Terms and Conditions for the TRANSEND PAY SERVICES

Transcription

1 Terms and Conditions for the TRANSEND PAY SERVICES 1) TRANSEND PAY SERVICES. a) Overview. Merchant elects and agrees to accept the Transend Pay Services from Elavon. Merchant s receipt of Transend Pay Services is subject to any of the materials made available to Merchant by Elavon that relate to the Transend Pay Services, including any quick reference guides and best practices guides. Merchant agrees to review and to comply with any such materials made available by Elavon, or by any of Elavon s vendors or subcontractors, to Merchant from time to time in connection with Merchant s use of the Transend Pay Services. b) Transend Pay Services Website. Elavon, through Elavon s vendor, will provide Merchant with access to the Transend Pay Services Website. Elavon is not responsible for the form, format or content of the Transend Pay Services Website or any Remittance Data. Merchant agrees to abide by any terms of use and/or end user license(s) provided by Elavon or Elavon s vendor in connection with the Transend Pay Services Website. c) Healthcare Payers. Participating Healthcare Payers may change from time to time. Participation by a Healthcare Payer in the Transend Pay Services is at the discretion of the individual Healthcare Payer, and Elavon is not responsible for the participation (or lack thereof) of any Healthcare Payer in the Transend Pay Services. d) Questions Regarding Payments. Questions regarding payments received from Healthcare Payers, including remittance advice, identity of the relevant Healthcare Payer and related questions should be directed to Elavon s vendor using the procedures outlined in the agreement between Merchant and Elavon s vendor or as otherwise indicated on the Transend Pay Services Website. Questions regarding the Transend Pay Services provided by Elavon, including funding settlement and Merchant reporting, should be directed to Elavon via the general customer service process. 2) FEES; OTHER AMOUNTS OWED; TAXES. a) Fees. Merchant will pay Elavon fees in the ordinary course of business for the Transend Pay Services in accordance with the Transend Pay Services Enrollment Form, including any additional application or setup form(s) (including enrollment forms) or schedules provided by Elavon in writing to Merchant. b) Change of Fees. Elavon shall be permitted to change fees in its discretion by giving Merchant notice of such change not less than sixty (60) days prior to the effective date of such change. c) Other Amounts Owed. Merchant will promptly pay Elavon any amount incurred by Elavon attributable to the Transend Pay Services Enrollment Form, including, without limitation, returns, adjustments, fees, fines, penalties, assessments and any other payments due under the Transend Pay Services Enrollment Form. Elavon may offset these amounts from funds otherwise owed by Elavon to Merchant or may debit these amounts from Merchant s DDA by ACH. In the event such offset or ACH debit does not fully reimburse Elavon for the amount owed, Merchant will promptly pay Elavon such amount upon demand. Elavon will charge interest, as allowed by Law, on all uncollected items that are more than thirty (30) days past due. d) Taxes. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority on the goods and services provided under the Transend Pay Services Enrollment Form excluding the income taxes attributable to Elavon. If Merchant is a tax-exempt entity, Merchant will provide Elavon with an appropriate certificate of tax exemption. 3) ACCURACY OF INFORMATION; INDEMNIFICATION; LIMITATION OF LIABILITY. a) Accuracy of Information. Merchant represents and warrants to Elavon that all information provided to Elavon in the Transend Pay Services Enrollment Form is true and complete and properly reflects the business, financial condition and principal partners, owners, officers, or ownership of Merchant. Merchant must promptly notify Elavon in writing of any changes to such information, including, without limitation, any additional location or new business at which Merchant desires to receive the Transend Pay Services. The notice must be received by Elavon at least ten (10) business days prior to the change. Merchant will provide any additional information requested by Elavon within a reasonable time. Elavon has the right to rely upon written instructions submitted by Merchant to request changes to Merchant s business information. Merchant may request written confirmation of Elavon s consent to the changes to Merchant s business information. Merchant will defend, indemnify, and hold harmless Elavon for all losses and expenses incurred by Elavon arising out of any such change, whether or not reported to Elavon, or 1

