Merchant Gateway Services Agreement

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1 Merchant Gateway Services Agreement This Merchant Gateway Services Agreement ( Agreement ) is made as of, 20 ( Effective Date ), by and between American POS Alliance, LLC ( Reseller ) and the merchant identified in the signature box below ( Merchant ). Reseller provides payment gateway and related services to merchants. Merchant desires to obtain the payment gateway services from Reseller. Therefore, for adequate consideration the sufficiency of which is acknowledged, the parties agree as follows: I. Definitions Fees means those fees set forth on the attached Exhibit A, Fees, owed to Reseller for the services performed under this Agreement. Gateway Services means the delivery of payment transaction authorization and settlement data to and from Merchants and transaction processors, and related services provided by Reseller. Security Standards means the Payment Card Industry Data Security Standard established by PCI Co., the Visa Cardholder Information Security Program, the MasterCard Site Data Protection Program and all security protocols and security advisories required by Visa, MasterCard, Discover, any debit network, and Reseller. Service Provider means that third party that provides the Gateway Services to Merchant. II. Merchant s Obligations 2.1 ID and Passwords. Merchant will select an ID and password to enable Merchant to access the Gateway Services. Merchant will restrict access to such ID s and passwords and will disclose such IDs and passwords to its employees and agents on an as-needed basis, only as necessary for the use of the Gateway Services. 2.2 Data Collection. Merchant is solely responsible for the security of data residing on the servers owned, controlled or operated by Merchant. Merchant will comply with all state and federal laws, including without limitation laws regarding disclosure to customers on how and why personal information and financial information is collected and used. Merchant agrees not to use, disclose, sell or disseminate any cardholder information obtained in a card transaction except for purposes of authorizing, completing and settling card transactions and resolving chargebacks, retrieval requests or similar issues involving card transactions. Merchant acknowledges that neither Reseller nor Service Provider shall be liable for any improperly processed transaction or illegal or fraudulent access to Merchant s account, Merchant s IDs and passwords, any end-user data or transaction data. 2.3 Data Privacy and Security. Merchant will comply with the Security Standards. Merchant warrants that its server and electronic systems are secure from breach or intrusion by unauthorized third parties and will hold Reseller and Service Provider harmless for a breach of Merchant s systems. If there is a security breach of Merchant s system and/or access to end-user data or transaction data by an unauthorized third party, Merchant shall notify Reseller promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. III. Reseller s Obligations 3.1 Gateway Services. Reseller shall, or shall arrange for Service Provider to, provide Merchant with the Gateway Services. Reseller and Service Provider may transfer data as necessary in order to provide Page 1

