This Merchant Agreement (“Agreement”), together with the attached Exhibits, is by and between the entity identified on Exhibit A (“Merchant”) and Factor4, LLc., a corporation with offices at 501 Abbott Drive, Suite 6, Broomall, Pa 19008 (“F4”).
1. Definitions. As used in this Agreement the following terms have the below meanings:
“Administration Portal” means the website used to access, review and manage the Transaction Services.
“Card” means a unique card that identifies and accesses each Transaction Services account.
“Confidential Information” means proprietary, confidential and non-publicly available information of F4 including but not limited to financial information, trade secrets, Intellectual Property, business plans, methods of operation, systems or processes, clients and price list, and any non-public information received by Merchant from F4 or about F4, whether orally, written, graphically, schematically or electronic form, or by any other medium.
“Intellectual Property” means all intellectual property of F4, including without limitation F4 trade names, trademarks, copyrights, patents, the System, Administration Portal, and the software for the operation of the Transaction Services.
“Payment Account” means Merchant’s deposit account identified on the attached Exhibit A, Setup Form.
“System” means that computer system and data processing equipment and software owned and operated by F4 to provide the Transaction Services.
“Transaction Services” means the electronic processing transactions made by customers of Merchant who hold approved accounts, including but not limited to Card activation, Card redemption, Card cancellation and balance inquiry for gift, loyalty, discount and prepaid Card usage.
2. The Transaction Services.
a. Services. F4 will provide the Transaction Services to Merchant for the fees set forth on the attached Exhibit A. The System shall electronically confirm a Card user has an active account on the System with a sufficient balance to fund the requested transaction. F4 shall endeavor to maintain accurate information, including the then current amount of funds available on each Card, and the maintenance of applicable expiration dates chosen by Merchant, if any. If Merchant desires that an expiration period or dormancy, inactivity or service fees be applied to any Card, or other terms applicable to special promotions, Merchant must notify F4 prior to ordering the Cards to ensure such requirements are printed on the Cards and administered in the System. Merchant may establish policies for the use, redemption, loss and theft of Cards, non-reimbursement policies and for administration fees, subject to agreement in writing by F4. F4 will follow all reasonable instructions regarding printing information on Cards. Merchant is solely responsible for ensuring all Cards comply with all applicable laws, including the Card Act (defined below).
b. Modifications to Transaction Services. F4 may relocate, modify, update, or replace the software used to provide the Transaction Services or any element of its systems and may withdraw or amend any function of the Transaction Services. F4 may also terminate any function or any Transaction Service immediately upon any regulatory, legislative, or judicial determination that providing such function or Transaction Service is inconsistent with applicable law or regulation or the rights of any third party.
c. Reporting. Reports detailing previous Card transactions are available on demand over the Internet, at a URL provided by F4 for the fees listed on Exhibit A. F4 reserves the right to rename, add, or modify the available reports. If F4 develops new reports Merchant shall have the right to receive such reports at F4’s then-current pricing.
d. Support Services. Merchant may obtain assistance with any Transaction Service technical difficulty by requesting assistance by phone. F4 reserves the right to establish limitations on the extent of such support, and the hours during which it is available. Generally F4 will supply telephone assistance to Merchant during F4’s regular business days, Monday through Friday from 8:00 am to 5:00 pm Eastern Time.
e. Training. F4 will train Merchant employees for purposes of those individuals re-training staff on the operation of the Transaction Services. At Merchant’s request, F4 will provide additional training, including but not limited to on-site Merchant training, at F4’s then current hourly rates. Merchant will reimburse F4 for all reasonable travel expenses incurred in such on-site training.
f. Service Interruption. If the System is down and not able to verify transactions, F4 will not process Card transactions. F4 shall not be responsible for lost profits or sales due to the malfunction or inaccessibility of the System. Merchant shall be solely responsible for any transactions authorized by Merchant without the knowledge and consent of F4, and will indemnify and hold harmless F4 from and against and all damage, loss, liability, consequential damage, expense, claim or obligation arising in connection with any service interruption.
