VegaFone Law and the Rental of Devices

Transcription

1 BUNDLED SOLUTION MERCHANT AGREEMENT THIS BUNDLED SOLUTION MERCHANT AGREEMENT ( AGREEMENT ) IS ENTERED INTO AS OF THE LAST DATE SET FORTH BELOW (THE EFFECTIVE DATE ) BY AND BETWEEN THE MERCHANT INDENTIFIED BELOW ("MERCHANT") AND VERIFONE, INC. ( VERIFONE ) REGARDING VERIFONE S BUNDLED SOLUTION ( BUNDLE ). VERIFONE IS PROVIDING THE BUNDLE TO MERCHANT THROUGH VERIFONE S RESELLER, ( RESELLER ). PRICING AND OTHER TERMS SPECIFIC TO MERCHANT ARE SET FORTH IN ATTACHMENT A. VERIFONE AND MERCHANT, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS: 1. OVERVIEW. VeriFone s Bundle consists of VeriFone s PAYware Connect Gateway Service with data encryption (including the VeriShield Protect Device Application, if applicable), which may be bundled with one or more VeriFone payment devices (the Devices ) provided on a rental basis, in conjunction with terminal management with automated remote downloads, Data Breach Services, Support Services and Buyer Protection Plan Services, Repair Services or Replacement Services, as applicable, as well as certain optional services, as described in Attachment A and further described in on VeriFone s website at oncomponents( ).pdf (collectively the Services ). Merchant acknowledges that VeriFone has contracted with third parties for certain Devices and Services being provided hereunder, as specified in Attachment A (the Third Party Products and Services ). In the event Reseller is providing any other products or services to Merchant for use with the Bundle, this Agreement does not apply to any such products or services (collectively, the Reseller Services ). 2. SERVICE TERM. A minimum service term applies to each Bundle (which includes the first Device) per client ID, and separately for each additional Device per client ID, as set forth in Attachment A (the Minimum Service Term ). Such Minimum Service Term for a Device commences on the earlier of (a) the date such Device is activated on the PAYware Connect Gateway, or (b) if Merchant is procuring a Bundle that includes rental of a Device, two (2) months after VeriFone ships such Device. At the termination of the Minimum Service Term for each Device, VeriFone shall continue to provide the Bundle for such Device until such time as Reseller deactivates such Device on the PAYware Connect Gateway (the Additional Service Term ); any such deactivation shall be effective immediately. Additional options at the end of each Minimum Service Term are set forth in Attachment A. The Minimum Service Term and any Additional Service Term for each Device shall be referred to herein as the Service Term. Notwithstanding the foregoing, VeriFone reserves the right to terminate the Bundle for a Device during the Additional Service Term by providing thirty (30) days written notice thereof to Merchant. 3. TERM OF AGREEMENT. This Agreement shall commence on the Effective Date and remain in effect for one (1) year. Thereafter, this Agreement shall continue in effect for annual renewals unless one party notifies the other party in writing of non-renewal at least thirty (30) days prior to the renewal date. Expiration of this Agreement under this Section 3 shall not affect existing Service Terms. Such Service Terms shall continue in effect until terminated as set forth in Section 2 above or Section 11 below. Notwithstanding the foregoing, this Agreement may be terminated by VeriFone upon any termination of VeriFone s agreement with Reseller for the Bundle, as set forth in such agreement or upon Reseller s termination of Reseller s agreement with Merchant for the Reseller Services. 4. PAYMENT. Merchant agrees to pay the fees for the Bundle as set forth in Attachment A. VeriFone and its reseller reserves the right to change such fees annually, commencing with the second year of this Agreement, to reflect VeriFone s then current standard fees. Such fee changes shall not apply to Bundles previously procured by Merchant and under an existing Service Term. All fees are non-refundable. All fees are exclusive of applicable taxes, including without limitation sales tax. Applicable taxes will be added to the amount billed to the Merchant. VeriFone s standard billing method is to bill Merchant s credit card monthly for all fees and taxes. Merchant will be required to provide VeriFone with a valid credit card for such purpose, and VeriFone may charge such credit card for all fees and taxes, including any recurring fees. On an exception basis, some merchants may be granted credit terms. If Merchant is granted terms, payment terms for all invoiced amounts will be thirty (30) days from the date of invoice as long as the account is current. For Merchants who are granted terms, VeriFone may also require Merchant to provide a credit card that will be held on file for use to pay any Early Termination Fees (as defined in Section 5(d), or any other fees unpaid after 45 days. VeriFone reserves the right to delegate collection of any fees to Reseller, in which event Merchant will pay Reseller