Terms and Conditions

Hosted Services Agreement

 

1.   Defined Terms. Capitalized terms used in the Agreement will have the meanings stated in Appendix 1. 

 

2.   Services; CenPOS Platform. The territory for this Agreement is specified on the Enrollment Form (the "Territory"). With respect to Transactions in Canada, Section 16 will apply. The services that Company elects to receive are set forth on the Enrollment Form. CenPOS will provide the services hereunder via the CenPOS omni-channel commerce platform (the "CenPOS Platform"). Depending on the desired implementation, Company may access the CenPOS Platform via full gateway integration/API, via a virtual terminal, or via the CenPOS Platform mobile application (the "CenPOS Application"). Company's use of the CenPOS Application is subject to the CenPOS Terms of Use and the End User License Agreement for the CenPOS Application, which is available on the CenPOS Application.

 

2.1. Core Gateway Services. The CenPOS Platform will:

 

(a) Support Payment Device authorization data and facilitate the transmission of authorization and settlement information related to Transactions to and from various Origination Points (i.e.., CenPOS-supported POS Devices or other integrations) used by Company. 

 

(b) Submit Transactions received from an Origination Point in accordance with this Agreement for authorization to the Destination Point designated by Company, and will return to the Origination Point the authorization response message received from such Destination Point. 

 

(c) Aggregate Company's daily Transactions into settlement files and will initiate the transfer of the settlement files to the designated Destination Points. 

 

2.2. Tokenization Services. 

 

(a) The "Tokenization Services" consist of a tokenization feature pursuant to which CenPOS will provide Company with randomized numerical tokens in substitution for the account numbers associated with certain types of cards and other payment devices as further specified in the CenPOS Developers Guide, as the same may be updated by CenPOS from time to time (each such number, a "Card Account Number"). More specifically, when a Card Account Number associated with a Transaction is transmitted from Company to CenPOS through the CenPOS Platform, CenPOS will generate a token, associate the token with the Card Account Number, and send the token, instead of the Card Account Number, back to Company in the Transaction authorization response message.

 

(b) The token, rather than the associated Card Account Number, may be submitted by Company to CenPOS through the CenPOS Platform to process additional Transactions to the Credit Card or signature debit card associated with such token across all Company locations.

 

2.3. Electronic Bill Presentment and Payment Service ("EBPP"). If Company elects to receive EBPP, the following terms apply:

 

(a) Company requests for EBPP invoice payment require that the Company submit a valid Customer email address and or mobile phone number along with other required data for successful operation of the service.

 

(b) At Company's direction, EBPP requests allow CenPOS to send only electronic information to Customers for the payment of invoices. 

 

(c) Company is responsible for the accuracy and validity of all information provided by the Company, and for insuring that invoices it produces through the use of the EBPP functionality comply with applicable Laws and are sufficient to fulfill Company's business needs.

 

(d) CenPOS is not liable for any malfunction, including Company system or process failures or Customer network and device problems.

 

(e) Company must honor all Customer 'STOP' messages to halt delivery of messages.

 

2.4. Validated Point-to-Point Encryption ("vP2PE"). If Company elects to receive vP2PE, the following applies:  With respect to vP2PE, Company understands that proper implementation and maintenance of its own environment, processes, and procedures are required to maintain validation. Company will comply with all rules from the PCI Security Standards Council, including validated P2PE solutions. Company will also follow the installation procedures outlined in the CenPOS P2PE Installation Manual.

 

2.5. CDK Global. If Company's use of the CenPOS Platform is integrated with CDK GLOBAL software solutions, then (i) CDK GLOBAL, its affiliates and their respective officers, directors, employees, contractors, agents and representatives and their successors and assigns, will not be responsible for any problem that is attributed solely to software applications or services (including the CenPOS Platform) provided by CenPOS, (ii) CenPOS, its affiliates and their respective officers, directors, employees, contractors, agents and representatives and their successors and assigns, will not be responsible for any problem attributed solely to the software, equipment or systems of CDK GLOBAL or its customers or the acts or omissions of CDK GLOBAL or its customers or their respective contractors or any technology or equipment provided by CDK GLOBAL or any party other than CenPOS; (iii) Company is prohibited from sublicensing or otherwise transferring the CDK GLOBAL CenPOS integration to any other entity or use the CDK GLOBAL CenPOS integration to access data of any other party, (iv) no guaranty is made by CDK GLOBAL or CenPOS that the CenPOS Platform and CDK GLOBAL CenPOS integration will work with any other system, software or application that Company may be using and (iv) Company is providing express consent for CenPOS to obtain data from CDK GLOBAL for use in providing CenPOS Platform.

 

2.6. Functionality and Reporting. The CenPOS Platform provides Company with the functionality for Transaction initiation, batch management, settlement balancing, token management, administrative account management, and a reporting portal for Transaction research and reporting (reporting will vary depending on the services Company elect to receive). System reporting will be available to all Authorized Users via a secure password and log-on access.

 

2.7. Support Services. CenPOS will operate a technical support call center twenty four hours per day, seven days per week, three hundred sixty five days per year (24x7x365).

 

2.8. License and Use. 

 

(a) License Grant. Subject to paragraph (b) below, CenPOS grants to Company a nonexclusive, nontransferable license (without a right of sublicense) to access and use the CenPOS Platform (including the CenPOS Materials and the CenPOS Application) from within the Territory (unless otherwise specified on the Enrollment Form) exclusively for Company's internal business use to receive the services provided hereunder. 

 

(b) Prohibitions. Company will not, and will ensure that its employees, agents, contractors, and vendors do not: (i) copy, re-sell, republish, download, frame or transmit in any form or by any means the CenPOS Platform, or any part thereof; (ii) rent, lease, subcontract, operate or otherwise grant access to, or use for the benefit of, any third party, the CenPOS Platform; (iii) decompile, disassemble, reverse engineer or translate the CenPOS Platform; (iv) modify or make derivative works of the CenPOS Platform; (v) without CenPOS's prior written consent, grant any third party access to the computers, hardware, system or equipment on which the CenPOS Platform is accessible; (vi) attempt to interfere with or disrupt the CenPOS Platform or attempt to gain access to any other services, hardware or networks owned, maintained or operated by CenPOS, its Affiliates, or its suppliers; (vii) disclose any passwords or other security or authentication device with respect to the CenPOS Platform to anyone other than the person to whom it was issued; (viii) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the CenPOS Platform; (ix) directly or indirectly, ship, export or re-export the CenPOS Platform or any services provided hereunder; (x) directly or indirectly resell or re-offer the CenPOS Platform or any services provided hereunder; or (xi) act as a gateway through which a third party may gain access to the CenPOS Platform or services provided hereunder.

 

(c) Passwords and User IDs. Company will (i) distribute all user IDs and passwords issued to any Authorized User, (ii) maintain the confidentiality and security of Authorized User's user IDs and passwords, (iii) ensure that the access granted to each Authorized User to the CenPOS Platform is limited to only the access and information necessary for the Authorized User to perform his or her job functions on behalf of Company, (iv) disable any Authorized User's user ID and password promptly upon the termination of such Authorized User's employment or the cessation of such Authorized User's need to access the CenPOS Platform, (v) change the user IDs and passwords of its Authorized Users if it believes that any of those user IDs or passwords have been stolen or might otherwise be misused, and (vi) promptly notify CenPOS if Company believes the CenPOS Platform or CenPOS's databases have been compromised by use of a user ID or password. Company is responsible for its Authorized Users' compliance with the terms of the Agreement and the CenPOS Materials, for all acts or omissions of the Authorized Users, and for all use of any user ID and password other than by CenPOS or CenPOS's third-party contractors. 

