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HomeMy WebLinkAboutCARDCONNECT LLC - CONTRACT - AGREEMENT MISC - CARDCONNECT - RECREATION AND PARKS MANAGEMENT SOFT-1- #20699554 v16 Rev. 4/8/2014 CARDCONNECT HOSTED SERVICE AGREEMENT READ THIS CARDCONNECT HOSTED SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY. IT IS A LEGAL AGREEMENT BETWEEN CARDCONNECT, LLC (“CARDCONNECT”) AND THE ENTITY STATED ON THE CONFIRMATION (THE “CUSTOMER”) WHICH CONTAINS TERMS AND CONDITIONS THAT GOVERN CUSTOMER’S USE OF THE HOSTED SERVICE PROVIDED UNDER THE AGREEMENT. BY CLICKING THE “I AGREE” BUTTON, OR SIGNING THE CONFIRMATION (THE “CONFIRMATION”), OR USING OR CONTINUING TO USE THE HOSTED SERVICE, CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) ITS USE OF THE HOSTED SERVICE DESCRIBED IN THE AGREEMENT WILL BE GOVERNED BY THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT, (II) THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER IS 18 YEARS OF AGE OR OLDER AND HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, AND (III) ALL INFORMATION PROVIDED IN CONNECTION WITH THIS AGREEMENT IS ACCURATE, CURRENT AND COMPLETE. CUSTOMER AGREES TO NOTIFY CARDCONNECT OF ANY CHANGES TO THE INFORMATION PROVIDED, PROMPTLY AND IN WRITING. 1. Use, Restrictions and Support. 1.1. Provision of Hosted Service. Conditioned upon Customer’s compliance with this Section 1, Section 2 and Section 7, CardConnect shall make the Hosted Service available to Customer pursuant to this Agreement, for the limited purpose of enabling Customer to connect to selected bank processors for the transmission and security of payment card data. To the extent that any software will be delivered for download by Customer as part of the Hosted Service (the “Licensed Software”), CardConnect grants Customer a limited, non-exclusive, non- transferable right and license (in object code only and with no right to sublicense) to use such Licensed Software solely as necessary to use the Hosted Service during the term of this Agreement. CardConnect may make the Hosted Service available to Customer directly or through resellers, ISOs, merchant aggregators, banks or other third parties through which CardConnect provides the Hosted Service to Customers 1.2. Restrictions; Reservation of Rights. Customer shall not use the Hosted Service or the Licensed Software for any purpose other than as expressly set forth in Section 1.1. Customer shall not copy, frame, mirror, modify or create derivatives of, translate, reverse engineer, disassemble, reverse compile, de-compile or otherwise attempt to determine the functionality of the Licensed Software or parts thereof. Customer shall not resell, redistribute or otherwise make the Hosted Service or the Licensed Software available to any third party and shall not use the Hosted Service or the Licensed Software to provide services to any third party (e.g., business process outsourcing, service bureau applications or third party training) without written authorization from CardConnect (and subject to any additional fees payable). Customer acknowledges and agrees that the rights granted hereunder are not a sale of the Hosted Service or the Licensed Software and that Customer shall return all copies (in whatever form or media) of the Licensed Software to CardConnect upon expiration or termination of this Agreement for any reason. No express or implied rights or licenses are granted herein, except as expressly granted DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -2- #20699554 v16 Rev. 4/8/2014 in Section 1.1, and CardConnect reserves all title and all other rights in or to the Hosted Service and the Licensed Software including all intellectual property rights therein. 1.3. Customer Responsibilities. (a) Customer shall (i) be solely responsible for its employees’ and agents’ compliance with this Agreement and for their actions, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use or disclose Customer Data only in connection with a Transaction, except as otherwise required by court order, government agency request, subpoena or order, (iv) be solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by CardConnect and for verifying that all corresponding funds are accurately processed, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service or the Licensed Software, and notify CardConnect promptly of any such unauthorized access or use and take such steps as may be necessary to prevent additional unauthorized access or use, (vi) disclose to its customers on its website how and why personal and financial information is collected and used, including uses governed by this Agreement, (vii) use the Hosted Service and the Licensed Software only in accordance with associated user documentation provided by CardConnect, and (viii) comply with all applicable laws and government regulations, and rules, standards and guidelines promulgated by the Card Networks, PCI DSS and the Federal Trade Commission. (b) Customer shall not (i) use the Hosted Service or