such fees. All payments shall be in U.S. dollars, unless a different currency is specified in Attachment A. Accounts must be current to continue 1 purchasing on credit. If payment cannot be charged to Merchant s credit card or a credit card charge is returned to VeriFone for any reason, or Merchant otherwise fail to pay the charges for the Bundle when due: (a) Merchant shall pay VeriFone interest on the overdue payment from the date due until paid at the rate of 18.0% per annum, or the maximum rate permissible by law, whichever is less, and (b) VeriFone reserves the right to pursue any and all legal remedies to collect the amounts owed by Merchant. In addition, VeriFone shall be entitled to (i) withhold Merchant s access to the Bundle, or any Services therein, until Merchant pays such fees; and/or (ii) deactivate Merchant s Devices and/or (iii) terminate Merchant, in which event the Service Terms for all Merchant s Devices shall terminate, and/or (iv) terminate this Agreement and retain as damages any and all fees paid by Merchant, and/or (v) if a Bundle includes the rental of a Device, at any time enter, with or without legal process, any premises where such Device may be and repossess and remove such Device. Merchant hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, Merchant shall pay to VeriFone any actual additional expenses incurred by VeriFone in collection efforts. 5. DEVICES. If Merchant is procuring a Bundle that includes the rental of Devices, this Section 5 shall apply: (a) VeriFone Property. The Devices shall remain the property of VeriFone. Merchant shall have no right, title or interest therein except as a lessee under this Agreement. Merchant shall keep all Devices free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Devices. (b) Maintenance. Subject to VeriFone s obligation to provide the Services, Merchant shall at its sole expense at all times maintain and preserve the Devices in good operating order, repair and condition, ordinary wear and tear excepted. All replacement parts and repairs at any time made to or placed upon the Devices shall become the property of VeriFone. No other parts which are not readily removable shall be affixed to the Devices without the prior written consent of VeriFone. (c) Loss and Damage. Subject to VeriFone s obligation to provide the Services, Merchant assumes and shall bear the entire risk of loss or damage to the Devices from any use whatsoever from the date of shipment of the Devices by VeriFone to the Merchant site, until such Devices are returned to VeriFone or Reseller. No loss or damage shall relieve Merchant from the obligation to make payments hereunder or to comply with any other obligation under this Agreement. In the event of a loss of a Device (but not damage), Merchant shall immediately notify Reseller thereof. With respect to any Device other than a reader, if such loss occurs during the Minimum Service Term, then Merchant shall be obligated to pay VeriFone the non-return of Equipment fee applicable to such Device as set forth in Attachment A (the Non-Return Fee ). Upon such payment, a new or refurbished replacement Device will be shipped to Merchant. With respect to any reader, VeriFone shall ship the Merchant a new replacement reader, subject to payment of VeriFone s then current standard purchase price for such reader by Merchant. At all times payments for the Bundle for such Device shall continue in effect. (d) Return for Swap. In the event Reseller provides a Device to a Merchant in connection with repair services, and Merchant fails to return the defective Device to Reseller for repair within sixty (60) days thereafter, Merchant shall be obligated to pay to VeriFone the Non- Return Fee for such Device or pay for a replacement reader at VeriFone s then current standard purchase price, as applicable. At all times payments for the Bundle for the replacement Device shall continue in effect. (e) Return for Deactivation/Termination. In the event a Device is deactivated or upon expiration or termination of the Service Term for such Device, Merchant shall return such Device to Reseller. If a Device is not returned within thirty (30) days of such deactivation date or expiration date, Merchant shall be obligated to pay VeriFone the Non- Return Fee for such Device. In any event, tor any Device deactivated during the Minimum Service Term for such Device, Merchant shall be obligated to pay VeriFone the early termination fee for such Device set forth in Attachment A (the Early Termination Fee ). (f) Substitution/End of Life. Notwithstanding anything to the contrary herein, VeriFone reserves the right to end of life any Device. As of the end of life date, Merchant will no longer be able to place new orders for Bundled Services that includes such Device. VeriFone will continue to provide the Services for such Device for the Service Term applicable thereto. However, in connection with providing such Services, VeriFone reserves the right to swap out Devices for new product to address any component supply issues.