 

(d) Developer Guide. if Company integrates to the CenPOS Platform directly, then Company will be responsible for: (i) complying with the CenPOS Developer Guide to (which CenPOS will provide via a URL), (ii) all content, design and development of any Customer-facing payments website or interface, except to the extent such content, design and development is exclusively controlled by CenPOS as set forth in the CenPOS Developer Guide, and (iii) configuring the CenPOS interface in accordance with the CenPOS Developer Guide.

 

(e) Customer E-mails/Phone Numbers. Company understands that the collection, use and disclosure of Customer email addresses and mobile phone numbers is regulated and subject to privacy and anti-spam laws. If CenPOS makes available to Company any Customer e-mail addresses or mobile phone numbers obtained through the use of the CenPOS Platform, then Company will, with respect to the use of such information, comply with  all applicable (a) privacy laws, including by publishing a privacy policy that accurately reflects Company's data collection, use, retention, and sharing practices, and (b) anti-spam laws, including CAN-SPAM and CASL (Canada's anti-spam legislation).

 

(f) Credit Arrangements.  If Company chooses to use the functionality in the CenPOS Platform that allows for payment in multiple installments, it will comply with all Laws relating to the offering and marketing of consumer credit (including the federal Truth in Lending Act, Regulation Z, and any applicable state laws), including by creating compliant disclosures and delivering them to Customers.  Company acknowledges that (i) the CenPOS Platform does not itself establish credit terms or evidence any credit agreement, nor provide any disclosures or formatting required under state or federal credit laws relating to the offering and marketing of consumer credit, (ii) CenPOS does not participate in any credit decision and has no responsibility or liability to Customers or Company with respect to offering or marketing of consumer credit.  

 

(g) Recurring Payments and Storing Payment Information.  If Company chooses to use the functionality in the CenPOS Platform that allows for recurring payments or storing Customer payment information for later use, it will comply with all Laws relating thereto, including by creating compliant disclosures and delivering them to Customers and obtaining any required Customer consents.  

 

3. Operation of the Gateway Services. 

 

3.1. CenPOS Compatibility. To provide gateway services with respect to a certain Destination Point, CenPOS must be certified with that Destination Point. Company acknowledges that CenPOS may not be certified with, or remain certified with, all Destination Points, so the gateway services may not be available for all Destination Points.

 

3.2. Company Location Set-up and Boarding. Company will cooperate with CenPOS in relation to Company boarding and the validation process. If CenPOS requires information from third parties that interact with Company to complete the boarding or validation process, Company will provide or cause such third parties to provide to CenPOS all such information (including specifications and data) so that CenPOS may confirm that the CenPOS Platform and each Company location and Origination Point are configured to process Transactions through the CenPOS Platform. CenPOS may rely on the information provided by Company in connection with CenPOS's set-up and boarding of a Company location and Origination Point in the CenPOS Platform and in CenPOS's performance of the Gateway Services, including identification and set-up of Destination Points, Payment Services Entities, Company ID, Company category code, Designated Charities, and any other information that may impact the services provided hereunder. Company will notify CenPOS of any changes to any Company location information, including any Company ID, in writing at least 10 days prior to the effective date of such changes and will identify in the notice the date as of which CenPOS should implement the change within the CenPOS Platform. CenPOS will use commercially reasonable efforts to implement any such changes in accordance with Company's reasonable instructions. CenPOS will not be liable for any errors in the handling of Gateway Data, the processing of Transactions or in the performance of the service hereunder that are attributable to (i) inaccurate or incomplete information or data provided by Company or (ii) CenPOS's reliance upon Company's instructions with respect to Company boarding and validation. 

 

3.3. Implementation. Company will bear the cost of any preparation of its facilities necessary for it to access and use the CenPOS Platform.

 

3.4. Connectivity. Company is responsible for implementing and maintaining Company's connectivity to the CenPOS Platform. CenPOS will not be liable for Company's use of Company's or a third party's telecommunications services and related networks, or for any connectivity failure, erroneous transmission, corruption or loss of data, or inability to access the CenPOS Platform, resulting from Company's or a third party's telecommunications systems, equipment, resources, or software. Company is responsible for the physical and technical security of Company resources.

 

3.5. Settlement Funds. CenPOS has no responsibility for Company's receipt of settlement funds in connection with any Transaction pursuant to this Agreement, or for reconciling funds received in settlement of Transactions against actual Transaction activity. Further, CenPOS has no responsibility under this Agreement for the characterization or classification of any Transaction by any Transaction Processor or Payment Services Entity for interchange or other fee purposes.

 

3.6. Customer Contributions.  Company is responsible for ensuring that all Customer Contributions are remitted timely to the appropriate Designated Charity, consistently with any and all representations made to Customers concerning Customer Contributions, during payment Transactions or otherwise.  Company is responsible for compliance with any federal, state or provincial charitable solicitation laws, including registration or reporting obligations, and any consumer protection or other laws that may apply to Company as a result of Company's acceptance of Customer Contributions or of any representations Company makes to Customers regarding Customer Contributions or Designated Charities.  CenPOS has no responsibility to, and shall not be liable to, Company, Designated Charities, or any third party for any failure by Company to remit Customer Contributions to a Designated Charity or for any failure by Company to comply with any laws that may apply to Company as a result of Company's acceptance of Customer Contributions or of any representations Company makes to Customers regarding Customer Contributions or Designated Charities.

 

3.7. Monitoring. CenPOS may monitor access to the CenPOS Platform and may prohibit any access or use of data or information within it that CenPOS reasonably believes is unauthorized, may violate Law or Payment Network Regulations, or that may pose an unacceptable risk of material harm to CenPOS, its affiliates, or the CenPOS Platform. CenPOS has no obligation to detect or prevent, and will not be liable for failing to detect or prevent, any unauthorized access to or use of the CenPOS Platform using any password or user ID assigned to or by Company.

 

3.8. Updates. CenPOS may provide Updates to the CenPOS Platform and applicable CenPOS Materials from time to time. If Company action is needed to facilitate an Update, Company will promptly take such action.

 

3.9. Gateway Data; Retention and Delivery.

 

(a) CenPOS will not be responsible for the content or accuracy of any Gateway Data provided or made available by Company or its Authorized Users, or for the actions or inactions of the designated Destination Points regarding processing the settlement file or any Transactions. CenPOS will not be liable for any error, omission, defect, deficiency, or nonconformity in data or results obtained through Company's use of the CenPOS Platform, except to the extent caused by CenPOS's breach of this Agreement.

 

(b) Subject to CenPOS's obligations under this Agreement, CenPOS will not be responsible for any Gateway Data that Company accesses or downloads from the CenPOS Platform. Company will be responsible for maintaining "backups" of data (e.g., Transaction receipts or detailed reporting) as Company deems necessary to permit Company to reconstruct any data lost due to any malfunction of Company's or CenPOS's systems. 

 

(c) The CenPOS Platform may permit Authorized Users to send and receive Gateway Data to and from third parties in connection with the viewing and transmission of Gateway Data pursuant to this Agreement. CenPOS is not obligated to regulate or track the viewing, transmittal or receipt of any data to or by such third parties and will not be liable or responsible for (i) the viewing or use of Gateway Data by a third party who has accessed or received such data (a) from Company or any Authorized User, or (b) using any user ID assigned to Company; or (ii) any transmission of Gateway Data outside of the CenPOS Platform by anyone other than CenPOS. By transmitting any data to any third party or providing any third party with access to data, Company warrants that it has the right and authority to transmit or provide access to that data to each such third party.

