Okaloosa County BOCC — October 5, 2013 — PayPros Merchant Application and Agreement with Addenda — reading text

misconduct in connection with this Agreement; provided, however, that attorney's fees are not recoverable as a loss, liability or expense, except as to attorney's fees incurred by us in defending actions by any third parties against us or any party that we are obligated to indemnify. 23 Special Provisions for PIN Debit Transactions, EBT and Wireless Services. Your acceptance of PIN Debit Transactions and EBT transactions, and your use of any Wireless Services, are governed by specific provisions of the Operating Procedures. In accepting these transactions or using these services, you agree to abide by these provisions, and failure to do so may result in additional fees. Your Wireless Access Fee as indicated in your Merchant Application and Agreement is for payment processing services only. Any use of your wireless product for services other than for payment processing services may result in additional fees. 24 Processing Related Equipment 24.1 YOU WARRANT THAT ANY PROCESSING EQUIPMENT AND/OR SOFTWARE YOU OBTAIN IS FOR A COMMERCIAL PURPOSE AND IS NOT FOR HOME OR PERSONAL USE. Unless otherwise provided for in a separate sales agreement, the sale of all processing equipment is between you and third parties, including, but not limited to, our independent sales agents and representatives ppi0408tc Payment Processing Inc., is a registered ISO/MSP for Wells Fargo Bank, N.A., Walnut Creek, CA. an FDIC insured bank. All trademarks, service marks and trade names referenced in this material are the property of their respective owners. 24.2 YOU ACKNOWLEDGE THAT ANY EQUIPMENT AND/OR SOFTWARE YOU OBTAIN MAY NOT BE COMPATIBLE WITH ANOTHER PROCESSOR'S SYSTEMS. WE DO NOT HAVE ANY OBLIGATION TO MAKE SUCH EQUIPMENT AND/OR SOFTWARE COMPATIBLE WITH ANY OTHER PROCESSING SYSTEMS. IN THE EVENT THAT YOU ELECT TO USE ANOTHER PROCESSING SERVICE PROVIDER UPON THE TERMINATION OF THIS MERCHANT AGREEMENT, YOU ACKNOWLEDGE THAT YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE THAT YOU HAVE OBTAINED 24.3 We may upgrade or otherwise modify our computer system at any time without prior notice. You agree to provide us access to your processing equipment in the event that we deem it necessary as part of our upgrade or system modification. 25 Special Provisions Regarding Merchant Websites and Gateway Services 25.1 A gateway service provides you with an interface between you and your customers so you can accept sales from your customers over the Internet. Your choice of a third party gateway service provider is subject to our approval. Notwithstanding any gateway service provider offered, suggested, or referenced by us or our sales agent, Yyou acknowledge that all issues concerning your gateway service, including, but not limited to, its service and functionality, are solely between you and your gateway service provider. The fees and terms for your gateway service and any services or products offered by your gateway service are set forth in the Merchant Agreement or, if applicable, stated in a separate agreement between you and your chosen gateway service provider. 25.2 Programming of your website, technical support, and its functionality with the gateway service provider you have chosen, are your sole responsibility. We shall not be liable in any manner whatsoever for any errors, disruptions or security breaches related to your Internet business or website. You shall be liable to us for all fees and liabilities incurred under this Merchant Agreement notwithstanding any errors, disruptions or security issues related to your Internet business or website 26 Waiver of Trial by Jury. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS MERCHANT AGREEMENT OR THE SERVICES PROVIDED BY US. 27 Other Provisions 27.1 No party shail be liable for any default or delay in the performance of its obligations under this Merchant Agreement if and to the extent such default or delay is caused, directly or indirectly, by: (i) fire, flood, earthquake, elements of nature or other acts of God; (ii) any terrorist attacks or outbreak or escalation of hostilities, war, riots or civil disorders in any country; (iii) any act or omission of the other party or any government authority; (iv) any labor disputes (whether or not employees’ demands are reasonable or within the party's power to satisfy); or (v) the nonperformance by a third party for any similar cause beyond the reasonable control of such party, including, without limitation, failures or fluctuations in telecommunications or other equipment. In any such event, the nonperforming party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable. Notwithstanding anything to the contrary in this paragraph, your failure to receive payment or funds from a third party shall not excuse the performance of your obligations to us under this Merchant Agreement 27.2 The headings contained in this Agreement are for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement. 27.3 If there are any inconsistencies between the Merchant Application and Agreement and the Operating Procedures, the Merchant Application and Agreement will govern. If any part of the Merchant Agreement is not enforceable, the remaining provisions shall remain valid and enforceable The parties intend every provision of this Agreement to be severable. If any part of this Agreement is not enforceable, the remaining provisions shall remain valid and enforceable. 