2 Merchant s failure to provide requested information. Elavon may immediately terminate the Agreement upon notification by Merchant of a change to the information in the Transend Pay Services Enrollment Form. Merchant authorizes Elavon to contact credit reporting agencies and Merchant s creditors to make inquiries and obtain reports regarding Merchant s credit standing upon Elavon s receipt of the Transend Pay Services Enrollment Form. b) Indemnification; Merchant Responsibility. Merchant will be liable for and indemnify, defend, and hold harmless Elavon and its employees, officers, directors, and agents against all claims, including claims made by third parties, losses, damages, liabilities or expenses arising out of the Transend Pay Services Enrollment Form and for all reasonable attorneys fees and other costs and expenses paid or incurred by Elavon in the enforcement of the Transend Pay Services Enrollment Form, including those resulting from any breach by Merchant of the Transend Pay Services Enrollment Form and those related to any bankruptcy proceeding of Merchant. Notwithstanding the foregoing, in the event that Merchant is a governmental entity or institution, then the preceding sentence shall not apply, and the following provisions shall apply instead: As between Merchant and Elavon, Merchant will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands or damages arising out of or in connection made by third parties, losses, damages, liabilities or expenses arising out of the Transend Pay Services Enrollment Form, including those resulting from any breach by Merchant of the Transend Pay Services Enrollment Form and those related to any bankruptcy proceeding of Merchant. Merchant will not make any claims against Elavon for any liabilities, claims losses, costs, expenses and demands of any kind or nature, arising out of or in connection with any of the foregoing suits, claims, losses, demands or damages. c) Limitation of Liability. Merchant acknowledges that Elavon s fees for the Transend Pay Services provided to Merchant by Elavon are very small in relation to the funds transmitted to Merchant in connection with the Transend Pay Services and consequently Elavon s willingness to provide the Transend Pay Services is based on the liability limitations contained in the Transend Pay Services Enrollment Form. Therefore, any liability of Elavon under the Transend Pay Services Enrollment Form, whether to Merchant or any other party, whatever the basis of the liability, will not exceed, in the aggregate, an amount equal to the fees paid by Merchant during the last three (3) months. In no event will Elavon or its agents, officers, directors, or employees be liable for 2 indirect, exemplary, punitive, special, or consequential damages. d) Performance; Disclaimer of Warranties. Elavon will perform all services in accordance with the Transend Pay Services Enrollment Form. ELAVON MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE TRANSEND PAY SERVICES, AND NOTHING CONTAINED IN THE TRANSEND PAY SERVICES APPLICATION WILL CONSTITUTE SUCH A WARRANTY. ELAVON DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Elavon shall not be liable for any failure or delay in its performance of the Transend Pay Services Enrollment Form if such failure or delay arises for reasons beyond the control of Elavon and without the fault or negligence of Elavon. e) Waiver of Claims. Merchant expressly acknowledges and agrees that, immediately upon Elavon s receipt of funds that are to be processed via the Transend Pay Services in connection with a payment owed to Merchant by a Healthcare Payer, Merchant s claim relating to such payment from the Healthcare Payer shall be extinguished, and Merchant automatically waives any and all claims against the applicable Healthcare Payer in connection with such payment. 4) DEMAND DEPOSIT ACCOUNT (DDA). a) DDA and ACH Authorization. Merchant will establish and maintain (with an ACH participating financial institution acceptable to Elavon) one or more DDAs to facilitate Merchant s receipt of payment of funds in connection with the Transend Pay Services. Merchant will maintain sufficient funds in the DDA to accommodate all returns, adjustments, fees, fines, penalties, and other payments due under the Transend Pay Services Enrollment Form. Merchant irrevocably authorizes Elavon and its respective authorized vendors and agents who provide services under the Transend Pay Services Enrollment Form, to initiate ACH debit and credit entries to the DDA or any other account maintained by Merchant at any institution that is a receiving member of the ACH network, to make payments to or collect payments from Merchant due under the Transend Pay Services Enrollment Form. The foregoing authorizations will remain in effect after termination of the Transend Pay Services Enrollment Form until all of Merchant s obligations to Elavon have been paid in full. Merchant also authorizes Elavon s vendors or agents to debit the DDA for any fees due to such vendors or agents under the Transend Pay Services Enrollment Form. Merchant must obtain prior consent from Elavon to change the DDA. If Merchant does not receive such consent, Elavon may immediately and without notice terminate the