 

(d) Irrespective of the confidentiality obligations in this Agreement, CenPOS will not be responsible for the maintenance of confidentiality of any information by any Payment Services Entity or any other third party to whom CenPOS may transmit information at the direction of Company or as part of performing the services hereunder.

 

4. Term and Termination. 

 

4.1. Term. Unless terminated as provided below, the Agreement will remain in effect for the term set forth on the Enrollment Form (the "Initial Term"). Thereafter, the Agreement will automatically renew for successive one year terms (each a "Renewal Term" and together with the Initial Term, the "Term") unless terminated as provided below. Notwithstanding the foregoing, if no Initial Term has been listed on the Enrollment Form, the Agreement will continue on a month-to-month basis.

 

4.2. Termination.

 

(a) Non-Renewal. Either party may terminate the Agreement effective at the end of the Initial Term or any Renewal Term by providing written notice of non-renewal to the other party at least 90 days prior to the expiration of the then current term. 

 

(b) By Company. 

 

(i) Company will have the right to terminate the Agreement upon written notice to CenPOS in the event CenPOS materially breaches the Agreement and the material breach is incapable of cure or remains uncured for a period of 30 days after receipt by CenPOS of a written notice of breach from Company specifying the nature of the breach.

 

(ii) Company will have the termination rights set out in Section 5.1, Section 15.9 and Section 15.13.

 

(c) By CenPOS. CenPOS will have the right to terminate the Agreement, upon written notice to Company, in the event of any of the following:

 

(i) Company is in monetary default of the Agreement for a period of 15 days after receipt of written notice of such default from CenPOS; or

 

(ii) Company otherwise materially breaches the Agreement and the breach is incapable of cure or remains uncured for a period of 30 days after receipt by Company of a written notice of breach from CenPOS specifying the nature of the breach.

 

4.3. Immediate Termination by CenPOS. Notwithstanding any cure period described herein, CenPOS will further have the right to immediately terminate the Agreement or Company's use of the CenPOS Platform, without further liability on the part of CenPOS, upon written notice to Company in the event of any of the following: (i) CenPOS determines, in its reasonable discretion, that it is commercially impractical to continue performing the services hereunder, including in light of a change in Law, Payment Network Regulations or the requirements of any Payment Services Entity; (ii) any Payment Network or Payment Services Entity prohibits CenPOS from providing, or prohibits Company from receiving, the gateway services related to that Payment Network or Payment Services Entity or otherwise requires that CenPOS terminate the gateway services; (iii) in the event of a Change of Control of Company; (iv) Company is subject to a bankruptcy, insolvency, or creditor remedy proceeding; (v) Company engages in activities that violate or cause CenPOS to violate Payment Network Regulations or which cause CenPOS to violate its agreement with any Payment Services Entity; or (vi) CenPOS determines, in its reasonable discretion, that Company has engaged in activities that are fraudulent, that violate applicable Laws or Payment Network Regulations, or that cause CenPOS to violate applicable Laws or Payment Network Regulations, or that damage the goodwill of CenPOS or any of the Payment Networks.

 

4.4. Effect of Termination or Expiration. If this Agreement terminates or expires, all permissions granted to Company to use the CenPOS Platform will immediately cease, and CenPOS may disable connectivity and all access by Company and Authorized Users to the CenPOS Platform, including all user IDs and passwords. Company will promptly pay CenPOS all fees due to CenPOS up to the effective date of termination or expiration. If Company continues accessing the CenPOS Platform following the expiration or the termination of this Agreement, Company will be subject to all of its duties and obligations under this Agreement consistent with such access or use, including Company's obligation to comply with Law and Payment Network Regulations and to pay the fees and other amounts due to CenPOS for such access and use, until CenPOS or Company terminates such access and use.

 

5. Fees and Taxes. 

 

5.1. Fees. Company will promptly pay to CenPOS the fees set forth on the Enrollment Form. Company will be responsible for, and CenPOS may pass through to Company, all fees, fines, penalties, or assessments imposed by any Destination Point or other Payment Services Entity, Payment Network or other third party as a result of the Company's activities, acts or omissions. CenPOS may increase the fees set forth on the Enrollment Form or any schedule or addendum to the Agreement to pass through to Company, without mark-up, any increases in or any new fees imposed by a Destination Point or other Payment Services Entity, Payment Network or other third party. CenPOS may also increase fees that are not "pass-through" fees at any time upon notice to Company via periodic statement or other notice at least 30 days before such increase becomes effective. If CenPOS increases non-pass-through fees by more than five percent in any calendar year, Company may terminate this Agreement in writing within 30 days of notification of such increase. 

 

5.2. Taxes. The fees listed in the Agreement do not include sales, use, excise, property, value added, gross receipts or any other taxes or import or export duties. If any taxes or duties are assessed on the services provided hereunder, Company is obligated to pay those taxes and duties as required under applicable Laws and will reimburse CenPOS for any such taxes or duties, except for taxes based on CenPOS's property or net income. If Company is a tax-exempt entity, Company will provide CenPOS with an appropriate certificate of tax exemption.

 

5.3. Demand Deposit Account. Company will establish and maintain with an automated clearing house ("ACH") participating financial institution one or more demand deposit accounts ("DDAs") to facilitate payment of fees to CenPOS. Company irrevocably authorizes CenPOS and its affiliates to initiate ACH credit and debit entries to the DDA to pay the fees and any other amounts that may be due by Company to CenPOS under the Agreement, and authorizes Company's depository institution to grant CenPOS access to any information or records regarding the DDA reasonably requested by CenPOS to debit or credit the DDA and to otherwise exercise CenPOS's rights under the Agreement with respect to the DDA. The foregoing authorizations will remain in effect after termination of the Agreement until all of Company's payment obligations to CenPOS have been paid in full. CenPOS has the right to rely on written instructions submitted by Company requesting changes to the DDA. If Company changes the DDA, the ACH authorizations established hereunder will apply to the new account and Company will provide CenPOS such information regarding the new DDA as CenPOS deems necessary to effect debits from or credits to the DDA. It may take CenPOS up to 10 business days after receipt of a written notice from Company to reflect in CenPOS's system a change to the DDA. Unless otherwise indicated in the Enrollment Form, CenPOS will debit any fees Company owes to CenPOS from Company's DDA within 30 days of the occurrence of the Transaction or other event that caused such fees to be payable to CenPOS, and CenPOS will submit a statement showing the amounts owed and debited within 30 days of debiting any DDA. If invoicing is indicated in a schedule or addendum to the Agreement, instead of direct debiting of DDAs when fees are owed, then CenPOS will submit to Company an invoice for such fees owed by Company in connection with the Agreement on a monthly basis and Company will pay the amounts reflected therein within the time period set forth therein. 

 

6. Compliance with Laws and Payment Network Regulations.

 

6.1. General. CenPOS and Company will each comply with all Laws and Payment Network Regulations applicable to the services provided hereunder. 

 

6.2. Office of Foreign Assets Control Compliance. Company acknowledges that CenPOS is an entity governed by the Laws of the United States of America and as such, cannot provide any products or services to Company or its Customers that contravene the Laws of the United States of America, including the Laws promulgated by OFAC or the United States Department of the Treasury or any successor thereto. 

