This TeleCheck Solutions Agreement (Agreement) is entered into by and between TeleCheck Services, LLC (TeleCheck) and Client (Client) as indicated on the Merchant Processing and/or Telecheck Service Application and Agreement executed by Client (Application). Pursuant to the terms set forth in this Agreement, TeleCheck will provide Client with the services indicated in the Application, which may include: (i) coded information that it may use when deciding whether to accept a check or electronic funds transfer item (each an Item, and together, Items) when provided by its consumers as payment, (ii) settlement processing services and (iii) warranty or verification services; all as described in this Agreement (together, Services). TeleCheck will be Company’s exclusive provider of the Services during the Term (defined below) of this Agreement. Client agrees to the terms of this Agreement by signing the Application; clicking “Accept” or “Install” when presented via an App (as applicable and described below); or using any of the Services. Client acknowledges that the Specialty Items (Settlement Only) service does not include receiving coded information, warranty or verification services.
Client will promptly provide any financial or other information reasonably requested by TeleCheck to perform credit risk, security, qualification, and other reviews related to providing the Services, transactions submitted, fulfillment of obligations to TeleCheck, or the financial condition of Client. Client authorizes TeleCheck to obtain information from third parties when performing credit risk, security, qualification, and other reviews.
Client will provide TeleCheck with reasonable advance notice of any material change in the nature of Client’s business (including, without limitation, any change to Client’s operations that would materially affect its products sold, services provided, or the procedures it follows for payments acceptance). The failure to provide TeleCheck with this notice constitutes a material breach of this Agreement.
All funds that TeleCheck owes to Client under this Agreement are subject to Client’s payment obligations under this Agreement. TeleCheck may setoff or recoup amounts Client owes to TeleCheck against any funds that TeleCheck owes to Client.
TeleCheck will provide Client with statements or electronic reporting (together, Statements) reflecting the fees, settlement amounts, and other information related to the Services. Client must review the Statements and inform TeleCheck of any errors within 60 days following the date that the error was, or should have been, reported; provided, Client must report settlement or funding errors to TeleCheck within 30 days (reporting errors will enable TeleCheck to recover amounts or prevent them from continuing). TeleCheck will have no obligation to provide refunds for errors that Client reports more than 60 days or 30 days (as applicable) after the errors were, or should have been, reported. Client and TeleCheck will work together to resolve issues or disputes that arise in connection with the Statements, or the funds credited or debited to the Settlement Account.
This Agreement begins on the earlier of the dates when Client signs its Application, submits its first Item for processing under this Agreement, or when Client downloads the App (this date, the Effective Date). The length of this Agreement’s initial term is 12 months from the Effective Date (Initial Term); provided, however, that Client may terminate this Agreement if Client gives and TeleCheck receives written notice of termination within 30 days of the Effective Date. This Agreement will automatically renew for successive one-year periods (each, a Renewal Term), unless TeleCheck or Client provides the other with at least 30 days’ written notice of non-renewal at the end of the Initial Term. The Initial Term together with any Renewal Term(s) is the Term of this Agreement.
TeleCheck grants Client a limited, non-exclusive, non-transferable, nonsublicensable, royalty-free license to use the trademarks, service marks and logos (together, Marks) that TeleCheck provides to Client during the Term of this Agreement. Client (a) may use the Marks only in the United States; (b) may use the Marks only in connection with its use of the Services; (c) will follow the branding guidelines that TeleCheck provides or makes available from time-totime; and (d) will not use materials containing the Marks without TeleCheck’s prior written permission. Client will not otherwise distribute, lease, sublicense, sell, modify, copy or create derivative works from the Marks. TeleCheck reserves to itself all right, title, interest or license (express or implied) to the Marks that are not specifically granted to Client under this Agreement; and may suspend or terminate this license upon written notice to Client.
Client will indemnify, defend, and hold TeleCheck harmless for all losses, damages, costs, or expenses (including reasonable attorney’s fees) claimed against it by third parties, which arise from Client’s gross negligence, willful misconduct, or breach under this Agreement.
TeleCheck will not be liable for lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages (whether direct or indirect); regardless of whether these damages were foreseeable or TeleCheck was advised they were possible.
TeleCheck’s aggregate liability for any losses, damages, costs, or expenses (including reasonable attorneys’ fees) arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will be limited to the lesser of (i) $50,000, or (ii) the total fees paid to TeleCheck under this Agreement during the 12 months preceding the event giving rise to such liability
Written notices (other than normal operations) required under this Agreement will be sent by certified mail or national courier (with tracking and delivery confirmation). TeleCheck may also provide written notices required under this Agreement by regular mail. Notices will be effective upon receipt. Notices to Client will be sent to the address it provides on the Application. Notices to TeleCheck will be sent to: TeleCheck Services, LLC, Attn: TeleCheck Merchant Services, Mail Stop A-12, 7301 Pacific Street, Omaha, NE 68114; with copies to TeleCheck Services, LLC, Attn: General Counsel’s Office, 3975 N.W. 120th Avenue, Coral Springs, FL 33065 and firstname.lastname@example.org
There are no third party beneficiaries to this Agreement other than TeleCheck’s subsidiaries and affiliates involved in providing the Services to Client. Each party is responsible for the performance of any third parties it uses in connection with the Services, and their compliance with the terms of this Agreement. TeleCheck is not responsible or liable to Client for any errors or breaches of this Agreement that occur because of Client’s third party providers (e.g., without limitation, issues that arise from ACH network participants, or if Client uses third party providers or applications to capture electronic images of Items to submit to TeleCheck). TeleCheck may audit Client’s compliance with this Agreement upon reasonable notice, during normal business hours, and at TeleCheck’s expense; and as required by the NACHA Rules. TeleCheck’s Originating Depository Financial Institution may also audit Client’s compliance with this Agreement and the NACHA Rules.
A party’s delay or failure to exercise any of its rights under this Agreement will not be a waiver of those rights.
The defined term Agreement includes its schedules, addenda, and any amendments (capitalized terms used in the schedules, addenda, or amendments without definition will have the meanings given to them in this Agreement). This Agreement is the entire agreement between the parties and replaces any prior agreements or understandings (written or oral) with respect to its subject matter. Except as set forth in Section 11.2, modifications to this Agreement must be in writing, executed by the parties. This Agreement and any amendments may be executed electronically and in counterparts, each of which constitutes one agreement when taken together. Electronic and other copies of the executed Agreement are valid.
Client may not assign this Agreement without TeleCheck’s written consent. TeleCheck may assign this Agreement upon notice to Client. This Agreement will be enforceable against a party’s permitted successors or assigns. This Agreement may not be continued, assumed, or assigned in the event of a bankruptcy or other insolvency event without consent from the non-bankrupt or insolvent parties.