HomeMy WebLinkAboutCC Resolution 12510 (Credit Card Processing for Business License Tax Payments)RESOLUTION NO. 12510 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL WAIVING COMPETITIVE BIDDING AND APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH AUTHORIZE.NET TO PROVIDE A GATEWAY FOR ONLINE CREDIT CARD PROCESSING FOR BUSINESS LICENSE TAX PAYMENTS. The City Council of the City of San Rafael resolves as follows: Competitive bidding is waived for the reasons stated in the staff report as authorized by the San Rafael Municipal Code Section 2.55.070 (D), and the City Manager is authorized to execute, on behalf of the City of San Rafael, an agreement with Authorize.net, a copy of which is attached hereto as Attachment I and by this reference made a part hereof. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 16th day of June, 2008, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro None None 1zs� C •j!?QeR, - ESTHER C. BEIRNE, City Clerk to-"rL9 PAYMENT GATEWAY ACCOUNT SETUP FORM ATTENTION: Mallory LiAngstou Phone Number: 801-492-6470, Fax Niunber: 801-492-6546, E-mail Address: nilivingston�'in nuthorize,net Instructious: Please fax the completed setup form to 801-492-6546. STEP 1 , CC?)VIPANY tNF4 INA 1©N .� 77, Company Name: Citv of San Rafael Company Officer/ Owner I Principal Name, Ken N o r d h o f f Title: Citv Manaqer Company Tax ID (sole Prop. Can use ss#): 94 — 6 0 0 0 04 2 4 Company Address (No P.O. Boxes): 1 4 o n 5th AV, - City: vaCity: San Rafael State: C A ZIP Code: 94901 Company Phone Number: ( 415) 458-5040 Company Fax Number: ( 415) 485-3100 E -Mail Address (The address that setup Information will be sent to): Andrew. Thompson @ c i t y o f s a n r a f a e 1. or g Business Type (select one)f Corporatlo Non -Profit Corporatlon(musr send copy of 60lo3) LLC So/e Proprietorship LLP Market Type(select one)` Card Not Present (CNP)IE-commerce') Mall OrdeNfelephone Order (MOTO) Card Present (CP)IRetail Company Web Address (URL) (if you have one): www. ci tvof sanrafael . ora Detailed Description of Products or Services Sold: business license taxes :.i STEP 2; PAYtV ENT AND"�►C gUNT lNFt7i TION: 'u'''f't . ` ', :� .<- a ry .. 's. ,. . ..� J.';.Y.v ... .. , �; ..._... .....J. .. Ai V• . , bj Authorize.Net Payment Gateway Account Fees: Non -Refundable Setup Fee*; $99,00 Monthly Gateway Fee**; $20.00 Per -Transaction Fee**: $0.90 *Non -Refundable Setup Fee: Company agrees to pay to Authorize.Net a one-time non-refundable fee in the amount written above for the setup of Company's payment gateway account and access to Authorize. Net Services pursuant to the attached Authorization for Single Direct Payment (ACH Debit) form. IMPORTANT. You must also complete the "AUTHORIZATION FOR SINGLE DIRECT PAYMENT" form on Page 3. "Monthly Gateway & Per -Transaction Fee. Authorize.Net shall charge Company a Monthly Gateway Fee and Per - Transaction Fee in the amounts provided above. Billing shall commence upon the creation of the account, such fees will be billed automatically on a monthly basis to the bank account provided on Page 3. Authorization. By signing below, I acknowledge and agree, on behalf of my Company and myself, that I am entering into binding contract with Authorize.Net and will be bound by the following terms and conditions: (i) I have authority to execute this authorization and agreement on behalf of my Company; (ii) I permit Authorize.Net to share any and all information contained in these Authorize.Net Payment Gateway Account & Merchant Account Setup Forms with its service partners for the purpose of establishing a Merchant Account, if applicable: (iii) billing for the Authorize. Net Payment Gateway Account in the amounts set forth above shall commence upon Company's execution below; and (iv) I agree to be bound by the terms and conditions of the Authorize.Net Payment Gateway Merchant Service Agreement ("Authorize.Net Gateway Agreement"), incorporated herein by reference and located at the following Web address: http://www.aLltliorizenet.com/files/Authorize. Net—Service_Agreement.pdf. CompanylVame: City of San Rafael signature, 'I I Print Name: Ken Nordhoff PrintTitle Citv M a n a a e r Date: (t Last revi ed- 011251?008 2008Aut6anze.Xet,aCyimSouree solution —Attu:hbiloyLivin8stoa PAG& 2 o? 2 ttachment I AUTHORIZATION FOR SINGLE DIRECT PAYMENT (ACH DEBIT) The Company listed below hereby authorizes Atntlnorize.Net, LLC to initiate a debit entry to Company's account at the depository financial institution named below and to debit the saute to such account for the arnotnt listed below. Company aclanowledges that the origination of ACH transactions to Company's accoli nt lnust comply with the provisions of U.S. Iaw. F. Al'MENT Aa AGCgl1{_4TjNECiR►fiTi4N Bank Name: WestAmerica Branch City: San Rafael Routing Number (9 digits): Amount: The amount of the Non -Refundable Setup Fee set forth on the Payment Gateway Account Setup Form. Account Type (circle one): Checking Savings Branch State: CA Zip Code: 94903 Account Number: Effective Date: The date that Authorize.Net receives Company's completed Account Setup Form and Authorization for Single Direct Payment (ACH Debit). Note: See the example below if you need help finding your routing or account number. This authorization is to remain in full force and effect for this transaction only, or until such tine that inny indebtedness to Atithorize.Net for the annount listed above is hilly satisfied. Pliant Company Name: C i t v o f S a n R a f a e l/� _ J( [ ATTEST:--"�K.1:y( Plil3tCoiporiteF313ployeeName: Ken Nordhoff Esther C. Beirne, City Clerk �="` Sig33anue: �'�� '' � � -( 0 Date: - - Please fax a voided check (no deposit sllps) along with vour completed €orm. This will be used to verlfv the bank account information provided. A.B.A Routing Numbers Examhte John � Pubtic 123 Main Sheet Your Tann. USA 12345-0788 Pay to Nae cf*y of WLa raacrstis "coo �:OagQ5789?a�ti; i+2345GTil�• G:G: Routingi I ransit Account Number Number Loll aevssed Oln-0008 3008 Anthonze,lel. i C)lw5ovice sohhion - Alin Mallory Limpstoo PAGE 3 of 3 AUTHORIZE.NET@ PAYMENT GATEWAY MERCHANT SERVICE AGREEMENT Welcome to Authorize.Nel LLC ("Authorize.Net") and the Authorize.Net Merchant Service Agreement. Authorize.Net offers to merchants credit card transaction processing and payment gateway services, as well as a host of value -adding services, as more fully described herein and at www.authorize.net (the "5 ite"), as such descriptions may be changed by Authorira Net from time to time (tile "Authorize Net Services") In order for you, on behalf of your company (individually or collectively, "You" or "Your"), to obtain or continue using those certain Authorize.Net services, You must agree to and accept the terms and conditions of this agreement (the "Aereement" ). The Agreement sets out the ten -ns and conditions under which You may utilize the Authorize.Net Services. Please read this Agreement carefully. By clicking on the "1 AGREE" button, or by acknowledging Your acceptance of the Agreement terms and conditions by any other method allowed by Authorize.Net, or by using the Aulhorize.Net Services, You acknowledge and agree that You have reviewed and understand the Agreement and agree to be legally bound by all its terms and conditions. if You do not agree or are not willing to be bound by the terms and conditions of this Agreement, please do not click on the 9 AGREE" button, do not acknowledge Your acceptance of Ilse Agreement terms and conditions by any other method and do not seek to obtain or continue using the Authorize.Net Services. NOW THEREFORE, You agree as follows: 1, Your Capacity and Related Matters. By accepting the tenvis and conditions of this Agreement, You represent and wnrrnnt that (a) You arc 18 years of age or older, (b) all information You have provided to Authorize.Net is true and correct in all respects, and (c) You will updnte Authorize Net by e- mail with any changes to inforniation You have previously supplied. You further represent and warrant that You have the legal authority to nccepi the terns and conditions of this Agreement on behalf of Your company and that such acceptance will be binding oh Your company. Authnrize.Net reserves its right, in its sole discretion, to refuse to provide You with any Authorizc.Net Service. Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 13.14. 2. Undertakings of Authorize.Net. 2.1 Authorize.Nel Grant. Authorize Net hereby grants You a non- exclusive, royalty -free, Fully-pnid up right, during the Term, to use the Authorizc.Net Services, subject to the restrictions herein and any other restrictions communicated by Authorize. Net to You, only as necessary to perform hereunder and for no other purpose. 2.2 Authorize.Net Services. Authorize. Net shall provide the Authorize.Net Services to You in all material respects in accordance with the terms and conditions of this Agreement and consistent with all applicable laws and regulations. 2.3 Limitations. Your use of the Authorize.Net Services shall be restricted to a single merchant acquiring bank account and You shall not submit payment darn to Authorize Net or otherwise process orders on behnlf of any other entity or individual. Any attempt by You to use the Autlhorize.Nct Services for more than one merchant acquiring bank account or on behalf of another entity or individual may result in an obligation to pay to Authorize Net additional Ices and charges and/or Authorize.Nci's revocation of Your right to use the Authorize Not Services and termination of this Agreement. 2.4 Relationship to Merchant Service Providers. You may have enrolled in the Authorize.Net Services via a Merchant Service Provider. In addition to any other agreement You may have with the Merchant Service Provider, the icmhs and conditions of this Agreement govern Your use and Authorize Net's provision of the Authorizc.Nct Services. You expressly acknowledge and agree that AuthoriZe.Nel may share information about You and Your account with its Merchant Service Providers. 2,5 Customer Service. During the Tenn, if You are current in payment of all fees owing to Authorize Nei and are otherwise not in default under this Agreement, Authorize.Net shall provide customer service to You, as set forth in the Contact Us section of the Authorize.Net Web site at the URL <http:iA1919v authorizc.neUsuppert>. 3. )'our Undertakings. 3.1 iD and Password. In connection with Your rights described in Section 2,1, You must select an 1D and password to enable You to access Your payment gnteway account and use the Auihorize.Net Services. You will restrict access to such ID, password, and account to Your employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. You are solely responsible for maintaining adequate security and control of any and all iDs, passwords, or any other codes for purposes of giving You access to the Authorizc.Nct Services. Authorize Net shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You You shall comply with all Aulhorize.Nct recommendations and notices regarding the security of your ID, password and payment gateway account(s) AuluuHiii Nni PAYMLiti GAIIAAY NiLKLIh%N1 SI:kvicI AokF..IEA11'4T Last revised 3, 25108 2004, 2009 Auihonze Nei 3.2 Compliance with Law and Aulhorlre.Nel Guidelines, in connection with the exercise of Your rights and obligations under this Agreement (including, without limitation, any related to individual privacy), You will comply, at Your own expense, wide all laws, policies, guidelines, regulations, ordinances, rules applicable to You, this Agreement, Your business or the Transactions and/or orders of any govcnimcnial authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the rules promulgated by the Credit Card Associations, the Federal 'fade Commission, the electronic communication rules of the CAN -SPAM Act, and the privacy requirements of the Gramm Leach Bliley Act and regulations thereof. You shall comply with all the current policies, procedures and guidelines of Authorize Net governing the Authorize Net Services, including, without limitation, the Prohibited Activity list set forth in Appendix B. the Acceptable Use Guidelines and then current Services Documentation. Authorize.Ncl reserves the right to amend, modify or change such policies, procedures, and guidelines at any time. You shall not use the Authorize.Net Services in any manner, or in furtherance of any activity that may cause Authorize.Net to be subject to investigation, prosecution, or legal action 3.3 YaInC-Adding Solutions and Services, In tike event that You enroll in and/or utilize any of Authorize.Net's Value -Adding Services, You hereby acknowledge and agree to the terms and conditions contained in Appendix C, Value -Adding Services 3.4 'rhlyd Party Products and Services. Your use of third party products and services shall be governed by and subject to separate third party product, service, software and/or license agreements. Authorize.Net will not be a party to such third party agreements and docs not warrant or guarantee any third party product or service. 4. Data Collection, Privacy and Security. 4.1 Your Obligations, a. You are solely responsible for the security of data residing on servers owned or operated by You, or a third party designated by You (e.g, a Web hosting company, processor or other service provider). You shall comply with all applicable laws, policies and regulations governing the security, collection, retention and use by You of financial information, including card account numbers, and nil other personally identifiable customer information. You agree to provide notice to your customers on Your Web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement. b. You mast not use, disclose, sell or disseminate any cardholder information obtained in connection with a card Iransoction (including the names, addresses and cord account numbers of cardholders) except for purposes of authorizing, completing and settling card transactions and resolving any chargebacks, retrieval requests or similar issues involving card transactions, other than pursuant to a court or governmental agency request, subpoena or order. You shall use proper controls for and limit access to, and render unreadable prior to discarding, all records containing card account numbers rind card imprints. c. You agree that you will comply with all Atilhori7c Nei security protocols and security advisories in effect during the tern of this Agreement You are solely responsible for verifying the accuracy and completeness of all 'transactions submitted and processed by Authorize.Net associated with Your account mild verifying that all corresponding funds are accurately processed You acknowledge that Authorize.Net shall not be liable for any improperly processed or unatithorized'I'ransactions or illegal or fraudulent access to Your account, Data or Transaction data. Authorize. Net's liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Authorize.Net is limited pursuant to Section 11. d You will comply with all then -current legal obligations and security nneasures, as applicable, including without limitation those issued by Credit PAGE 1 or I CONI IDI:Nr1AL Card Associations and The Federal Trade Commission, associated with the collection, security, dissemination and destruction of Data and Transaction data, and expressly including the Payment Card industry (PCI) Data Security Standard, Visa Cordholder Information Security Program (CISP) and the MasterCard Site Data Protection Program (SDP). You warrant that You have taken such precautions as are necessary to ensure that Your server and electronic systems are secure from breach or intrusion by unauthorized third parties In the event That Your system is breached and an unauthorized third party tins access to or has accessed Data or Transaction data, You shall notify Authorize.Net promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. 