TELECHECK SERVICE AGREEMENT 2004
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TELECHECK SERVICE AGREEMENT
1.1 If you elect to subscribe to the TeleCheck® check services (the "TeleCheck Services") in the TeleCheck Application, the TERMS AND CONDITIONS of this TeleCheck Service Agreement shall apply, including payment and the Minimum Monthly Fee from that point forward, upon processing your first check through the TeleCheck® service or the date you are entered into the TeleCheck system as an active Subscriber, whichever is earlier (the "Effective Date"). The TERMS AND CONDITIONS of this TeleCheck Service Agreement are solely between you and TeleCheck; you shall not provide or resell, directly or indirectly, the services provided by TeleCheck to any third party. You are not authorized to, and shall not in any manner, utilize any services in connection with any transaction conducted, in whole or in part, over the Internet or in any other non-face-to-face transaction. Any of the TeleCheck Services, including, without limitation, funds settlement, billing and customer service, may be performed by one or more of TeleCheck’s affiliates.
1.2 Term, Termination and Amendment. TeleCheck will provide the TeleCheck Services selected in the TeleCheck Application for an initial term of 12 months from the Effective Date. Thereafter, the TeleCheck Services shall automatically renew for successive 12-month terms until terminated as provided for herein. You may terminate the TeleCheck Services at the end of the initial term or any renewal term upon at least 30 days’ prior written notice to TeleCheck. In the event TeleCheck changes the rates, fees or warranty limits hereunder, you may terminate the TeleCheck Services upon written notice received by TeleCheck from you within 30 days of your receipt of notice of such change. TeleCheck may terminate the TeleCheck Services at any time upon notice to you. TeleCheck reserves the right to amend, at its discretion, the TERMS AND CONDITIONS herein, including, without limitation, any addenda, TeleCheck Operational Procedures, rates and fees, by providing you notice thereof, and such amendments shall be effective 30 days from the date notice is mailed to you.
1.3 Definitions. As used in this TeleCheck Service Agreement, the following definitions apply: “check writer” means the drawer of a check; “Claim” means any arbitration award, assessment, charge, citation, claim, damage, demand, directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice, infringement or misappropriation of any patent, trademark, copyright or other intellectual property right or violation of any law, and any consequential, indirect, special, incidental or punitive damages and any attorney’s fees and expenses incurred in connection therewith. For purposes of the foregoing Claim definition, a Claim shall be considered to exist even though it may be conditional, contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated or unmatured; “consumer” means a check writer, person or entity that authorizes an item; “Dishonored Item” means an Item having received a valid TeleCheck Approval Code pursuant to a Warranty Service Business Transaction, but which is dishonored upon presentment for payment; “Item” means an outstanding financial obligation pursuant to a check, including a check processed as an ECA® Business Transaction; “ECA Business Transaction” means a transaction for the contemporaneous purchase of goods or services (including, without limitation, taxes), the payment for which is processed as an ECA transaction; provided, however, it does not include any ECA transactions for cash or payment on an account, debt or check already due you; “ECA batch” means a collection of saved ECA transactions; “TeleCheck Operational Procedures” means TeleCheck’s published policies and procedures contained in various documents provided to you concerning the TeleCheck Services provided pursuant to this TeleCheck Service Agreement, the terms of which are incorporated in this TeleCheck Service Agreement as if fully set forth herein; “Returned Item” means any Item not paid by your financial institution or that fails to comply with the TERMS AND CONDITIONS of this TeleCheck Service Agreement, including the Warranty Requirements; “TeleCheck Approval Code” means that TeleCheck has authorized an Item for warranty coverage under this TeleCheck Service Agreement pursuant to a Warranty Service Business Transaction; “TeleCheck Parties” means TeleCheck and its officers, directors, employees, shareholders, agents and attorneys; “Warranty Maximum”: (a) for an Item processed as a non-ECA transaction means lower of (i) the face amount of the Item; or (ii) the lesser amount set forth on the TeleCheck Application (if any); and (b) for an Item processed as an ECA transaction means the lower of (i) the face amount of the item; or (ii) $20,000.00; and “Warranty Service Business Transaction” means a transaction for the contemporaneous purchase of goods or services pursuant to TeleCheck’s warranty service program and shall not include checks written for cash or for payment on an account, debt or check already due you.
