> b. If(i)the Gift Card Services are terminated for any reason other than
<br /> Processor's material breach prior to the expiration of the initial term, 34.8. Limitation of Liability;Disclaimer of Warranties.
<br /> or(ii)Client suspends or terminates the Program prior to the expiration a. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENTTO THE CON-
<br /> of the initial term except as provided for in Section 34.5(a)(iv).Nothing TRARY,SERVICERS'CUMULATIVE AGGREGATE LIABILITY FOR ANY LOSSES,
<br /> in this subsection shall prohibit or limit Processor's right to recover CLAIMS,SUITS,CONTROVERSIES,BREACHES,OR DAMAGES ARISING
<br /> damages or any other amounts due and owing Processor in the event OUT OF RELATED TO THIS SECTION FOR ANY CAUSE WHATSOEVER AND
<br /> that the Gift Card Services are terminated by Processor due to a breach REGARDLESS OF THE FORM OF ACTION OR LEGALTHEORY,SHALL BE
<br /> by Client or shall be deemed to waive or otherwise limit Client's LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY CLIENT AND,
<br /> obligations pursuant to Section 34.6(a). IN ANY EVENT,SHALL NOT EXCEED THE LESSER OF(I)THE AMOUNT OF
<br /> c. If requested by Client,Processor may,in its sole and absolute discretion, FEES PAID TO PROCESSOR BY CLIENT UNDER THIS SECTION DURING
<br /> continue to provide the Services for all previously issued and unexpired THETWELVE(12)MONTHS PRIORTOTHE DATETHATTHE LIABILITY
<br /> (if applicable)Gift Cards for up to twelve(12)months following the ARISES,OR(II)TWENTYTHOUSAND DOLLARS($20,000).
<br /> WFB1301 30
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