4.2 Anthorize.Net Obligations. a. Authorize.Net will collect, retain, and disclose information and data collected from You and Your customers (including data associated with the Autliorizc.Net Services) in accordance with Authorize Net's Privacy Policy located on the Authorize.Net Web site at (lie URL <Iittp://N%iwv.atitiiori7c.not/company/privacy/>. You hereby consent, as it condition of Your use of the Authorize.Net Services, to the collection, use, processing and transfer or personal data as described in this paragraph and Auduorize.Ncl's Privacy Policy, You understand that Authorire.Nei will collect and hold personal or non-public information about You and Your customers, including but not )iinited to: Your name, address, telephone number, c -mail address, social security number and/or tax identification number, (and if a sole proprietorship or partnership, Your date of bink, salary, job title and credit history) for the purpose of considering eligibility for the Authorize.Net Services as well as Your customers' names, mailing and shipping addresses, e-mail addresses, phone numbers, dollar amount of purchases, types of purchases and descriptions of purchases (the "Data") for tine purpose of providing You with tine Authorize.Nat Services. You also understand and agree that Authorizc.Nct may obtain various consumer reports regarding You from third parties, run a credit check, report unpaid collection issues to credit bureaus, and/or obtain other personal or credit information oboist You. b. You further understand and agree that Authorize.Net, its subsidiaries, Merchant Service Providers, partners, suppliers and/or their agents/contractors may transfer Data amongst themselves as necessary for the purpose of the provision and management of the Authorize.Net Services, and that Authorize.Net may further transfer Data: (i) to third parties assisting Authorizc.Net in evaluating Your eligibility for, provision of, administration nod management of the Authorize.Net Services, as well as tinder circumstances described in Authorize Net's Privacy Policy, as may be modified from time to time; (ii) with non-affiliated entities that assist Authorize.Net in providing products and services that Merchant has requested, (iii) with companies that provide support services to Authorizc.Net or with which Authorize.Net tins agreements to provide marketing services on its behalf, or (iv) as otherwise permitted by law. While Authorize.Nct uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using the Authorize.Net Service, Authorize.Nct does not warrant that Data and Tronsaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by unauthorized third parties. c. With respect to the Authorize Nei Services, at nil times white this Agreement is in effect, Authorize Net will maintain compliance with the Payment Card Industry Data Security Standard (PCI). 4.3 Data Retention. You are solely responsible for compiling and retaining permanent records of all 'Transactions and Data for Your reference, Except as otherwise provided herein, at no time shall Authorize.Net have an obligation to store, retain, report or othenvise provide any copies of or access to any records of Transactions or Data collected or processed by Authorize Net. S. Fees. You shall pay to Authorize.Net the service fees set forth in the Fee Schedule located in the Merchant interface, which is hereby incorporated into the terns or this Agreement by reference. Notwithstanding anything to the contrary and iragreed upon by the panics, a Merchant Service Provider may charge, bill, and collect such fees from You, in the amounts stated in and in accordance with the terms and conditions of file agreement bctween You and such Merchant Service Provider If Your relationship with a Merchant Service Provider expires or terminates and such Merchant Service Provider was billing You for certain fees, then You may continue using the Authorize.Nct Services if You elect to continue using the Authorize.Net Services, You acknowledge and agree that Authorize.Net may begin to bill You for such fees In accordance with Section 13 5 fiercer, Authorizo.Nei may amend tine Fee Schedule with thirty (30) days notice to Merchnnt. 6. Payment'1'erms. 6.1 Authorize.Net }lifts You. 6.1.1 Milling 'Perms, Billing shall begin on the Effective Date. Authorize.Net service rees arc due and payable to Authorize Net on a monthly AUTn Oi!lr.0 NtiT PAYhi I:Nr GAIT WAY iit RCI4ANr SERVICh ArRFr Aitf.NT Lasl in-acd 125/08 2004, 2008 Anttiori-te Nei basis, and the first payment shall be due on the first day of the month immediately following the billing effective date. Unless otherwise specified herein, fees and payments for any subsequent time periods shall be due on the first day of the month. 6.1.2 ACH Authorization. You hereby authorize Autliorizc.Net to initiate transaction entries to Your depository account or, if Authorize.Nei is unable to collect owing amounts from Your depository account, to charge Your credit card, the numbers of winch are to be provided to Authorize.Net by You, directly or through a Merchant Service Provider, for any and all amounts owing to Authorize.Net under this Agreement. Entries initiated to or from Your depository account will be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or tiny other regulatory body or agency having jurisdiction over the subject matter hereor. This authorization is to remain in full force and effect until Authorize.Nei has received written notification from You or Your termination in such time and manner as to afford Authorize.Net and Your depository institution a reasonable opportunity to act on it. If Your depository account number or card account number changes, You must promptly update Your account information in the Merchant Interface with the new, numbers. If You fail to provide Authorize.Nel with accurate current depository account or card nccount numbers, Authorize.Net may discontinue its perromnance of the Autlhorize.Net Services for You, without liability, until such information is provided to Authorize.Net or terminate this Agreement. You acknowledge that any change ill account information may not be effective until the billing month following the second month in which Authorize.Net receives such notice. Termination of Your authorization shall result in termination of any and all Authorize,Nel Services. 