2 and manage the Gateway Services. Reseller and Service Provider will use commercially reasonable efforts to safeguard data; provided however, Reseller and Service Provider do not warrant that end-user data and transaction data will be transported without unauthorized interception or modification or that data will not be accessed or compromised by unauthorized third parties. Reseller and Service Provider are not obligated to store, retain, report or otherwise provide any copies of or access to any records of transactions or end-user data collected or processed under this Agreement. 3.2 Ownership and Use of the Gateway Services. Merchant shall use the Gateway Services only for bona fide transactions between Merchant and a cardholder. Merchant shall not allow any third party to use the Gateway Services. Service Provider retains all right, title and interest in and to the Gateway Services and all related documentation and Merchant shall not take any action inconsistent with such ownership. The Gateway Services, documentation and related confidential information may be protected by copyright, trade secret and other intellectual property laws. Merchant acknowledges that Merchant shall have no intellectual property or ownership rights in the Gateway Services. Merchant will not contest the ownership of the Gateway Services, and will cooperate in defending Service Provider s ownership rights to the Gateway Services. The restrictions in this Agreement shall not be construed to supersede or eliminate any rights which Service Provider may have under applicable laws pertaining to trade secrets. Merchant shall not alter or remove any printed or on-screen copyright, or other legal notices contained in the Gateway Services and the related documentation. Merchant shall not: (A) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Gateway Services; (B) circumvent any technological measure that controls access to the Gateway Services; or (C) use the Gateway Services other than pursuant to the terms of this Agreement. IV. Fees. For each transaction, Merchant will pay to Reseller the Fees. The Fees may be amended by Reseller upon five days prior notice to Merchant. Merchant will pay all Fees and other amounts owed to Reseller under this Agreement by the Invoice Due Date. Failure to pay amounts owed to Reseller under this agreement on time may result in an interruption of service and a service reactivation fee. Merchant will promptly examine all transactions, and will notify Reseller in writing within 30 days of any error. Unless Reseller is notified of an error within 30 days of the date of the transaction, Reseller shall be under no obligation to adjust such amounts. V. Mutual Obligations 5.1 Representations and Warranties. Each party represents and warrants to the other on the Effective Date and throughout the term of this Agreement that: (A) it is a sole proprietor, partnership, corporation or limited liability company organized, validly existing and in good standing under the laws of the State where its principal office is located; (B) it has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement; (C) its performance of this Agreement will not violate any applicable law or regulation or any agreement to which that party may be bound; (D) it will comply with all applicable state and federal laws and regulations and card association requirements; and (E) neither it nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement. 5.2 Confidential Information. Neither Parties will use for any purpose other than contemplated by this Agreement, will not disclose to any third party, and will cause its employees, independent contractors, and agents to not use or disclose, any term of this Agreement, and any information learned about the business practices and ways in which either party conducts business that is not generally known to others, including without limitation details about the Gateway Services, any data or Page 2

3 information that is a trade secret or competitively sensitive such as computer software and documentation, data and data formats, and financial information. The parties will inform the other party of any request by a court or government agency to disclose such information to enable the other party to waive the provisions of this Section or defend the nondisclosure. This Section will survive termination of this Agreement. In the event of a breach of this Section, the parties agree that the parties will suffer irreparable harm, and that the amount of monetary damages would be impossible to calculate. Thus, the parties will be entitled to injunctive relief in addition to any other rights to which it may be entitled, without the necessity of proof of actual damages VI. Term and Termination 6.1 Term. This Agreement will become effective on the Effective Date, will remain in effect for a period of 3 years ( Initial Term ), and will automatically renew for additional successive 1 year periods ( Renewal Term ) unless terminated in accordance with the provisions of this Agreement. 6.2 Termination. Notwithstanding the above, the parties will have the following rights: (A) Reseller may terminate this Agreement upon written notice if Service Provider or any card organization or entity having jurisdiction over Reseller s business requires Reseller to terminate the Gateway Services provided to Merchant; (B) Either party may terminate this Agreement at the end of the Initial Term or any Renewal Term upon written notice of termination to the other party at least 30 days prior to the end of the Initial Term or any Renewal Term; (C) Reseller may terminate this Agreement if a trustee, conservator, receiver or similar fiduciary is appointed for Merchant or substantially all of Merchant s assets; and (D) Either party may terminate this Agreement if the other party fails to observe any material obligation specified in this Agreement or the other party engages in any act or omission that may damage the reputation or business of the other party or Service Provider. VII. Indemnification and Limitation of Liability 7.1 Indemnification. Each party agrees to indemnify, defend, and hold harmless Service Provider, the other party, its employees, directors, managers, members, officers or agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys' fees and court costs) which may be claimed by a third party as a result of: (A) any failure by the other party or any employee, agent, or affiliate of the party to comply with the terms of this Agreement; (B) any warranty or representation made by the other party being false or misleading; (C) negligence or willful misconduct of the party or its subcontractors, agents or employees, or (D) any alleged or actual violations by the other party or its subcontractors, employees, or agents of any card organization rules, laws or regulations. This Section will survive termination of this Agreement. 7.2 Limitation of Liability. The liability, if any, of Reseller or Service Provider under this Agreement for any claims, costs, damages, losses and expenses for which they are or may be legally liable, whether arising in negligence or other tort, contract, or otherwise, will not exceed in the aggregate the amount of Fees paid to Reseller for the preceding 3 month period, measured from the date the liability accrues. In no event will either party or Service Provider be liable for indirect, special, or consequential damages even if advised of that possibility. Neither party nor Service Provider will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party or of Service Providers. This Section will survive termination of this Agreement. Page 3