1.4 Fees, Rates and Warranty Changes. You shall pay TeleCheck the fees and rates set forth on the TeleCheck Application, attached Fee Schedule and Addenda, if any, or in the TERMS AND CONDITIONS herein, as changed from time to time by TeleCheck, plus all applicable taxes. The Setup Fees First Location and Additional Location(s) are fees related to the establishment and setup of the first and subsequent locations on the TeleCheck service. The ECA Conversion Fee is the fee charged to convert an existing Subscriber to the ECA service. The “Inquiry Rate” is the percentage rate set forth in the Fee Schedule, which shall apply to each Item which is entered into the TeleCheck system whether by telephone, electronically or otherwise. “December Risk Surcharge” is an additional charge of 10 basis points (0.10%), unless a different amount is set forth on the face of this Agreement, which shall apply to each Item during the month of December of each year. The “Monthly Minimum Fee” is the minimum amount of inquiry fees that you shall pay on a monthly basis. If the total fees for your inquiries for any month are less than the Monthly Minimum Fee, then the Monthly Minimum Fee shall apply; provided, however that if the Monthly Processing Fee exceeds the Monthly Minimum Fee, then no Monthly Minimum Fee will apply. The “Monthly Processing Fee” is the $25.00 monthly fee for maintaining your account with TeleCheck, unless a different amount is set forth on the TeleCheck Application. The “Charge Per Transaction” is the additional per transaction charge for all transactions determined by the method by which the transaction is delivered to TeleCheck. The “ECA Charge Per Transaction” is the additional per transaction charge for all ECA transactions submitted by you. The “Transaction Surcharge” is an additional charge for transactions going over third-party networks. The “ECA Chargeback Fee” is a $5.00 handling fee for each chargeback of an ECA transaction. The “ECA Funding Report Fee” is an additional fee to receive daily or weekly ECA funding reports. The “ECA Correction Fee” is a $5.00 fee payable on each item in an ECA batch that must be corrected due to your error or at your request. The “Customer-Requested Operator Call Charge” is an additional charge of a $2.50 per operator-assisted call not requested by TeleCheck. The “Recovery Processing Fee” is a $5.00 charge for each check that fails to meet Warranty Requirements for which TeleCheck elects, in its discretion, to reimburse you as a “Goodwill Item” for a specific Returned Item. A “Warranty Research Fee” of $7.50 will be charged each time you request substantiation of a warranty payment/non-payment. These above fees are in addition to any fees charged by TeleCheck to you under any other agreement.
1.5.1 Payment, Reserve Account, Security Interest; Funding Errors. All fees and charges are due upon receipt. You authorize TeleCheck to debit from your financial institution account as provided to TeleCheck by you, all payments and other amounts owed (including, without limitation, all chargebacks, ECA Chargeback Fees and Returned Item Fees) to TeleCheck or its affiliates under this TeleCheck Service Agreement or any other agreement between you and TeleCheck or its affiliates, and to credit all amounts owing to you under this TeleCheck Service Agreement to your financial institution account. If there are insufficient funds in your financial institution account to pay amounts owed to TeleCheck or its affiliates, or if there are any amounts otherwise not paid by you when due, including, without limitation, delinquent fees, chargebacks or rejected and reassigned warranty Items, you shall immediately reimburse TeleCheck or its affiliates upon demand, or at TeleCheck’s option, TeleCheck may offset such amounts due you from TeleCheck or its affiliates under this Agreement or any other agreement between you and TeleCheck or its affiliates. A delinquency charge of 1½% per month or the highest amount permitted by law, whichever is lower, shall be added to the outstanding balance of any account over fifteen (15) days delinquent. TeleCheck shall have the right to suspend all services and obligations to you, including the payment of all warranties due and transactions previously authorized, during any period in which your account is delinquent. You agree to pay TeleCheck a $25.00 fee for any check or ACH debit that is not paid by your financial institution upon presentment.
1.5.2 You expressly authorize TeleCheck to establish a reserve account (the “TeleCheck Reserve”) for ECA Business Transactions. The amount of the TeleCheck Reserve shall be set by TeleCheck, in its sole discretion, based upon your processing history and the anticipated risk of loss to TeleCheck.
1.5.3 The TeleCheck Reserve shall be fully funded upon three (3) days’ notice to you, or in instances of fraud or breach of this Agreement, the TeleCheck Reserve may be funded immediately at TeleCheck’s election. The TeleCheck Reserve may be funded by all or any combination of the following: (i) one or more debits to your financial institution (and TeleCheck is hereby authorized to make such debits); (ii) one or more deductions or offsets to any payments otherwise due to you from TeleCheck or any of its affiliates; or (iii) your delivery to TeleCheck of a letter of credit. Any such letter of credit shall be issued or established by a financial institution acceptable to TeleCheck and in a form satisfactory to TeleCheck, both in TeleCheck’s discretion. In the event of termination of the TeleCheck Services by either you or TeleCheck, an immediate TeleCheck Reserve may be established without notice in the manner provided above. Any TeleCheck Reserve will be held by TeleCheck for ten (10) months after termination of the TeleCheck Services. Your funds held in a TeleCheck Reserve may be held in a commingled TeleCheck Reserve for the reserve funds of TeleCheck’s subscribers, without involvement by an independent escrow agent, and shall not accrue interest.