g. Card Production. Merchant will purchase cards from F4 or F4’s designated vendor for all programs. If Merchant uses a third party the Merchant will pay F4 $0.15 per card number. Merchant shall pay F4 $500 for each Card set that may require correction by F4. If an error exists on Cards purchased directly from F4, F4’s sole liability to Merchant and to any third party shall be to correct such errors, at no cost to Merchant. Delivery of Cards will be deemed complete, and liability for loss shall transfer to Merchant, upon F4’s delivery of the supply of Cards to the United States Post Office, a common carrier or courier, or Merchant’s designated employee or agent. Following delivery of the Cards, the Card production services with respect to such order shall be completed, and F4 shall have no further responsibility whatsoever for any use, abuse, loss, damage, alteration, or theft of Cards following delivery.
3. Merchant Obligations.
a. Merchant Obligations. Merchant shall: (i) supply to F4 all information and data required by F4 to perform the Transaction Services; (ii) maintain all transaction records and other records required by law or regulation; (iii) obtain, operate and maintain at its own expense the electronic point of sale terminals or systems; (iv) be responsible for the accuracy and adequacy of all data transmitted by it or on its behalf for processing by or storage of information on the System; (v) maintain sufficient documentation and data to reconstruct transactions processed during any service interruption; (vi) comply with all federal, state, and local laws and regulations relating to the Transaction Services and this Agreement, including but not limited to stored value card disclosures, consumer protection, financial transaction, escheatment, the Electronic Funds Transfer Act, Regulation E and the Card Accountability Responsibility and Disclosure Act of 2009 (“Card Act”), and other applicable laws; (vii) obtain certification of all point of sale equipment to the System; (viii) settle all disputes directly with cardholders; and (ix) maintain fair and uniform policies for cardholders who purchase goods or services with a Card.
b. Communication. Merchant will ensure that all Merchant locations utilize the System through a dial-up phone connection or a connection via Internet through VPN, frame relay or other means as determined by Merchant and F4. The responsibility and expense for transportation and transmission of, and the risk of loss for, data and media transmitted between F4 and Merchant shall be borne by Merchant. Data lost by F4 following receipt shall either be restored by F4 from its backup media or shall be reprocessed from Merchant’s backup media at no additional charge to Merchant.
c. Reliance on Data. F4 will perform the Transaction Services on the basis of information furnished by Merchant. F4 shall be entitled to rely upon any such data, information, or instructions as provided by Merchant. If any error results from incorrect input supplied by Merchant, Merchant shall be responsible for discovering and reporting such error and supplying the data necessary to correct such error to F4 for processing at the earliest possible time. In providing the Transaction Services, F4 shall not be responsible for any liability arising from F4’s proper performance of the Transaction Services in accordance with Merchant’s instructions.
d. Cards. Merchant is responsible for the collection and settlement of all funds relating to the sale of the Cards and processing costs. Merchant must activate and redeem each Card in accordance with instructions provided by F4. All disputes involving goods or services purchased with a Card shall be settled solely between Merchant and the cardholder.
e. Unclaimed Funds. Merchant shall be responsible for complying with all unclaimed property, or escheatment laws, and for tracking and decrementing an unredeemed gift card (referred to as “Unclaimed Property”) to account for service charges or other fees, that may be allowed to be deducted against the Unclaimed Property and to ensure that these policies or regulations comply with all applicable statutes, rules, regulations.
f. Exclusivity. Merchant shall use F4 exclusively for the services outlined in this Agreement and shall not enter into any agreement with any third party under which such third party shall provide to Merchant, any Merchant location, or any Merchant affiliate, services similar to the Transaction Services.
g. Verification and Notice. Merchant shall notify F4 of any data entry errors, including any unauthorized transactions, new accounts, new files, or unauthorized amounts, within 30 days of the date of the applicable F4 report. Merchant’s failure to notify F4 of errors or discrepancies within such 30 day period shall constitute Merchant’s agreement that it has reviewed and approved the content of each report using proper internal control review procedures. F4 does not guarantee that the Transaction Services will be 100% error-free or that the variables and options selected and approved by Merchant will produce a result which is problem-free and otherwise meets the expectations of Merchant. The only responsibility F4 shall have with regard to (i) data entry errors and other similar human errors which occur in the usual course of business and (ii) unsatisfactory data processing results caused by options and variables selected or approved by Merchant is, respectively, to correct such errors as they are discovered and to assist Merchant in revising data processing options and variables to achieve a satisfactory result.