3 Transend Pay Services Enrollment Form and may take any other action it deems necessary in its discretion. Elavon has the right to rely upon written instructions submitted by Merchant requesting changes to the DDA. In the event Merchant changes the DDA, the ACH debit and credit authorization established hereunder will apply to the new account and Merchant shall provide Elavon such information regarding the new DDA as they deem necessary to effect payments to and from the new DDA. It may take Elavon up to ten (10) business days after Elavon s receipt of a written notice from Merchant to reflect in its system any change to Merchant s DDA. Merchant may request from Elavon written confirmation of Elavon s consent to change the DDA. Elavon has the right to delay, within its discretion, crediting the DDA with funds owed to Merchant hereunder. To the extent required, Merchant authorizes Elavon to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant provisional credit for any entry. Elavon will make deposits to the DDA pursuant to the Transend Pay Services Enrollment Form and the ACH authorization. b) Asserted Errors. It is the responsibility of Merchant to reconcile the statements received from Elavon or any third party vendors with the statements Merchant receives for Merchant s DDA. Merchant must promptly examine all statements relating to the DDA and immediately notify Elavon in writing of any errors in the statement Merchant received from Elavon. Merchant s written notice must include: (i) Merchant name and account number; (ii) the dollar amount of the asserted error; (iii) a description of the asserted error; and (iv) an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by Elavon within forty-five (45) days after the month end date on the statement containing the asserted error. If Merchant fails to provide such notice to Elavon within said forty-five (45) days, Elavon shall not be liable to Merchant for any errors Merchant asserts at a later date. Merchant may not make any claim against Elavon for any loss or expense relating to any asserted error for sixty (60) days immediately following Elavon s receipt of Merchant s written notice. During that sixty (60) day period, Elavon will be entitled to investigate the asserted error, and Merchant shall not incur any cost or expense in connection with the asserted error without notifying Elavon. c) Depository Institution. Merchant authorizes its depository institution to grant Elavon access to any and all information or records regarding the DDA. Merchant authorizes Elavon to direct the depository institution to hold funds in the DDA in an amount which Elavon, in its discretion, deems 3 sufficient to fully protect Elavon s rights under the Transend Pay Services Enrollment Form or to block or restrict Merchant s or others access to funds in the DDA. Merchant directs the depository institution to immediately comply with any such direction from Elavon. d) Indemnity. Merchant will indemnify and hold harmless Elavon for any action they take against the DDA pursuant to the Agreement. Merchant will also indemnify and hold harmless the depository institution at which it maintains its DDA for acting in accordance with any instruction from Elavon regarding the DDA. Notwithstanding the foregoing, in the event that Merchant is a governmental entity or institution, then the preceding provisions of this Section 4(d) shall not apply, and the following provisions shall apply instead: As between Merchant and Elavon Merchant will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands or damages (A) arising out of or in connection with any action Elavon takes against the DDA pursuant to the Agreement, or (B) against the depository institution at which the Merchant maintains its DDA for acting in accordance with any instruction from Elavon regarding the DDA. Merchant will not make any claims against Elavon for any liabilities, claims losses, costs, expenses and demands of any kind or nature, arising out of or in connection with any of the foregoing suits, claims, losses, demands or damages. 5) REPRESENTATIONS AND WARRANTIES. Merchant represents and warrants to Elavon the following: a) Organization. Merchant is a corporation, company, limited liability company, unlimited liability company, limited liability partnership, limited partnership, general partnership, business trust, association or sole proprietorship validly existing and organized in the United States. b) Corporate Power. Merchant and the persons signing the Transend Pay Services Enrollment Form have the power to execute and perform the Transend Pay Services Enrollment Form. Merchant represents and warrants that the person executing the Transend Pay Services Enrollment Form is duly authorized to bind Merchant and each affiliated entity identified in the Transend Pay Services Enrollment Form to all provisions of the Transend Pay Services Enrollment Form and that such person is authorized to execute any document and to take any action on behalf of Merchant which may be required by Elavon, now or in the future. Further, Merchant represents and warrants that signing and/or performing in accordance with the Transend Pay Services Enrollment Form will not violate any Law, or conflict with any other agreement to which Merchant is subject.