1.5.4 If your funds in the TeleCheck Reserve are not sufficient to cover the delinquent fees, chargebacks or rejected and reassigned warranty Items, or any other fees and charges due from you to TeleCheck or its affiliates, or if the funds in the TeleCheck Reserve have been released, you shall immediately pay TeleCheck such sums upon request. In the event of failure by you to fund the TeleCheck Reserve, TeleCheck may fund such TeleCheck Reserve in the manner set forth in TeleCheck subsection 1.5.3, above.
1.5.5 To secure your obligation to TeleCheck and its affiliates under this Agreement and any other agreement for provision of other services, you grant to TeleCheck a lien and security interest in and to any of your funds pertaining to the transactions contemplated by this TeleCheck Service Agreement now or hereafter in the possession of TeleCheck, whether due or to become due to you from TeleCheck. Any such funds, money or amounts may be commingled with other funds of TeleCheck, or, in the case of any funds held pursuant to the foregoing paragraphs, with any other funds of other subscribers of TeleCheck. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, TeleCheck is hereby authorized by you at any time and from time to time, without notice or demand to you or any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all such funds against and on account of your obligations to TeleCheck and its affiliates under this Agreement and any other agreement with TeleCheck or any of its affiliates, including, without limitation, fees for any other services (including any check or credit card processing services), whether such obligations are liquidated, unliquidated, fixed contingent, matured or unmatured. You duly agree to execute and deliver to TeleCheck such instruments and documents as TeleCheck may reasonably request to perfect and confirm the lien, security interest, right of set-off, recoupment and subordination set forth in this Agreement.
1.5.6 In the event any ECA Business Transaction is not funded or otherwise paid by TeleCheck in accordance with this TeleCheck Service Agreement, you are required to notify TeleCheck thereof in writing within sixty (60) days from the date of such ECA Business Transaction. If you fail to so notify TeleCheck within said sixty (60)-day period, TeleCheck will have no liability and you are precluded from asserting any claims, damages or losses relating to TeleCheck's failure to fund such ECA Business Transaction.
1.6 Warranty. The sole purpose of the TeleCheck warranty service program is to provide information and processing services to you. TeleCheck warrants the accuracy of its information provided that all requirements set forth in the Warranty Requirements in TeleCheck Section 1.14.1 are strictly met. A Dishonored Item shall be deemed to be a breach of the warranty and as your sole and exclusive remedy for such breach, you may receive payment of the face amount of the Dishonored Item up to the Warranty Maximum, subject to the terms, conditions and limitations contained in this TeleCheck Service Agreement and any addenda hereto. The warranty does not apply where payment has been stopped due to a dispute over goods or services between you and consumer, or where you have contacted TeleCheck for a TeleCheck Approval Code on more than one check per Warranty Service Business Transaction.
1.6.1 TeleCheck Approval Code. You acknowledge that TeleCheck will use its internal and proprietary risk management systems to evaluate the risk associated with any particular Item and to assist in its decision whether or not to issue a TeleCheck Approval Code. The decision to issue a TeleCheck Approval Code shall be within the discretion of TeleCheck.
1.7 “Goodwill” of a Returned Item. TeleCheck, in its discretion, may voluntarily reimburse you for a specific Returned Item. TeleCheck’s election to reimburse a Returned Item(s) shall not act as a waiver of TeleCheck’s right to decline to pay any other Returned Item.
Terms Applicable Only to the TeleCheck Electronic Check Acceptance® Service
1.8 ECA® Service. The terms in TeleCheck Sections 1.9.1, 1.9.2 and 1.10 apply only if you use the TeleCheck Electronic Check Acceptance® service. The terms in TeleCheck Sections 1.9.1, 1.9.2 and 1.10 do not apply to Warranty Service Business Transactions that are not ECA Business Transactions.
1.9.1 ECA Processing. You shall not submit to TeleCheck for processing any ECA transaction exceeding $20,000.00. For each ECA Business Transaction that TeleCheck issues a TeleCheck Approval Code, TeleCheck shall, via an electronic funds transfer, effect a credit to your financial institution account for the amount of such transaction as part of an ECA batch. Such credit shall occur: (i) within two banking days following your regular closeout of the point-of-sale terminal and transmission to TeleCheck for settlement processing of the saved ECA Business Transaction, provided that the ECA batch is closed and received by TeleCheck by 9:00 p.m. Central standard time; and (ii) regardless of whether or not consumer’s ECA transaction is paid by consumer's financial institution. TeleCheck reserves the right to decline to process any transaction as an ECA Business Transaction.