4. Term. This Agreement shall commence on the date this Agreement is signed by F4 and continue for a period of 30 days (“Initial Term”). This Agreement shall automatically renew for additional 30 day term unless either party provides the other party written notice of termination at least 30 days in advance of the expiration of the then-current term.
a. Termination by F4. This Agreement may be terminated immediately for “cause” by F4. “Cause” shall mean: (i) a breach of this Agreement by Merchant; (ii) failure to timely pay any fees, charges, or other amounts owed by Merchant to F4 under this Agreement; (iii) a determination by F4 that all of the Merchant’s Card transactions have ceased; (iv) the violation by Merchant of any rule, law or regulation that has or may have an adverse affect upon the operation of the System; or (v) Merchant is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
b. Termination by Merchant. This Agreement may be terminated by Merchant upon 30 days written notice to F4 in the event of a material breach of this Agreement by F4 which is not cured within 30 days after receipt of written notice from Merchant of such breach.
c. Responsibilities upon Termination. If this Agreement is terminated Merchant will immediately pay F4 any fees and charges incurred by the Merchant prior to the effective date of the termination. Upon termination, each party shall be responsible for the reinstallation of its computer or telecommunications support services and all related charges, and Merchant shall immediately cease using the System and shall delete all F4 Intellectual Property from its computers and POS terminals. The early termination fee shall not apply if Merchant terminates the Agreement pursuant to Section 5.b above.
d. Termination Assistance. (i) Upon termination of this Agreement without cause, Company shall provide Merchant with access to the Administration Portal for 30 days, during which time Merchant may arrange for an alternative provision of gift and loyalty card services to its customers. Merchant shall pay the fees set forth on Exhibit A during such 30-day period. Upon termination of this Agreement by Company for cause, or upon Merchant’s non-payment of amounts owed to Company under this Agreement, Company shall have the right to immediately terminate Merchant’s access to the Administration Portal.
(ii) For at least 120 days following the effective date of termination, Merchant shall maintain a settlement account with F4 or the depository institution designated by F4. Merchant authorizes F4, or its agent, to charge such account to settle any transactions which occur on or prior to the effective date of termination. Merchant shall pay to F4 fees at F4’s then current standard rates to settle such trailing activity.
6. Pricing and Terms of Payment.
a. Fees. Merchant shall pay to F4 the amounts set forth on the attached Exhibit A, which amounts are exclusive of shipping costs and taxes. F4 will add all applicable sales, use, or equivalent taxes imposed by any governmental authority having jurisdiction on all fees and charges. Shipping fees, if applicable, may be applied after delivery. F4’s fees are non-refundable.
b. Terms of Payment. At the beginning of each month F4 will deliver to Merchant a report detailing the prior month’s fees due for the preceding month. Merchant authorizes F4 or F4’s agent to debit via ACH from the Payment Account the amount of the fees owed to S under this Agreement. If Merchant, within 5 days of the delivery of the monthly report, disputes any fees in writing, the amount of such debit shall be reduced by the amount disputed. When F4 and Merchant resolve the dispute, such amount shall be debited from the Payment Account. If Merchant fails to object to any fees within 5 days of the delivery of the applicable report Merchant shall be deemed to assent to such fees and waives the right to dispute such fees beyond such 5 day period. Interest in the amount of 1.5% per month shall accrue on the fees that are unpaid, except for any disputed fees, until such fees are paid. For so long as any such interest is owed, any payment received by F4 shall first be applied to interest and then to unpaid fees.
