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1.17. Cha -' '- - """"" " �les. Notwithstanding anything to notice by regular mail and such notice shall be deemed effective 10 days
<br /> the contrar�6.�.D. - Pag@ 56 :ontinued performance of all or any after mailing.The parties'addresses may be changed by written notice to
<br /> portion of tne ooiigations or ieie�neck becomes impossible or illegal due the other party as provided herein.
<br /> to changes in applicable federal,state or local laws or regulations,or by 1.23. Force Majeure. TeleCheck shall not be held responsible for any
<br /> NACHA Rules,as determined byTeleCheck in its reasonable discretion, delays in or failure or suspension of service caused by mechanical or
<br /> TeleCheck may,upon 30 days written notice to Subscriber,request to poWer failure,computer malfunctions(including,without limitation,
<br /> modify or discontinue TeleCheck's performance of its obligations to the software,hardware and firmware malfunctions),transmission link failures,
<br /> extent necessary to avoid a violation of law or NACHA Rules or,ifTeleCheck communication failures,failure,delay or error in clearing or processing a
<br /> chooses in its sole discretion to incur additional expenses to comply, transaction through the ACH Network or Federal Reserve system,failure,
<br /> request to increase its fees to cover the additional cost of compliance. delay or error by any third party or any other third party system,strikes,
<br /> Additionally,if any fees or charges to TeleCheck increase for processing labor difficulties,fire,inability to operate or obtain service for its
<br /> transactions through the ACH Network,TeleCheck may request to increase equipment,unusual delays in transportation,act of God or other causes
<br /> its fees to cover such increases.IfTeleCheck makes such request and the reasonably beyond the control ofTeleCheck.
<br /> parties are unable to agree upon corresponding changes to the terms and
<br /> conditions of this Agreement within 30 days of such request,TeleCheck 1.24. Compliance with Laws,Governing Law and Integration.
<br /> may terminate this Agreement upon 30 days written notice. The parties agree to comply with all applicable federal and state laws,
<br /> regulations and rules,including NACHA Rules,relating to the services
<br /> 1.18. Updating Information. With regard to any Return Items submitted provided hereunder.Subscriber certifies that it has not been suspended
<br /> to TeleCheck,Subscriber shall promptly notifyTeleCheck if:(a)a Consumer by NACHA or any credit card association,or cancelled by an ODFI or Third
<br /> makes any payment to Subscriber;(b)there is a return of goods or services, party Sender(as defined in the NACHA Rules).This Agreement,plus any
<br /> in whole or in part;or(c)there is a dispute of any amount,notice of bank- addenda attached hereto,constitutes the entire Agreement between the
<br /> ruptcy or any other matter. parties concerning subject matter hereof and supersedes all prior and con-
<br /> 1.19. Confidentiality. Subscriber shall maintain the confidentiality of temporaneous understandings,representations and agreements in relation
<br /> this Agreement and any information provided to Subscriber byTeleCheck, to its subject matter.THIS AGREEMENT SHALL BE GOVERNED BY AND
<br /> including,without limitation,TeleCheck Operational Procedures,pricing CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
<br /> or other proprietary business information,whether or not such information WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
<br /> is marked confidential.Such information shall not be used except as required 1.25. Severability and Interpretation. If any provision,in whole or in
<br /> in connection with the performance of this Agreement or disclosed to part,of this Agreement is held invalid or unenforceable for any reason,the
<br /> third parties. invalidity shall not affect the validity of the remaining provisions of this
<br /> 1.20. No Resale,Assignment of Agreement. This Agreement is solely Agreement,and the parties shall substitute for the invalid provision a
<br /> between TeleCheck and Subscriber.Subscriber shall not provide or resell valid provision which most closely approximates the intent and economic
<br /> directly or indirectly,the services to any other third party.This Agreement effect of the invalid provision.Neither this Agreement,nor any addenda or
<br /> may be assigned by Subscriber only with the prior written consent of TeleCheck Operational Procedures,shall be interpreted in favor or against
<br /> TeleCheck.TeleCheck may freely assign this Agreement,its rights,benefits any party because such party or its counsel drafted such document.No
<br /> or duties hereunder.Subject to the foregoing,this Agreement shall inure course of dealing,usage,custom of trade or communication between the
<br /> to the benefit of and be binding upon the successors and assigns of parties shall modify or alter any of the rights or obligations of the parties
<br /> TeleCheck and Subscriber's heirs,executors,administrators,successors under this Agreement.This Agreement is solely for the benefit of TeleCheck
<br /> and assigns. (and its affiliates)and Subscriber and no other person or entity shall have
<br /> 1.21. Indemnification. In the event Subscriber(a)fails to strictly comply, any right,interest or claim under this Agreement.
<br /> in whole or in part,with any:(i)terms and conditions of this Agreement 1.26. Amendment and Waiver.No modification,amendment or waiver
<br /> and any addenda hereto or TeleCheck Operational Procedures;or(ii) of any of the terms and conditions of this Agreement shall be binding upon
<br /> applicable law,rules,regulations and NACHA Rules,or(b)makes any false TeleCheck unless made in writing and approved and signed by TeleCheck.
<br /> or inaccurate representation,Subscriber shall indemnify,defend and hold No waiver of any rights hereunder shall be deemed effective unless in
<br /> harmless the TeleCheck Parties from and against any and all Claims arising writing executed by the waiving party.No waiver by any party of a breach
<br /> therefrom,including payment of all costs and reasonable attorneys'fees for or any provision of this Agreement shall constitute a waiver of any prior or
<br /> actions taken byTeleCheck,whether by suit or otherwise,to defend the subsequent breach of the same or any other provision of this Agreement.
<br /> TeleCheck Parties from any Claim related thereto or to preserve or enforce The parties agree that no failure or delay in exercising any right hereunder
<br /> TeleCheck's rights under this Agreement.In the event of any legal action shall operate as a waiver of any such right.All of TeleCheck's rights are
<br /> with third parties or regulatory agencies concerning any transaction or cumulative,and no single or partial exercise of any right hereunder shall
<br /> event arising under this Agreement,Subscriber shall:(a)promptly notify preclude further exercise of such right or any other right.
<br /> TeleCheck of the Claims or legal action;(b)reasonably cooperate with 1.27. Damages. Upon Subscriber's breach of this Agreement,including
<br /> TeleCheck in the making of any Claims or defenses;and(c)provide any unauthorized termination,TeleCheck shall be entitled to recover from
<br /> information,assist in the resolution of the Claims and make available at Subscriber liquidated damages in an amount equal to ninety percent
<br /> least one employee or agent who can testify regarding such Claims or (90%)of the aggregate Monthly Minimum Fees and Monthly Statement/
<br /> defenses.Upon written notice from TeleCheck to Subscriber,Subscriber processing Fees payable for the unexpired portion of the then current
<br /> shall immediately undertake the defense of such Claim by representatives term of this Agreement.TeleCheck and Subscriber hereby acknowledge
<br /> of its own choosing,subject to TeleCheck's reasonable approval;provided, and agree that,after giving due consideration to the costs TeleCheck may
<br /> however,thatTeleCheck shall have the right to control and undertake incur by reason of Subscriber's breach of this Agreement,to the possibility
<br /> such defense by representatives of its own choosing,but at Subscriber's thatTeleCheckwill not be able to mitigate its damages,and to the expense
<br /> cost and expense,if the Claim arises out of patent,trademark,or other savings thatTeleCheck may obtain by not having to provide services or
<br /> intellectual property rights or laws. maintenance,the liquidated damages specified herein constitute a realistic
<br /> 1.22. Notices. Any notice or other communication required or permitted pre-estimate of the loss to TeleCheck in the event of such breach and shall
<br /> to be given hereunder shall be delivered by facsimile transmission,over- not be construed as a penalty.
<br /> night courier or certified or registered mail(postage prepaid return receipt 1.28. Survivability. All representations,warranties,indemnities,limita-
<br /> requested)addressed or transmitted to the party to be notified at such tions of liability and covenants made herein shall survive the termination
<br /> party's address or number as provided on the face of this Agreement or at of this Agreement and shall remain enforceable after such termination.
<br /> such party's last known address or number.Any notice delivered hereunder
<br /> shall be deemed to have been properly given(a)upon receipt if by facsimile
<br /> transmission,as evidenced by the date of transmission indicated on the
<br /> transmitted material,(b)upon receipt if deposited on a prepaid basis with
<br /> a nationally recognized overnight courier for next business day delivery,
<br /> and(c)on the date of delivery indicated on the return receipt,if mailed by
<br /> certified or registered mail.TeleCheck shall also be permitted to provide
<br /> WFB1301 42
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