1.9.2 TeleCheck will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including, but not limited to, any ACH network participant or your financial institution. In addition to any other remedies available to TeleCheck under this TeleCheck Service Agreement, you agree that should you breach or fail to comply with any terms or conditions in this TeleCheck Service Agreement, TeleCheck may, upon at least a 24-hours’ notice, change processing or payment terms to suspend settlement or other payments of any and all funds, money and amounts now due or hereafter to become due until TeleCheck has had reasonable opportunity to investigate such event. In cases where TeleCheck, in its discretion, has reason to believe that there is fraudulent activity relating to one or more transactions you submit, no prior notice shall be required.
1.10 Retention of ECA Authorization Receipts. You shall cause the consumer to sign an ECA authorization receipt in a form approved by TeleCheck prior to submission of each ECA Business Transaction to TeleCheck for processing. You shall maintain the signed ECA authorization receipt for a minimum of two (2) years from the date of the transaction or for the period specified by the rules of the National Automated Clearing House Association, whichever is longer. Within seven (7) days of TeleCheck’s request, you shall physically deliver either the original or a legible copy of the signed ECA authorization receipt to TeleCheck. You shall, upon reasonable notice and during normal business hours, permit TeleCheck to audit you for your compliance with this requirement.
1.11 The terms in TeleCheck Sections 1.12 and 1.13 apply only if you use the TeleCheck verification service.
1.12 The sole purpose of the TeleCheck verification service (BasXsm or otherwise) is to provide coded information to assist you in deciding whether or not to accept an item. TeleCheck does not guarantee the accuracy or completeness of the information and you agree that there shall be no payment to you by TeleCheck for any loss from transactions processed through the verification service (BasXsm or otherwise) and that you assume all risks that items accepted by you may be dishonored. The Warranty Maximum on any item processed through TeleCheck verification service (BasXsm or otherwise) shall be zero. You shall be billed a flat fee for whole or partial calendar months even if services are not used but are available for use by you.
1.13 If you have elected to subscribe to the Small Ticket Program, all items that exceed $50.00 will be processed through the verification service only. Accordingly, you assume all risks that said items exceeding $50.00 may be dishonored and TeleCheck will make no payment on said items.
1.14.1 Warranty Requirements and ECA Representations. TeleCheck will reimburse you for one Item, up to the Warranty Maximum, per Warranty Service Business Transaction which meets all of the following applicable requirements, and you represent and warrant with respect to all Warranty Service Business Transactions and ECA Business Transactions submitted to TeleCheck for processing under this TeleCheck Service Agreement the following applicable representations:
(a) The check must be a first-party check drawn on a United States, Canadian, Puerto Rican or U.S. Virgin Islands financial institution and must be made payable to you. The name of the individual or company must be imprinted or typed on the check by the check manufacturer. If a P.O. Box is used or the address is not imprinted by the check manufacturer, a physical address description must be written on the check according to TeleCheck’s Operational Procedures;
(b) You received a completely filled-out paper check from the consumer;
(c) The consumer authorized the debiting of consumer’s account and the ECA debit entry is in all respects properly authorized and in an amount agreed to by the consumer;
(d) You shall have made an inquiry to TeleCheck in strict accordance with TeleCheck’s Operational Procedures, and you must have obtained a TeleCheck Approval Code;
(e) TeleCheck Subscriber Number, check writer’s telephone number (including area code), a physical address description, identification type and number and TeleCheck Approval Code must all be printed or written on the check for Warranty Service Business Transactions;
(f) The Warranty Service Business Transaction represents an obligation of the person who is presenting the respective Warranty Service Business Transaction, and the respective transaction is for merchandise actually sold or rented or services actually rendered for the actual price of such merchandise or services (including tax and shipping) and does not involve any element of credit for any purpose;
(g) The signature and physical description of the check writer or consumer on the check and the ECA authorization receipt, if applicable, must reasonably correspond to any signature and description contained in the piece of identification;
(h) The signature in the signature block on the check must not be substantially different from the name imprinted on the check;
(i) The date of the check and the ECA Business Transaction, if applicable, must accurately coincide within one calendar day of both (1) the date of the inquiry call to TeleCheck and (2) the date the transaction actually occurred. (Checks may not predate or postdate by more than one (1) calendar day the day of the inquiry call and the transaction date.);
(j) The amount of the check entered into the TeleCheck system must match exactly, or be not more than one dollar more or a value less than, the amount shown in words and figures on the check, and the amount shown in words and figures on the check and the amount on the consumer’s ECA authorization receipt, if applicable, must all match exactly;
(k) The check must have been deposited in your financial institution account and received by TeleCheck for purchase within thirty (30) days of the date of the check, and such check must be sent directly from your bank after being presented for payment only once (i.e., no re-presentments shall have occurred, whether paper or electronic);
(l) You must have contacted TeleCheck for a single TeleCheck Approval Code on only one check per Warranty Service Business Transaction;
(m) You received a signed ECA authorization receipt from consumer, and either consumer or you voided the signed paper check to which the ECA Business Transaction relates;
(n) You have no reason to question or have notice of any fact, circumstance or defense which would impair the validity or collectibility of the consumer’s obligation or relieve the consumer from liability;
(o) The paper check to which the ECA Business Transaction relates is a personal check and not a business check; and
(p) The consumer shall have signed a separate ECA authorization receipt for each ECA Business Transaction submitted to TeleCheck.