the Licensed Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Hosted Service or the Licensed Software to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Hosted Service or the Licensed Software or third-party data contained therein, (iv) attempt to gain unauthorized access to the Hosted Service or the Licensed Software or their related systems or networks, (v) knowingly submit any Transaction that is illegal or that the Customer should have known was illegal, (vi) deposit a Transaction receipt that it knows or should have known to be either fraudulent or not authorized, or (vii) engage in any activity or submit any Transaction that (A) fails to comply with applicable laws and government regulations, including, without limitation, any and all rules, standards and guidelines promulgated by the Card Networks, PCI DSS and the Federal Trade Commission or (B) may cause CardConnect to be subject to investigation, prosecution, or legal action. 1.4. Customer Data. As between CardConnect and Customer, Customer owns all rights, title and interest in and to all Customer Data. Customer shall be solely responsible for the security of Customer Data residing on servers owned or operated by Customer or a third party designated by Customer, and warrants that it has taken and will continue to take such precautions as may be necessary to ensure that Customer’s servers and electronic systems are secure from unauthorized access by third parties. Customer shall be solely responsible for maintaining records of all Customer Data and Transactions. Upon request by Customer, made within 30 days after the effective date of termination of this Agreement, CardConnect will make available to Customer a download of all Customer Data then-held on CardConnect systems in clear text format or such other format agreed upon by the parties. After such 30-day period, DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -3- #20699554 v16 Rev. 4/8/2014 CardConnect shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. 1.5. Credit Card Processing. Since the Hosted Service includes credit or debit card processing services to enable credit or debit card purchases, Customer hereby acknowledges that all fund processing services are provided by third party fund processors. Customer shall be responsible for taking any action, providing information, maintaining, updating, implementing and executing any agreements or documentation required by such third parties, including obtaining a merchant account and all fees, costs and expenses in connection therewith. CardConnect shall not be responsible for any errors or omissions of third parties in connection with fund processing services. 1.6. Security Certificate. The Hosted Service may include issuance to Customer of an SSL certificate or other equivalent security certificate to enable secure and encrypted communications between Customer and the Hosted Service. Customer hereby acknowledges that all such security certificates are provided by third party certificate authorities and CardConnect shall not be responsible for any errors or omissions of third parties in connection with security certificates. Customer is responsible for reasonably cooperating with CardConnect as required in connection with the issuance and maintenance of security certificates. 1.7. Passwords. The Hosted Service is password protected. Customer shall solely and exclusively control the creation and provision of passwords for access to the Hosted Service. Customer hereby accepts responsibility for, and shall be liable for, all access to the Hosted Service other than access by CardConnect. Customer shall be responsible for maintaining the confidentiality of the Customer-generated passwords provided that CardConnect shall be responsible for protecting the confidentiality and unauthorized use of user passwords by its personnel and any persons or entities to whom it has provided access to the same. CardConnect shall promptly suspend access rights for any Customer generated password in the event that Customer informs CardConnect in writing of potentially improper access to or use of such Customer password. 1.8. Third Party Hosting Agreements. Customer acknowledges that CardConnect may engage the services of certain third party service providers in its provision of the Hosted Service. Customer shall reasonably cooperate with any such third party in connection with the provision of the Hosted Service. 1.9. Compliance. Customer agrees that CardConnect may audit/inspect Customer Facilities and records for compliance with this Agreement. Such audit will be at CardConnect’s expense, upon reasonable notice, and will be performed during normal business hours. 