2 (g) Delegation. VeriFone reserves the right to delegate collection of the Early Termination Fee to Reseller, in which event Merchant shall pay Reseller such fees. (h) Special Power of Attorney. Merchant hereby grants to VeriFone a purchase money security interest in all Devices shipped to Merchant, as security for the performance by Merchant of all of Merchant s obligations arising under this Agreement. VeriFone is hereby authorized by Merchant to cause this Agreement or any other statement or other instrument in respect of this Agreement showing the interest of VeriFone in the Device, including Uniform Commercial Code financing statements, to be filed and recorded, and Merchant grants to VeriFone the right to execute Merchant s name thereto. 6. RIGHT TO USE (a) PAYware Connect Gateway. Subject to the terms and conditions of this Agreement, and Merchant s payment of the applicable fees, VeriFone hereby grants to Merchant a limited, non-exclusive, nontransferable, non-sublicensable right and license during the Service Term, to (i) access and use the PAYware Connect gateway with the data decryption services; (ii) execute, download and display the features, functions and graphical interface components of PAYware Connect gateway to communicate, transfer and collect data; and (iii) display, download, print and reproduce any documentation provided by VeriFone as reasonably required for the use of the Bundle. VeriFone may modify the PAYware Connect gateway or the data decryption services from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. Merchant s licenses shall terminate upon any termination of this Agreement, or upon any suspension or termination of Merchant s access to the Bundle. (b) Software. Subject to the terms and conditions of this Agreement, and Merchant s payment of the applicable fees, if Merchant has purchased a Bundle that includes software, as set forth in Attachment A, and with respect to any otherwise software provided by VeriFone with the Device (collectively Software ), VeriFone hereby grants to Merchant a limited, non-exclusive, non-transferable, non-sublicensable right and license, solely for Merchant s internal business purposes in the United States during the applicable Service Term for a Device: (i) to use the Software (in object code form only) on such Device; and (ii) to use any related documentation provided by VeriFone for use with the Software. Additional license terms for certain Software may be set forth in Attachment A. (c) Restrictions. Merchant shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Bundle, any component thereof, including without limitation the Software, to any third party. Merchant shall not reverse engineer, decompile, disassemble, translate, modify, alter or create any derivative works based upon the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, without the prior express written consent of VeriFone. Merchant shall not remove from the Devices or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Devices or the Software, without the prior express written consent of VeriFone. Merchant s license rights to access and/or use the PAYware Connect gateway and the Software as set forth in this Section 6 shall immediately terminate upon any expiration or termination of this Agreement, or upon any expiration or termination of the Service Term for the applicable Bundle. (d) Ownership. Merchant acknowledges that the Bundle (including the Devices, Software, Services and any related documentation) and any intellectual property rights relating to or residing therein, including the proprietary electronics, software and technical information of VeriFone therein (the Proprietary Materials ), are proprietary products of VeriFone and that ownership thereof and of all patents, copyrights, trade secrets, trademarks, trade names, mask work rights and other proprietary rights relating to or residing therein shall remain with VeriFone. Other than as set forth in this Section 6, Merchant shall have no right, title or interest therein. VeriFone reserves all rights in the Proprietary Materials and any other VeriFone intellectual property not expressly granted herein. Merchant shall promptly notify VeriFone of any actual or threatened misappropriation or infringement of VeriFone s or its suppliers proprietary rights which comes to Merchant s attention. (e) Transaction Data. Merchant acknowledge that VeriFone may collect and share with its partners data from Merchant s (for statistical and other purposes); however, such data shall not include any cardholder data under Payment Card Industry Security Standard s Council rules, any of Merchant s or a customer s personally identifiable information, Merchant s or a customer s personal financial information or any other data that VeriFone may be prohibited from collecting or sharing under applicable privacy laws. Merchant agrees that VeriFone may use such data for purposes of data analytics and optimizing or otherwise enhancing its products and services. VeriFone will comply with all applicable laws and regulations with respect to any use, sharing and dissemination of this data. In accordance with VeriFone s use of derived data, VeriFone reserves the right to anonymously track and report Merchant s activity inside of the Bundle components. This paragraph shall survive any expiration or termination of this Agreement. 