 

6.3. Export Laws Compliance. Company will comply with all United States export Laws governing the export and re-export of hardware, software or technology applicable to the CenPOS Platform and Equipment, including United States Department of State International Traffic In Arms Regulations (ITAR), United States Foreign Corrupt Practices Act, United States Commerce Department's Export Administration Regulations, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and Laws promulgated by OFAC or the United States Department of the Treasury or any successor thereto. Company will not, and will not request CenPOS to, export, directly or indirectly, any technical data pursuant to the Agreement or any product using any such data to any country for which the United States government or any agency thereof at the time of export requires an export license or other approval without first obtaining such license or approval.

 

6.4. Customer Identification. To help governmental authorities fight the funding of terrorism and money laundering activities, applicable law requires financial institutions and their affiliates to obtain, verify, and record information that identifies each person who opens an account. Accordingly, Company will provide certain information and identifying documents requested by CenPOS to allow CenPOS to identify Company and its representatives, as applicable. 

 

7. Confidentiality; Data Security and Use. 

 

7.1. Confidentiality.

 

(a) Confidential Information Generally. Each party will protect the other party's Confidential Information from unauthorized disclosure, publication, or dissemination with the same standard of care and discretion it employs with similar information of its own, but in no event less than reasonable care, and will not use, reproduce, distribute, disclose, or otherwise disseminate the other party's Confidential Information except in connection with the performance of its obligations or rights under the Agreement. The Receiving Party acknowledges that any breach of this Section 7.1 by the Receiving Party may result in irreparable harm to the Disclosing Party for which monetary damages may not provide a sufficient remedy. Therefore, the Disclosing Party may seek both monetary damages and equitable relief with respect to any such breach without any obligation to post bond.

 

(b) Disclosure of Confidential Information. If the Receiving Party or its agents become legally required or compelled (by any publicly filed and noticed deposition, interrogatory, request for documents, civil subpoena, civil investigative demand or by any similar process or court or administrative order) to disclose Confidential Information, then the Receiving Party if permitted will provide the Disclosing Party with prompt prior written notice of such legal requirement so that the Disclosing Party may seek a protective order or other appropriate remedy. If the Disclosing Party does not obtain a protective order or other remedy, the Receiving Party agrees to disclose only that portion of the Confidential Information which the Receiving Party is legally required to disclose and to use reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information. Neither party will be obligated to notify the other of the receipt of any non-public or confidential investigative demand, summons, or grand jury subpoena or other similar process that requires confidentiality on the part of the applicable party.

 

(c) Duration of Obligations. The non-disclosure obligations in this Section 7.1 will continue (i) with respect to Confidential Information that does not constitute a trade secret, for three years following termination, and (ii) with respect to Confidential Information that is a trade secret under Laws, for the longer of three years after termination and such period as the information retains its status as a trade secret under Laws. 

 

(d) Obligations on Termination. At the request of the Disclosing Party upon the termination of the Agreement, the Receiving Party will promptly delete or return to the Disclosing Party all originals and copies containing or reflecting any Confidential Information of the Disclosing Party (other than those required to be retained by Law, or that would be unreasonably burdensome to destroy, such as archived computer records). If a dispute arises between the parties in relation to the Confidential Information or the Agreement, the Receiving Party may retain a copy of such Confidential Information as the Receiving Party reasonably determines is necessary for its defense of the dispute. In all cases, any retained Confidential Information will continue to be subject to the terms of the Agreement. 

 

7.2. Data Security and Use. 

 

(a) Security Programs Compliance. CenPOS and Company will each comply with the applicable requirements of the Security Programs.

 

(b) PCI-DSS Attestation. Company may review CenPOS's current PCI-DSS compliance status on the Payment Network websites as available. CenPOS will undergo an annual assessment of its compliance with the Security Programs and, if applicable to the services provided under the Agreement, the Payment Application Data Security Standards. 

 

(c) Gateway Data. Company grants to CenPOS a non-exclusive, royalty-free right and license to access and use all Gateway Data as necessary or appropriate for CenPOS to provide the services and as otherwise permitted under the Agreement, including releasing such Gateway Data to third parties as directed by Company (including release to Destination Points and any other Payment Services Entities) or in connection with CenPOS's performance of the services. CenPOS will retain Gateway Data for the duration required by Laws and the Payment Network Regulations and thereafter will destroy, in a manner that will render the information unreadable, all such information that is no longer necessary or appropriate to maintain for ordinary business purposes. Company acknowledges and agrees that CenPOS may use, retain, distribute and disclose derivative data based originally on Gateway Data that has been compiled and aggregated with other data (the "Aggregated Data"), so long as such Aggregated Data does not identify Company as the source of such data. "Aggregated Data" will not constitute Gateway Data or Company's Confidential Information under the Agreement. CenPOS will not use Aggregated Data in any manner prohibited by applicable Laws.

 

(d) Data Protection. Subject to the terms of the Agreement (including Section 12), CenPOS acknowledges that it is responsible for the security of Cardholder Data that it transmits on behalf of Company in connection with the services provided hereunder while such Cardholder Data is in CenPOS's possession; therefore, CenPOS will ensure the security of such Cardholder Data in accordance with all Laws and Payment Network Regulations. 

 

8. Company Audit. Company authorizes CenPOS and its agents to perform an audit or inspection of Company's operations and records to confirm Company's compliance with the Agreement upon reasonable advance notice, during normal business hours, and at CenPOS's expense (unless CenPOS reasonably determines based on such audit that Company is not in compliance with the Agreement, in which case Company will bear the cost). Company will maintain complete and accurate records of its performance under the Agreement. Company will execute and deliver to CenPOS all documents CenPOS reasonably deems necessary to verify Company's compliance with Section 6.1.

 

9. Proprietary Rights. As between CenPOS and Company, CenPOS retains all right, title and interest in and to the CenPOS Platform, CenPOS Materials, Updates, Customizations, and all Intellectual Property Rights in any of the foregoing, and Company will not acquire any ownership interest or license rights (except such rights as are expressly stated in the Agreement) in any of the foregoing. If any right, title or interest in and to any Customizations is deemed to vest in Company, Company hereby assigns and agrees to assign to CenPOS all worldwide right, title and interest in and to such Customizations, including, all Intellectual Property Rights therein. The rights granted to Company under the Agreement are non-exclusive and nothing in the Agreement will limit the ability of CenPOS to market, sell, offer for sale, license or otherwise exploit the CenPOS Platform, CenPOS Materials, Updates, Customizations or Intellectual Property Rights in any of the foregoing to any third parties or to appoint or authorize any other person or entity to do the same.

 

10. Representations and Disclaimers

 

10.1. CenPOS Representations. CenPOS represents to Company the following as of the Agreement effective date: 

 

(a) Organization. CenPOS is a limited liability company validly existing and organized under the laws of the state of Florida with all authority, qualifications, licenses and registrations necessary to conduct its business, in all jurisdictions where CenPOS conducts business, in compliance with all Laws and Payment Network Regulations.

 

(b) Authority and Power. CenPOS has the power to perform the Agreement. Further, CenPOS performing in accordance with the Agreement will not violate any Laws or conflict with any other agreement to which CenPOS is subject.

 

(c) No Litigation. There is no action, suit, or proceeding pending or, to CenPOS's knowledge, threatened, which if decided adversely would impair CenPOS's ability to carry on its business substantially as now conducted or which would materially and adversely affect CenPOS's financial condition or operations.