4 c) No Litigation. There is no action, suit, or proceeding pending, or to Merchant s knowledge, threatened which if decided adversely would impair Merchant s ability to carry on Merchant s business substantially as now conducted or which would adversely affect Merchant s financial condition or operations. d) Compliance with Laws. Merchant will comply with all Laws. e) Business Use. Merchant is obtaining and using the Transend Pay Services from Elavon for business purposes only and to facilitate lawful business transactions between Merchant and Healthcare Payers. Merchant also acknowledges that the DDA into which debits and credits are made is being used for lawful business purposes only. f) Responsibility for Actions. Merchant is responsible for any violations of the Transend Pay Services Enrollment Form that result from the actions of or failure to act by Merchant s officers, directors, employees, agents, third party service providers, and those of any other Person who, with or without Merchant s consent or cooperation, obtains access to information related to the Transend Pay Services from Merchant or access to systems under Merchant s control. 6) AUDIT AND INFORMATION. a) Audit. Merchant authorizes Elavon to perform an audit of its business to confirm compliance with the Transend Pay Services Enrollment Form. Merchant will obtain and submit a copy of an audit from a third party acceptable to Elavon of the financial, physical security, information security, and operational facets of Merchant s business at its expense when requested by Elavon. b) Information. i. Authorizations. Merchant authorizes Elavon to make, from time to time, any business and personal credit or other inquiries it considers necessary to review the Enrollment Form or continue to provide services under the Transend Pay Services Enrollment Form. Merchant also authorizes any person or credit reporting agency to compile information to answer those credit inquiries and to furnish that information to Elavon. ii. Merchant Information. Merchant agrees that any Merchant financial information, Transaction Data, and other information regarding Merchant, its principles, affiliates, or agents that Merchant or Merchant principle provides to Elavon on the Enrollment Form or otherwise obtained by Elavon in connection with the Transend Pay Services Enrollment Form may be: (i) used by Elavon and its respective service providers, affiliates, agents, and referral partners, (a) in order to provide the Processing Services and related functions to Merchant and to respond to any further 4 application for services, or (b) for administrative purposes and to maintain Merchant s account pursuant to this Transend Pay Services Enrollment Form; (ii) disclosed and shared for reporting purposes to credit rating agencies, to Healthcare Payers and to the financial institution where the DDA is maintained; (iii) utilized to enhance or improve Elavon s products or services, generally; (iv) used or disclosed in the course of any actual or potential sale, reorganization or other change to Elavon s business; (v) collected, used and disclosed as required or permitted by Law (e.g., for tax reporting or in response to a subpoena); and (vi) retained for such periods of time as required by Elavon to perform its obligations and exercise its rights under the Transend Pay Services Enrollment Form. Elavon may prepare, use, and/or share with third parties, aggregated, non-personally identifiable information derived from Transaction Data of all of Elavon s customers or specific segments of Elavon s Customers. c) Customer Identification. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. Accordingly, Merchant must provide certain information and identifying documents to allow Elavon to identify Merchant. 7) TERM; TERMINATION. a) Term. Unless terminated as set forth below, the Agreement will remain in effect for a period of three (3) years ( Initial Term ) beginning on the Transend Pay Services Effective Date. Thereafter, the Transend Pay Services Enrollment Form will renew for successive two (2) year terms ( Renewal Term ) unless terminated as set forth below. b) Termination. i. Merchant. 1. The Transend Pay Services Enrollment Form may be terminated by Merchant with or without cause at any time upon fifteen (15) days prior written notice to Elavon. 2. ii. Elavon. 1. The Transend Pay Services Enrollment Form may be terminated by Elavon at any time with or without cause during the Initial Term or any Renewal Term. 2. Elavon s rights of termination under the Transend Pay Services Enrollment Form are cumulative. A specific right of termination in this Section shall not limit any other right of Elavon to terminate the Transend Pay Services Enrollment Form expressed elsewhere.