1.14.2 All of the above requirements and representations are material terms of this TeleCheck Service Agreement. By electing to subscribe to the TeleCheck Services, you acknowledge your full knowledge and understanding of the above requirements and representations as they pertain to the services provided to you under this TeleCheck Service Agreement. You shall not be entitled to recover any amounts under this TeleCheck Service Agreement if you fail to timely satisfy any of the terms or conditions of or breach any representation contained in: (i) TeleCheck Section 1.14.1, or (ii) any other terms, conditions or limitations in this TeleCheck Service Agreement.
1.15 Collection and Returned Item Fees. TeleCheck shall be entitled to collect from the consumer and retain any fees or exemplary damages in addition to the amount of the check or ECA Business Transaction, if applicable, which are allowed by law. You shall follow all TeleCheck policies and procedures and post at TeleCheck’s direction any notices which in TeleCheck’s opinion may be required for TeleCheck to collect any such amounts arising from returned, dishonored or unpaid checks or ECA Business Transactions.
1.16 Assignment of Checks and ECA Business Transactions. By electing to subscribe to the TeleCheck Services, you ASSIGN, TRANSFER AND CONVEY to TeleCheck all of your rights, title and interest in any: (i) check submitted to TeleCheck for coverage under the Warranty Service Program; or (ii) ECA Business Transaction submitted by you to TeleCheck under this TeleCheck Service Agreement. You shall, at TeleCheck’s request, in TeleCheck’s discretion, endorse such check and take any action reasonably deemed necessary by TeleCheck to aid in the enforcement of TeleCheck’s rights hereunder.
1.17 Reassignment and Chargeback
1.17.1 TeleCheck, as applicable, may: (i) reassign to you any check purchased by TeleCheck pursuant to the Warranty Service Program provisions of this TeleCheck Service Agreement, or (ii) chargeback to you and debit your financial institution account any ECA Business Transaction submitted to TeleCheck for processing pursuant to this TeleCheck Service Agreement, in any of the following circumstances:
(a) The goods or services, in whole or in part, for which an Item was submitted, have been returned to you, have not been delivered by you or are claimed by the check writer to have been unsatisfactory or are subject to any dispute, set-off or counterclaim;
(b) You have received full or partial payment or security in any form whatsoever to secure payment of the: (i) check or the ECA Business Transaction; or, (ii) goods or services for which the check or ECA Business Transaction was issued or authorized;
(c) The transaction for which the check or the ECA Business Transaction was tendered, or transfer to TeleCheck of the check writer’s check or ECA Business Transaction is for any reason (i) not permitted by applicable law; or (ii) a court of law determines that the check or ECA Business Transaction is, in whole or in part, not due and payable by the consumer, unless such determination results from the check writer’s bankruptcy proceeding;
(d) The check or funds transfer was not issued in connection with a Warranty Service Business Transaction or an ECA Business Transaction;
(e) Any of the representations made by you as set forth in TeleCheck Section 1.14.1 are or become false or inaccurate;
(f) You failed to comply with any of the Terms and Conditions of this TeleCheck Service Agreement;
(g) You or any of its owners, agents or employees: (i) materially altered either the check or ECA authorization receipt; or (ii) accepted the check or processed the ECA Business Transaction with reason to know that the check or the ECA Business Transaction was likely to be dishonored or that the identification used to authorize the check or the ECA Business Transaction was forged, altered or did not belong to the check writer;
(h) The ECA authorization receipt was incomplete or unsigned;
(i) A duplicate ECA Business Transaction relating to the same ECA Business Transaction was received and processed or the original paper check was deposited, thereby creating a duplicate entry against the check writer’s financial institution account;
(j) A legible copy of the ECA authorization receipt is not received by TeleCheck within seven (7) days of a request by TeleCheck;
(k) The consumer disputes authorizing the ECA Business Transaction or the validity or accuracy of the transaction;
(l) You receive notice that the check writer of a dishonored Item filed bankruptcy and failed to notify TeleCheck of the bankruptcy within three business days of receipt of such notice; or
(m) A TeleCheck Approval Code has not been issued for the ECA Business Transaction or the closeout of the ECA batch and transmission of the ECA Business Transaction to TeleCheck for settlement processing does not occur within seven (7) days from the date the TeleCheck Approval Code is issued for the ECA Business Transaction.