1.10. Support and Maintenance. CardConnect reserves the right to change the Support offered to Customer. Customer’s requests for additional services that are not included in Support will be chargeable at CardConnect’s published rates. Such additional services include but are not limited to: (i) requests for support after CardConnect’s local standard business hours; DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -4- #20699554 v16 Rev. 4/8/2014 (ii) requests to repair damage or failure attributable to improper site preparation, site or environmental conditions that do not conform to CardConnect’s site specifications, operation outside of CardConnect’s specifications and failure to follow applicable user documentation, inadequate maintenance, Customer or third-party media, software, interfacing, supplies or other products, modifications not performed or authorized by CardConnect, or abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances, transportation by Customer or other causes beyond CardConnect’s control; and (iii) requests for support where Customer does not, in CardConnect’s reasonable judgment, meet the applicable prerequisites and eligibility requirements for support. CardConnect may in its reasonable judgment modify the Hosted Service or the Licensed Software to improve operation, supportability, and reliability, or to meet legal requirements. 1.11. Access to Customer Facilities. Customer shall provide CardConnect access to Customer Facilities as reasonably determined necessary by CardConnect in order to provide the Support. If Customer’s failure to provide access results in CardConnect’s inability to provide Support, CardConnect shall be entitled to charge Customer for the support call at CardConnect’s published service rates. Customer shall provide reasonable supervision in the event CardConnect is granted access to Customer Facilities. 1.12. Contact Person. Customer shall designate a principal contact person who shall act as a liaison between CardConnect and Customer and who shall have sufficient authority to grant or communicate the granting of all necessary approvals. All operational notices shall be delivered to Customer’s contact person. The contact information for Customer’s initial contact person is in the Confirmation. Customer may replace its contact person upon written notice to CardConnect. 1.13. Credit Report. Customer acknowledges that CardConnect may, in the course of evaluating Customer’s eligibility to receive the Hosted Service, obtain credit reports or other personal or credit information regarding Customer. 2. Fees and Payment. 2.1. Fees. Customer shall pay CardConnect the Fees set forth on the Confirmation. Fees begin on the Effective Date and shall be due on the first day of each month thereafter. Customers with U.S. bank accounts authorize CardConnect to debit Customer’s depository account identified in the Confirmation for all amounts due under this Agreement. Customer shall promptly notify CardConnect of any changes in its bank account number or federal income tax ID number. Customers without U.S. bank accounts authorize CardConnect to charge Customer’s credit card account provided by Customer to CardConnect. Customer shall promptly notify CardConnect of any changes in its credit card account number or federal income tax ID number. In the event that Customer notifies CardConnect of its desire to terminate this Agreement, the applicable foregoing authorization shall remain in effect until CardConnect has collected all amounts due prior to receipt by CardConnect of said notice of termination. Each time CardConnect attempts to debit Customer’s depository account or charge Customer’s credit card for an amount due under this Agreement, and receives a returned item or decline message from Customer’s bank, Customer shall pay to CardConnect the then-current returned payment fee charged by CardConnect to its customers. DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -5- #20699554 v16 Rev. 4/8/2014 2.2. Late Fees. In addition to those amounts described in Section 2.1, Customer shall pay to CardConnect a late fee equal to the product of (i) the then overdue payment for each month multiplied by (ii) one and one-half percent (1.5%), (or if such amount exceeds that permitted under applicable law, the maximum amount permitted thereunder) for any amounts not paid by Customer within thirty (30) days of the date due. In addition, CardConnect may in its sole discretion discontinue performance of this Agreement if Customer fails to pay any sum due hereunder. Customer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by CardConnect in collecting any unpaid Fees. 2.3. Taxes. Customer shall pay all license fees, registration fees, assessments, imports, duties, charges and taxes imposed by any international, federal, state or local authorities with respect to this Agreement, excluding income taxes on profits which may be levied against CardConnect. 3. Term and Termination. 3.1. Term. The term of the Hosted Service (and the license of the Licensed Software) shall commence on the Effective Date and continue in full force and effect until terminated as provided in Section 3.2 below. 