6.1.3 Non -Sufficient Fund Fee, Late i'ayment Fee, and Service Reactivation Fee, You shall pay to Authorize.Nct a "Non -Sufficient Fund Fee," in the amount set forth fn the Pee Schedule, each time Authorize Net attempts to debit Your depository account for any amounts owing under this Agreement and receives a non -sufficient fund message from Your bank. Any amounts due to Authorize.Net tinder this Agreement and not paid when due will be subject to a finance charge equal to one and one-half percent (1.50/0) or the highest rate allowable by lata, determined and compounded daily from the date due until the date paid. Payment of such finonce charges will not excuse or cure any breach or default for late payment. Authorize.Nct may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check or payment or any correspondence accompanying any check or paynent or elsewhere will be construed as an accord or satisfaction. If You do not pay owing amounts on or before the first business day following the tenth (I 01h) day or the month. You viii be subject to a late payment fee, in tine amount set forth in the Fee Schedule. If You have not paid all owing amounts on or before the last business do), of tiie month in which they were due, Authorize.Net may, in its sole discretion, discontinue its performance of the Authorize.Not Services for You and/or immediately terminate this Agreement. Unless Authorize,Nct has already terininnted this Agreement, if You subsequently pay in full all owing fees and charges, including a "Service Reactivation Fee" in the amount set forth in ilia Fee Schedule, within six (6) months or the date Authorize.Net deactivated your account, Authorize.Net agrees to restore Your access to the Authorire.Net Services upon Authorize Net's receipt of such payment. You agree to pay all costs and expenses of whatever nature, including attorneys' Pecs, incurred by or on behalf of Authorize.Net in connection %with the collection of any unpaid charges and fees. As security for Your payment and indemnity obligations under this Agreement, You hereby warrant to Authorize Net a security interest on all of Your inventory, accounts, contract rights, receivables, goods and assets of any and every kind, including but not limited to all items of intangible property, wherever located, now and hereafter belonging to You or in which You have had interest, and all proceeds of the foregoing. 6.1.4 Disputes. The parties shall promptly investigate any disputed rets tinder this Agreement. if the disputed amount is less than three (3) percent of the total (excluding taxes) of tine relevant billing statement, the total amount invoiced shall be due and payable on or before the due date. If the amount in dispute is greater than three (3) percent of the total (excluding taxes) of the relevant billing statement, the disputed amount may be withhold until the dispute is resolved. All disputes must be made in good frith and in writing within thin), (30) days of the billing statement date. Fees billed shall be deemed accepted where written objections are not lodged within such thirty (30) day period 6.2 Merchant Service Provider hills You. Notwithstanding Section 6. 1, if You are to be billed by a Merchant Service Provider for some or all of the fees associated with Authorize.Net Services, You shall pay the Merchant Service Provider in accordance with the terns mutually agreed upon between You and such Merchant Service Provider. 7. Term, This Agreement shall commence on the Effective Date and PACE 2 uv 2 CONFIDE-KrfAL remain in full force and effect until terminated pursuant to Section 8, B. 'Termination and Suspension. 8.1 Termination by Merchant. You may immediately terminate this Agreement, at any time and for any reason, with or without cause, upon written notice to Authorize Net. in the event You are billed by a Merchant Service Provider in accordance with Section 6.2, You hereby authorize the Merchant Service Provider to terminate this Agreement on Your behalf. 8.2 'termination by Authorize.Nel. Authorize.Net may immediately terminate this Agreement and/or Your access to the Authorize.Net Services, at any time and for any reason, with or without cause, Including, without limitation, violation of the Acceptable Use Guidelines located on the Authorize.Net Web site at the URL <http:H%v\vw.autliorize.net/compnny/terns/>. Termination shall be accompanied by a written or electronic notice to You. 8.3'rerminallon or Suspension of You by a Merchant Service Provider. If Authorize.Net is to be paid for Your access to and use of the Authorize.Nct Services by a Merchant Service Provider, and if Aulherize.Nct receives notice from such Merchant Service Provider that it has terminated or suspended its relationship with You, Authorize.Net may suspend and/or terminate Your right to nccess and use the Authorize.Nel Services and/or this Agreement without notice and without liability. In addition, Authorize.Net may suspend and/or terminate the Authorize Net Services and/or this Agreement without notice and without liability upon receipt of notice from Your Processor or acquiring bank that You are no longer entitled to send an authorization message, settlement message, or other message or payment data related to a credit card transaction to Your Processor. 8.4 Effect of Termination. Upon lcmmination of the Term for any reason, all rights and obligations of the parties minder this Agreement shall be extinguished, except that (a) all payment obligations hereunder shall survive such termination; and (b) tine rights and obligations of the parties tinder Sections 8.4, 9 1, 10, 11, 12, and 13 shall survive such termination. 9, Intellectual Property and Confidentiality. 9.1 Authorize.Net, 'file parties agree that Authorize.Net owns and retains all right, title and interest in and to the Authorize.Net Trademarks, Authorize Net Services, copyrights and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or o%vnership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement You will not reverse engineer, disassemble, decompile or othenvise attempt to discover the source code or trade secrets for any of the Authorize.Net Services or related technology. 9.2 Authorize.Net Trademarks License, Subject to the terms and conditions contained herein, Authorize.Net hereby grants to You the right to use, reproduce, publish, perforin and display the Authorize.Net Trademarks on Your Web site in connection with Your offering of payment options to Your customers; and in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Atilltorize.Net Services. 9.3 Your Marks License. Subject to the terms and conditions contained herein, You hereby grant to Authorize Net and its affiliates the right to use, reproduce, publish, perform and display Your Marks in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Authorize.Net Services offered and/or accessible through Your Web site, and in promotional and marketing materials and electronic and primed advertising, publicity, press releases, newsletters and mailings about or related to any of the Authorize.Nel Services. 9.4 Use of Trademarks. Each pony shall strictly comply with all standards with respect to the other pony's Trademarks contained heron or which may be furnished by such pony from time to time. further, neither party shall create a combination mark consisting of one or more Trademarks of each pan),. All uses of the other party's Trademarks shall inure to the bend it of the pony owning such Trademark Each party hereby acknowledges and agrees that, as between the panics, Ile other pony is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other party pursuant to this Agreement Either party may update or change the list of'1'radcmarks usable by the other piny hereunder at any time by written notice to the other party 9.5 Use the Appropriate 9 or T" Symbol. You must reproduce any Aulhorize.Nel 'Trademarks exactly as shown in Appendix A, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or T"r s)mbol at the first and most prominent reference, or as soon as practicable thereafter. 