 

10.2. Company Representations. Company represents to CenPOS the following as of the Agreement effective date:

 

(a) Organization and Information. Company is validly existing and duly organized under the laws of the jurisdiction in which it was formed with all authority, qualifications, licenses and registrations necessary to conduct its business, in all jurisdictions where Company conducts business, in compliance with all Laws and Payment Network Regulations. All written information provided in any bid process and Enrollment Form, as applicable, or any other document submitted to CenPOS is true and complete and properly reflects the business, financial condition and ownership of Company in all material respects.

 

(b) Authority and Power. Company has the power to execute and perform the Agreement. The person executing the Agreement is duly authorized to bind Company to all provisions of the Agreement, and such person is authorized to execute any document and to take any action on behalf of Company that CenPOS requires to carry out the Agreement. Further, the signing and performing in accordance with the Agreement will not violate any Laws or conflict with any other agreement to which Company is subject.

 

(c) No Litigation. There is no action, suit, or proceeding pending or, to Company's knowledge, threatened, which if decided adversely would impair Company's ability to carry on its business substantially as now conducted or which would materially and adversely affect Company's financial condition or operations. 

 

(d) Business Use. Company is obtaining and using the services from CenPOS to facilitate lawful business Transactions between Company and its Customers, and using the demand deposit account only for lawful business purposes.

 

(e) Gateway Data. Company has all necessary right, title and interest in and to Gateway Data to provide such information to CenPOS for use and retention by CenPOS as contemplated under the Agreement. 

 

10.3. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, THE CENPOS PLATFORM AND ALL SERVICES HEREUNDER ARE PROVIDED "AS IS" AND CENPOS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,  REGARDING SERVICES, CENPOS MATERIALS AND CENPOS PLAFRORM, AND COMPANY'S USE OF THIRD-PARTY SERVICES, EQUIPMENT, SOFTWARE, OR DATA IN CONNECTION WITH THE CENPOS PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, TITLE, SECURITY, NONINFRINGEMENT, UNINTERRUPTED OR ERROR-FREE USE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE. 

 

11. Indemnification. Company will indemnify and defend CenPOS, its Affiliates, and their respective employees, officers, directors, and agents against losses, damages, liabilities, fines, judgments and expenses (including all reasonable attorneys' fees) (collectively, "Losses") in connection with claims, actions, demands or proceedings (made or threatened) brought by a third-party arising out of (a) any Transaction processed under the Agreement; (b) Company's breach of the Agreement; (c) all use of any user ID and password other than by CenPOS or CenPOS's third-party contractors; (d) the failure of Company or any other agent of Company to timely remit any Customer Contribution to the appropriate Designated Charity, or to comply with any applicable provisions of charitable solicitation or consumer protection Laws that may be applicable with respect to Customer Contributions; (e) Company's or its Service Providers' gross negligence or willful misconduct; (f) Company's or its Service Providers' violation of Laws or Payment Network Regulations; or (g) any fraud, theft, personal injury or real or tangible personal property damage to the extent caused by Company's or its Service Providers' acts or omissions. Company will not enter into any settlement that imposes any liability or obligation on any of the CenPOS indemnified parties, or that contains any admission or acknowledgement of wrongdoing (whether in tort or otherwise), without CenPOS's prior written consent. CenPOS may join in the defense, with its own counsel, at its own expense. 

 

12. Limitation of Liability. CenPOS's aggregate liability for any Losses, regardless of the form of action, arising out of the Agreement or CenPOS's performance or non-performance of any services hereunder under any theory of law or equity (whether in contract, tort, negligence, strict liability, by statute, or otherwise), will not exceed the sum of fees paid by Company to CenPOS during the three months immediately preceding the event giving rise to the Losses. In no event will CenPOS or its agents, officers, directors, or employees be liable to Company for indirect, exemplary, punitive, special, or consequential damages in connection with the Agreement under any theory of law or equity (whether in contract, tort, negligence, strict liability, by statute, or otherwise). 

 

13. Equipment. 

 

13.1. Equipment Orders. CenPOS will ship to Company the Equipment described in the Enrollment Form or any additional application, setup, or order forms, or any addenda or schedules mutually agreed upon in writing by CenPOS and Company for the purchase price stated thereon. Company has no right to cancel an order for Equipment. Unless otherwise agreed by the parties, Company will be responsible for all shipping costs, insurance, import and export duties and similar taxes and amounts. 

 

13.2. Standard Limited Product Three Year Equipment Warranty. 

 

(a) Some Equipment purchased directly from CenPOS carry a maximum three year limited warranty. CenPOS does not provide any type of warranty on hardware products purchased through third parties. The warranty period for Equipment is calculated from the date the Equipment is shipped from CenPOS's facility or the date title to the Equipment passes to Company, whichever date is earlier. CenPOS warrants that (i) the Equipment will be free from faulty workmanship and defective materials, and (ii) all software components of the Equipment will substantially conform to the written documentation designated by CenPOS for use with such software components. CenPOS does not represent or warrant that the operation of Equipment will be uninterrupted or error free. This warranty does not include (1) any mobile devices, accessories, cables, or shipping and handling costs, or (2) damage, improper use, or acts of God. Improper use includes, but is but not limited to, the following: liquid damage, Equipment being dropped, power surges, customers writing on signature pad with something other than the hardware manufacturer provided stylus, tampering with the Equipment, and unapproved repairs.

 

(b) If CenPOS determines that the Equipment is defective, then it will send a replacement to the Company. If CenPOS determines that a specific piece of Equipment is defective and needs to be replaced, CenPOS will provide a return label to the Company. Company must return defective hardware within three business days of receiving replacement hardware. CenPOS will debit the Company's bank account on file for any replacement Equipment shipped upon shipping. CenPOS will credit the Company's account upon receipt of defective Equipment if it is covered by the warranty. Should a replacement device be shipped to Company, Company will return the damaged device to the specified deployment facility within 14 calendar days, or Company will be charged for the device at the cost listed on the Enrollment Form. If Company participates in vP2PE, it will receive properly encrypted devices in the event that a replacement unit is required due to warranty replacement processes. 

 

14. Third-Party Vendors

 

14.1. CenPOS Third Party Contractors. CenPOS may use third party contractors in connection with the performance of its obligations under the Agreement. CenPOS will be responsible for the performance of its obligations hereunder notwithstanding any use of or delegation of any responsibility to any CenPOS third-party contractor. CenPOS is responsible for any violations of the Agreement that result from the acts or omissions of its third party contractors.

 

14.2. Company Service Providers and Company Resources. 

 

(a) Company may want to use a Service Provider to assist with Transactions. Company will cause each Service Provider and applicable Company Resource to undergo testing, approval and certification by CenPOS or the Payment Services Entity before Company uses such Service Provider or applicable Company Resource in connection with accessing or using the CenPOS Platform. Company will ensure that each Service Provider or applicable Company Resource maintains certification and compatibility with the CenPOS Platform and that each Service Provider and applicable Company Resource is fully compliant with all Laws, Payment Network Regulations, and Security Programs. Failure of Company's systems, including Company's point-of-sale system or property management system, or any Service Provider systems, to maintain certification under this section or to be compatible and function with the most recent version of the CenPOS Platform will excuse CenPOS from all liability and all of its obligations under the Agreement to the extent that CenPOS's provision of the services hereunder is impaired by such failure.

 

(b) Company is responsible for any violations of the Agreement that result from the acts or omissions of Company's Service Providers and any other person who obtains access to Transaction Information from Company or access to systems under Company's or Service Provider's control (excluding acts or omissions to the extent attributable to CenPOS's breach of the Agreement, gross negligence, or willful misconduct).