7. MAINTENANCE. VeriFone conducts routine maintenance to the hosted components of the Bundle. Maintenance is generally scheduled during time periods when overall end user online activity is limited. VeriFone reserves the right to shut down the hosted components of the Bundle with no notice should emergency maintenance become necessary. VeriFone reserves the right to remove any user from the Bundle should VeriFone determine, in its sole discretion, that the Bundle has been compromised or in any way used inappropriately. In extreme cases, removal may occur immediately without prior notification. 8. DISCLAIMER OF WARRANTIES. VeriFone provides Merchant with Services as part of the Bundle. EXCEPT FOR SUCH SERVICES, THE BUNDLE IS PROVIDED AS IS. VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT THE BUNDLE WILL MEET THE REQUIREMENTS OF MERCHANT. VERIFONE DOES NOT WARRANT THAT THE OPERATION OF THE BUNDLE WILL BE UNINTERRUPTED OR ERROR FREE. MERCHANT ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. VERIFONE SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY MERCHANT FROM VERIFONE, RESELLER OR FROM ANY OTHER THIRD PARTY ABOUT THE BUNDLE SHALL CREATE ANY WARRANTY. 9. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) RELATING IN ANY MANNER TO THE BUNDLE (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE'S ENTIRE LIABILITY RELATING IN ANY MANNER TO THE BUNDLE, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY MERCHANT FOR THE BUNDLE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE BUNDLE. THE LIMITATIONS ON VERIFONE S LIABILITY SET FORTH IN CLAUSES (B) AND (C) OF THIS SECTION 9 SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN SECTION 8 AND THIS SECTION 9 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE'S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE BUNDLE TO MERCHANT ABSENT SUCH LIMITATIONS. 10. TERMINATION. VeriFone may terminate this Agreement (a) upon twenty (20) days written notice to Merchant if Merchant breaches any of the terms in this Agreement or fails to pay the applicable fees for the Bundle, which breach or failure is not cured within such 20-day period, (b) upon written notice in the event of any termination of Merchant's business or (c) upon ninety (90) days notice to Merchant if VeriFone ceases to offer the Bundles to its customers generally. VeriFone shall have the right to terminate any Third Party Product or Third Party Services that may be included in the Bundle at any time upon written notice to Merchant if VeriFone s agreement with its product supplier or service provider terminates. Upon any such termination, the parties 2

3 may agree to adjust the pricing to reflect the termination of such Third Party Product or Third Party Services. 11. EFFECT OF EXPIRATION OR TERMINATION (a) Effect of Expiration. Upon expiration of this Agreement under Section 3 above: (i) Merchant may no longer place orders for the Bundle, (ii) VeriFone shall continue to provide the Bundle to Merchant through the remaining Minimum Service Terms and any applicable Additional Service Term as set forth in Section 2 above, and (iii) Merchant shall remain obligated to pay the fees for the Bundles for the remaining Minimum Service Terms and any applicable Additional Service Term(s). At the end of each such Service Term, Devices furnished under a rental basis shall be returned to Reseller in accordance with Section 5(e) and all software licenses set forth in Section 6 above shall terminate. (b) Effect of Termination. Upon any termination of this Agreement (but not expiration): (i) VeriFone shall cease providing the Bundle to Merchant; (ii) all Devices furnished under a rental basis shall be returned to Reseller and (iii) all software licenses set forth in Section 6 above shall terminate. If a Device is not returned within thirty (30) days of such termination date, Merchant shall be obligated to pay VeriFone the Non-Return Fee for such Device. In any event, upon any termination of this Agreement (except termination for VeriFone s breach), Merchant shall remain obligated to pay the fees for the Bundle for the applicable Minimum Service Term and any applicable Additional Service Term(s) for all Devices. (c) General. Merchant is responsible for retrieving any data stored with VeriFone prior to any termination date, using the online merchant console made available to Merchant with the PAYware Connect Gateway service. VeriFone does not provide data retrieval services. Notwithstanding anything to the contrary contained in this Agreement, Sections 4 and 5 (until all Devices furnished under a rental basis are returned and applicable fees paid), as well as Sections 6(c), 6(d), 6(e), 8, 9, 11 and 12, shall survive any expiration or termination of this Agreement. days after mailing, addressed and postage prepaid, return receipt requested. IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed and delivered this Agreement to be effective as of the Effective Date. Merchant Name: Address: City, State & Zip Code: By: Title: Date: VeriFone, Inc Gateway Place, Suite 600 San Jose, CA By: Title: Date: 12. GENERAL. This Agreement, including Attachment A, constitutes the entire agreement between VeriFone and Merchant and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof. This Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Each party consents to the exclusive jurisdiction and venue of the appropriate courts in Santa Clara County, California for all disputes arising out of or relating to this Agreement. No amendment or waiver of this Agreement will be binding unless it has been agreed to in writing by both parties. Merchant may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Devices or interest in this Agreement, without VeriFone s prior written consent. Subject to the preceding sentence, this Agreement shall bind Merchant and its permitted successors and assigns. VeriFone may assign or delegate this Agreement, or any of its rights or obligations hereunder, in its sole discretion. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys fees, court costs and other collection expenses, in addition to any other relief it may receive. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give the maximum effect to the parties' intentions as reflected in the provision, and that the other provisions of the Agreement shall remain in full force and effect. Notices made by VeriFone to Merchant under this Agreement that affect VeriFone customers generally (e.g., notices of amended Agreements, updated fees, etc.) may be posted on the VeriFone Merchant Portal or may be provided upon access of the Bundle. Notices made by VeriFone under this Agreement for Merchant or Merchant account specifically (e.g., notices of breach and/or suspension) will be provided to Merchant via the address provided to VeriFone in Merchant registration for the Bundle or in any updated address Merchant provide to VeriFone in accordance with standard account information update procedures VeriFone may provide from time to time. It is Merchant s responsibility to keep Merchant address current and Merchant will be deemed to have received any sent to any such address, upon VeriFone s sending of the , whether or not Merchant actually receive the . VeriFone may also send notices to Merchant by overnight courier or certified mail to the address in VeriFone s customer database, or such other address as shall have been given to VeriFone in writing. Merchant shall send notices to VeriFone at the address set forth below, or such other address as shall have been given to Merchant in writing. All mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three 3

4 Attachment A Merchant-Specific Terms Minimum Service Term: 36 months Fees: Table 1.0 Bundled Solution Pricing Description MX870 MX915 MX925 Encrypting Card Reader Secure Audio Reader VX 600 Gen 2.5 for IPod VX 600 Gen 2.5 for IPad Services Only Bundle Price per Bundle $36.00 Qty of Bundles 2 Priority Exchange (optional) per device NFC Wallet Enablement (optional) per device External Scans and SAQ Tool (optional) per device Bundle Monthly Total Optional $3 Optional Optional Optional Optional Optional N.A. Optional $1 Optional N.A. N.A. Optional Optional N.A. Optional $3 Optional Optional Optional Optional Optional Optional Dial-to-IP Conversion (incremental fee, applies only to dial s) N.A. Notes on Fees: (1) The monthly bundle fee for the Bundled Solution is per device. The fee amount is based on the specific Device model included in each bundle as set forth above (excluding Services only bundles). (2) All optional fees are monthly fees. (3) Bundle price is based on IP s. Dial surcharge is an additional cost per for dial s as set forth above. If Merchant is acquiring the VX680 device under this Agreement, Merchant acknowledges that the VX680 is a wireless device and use of dial backup requires addition of a modem dongle. (4) VeriFone Secure Audio Reader and IDTech encrypting reader. The IDTech encrypting reader is a Third Party Product. (5) Priority Exchange Services are only available to merchants in the United States. (6) The Alternative Payment Applications provided shall be VeriFone s initial production version, unless otherwise agreed by the parties. The Software license terms in Section 6(b) apply to each Alternative Payment Application; for clarity, Merchant receives a license to use one Alternative Payment Application on the applicable Device set forth above for the monthly per Device fee. Each additional Alternative Payment Application on a Device will require an additional instance of such fee. Merchant represents and warrants that Merchant has contracted with the applicable alternative payments or wallet providers for acceptance and use of their services by Merchant with respect to the applicable Alternative Payment Application, to the extent and as required by such alternative payments or wallet provider. In the event that Merchant uses the PayPal Alternative Payment Application, Merchant acknowledges that Merchant may not make any changes to the PayPal forms included in the Form Agent form deck. (7) Scans and SAQ Tool is a Third Party Service. Services in Bundle: Table 1.1 Features Included in Bundles Remote Terminal Management Services with Automated Downloads (a) BPP Services or Repair Services (b) VX Bundles MX Bundles Reader Only Bundles Service Only Bundles Help Desk Support (c) Encryption Support (d) Data Breach Program PWC Gateway Service (unlimited s) (a) Hosted VeriCentre services for VX devices; Hosted VHQ service for MX devices (when available). (b) Buyer Protection Plan (BPP) provided for Countertop devices. Repair Services provided for mobile handheld devices. Replacement services are provided for readers. (c) Support Services are available for VeriFone products and services provided with the Bundles. For any Third Party Product or Service, VeriFone may extend Support Services to such Third Party Product or Service, or the third party may provide direct support to Merchant. The support terms for such Third Party Products and Services are available from VeriFone upon request. 4