9.6 Provide Approprinte Trademark Attribution You must include a statement of ownership when displaying or reproducing any Authorize.Nel Trademarks 'I'hc statement should read "AUTIlORIZE NEI' and the Authorize Net logo for any other applicable mark] are trademarks or registered trademarks of CyberSourcc Corporation." If it is not feasible to AUr11Jal/F NFr PAmh11 Ni GA4 WAY htl.Kf�11ANr Sp-xvlCf AGxi:i.hii:N,r Inso'eviscd 112SOn 2001, zona Aurhonze Nei include the attribution statement, it is acceptable to use n general-purpose attribution statement in a form such the following: "All other trademarks are the property of their respective owners." 9.7 Trademarks and Domain Registration. You shall not use, register or attempt to register any (a) Authorize.Net Trademarks or (b) marks or domain names that are confusingly similar to any of the Authorize.Net Trademarks or the Domain(s). 9,8 'Trademark Restrictions. You shall not (a) use the Authorize.Net Trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with Aulhorize.Nei's ownership of the Authorize.Net Trademarks and any associated registrations, or attack the validity of the Authorize. Net Trademarks, its ownership thereof, or any of the terns of tilts Agreement; (c) use the Authorizc,Nct Trademarks in any manner that would indicate You are using such Authorize Net 'trademarks other than as a licensee of Autlnorize.Net nor (d) assist any third party do any of the same. 9.9 Further Assurances. Each party shall take, at the other party's expense, such action (including, without limitatibn, execution of affidavits or other documents) as the other party may reasonably request to effect, perfect or confirm such other party's ownership interests and other rights as set forth in this Section 9. 9,10 Confidential information. You agree to hold all information communicated by Authorize.Net to You, whether written or oral or in any media whatsoever (the "Confidential Information"), in strict confidence, not to disclose, distribute or disseminate Confidential Information or information derived therefrom in any way to any third pony and not to use the Confidential lnfonnotion for Your own benefit or the benefit of others, or for any purpose except in connection with the purposes of this Agreement. You agree to use Your best effons to protect all Confidential Information and in any event, to take precautions at )cast as great as those taken to protect Your own information of a similar nature. You agree that this Agreement is considered Confidential Information. Upon Authorize.Net's request, You will return all materials, in any medium, that contain, embody, reflect or reference nil or any part of any Confidential InfomkTtion. You acknowledge that breach of this provision may result in irreparable harm to Authorizc.Net, for which money damages may be an insufficient remedy, and therefore Aulltorize.Net will be entitled to seek injunctive relief to enforce tine provisions of this section. 10. Representations and Warranties. 10.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perfonn its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the party's obligations under this Agreement do not violate any law, policy or regulation or breach any other agreement to which such party is bound; and (e) it has all right, title or interest, or valid license to use its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party. 10.2 Autlrorize.Ncl Warranty. 10.2,1 During the effective temp of this Agreement, Authorize.Net represents and warrants that the Authorize.Nct Services will conform in all material respects to the terns and conditions contained herein. The preceding warranty will not apply if (a) any Authorize.Nct Services or products provided hereunder are used in material variation with this Agreement or the applicable documentation; (b) any Authorize.Net Services or products have been modified with the prior written consent of Authorize.Nel; or (c) a defect in any Authorize.Net Services or products has been caused by any of Merchant's malfunctioning egyipment or software. You expressly acknowledge that the Aulhorize.Net Services are computer network -based services, which may be subject to outages, interruptions, attacks by third parties and delay occurrences. 10.2,2 In the event You discover that any Authorize Nei Services or products are not in conformance with the representations and warranties made in Section 10.2.1 and report such non-confomuly to Authorize.Net or it the Authurize.Net Services nre subject to outages, interruptions, attacks by third panics and delay occurrences, Authorize.Net shall use commercially reasonable efforts to remedy material interntptmons and will provide adjustments, repairs and replacements, within its capacity, that arc necessary to enable the Authorize Net Services to perforin their intended functions in a reasonable manner. You acknowledge that Authorize.Net does not warrant that such efforts will be successful. If Authorize. Net's efforts are not successful, you may terminate this Agreement in accordance with section 8 I. Ilse foregoing shall constitute your sole remedy, and Authorize Net's sole liability, in the event of interruption, outage or other delay occurrences in the Authorize.Net Services. Authorize.Nel does not %% arrant the services of any PAGE 3 0F 3 CONFIDENTIAL third party, including without limitation, the Merchant Service Provider, bank or any third party processor. 10,2.3 DISCLAIMER. THE AUTHORIZE.NET SERVICES ARE PROVIDED ON AN "AS iS," "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AUTI,LORIZE.NET DOES NOT REPRESENT OR WARRANT THAT THE AUTHORIZE.NET SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, T'IMEi.Y, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR - FRE YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARD)NG'THE AUT HORIZE.NET SERVICES BY ANY THIRD PARTY iN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR !WARRANTIES 01: ANY MERCIIANT SERVICE PROVIDER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1021, AU1'HORiZE.NET SPECIFICALLY DISCLAIMS ALL RL'•PRESENTATIONS, WARRANTiES, AND CONDITIONS WHETHER EXPRESS Olt IMPLIED, ARISING BY STATUTE, OP17RATION OF LAW, USAGE OP TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING Bu -r NOT LiMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILiTY, FITNESS FOR A PAR'r1CULAR PURPOSE, NON -INFRINGEMENT, OR TITLE WITH RESPECT TO THE AUTHORIZE.NET SERVICES, OR 01.1-IER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT AUTFIORIZE.NL'I' SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RiSK ASSOCiAT'ED WITH CREDIT CARD FRAUD OR CHARGEBACKS. 10.3 Your Warranties. You represent and Warrant that: 10.3.1 All represcmations and statements made by You in this Agreement, or in any other document relating hereto by You or on Your belinif, are inic, accurate and complete in all material respects. You hereby authorize Authorize.Net to investigate and confirm the information submitted by You herein. For this purpose, Authorize.Net may utilize credit bureau reporting agencies and/or its own agents. 10.3,2 You are engaged in n )awful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business. 10.3.3 You will comply with all laws, policies, guidelines, regulations, ordinances or rules applicable to You, this Agreement, Your business or the Transactions, including, without limitation: (a) the Credit Card Association odes and regulations, expressly including the Payment Card Industry (PCI) Data Security Standard; (b) the Gramm Leach Bliley Act; (c) any regulatory body or agency having jurisdiction over the subject matter hereof; (d) the Services Documentation and (e) the Acceptable Use Guidelines. 10,4 Third Party Programs. You acknowledge that the Aulhorize.Net Services are designed for use with certain third party programs, including, without limitation, certain Internet browser and software programs developed and owned by third parties. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Authorize.Net does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. You authorize Authorize Net to disclose to any third party vendor information concerning You to the extent required to deliver the requested service. 11. LIMITATIONS OF LIABILITY AND DISCLAIMERS. 11.1 LIMIT'AT'IONS. UNDER NO CIRCUMSTANCES WILL: (A) AUTHORIZE.NET OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENi'S OF THE PARTIES, Olt iT'S PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL., CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER OR WHENEVER ARISING), INCLUDING, WI.1.1-IOUT LIMifATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE?, REGARDLESS OF WHETHER 11' HAS BEEN ADVISED 01' THC POSSIBILITY OF SUCH DAMAGES; OR (B) AUTHORiZL'.NET'S TOTAL LIABiLIT'Y TO YOU, wtmrliER ARISING IN TORI' (INCLUDING NEGLIGENCE'), CONTRACT OR O'I'HERWISF„ UNDER THIS AGREEMFN'r OR WITH REGARD 1'0 ANY AU'I'ILORIZ1i,NE1' PRODUCTS OR SERVICES, EXCEED THE AGGRI GA'rli COMPENSATION AunIORIZE' NET RECEIVED FOR PROVIDINGTHE AUTHORIZE NET SERVICLS TO YOU DURING THE THIRTY (30) DAYS PRECEDING T'HE DATE ON WHiCH THE CLAIM AROSE OR 51,000, WH)Cl]EVER iS LESS Ali'r Udit l%di Ni,. t PA Y%i Ii HT GATT: WAY MVXC)IANT Si RvICF Atx List revised 3125,08 2004, 2006 Authority Net 11,2 DISCLAIMER. EXCEPT AS OT'HERWiSE PROVIDED 1N THIS AGREEMENT, YOU EXPRESSLY AGREE THAT AUTHORiZE.NET SHALL. NOT BE LIABLE FOR ANY LOSS (HOWEVER OCCURRING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (A) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR MERCHANT ACCOUNT; (B) FRAUDULENT 'TRANSACTIONS PROCESSED THROUGH YOUR PAYMENT GATEWAY ACCOUNT(S); (C) DISRUPTION OF AUT]IOR)ZE.NET SERVICES, SYSTEMS, SERVER OR WEB SiTE BY ANY MEANS, INCLUDING WiTHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN FIORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY, (D) ACTIONS OR INACTIONS BY ANY THIRD ]'ARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (E) UNAUTIIORIZED ACCESS TO (1) DATA, CUSTOMER DATA (INCLUDING CREDIT CARD NUMBERS AND O'THER PERSONALLY IDENTIFIABLE INFORMATION), TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO AUTHORiZE NET, YOU OR ANY 'THIRD PARTY OR (11) THE AUTHORIZE.NCT SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED 'THEREWITH; OR (F) THE LIMITATION OF THE FUNCTIONING O' ANY AUTTIORiZE.NET SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH. 11.3 THIRD PARTY PRODUCTS AND SERVICES. AUTHORIZE.NET MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WI-IATSOEVER IN RELATION TO THIRD PARTY PRODUCT'S OR SERVICES. YOUR USE OF Timp, PARTY PRODUCTS AND SERViCES IS AT YOUR OWN RISK. AUTHORIZE.NET ASSUMES NO RESPONSiBIi.IT'Y AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY "THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT AUTHORMEME'r IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT Olt SERVICE.. 12. Indemnification, 12.1 Indemnification by Authorize.Net. 12.1.1 General. Authorize.Net shall defend, indemnify and hold You and any of Your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, tines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by You, arising out of or relating to any alleged infringement or a U.S patent or copyright of any other entity or person by the Authorize Net Services. 12.1.2 Limitation; Prevention of Infringement. Aulhorize,Nct's obligations in Section 12.1.1 do not apply if the Authorizc.Net Services or portions or components thereof (a) are modified by persons or entities other than Au1110rize.Net it the alleged infringement relates to such modification; (b) are combined with other products, processes or materials not supplied or recommended by Authorize.Net where the alleged infringement relates to such combination, or (c) continue to be used oiler Authorize.Net has made a non -infringing version available to You (collectively, "Merchant Faults"). If the Authorize.Net Services or any component thereor becomes, or in Authorixe.Nefs opinion Is likely to become, the subject or a claim of infringement, then You shall permit Atithorize.Net, at Authorize.Net's sole option and expense, either to (i) procure for You the right to continue using the Authorize.Nct Services as permitted in this Agreement, or (ii) replace or modify the affected Authorize.Net Services or infringing component so that it becomes non -infringing. If, after using commercially reasonable efforts. Authorize.Nel is unable to cure the infringement, either party may terminate this Agreement upon notice to the other, ns provided in Section 8.1. THIS SECTION 12.1.2 STATES THE ENTIRE LIABILITY OF AUTHORIZE.NET TO YOU WI'i'H RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY Riarrs BY THE AUT1dOR]ZE.NiiT SERVICES. 12.2 Indemnification by You, You shall defend, indcmnifj, and hold harmless Authorize.Net land its ailintes, parents, and/or subsidiaries, and oily of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, Biles, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by Authorize.Net, arising out of or relating to (a) any breach or alleged breach by You of any representation, warranty, or obligation or You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by You to Authorize Net; (d) payment card transactions submitted by You to PAGE 4 up 4 CONMENTIAt. Authorize.Net and rejected by Auuhorire.Net or an issuing bank, (c) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from a Merchant Fault; (Q claims by Your customers, including, without limitation, claims relating to the disclosure of consumer data; (g) any alleged or achuill violation by You orany applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm I.each Bliley Act, (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (h) any violation of Authorire.Nct's Acceptable Use Guidelines. in the event You cause fines and/or penalties to be charged to Authorize.Net by the Credit Card Associations or any other entity, you agree to immediately reimburse Authorize.Nel for said fines or penalties. 12.3 indemnification Procedure, The obligations of each party ("Indemnitor") tinder this Section 12 to defend, indemnify and hold hornless the other party ("Indemnitee") shall be subject to the following: (a) bncie)nithee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indennnitor of its obligations under this section to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby, (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed For all reasonable out-of-pocket expenses incurred lin providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnilee may panicipate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative ubligution of, result in any ongoing ninreriai Inability to or materially prejudice Indemnitee in any tiny. 12.4 Exceptions. If You are an agency or instrumentality of a state of the United States and are precluded by the law of Your state from entering into indemnification obligations, then the obligations tinder Sections 12.2 and 12.3 shall apply only to the extent pennitted by such state law. 13. General Provisions. 13.1 Publicity, The panics may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do soin addition, neither party will issue such publicity and general marketing communications concerning this relationship or the Authorire.Nct Services without the prior written consent of the other pan), (not to be unreasonably withheld or delayed). 