 

(c) CenPOS is not responsible for Service Providers or for the products or services offered by Service Providers, nor is it responsible for any Transaction until CenPOS receives complete data for the Transaction in the format required by CenPOS. 

 

14.3. Liability for Direct Agreement with Third Party. CenPOS has no responsibility for, and will have no liability to Company in connection with, any hardware, software or services Company receives subject to a direct agreement (including any sale, warranty or end-user license agreement) between Company and a third party, including any Service Provider, even if CenPOS collects fees or other amounts from Company with respect to such hardware, software or services (and such third party will not be considered a third party contractor of CenPOS).

 

15. General Provisions.

 

15.1. Entire Agreement. The Agreement (including all appendices, schedules, attachments, exhibits, addenda and other documents incorporated by reference) and any amendment or supplement to it, constitutes the entire agreement between the parties, and all prior or other agreements, written or oral, are superseded by the Agreement. If a conflict exists between this Agreement and the terms and conditions of any other schedule or exhibit, the terms of such schedule or exhibit will control with respect solely to the subject matter thereof.

 

15.2. Jurisdiction and Venue; Governing Laws. The Agreement is governed by the Laws of the State of Georgia, without giving effect to the choice-of-law rules.  For all disputes relating to the enforceability of the arbitration agreement set forth below in Section 15.6, or to the extent the arbitration agreement set forth in Section 15.6 is determined to be unenforceable or inapplicable to any claim, controversy or  dispute between the Company and CenPOS, whether sounding in contract, tort or otherwise, then each party hereby submits to the exclusive jurisdiction of the courts of the state of Georgia (Fulton County) or the United States District Court for the Northern District of Georgia with respect to any such claim, controversy or dispute. The parties each waive any objection to venue with respect to any actions brought in those courts. All performances and Transactions under the Agreement will be deemed to have occurred in the state of Georgia, and Company's entry into and performance of the Agreement will be deemed to be the transaction of business within the state of Georgia.

 

15.3. Construction. The headings used in the Agreement are inserted for convenience only and will not affect the interpretation of any provision. Each provision is to be construed as if the parties drafted it jointly. The word "day" will mean "calendar day" unless specifically stated otherwise.

 

15.4. Assignability. Company will not assign the Agreement without CenPOS's prior written consent. If Company nevertheless assigns the Agreement without CenPOS's consent, the Agreement will be binding on both the assignee and Company. CenPOS may transfer or assign its rights or obligations under the Agreement.

  

15.5. Notices. Any written legal notice to the other party will be deemed received upon the earlier of (a) actual receipt, (b) five business days after being deposited in the United States mail, return receipt requested, or (c) two business days after being deposited with a nationally recognized overnight carrier. Such notices will be addressed to Company's address on the Enrollment Form or the last address shown on CenPOS's records, or to CenPOS at CenPOS, LLC, c/o Elavon, Inc. at Two Concourse Parkway, Suite 800, Atlanta, GA 30328; Attn: Legal Department, or such other addresses as CenPOS may designate in writing. 

 

15.6. Arbitration. All claims, controversies or disputes between the parties arising out of or related to the Agreement, the schedules to this Agreement or the relationship between the parties will be submitted to and decided by arbitration held in the city and state in which the Company maintains its principal place of business and  in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (a copy of which can be reviewed at http://www.adr.org) except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the state in which the arbitration is conducted and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The arbitrator will have the authority to award any remedy or relief that a federal court in the state in which the arbitration is conducted could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide CenPOS's or the Company's claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own attorney's fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, CenPOS will bear all administrative cost of the arbitration including the arbitrator's fees and will reimburse the Company's filing fee if the Company initiates the arbitration. The parties agree that the underlying agreement between the parties involves interstate commerce and that, notwithstanding the choice of law provision in Section 15.2, any arbitration will be governed by the Federal Arbitration Act. 

 

15.7. Telephone Recording. For quality assurance and training purposes, Company authorizes CenPOS to monitor and record customer service telephone conversations at any time, subject to Laws and applicable disclosures if required.

 

15.8. Communication with Company. Company agrees that CenPOS may provide Company with information about their services, including information about new products and services by telephone, electronic mail, and facsimile. By providing CenPOS with a telephone number for a cellular phone or other wireless device, including a number that Company later converts to a cellular number, Company is expressly consenting to receiving communications-including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system-from CenPOS and its affiliates and agents at that number. This express consent applies to each such telephone number that Company provide to CenPOS now or in the future and permits such calls for non-marketing purposes. Calls and messages may incur access fees from Company's cellular provider. 

 

15.9. Amendments. CenPOS may propose amendments to the Agreement. CenPOS will inform Company of a proposed change in a periodic statement or other notice. Except as otherwise specified in the Agreement, Company will be deemed to have agreed to the change if Company continues to present Transactions to CenPOS after 30 days following the issuance of the statement or notice. Unless the change is required by changes in Law or the Payment Network Regulations, if Company objects to the change, Company may terminate the Agreement in writing within such 30 day period. 

 

15.10. Severability and Waiver. If any provision of the Agreement 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 Agreement will not in any way be affected or impaired thereby. None of the failure to exercise, the delay by any party to exercise, or the partial exercise of any right under the Agreement will operate as a waiver or estoppel of such right, nor will such amend the Agreement. All waivers requested by a party must be signed by the waiving party.

 

15.11. Independent Contractors. CenPOS and Company 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 stated in the Agreement. Each party is responsible for the supervision, management, payment and direction of its own employees. The Agreement has been entered into solely for the benefit of the parties to the Agreement and is not intended to create an interest in any third party except where explicitly stated otherwise. 

 

15.12. Survival. All of the obligations of each party that by their nature should survive termination or expiration of the Agreement in order to achieve its purposes, including Sections 5, 6, 7, 9, 10, 11, 12, 14, 15.2, 15.6, and 15.12 will survive and remain binding upon and for the benefit of the parties.

 

15.13. Force Majeure. Neither party will be considered in default in the performance of its obligations to the extent such performance is delayed by an act of God, natural disaster, war, act of terrorism, civil disturbance, action by governmental entity, strike, or other cause beyond such party's reasonable control (each, a "Force Majeure") that affects such party's ability to perform. If a Force Majeure interrupts CenPOS's provision of gateway services, CenPOS will use all reasonable efforts to restore the services. If the Force Majeure continues for more than 14 days, then Company may, as its sole and exclusive remedy, abate payment to CenPOS to the extent services are not performed and terminate the Agreement.

 

15.14. Business Continuity. CenPOS will maintain and adhere to business continuity plans that are commercially reasonable within the industry.

 

15.15. Language. The parties hereby acknowledge that they have required the Agreement and all related documents to be drawn up in the English language. Les parties reconnaissent avoir demand? que le pr?sent contrat ainsi que tous les documents qui s'y rattachent soient r?dig?s en langue anglaise.