5 c) Notice of Termination. Notice of termination by Merchant or Elavon may be given orally or in writing, but if given orally, must be confirmed in writing as soon as practical. Merchant s termination request shall be completed on a form available from Elavon, but at a minimum, must include the name of the Merchant must be signed by the principal owner(s) of Merchant. Termination shall be effective on the date specified by the oral or written notice; provided, however Merchant agrees that closing Merchant s account with Elavon may take up to thirty (30) days following Elavon s receipt of written notice of termination. In those limited instances where Merchant s account is reinstated by Elavon following termination by either Merchant or Elavon in the Renewal Term or any Renewal Term, all of Merchant s obligations under the Transend Pay Services Enrollment Form are likewise reinstated and will renew for successive two (2) year terms effective on the date of reinstatement. 8) FRAUD PREVENTION. Elavon is under no duty to monitor Merchant s transactions or receipt of the Transend Pay Services for fraudulent or other suspicious activity. Merchant will appoint a representative available to Elavon or its vendors or subcontractors to promptly respond to any fraud-related matters. 9) PROTECTED HEALTH INFORMATION. No Protected Health Information (as such term is defined in HIPAA) shall be provided to, or transmitted by, Elavon in connection with the Transend Pay Services. Merchant acknowledges and agrees that Merchant shall not deem Elavon to be a Business Associate and that Elavon shall not be required to enter into a Business Associate Contract in connection with the provision of the Transend Pay Services. 10) MISCELLANEOUS PROVISIONS. a) Entire Agreement. The Transend Pay Services Enrollment Form (including any schedules, attachments, exhibits, addenda and other documents incorporated by reference into the Transend Pay Services Enrollment Form or any of its schedules, attachments, exhibits or addenda) and any amendment or supplement to it, constitutes the entire agreement between the parties, and all prior or other representations, written or oral, are merged in and superseded by the Transend Pay Services Enrollment Form. b) Jurisdiction and Venue; Governing Law. All matters arising out of or related to the Transend Pay Services Enrollment Form will be governed by and construed in accordance with the Laws of the State of Georgia. The parties agree that all performances and Transactions under the Transend Pay Services Enrollment Form will be deemed to have occurred in the State of Georgia and that Merchant s entry into and performance of the Transend Pay Services Enrollment Form will be 5 deemed to be the transaction of business within the State of Georgia. Jurisdiction and venue for any claim or cause of action arising under the Transend Pay Services Enrollment Form (other than collection actions by Elavon relating to amounts owed by Merchant under the Transend Pay Services Enrollment Form) shall be exclusively in the United States District Court for the Northern District of Georgia, and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, that court. If subject matter jurisdiction does not exist in the United States District Court for the Northern District of Georgia, then the exclusive forum and venue for any such action shall be the courts of the State of Georgia located in Fulton County and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, such court. Merchant and Elavon hereby jointly and severally waive any and all right to trial by jury in any action or proceeding relating to the Transend Pay Services Enrollment Form. Merchant and Elavon each represents to the other that this waiver is knowingly, willingly and voluntarily given. c) Third Party Service Providers. Merchant acknowledges that Elavon will engage third party service providers to assist with the provision of the Transend Pay Services, including, but not limited to, the provision of the Transend Pay Services Website. Merchant acknowledges and agrees that Merchant may be required to enter into a user agreement with, or agree to be bound by certain terms and conditions provided by, Elavon s vendor in order for Merchant to access the Remittance Data. d) Construction. Any alteration or strikeover in the text of the Transend Pay Services Enrollment Form will have no binding effect and will not be deemed to amend the Transend Pay Services Enrollment Form. The headings used in the Transend Pay Services Enrollment Form are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. e) Assignability. The Transend Pay Services Enrollment Form may not be assigned by Merchant, directly or by operation of law or by change in control of Merchant, without the prior written consent of Elavon. If Merchant, nevertheless, assigns the Transend Pay Services Enrollment Form without Elavon s consent, the Transend Pay Services Enrollment Form will be binding on the assignee as well as Merchant. Elavon will not transfer or assign the Transend Pay Services Enrollment Form without the prior written