3.2. Termination. CardConnect may terminate this Agreement and/or Customer’s access to the Hosted Service, at any time, for any reason, with or without cause. Customer may terminate this Agreement for any reason, with or without cause, upon thirty (30) days’ advance written notice to CardConnect. 3.3. Survival. Sections 4, 6.3, 6.4, 7, 9.1, 9.6, 9.9 and 9.10, as well as any payment obligations that have accrued pursuant to Sections 2.1 or 2.2, shall survive expiration or termination of this Agreement for any reason. 3.4. Effect of Termination. In the event of any termination of this Agreement, Customer shall immediately cease use of the Hosted Service and the Licensed Software. 4. No Promotion. Customer shall not, without the prior written consent of CardConnect, use in advertising, publicity, or otherwise, the name of CardConnect or any officer, director, employee, consultant or agent of CardConnect, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by either of the foregoing. 5. Representations and Warranties 5.1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) It has the full corporate right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -6- #20699554 v16 Rev. 4/8/2014 (b) Entering into this Agreement and the performance by it of its obligations hereunder, do not and shall not violate any other agreement to which it is a party or by which it is otherwise bound. 5.2. PCI Data Security Warranty. CardConnect represents and warrants that the data center and any back-up or alternative facility used by CardConnect to provide the Hosted Service is and shall remain, during the term of this Agreement, compliant with applicable PCI data security standards for hosting facilities supporting consumer and business financial transactions. 6. Indemnification; Disclaimer of Warranties; Limitation of Liability. 6.1. Indemnification by CardConnect. CardConnect shall indemnify, defend and hold harmless Customer and its officers, directors, managers, employees, agents and representatives, from and against any and all third party claims, actions, damages, obligations, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and other costs of defense), arising from any allegation that the Hosted Service or the Licensed Software as delivered to Customer violate, misappropriate or infringe the rights of any third party; provided that CardConnect's indemnification obligations shall not apply to the extent any such third party claims relate to infringement allegations based on the combination of the Hosted Service or the Licensed Software with any third party products or services, unauthorized use of the Hosted Service or Customer non-compliance with specifications or user documentation provided by CardConnect, CardConnect’s compliance with Customer or third party designs, specifications, instructions or technical information, or to the extent arising from claims for which Customer is obligated to indemnify CardConnect; and provided further that Customer (i) notifies CardConnect promptly (but not more than ten (10) days) in writing of any such claim or suit; (ii) gives CardConnect full information and assistance in settling and/or defending the claim or suit; and (iii) gives CardConnect full authority and control of the defense and/or settlement of any such claim or suit. If the Hosted Service or the Licensed Software becomes subject to a claim of infringement for which CardConnect may be required to indemnify Customer pursuant to this Section 6.1, CardConnect may at its sole option (x) obtain the right to continue using th e Hosted Service or the Licensed Software; (y) replace or modify the Hosted Service or the Licensed Software such that it does not infringe; or (z) terminate this Agreement. 6.2. Indemnification by Customer. Customer agrees to defend, indemnify and hold CardConnect and its officers, directors, managers, employees, agents and representatives harmless from and against any and all third party claims, actions, damages, obligations, losses, liabilities, costs and expenses (including reasonable attorneys’ fees, costs of collection, and other costs of defense) arising from or related to (i) any breach of this Agreement, including the breach of any representation or warranty or failure to perform any covenant required under this Agreement, (ii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or any of Customer’s employees, agents or users, or (iii) use of the Hosted Service or the Licensed Software or user documentation except as set forth in Section 1.1 (subject to the limitations in Section 1.2); provided that Customer 's indemnification obligations shall not apply to the extent arising from claims for which CardConnect is obligated to indemnify Customer. DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -7- #20699554 v16 Rev. 4/8/2014 6.3. Disclaimer of Warranties. THE HOSTED SERVICE, THE LICENSED SOFTWARE, AND SUPPORT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 5.2, NEITHER CARDCONNECT NOR ITS LICENSORS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CORRECTNESS, QUALITY, ACCURACY, SECURITY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, PRICING OR CONTINUED AVAILABILITY OF THE HOSTED SERVICE, THE LICENSED SOFTWARE, SUPPORT OR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN ACCESS TO THE HOSTED SERVICE OR THE LICENSED SOFTWARE. EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 5.2, CARDCONNECT AND ITS LICENSORS SPECIFICALLY DISCLAIM AND CUSTOMER HEREBY WAIVES ALL EXPRESS OR IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OPERATION OF THE HOSTED SERVICE OR THE LICENSED SOFTWARE AND ANY PARTICULAR APPLICATION OR USE OF THE HOSTED SERVICE OR THE LICENSED SOFTWARE (WHETHER OR NOT KNOWN). 6.4. Limitation of Liability. NEITHER PARTY NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME OR OPPORTUNITIES, LOSS OF USE OF THE SERVICES, LOSS OF DATA, COST OF RECREATING DATA OR COST OF CAPITAL. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO (i) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, (ii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS ARISING FROM THIRD PARTY CLAIMS, (iii) EITHER PARTY’S OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, (iv) CUSTOMER’S OBLIGATIONS UNDER SECTION 2, OR (v) TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 7. Confidential Information. 7.1. Confidential Information. Each party acknowledges that, during the term of this Agreement, it may receive information from the other party that such other party regards as highly confidential and proprietary, including but not limited to information concerning such party’s business and operations (“Confidential Information”). Confidential Information of CardConnect includes all non-public information of CardConnect and its Affiliates, whether disclosed in written, oral or electronic form, including information regarding (i) the Hosted Service and the Licensed Software and other software of CardConnect and its Affiliates, DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -8- #20699554 v16 Rev. 4/8/2014 including benchmark results, manuals, program listings, databases, data structures, flow charts, logic diagrams, documentation and specifications, (ii) concepts, techniques, ideas, and know- how embodied and expressed in the Hosted Service and the Licensed Software and other software of CardConnect and its Affiliates, and (iii) information relating to CardConnect’s business plans, pricing, accounting, finance, employees, contractors, customers and suppliers. Confidential Information shall not include (a) information already lawfully known to one party at the time of disclosure by the other, (b) information generally known to the public other than as a result of disclosure in violation of this Section 7, or (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information. 7.2. Non-Disclosure and Non-Use Obligations. Customer acknowledges that the Confidential Information of CardConnect embodies valuable confidential and proprietary information of CardConnect and/or its licensors, the development of which required the expenditure of considerable time and money by CardConnect and/or its licensors. Each party shall treat all Confidential Information of the other in confidence and shall not use, copy, or disclose, nor permit any of its personnel or any other party to use, copy, or disclose the same, for any purpose that is not specifically authorized under this Agreement. Each party shall use at least the same degree of care in handling Confidential Information of the other as it uses with regard to its own confidential information, but no less than reasonable care. Each party shall advise each of its employees who may be exposed to Confidential Information of the other of their obligations to keep that information confidential, and shall require all contractors permitted access to such Confidential Information to execute confidentiality agreements at least as protective of the Confidential Information as this Section 7. 7.3. Exceptions. Notwithstanding Section 7.2, one party may disclose Confidential Information of the other only to the extent required by law or by order of a court or governmental agency; provided, however, that the party directed to disclose shall first give the other party prompt notice and shall cooperate with such other party if such other party wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information. Notwithstanding the foregoing, CardConnect may share Confidential Information of Customer with resellers, ISOs, merchant aggregators, banks and other third parties through which CardConnect provides the Hosted Service to Customers. 7.4. Confidentiality of Agreement. Neither party shall disclose the terms and conditions of this Agreement or the pricing contained herein to any third party, except for (i) a party’s consultants, accountants, attorneys, advisors, and lenders, or (ii) a party’s prospective acquirers of its business, and their consultants, accountants, attorneys, advisors, and lenders; provided that, each person in (i) or (ii) to whom Confidential Information of CardConnect is disclosed shall first execute a written confidentiality agreement at least as protective of information regarding the Agreement as Section 7.1. 