 

16. Canada Terms.

 

16.1. The following provisions supersede and replace the referenced provisions of the Agreement for purposes of the services provided by CenPOS under this Agreement and Transactions in Canada:

 

(a) Section 5.3. Demand Deposit Account and Pre-Authorized Debits (PADs). Company will establish and maintain with an institution that is a member of the Canadian Payments Association one or more demand deposit accounts ("DDAs") to facilitate payment of fees to CenPOS. Company authorizes CenPOS, and its vendors and agents to initiate debit and credit entries to the DDA, to pay the fees and any other amounts that may be due by Company to CenPOS under the Agreement, and authorizes Company's depository institution to grant CenPOS access to any information or records regarding the DDA reasonably requested by CenPOS to debit or credit the DDA and to otherwise exercise CenPOS's rights under the Agreement with respect to the DDA. Company agrees that any withdrawal by CenPOS and its respective vendors and agents in accordance with the Agreement are PADs for business purposes, as defined under Rule H1 of the Canadian Payments Association. Company hereby waives the right to receive advance notice from CenPOS and its respective vendors and agents of all such debits. This authorization will remain in effect after termination of the Agreement and until all of Company's obligations to CenPOS have been paid in full. If Company changes the DDA, this PAD authorization will apply to the new account and Company will provide CenPOS in writing such information regarding the new DDA as it deems necessary. It may take CenPOS up to 10 business days after CenPOS's receipt of a written notice from Company to reflect in its system any change to Company's DDA. If Company changes the DDA, Company agrees that it is responsible for all costs CenPOS incurs in connection with Company's decision to change the DDA. Company may revoke the PAD authorization upon 30 days' prior written notice to CenPOS, but any such revocation will constitute a material breach of the Agreement. Company may obtain a sample cancellation form, as well as further information on Company's right to cancel a PAD authorization by contacting Company's financial institution or by visiting http://www.payments.ca. Company has certain recourse rights if any debit does not comply with the Agreement. For example, Company has the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD Agreement. To obtain more information on Company's recourse rights, Company may contact its financial institution or visit http://www.payments.ca.

 

(b) Section 6.2. Office of Foreign Assets Control Compliance. Intentionally Omitted.

 

(c) Section 6.3. Export Laws Compliance. Company will comply with all Canadian export Laws, including the list and guide maintained by Export Controls Division of Foreign Affairs, Trade and Development Canada, the Corruption of Foreign Public Officials Act (Canada) and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, governing the export and re-export of hardware, software or technology applicable to the Services and Equipment. Company will not, and will not request CenPOS to, export, directly or indirectly, any technical data pursuant to the Agreement or any product using any such data to any country for which the Canadian government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

 

(d) Section 10.2(a). Organization. CenPOS is a company validly existing and organized under the laws of the Province of Nova Scotia with all authority, qualifications, licenses and registrations necessary to conduct its business, in all jurisdictions where CenPOS conducts business, in compliance with all Laws and Payment Network Regulations.

 

(e) Section 15.2. Jurisdiction and Venue; Governing Law. The Agreement is governed by the Laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without giving effect to the choice-of-law rules of the Province of Ontario.  For all disputes relating to the enforceability of the arbitration agreement set forth in Section 15.6, or to the extent the arbitration agreement set forth in Section 15.6 is determined to be unenforceable or inapplicable to any matter arising out of or related to the Agreement, whether in contract, tort or otherwise, then such matter and any action or proceeding relating to or arising therefrom must be brought, held, or otherwise occur exclusively in Toronto, Canada, and the parties attorn to the exclusive jurisdiction of the courts of Ontario. CenPOS and Company waive all right to trial by jury in any action or proceeding relating to the Agreement. CenPOS and Company each represents to the other that this waiver is knowingly, willingly and voluntarily given. The parties agree that all performances and Transactions in Canada will be deemed to have occurred in the Province of Ontario and that Company's entry into and performance of the Agreement will be deemed to be the transaction of business within the Province of Ontario.

 

(f) Section 15.6. Arbitration. All claims, controversies or disputes arising out of, or in connection with, this Agreement, or in respect of any legal relationship associated with it or derived from it, will be finally resolved by arbitration administered by the Alternative Dispute Resolution Institute of Canada Inc. under its ADRIC Arbitration Rules (a copy of which can be reviewed at http://adric.ca/arbrules), except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the Province of Ontario and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The seat of arbitration will be Toronto, Ontario. The language of the arbitration will be English. The arbitrator will have the authority to award any remedy or relief that a provincial court in the Province of Ontario could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide CenPOS's or the Company's claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own legal fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, CenPOS will bear all administrative cost of the arbitration including the arbitrator's fees and will reimburse the Company's filing fee if the Company initiates the arbitration.

 

16.2. The following provisions apply for purposes of the services provided by CenPOS under this Agreement and Transactions in Canada in addition to the other provisions of the Agreement:

 

(a) Fee Increase. Notwithstanding Section 5.1, as it relates to fees for Transactions only, any fee increase CenPOS makes, other than in accordance with pre-determined fee schedules, if any, will be effective 90 days after Company receives notice thereof.

 

(b) Termination. Notwithstanding Section 5.1, as it relates to fees for Transactions only, Company may notify CenPOS of its intent to terminate the Agreement within 90 days of notification of the fee increase by CenPOS.

 

(c) Taxes. In addition to the provisions of Section 5.2, all fees or charges payable by Company to CenPOS as set forth in this Agreement, including the Schedules hereto, the documentation or any exhibits, do not include goods and services tax, harmonized sales tax, Qu?bec sales tax, value added tax, retail sales taxes and other similar taxes whether now imposed or to be imposed in the future. If any such tax (other than taxes based on CenPOS's income) is found to be applicable, the appropriate amount of tax shall be added to and shall be payable by Company to CenPOS at the same time and upon the same terms as apply to the fees and other charges. 

 

 

APPENDIX 1 - DEFINITIONS

 

"Agreement" has the meaning given to it on the Enrollment Form.

 

"Authorized Users" means Company's employees and contractors designated by Company to access and use the CenPOS Platform. 

 

"Cardholder" means the individual in whose name a Payment Device has been issued and any authorized user of such Payment Device.

 

"Cardholder Data" has the meaning stated in the Payment Card Industry (PCI) Data Security Standard (DSS) and Payment Application Data Security Standard (PA-DSS) Glossary of Terms, Abbreviations, and Acronyms.

 

"CenPOS" means (a) CenPOS, LLC if Company is located in the Unites States of America, or (b) Elavon Canada Company if Company is located in Canada.

 

"CenPOS Materials" means the specifications, documentation, application programing interfaces (APIs) and other interfaces, nonpublic or proprietary data import routines, sample code and materials provided to Company to enable Company to perform its obligations or exercise its rights under the Agreement, including integration to the CenPOS Platform. 

 

"Change of Control" means with respect to a party, (a) a merger or consolidation of such party with or into another entity, or the merger of another party with or into such party or any other transaction or series of transactions, with the effect that the equity holders of such party immediately prior to such transaction hold 50% or less of the total voting power entitled to vote in the election of directors, managers, or trustees of the surviving entity; or (b) any person or group acquires beneficial ownership of a majority interest of the voting power or voting capital or other equity interest of such person.

 

"Code of Conduct" means the Code of Conduct for the Credit and Debit Card Industry in Canada issued by the Department of Finance Canada and administered by the Financial Consumer Agency of Canada (FCAC) and all guidance, compliance bulletins and decisions issued by the FCAC in connection therewith, all as amended, restated, supplemented or replaced from time to time.

 

"Company" has the meaning given to it on the Enrollment Form.

 

"Company Resources" means all equipment, communications devices, databases, services, systems and other resources that Company maintains or operates in Company's or its third party hosting provider's locations and which enable Company to access and use the CenPOS Platform. 

