BILLING PARTY Integration Services Agreement
This BILLING PARTY Integration Services Agreement (“Agreement”) is made as of this day by and between National Retail Solutions, Inc. (“NRS”) and the reseller or independent sales organization identified in the signature box below (“BILLING PARTY”). NRS or its third party gateways provide services similar to those provided by BILLING PARTY, and provides payment integration and related services to merchants using its or a third party’s point of sale terminal. BILLING PARTY desires to obtain the payment Integration services from NRS to enable merchants solicited by BILLING PARTY to use NRS’s Integration to process transactions using credit card processors. Therefore, for adequate consideration the sufficiency of which is acknowledged, the parties agree as follows:
“Fees” means those fees set forth on the attached Exhibit A, Fees, owed to NRS for the services performed under this Agreement for each merchant.
“Integration Services” means the delivery of payment and transaction Integration services by NRS to and from Merchants solicited by BILLING PARTY.
“Security Standards” means the Payment Card Industry Data Security Standard established by PCI Co., the Visa Cardholder Information Security Program, the MasterCard Site Data Protection Program and all security protocols and security advisories required by Visa, MasterCard, Discover, any debit network, and NRS.
“NRS” means that party that provides the Integration Services for BILLING PARTY.
II. BILLING PARTY’s Obligations
2.1 Data Collection. BILLING PARTY is solely responsible for the security of data residing on the servers owned, controlled or
operated by BILLING PARTY. BILLING PARTY will comply with all state and federal laws, including without limitation laws regarding disclosure to customers on how and why personal information and financial information is collected and used. BILLING PARTY agrees not to use, disclose, sell or disseminate any cardholder information obtained in a card transaction except for purposes of authorizing, completing and settling card transactions and resolving chargebacks, retrieval requests or similar issues involving card transactions. BILLING PARTY acknowledges that NRS shall not be liable for any improperly processed transaction or illegal or fraudulent access to BILLING PARTY’s account, BILLING PARTY’s IDs and passwords, any end-user data or transaction data.
2.2 Data Privacy and Security. BILLING PARTY will comply with the Security Standards. BILLING PARTY warrants that its server and electronic systems are secure from breach or intrusion by unauthorized third parties and will hold NRS and Service NRS harmless for a breach of BILLING PARTY’s systems. If there is a security breach of BILLING PARTY’s system and/or access to end-user data or transaction data by an unauthorized third party, BILLING PARTY shall notify NRS promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
III. NRS’s Obligations
3.1 Integration Services. NRS shall, or shall arrange for Service NRS to, provide BILLING PARTY with the Integration Services for resale to merchants. NRS and may transfer data as necessary to provide and manage the Integration Services.
Ownership and Use of the Integration Services. BILLING PARTY shall ensure that the Integration Services are used only for bona fide transactions between a Merchant and a cardholder. NRS retains all right, title and interest in and to the Integration Services and all related documentation and BILLING PARTY shall not take any action inconsistent with such ownership. The Integration Services, documentation and related confidential information may be protected by copyright, trade secret and other intellectual property laws. BILLING PARTY acknowledges that BILLING PARTY shall have no intellectual property or ownership rights in the Integration Services or the merchants. BILLING PARTY will not contest the ownership of the Integration Services and will cooperate in defending NRS’s ownership rights to the Integration Services. The restrictions in this Agreement shall not be construed to supersede or eliminate any rights which Service NRS may have under applicable laws pertaining to trade secrets. BILLING PARTY shall not alter or remove any printed or on-screen copyright, or other legal notices contained in the Integration Services and the related documentation. BILLING PARTY shall not and will ensure that merchant will not: (A) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Integration Services; (B) circumvent any technological measure that controls access to the Integration Services; or (C) use the Integration Services other than pursuant to the terms of this Agreement.
For each transaction, BILLING PARTY will pay to NRS the Fees. The Fees may be amended by NRS upon three days notice to BILLING PARTY. BILLING PARTY will pay all Fees and other amounts owed to NRS under this Agreement by the Invoice Due Date. Failure to pay amounts owed to NRS under this agreement on time may result in an interruption of service and a service reactivation fee and late fees of 5% per month, in addition to any costs of collection. BILLING PARTY will promptly examine all transactions and will notify NRS in writing within 30 days of any error. Unless NRS is notified of an error within 30 days of the date of the transaction, NRS shall be under no obligation to adjust such amounts.
5.1 Representations and Warranties. BILLING PARTY represents and warrants on the Effective Date and throughout the term of this Agreement that: (A) it is a sole proprietor, partnership, corporation or limited liability company organized, validly existing and in good standing under the laws of the State where its principal office is located; (B) it has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement; (C) its performance of this Agreement will not violate any applicable law or regulation or any agreement to which that party may be bound; (D) it and will ensure that the merchant complies with all applicable state and federal laws and regulations and card association requirements; and (E) neither it nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement.