7.5. Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Confidential Information of such other party and any copies of documents, papers or other material which may contain or be derived from any such Confidential Information that is in its possession, and shall certify the same in writing at the request of such other party. DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -9- #20699554 v16 Rev. 4/8/2014 8. Title. Nothing contained in this Agreement shall directly or indirectly be construed to assign or grant to Customer any right, title or interest in and to the trademarks, copyrights, patents or trade secrets of CardConnect or any ownership rights in or to the Hosted Service and the Licensed Software, including any documentation. 9. General 9.1. Use of Customer's Name by CardConnect. CardConnect shall have the right to use Customer's name or any Customer trademark in its customer lists, marketing materials and communications to publicize that Customer uses the Hosted Service. 9.2. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing and all other oral, written or other communications between the parties concerning this subject matter. The parties agree that all previous licenses for CardConnect-owned software products granted by CardConnect (or its predecessor) to Customer, if any, are hereby terminated and replaced by this Agreement. 9.3. Amendments. This Agreement may be modified by Customer only by a writing signed by both parties. CardConnect reserves the right to amend, modify or change the Hosted Service or the Licensed Software, and the policies, procedures, documentation and guidelines associated therewith, at any time. CardConnect may modify any provision of this Agreement at any time, and will post the modified Agreement for access by Customer through the Hosted Service and/or on CardConnect’s website. Any modification is effective immediately upon posting and Customer’s continued use of the Hosted Service shall constitute Customer’s acceptance of the Agreement as modified. 9.4. Assignment. Customer may not assign the Agreement by operation of law or otherwise, in whole or in part, without CardConnect’s prior written consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. CardConnect may assign this Agreement, in whole or in part, without obtaining the consent of Customer. 9.5. Force Majeure. Neither party shall be liable for any performance delays or failure to perform its obligations under this Agreement (except obligations to make payments) or any failure of the Hosted Service or the Licensed Software because of circumstances beyond the control of such party, which such circumstances shall include natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, laws, and court orders (other than with respect to claims covered by CardConnect’s indemnification obligations or otherwise due to CardConnect or Customer actions). In the event of the occurrence of such circumstances, the party affected by the force majeure condition shall promptly notify the other party of the situation. For the avoidance of doubt, force majeure shall not apply to any obligation to make any payments hereunder. 9.6. Equitable Relief. Customer acknowledges that a breach of any provision of Section 1 or Section 7 of this Agreement shall cause CardConnect irreparable injury and damage. Therefore, those breaches may be stopped through injunctive proceedings, without DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -10- #20699554 v16 Rev. 4/8/2014 posting of any bond, in addition to any other rights and remedies which may be available to CardConnect at law or in equity, and Customer will not urge that such remedy is not appropriate under the circumstances. 9.7. Independent Contractors. Each of the parties is acting, in performance of this Agreement, as an independent contractor. Neither party shall have any right, power or authority to create, and shall not represent to any person that it has the power to create any obligation, express or implied, on the other's behalf without the express prior written consent of such party. None of the employees of either party shall be considered an employee of the other party for any reason. 9.8. Notices. Any notice required or permitted to be given under this Agreement must be given in writing and shall be effective from the date sent by registered or certified airmail, by hand, by facsimile (with receipt acknowledged) or by international overnight courier to the address set forth below, or such other address as either party may in the future specify in writing to the other party: If to CardConnect: Address: 1000 Continental Drive, Suite 600, King of Prussia, PA 19406 Attn: President, CardConnect Fax: 484-581-1626 If to Customer: To the person named and the address shown in the Confirmation. 9.9. Severability. If any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement shall not be affected or impaired. 