 

"Confidential Information" means all data and information, regardless of the form or media, relating to the business of the Disclosing Party of which the Receiving Party becomes aware as a consequence of, or through, the performance of its obligations under the Agreement, which has value to the Disclosing Party and is not generally known by its competitors, which is reasonably identified as confidential at the time of disclosure or which, under the circumstances surrounding disclosure, ought to be reasonably considered as confidential, including technical information, drawings, engineering data, performance specifications, cost and price information (except as provided otherwise in the Agreement), and other information, data and reports, and the terms and conditions of the Agreement. Confidential Information does not include any data or information which (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) has become generally known to the public through no wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party without restriction on disclosure and without, to the knowledge of the Receiving Party, a breach of an obligation of confidentiality running directly or indirectly to the other party; or (iv) is independently developed by the Receiving Party without use, directly or indirectly, of the Confidential Information received from the Disclosing Party. Gateway Data is not Confidential Information under this definition, and is addressed in Section 7.2.

 

"Credit Card" means a card or device bearing the symbol of any Credit Card Association and associated with a revolving line of credit that can be used to purchase goods and services from Company or to pay an amount due to Company.

 

"Credit Card Associations" means (i) Visa; (ii) MasterCard; (iii) American Express Travel Related Services Company, Inc.; (iv) Discover Network; (v) Diners Club International Ltd.; (vi) JCB International Co., Ltd.; (vii) China UnionPay Co., Ltd; and (viii) any other organization or association that hereafter contracts with CenPOS to authorize, capture, and settle Transactions effected with Credit Cards issued or sponsored by such organization or association, and any successor organization or association to any of the foregoing. 

 

"Customer" means a client of Company who elects to conduct a payment Transaction with Company through presentation of a Payment Device (including a Cardholder). 

 

"Customer Contribution" means an amount that a Customer has designated to be paid to a Designated Charity, using features of the CenPOS Platform, during a payment Transaction with Company.

 

"Customizations" means any works of authorship, work product, and any invention, process, method, development, design, schematic or technical information, whether patentable or not, including documentation, software or enhancements, improvements, alterations, or derivatives of the CenPOS Platform developed by CenPOS, either alone or jointly with others, in connection with the Agreement.

 

"Designated Charity" means (a), in the United States of America, an entity that is recognized by the Internal Revenue Service as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or (b), in Canada, an entity that is a registered charity under the Income Tax Act (Canada), as amended, and that appears on the "List of Charities" maintained by the Canada Revenue Agency, in each case that Company has designated to CenPOS, on the Enrollment Form or otherwise, for the purpose of receiving contributions.

 

"Destination Point" means the location of a Payment Services Entity designated by Company with respect to which Company has requested CenPOS to submit Transactions.

 

"Disclosing Party" means the party providing the Confidential Information to the other party directly or indirectly (via one or more third parties acting on behalf of and at the direction of the party providing its Confidential Information).

 

"EFT Networks" means (a) in the United States, Interlink Network Inc., Maestro U.S.A., Inc., STAR Networks, Inc., NYCE Payments Network, LLC, PULSE Network LLC, ACCEL/Exchange Network, Alaska Option Services Corporation, Armed Forces Financial Network, Credit Union 24, Inc., NETS, Inc., and SHAZAM, Inc.; (b) in Canada, Interac Corp, and Payments Canada and any services offered by Interac Corp. or through members of Payments Canada, including online, debit and contactless services, in the case of Interac Corp., and pre-authorized debits, in the case of Payments Canada, in each case permitting Cardholders to pay for goods and services by debiting money directly from their accounts; (c) in any jurisdiction, any other organization or association that hereafter authorizes CenPOS or a third party designated by Company to authorize, capture, and settle Transactions effected with debit cards, and (d) any successor organization or association to any of the foregoing.

 

"Enrollment Form" means the Enrollment Form or Term Sheet pursuant to which Company elects to receive certain services pursuant to the terms and conditions of the Agreement.

 

"Equipment" means devices, equipment, and other hardware purchased by Company from CenPOS or otherwise provided to Company under the Agreement. 

 

"Gateway Data" means all Cardholder Data and Transaction Information provided to CenPOS by or on behalf of Company in order for CenPOS to provide the gateway services hereunder.

 

"Intellectual Property Rights" means worldwide patents, trade secrets, copyrights, trademarks, service marks, trade names, and all other intellectual property rights and proprietary rights, including all rights or causes of action for infringement or misappropriation of any of the foregoing.

 

"Laws" means all applicable local, state, provincial and federal statutes, regulations, treaties, ordinances, guidelines, industry commitments and all orders and decrees of all courts, tribunals and arbitrators, and includes (in Canada) the Code of Conduct, each as amended from time to time. 

 

"Origination Point" means either: (i) the Company central origination location that transmits data between Company and the Hosted System or (ii) if Company is integrated with the CenPOS Platform directly, the point-of-sale (POS), property management system (PMS), terminal central location, equipment or system from which Company transmits data to or receives data from the CenPOS Platform.

 

"Payment Device" means any device or method used for the purpose of obtaining credit or debiting a designated account including a Credit Card, debit card, and any other financial transaction device or method, including an Electronic Gift Card, check (whether converted into electronic form or used as a source document for an electronic fund transfer), EBT Card, stored value card, "smart" card, or other device created to be used for the purpose of obtaining credit or debiting a designated account.

 

"Payment Network" means any Credit Card Association, EFT Network, ECS Association or automated clearing house association, governmental agency or authority, and any other entity or association that issues or sponsors a Payment Device or operates a network on which a Payment Device is processed.

 

"Payment Network Regulations" means the rules, operating regulations, guidelines, specifications and related or similar requirements of any Payment Network.

 

"Payment Services Entity" means any third party that Company has designated as a Destination Point for receipt of Transactions and to which CenPOS is certified to submit transactions, including but not limited to, Transaction Processors, Payment Networks, third party service providers, program managers and other third parties associated with Payment Device acceptance or other programs of Company.

 

"PCI-DSS" means the Payment Card Industry Data Security Standards.

 

"Receiving Party" means the party receiving Confidential Information from the other party directly or indirectly (via one or more third parties acting on behalf of and at the direction of the party providing its Confidential Information).

 

"Security Programs" means the PCI-DSS, including the Cardholder Information Security Program (CISP) of Visa, the Site Data Protection Program (SDP) of MasterCard, the Data Security DISC Program and the PCI-DSS regulations of Discover, and the security programs of any other Payment Network, and any modifications to, or replacements of, such programs that may occur from time to time.

 

"Service Provider" means any entity that stores, processes, transmits or accesses Cardholder Data or Transaction Information on behalf of Company or that provides software to Company for transaction processing, storage, or transmission, except to the extent such services are performed by the entity in its capacity as a third-party contractor of CenPOS performing CenPOS's obligations under the Agreement. 

 

"Transaction" means any action between Company and a Cardholder or Payment Network that results in transmission of Cardholder Data or Transaction Information (e.g. payment, purchase, refund, return, chargeback, authorization request, settlement submission, transaction inquiry, conversion to/from tokens) and that is supported by the CenPOS Platform.

 

"Transaction Information" means any data or information resulting from a Transaction. Transaction Information includes payment processing-related transactional information that may be collected or stored by CenPOS, including the price paid for products or services, date, time, approval, unique transaction number, store identifier, and Customer bank information relating to a Transaction. 

 

"Transaction Processor" means service bureaus and other persons that provide transaction processing services, including authorization and settlement services, to Company. 

 

"Updates" means all updates, revisions, patches, fixes, new releases, and other improvements or changes to the CenPOS Platform.

 

 

CenPOS Hosted Services Agreement - Terms and Conditions (v.9.14.20) 

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