Confidential Information. BILLING PARTY will not use for any purpose other than contemplated by this Agreement, will not disclose to any third party, and will cause its employees, independent contractors, and agents to not use or disclose, any term of this Agreement, and any information learned about the business practices and ways in which either party conducts business that is not generally known to others, including without limitation details about the Integration Services, any data or information that is a trade secret or competitively sensitive such as computer software and documentation, data and data formats, and financial information. BILLING PARTY will inform NRS of any request by a court or government agency to disclose such information to enable the other party to waive the provisions of this Section or defend the nondisclosure. This Section will survive termination of this Agreement. In the event of a breach of this Section, the parties agree that BILLING PARTY will suffer irreparable harm, and that the amount of monetary damages would be impossible to calculate. Thus, BILLING PARTY will be entitled to injunctive relief in addition to any other rights to which it may be entitled, without the necessity of proof of actual damages
VI. Term and Termination
6.1 Term. This Agreement will become effective on the Effective Date, will remain in effect for a period of 3 years (“Initial Term”), and will automatically renew for additional successive 1-year periods (“Renewal Term”) unless terminated in accordance with the provisions of this Agreement.
6.2 Termination. Notwithstanding the above, the parties will have the following rights: (A) NRS may terminate this Agreement upon written notice; (B) Either party may terminate this Agreement at the end of the Initial Term or any Renewal Term upon written notice of termination to the other party at least 30 days prior to the end of the Initial Term or any Renewal Term and (C) Either party may terminate this Agreement if the other party fails to observe any material obligation specified in this Agreement or the other party engages in any act or omission that may damage the reputation or business of the other party, including but not limited to payment obligations.
VII. Indemnification and Limitation of Liability
7.1 Indemnification. BILLING PARTY agrees to indemnify, defend, and hold harmless NRS, its employees, directors, managers, members, officers or agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys' fees and court costs) which may be claimed by a third party as a result of: (A) any failure by BILLING PARTY, merchant or any employee, agent, or affiliate of the party to comply with the terms of this Agreement; (B) any warranty or representation made by BILLING PARTY being false or misleading; (C) negligence or willful misconduct of the party or its subcontractors, agents or employees, or (D) any alleged or actual violations by BILLING PARTY, merchant, its subcontractors, employees, or agents of any card organization rules, laws or regulations. This Section will survive termination of this Agreement.
7.2 Limitation of Liability. The liability, if any, of NRS under this Agreement for any claims, costs, damages, losses and expenses for which they are or may be legally liable, whether arising in negligence or other tort, contract, or otherwise, will not exceed in the aggregate the amount of Fees paid to NRS for the preceding 1 month period, not to exceed $250, measured from the date the liability accrues. In no event will NRS be liable for indirect, special, or consequential damages even if advised of that possibility. NRS will be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party or of NRSs. This Section will survive termination of this Agreement.
7.3 Disclaimer. The Integration Services are provided on an “as is,” “as available” basis without any representations or warranties. NRS does not represent or warrant the Integration Services will be available, accessible, uninterrupted, timely, secure, accurate, complete or entirely error-free. BILLING PARTY may not rely on any representation or warranty regarding the Integration Services by any third party in contravention of the foregoing statements. NRS specifically disclaims all representations, warranties and conditions whether express or implied, arising by statute, operation of law, usage of trade, course of dealing, or otherwise, including but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, non-infringement, or title with respect to the Integration Services. BILLING PARTY understands and agrees that NRS shall bear no risk with respect to BILLING PARTY’s sale of products or services including, without limitation, any risk associated with credit card fraud or chargebacks.
This Agreement, including the attached Exhibits which are incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter and supersedes any other agreement between the parties relating to its subject matter. This Agreement may not be amended except in a writing executed by both parties. BILLING PARTY may not assign this Agreement without the prior written consent of NRS. All communications under this Agreement will be in writing and will be delivered in person or by mail courier, return receipt requested, to the address set forth in the first paragraph of this Agreement. If any provision of this Agreement is illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. This Agreement will inure to the benefit of and will be binding upon the parties and their permitted successors and assigns. This Agreement will not be deemed to be for the benefit of any third party. The Agreement will be deemed to be a contract made under the laws of the State of New Jersey and will be construed in accordance with the laws of Essex County without regard to principles of conflicts of law. NRS and BILLING PARTY will be deemed to be independent contractors and will not be considered to be an agent, servant, joint venture or partner of the other. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and such counterpart shall together constitute one and the same instrument.