1.17.2 You shall immediately notify TeleCheck upon the happening of any of the above circumstances. If the check (including a check processed as an ECA Business transaction) is reassigned as provided herein, TeleCheck may debit your financial institution account in the amount paid by TeleCheck for the Item, or upon request, you shall remit the amount of the Item to TeleCheck. TeleCheck may also chargeback to you any amount over the Warranty Maximum on any ECA Business Transaction where TeleCheck has not received payment for such ECA Business Transaction within sixty (60) days of the date of the ECA Business Transaction. Upon reassignment or charging back of an Item, TeleCheck shall have no further liability to you on such Item. Following termination of the TeleCheck Services, you shall continue to bear total responsibility for any reassignments, chargebacks and adjustments made under this TeleCheck Section 1.17.2 and TeleCheck Section 1.17.1.
1.18 Updating Information. With regard to any Items submitted or reported to TeleCheck, you shall promptly notify TeleCheck if: (i) a check writer makes any payment to you on a Dishonored Item; (ii) there is a return of goods or services, in whole or in part, which were paid with a Dishonored Item; or, (iii) there is a dispute of any amount, notice of bankruptcy or any other matter with regard to a Dishonored Item.
1.19 Credit Law Compliance. You certify that: (i) you have a legitimate business need, in connection with a business transaction initiated by the consumer, for the information provided by TeleCheck under this TeleCheck Service Agreement regarding such consumer; and, (ii) the information provided by TeleCheck will only be used for permissible purposes as defined in the Fair Credit Reporting Act, and applicable state and federal laws, with the exception that the information will not be used for employment purposes, and will not be used by you for any purpose other than a single business transaction between you and consumer occurring on the date of inquiry call to TeleCheck. Neither you, nor your agents or employees, shall disclose the results of any inquiry made to TeleCheck except to the consumer about whom such inquiry is made and in no case to any other person outside your organization. If you decide to reject any transaction, in whole or in part, because of information obtained from TeleCheck, you agree to provide the consumer with all information required by law and TeleCheck.
1.20 Use of TeleCheck Materials and Marks. TeleCheck grants to you, and you accept, a nonexclusive, nonassignable and nontransferable temporary permission, uncoupled with any right or interest, to use TeleCheck’s marks: TELECHECK®, TELECHEQUE®, TELECHECK ELECTRONIC CHECK ACCEPTANCE®, ECA® and the TELECHECK LOGO® (collectively, the “TeleCheck Marks”) and to use and display decals, identification data and other materials provided by TeleCheck during the term of the TeleCheck Services solely in connection with the offering of the TeleCheck services authorized under this TeleCheck Service Agreement. In addition, the following may appear at least once on every piece of advertising or promotional material used by you:”(insert applicable TeleCheck Mark) is a trademark owned by TeleCheck International, Inc. and is licensed for use by ‘Your Name’” provided, however, that no such advertising or promotion using any TeleCheck Mark or TeleCheck name shall be done without the prior written consent of TeleCheck. You shall use the designation “®” and “sm” in conjunction with those TeleCheck Marks, which are registered trademarks and service marks, respectively, of TeleCheck. Upon termination of the TeleCheck Services, you shall either return or destroy all TeleCheck materials (including, without limitation, the prompt removal of decals or other materials that are affixed and displayed to the public). The monthly fees payable to TeleCheck by you under this TeleCheck Service Agreement shall apply for all months or fractions of a month any materials or TeleCheck-owned equipment remain in use by you. You shall maintain the confidentiality of this Agreement and any information provided to you by TeleCheck, including, without limitation, TeleCheck Operational Procedures, pricing or other proprietary business information, whether or not such information is marked confidential. You shall not permit any persons other than your own officers or employees at your locations to use the TeleCheck Subscriber Number assigned by TeleCheck.
You shall not use any TeleCheck Marks in conjunction with or on the Internet. You shall take all actions reasonably required by TeleCheck to ensure that the TeleCheck Marks and other TeleCheck materials do not become part of the public domain or are otherwise appropriated by any person or entity to the detriment of TeleCheck. You acknowledge TeleCheck’s ownership of the TeleCheck Marks and agree that it will do nothing inconsistent with such ownership. You shall promptly notify TeleCheck of any unauthorized use of the TeleCheck Marks by third parties of which you become aware.