27.4 Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings. A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition. ® 2008 Payment Processing Inc. All rights reserved. Page 6 of 8 27.5 Association Rules. The parties acknowledge that the Visa, MasterCard and Discover Network Association Rules give Visa, MasterCard and Discover Network certain rights to require termination or modification of this Agreement with respect to transactions involving Visa, MasterCard and Discover Network Cards and the Visa, MasterCard and Discover Network Card systems and to investigate you. The parties also acknowledge that issuers of other Cards, for which we perform services on your behalf, may have similar rights under their applicable Association Rules with respect to this Agreement's applicability to transactions involving such other Cards. 27.6 Compliance with Laws. In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to it. You further agree to cooperate and provide information requested by Servicers, as Servicers determine necessary, to facilitate Servicers compliance with any applicable law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury. 27.7 Except as otherwise specifically provided, all notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the processing of Card transactions) shall be in writing and, if sent by us to you, by mail, courier or fascimile at your address appearing on your Merchant Application and Agreement, or any other address you provide notice to us in a manner consistent with this paragraph, or by any electronic means including without limitation, via Mymerchantoffice.com; and if sent by you to us, by mail or courier at Payment Processing, Inc., 8200 Central Avenue, Newark, CA 94560 28 GLOSSARY. As used in this Merchant Agreement, the terms below will have the following meanings: Acquirer. Banks in the case of MasterCard and Visa transactions or network acquirers in the case of Discover Network transactions that acquire Card sale transactions from merchants such as yourself. Address Verification. A service provided through which the merchant verifies the Cardholder's address, in whole or in part. Primarily used by Mail/Telephone/Internet order merchants. Address verification is intended to deter fraudulent transactions, however, it is not a guarantee that a transaction is valid. Agreement. The agreement among Merchant, Processor and Bank, any attachments, addenda, schedules thereto, each as amended from time to time, all of which collectively constitute the agreement among the parties. Association. Any entity formed to administer and promote Cards, including, without limitation, MasterCard International, Inc.; VISA U.S.A., Inc.; and VISA International, Inc., Discover Financial Services LLC (“Discover Network”)and any applicable debit networks. Association Rules. The rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Association. Authorization. Approval by, or on behalf of, the Card Issuer to validate a transaction for a Merchant or another affiliate bank. An Authorization indicates only the availability of the Cardholder's credit limit at the time the Authorization is requested. Authorization Approval Code. A number issued to a participating merchant by the Authorization Center which confirms the Authorization for a sale or service. Bank. Member of MasterCard and Visa that clears transactions for these Associations. Batch. A single Submission to us of a group of transactions (sales and Credits) for settlement. A Batch usually represents a day's worth of transactions. Card. See either Credit Card or Debit Card. Card Issuer. The bank or Association that issues a Card to an individual. Card Not Present Sale/Transaction. A transaction that occurs when the Card is not present at the point-of-sale, including Internet, mail-order and telephone-order Card sales. Cardholder. The individual whose name is embossed on a Card (or Debit Card, as applicable) and any authorized user of such Card Cash Over Transaction. Dispensing of cash by a merchant in connection with a Card sale, other than a PIN Debit Card transaction, for the purchase of goods or services. ppi0408tc Payment Processing Inc., is a registered ISO/MSP for Wells Fargo Bank, N.A., Walnut Creek, CA. an FDIC insured bank. All trademarks, service marks and trade names referenced in this material are the property of their respective owners. Chargeback. The procedure by which a Sales Draft or other indicator of a Card transaction (or disputed portion thereof) is returned to Bank, the Acquirer or the Issuer, the liability for which is the Merchant's responsibility. Chargeback Fee. A fee incurred each time a transaction is charged back to you. Credit. A refund or price adjustment given for a previous purchase transaction. Credit Card. A valid Card bearing the service mark of Visa, MasterCard or Discover Network or a valid Card issued by any other Association. Credit Draft. A document evidencing the return of merchandise by a Cardholder to a Merchant, or other refund made by the Merchant to the Cardholder. Debit Card. A Card used at a Merchant location bearing a MasterCard or Visa logo and/or the marks of ATM networks (such as MAC, NYCE, Star) where the Card Issuer is not extending credit to the Cardholder, but where the Card is connected to either a deposit account, a prepaid account or a prepaid benefit account. Debit Network Processing Fees. Fees charged by PIN Debit networks for processing PIN Debit Transactions. In addition to any Debit Network Processing Fees, Merchant will also pay the Debit Card/ATM transaction fee as