4 7.3 Disclaimer. The Gateway Services are provided on an as is, as available basis without any representations or warranties. Reseller does not represent or warrant the Gateway Services will be available, accessible, uninterrupted, timely, secure, accurate, complete or entirely error-free. Merchant may not rely on any representation or warranty regarding the Gateway Services by any third party in contravention of the foregoing statements. Reseller specifically disclaims all representations, warranties and conditions whether express or implied, arising by statute, operation of law, usage of trade, course of dealing, or otherwise, including but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, non-infringement, or title with respect to the Gateway Services. Merchant understands and agrees that Reseller and Service Provider shall bear no risk with respect to Merchant s sale of products or services including, without limitation, any risk associated with credit card fraud or chargebacks. VIII. General. This Agreement, including the attached Exhibits which are incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter and supercedes any other agreement between the parties relating to its subject matter. This Agreement may not be amended except in a writing executed by both parties. Merchant may not assign this Agreement without the prior written consent of Reseller. All communications under this Agreement will be in writing and will be delivered in person or by mail courier, return receipt requested, to the address set forth in the first paragraph of this Agreement. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. No failure or delay on the part of any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of any right preclude any further exercise of that right. This Agreement will inure to the benefit of and will be binding upon the parties and their permitted successors and assigns. This Agreement will not be deemed to be for the benefit of any third party. The Agreement will be deemed to be a contract made under the laws of the State of Texas, and will be construed in accordance with the laws of Tarrant County without regard to principles of conflicts of law. The parties specifically waive the right to a jury trial in connection with any dispute arising out of this Agreement or between the parties for any reason. Reseller and Merchant will be deemed to be independent contractors and will not be considered to be agent, servant, joint venture or partner of the other. If any court holds that a party has breached this Agreement, then the non-defaulting parties will be entitled to recover expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys fees and costs. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and such counterpart shall together constitute one and the same instrument. Reseller Printed Reseller Name: American POS Alliance, LLC By: Name: Merchant Printed Merchant Name: Restaurant By: Name: Page 4

5 Exhibit A Fees APOSA Partner Gateway Setup Fee $75.00 APOSA Non-Partner Gateway Setup Fee $ APOSA Partner Gateway Monthly Fee $10.00 APOSA Non-Partner Gateway Monthly Fee $20.00 Credit Card Per Transaction Fee $0.00 Early Termination Fee $0.00 Change of Processor to APOSA Partner Fee $75.00 Change of Processor to APOSA Non-Partner Fee $ Late Payment Fee $35.00 Service Reactivation Fee $ Multi-Store Gift Card Setup Fee $ Gift Card Per Transaction Fee $0.00 Paper Invoicing Fee $5.00 * The Gateway Monthly Fee will be billed in 12-month increments as part of the annual maintenance for customers who pay annual maintenance. The Gateway Monthly Fee will be billed with the monthly license subscription payment for customers who are enrolled in the monthly license subscription program. * APOSA Partner and APOSA Non-Partner fees are exclusive of each other, and dependant on the relationship between APOSA and the merchant processing company. Contact APOSA or FoodTronix at or to determine the relationship of the processing company. Initials: Page 5

6 Exhibit B Partner Credit Card Processor Contact Information Please provide the contact information for your credit card company so we may acquire your parameter sheet and properly configure your T-Gate and POS settings. Remember, if this processor is a partner, please be sure to get the partner ID to get the partner gateway rates. Please let them know we will be calling for the parameter sheet. We will need it ed to or faxed to Processor Information APOSA Partner ID & Company (if APOSA Partner only) Agent Name Agent Phone Agent Customer Support Phone Customer Support After Hours Contact Phone After Hours Merchant ID Page 6

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