1.21 Use of Information. You agree that: (i) any data and other information relating to an Item or consumer obtained by TeleCheck in connection with any service provided hereunder (including any electronic or other image of all or any portion of any check or Driver’s License or other identification) shall be owned by TeleCheck with all right, title and interest thereto; (ii) TeleCheck may use any credit information provided to a TeleCheck affiliate or to your credit card processor for TeleCheck’s credit review; (iii) TeleCheck may provide or receive any experiential information regarding you or your customers to or from any TeleCheck affiliate or your credit card processor; and (iv) TeleCheck is entitled to obtain your credit card sales data from point-of-sale equipment or from any TeleCheck affiliate or your credit card processor for use in TeleCheck’s aggregate reporting of retail sales trends.
1.22 TeleCheck Procedures. You shall strictly follow all TeleCheck Operational Procedures provided to you, as may be amended from time to time by TeleCheck, in its discretion, including the TeleCheck Operational Procedures relating to the TeleCheck Marks. To the extent that there is any conflict between the TeleCheck Operational Procedures and the terms of this TeleCheck Service Agreement, the terms of this TeleCheck Service Agreement shall govern. If you are authorized to use TeleCheck-owned or supplied equipment and/or ECA services pursuant to this Section, you will use such equipment or service only for the processing of completely filled-out checks (i.e., negotiable instruments). Any other use of TeleCheck-owned or supplied equipment or ECA services is unauthorized, and you covenant not to make any such use of the equipment or ECA services. Should you make any use of TeleCheck-owned or supplied equipment or ECA services other than those expressly authorized by this TeleCheck Service Agreement, you agree to indemnify, defend and hold harmless TeleCheck as set out in TeleCheck Section 1.24.
1.23 Assignment of Agreement. The obligations and rights under this TeleCheck Service Agreement may be assigned by you only with the prior written consent of TeleCheck. TeleCheck may freely assign its rights, benefits or duties hereunder. Subject to the foregoing, this TeleCheck Section 1.23 shall inure to the benefit of and be binding upon the successors and assigns of TeleCheck and your heirs, executors, administrators, successors and assigns.
1.24 Legal Responsibility. In the event you violate any terms or conditions of this TeleCheck Service Agreement, you shall indemnify, defend and hold harmless TeleCheck and its affiliates from and against all claims arising therefrom, including payment of all costs and reasonable attorney’s fees for actions taken by TeleCheck, whether by suit or otherwise, to defend TeleCheck or its affiliates from any claims related thereto or to preserve or enforce TeleCheck’s rights under this TeleCheck Service Agreement, and TeleCheck shall have the right to immediately repossess all equipment owned by TeleCheck. In the event of any legal action with third parties or regulatory agencies concerning any transaction or event arising under this TeleCheck Service Agreement, you shall: (i) promptly notify TeleCheck of the Claim(s) or legal action; (ii) reasonably cooperate with TeleCheck in the making of any Claim(s) or defense(s); and (iii) provide information, assist in the resolution of the Claim(s) and make available at least one employee or agent who can testify regarding said Claim(s) or defense(s). You shall indemnify, defend and hold harmless the TeleCheck Parties from any Claim(s) arising from any false or inaccurate representation made by you or from your failure to strictly comply, in whole or in part, with any: (i) TERMS AND CONDITIONS pursuant to this TeleCheck Service Agreement and any addenda hereto or TeleCheck Operational Procedures; or (ii) applicable law. Upon written notice from TeleCheck to you, you shall immediately undertake the defense of such Claim by representatives of your own choosing, subject to TeleCheck’s reasonable approval; provided, however, that TeleCheck shall have the right to control and undertake such defense by representatives of its own choosing, but at your cost and expense, if the Claim arises out of patent, trademark, or other intellectual property rights or laws. In no event shall TeleCheck be liable to you, or to any other person or entity, under this TeleCheck Service Agreement, or otherwise, for any punitive, exemplary, special, incidental or consequential damages, including, without limitation, any loss or injury to earnings, profits or goodwill. Notwithstanding anything to the contrary contained in the TeleCheck Service Agreement, in no event shall TeleCheck’s liability under this TeleCheck Service Agreement for all Claims arising under, or related to, this TeleCheck Service Agreement exceed, in the aggregate (inclusive of any or all Claims made by you against TeleCheck, whether related or unrelated), the lesser of: (i) the total amount of fees paid to TeleCheck by you pursuant to this TeleCheck Service Agreement during the 12-month period immediately preceding the date the event giving rise to such Claim(s) occurred; or (ii) $75,000.00.
1.25 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN TELECHECK SECTION 1.6, TELECHECK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT, THE SALE OF ANY EQUIPMENT BY TELECHECK TO YOU, OR FROM PERFORMANCE BY TELECHECK, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, ALL OF WHICH ARE EXPRESSLY WAIVED BY YOU. All decisions to reject any check or ECA transaction, driver’s license or other form of identification or payment for your products or services are solely your responsibility. You assume all risks that any and all checks (including checks processed as ECA Transactions) accepted by you may be dishonored, whether or not TeleCheck has issued a TeleCheck Approval Code with respect to such check(s).