6 consent of Merchant, provided that such consent shall not be required for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or delegation to any Person into or with which Elavon shall merge or consolidate, or who may acquire substantially all of Elavon s stock or assets. f) Notices. Any written notice to the other party under the Transend Pay Services Enrollment Form will be deemed received upon the earlier of: (i) actual receipt; or (ii) five (5) business days after being deposited in the United States mail, or (iii) one (1) business day after being deposited with a nationally recognized overnight carrier. Such notices will be addressed to the Merchant s last address shown on the records of Elavon, or to Elavon at 7300 Chapman Highway, Knoxville, TN g) Bankruptcy. Merchant will immediately notify Elavon of any bankruptcy proceeding initiated by or against Merchant. Merchant will include Elavon on the list and matrix of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the time of filing. Merchant acknowledges that the Transend Pay Services Enrollment Form constitutes an executory contract to make a loan, or extend other debt financing or financial accommodations to, or for the benefit of Merchant, and, as such, cannot be assumed or assigned in the event of Merchant s bankruptcy. h) Telephone Recording. For quality assurance and training purposes Merchant authorizes Elavon to monitor and record telephone conversations at any time. The decision to record any conversation shall be solely in Elavon s discretion and pursuant to applicable law. i) Communication with Merchant. Merchant agrees that Elavon may provide Merchant with information about their services including, without limitation, information about new products and/or services by facsimile, telephone, mobile telephone and/or electronic mail. j) Amendments. Except as otherwise provided in the Transend Pay Services Enrollment Form, amendments to the Transend Pay Services Enrollment Form shall be in writing and signed by the parties. Notwithstanding the foregoing, Elavon may amend or modify the Transend Pay Services Enrollment Form, to the extent such changes are required by or attributable to changes in the Payment Network Regulations or other Laws, upon written notice to Merchant. Elavon will inform Merchant of such a change in a periodic statement or other written notice, and such change will become effective not less than thirty (30) days following the issuance of the notice. Notwithstanding the previous sentence, changes to fees authorized by the Transend Pay Services Enrollment Form will be effective upon notice to Merchant, unless a later effective date is provided. k) Severability and Waiver. If any provision of the Transend Pay Services Enrollment Form is found to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions of the Transend Pay Services Enrollment Form shall not in any way be affected or impaired thereby if the essential terms and conditions of the Transend Pay Services Enrollment Form for each party remain valid, legal and enforceable. None of the failure, the delay by any party to exercise, or the partial exercise of any right under the Transend Pay Services Enrollment Form will operate as a waiver or estoppel of such right, nor shall such amend the Transend Pay Services Enrollment Form. All waivers requested by a party must be signed by the waiving party. l) Independent Contractors. Elavon and Merchant will be deemed independent contractors and no one will be considered an agent, joint venturer, or partner of the other, unless and to the extent otherwise specifically provided herein. The Transend Pay Services Enrollment Form has been entered into solely for the benefit of the parties hereto and is not intended to create an interest in any third party. m) Force Majeure. Elavon shall not be considered in default in performance of its obligations to the extent such performance is delayed by force majeure affecting their ability to so perform. Force majeure shall include, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion or riots, strike, lockout, epidemic, accident, fire, flood, earthquake, windstorm, explosion, lack of or failure of telecommunication facilities, regulation or ordinance, demand or requirement of any government or governmental agency, or any court, tribunal or arbitrator(s), having or claiming to have jurisdiction over the subject matter of the Transend Pay Services Enrollment Form or over the parties hereto, or any act of God or any act of government or any cause whether of the same or different nature existing now or in the future which is beyond the reasonable control of Elavon. 11) GLOSSARY. a) Business Associate: Has the meaning ascribed to it in HIPAA. b) Business Associate Contract: A contract between a Business Associate and a covered entity as required by HIPAA. c) Healthcare Payer: Any third party administrator, payer of healthcare benefits and healthcare-related payments, health plan or self-insured entity that remits a payment to Merchant in connection with the Transend Pay Services. 6

7 d) HIPAA: The Health Insurance Portability and Accountability Act of e) Laws: All applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding law in effect from time to time. f) Merchant: The party identified on the cover page to this Transend Pay Services Enrollment Form that is receiving the Transend Pay Services from Elavon. g) Person: Any individual, firm, corporation, business trust, partnership, governmental agency or authority, or other entity and shall include any successor (by merger or otherwise) of such entity. h) Remittance Data: Remittance information that is (i) supplied by a Healthcare Payer to Merchant, and (ii) connected to each of the payments made to Merchant by a Healthcare Payer via the Transend Pay Services. i) Transend Pay Services: Certain Processing Services provided by Elavon to Merchants in connection with Merchants receipt of healthcarerelated and benefit payments from a Healthcare Payer, as more fully described in the Transend Pay Services Enrollment Form. j) Transend Pay Services Effective Date: The date on which Elavon executed the Transend Pay Enrollment Form. k) Transend Pay Services Website: The Merchantfacing website hosted by Elavon s vendor through which Merchant can access Remittance Data. 7