13.2 Non -exclusivity, Each pony acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein. 13.3 Relationship of the Parties. The panics are independent contractors and nothing lin this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other party. Neither pony shall make any representation that suggests otherwise. You funher recognize that if You contracted for the Authorize Net Services with a Merchant Service Provider, such provider is an independent contractor and is not a joint venturer, partner, or agent of Authorize Net. 13.4 Notices. All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Authorize.Nct Services and/or posted in file Announcement section of your payment gateway accounl(s). Service termination notices to Authorizc.Net shall be given electronically from within Your Authorizc.Net Merchant Interface and sent to supporta authorize.net. You must log into Your Merchant Interface at <https:/tsccure.authorize.neth, click on Contact Us, click on Customer Support Inquiry Form, type your termination request, and click the Submit button. All other notices to Authorize.Nct must be in writing and sent to Authorize.Not LLC, 808 East Utah Valley Drive, American Fork, Utah, 84003, Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing of sent by certified or registered mail, postage prepaid Electronic limit notices shall be deemed given the next business day following the date delivered. 13.S Amendment; Modifications. No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by the other party, and thea such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, Authorize.Nel may amend this Agreement of any time upon written or electronic notice to You of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service Pecs, will become effective upon at least thirty (30) days' AurnOaim Nur PAchMNi GA)i HSA\• A9rNCUANr Si Nvici: AnHrji Ml:Ni Last revised 3/35,08 2001, 2008 Awliume Nct notice. If You do not agree to such amendnients, Your sole remedy is to immediately terminate this Agreement upon written notice to Authorize.Nct. 13.6 Severability; Headings. if any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The panics agree to replace any invalid provision with a valid provision, which most closely approximates ilia intent and economic effect of the invalid provision Pleadings are used for convenience of reference only and In no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement, 13,7 Governing Law; Jurisdiction. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, excluding (i) that body of law known as conflicts of lows and (ii) the United Nations Convention on Contracts for the International Sale of Goods. You hereby 'irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Santa Clam County, California with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement, except for claims involving intellectual property, claims to recover outstanding amounts due Authorizc.Net and claims for Indemnification, may be brought by either parry more than one (1) year after the cause of action arose. 13.8 Waiver, The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance, rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision) or a waiver of the provision itself. 13.9 Assignment. You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of Authorizc.Net, including in the case of a merger. 13,10 force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations tinder the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Authorize.Nct Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Authorize.Nct Services, or other catastrophes or any other occurrences which tura beyond such parties' reasonable control (each n "horce Maicure (Event"), provided ihnt the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any force Majeure Event. 13.11. Telephone Recording. You acknowledge, agree and consent that Authorize. Net may monitor and record any customer service telephone conversations at any time, without additional further notice to ilia parties to such conversations. The decision to record any conversation shall be solely in Authorize.Net's discretion, and Authorize.Nct shall have no liability for failing to do so. 13.12 Entire Agreement. This Agreement together with all of Authorize.Net's policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the paries, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects on informed, voluntary allocation between Authorizo.Net and You of all risks (both known and unknown) associated with the Authorize Net Services. 13,13 Survival. '1'hc provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid Pecs, confidentiality, warranties, limitation of liability, 'indemnification, govemmg law, severability, headings and this paragraph shall survive termination or expiration of this Agreement 13.14 Definitions "Acceptable Use Guidelines"— see <Ililp y\1\\'\4 alunho iia' nC6eomnanyp±g/>. PAW: 5 Or 5 CONFIDr:NT1A1. "Account Activation Form" means the form presented to You along with other application mnterials by a Merchnni Service Provider for the purposes of setting up Your transaction processing capabilities. "Credit Card Association" — for the purposes of this Agreement means Visa U.S A., Inc., Visa International, Inc., MasterCard International, Inc, and any other credit or debit card issuing company. "iDomnhi(s)" — for the purposes of this Agreement, means any Web site or sites operated by or for Authorize Net, including without limitation the URL <)jtin'/t14'44'4k.altth{)! I"lC 111!?, "Effective Dale" — shall mean the earlier of the date You acknowledge and agree to the Agreement terms and conditions by (n) clicking the "I AGREE" button associated with the Agreement; (b) acknowledging Your acceptance by any other method allowed by Authorize.Net, including without limitation execution of She Account Activation Form; or (c) by using the Aulhorize.Net Services. "Fee Schedule" — a list of fees and charges to be paid by You to Authorizc.Nct. The Fcc Schedule is located hi the Merchant Interface "Merchant Interface" — means the user interface available to Merchants at <https:/!secure. authorize. ncth. "Merchant Service Provider" — for purposes of this Agreement, a Merchant Service Provider shall mean any third party through whom Authorize Net may offer the Authorize.Net Services to You, including but not limited to a reseller, Independent Sales Organization ("ISO"), application service provider, merchant aggregator, acquiring bank and finnncing agency. "Privacy Policy" — see <hitp..t,•' luthori�r tletrco�llpazlyltyriv{�c�,phylh. "Processor" — for purposes of this Agreement, a credit card processor that accepts Transactions from Aulhorize.Ncl and processes Transactions for You. "Services Documentation" — means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to You and that are intended for use in connection with the Authorizc.Net Services. "Tradentark(s)" — means all common law or registered lrademnrk, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hercatier adopted or acquired. "Transaction(s)" — for purposes of this Agreement, Transaction means any credit card authorization, credit, ticket only, batch settlement, decline transaction or other related transaction, completed or submitted under Your account to Auillorize.Net. "Value Adding Scrvice(s)" — for purposes of this Agreement means the following services, Customer Mfornlation Manger, Fraud Detection SoiteT"l, FraudScmen. Net@, Automated Recurring Billing"' and/or any other service or product that may be offered by Authorize Net in the future. Antiendix A. Trademarks 1. Authorize.Net Marks For purposes of this Agreement, "Authorizc.Nct Trademarks" means those trademarks listed below and such other trademarks as Authorize.Nct may from time to time notify You in writing to be "Authorize.Net 'Trademarks" within the meaning of this Agreement. Authorize-ITO Authorize.Nct@ Authorize.Net Verified Mcrchant Scalrnr Author-ize.Net Your Gateway to IP 11"ransactions-1 Authorize.Net Where the World