5 (d) For VeriFone s VX and MX devices, VeriShield encryption is supported. For other supported device types (e.g. VeriFone Secure Audio Reader, IDTech encrypting reader), other encryption algorithms may be used as approved for use by VeriFone. Non-Return Fee: $120 per Device Early Termination Fee (ETF): The Early Termination Fee applies to Bundles that include rental of a Device. The Early Termination Fee will vary by Device model. The fee shall be the amount set forth in Table 2.0 below, multiplied by the number of months remaining in Minimum Service Term. Table 2.0 Device Model ETF Multiplier MX915 $45.00 MX925 $49.00 Options at End of Minimum Service Term: For Bundles that include rental of a Device, there are currently three (3) options at the end of the Minimum Service Term for each Device: Deactivate the Device and return the Device to VeriFone Leave the Device in service, and continue until deactivation or termination as set forth in Section 2 of the Agreement Make a commitment for a new 36-month Minimum Service Term and receive a new Device as a swap for the existing Device, at the then current prices applicable thereto Apple Terms: If Merchant has acquired a Bundle that includes download of VeriFone s PAYware Mobile application from the Apple itunes Application Store, the following additional terms apply to such software (in addition to the license terms set forth in the Agreement): 1. Merchant agrees and acknowledges that Apple is not responsible for the PAYware Mobile application and its content. In addition, Merchant s use of such PAYware Mobile application downloaded from such location is limited to a non-transferable license to use the PAYware Mobile application on any Apple branded products running ios (collectively "Apple Device(s)") that Merchant owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service. Moreover, VeriFone hereby informs Merchant and Merchant acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the PAYware Mobile application. 2. Apple has no warranty obligation with respect to the PAYware Mobile application and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in this Agreement is the responsibility of Reseller or its licensor. 3. Apple is not responsible for addressing any claims relating to the PAYware Mobile application or Merchant s possession and/or use of the PAYware Mobile application, including, but not limited to: (i) product liability claims; (ii) any claim that the PAYware Mobile application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. 4. Apple is not responsible for any third-party infringement claims that the PAYware Mobile application or Merchant s possession and use of the PAYware Mobile application infringe a third party's intellectual property rights. VeriFone, its licensors and Merchant acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement with respect to any such PAYware Mobile application, and that Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Merchant as a third party beneficiary thereof as set forth herein. Scans and SAQ Terms: If Merchant has acquired a Bundle that includes the Scans and SAQ Tool, the following additional terms apply: 1. During the term of this Agreement, Merchant (including Merchant s service providers) shall have a non-exclusive, nontransferable, right to access and use the Scan and SAQ Tool hosted by VeriFone s service provider (the Hosted Self Assessment Service ). Merchant acknowledges and agrees that (a) any outcome of such service involving security assessment is limited to a point-in-time examination of Merchant s security status with the applicable standards, (b) the outcome of any software assessments and the resulting reports do not constitute any form of representation, warranty or guarantee that Merchant s systems are secure from every form of attack, even if fully implemented and (c) in examining Merchant s compliance or non-compliance status, the Hosted Self Assessment Service software will require accurate, authentic and complete information provided by Merchant. 2. Any use of the Hosted Self Assessment Service software not expressly permitted in this Agreement is prohibited. Merchant acknowledges that such software and its structure, organization, and source code constitute valuable trade secrets of VeriFone s service provider and its suppliers. MERCHANT ACKNOWLEDGES THAT THE PRICING FOR ORDERS FOR BUNDLES, INCLUDING ADDITIONAL DEVICES FOR EXISTING BUNDLES AND APPLICABLE EARLY TERMINATION FEES, PLACED AFTER THE EFFECTIVE DATE SHALL BE AT THE THEN CURRENT PRICING QUOTED BY YOUR RESELLER AND THAT VERIFONE MAY BILL MERCHANT AT SUCH PRICES PURSUANT TO SECTION 4 OF THE AGREEMENT. EACH DEVICE WILL HAVE IT OWN SERVICE TERM IN ACCORDANCE WITH SECTION 2 OF THE AGREEMENT. Merchant Initials 5