1.26 Notices. Any notice or other communication required or permitted to be given under this TeleCheck Service Agreement shall be in writing and shall be hand delivered or delivered by facsimile transmission or overnight courier or certified or registered mail (and if sent by you by mail, postage prepaid return receipt requested) addressed or transmitted to the party to be notified at such party’s address or number as provided on front of the Application or at such party’s last known address or number. Any notice delivered hereunder shall be deemed effective upon delivery, if hand delivered or sent by overnight courier, and upon receipt, as evidenced by the date of transmission indicated on the transmitted material if by facsimile transmission, or the date of delivery indicated on the return receipt, if mailed as aforesaid. Notwithstanding the foregoing, TeleCheck shall be entitled to provide any notice hereunder by regular U.S. mail if such notice is included with Subscriber's monthly invoice. Such notice shall be deemed effective three days after deposit with the U.S. mail. The parties’ addresses may be changed by written notice to the other party as provided herein.
1.27 Force Majeure. TeleCheck shall not be held responsible for any delays in or failure or suspension of service caused by mechanical or power failure, computer malfunctions (including, without limitation, software, hardware and firmware malfunctions), strikes, labor difficulties, fire, inability to operate or obtain service for its equipment, unusual delays in transportation, act of God or other causes reasonably beyond the control of TeleCheck.
1.28 Governing Law and Integration. You shall comply with all applicable laws, regulations and rules, including NACHA rules and guidelines, relating to the services provided hereunder. This TeleCheck Service Agreement, plus any addenda attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous understandings, representations and agreements in relation to its subject matter. THIS TELECHECK SERVICE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
1.29 Severability and Interpretation. If any provision, in whole or in part, of this TeleCheck Service Agreement is held invalid or unenforceable for any reason, the invalidity shall not affect the validity of the remaining provisions of this Agreement, and the parties shall substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Neither this TeleCheck Service Agreement, nor any addenda or TeleCheck Operational Procedures, shall be interpreted in favor or against any party because such party or its counsel drafted this TeleCheck Service Agreement, or such addenda or TeleCheck Operational Procedures. No course of dealing, usage, custom of trade or communication between the parties shall modify or alter any of the rights or obligations of the parties under this TeleCheck Service Agreement. This TeleCheck Service Agreement is solely for the benefit of TeleCheck (and its affiliates) and you and no other person or entity shall have any right, interest or claim under this TeleCheck Service Agreement. As used in this TeleCheck Service Agreement, (i) the term “include,” or any derivative of such term, shall not mean that the terms following such term are the only types of such items; (ii) the term “shall” indicates a mandatory obligation; (iii) the term “may” indicates a permissive election and does not imply any duty to exercise such election; and (iv) the term “discretion” means the sole and absolute discretion of the party granted the discretion, absent an express limitation on such discretion.
1.30 Amendment and Waiver. No modification, amendment or waiver of any of the TERMS AND CONDITIONS of this TeleCheck Service Agreement shall be binding upon TeleCheck, whether written, oral or in any other medium, unless made in writing and approved and signed by TeleCheck. All rights and duties within this TeleCheck Service Agreement are material and time is of the essence; no waiver of any rights hereunder shall be deemed effective unless in writing executed by the waiving party; no waiver by either party of a breach or any provision of this TeleCheck Service Agreement shall constitute a waiver of any prior or subsequent breach of the same or any other provision of this TeleCheck Service Agreement; no failure to exercise, and no delay in exercising, any right(s) hereunder on the part of either party shall operate as a waiver of any such right; all of TeleCheck’s rights are cumulative; and no single or partial exercise of any right hereunder shall preclude further exercise of such right or any other right.
1.31 Damages. Upon your breach or unauthorized termination of the TeleCheck Services, TeleCheck shall be entitled to recover from you liquidated damages in an amount equal to ninety percent (90%) of the total aggregate charges payable for the unexpired portion of the then-current term of the TeleCheck Services. TeleCheck and you hereby acknowledge and agree that, after giving due consideration to the costs TeleCheck may incur by reason of your breach or unauthorized termination of the TeleCheck Services, to the possibility that TeleCheck will not be able to mitigate its damages, and to the expense savings that TeleCheck may obtain by not having to provide services, equipment or maintenance, the liquidated damages specified herein constitute a realistic pre-estimate of the loss to TeleCheck in the event of such breach or unauthorized termination of the TeleCheck Services and will not be construed as a penalty.
1.32 Survivability. All representations, warranties, indemnities and covenants made herein shall survive the termination of this Agreement and shall remain enforceable after such termination.
This ends the TeleCheck Service Agreement