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b. IN NO EVENT SHALL ANY PARTY,THEIR AFFILIATES,OR ANY OTHER 35J. Amendment. We may modify any pro ` ``' " `' y
<br /> OFFICERS,DIRECTORS,EMPLOYEES,OR AGENTS BE LIABLE FOR LOST providing written notice to you.You may choo 6.1.D. - Page 45 �-
<br /> PROFITS,LOST BUSINESS OPPORTUNITIES,LOST REVENUES,EXEM- ments of any such change by terminating the Agreement witnin tnirty
<br /> PLARY,PUNITIVE,SPECIAL,INCIDENTAL,INDIRECT OR CONSEQUENTIAL (30)days of receiving notice.If you choose to do so,notify us that you are
<br /> DAMAGES,EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF terminating for this reason so that we may waive any early termination fee
<br /> THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE that might otherwise apply.For purposes of this section,an electronic or
<br /> FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN "click-wrap"notice intended to modify or amend this Agreement and
<br /> ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. which you check"I Accept"or"I Agree"or otherwise accept through an
<br /> c. THIS SECTION GOVERNS THE PROVISION OF SERVICES,AND EXCEPT AS electronic process,shall constitute a writing as required herein.
<br /> EXPRESSLY PROVIDED IN THIS SECTION,PROCESSOR DISCLAIMS ALL 35.8. NoThird Party Beneficiaries. Nothing in this Agreement is
<br /> OTHER REPRESENTATIONS OR WARRANTIES,EXPRESS OR IMPLIED, intended to confer upon any person or entity other than the parties any
<br /> INCLUDING,WITHOUT LIMITATION,ANY WARRANTIES REGARDING rights or remedies,and the parties do not intend for any third parties to
<br /> QUALITY,SUITABILITY,MERCHANTABILITY,OR FITNESS FOR A PAR- be third-party beneficiaries of this Agreement.
<br /> TICULAR PURPOSE OR NONINFRINGEMENT(IRRESPECTIVE OF ANY 35.9. Association Rules. The parties acknowledge that the Visa,
<br /> COURSE OF DEALING,CUSTOM OR USAGE OF TRADE)OF ANY SERVICES MasterCard and Discover Association Rules give Visa,MasterCard and
<br /> OR ANY GOODS PROVIDED INCIDENTALTO THE SERVICES PROVIDED Discover,certain rights to require termination or modification of this
<br /> UNDER THIS SECTION. Agreement with respect to transactions involving Visa,MasterCard and
<br /> , Discover Cards and the Visa,MasterCard and Discover Card systems and to
<br /> investigate you.The parties also acknowledge that issuers of other Cards,
<br /> 35.1. Force Majeure. No party shall be liable for any default or delay in for which we perform services on your behalf,may have similar rights
<br /> the performance of its obligations under this Agreement if and to the under their applicable Association Rules with respect to this Agreement's
<br /> extent such default or delay is caused,directly or indirectly,by(i)fire, applicability to transactions involving such other Cards.
<br /> flood,earthquake,elements of nature or other acts of God;(ii)any
<br /> terrorist attacks or outbreak or escalation of hostilities,war,riots or civil 35.10.Publicity. Client may not use our logo,name,trademark,or service
<br /> disorders in any country;(iii)any act or omission of the other party or any mark,including without limitation,in any advertisements,displays,or press
<br /> government authority;(iv)any labor disputes(whether or not employees' releases without our prior written consent.
<br /> demands are reasonable or within the party's power to satisfy);or(v)the 35.11. You acknowledge and agree that"restricted transactions"as
<br /> nonperformance by a third party for any similar cause beyond the defined in the Unlawful Internet Gambling Enforcement Act of 2006 and
<br /> reasonable control of such party,including without limitation,failures or Regulations GG("Restricted Transactions")issued thereunder are pro-
<br /> fluctuations in telecommunications or other equipment.In any such event, hibited from being processed through your Account or any relationship
<br /> the non-performing party shall be excused from any further performance between you and the Bank.You represent and warrant that you will not
<br /> and observance of the obligations so affected only for as long as such submit such Restricted Transactions for processing through your Account.
<br /> circumstances prevail and such party continues to use commercially In the event we identify a suspected restricted transaction,we may block
<br /> reasonable efforts to recommence performance or observance as soon as or otherwise prevent or prohibit such transaction,we may close the
<br /> practicable.Notwithstanding anything to the contrary in this paragraph, Account or end the relationship,and we may seek any other remedies
<br /> your failure to receive payment of funds or from a third party shall not available to us under this Agreement or otherwise.
<br /> excuse the performance of your obligations to us under this Agreement. 35.12.IRS Reporting. Pursuant to Section 6050W of the Internal Revenue
<br /> 35.2. Compliance with Laws. In performing its obligations under this Code,merchant acquiring entities and third party settlement organizations
<br /> Agreement,each party agrees to comply with all laws and regulations are required to file an information return with the IRS for each calendar
<br /> applicable to it.You further agree to cooperate and provide information year beginning January 1,2011,reporting all payment card transactions
<br /> requested by Servicers,as Servicers determine necessary,to facilitate and third party network transactions with merchants occurring in that
<br /> Servicers compliance with any applicable law including without limitation calendar year.Accordingly,you will receive a Form 1099 reporting your
<br /> the rules and regulations promulgated by the Office of Foreign Assets gross transaction amounts for each calendar year beginning with
<br /> Control of the US Department of the Treasury. transactions processed in calendar year 2011.
<br /> 35.3. Notices. Except as otherwise specifically provided,all notices and In addition,amounts reportable under Section 6050W are subject to
<br /> other communications required or permitted hereunder(other than those backup withholding requirements.We are required to perform backup
<br /> involving normal operational matters relating to the processing of Card withholding by deducting and withholding income tax from reportable
<br /> transactions)shall be in writing,shall be sent by mail,courier or facsimile transactions if(a)you fail to provide your taxpayer identification number
<br /> (facsimile notices shall be confirmed in writing by courier),if to you at (TIN)to the us,or(b)the IRS notifies us that the TIN(when matched with
<br /> your address appearing in the Application,and if to us at our address the name)provided by you is incorrect.Accordingly,to avoid backup
<br /> appearing on the Additional Important Information page,with a copy to withholding from your daily merchant funding amount,it is very important
<br /> Attention:General Counsel's Office,3975 N.W.120th Avenue,Coral Springs, that you provide us with the correct name and TIN that you use when
<br /> FL 33065,and shall be deemed to have been given(i)if sent by mail or filing the tax return that includes the transactions for your business.
<br /> courier,when mailed or delivered,and(ii)if sent by facsimile machine, PLEASE NOTE THATVARIOUS STATES MAY HAVE ADDITIONAL
<br /> when the courier confirmation copy is actually received.Notice given in REPORTING/WITHHOLDING REQUIREMENTS.
<br /> any other manner shall be effective when actually received.
<br /> 35.4. Headings. The headings contained in this Agreement are for
<br /> convenience of reference only and shall not in any way affect the meaning
<br /> or construction of any provision of this Agreement.
<br /> 35.5. Severability. The parties intend every provision of this Agreement
<br /> to be severable.If any part of this Agreement is not enforceable,the
<br /> remaining provisions shall remain valid and enforceable.
<br /> 35.6. Entire Agreement;Waiver. This Agreement constitutes the entire
<br /> Agreement between the parties with respect to the subject matter thereof
<br /> and supersedes any previous agreements and understandings.A party's
<br /> waiver of a breach of any term or condition of this Agreement shall not be
<br /> deemed a waiver of any subsequent breach of the same or another term
<br /> or condition.
<br /> WFB1301 3 7
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