TransactsS Automated Recurring Billing7es CyberSourcc© cCheck.Nct® Fraud Detection Suite7ns FraudScreen.Net© Authorize.Net iI. Your Harks For purposes of this Agreement, "Your Marks" means Your customary name and logo, and such other trademarks ns You may from time to time notify, Autnorize.Net in writing to be "Your Marks" tkithin the meaning of this Agreement. A UTIII)NILh• Nhr PAYMP Ni Gm 1:R AV AilrHCnANI SI•,a VICI Milli IMleNi Last rinsed 3125108 1004, 2008 Authorize No Annendix II - Prohibited Activities. You agree that You will not nt oily time conduct Your business in ally manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which: (1) is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection law, Internet tobacco sales, fircamt stiles, unfair competition, antidiscrimination or false advertising; (mi) is associated with any form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader (e.g., books, text, photos, videos, X-rated movies, pornographic materials, etc.), any materials which require individuals to be eighteen (18) or older to view or purchase those materials, escort services, and adult websites; (iii) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos: (iv) is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, tortuous, or othenvise violate Company's riles or policies; (v) victimizes harasses, degrades, or intimidates an Individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (vi) impersonates any person or entity; (vii) contains harmful content, including, without limitation, sofhvare viruses, 'Trojan horses, worms, tirne bombs, cancel bots, spy -ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of oily software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third patty; (viii) violates any U S export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Connnerce; (ix) offers or disseminates fraudulent goods, services, schemes, or promotions (i,e., make money fast schemes, chain letters, pyramid schemes) or engage in tiny unfair deceptive act or proctice; (x) is associated with any fora of gambling or lottery type services; (xi) is associated with illegal telecommunications or cable television equipment; (xii) is associated with electronic wallets (i.e., "o -wallets") or any similar payment type; or (xiii) is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Phannacy Practice Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that the Company believes to be or may become harmful, unlawful, or prohibited. Authorize.Net requires sellers of prescription drugs to abide by all latus applicable to both the buyer and seller and we may require you to provide evidence of compliance with these requirements. It addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non -exhaustive list of prohibited goods and services. PAU I. GM r, CONFIDENTIAL Anuendlit C— Value-Addine Services In the event You enroll in and Authorize.Net provides You with Value - Adding Service(s), You agree as follows: I. Expansion of Services. 'rhe terms "Services" and "Authorize.Net Services," as each is defined in the Agreement, shall include cacti of the Value -Adding Services. Each Volute -Adding Service is described on the Authorize.Nct Web site and in other Services Documentation provided to You from time to time. All terms of the Agreement applicable to the Atilhorizc.Net Services shall be applicable to each Value -Adding Service. 2. Your Obligations. 1n addition to Your obligations set forth in tilt: Agreement, You agree to pay the Valuc-Adding Service Fees, in accordance with Section G of this Agreement, in the amounts provided in the Fee Schedule located in the Merchant Interface and/or in the Value -Adding Service documentation page accessed during enrollment in the applicable Value -Adding Service. By checking the "I ACCEPT" button next to a Value - Adding Service Fee schedule, You acknowledge Your acceptance of such fees, Your obligation to pay same and the terms and conditions applicable to the Value -Adding Service. 3. Your Warranty. You represent, warrant, and covenant to Authorize.Net that Your use of the Value -Adding Services and any information gathered by You in connection with use of a Value -Adding Service: (a) will be fully compliant with all applicable local, state and federal laws, rules, and regulations; (b) will be to accordance with all applicable Services Documcntntion, and (c) will not be used for any purpose other than in connection with the Value -Adding Service. 4. Acknowledgement. You understand, acknowledge, and agree (lint (a) You will be solely responsible for ALL transactions processed through Your payment gateway account(s), regardless of whether such transactions arc monitored by a Value -Adding Service; (b) You will be solely responsible for Your use of the Volue-Adding Service including, without limitation (i) configuring, maintaining and updating, as You deem necessary, the applicable settings for Your Value -Adding Service account; and (ii) with respect to each Transaction processed via your payment gateway account(s), and regardless of any data, analysis, or information generated or not generated by the Value - Adding Service, as applicable, determining the appropriate action for each such 'transaction (i e., approve, void, decline, reject); (c) under certain circumstances, it may be necessary for Authorizo.Net to adjust Your Value - Adding Service sccuriry settings, with or without notice to You, to guard against fraudulent activity and that such actions may inadvertently cause legitimate transactions to expire, be rejected or delayed; and (d) Authorize. Net shall not be liable under any theory of law, including negligence, for any loss associated will, any of the foregoing. 5. AUTHORIZE.NET WARRANTY. IN ADDITION '1'O ANY L.1miTAT10NS OR DISCLAIMERS SET FORTH 1N TIIE AGREEMENT, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THATTia VALUE -ADDING SERVICES ARE PROVIDED TO YOU BY AUTIIORIZE,NET "AS 1S" AND'THAT AUTHORIZE.NET DOES NOT REPRESENT OR WARRANT THAT THE VALUE ADDING SERVICES OR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, OR ANY O'TLIER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUI''TED, TIMELY, SECURE, ACCURATE:, COMPLETE, OR ERROR -FREE, AND THAT YOUR SOLE REMEDY FOR ANY ISSUE REL.ATED'r0 OR ARISING FROM THE VALUE ADDING SERVICES, AND AUTHOR1'LF..NET,s SOLE LIABILITY FOR SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE YOUR USE OF'TnE VALUE -ADDING SERVICES. G. Risk, Security and Disclosure. The risk and security suggestions provided to You in the Services Documentation for any of the Value -Adding Services are solely rot illustrative purposes to show bust industry practices, and You shall be solely responsible for choosing the appropriate settings and parameters for Your account 7 rerminauon If )'our Agreement is terminated for any reason, Authorizc.Nct shall immediately cancel access to Your Value -Adding Service account It is Your responsibility to download all reports prior to the effective date of any such termination as such retorts will not be available subsequent to the termination date. 8. Incorporation by Reference. The Vttlue-Adding Services Tree Schedules are incorporated herein by reference. 9. Third Party Programs. Authorize.Net makes no warranty, express or implied, with regard to any third pany services or software. 10, Definitions. All terms and conditions of the Agreement not specifically modified in this Appendix shall remain unchanged and in full force and effect. Unless separately defined herein, capitalized words used in this Appendix as defined terms shall have the same meanings herein as in the Agreement. PAG; 7 nr 7 CONFIDE-KrIA1.