7. Representations and Warranties. F4 warrants that it will provide the Transaction Services in a commercially reasonable manner in substantial conformity with the description provided by F4; provided, however, that such warranty does not apply to defects, problems, or failures caused by the Merchant’s nonperformance of obligations essential to F4’s performance of its obligations; or defects, problems, or failures caused by a security breach or an event of force majeure. THE WARRANTIES PROVIDED IN THIS SECTION ARE IN LIEU OF, AND SPARKBASE DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SPARKBASE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, SPARKBASE DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN MERCHANT.
a. Information. F4 will maintain information about Merchant and Merchant’s customers, including but not limited to account, order, and transaction information (“Merchant Information”). F4 may use the Merchant Information in aggregate form for the purpose of providing the Transaction Services, and for developing various statistical or similar information. F4 shall not disclose any Merchant Information without the prior written consent of Merchant other than as necessary to carry out its obligations under this Agreement.
b. Access. Merchant will either receive a password or a personal identification number (“PIN”) or both from F4 to obtain access to and use of reporting and other services on the Administration Portal. Merchant shall keep both its password and PIN confidential, shall allow no other person or company to use its account, and shall notify F4 promptly if Merchant has any reason to believe the security of its account has been compromised. F4 may access Merchant’s account and its contents as necessary to identify or resolve technical problems or respond to complaints or questions about the Transaction Services.
c. Laws. Merchant represents and warrants that any Personal Information collected by Merchant for the disclosure, use, and storage by F4 to operate the System has been explicitly consented to by the disclosing identifiable person. “Personal Information” is defined as any personally identifiable information but does not include business title, business address or business telephone number of said individual.
a. Confidentiality. Merchant shall hold in the strictest confidence, shall not disclose to any third party and shall use only as permitted under this Agreement, F4’s Confidential Information. Confidential Information shall remain the property of F4. Merchant shall take reasonable actions to protect the confidentiality of the Confidential Information, including but not limited to implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information and limiting the disclosure of Confidential Information to those employees who have a legitimate need to receive such Confidential Information in order to perform its obligations under this Agreement. Merchant shall not use, publish, divulge or disclose, make or cause to be made any copies, pictures, duplicates, facsimiles or other reproduction or recordings of any type, any abstracts or summaries of any such Confidential Information without the prior written consent of F4. No right or license, whether express or implied, is granted hereunder with respect to the Confidential Information.
b. Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure by Merchant or its personnel; (ii) is independently developed by Merchant without reliance on the Confidential Information provided by F4; or (iii) Merchant can establish, by suitable documentation or other sufficient evidence, was in its possession prior to the date of disclosure of such Confidential Information by F4. Merchant may disclose Confidential Information it is required to disclose under judicial order, regulatory requirement, statutory requirement or subpoena, provided that Merchant provides written notice and an opportunity for F4 to take any available protective action prior to such disclosure.
c. Actions. Merchant acknowledges that any disclosure of Confidential Information will cause irreparable harm for which monetary damages may be inadequate. F4 shall be entitled to an injunction restraining Merchant, its agents, employees, affiliates and others from such disclosure or misuse. Nothing shall be construed as prohibiting F4 from pursuing any other available remedies for such breach or threatened breach including recovery of damages.
d. Action Upon Termination. Upon termination of this Agreement and at any time upon request of either party Merchant shall promptly return all Confidential Information and copies thereof or shall destroy such Confidential Information and copies as directed by F4 and furnish proof of their destruction.
10. Intellectual Property.
Nothing in this Agreement shall give Merchant any right, title to, or interest in the System, the Administration Portal or the Intellectual Property. Merchant shall have no interest whatsoever, including copyright interests, franchise interests, license interests, patent rights, property rights or other interest in the Transaction Services. Merchant will make no attempt to duplicate or otherwise attempt to reverse engineer any provided equipment or software or the Administration Portal.