9.10. No Waiver. The failure by either CardConnect or Customer to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party in the performance or compliance with any of the terms and conditions set forth in this Agreement. 9.11. Construction. The headings and captions in this Agreement are intended for convenience of reference and shall not affect interpretation. The terms “include” or “including” and “e.g.,” as used in this Agreement, shall be deemed to include the phrase “without limitation.” 9.12. Governing Law. This Agreement is deemed entered into in Pennsylvania and shall be governed and construed in all respects by the laws of the Commonwealth of Pennsylvania, without giving effect to principles of conflict of law of any jurisdiction. Any litigation or other dispute resolution between the parties relating to this Agreement shall take place only in Pennsylvania. The parties consent to the personal jurisdiction of, and venue in, the state and federal courts within Pennsylvania and hereby waive any objection to such jurisdiction and venue on any grounds, including the convenience of the forum. Neither the United Nations DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -11- #20699554 v16 Rev. 4/8/2014 Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act as enacted shall apply to this Agreement. 9.13. Export Control Notice. The Hosted Service, Licensed Software, documentation and Proprietary Information are being released or transferred to Customer in the United States and are therefore subject to the U.S. export control laws. Customer acknowledges its obligation to ensure that its exports from the United States are in compliance with the U.S. export control laws. Customer agrees that it will not submit the Hosted Service or the Licensed Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of CardConnect. 9.14. U.S. Federal Government Use. If the Hosted Service or the Licensed Software is made available for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are made available under CardConnect’s standard commercial license. 9.15. Authority. The individual entering into this Agreement represents and warrants that he/she is duly authorized by all necessary action to enter into this Agreement on behalf of Customer. 10. Definitions. When used in this Agreement, the words or phrases below shall have the following meanings: 10.1. “Affiliate” means, with respect to a party hereto, any subsidiary, parent or other affiliate controlled by such party and any entity directly or indirectly controlled by, under common control with, or controlling such party. For the purposes of this S ection, “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 10.2. “Card Network” means American Express, Discover Financial Services, MasterCard International Inc., Maestro International Inc., Visa U.S.A. Inc., Visa, Inc., Visa International Inc., and any other credit or debit card issuing company. 10.3. “Confidential Information” shall have the meaning set forth in Section 7.1. 10.4. “Confirmation” has the meaning set forth in Section 1.12. 10.5. “Effective Date” means the earlier of the date Customer (i) clicks the “I Agree” button, (ii) acknowledges its acceptance of the Agreement by signing the Confirmation or by any other method approved by CardConnect (iii) uses the Hosted Service. 10.6. “Fees” means the amounts to be paid by Customer for the Hosted Service and support as set forth on the Confirmation. 10.7. “Customer Data” means all electronic data or information submitted by Customer to the Hosted Service. DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 -12- #20699554 v16 Rev. 4/8/2014 10.8. “Customer Facilities” means the Customer premises and all equipment, systems, networks, and phone lines or other means used for the transmission of voice or data over networks, and all software programs and data used or stored on such equipment and systems. 10.9. “Hosted Service” means the online web-based service provided by CardConnect to Customer via a designated website as described in such documentation as may be provided by CardConnect from time to time. 10.10. “Licensed Software” has the meaning set forth in Section 1.1. 10.11. “Support” means the technical support and maintenance services provided to its customers of the Hosted Service in the ordinary course of business. 10.12. “Transaction” means any billable occurrence completed or submitted under Customer’s account, including but not limited to sale, void, refund, credit, offline force, capture authorization, validate, update or settlement, regardless of whether approved or declined. DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE By: ______________________________________ Gerry S. Paul, Director of Finance City of Fort Collins, Colorado APPROVED AS TO FORM: By: __________________________ Assistant City Attorney Name: ________________________ Title: _________________________ DocuSign Envelope ID: 579140B1-FF18-4040-A9AA-6BA0738D3954 Assistant City Attorney II Cyril Vidergar