11. Indemnity; Limitation of Liability.
a. Indemnity. Each party agrees to indemnify, defend, and hold harmless the other party, its employees, directors, managers, members, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees and court costs) which may be claimed by a third party as a result of: (i) any failure by the indemnifying party or its employee, agent, or affiliate to comply with the terms of this Agreement or its contract with a cardholder; (ii) any warranty or representation made by the indemnifying party or its agents being false or misleading; (iii) negligence or willful misconduct of the indemnifying party or its subcontractors, agents or employees, or (iv) any alleged or actual violations by the indemnifying party or its subcontractors, employees, or agents of any state or federal laws, regulations or rules.
b. Notice. Each party agrees to: (i) promptly notify the indemnifying party in writing of any claims in respect of which indemnification may be sought from hereunder and give the indemnified party the opportunity to defend or negotiate a settlement if any such claim at such other party’s expense, and (ii) cooperate fully with the other party, at the other party’s expense, in defending or settling such claim. F4 may, at its expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by the Merchant.
c. Limitation of Liability. IN NO EVENT SHALL F4 BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS, INCLUDING WTHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, DIRECT OR INDIRECT, RESULTING FROM THE USE OF THE SYSTEM, THE ADMINISTRATION PORTAL, THE TRANSACTION SERVICES OR OTHERWISE BY THE MERCHANT OR ANY THIRD PARTY, EVEN IF ADVISED OF THAT POSSIBILITY. Notwithstanding any other provision of this Agreement the total, aggregate liability to Merchant or any third party under this Agreement shall in no circumstance exceed payments made to F4 by Merchant for the Transaction Services to which the claim relates during the 3 months prior to the act or event giving rise to such claim.
a. Entire Agreement. This Agreement, together with the attached Exhibit, which is incorporated into this Agreement, constitutes the entire Agreement between the parties and supersedes all previous negotiations, commitments and writings, including any and all representations made by agents, resellers, and representatives of the parties.
b. Amendments; Waivers. F4 may amend this Agreement in its sole discretion at any time whatsoever, including amending the attached Exhibit A, upon notice to Merchant. Otherwise, this Agreement may not be amended except in a writing executed by all parties. No course of dealing or failure by a party to enforce any provision of or exercise any right under this Agreement shall constitute a waiver of such provisions or right or affect the validity of this Agreement, or limit or impair the right of a party subsequently to enforce such provisions or exercise such rights.
c. Assignment. Merchant may not assign this Agreement without the prior written consent of F4 and any unauthorized assignment shall be null and void. This Agreement will inure to the benefit of and will be binding upon the parties and their respective permitted successors and assigns. This Agreement confers no rights or remedies on any third party, and will not be deemed to be for the benefit of any third party.
d. Applicable Law. The Agreement will be deemed to be a contract made under the laws of the State of Nevada, and will be construed in accordance with the laws of Nevada without regard to principles of conflicts of law. The exclusive forum and venue for the adjudication of any rights, claims or disputes arising out of or in connection with this Agreement shall be the state courts of Nevada or the United States District Court. The parties specifically waive the right to a jury trial in connection with any dispute arising out of this Agreement, or between the parties for any reason.
e. Notice. All notices, instructions and/or other communications required or permitted under this Agreement shall be effective when deposited with a recognized national courier or delivery service or by certified U.S. mail, return receipt requested. Notice shall be addressed to F4 at the address set forth in the first sentence of this Agreement, and to Merchant at the address indicated on the attached Exhibit A, or any other address that a party may give by notice to the other party.
f. No Partnership or Joint Venture. The parties to this Agreement will be deemed to be independent contractors and will not be considered to be agent, servant, joint venturer, or partner of the other.
g. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligation hereunder due to any causes which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
h. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
i. Counterparts; Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by facsimile copies or PDF copies reflecting the party’s signature, and any such facsimile copy or PDF copy shall be sufficient to evidence the signature of such party as if it were an original signature.
j. Survival. The expiration or termination of this Agreement shall not affect or impair the obligation or rights of either party under Sections 6, 8, 9, 10, 11, and 12 of this Agreement, nor any right, duty, or obligation arising pursuant to acts or omissions prior to the effective date of such termination.
k. Severability. 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 be deemed modified to the extent necessary to render enforceable the remaining provisions.
l. Attorney’s Fees. If any court holds that a party has breached this Agreement, then the non-defaulting parties will be entitled to recover expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs.