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HomeMy WebLinkAboutTRANSFIRST LLC 2 - 2014Y INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DAT" AN 1 8 2014, A -2014 -071 CONSULTANT AGREEMENT THIS AGREEMENT, dated as of this � � da of 2414 by and V between TransFirst, LLC, (hereinafter "Consultant "), and the City of Santa Ana, a charter city t1 and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"), The parties acknowledge the existence of that Consulting Agreement between the City and PRI dated March 1, 2004 (with all amendments, the "Prior Agreement'). TransFirst assumed the Prior Agreement through its acquisition of PRI. With the execution of this Consulting Agreement the parties agree the Prior Agreement shall terminate and this Consulting Agreement shall supersede the Prior Agreement in its entirety. RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of payment processing. B. The City acknowledges that it has received prior payment processing services from Consultant prior to the date of this Agreement pursuant: to the Prior Agreement and intends this Agreement to cover payment for prior unpaid services commencing as of October 1, 2013 and to cover payment processing services going forward. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. The parties agree this Consulting Agreement and all attachments shall govern the merchant accounts in existence as of the date of execution (such accounts include: 41399800818517; 41399800822550 ;41399800818822;41399800818830; 41399801138592) and any new merchant accounts that may be established in the future. E, In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected frorn a professional consulting firm in the field. F. The City acknowledges and agrees that in the event of a conflict or inconsistency between the terms and conditions of this Agreement and the Merchant Card Processing Agreement, the terns of the Merchant Card Processing Agreement shall control. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform credit card processing services according to the rates set forth in Exhibit A and in accordance with the terms and conditions set forth in the Merchant Card Processing Agreement attached to this Agreement as Exhibit B. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A and in the Merchant Carl Processing Agreement. The total sum to be expended under this Agreement shall not exceed $ 70,000.00 annually during the term of this Agreement. For purposes of computing the 12 -month period, the City acknowledges invoices for services rendered from October 1, 2013 through the effective date of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on September 30, 2015, unless terminated earlier in accordance with Section 12, below, or pursuant to the Merchant Card Processing Agreement, 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. WAIVED b. Business automobile liability insurance. WAIVED c. Worker's Compensation hrsurance, In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terrns of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including tees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified snail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Christine Duarte, Treasury Manager City of Santa Ana 20 Civic Center Plaza (M 14) P.O. Box 1968 Santa Ana, CA 92702 -1968 Fax 714- 647 -5304 Email: cduarte sant_a= aana.oru To Consultant: TransFirst LLC 12202 Airport Way, Suite 100 Broomfield, CO 80021 (631) 840 -6912 Attn: Peter Lueatuorto With copy to: TransFirst Legal Department 5400 LBJ Freeway, Suite 900 Dallas, Tx 75240 4 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, tiny notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement, in conjunction with the attached Exhibits A and B, represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties, including the Prior Agreement. In the event of a conflict between the teens of this Agreement and any attachments hereto, the terms of this Agreement shall prevail except over the Merchant Card Processing Agreement. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn, b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. [signatures follow] IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATT + ST: \ D MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney_ , Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez Executive Director of Finance and Management Services CITY T NA DAVID CAVAZOS City Manager CONSULTANT (NAME) `�5%den 4, (TITLE) Employer ID # or Individual SS # 7 _T 6 MERCHANT CARD PROCESSING AGREEMENT this Merchant Card Processing Agreement ( "MPA ") is for merchant card payment Processing services among the Merchant that signed the Application for Merchant Card Processing ("Merchant Application'), the Merchtmt Bank, and the Processor The Merchant Application and the MPA are hereinafter collectively referred to as the "Merchant Agreement" "file Processor and the Merchant Bank are hereinafter collectively referred to as the "Bank Subjeel to the requirements of the Operating Rules, Processor and Merchant Batik reserve the right to allocate Bank's duties laid obligations amongst themselves as they deem appropriate in their sole discretion, and Merchant Bank or Processor may jointly or individually assert or exercise any rights or remedies provided to Bank hereunder. If elected by Merchant on the Merchant Application, Processor will settle American Expres all Card and DiscoverlD Network transactions in accordance with the terms set forth in the Merchant Application and in doing so. Processor does not represent or indicate in any way that Merchant Bank sponsors Processor into lire American Express Network and Discover Network. Mitcham Bank does not sponsor Processor into the American Express Network and Discover Network, is not providing or agreeing to provide Merchant any services hereunder with respect to American Express Card and Discover Network Card transactions, does not determine as approve or agree upon any fees, changes, pricing, or any other lens and conditions, relating to American Express Card and Discover Network Card transactions, and has no responsibility or liability to Merchant for American Express bud and Discover Network Card transactions. Nor does Merchant Bank provide or agree to provide Merchant any services hereunder or have any responsibility or liability to Merchant with respect to any PIN -based debit or stored valueor electronic benefit transfer transactions (except only to the extent, if any, required under Visa's or MasterCard's Operating Rules or mandatory provisions of applicable law), or any JCB, Cane Blanche, or other Card type transactions (other than Visa and MasterCard Credit and non -PIN based debit stored value /electronic benefit annsnctions, including any such Examinations made with Diner's Intemational Cards which also carry the MasterCard Mark and are processed as MasterCard transactions), any CrossCheck or other Check Services transactions, merchant gift or loyalty card transactions, or any other services specified tit the Merchant Application as covered in whole or in part by this Agreement but as not being provided by Merchant Bank. To the extent applicable to American Express Card or American Express Network immoctions and Discover Network Cards or Discover Network Card transactions, or to any of the other types of Cards, transactions or services referred to above ar in the Merchant Application as not being provided by Merchant Bank, any reference herein or in any of the other documents constituting part of the "Mercian[ Agreement' (as defined below] to the terms "Batik" or "Merchant Bank" (except only to the extent the reference constitutes a complete disclaimer of responsibility or liability on the part of Bank or Merchant Bank, or constitutes an obligation on the pan of Merchant to malermnfy, defend or hold harmless Bank or Merchant Bank Four or against any responsibility or liability) means Processor only. The appendices, addenda, schedules, Operating Guide and Pee Schedule that accompany this Merchant Card Processing Agreement, as amended from time to time as provided herein, are part of the terms and conditions of this Merchant Agreement, as are the Merchant Application and the Operating Rules, and are barricade, individually and collectively referred to as the "Merchant Agreement." Copitaliud terms used in this Merchant Agreement which are not defined herein shall Iowa the mooning given to them in the Operating Guide, which can be found at 6tto:// wove .tenoe(Srar.com /Aoenaenm.htvd, aril which is incorporated by reference into this Agreement and may be amended from time to time by Bradt upon notice to Merchant. According to the processing services selected by Merchant on the Merchant Application and, in accordance with the terms of this Merchant Agreement and applicable Operating Rules, Merchant agrees to participate in the Bank's Card processing program by honoring Cards in accordance with this Merchant Agreement and to submit Transaction Receipts, Credit Traresert on Receipts mid other electronic data to Bank for the Card Program services provided by Bank. With respect to Visa Transactions : Merchant Bank is responsible for providing settlement funds directly to Merchant, and Processor shall not have access to or hold settlement funds. With respect to MasterCard Transactions', a) For purposes of the Merchant Agreement and performance of the Merchant Agreement by Processor, (i) Processor is the exclusive agent of Merchant Bank (ii) Merchant Bank is at all times and entirely responsible for. and in control of, Processor's performance; and (iii) Merchant Bank must approve, in advance, any fee to or obligation of the Merchant arising from or related to performance of the Merchant Agreement. b) The Merchant Agreement is not effective and may not be modified in any respect without the express written consent of Merchant Bank. e) Processor may not have access, directly or indirectly, to any account for funds or funds due to a Merchant and/or funds withheld Gom a Merchant for Chargebacks arising from, or related to, performance of the Merchant Agreement Merchant Batik may not assign or otherwise transfer an obligation to pay or reimburse a Merchant raising from, or related to, performance of the Merchant Agreement W Processor. d) Processor may not subcontract, sublicense, assign, license, franchise, m in any mamser extend or transfer to any third party, any right or obligation of Processor set forth in the Merchant Agreement, I. ME.RCIIAN 4S APPLICATION AND INFORMATION. By completing the Merchant Application, Merchant applies for the Card Program services covered by Elie Merchant Application and this Merchant Agreement. In their sole and absolute discretion, Processor and/or Merchant Bonk may accept or reject Merchant's Merchant Application. Merchant may present Transactions to Bank only for the activities and in the volumes described on the Merchant Application, including Elie percentage of Mail/Phone Order and Electronic Commerce transactions. Presentation of the first "transaction, including any test Transaction, by Merchant to Bank signifies Merchant's acceptance and agreement to be bound by this Merchant Agreement Z. MERCHANT'S GENERAL DUTIES. 11 General. Merchant will comply with this Merchant Agreement (including the tents of the Operating Guide) for submitting and processing Transactions with Bank. Bank is responsible to Merchant for processing Transactions under the Operating Rules for the Card Program services to which Merchant subscribes, which may vary among Card types. 2.2 Merchant's Responsibility for Acts of Others. Merchant, and not Bank, is responsible for any advice from, acts of, as well as omissions, acts of fraud or acts of misconduct by Merchant's employees, processors, cansulmnts, advisors, contractors. Merchant Servicers, Agents, officers and directors, Merchant, and not Bank, is responsible for the use, unauthorized rise or misuse of Merchant's equipment, POS Equipment. or software 2.3 Electronic and Paperless Notices and Disclosures. Merchant consents to receiving electronically rather than in paper farm all written notices, disclosures and other documents ("Documents") which are to be provided by Bank to Memhtmt under this Merchant Agreement. Bank will notify Merchant that a Document is available at Processor's web site will a link to that specific page of the web site containing the Document. Merchant agrees that such notification may be sent to Merchant at the e-mail address provided as part of the Merchant Application, By Merchant affirmatively checking line box to consent to receive paperless delivery of IRS Notices on Ate Merchant Application, Merchant acknowledges that it has reviewed and received the Consent to Paperless Delivery of IRS Notices, located at httn' / /wrvrr trnnsOmt con /doer me t I t 1 and that Merchant consents and agrees to receive IRS notifications by paperless delivery . Merchant understands and acknowledges that access to the Internet and a -mail are required for Merchant to access Documents electronically or by paperless delivery and Merchant confirms that Merchant has such access. Merchant understands that there as costs related to accessing Documents electronically or by paperless delivery and Merchant agrees that Merchant is responsible for these related access costs. At any time, anti William giving Merchant advance notice. Merchant Bank and/or Processor may elect not to send a Document electronically or by paperless delivery, in which case a paper copy of the Document will be sent to Merchant at the Merchant's last known address, as provided by Merchant, or such Document shall otherwise be provided as provided for herein. 3. PROCEDURES FOR CARD TRANSACTIONS. 11 Honoring Cads. (a) Limited Acceptance. If appropriately indicated herein, Merchant shall be a Limited Acceptance Merchant, which means dint Merchant has elected to accept only certain Visa and MasterCard card types as indicated on the Merchant Application, or via later notification. The Visa or MasterCard Credit acceptance option on the Merchant Application refers to Visa Credit and Business transactions, and is what MasterCard refers to as "Other Card" transactions- Notwithstanding anything to the contrary in the PP 'cotton, Merchant can elect in to accept only Visa or MasterCard non -PIN based debir/sfored vrdueoductronic benefit transactions (sometimes referred to as "signature debit" transactions, whether or not an actual signature is required). or (it) to accept only Visa or MasterCard Credit transactions, or (iii) to accept all Visa or MasterCard Credit and signature debit transactions; provided, however, that a Merchant who accepts any Visa or MasterCard Card types must accept all valid Visa or MasterCard Card types issued by a non -U.S. issue,. Merchant is not required no accept Card bands other than Visa or MasterCard in order to accept Visa or MasterCard Cards (except that transactions using Diner's International Cards which also carry the MasterCard Mark most be accepted if Merchant accepts MasterCard Card transactions of the same type). Bank has no obligation other than those expressly provided under the Operating Rules and applicable law as they may relate to limited Acceptance. Batik's obligations do not include policing card types at the point of sale. Merchant will be solely responsible for the implementation of its decision for limited acceptance including but not limited to policing the cad types) of transactions at the point of sale submitted for processing by Bank. Should Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Bank may process that transaction and Merchant will pay the applicable fees, charges, and Assessments associated with that transaction. Merchant will comply with any applicable laws and Operating Rules for the cad type processed. (h) Discover If Merchant has chosen to accept Discover Card Transactions in the Merchant Application, Merchant must accept Discover Cards at all Merchant establishments, including in payment for purchases of goods and services, for charitable enninflan ions and for Crash Over Transactions (subject to the temu of the Operating Guidek when Formerly presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each Discover Card l i'anski tion and deliver at least one copy ofthe Transaction Receipt to the Cardholder A Merchant may issue a Cash Over (subject to the terms of the Operating Guide) in connection with a Discover Card Transaction. -the Merchant must deliver a s angle Audcnznlmn Request for the aggregate total of the goods /services purchase amount and the Cash Over amount In addition, the Transaction Receipt must include both the purchase amount and the Cash Over amount. (c) PayPilTM. If Merchant has chosen to accept PayPal Payment Card Tmnsactions in the Merchant Application, Merchant must accept PayPal Payment Cards at Page I of] UNIVMERAGMT v10.1013 all Merchant establishments, including in payment for purchases of goods and services and for charitable contributions when property presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each ProPal Card Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder. (d) American Express. IF Merchant has chosen to accept American Expressdi Cards in the Merchant Application, Merchant must accept American Express Cards as payment for goods and services (Differ than those goods and services prohibited under Section 7 of the Operating Guide) sold, or (if applicable) for charitable contributions made, at all of its establishments, except as expressly permitted by state statute. Merchant is ,jointly and severally liable for the obligations of Merchant's establishments under the Merchant Agreement. In the event Merchant's American Express annual charge volume exceeds SIp00,000 in a rolling twelve month period or is greater than $100,000 in any three consecutive months, Merchant will be considered a High CV Merchant by American Express and will be required to enter into a direct merchant card acceptance agreement with American Express. Upon any conversion to a direct agreement with American Express, Merchant will be bound by American Express' then current Card Acceptance Agreement and to any pricing and fees sot by American Express. Merchant has the right to opt -out ofaveciol ice of Arrrcrivan Express Cards at any rime without affecting Merehmt's rights to accept other card types. If Merchant elects to receive messages from American Express regarding products, services and resources available to it. as indicated on die Merchant Applicalon, Merchant agrees messages maybe sent by American Express to the phone numbers, fax numbers or email addresses provided by Merchant. If o wireless number is provided, Merchant agrees communications may be seat via SMS or text in addition to automated calls, Merchant may opt out of receiving messages by contacting Processor - 3.2 Operating Procedures for Transactions In accepting Cards for the purchase of Merchant's goods and services, Merchant shall comply with the requirements of tilts Merchant Agreement, including but tint limited to the Operating Rides and die Operating Guide, as the some are revised from time to time. 3.1 Submission ofvnlid Transactions_ (a) Merchant will submit to Bank a Transaction only if the Transaction is made or approved by the Cardholder who is issued the Card used for the' Transaction. Merchant will not submit directly or indirectly (i) any Transaction drat Merchant knows or should have known to be frnrdulent or not authorized by the Cmdmlder, (ii) ally Transaction that results from a transaction outside ofMerchant's normal course of business, as described on the Merchant Application; m (iii) any Transaction containing the ace unl of a Card issued to Merchant or any account numbers issued to Merchant's business owners, family members and principals for Transactions that do not represent a purchase of goods or services from Merchant or a related audit. (b) If at any time the volume of Iraninctions in the Card - Absent Environment substaarally exceeds the projected annual volume stated on the Application, or if art any inane Bank suspects fraud, money laundering or violations of the Operating Rules, Bank may, in its sole and absolute discretion and in addition to other remedies that the Bank may have: (1) refuse to process the excessive or suspect Transactions; (ii) process the Transactions and retain the funds received from processing until such trine as the excess or suspect Transactions are found to be valid or invalid and processed in accordance with the Operating Rules; fill) suspend processing Card - Absent Environment Transactions andoor terminate the Agreement; or (iv) amend the Agreement to protect the interests of Bank. 3.4 Payments to Merchant for Valid Transactions. (a) Batik will provide provisional credit to Merchant Far each valid Transaction which Merchant submits to Bonk by crediting Merchant's Settlement Account, provided Bank has received settlement for the valid Transaction through the Interchange procedures specified by the Card Association applicable to the Card tread for the Transaction (Bank does not provide payment for all Card types for which Authorization services are provided). Barak is not obligated to provide provisional credit to Merchant for Transactions submitted drat are not valid Transactions, and may suspend or discontinue any provisional credit in Merchant Bank's andim Processor's sole and absolute discretion, owning for any reason that would funny termination of this Merchant Agreement . Each provisional credit floor Bank to Merchant will be subject to adjustinent, including revocation, Opal Bank's further review and verification. Provisional credit to Merchant for a I immilactiou disputed by a C'afdholder for any reason is not final. (b) Bank may deduct from any payment to Merchant the amount of any Credit Transaction Receipt processed for Merchant, any Chargeback to Merchant, any amount to be deposited fn the Reserve Account and any Processing Pees and amounts sufficient to reimburse Bank for the amount of any Card Association fuses or charges due from Merchant. Merchant must immediately pay Bank the amount by which a Credit Transaction Receipt processed on any day exceeds valid 'Transactions submitted on that day. Without limiang Bank's remedies, Bank may obtain the ammmt due by deducting it from tine Settlement Account, Reserve Account or other accounts of or funds due Merchant. (e) Merchant acknowledges that all payments and credits provided to Merchant are provisional and subject to suspension, to Chargebacks and to adjustments in accordance with this Merchant Agreement and the Operating Rules mid the Operating Guide. 3.5 Retrieval Requests. If Merchant deposits Transactions with Batik through magnetic tape, electronic transmission, or electronic data capture terminal, upon the rogaest of Card Association or Bank, Merchant shall respond to all Retrieval Requests within the time formes specified in die applicable Operating Rules IT Merchant does not respond or responds late to a Retrieval Request, Merehant may be wit out recourse ns Chargebacks For "non receipt of requested item" in most cases, cannot be reversed. 3.b Equipnenq Supplies; Misplays. - is) Al Merchant's request, Processor will supply Merchant with point-of sale equipment ("POS Equipment ") that Merchant may need to process and submit 'Transactions. Processor will use good faith efforts to program the POS Equipment to operate at the Merchant Outlets in compliance with the Operating Rules; however, Processor makes no representations or warranties that Processor's programming of the POS Equipment furnished by Processor will operate in compliance whit the Operating Rule_ If Processor supplies Merchant with POS Equipment or other equipment, then Merchant must return such equipment upon termination of this Agreement. It is understood by the parties that if Processor has not provided free use equipment, sections 3 6(a) -(d) do not apply. (b) Merchant acknowledges and understands that POS equipment may be supplied to Merchant that is the property of the Processor and is being provided to the Merchant for free use subject to the following conditions and requirements_ (1) Merchant shall be liable for a $495 fee for mmocmm of Processor supplied POS Equipment if the Merchant tcro iustes or ceases processing under the terns of this Agreement before the expiration of the initial or renewal term of this Merchant Agreement and fails to return the POS Equipment within ten days of terns mation or of ceasing processing. (ii) Merchant will be liable for any damages to the POS Equipment from the misuse or negligent use of the POS Equipment; (iii) Merchant will be liable for any reasonable monthly fee us determined by Processor for paper or other supplies provided by Processor for use with the pOS Equipment; (let Processor_ at its absolute and sole discretion, may allow for one terminal exchange at no charge, but may charge additional fees for subsequent exchanges, and. (v) The POS Equipment that is the property of Processor is provided "AS4S" and that Processor makes no warranty as to this POS Equipment's tinaess for any Inflator purpose (or any ether Warranty) and disclaims any liability resulting from the POS Equipment or Merchants use of the POS Equipment. (e) All Processor and third party POS Equipment and services provided or procured by Processor under this Merchant Agreement are provided AS4S,' but Processor will, it Merchant's expense, use reasonable commercial efforts to assist Merchant in enforcing any warranty offered by the third party supplier of such POS Equipment or services. (d) Merchant acknowledges that Processor or a third party is supplying the POS Equipment and that the Merchant Bank shall have no responsibility or liability for the POS Equipment supplied to Merchant. (e) Merchant will use only the forms for Transactions and electronic processing formats provided or approved in advance by Batik. Bank may change fire forms Grim time to time, and, upon notification, Merchant will comply with any changes. Merchant will use 'transaction forms or materials provided by Bank only far Tansac chin which Merchant submits to Bank. (t) Merchant may not it) indicate or imply that the Card Associations or Bank endorses any Merchant goods or services, (ii) refer to a Card Association or Bank in stating eligibility for Merchant's products, services or membership, or (iii) use any marks, symbols or logos owned by any Card Association or Bank for any purpose other than those permitted in the Operating Rules or the Operating Guide. 4. MERCRAN7 "S WARRANTIES. Upon signing the Merchant Application, and each time Merchant submits a I c nsuctioa, Merchant represents and wananls [flat. 4.1 Merchant has abided by this Merchant Agreement, and all applicable laws and Operating Rules; 42 Each statement made on the Merchant Application was true as of the date Merchant signed the Merchant Application agreeing to be bound by this Merchant Agreement: 43 There have been no materially adverse changes in information provided in the Merchant Application or in Merchant's financial condition, or management, 44 Merchant does not do business under u trade none or style not previously disclosed in writing, and there has been no change in the nature of Merchant's business or the product titles that Merchant sells not previously disclosed; 4.5 The Transaction is genuine and arises from a bona fide safe of merchandise or services by Merchant, represents a valid obligation for the amount shown on the Tnmsection Receipt and does not involve the use of the Card for any other purpose; 46 Merchant has title to the Trasacdon and Transaction Receipt, there are no liens or other encumbrances on it, and Merchant has the authority to convey the Transaction for processing; 4.7 The Transaction is not subject to any dispute, set -off or counterclaim; 4.8 Tire Transaction has not been previously presented for processing unless allowed by the Operating Rules or the Operating Guide; 49 Each statement on the Transaction Receipt is true, and Merchant has no knowledge of facts that would impair lire validity or collectability of the amount of the Transaction; 4.10 The person who executes the Merchant Application on behalf of Merchant has the full power and authority to execute the Merchant Application and to enter into this Merchant Agreement, 4.11 This Merchant Agreement is the legal, valid, and binding obligation of the Merchant enforceable against the Merchant in accordance with its temps; 4.12 Merchant shall submit Transactions only in accordance with the information contained in the Merchant Application and this Merchant Agreement, 4.13 Merchant has the power and authority to authorize the automatic funds transfer provided For in this Merchant Agreement: Page 2 of 7 UNIVMERAGM1TT v10.1013 414 The Settlement Account is owned and controlled by the Merchant and is a valid account for processing debit and credit transactions under this Merchant Agreement; 4.15 Merchant is not if) a Sanctioned Person, (ii) located in or operating trader a license Issued by a jurisdiction whose government has been identified by the U S Department of State as a sponsor of international terrorisin under 22 U.S.C. 2371 or 50 U.S.0 App. 24050). (iii) located in or operating under a license issued by u jurisdiction that has been designated as non-coopenlive with international anti -money laundering principles or procedures by an mars govermnenal group or organization of which like U.S. IS s memiser, or fly) located in or operating under a license issued by ajurisdiction thus has been designated by the U.S. Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns', and 4.16 that Merchant will imnmeNately notify Merchant Bank and Processor of any material changes to any information provided herein including but not limited to n change in Merchant's legal entity, location, business type, or die types of goods and services oflered for sale by Merchant. 5. CONFIDENTIALITY; DATA SECI'IIITY, 5.1 Transaction Receipts. Merchant will retain to a secure and confidential manner anginal or complete and legible copies of each Transaction Receipt, and each Credit Transaction Receipt required to be provided to Cardholders, for at least two years or longer ifrequired by law or the Operating Rules. Merchant shall render all materials containing Cardholder Account Numbers unreadable prior to discarding. 5.2 Storage. Merchant will store Transaction Receipts and Credit 'transaction Receipts in an area limited to selected personnel, and when record - retention requirements have been met, Merchant will destroy the records so that the same are rendered unreadable. 53 Merchant Servicers nett Agents. Merchant must notify Bank and receive Bank's approval prior to engaging any Merchant Servicer or Agent in connection with Merchant's acceptance of Cards or tine submission of "Ilareaetions to Bank Merchant shall provide Merchant Bank avid Processor at least sixty days advance written notice of Merchant's election to use a Merchant Servicer or Agent. Merchant Bank and/or Processor may individually approve or deny the use ofa Merchant Servicer or Agent in their sole and absolute discretion and at any time Be Merchant Servicer or Agent is required to certify. register, or act in any fashion pursuant a the Operating Rules, Merchant shall cause such Merchant Servicer or Agent to cooperate with Merchant Bank in completing any steps required for registration and/or certification and/or action. Merchant is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration and/or certification and/or action. Bank shall in no event be liable to Merchant or any third perry for any actions or inactions of any Motorcar Servicer or Agent used by Merchant, mid Merchant hereby expressly assumes all such liability. Merchant will immediately notify Bank if Merchant decides to use electronic authorization or data capture terminals is by any entity other than Bank or its authorized designee ( "Third Party Terminals ") to process Transactions, including leasing a terminal from a third parry. If Merchant elects to use Third Party Tonninals: (a) the third party providing the terminals will be Merchant's Merchant Servicer in the delivery of Transactions to Bank; and (b) Merchant assumes full responsibility and liability for any failure ofther third Perry to comply with the Operating Rules, applicable laws, rules or regulations o this Merchant Agreement. Bank will not be responsible for any losses or additional fees incurred by Merchant as a result of any error by n third party agent or n malfunction in a 'Third Party Terminal, The me of a Merchant Servicer or Agent or software or systems provided by a Merchant Servicer or Agent that has connectivity, to the Internet poses an increased risk, and Merchant assumes all liability for such increased risks. If Merchant others software or hardware with if eomneehon to the Internet such hardware or software interacts in any capacity with the provision of services contemplated pursuant to this Merchant Agreement, Merchant is solely liable without hiliiation for any and all consequences of such interaction. 5 4 Security. Merchant agrees and shall ensure that Merchant Servicers and Agents utilized by Merchmrt provide the same levels of security as those required ofMerclem, and that such Merchant Servicers and Agents tmnsaut data in accordance with (a) the required formar(s) of the Card Associations; (b) the Operating Rules; and (e) the requirements of Bank. Merchant must have a written contract between the Merchant mid its Agent or between the Merchant and the Merchant Servicer that stipulates adherence to the provisions of such information security requirements. Merchant shall indemnify and bold Merchant Bank and Processor harmless against losses or damages arising front the ants or omissions of Merchant Servicers or Agents engaged by Merchant. 5.5 Loss or Theft, Merchant most immedirkoh, notify Merchant Bank and Processor affray suspected or confirmed loss or then of materials or retards that contain Cardholder Account Numbers or Card Transaction information. In the event of a suspected or confirmed loss or theft Merchant shall provide immediate access to all facilities, systems, procedures, equipment, and documents as may be deemed appropriate by Bank or its designated representatives for inspection, audit, and copying is deemed appropriate by both Merchant Bank and Processor in tire;, individual sole discretion. Merchant shall be responsible for all costs associated wish such inspection, audit, and copying however such costs may occur '. 5.6 Merchant authorizes Bank to release its name and address to any third party whom the Bank determines tends to know such information in order for Dank to perform the Card Program services under this Merchant Agreement and who has requested such information. 5.7 Merchant will not (a) provide Cardholder Account Numbers, personal Cardholder information or "Transaction information to anyone except Bank, the Card Associations. or Merchant's Merchant Servicers or Agents for the purpose of assisting Merchant in completing Card Transactions, an as specifically required by law; (b) retain or store Card Magnetic Stripe, CVV, CVV2, CVC2 or CID data (including Track Data) subsequent to Authonzafien for a Transaction: (c) sell, purchase, provide or exchange Card Account Number information to anv third party without the Cardholder's consent, or to any entity, other than Merchant's Merchant Servicers or Agents, Bank, the Card Associations, or in response to valid legal process or subpoena; or (d) release any Cardholder information over the telephone trader any circumstances. 5.8 Merchant nary not in an -% event, including its failure, including bankruptcy, insolvency, or other suspension of business operations, sell, troosfer, or disclose any materials that contain Cardholder Account Numbers, personal information or Transaction information to third parties. In the event that Merchant's business fails or ceases to exist. Merchant is required to return rn to Bank all such infomtion or provide procure£ destruction ofthis information to Bank. 59 Merchant agrees to establish secunty procedures to protect Cardholder information and comply with the Visa Cardholder Information Security Program (CISP), MosterCii Site Data Protection (SDPi Program, Discover Information Security Compliance (DISC), American Express Data Security Requirements, and the Payment Card Industry data security standards. The Card Associations or Batik, and the respective representatives, may insurer the premises of Merchant or any Merchant Servicer m Agenl engaged by Merchant for compliance with seeudty requirements. Merchant acknowledges that any failure to comply with security requirements may result in the imposition of restrictions on Merchant or the permanent prohibition of Merchant's participation in Card acceptance programs by the Card Associations. Merchant shall indemnify and hold Bank harmless against any losses or damages arising farm Merchant's failure to comply with security procedures and any losses or damages arising from or related to Merchant's acts or omissions that result in a breach of data security, including but not limited to Merchant's two- purlicipation in any breach security program Processor may offer 5.10 Federal reyndations reacted pursuant to the USA PATRIOT Act mid other applicable laws require financial institutions with which the Processor has relationships to verify the identity of every person who seeks m open an account with a financial institution. As a result of Membani s status cis an account holder with Merchant Bank, Merchant shall provide documentary verification of Merchant's identify, such as a driver's license or passport for an individual and certified copy of organization document for an entity in manner acceptable to Bank. Bank reserves the fight to verify Merchant's identity through other non - documentary methods as Bank deems appropriate in its soft discretion. Bank may ream a copy of any document it obtains to verify Merchant's identity with the financial institution. 6. OPERATING RULES. 6.1 Merchant must comply with the Operating Rules, as the same may be amended no time to tune. The Operating Rules may change with little or no advance nonce to Merchant and Merchant will he bound by kill such changes. If Merchant oblects to am change to the Operating Rules, it must immediately stop accepting new Transactions for Cards governed by the change 1'he Operating Rules will govern in the event that there is any inconsistency between this Merchant Agreement and the Operating Rules. However, nothing in this Merchant Agreement shall be construed to impose on Merchant a requirement (including a requirement under the Operating Rules) which is prohibited by mandatory provisions of applicable law (i.e., where the applicability of such provisions of law to this Merchant Agreement, and of the law's prohibition to the particular acquirement which otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by agreement), but the requirement hereunder shall be construed to continue in effect and to be imposed uu Merchant in all respects and at all times to the fullest extent possible without violating the law's prohibition, with only those particular applications of the requirement which would violate the law's prohibition deemed severed from the provisions boreal' 6.2 Operating Rules of the Debit Networks may differ among them with respect to the Transactions they allow. Bank, at its discretion, may require that the most restrictive requirements of one Debit Network apply to all of Merchant's On -line Debit Card Transactions, regardless of Card type. 7, MERCHANT'S BUSINESS; OTHER PROCESSORS. 7.1 Compliance With Laws. Merchant will comply with all Requirements inflow and regulations, including but not limited to laws and regulations regarding anti- nisawy laundering compliance, in completing Transactions, submitting them to Bank, performing its obligations under this Merchant Agreement, and otherwise conducting its business. 7.2 Change in Name or Business. Merchant will give Merchant Book and Processor at least thirty days' prior written notice before any change in Merchant's name or location, any choose in ownership or managerem, of Merchant's business, any sale, assignment, rental, lease or [transfer of ownership of any location that accepts Cards, or any material change in information concerning Merchant in the Merchant Application, and materal change in the type or nature of die business carried out by Merchant or otherwise required to be provided to Bank. 7.3 Other processors. To the extent permitted by applicable Irv. Merchant agrees that it will not participate in a Card Program with another financial institution or processor without Bank's written approval. S. CREDIT REPORTS AND OTHER INFORMATION. 8.1 Reports About Merchant From time to time, Bank may obtain credit and other information on Merchmrt, owuars and officers of Merchant, and any add all personal guarantors ufMerchant, from others (such as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish information on Merclant's relationship with Bank and Bank's experience with Merchant to others seeking fire information. 82 Reports from Merchant. Merchant will provide Bank with updated business and financial information concerning Merchant, including Immoral statements, tax returns. Page 3 of7 UNIVMERAGMT v10.1013 evidence of required licenses and other information and documents Bank may reasonably request from time to time Merchant shall further provide Bank such information as it play request for the making of insurance claim, regulatory or other Filings related to Merchunt's activity pursuant to this Agreement. All material marked "confidential" which Bank receives from Merchant will be used only by Bank or Card Association in performing the Card Program services corder this Merchant Agreement or related services and reporting. At any reasonable time, Bank, airy Card Association or any other entity having authority has the right to audit Merchant's records relating to this Merchant Agreement. Without limiting the generality of the foregoing, Merchant understands cord agrees that if at the time of signing this Merchant Agreement Merchant is undergoing a forensic Investigation, Merchant must notify Batik and fully cooperate with the investigation until it is completed. % .ASSIGNMENT; BANKRUPTCY. 9.1 Assignment, This Merchant Agreement is binding upon the successors and assigns of Bank and Merchant. Merchant will not assign this Merchant Agreement to another entity without Bank's prior written consent and any purported assignment made without Bank's consent will be void. 92 Hanki uptcy. (a) Merchant will notify Batik immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant Agreement constitutes an executory contract to extend credit or tinmrcial accommodations as defined in 11 U.S.C. 4365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in tine event of bankruptcy_ Merchant and Bank agree that in lire event of Merchant's bankruptcy, Bank shall be entitled to suspend further performance under this Merchant Agreement. (b) Merchant acknowledges tad agrees that in the event of a bankruptcy proceeding, Merchant must establish a Reserve Account or maintain a previously established and then current Reserve Account in amounts required by Batik and in accordance with my Reserve Amount provision specified in this Merchant Agreement. Bank will have die right to setoff against tine Reserve Account for any and all obligations which Merchant may owe Bank, without regard ns to whether the obligations relate to Transactions initiated or created before or after the Citing of the bankruptcy petition. 10.AMENDMENTS; WAIVERS. 10 1 Amendments. Unless otherwise provided for in this Merchant Agreement, Bank may amend ibis Merchant Agreement at any time by providing Merchant with fifteen days' prior nonce by (a) sending Merchant written notice of such amendment, or (b) posting such amendment to the Processor wreb site and providing Merchant with electronic notice as provided in Section 2.3. The amendment will become etractive unless Bank receives Merchant's notice terminating this Merchant Agreement before the effective date- Bank may amend this Merchant Agreement upon less than fificen days' prior notice if Bunk reasonably determnes immediate modification is required by Requirements of Law, Operating Rules or any adverse charge in Merchant's financial condition. Amendments submitted by Merchant will hind Bank only if in writing and approved and signed by Bank's authorized officer. 102 Waivers. Bank's ashore to enforce this Merchant Agreement will not waive Bank's rights under this Merchant Agreement. Waivers ofmry provision of this Merchant Agreement must be in writing and signed by Bank. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver. 11. TERM; TERMINATION. I I Tcrmllienewal. The initial term of this Merchant Agreement shahs be for the term of three years (the "Initial Tenn') commencing on da date Bank processes the first Transaction for Merchant (including n test T'rans'action) mid, with processing of the first transaction, the Merchant accepts the services of Processor and agrees to be bound by this Merchant Agreement and signifies Bank's approval of this Merchant Agreement. At tine expiration of the Initial Term, this Merchant Agreement will automatically renew for successive one year periods (each a "Renewal Tenn" and collectively with the Initial Term the "ferny) unless A party Provides the other parties with notice of its intent not to renew this Merchant Agreement at least ninety days prior to the expiration of the then current term. 112 Termination. (u) Termination without Cause. Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement as to all Card types or individually specified Card types, without cause upon thirty days advance written notice. (b) Termini on for Cause by Bank- Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement in its sole and absolute discretion, effective immediately, upon written, electronic or oral notice, except as otherwise stated in this Merchant Agreement, to Merchant if Merchant Bank or Processor reasonably determines that Any of the following conditions exists: h) Merchant ties violated any prevision ofthis Merchant Agreement. (ii) There is a material adverse change in Merchant's financial condition, material change in Merchant's processing Activity, processing activity inconsistent with the Merchant Applicuton, or Merchant Bank or Processor ifismaines in its sole discreion that Merchant's processing activity could result to a loss to Bank (iii) A petition in bankuptcy tins been Cited by or against Merchant, life Merchant is generally unable to pay its debts as they become duci a receiver, custodian, trustee, liquidator or similar official is appointed for a substantial portion of Merchant's business, [sere is a general assignment for the benefit eeditors, or the business warranties. (iv) Any infommtion which Merchant provided to Bank, Including Merchant Application information. was false, incomplete or misleading when received, or has materially changed since Merchant provided such information. (v) At any time during the term of this Merchant Agreement. Merchant has had a monthly ratio of Chargebaclos to Transactions exceeding one percent, or Chargebacks are in excess of three percent of any monthly dollar amount of Transactions NO There is an overdraft for three days or more in the Settlement Account, or overdrafts in the Settlement Account are otherwise excessive. (vii) Merchant or anv of Merchant's otNcers or employees has been involved in processing Transactions with Bank or other parties arising from fraudulent or otherwise unauthorized transactions. (viii) Merchant is or will be unable or unwilling to perform its obligations under this Merchant Agreement or any applicable laws. (ix) Merchant has failed to pay Bank any amount when due. (x) Merchant has failed to promptly perform or discharge any obligation under this Merchant Agreement, the Settlement Account or the Reserve Account. (xi) Any or Merchant's representations or warranties made in connection with this Merchant Agreement was not true or accurate when given. (xis) Merchant has defaulted on Any agreement it has with Bank. (.viii) Bank is served with legal process seeking to attach or garnish any of Merchant's funds or property in Bank's possession, and Merchant does not satisfy or appeal the legal process within fifteen days of the Bank being served. (xiv) 'rhe Operating Rules are amended in anv way so that the continued existence of this Merchant Agreement would cause Bank to be In breach of such Operating Rules. (xv) Any Guanaty supporting Merchant's obligations is revoked, withdrnwn or terminated or altered in any way. (zvi) Any governmental entity initiates proceedings against Merchant, or Bank reasonably believes that a governmental entity may do so. (xvii) If any circumstances arse regarding Merchant or its business that create Irwin or loss ofgondwill to any Card Association. (c) Te anion f r C use b M Chan . Merchant may terminate this Merchant Agreement in the event of a material breach of the temps of this Merchant Agreement by Bank, provided Merchant gives Bank written notice of any alleged breach and such breach renains oriented for a period of thirryy days following receipt of written notice by the Bank. fit) Dnananes for Early Te ninatimn. Of Bank and Merchant acknowledge and agree that to addition to all .that remedies available Ire Bank under this Merchant Agreement or as otherwise available in law or equity, if this Merchant Agreement is terminated prior In tine expiration of the applicable Term of the Merchant Agreement for any reason other than far a material, uncured breach by Bank, Merchant agrees to pay Bank damages (the "Damages ") determined by adding an account closure fee As follows: (1) $250 for Merchants with less than twelve months remaining from the date of termination to the end or the then current Tern% or; (2) $500 for Merchants with mare than twelve months remaining, or such portion of the foregoing as may be permitted by applicable law_ (ii) Merchant agrees that such Damages shall also be due to Bank if Merchant discontinues submitting Transactions for processing during the Tenn for a period of ninety (90) consecutive days, and is not designated on the Merchant Application, or by notice to Bark, as a seasonal merchant or as otherwise agreed to by Bank. (iii) Merchant Acknowledges and agrees that the Damages are not a penalty but rather are a reasonable computation of the financial harm caused by the armmation of this Merchant Agreement by the Merchant. (e) Merchant Bank's or Processor's rights of termination under this Merchant Agreement are cumulative. A specific right of termination shall not limit my other right of Bank to terminate this Merchant Agreement expressed elsewhere in tits Merchant Agreement. Notice of termination may be given orally or in writing, if given orally, shall be confirmed In writing, except as otherwise stated in this Merchant Agreement. (f) Upon termination, Merchant's rights to complete Transactions and submit them to Batik, and to use Transaction form or formally, promotional material and any other items provided by Bank, will cease. Termination of this Merchant Agreement will not terminate the rights and obligations of Merchant and Batik relating to acts or omissions occurring before termination, including for example, any Processing Fees or other service fees awed to Bank, any Transactions processed for Merchant by Bank (whether before or after termination), Merchant's Chargeback and indemnity obligations, and the Security Interest granted to Bank Indus Merchant Agreement. (g) It is understood that a Me for terminated merchants referred to as `MATCH" is mainmined by Card Associations containing the names ofany business (and its principals) which have been terminated for certain reasons, including frond. depositing excessive counterfeit paper, excessive unauthorized transactions, depositing paper for other (laundering), bankruptcy or breach of this Merchant Agreement. Merchant acknowledges that Merchant Bank or Processor is required to report Merchant to the MATCH (and/or on the Consortium Merchant Negative File (the CMNP) published by fincoverf, Network) if this Merchant Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Associations_ Merchant agrees Q consents to such reporting in the event of the termination of this Merchant Agreement for any of the foregoing reasons. (In) Sections 2.3, 3, 4, 5, 6. 7, 9.1. 10.2, 11, 12, 13. 14, 15, 16.3, 16.4 17, 18, 19, 20 and 22 will survive termination of this Merchant Agreement. PaBC4 o177 ONIYMERAGhIT v 10.1013 O.SIATLEMENT ACCOUNT. 121 Settlement Account Required, Merchant must maintain a Settlement Account in Merchant's none in satisfactory condition at a repertory institution under arrangements acceptable to Bank. The Settlement Account will be subject to the provisions of Section 14 ofthis Merchant Agreement. 12.2 Minimum Immuce. Merehon agrees to maintain a minimum halance of ponds in the Settlement Amount as Bank may specify to Merchant in writing from [into to tittle. 12.3 Provisional Credits. Subject to the terms and conditions of this Merchant Agreement, Bank agrees to provisionally credit Merchant for each Transaction that Bank accepts from Merchant. Merchant agrees that Bank may charge the Settlement Account for the amount of any Transaction processed under this Merchant Agreement, or any agreement Bank may have with any Merchant Afthate, that results in a Chargeback, or for any Credit Transaction Receipt or othm reimbursement or Processing Fees to which Bank may be entitled. 124 Audits and .Adjustments. Merchant agrees that Batik may audit NI 'transaction calculations and that Bank Shull have the right, without notice, to make withdrawals, deposits, or other adjustments to or from the Settlement Account for any deficiencies or overages. 12.5 Errors and Disputes. Bank shall presume that any amounts the Bank pays to or debits from Merchant are correct unless Merchant disputes these by sending Bank written notice within thirty days of the date of the applicable statement containing any disputed payments or debits. 116 POS Equipment, If Merchant chooses to rent or lease POS Equipment Irons Processor or utilizes software provided by Processor for use in processing Transactions. Merchant agrees to pay Processor: (a) a pre - determined monthly rental fee; m) any initial upfront costs as required, and (e) all applicable taxes for such POS Equipment or software utilization. 12.7 Settlement Account Closure, If the Settlement Account is closed, Bank or its designated representative nifty terminate this Merchant Agreement, effective immediately, upon written or oral notice (with written confirmation in the event of oral notice) unless Merchant opens another Settlement Account acceptable to Bank. Merchant may change the Settlement Account clam prior written approval by Bank, which approval will not be unreasonably withheld. 12.8 ACH Authorization, Merchant authorizes Bank or its agents or designated representatives to initiate debit and credit entries and adjustments to the Settlement Account or the Reserve Account (described in Section 13 of this Merchant Agreement) through the ACH settlement process far amounts due under this Merchant Agreement. This authorization will remain in full force and effect nail knounalian of the Merchant Agreement and the full and final payment of all obligations of Merchant due under this Merchant Agreement Merchant acknowledges and agrees ihm it has been provided with the ACH Terms and Conditions located at wmv.tmnsfirstemn /tact tents html lad agrees to be bound by all applicable terms and provisions of the ACH Terms and Conditions, ACH Addendum, all other ACH Rules and any other applicable association or network rules and regulations, in effect fire one to time. Merchant acknowledges and agrees that Bank will not be liable for any delays in receipt of funds, any failure by Merchant to receive funds, or errors in debit or credit entries caused by Merchant, or third parties, imohuding but not limited to any Card Association of any financial Institution, H. ADDITIONAL COLLATERAL SECURITY; RESERVE ACCOUNT'. As a condition for providing Card Program services, Merchant may be required to provide additional collateral security for Merchant's obligations hereunder, which additional collateral security shall be of a kind, and in amounts, satisfactory to Bank in Bark's sole discretion, and which shall be in addition to all other collateral provided for in Section 14 hereof. Such additional collateral security may include, for example, (a) a letter of credit, if issued in an anonnt and on terms acceptable to Bank by a letter of credit issuing bank acceptable to Bank, M(b) the pledge to Bank of i certificate of(leposit owned by Merchant in amount satisfactory to Bank and provided all agreements (including agreements of third parties) in font and substance satisfactory to Bank and all filings and /or other actions necessary in older to perfect in Bank a cam inning first priomy security interest therein on terns acceptable to Bank, are entered into, made and/or taken as the case may be. Bank may require that all or any part ofahe additional collateral take the form of a Reserve Account, established as interloper set forth in this Section 13, at any time when (i) this Merchant Agreement, or the provision of Card Flagons services hereunder, shall have terminated for any lease,' or any party hereto shall have given notice of termination thereof, or (it) there shall have occurred an event which entitles Bank to terminate this Merchant Agreement or the provision of Card Program services hereunder or which, with the giving of notice and/or the passage of titan would entitle Bank to terminate this Merchant Agreement or the provision of Cud Program services hereunder, and Merchant ties not provided alternative additional collateral security of a kind, and in amounts, satisfactory to Bank as set forth above in this Section, or (iii) neither (i) nor (ii) above in this Section Is applicable, but Bank has determined that additional collateral security is required, has requested that Merchant provide same, and Merchant has failed to provide alternative additional collateral security of a kind, and in amounts satisfactory to Bank as set fotth above in this Section. Any Reserve Account that in established shall be subject to the terms and conditions of Section 14 =dell other terms and conditions or this Agreement relating to the "Reserve Account °. Whenever Bank requires that additional collateral security take the form of a Reserve Account, the following provisions of this Section 13 shall apply: 13.1 Reserve During Term oTMerclmnt Agreement. (a) Merchant may be required to deposit, or Merchant Bank may deposit by deducting from any payment due to Merchant or from any fonds n the Settlement Account or any other deposit amount of Merchant, into an account maintained by Merchant Bank (or it another approved depository institution) (tire "Reserve Account"). initially or at any time in the fume as requested by Bank, sums sufficient to satisfy Merchant's current andor future obligations as detemnined by Bank in its sole and absolute discretion. (b) The Reserve Account will be separate train the Settlement Account. Merchant shall have no right of withdrawal from the Reserve Account The Reserve .Account shall be under the sole co col of Merchant Bank., and Processor shall riot love access to or hold funds In file Reserve Account. Any and all earnings from deposits of the Merchant to the Reserve Account shall be the sole property ofihe Bank. 13.2 Reserve Accomn Deposits. (a) At any time in Bank's sole and absolute discretion, Bank may It) designate die minimum balance required to be deposited In the Reserve Account. (ll) require that the amount on deposit in the Reserve AmrOUm be increased, (iii) require that the Merchant deposit, or Merchant Bank may deposit for Merchant into the Reserve Account a percentage oft or a fixed amount train each Transaction processed, or (w) otherwise demrmine the amount to lie deposited in the Reserve Account Bank at its sole and absolute discretion may require that each month Merchant deposit, or Merchant Bank may deposit by deducting from any payment due to Merchant or from zany funds in the Settlement Account or any other deposit account of Merchant sums into the Reserve Account no later than the twentieth day of the month. Bank shall notify lire Merchant as to the amount of the funds to be deposited each month. (b) Merchant acknowledges and agrees that the Reserve Account may contain both funds deposited by the Merchant and funds of other merchants of the Bank. 13 3 Deductions. from Renmve Account. If funds are not available in the Settlement Account, Bank without to notice to Merchant may deduct from the Reserve Account any obligation of Merchant to Bank under this Merchant Agreement, including all Processing Fees, Chargebacks, Credit Transaction Receipts, Damages, and any and all additional lees, and sums sufflWIW1 to reimburse Bank for the amount of any fines, penalty amounts aid charges due the Card Associations. 13A Replenishment of Reserve Account Deficiencies, Whenever the balance in the Reserve Account is less than the minimum balance required, or is otherwise deficient, Merchant Bank may, without prior notice, deposit the deficiency into the Reserve Account by reducing any payment to Merchant required by this Merchant .Agreement or deduct the deficiency fiom the Settlement Account or any other deposit account of Merchant with another depository institution (including accounts of general partners if Merchant is a partnership) and deposit it into the Reserve Account. Merchant authorizes deductions from its accounts by ACH entry, sight draft, preauthorized check, reverse wire, or otherwise as Bank deems appropriate under the circumstances. In addition, Merchant will deposit env deficiency into the Reserve Account within one Business Day alter receiving Batik's oral or written request. Without limiting Batik's remedies, Merchant's failure to deposit may deficiency on time will permit Batik, without advance notice, to suspend or cease processing additional "transaction Receipts and Credit Transaction Receipts. Bank will give Merchant written notice of any suspension or cessation of processing. 13.5 Additions to Reserve Account. If Bank has reason to believe that Merchant may be liable to customers or to Bank for Chargebacks exceeding the balance in the Reserve Account, Merchant Bank may (a). immediately place in the Reserve Account payments due to Merchant author stop processing mtrtasetmns for Merchant until such time as the extent of Merchant's obligations to Bank, or Merchant's liability for Chargebacks, or Merchants liability to customers are known, and Bank no longer deems itself insecure, and/or (b) demand from Merchant an amount that in Bank's judgment is needed to ensure payment of Merchant's obligations and liabilities. Merchant's failure to pay any amount will permit Merchant Bank or Processor or its designated representative to terminate tilts Merchant Agreement immediately without advance notice 13.6 Reserve Account After Mechant Agreement 'Terminates. Merchant Bank may continue to hold or deposit funds in the Reserve Account after termination of this Merchant Agreement, regardless of whmhcr termination is by Merchant at Bonk. Upon tioninaion of the Merchant Agreement by Merchant or Bank, Bank may remit sufficient funds to satisfy any and all Processing Fees, Chargebacks, Credit Transaction Receipts, Damages, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any times, penalty amounts and charges due the Card Associations. If no rands have been deposited into the Reserve Account before termination, Banc, at Bank's option, may notify Merchant to deposit Raids into the Reserve Account upon termination of this Merchant Agreement. All provisions which apply to a pre- termination Reserve Account will apply after termination, including replenishment of deficiencies- The funds will be held by Bank ur its designated agent be a period of not less thin one hundred eighty days front the date of the last Transaction processed under the Merchant Agreement, plus the period of any warranty, gnaranlee, and/or return policy on goods Major services sold. Bank will return the balance in the Reserve Account to Merchant alter Bank reasonably determines that the risk of Chargebacks and other Processing Pees has ended and after deducting all amounts that Merchant owes to Bank under this Merchant Agreement or any other agreement. 14, SECURITY INTEREST. 14.1 Merchant's Grant of Seeurityfateres6 (a) To secure Merchant's performance of its obligations under this Merchant Agreement, mid any other agreement with Bank, Merchant grants Bank a security interest in each Tra ea Lion and its Farmers, the Settlement Account, the Reserve Account and any other deposit account of Merchant with a financial institution, whether now existing or established in the future, and in the proceeds of all those accounts, any funds due Merchant from Bank and nay of Merchant's property held by Bank. Bank may enforce these security interests without notice or demand The security interests granted tinder this Merchant Agreement will continue alter this Merchant Agreement terminates. until Merchant s u sties all its obligations to Bank. Page 5 oil tINIVMFRAGMI'v10 1011 B) Furthunnore, and with respect to any security interests granted herein, Bank will have all rights afforded ureter the Uniform Commercial Code, as the same may, from time to time, be in effect in the State of Colorado, provided, however, in the event that, by reason of mandatory provisions of law, any oral] of the anitchtnent, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Colorado, then Batik will have all rights afforded under the Uniform Commercial Cede as in effect from tune to time in such other Jurisdiction for purposes of the provisions relating to such attachment, perfection or priority Of life security interesting, us well as any other applicable law. 14.2 Perfection of Security In lei-est. Upon request of Bank, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Book tinder this Section Id. Merchant shall cooperate with Bank in obtaining any control agreement or similar agreement with a depository bank necessary to perfect the security interests granted herein. In addition, Merchant agrees that its signature on the Merchant Application will be considered Merchant's signature agreeing to any control agreement as defined in Article 9 or the Uniform Commercial Code among Merchant, Bank and any other financial institution under which Bank, Merchant and any other financial institution agree to the disposition of Ponds in the Settlement Account, the Reserve Account or any other deposit account without further consent by Merchant. 15. CUSTOMER CLAIMS To the extent that Batik has paid or may pay a Chmgeback or Credit Transaction Receipt, Merchant will be obligated to reimburse Bank for any stairs Bank pays. If Merchant does not reimburse Bank, Bank will have all of the rights and remedies of Cardholders, including the Cardholders' rights front II U.S.C. p507(a)(6), Bank may assert any claim on behalf of a Cardholder individually or on behalf of NI Cardholders as aclass. 16. PROCESSING FEES. 16.1 Fee Schedule. Merchant will pay Processing Fees in the amount specified in the Fee Schedule attached to the Merchant Application or as otherwise provided for in this Merchant Agreement or an Addendum thurcto. Bank may Increase the Processing Fees, including, without limitation, introducing nary products or services, by giving Merchant fifteen days advance written notice effective for Transactions submitted on slid after the effective date ofthe change. 162 Card Association Actions. Bank will not be required to provide the Meehan with fifteen days' notice of an increase in Processing Pees in die event that any Card Association, or any other entity having site[, authority increases the Processing Fees slid the effective date for implementation of the increase in the Processing Fees is less than fifteen days. In such cases, [lie Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on smtenims, website notification, email, fax and direct contact via the telephone or otherwise, to provide reasonable notification to Merchant. however, failure to provide advance notice of the increase in Processing Fees will not affect Merchant's obligation to pay the increased Processing Fees. The increase($) in Processing Fees shat l be effective on the date specified by Blink_ 16.3 Government and Regulatory Actions. Bank will not be required to provide Merchant with fifteen days' notice for any increase in processing Fees resulting from any fine, charge, fee or cost incurred in connection with any state, federal or other reguhnory action, change in laws or regulations or escheatmem efMerchant's funds. Bank shall make reasonable efims; including, but not limited to, written correspondence, notification on statements, website installation, email, fax and direct conmer via the telephare or otherwise to provide reasonable notification to Merchant. However, failure to provide advance notice of the increase in Processing Fees as a result of any government or other regulatory actions will not affect Merchant's obligation to pay the increased Processing Fees. The increases) in the Processing Fees shall be effective on the date specified by Bank. 16.A Payment. Processing Fees and other service charges owed by Merchant to Bank may be deducted by Merchant Bank from amounts due Merchant, or from the Settlement Account or from the Reserve Account. Merchant will pay the amounts due by the next Business Day il'snfficieni funds are not available in the Settlement Account. 17. INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY. 17.1 Indemnification. Merchant agrees to indentoifv Bank, Including their respective officers, directors, employees, and agents against and to hold then harmless front any and all claims mad demands of any party raising From or based upon any act or omission of Merchant, Merchant's employees, Merchant's designated representatives or agents, Merchant Servicers or Merchants Agents) in connection with or arising out of this Merchant Agreement, the duties to be partitioned by Merchant pursuant to this Merchant Agreement, any Transactions which Merchant submits to Bank, or Merchant's violation of the Operating Rules or any Requirements of Law, In the event that Bank shall be made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process tcollectively 'Actions') commenced by any third patty, Merchant shall protect and Bold Batik harmless from and with respect to the Actions mid shall pay all costs, exleoses, and attorney's fees incurred or paid in connection with the Action, together with any judgments rendered, Merchant shall indemnify, defend, and hold harmless Bank for any hacking, infiltration, or compromise of Merchant's systems or the systems of Merchant, Merchant Servicers or Merchant's Agengs), designated representatives, or other agents. 17.2 Limitation of Liability. Bank will not accept responsibility for errots, acts, or failure to act by others, including but not limited to. Merchant Servicers, Agents, third parry suppliers of software, equipment or services; or, barks, communication common carnets data processors or clearinghouses tluough which transactions may be passed, originated anNor authorized. Book will not be responsible for any loss, liability or delay caused by Gres, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Bank- Bak undertakes no duties to Merchant other than the duties expressly provided for in this Merchant Agreement, and any and all that or additional duties that may be imposed upon Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, Bark's cumulative liability to Merchant, whether arising in contract. tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser OF $10,000 or, an -mount t equal to the aggregate of monthly net Processing Fees paid by Merchant in the three month period prior to the month that the incident giving tine to liability occurred. IN NO EVENT SRALL. BANK DE LIABLE FOR SPECIAL, INCIDEN "UAL, INDIRECT, CONSEQDEN'IIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR 13ANK WAS ADVISED OF THE POSSIBILITY 'THEREOF AND REGARDLESS OF WHETHER ANY LIMI I ED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. BANK SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRAN'T'Y OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT OF ANN' INTELLECTUAL PROPERTY' RIGHT WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WIT'HOITI' LIMITING THE GENERALITY OFTFIE FOREGOING, BANK DOES NOT GUARANTEE OR WARRANT 'THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE. 18. NOTICES. Each notice required by this Merchant Agreement will be in writing Unin copy or electronic), except as otherwise stated in this Merchant Agreement, and will be effective when delivered, (a) to Merchant Bank at the address designated tat the Merchant Application, and the forum address on the Merchant's Card processing statements, (b) to Processor at the address designated on the Merchant Application and (c) to Merchant at Merchant's address to which Bank mails Merchant's statements or at lire electronic mail address provided by Merchant in the Merchant Application, or at such other address as any party may provide by written notice to the other parties. Any address Merchant designates may also be the address to which Bank mails Merchant's statements. Delivery by facsimile transmission or electronic mail will be considered effective when the sender receives electronic confirmation ofdte transmission. 19, COLORADO LAW; JURISDICTION; VENUE. Merchant's offer to enter into this Merchant Agreement is twee in Boulder, Colorado; this Merchant Agreement shall be performed by Merchant in Boulder, Colorado and governed by Colorado law, excluding its cons ict of laws rales. Merchant and Guarantor agree to bring any claim or action relating to this Merchant Agreement in binding arbitration as set forth in Section 20.2 below. Any matters not otherwise subject to arbitration (such as, by way of example onl), inamicaho relief. or claims to enforce an arbitration award), shall be brought in the state or federal courts located in Boulder County, Colorado- All parties irrevocably and unconditionally submit to the jurisdiction ofsttoh courts with respect to any such action. In the event that Bank is required to resolve a dispute with Merchant that requires any action under this provision, Merchant hereby agrees and consents to receive service of process by certified mail 20. ATTORNEY FEES; .ARBITRAT'ION. 20.1 Attorney Fees. Merchant aod7or Guarantor will be liable for and will indemnify nod reimburse Bank for all attorneys' fees and other costs and expenses paid or incurred by Blank in the enforcement of tills Merchant Agreement or in matters relating to this Merchant Agreement, or arising Flom any breach by Merchant of this Merchant Agreement, or any other wrongdoing by Merchant or Guarantee In the event Bank must collect any amounts due from Merchant to Bank, Merchant will reimburse Bank for ail fees and expenses inured in such collection, plus reasonable administrative fees. 20.2 Arbitration. Merchant. Bank and any Gummier will settle any dispute or controversy concerning or relating to this Merchant Agreement though binding arbitration before is single arbitrator, held at Denver or Boulder, Colorado in accordance with the provisions of the Federal Arbitration Act or any successor statute- In interpreting the Merchant Agreement, which the arbitrator most do, the arbitrator shall be limited from revising, aloring, or amending any term of the Merchant Agreement without the express written consent of the Bank and the Merchant. Claims hereunder will be arbitrated on an individual basis and, is such, the arbitrator's authority is limited to claims benreen the Burk and the Merchant (and any Guarantor) alone- Merchant and Bank expressly agree that the arbitrator may not consolidate or join more than one person's or party's claims, mid may not otherwise preside over any form of if consolidated or class proceeding or over claims brought in a pmpoi ed representative capacity on behalf fiCthe general public, other merchants or other persons or entities similarly stumted. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that patty's individual strands). 2LFINAL AGREEMENT; EFFECTIVE DATE. This Merchant Agreement is the complete and final agreement between Merchant and Bank for the Card Program services covered by this Merchant Agreement and supersedes all prior or contemporaneous negotiations . stipulations or agreements. If any provision of this Merchant Agreement is invalid or unenforceable, the other provisions remain effective- This Merchant Agreement becomes effective on the date Bank processes the first Transaction for Merchant (including .tear Transactiorn 22, CONTINUING GUARANTY. Page 6 Oft UNIVMERAGMT v10.1013 21 .1 As n gloomy inducement to Bank to enter into this Merchant Agreement, and to approve the Merchant Application of Merchant, the (uamntort individually and severally, who signed on the Generation- signatu'e litahs) on the Merchant Application, agree to be bound by all terms and provisions of this Merchant Agreement to the same extent and in the s»me manner as Merchant, and unconditionally and irrevocably, personally guarantee the continuing full and faithful performance and payment by Merchant clench and all of Merchant's duties and obligations to Bank under this Merchant Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals and Bank, as such agreements now exist or arc amended from time to lime, with or without notice to Lineaments) 22.2 Merchant and Guarantors) further agree to be bound by file terms and provisions of any Merchant Card Processing Agreement between Bank and any Affiliated- merchant, regardless of whether such agreement currently exists or is executed, amended or supplement at some IUnue date. Merchant and Guarantors) unconditionally and irrevocably announce the full payment and performance of each and all duties and obligations owed to Bank by Merchant Affiliate pursuant to any Merchant Card Processing Agreement The provisions of Section 22.3 apply to the guarantee by Merchant and Guarantors) of the Merchant Affiliate's obligations to Bank under any Merchant Card Processing Agreement 22.3 Guarantorts) understands that Bank, without notice to Guarantorlsl, may from tune to time renew or extend the Merchant Agreement, modify rates, limits, charges and fees, or modify the amount or type of services provided to Merchant sill of which may increase the Guarantor's obligations under this Guaranty. Guarantors) further understands that Bank may proceed directly against (Testaments) without first exhausting Batik's remedies against the Merchant, any other person or entity responsible to Bank or any security held by Bank. This Guaranty is a continuing guaranty mid will not be discharged or affected by the release or discharge of Merchant or the death of the Gaamntorts). This Guaranty will bind all heirs, administrators, and representatives of the Guarantor's) and may be enforced by or for the benefit of any successor of Bank. To the fullest extent permissible under applicable law, Guarantors) waives any and all rights of subrogation, reimbursement or indemnity derived from Merchant, all other rights and defenses available to Merchant, and all other rights and defenses available to Gu tramons). P., 7 ol'] UM1I VtvIGRAGivIT v 10.100 NOTE: 4/18/14 PER CAO, J. SANDOVAL THE 3/18/14 COUNCIL ACTION SUPERCEDES THE 1/7/14 APPROVAL OF THIS AGREEMENT- DEPT. RESUBMITTED ITEM FOR COUNCIL APPROVAL TO INCLUDE ADDITIONAL INFO ON AGREEMENT ON 3/18/14 (RT) ACC)RhP CERTIFICATE OF LIABILITY INSURANCE 12/31/2015 DATE (MMrDDfYYYY) 1 6/23 /2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE, DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED', the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER LDckton Insurance Brokers, LL'C NAME CT PHONE FAX (A/C, Ne : CA License #0F1 5767 Center, Ernbarcadero enter, Suite 1700 San Francisco CA 94111 E -MAIL ADDRESS: X C COMMERCIAL GENERAL LIABILITY N (415) 568-4000 INSURERS AFFORDING COVERAGE NAM # INSURER A: National Fire Insurance Co Of Hartford 20478 EACH OCCURRENCE INSURED TransFirst Group Holdings, . Inc. INSURER .B: The ntin' ntal In rangg CQnil2any_ 52 INSURER C: 1391467 5400 LBJ Freeway, Suite 900 INSURER D: Dallas TX 75240 INSURER E: _.1.5 ryn INSURER F COVERAGE$ TRAGROI CERTIFICATE NUMBER: 135451 84 REVISION NUMBER: XXXXXXX THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER D'OCUM'ENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR T TYPE OF INSURANCE A ADD S SUBR P POLICY NUMBER. M POL[CY' EFF P POLICY EXP A X X C COMMERCIAL GENERAL LIABILITY N N N N 6 6016715612 1 12/3112014 1 12131/2015 E EACH OCCURRENCE --_. - - CLAIMS -MADE X OCCUR P PREMISESO CeJ (Eaoccurren e ME EXP Any one person) _ _.1.5 ryn 13545184 !City of Santa Ana. 20 Civic Plaza Santa Ana CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CC I rights reserved. ACORD 25 (2094101) The ACORD name and logo are registered marks of ACORD THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ DrCAREFULLY. TECHNOLOGY GENERAL LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Coverage afforded under this extension of coverage endorsement does not apply to any person or organization covered aaan additional insured mn any other ondnryemmrtnoworhereafterettaubadtothio Coverage Part. t ADDITIONAL INSURED —BLANKET VENDORS WHO IS AN INSURED (Section O) is amended 10 include sman additional insured any person or organization (referred tm below as vendor) with whom you agreed, because ofo written contract mr ,agreement to provide insurance, but only with respect tV "bodily injury" or "property damage" arising out cf"ynur products" which are distributed or sold in the regular course of the vendor's business, subject to the foOmwingadditional exclusions: 1. The insurance afforded the vendor does not apply to: m. "Bodily hnjuryror "property damage" for which the vendor ha obligated topay damages by reason ofthe assumption of flabiUtyin a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have inthe absence of the contract ormgreenoent; b. Any express warranty unauthorized by you; c. Any physical or chemical change inthe product made intentionally by the vendor; d. Repmokmg|ng, except when unpacked solely for the purpose nfinspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged |nthe original container; o. Any failure &o make such inspections, adjustments, tests mr servicing osthe vendor has agreed 0m make mrnormally undertakes tn make im the usual course of business, in connection with the distribution nr sale cf the products; f. Demonstration, installation, servicing or repair operations, except such operations performed m1 the vendor's premises in connection with the sale of the product; g. Products vvh|oh, after distribution mrsale by you, have been labeled or G-1:44294-C99 (Ed, 12106) Attachment Code: D504371 CcoUcuteID: 13545184 relabeled or used mme container, part or ingredient of any other thing orsubstance byor for the vendor; or h. "Bodily injury°or "property damage" arising out of the sole negligence ofthe vendor for its own acts or omissions or those of its employees nr anyone else acting on its, behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d.nrt|or (2) Such inspections, adjustments, tests or servicing aa the vendor has agreed to make Vr normally undertakes to make in the usual course o[ business, im connection with the distribution or sale mf the products. 2. This insurance does not apply to any insured person ur organization, from whom you have acquired such ppodoots, or any ingredient, part or container, entering into, accompanying nr containing such products. 3. This provision 1. does not apply boany vendor included aman insured byanendorsement issued byuc and made a part of this Coverage, Part. 4. This provision 1. does not apply if"bodily injury" or "property damage" included within the "pnodwnte-comp|e1ed operations hazard" im excluded either by the, provisions of the Coverage Part orbyendorsement. 2. MISCELLANEOUS ADDITIONAL INSUREDS WHO IS AN |WGUFlED (Section |U) is amended &z include auan insured any person ororganization (called additional insured) described inparagraphs 2.a. through 2.h. below whom you are required to add oemn additional insured on this policy under a written contract or agreement but the written contract or agreement must be: 1. Currently in effect or becoming effective during the term pfthis policy; and 2. Executed prior to the "bodily irUury'" "property damage" or "personal injury and advertising injury," but only the following Page 1m,6 ` � / ' / 7.�~~/c� k7-�/ persons or organizations are additional insureds under this endorsement and coverage provided ko such additional insureds |e limited aa provided herein: a- Additional Insured — "Your Work" That person mr organization for whom you dowork is an additional insured solely for liability due to your negligence specifically resulting from "your work" for the additional insured which is the subject cf the written contract nr written agreement. Wo coverage applies tnHabi|ity resulting from the soYe negligence mfthe additional insured. The insurance provided to the additional insured ia limited oafollows: (1) The Limits nf Insurance applicable tnthe additional insured are those specified in the written contract or written agreement or|nthe Declarations ofthis policy, whichever ioless. These Limits mf Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. (2) The coverage, provided to the additional insured by this paragraph. 2.a.^ does not apply to"bodily injury" nr "property damage" arising out ofthe "products completed operations hozard^unless: (a) It im required by the written contract orwritten agreement; and (h) "Bodily injury" or"prmpertydmmaQe"imc8uded within the "produots-oomp{eted operations hazard" is not excluded either by the provisions of the Coverage Part orbyendorsement. (3) The insurance provided tn the additional insured does not apply tu "bodily injury'°"property damage," nr "personal and advertising injury"arising out mf the rendering or failure to render any professional services, b. State orPolitical Subdivisions A state or political subdivision subject to the following provisions: G-144294-C99 (Ed, 12/06) Attachment Code: D504371 Certificate ID: 13545184 (i) This insurance applies only with respect to the following hazards for which the state nrpolitical subdivision has issued a permit in connection vvRh premises you own, rent, ur control and to which this, insurance applies: (a) The existence, maintenance, repair, construction, ereofion.or removal ofadvertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, ho[s\awayopenin0m, sidewalk vaults, street banners, or decorations and alrnQor exposures; or (b) The construction, erection, or removal of elevators; or (2) This insurance applies only with respect 0m operations performed by you mron your behalf for which the state or political subdivision has issued permit. This insurance does not apply tm "bodily injury," "property damage" or"pemsona| and advertising injury" arising out of operations performed for the state mrmunicipality. c. Controlling Interest Any persons or organizations with, ocontrolling interest in you but only with respect to their liability arising out of: (1) Their financial control of you; or (2) Premises they own, maintain mr control while you lease nr occupy these premises. This insurance does not apply tostructural alterations, new construction and demolition operations performed by or for such additional insured. d. Managers or Lessors ofPremises A manager or lessor cf premises but only with respect to liability arising out nf the ownership, maintenance oruse of that specific part of the premises leased toyou and subject tm the following additional exclusions: This insurance does not apply to: (1) Any "ocnurrenoe° which takes place after you cease toboe tenant in that premises; or Page z"fo � XM (2) Structural mdereboms.omwoonatructionmr demolition operations performed byaron behalf ofsuch additional insured. a. Mortgagee, Assignee orReceiver A mortgagee, assignee or receiver but only with respect bo their liability ee mortgagee, assignee, mr receiver and arising out of the ownership, maintenance, oruse ofm premises byyou. This insurance does not apply tostructural alterations, new construction ordemolition operations performed by mr for such additional insured. f. Owners/Other Interests — Land |sLeased Am owner mr other interest from whom land has been leased by you but only with respect to liability arising out mf the ownership, maintenance mr use of that specific part uf the land leased tp you and subject to the following additional exclusions: This insurance does not apply to: (i) Any °oucurrenoo" which takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed byoron behalf ofsuch additional insured. g. Co-owner mf Insured Pnanmisms A co-owner ofm premises co-owned by you and covered under this insurance but only with respect to the co-owners liability as co-owner ofsuch premises. b. Lessor mfEquipment Any person or organization from whom you lease equipment. Such person or organization are insureds only with respect to their liability arising out of the maintenance, operation or use by you of equipment leased tu you by such person or organization. /4person's or organization's status mamn insured under this endorsement ends when their written contract or agreement with you for such leased equipment ends. With respect to the insurance afforded these additional insureds, the following additional exo|onionsappIy: This insurance does not apply: G-144294-C99 (Ed. 12/06) Auuobmeu Code: D504371 Certificate ID: 13545184 (1)Tm any 1ouuumence~ which takes place after the equipment lease expires: or (2) To "bodily |njury.^ "property damago,"mr "personal and advertising injury" arising out ufthe sole negligence mf such additional insured. Any insurance provided kzan additional insured designated under paragraphs b. through h.above does not apply to "bodily injury" or"property damnege" included within the "prod ucts-cumnp|et d operations hazard." Aa respects the coverage provided under this endorsement, Paragraph 4.b. SECTION |\/— COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted and replaced with the following: 4. Other Insurance b. Excess Insurance This insurance is excess over: Any other insurance naming the additional insured aman insured whether primary, excess, contingent orom any other basis unless a written contract or agreement specifically requires that this insurance beeither primary mr primary and noncontributing. Where required by written contract mragreement, wo will consider any other insurance maintained by the additional insured for injury mr damage covered by this endorsement hn be excess and noncontributing with this insurance. 3. NEWLY FORMED ORACQUIRED ORGANIZATIONS Paragraph 3.o.rf Section ]|— Who Ns An Insured is deleted and replaced by the following: Coverage under this provision is afforded only until the end of the policy period ur the next anniversary of this policy's effective date after you acquire ar form the organization, whichever ioearlier. 4. JOINT VENTURES /PARTNERSH|P/LIMITED LIABILITY COMPANY COVERAGE A. The fo[|owingin added to Section U— Who |s An Insured., 4. You, are en insured when you had mn interest im a joint venture, partnership or limited liability company which terminated or ended prior to or during this policy period but only to the extent of your int�emstim such joint venture, partnership or limited Page nn«V r /-� / liability company. This coverage does not a. Prior to the termination date of any joint venture, partnership or limited liability company; mr b. If there ipother valid and collectible insurance purchased specifically to insure the partnmmhip, joint venture or limited liability company, B. The last paragraph of Section|U — VhoIs An Insured is deleted and replaced by the following: Except mm provided in4. above, no person or organization iamn insured with respect 1othe conduct of any current or past partnership, joint venture or limited liability company that ianot shown aom Named Insured |n the Declarations, 5. PARTNERSHIP OR JOINT VENTURES Paragraph 1.b.of Section |1— Who |sAnInsured is deleted and replaced by the following: b.A partnership (including a limited liability padnenship) or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct cf your buoMemo. G.EKDPLOYEESAS|NSUFlEUS — HEALTHCARE SERVICES For other than a physician, paragraph 2.a.(1)(d)of Section ||— Who |m,4n Insured does not apply with respect to professional health care services provided in the course of employment byyou. 7. PROPERTY DAMAGE — PATTERNS, MOLDS AND DIES Paragraphs (2) and (4) of Exclusion j. Damage to Property of SECTION Y— EXCLUSIONS dnnot apply topatterns, molds or dies in the uane, custody or control of the insured if the patterns, molds or dies are not being used toperform operations atthe time of loss. A limit ofinsurance of$25.OQ0 per policy period applies toPROPERTY DAMAGE — PATTERNS, MOLDS AND DIES and iu included within the General Aggregate Limit as described in SECTION III — LIMITS C)F INSURANCE. The insurance afforded by this provision ?.is excess over any valid and collectible property insurance (including any deductible) available to the insured, and the Other Insurance Condition in changed accordingly. 8. BODILY INJURY Section V— Definitions, the definition mf"bodily injury" is changed to read: G-144294-C99 (Ed. 12/06) 4nuo6mco Code: D504371 Certificate TD� 13545184 "Bodily injury" means bodily injury, sickness or disease sustained bya person, including death, humi|iaUmn, ehook, memta8 anguish or mental injury by that person ed any time which results osa consequence uf the bodily injury, sickness or disease. 9. EXPANDED PERSONAL AND ADVERTISING INJURY A. The following is added to Section V — Definitions, the definition of "'personal and advertising in]ury''� h. Discrimination or humiliation that results in injury tm the feelings mr reputation ofo natural person, but only |f such discrimination or humiliation is: (1) Not done intentionally by oraithe direction of: (a) The insured; ur (L) Any "executive offimer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and (2) Not directly or indirectly related tmthe employment, prospective employment, past employment or termination of employment mfany person or persons by any insured. B. Exclusions of Section |— Coverage B— Personal and Advertising injury Liability is amended to include the following: p. Discrimination Relating To Room, Dwelling or Premises Caused by discrimination directly orindirectly related bothe sale, rental, lease ursub-lease or prospective sale, rental, lease or sub-lease ufany room, dwelling mr premises bynrmt the direction of any insured. q. Fines Or Penalties Fines or penalties levied or imposed bya governmental entity because ofdiscrimination. C^ This provision 9. /EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE) does not apply 1n discrimination orhumiliation committed in the states of New York mr Ohio. A|so, EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE does not apply ta policies issued in the states cf New York mr0h|o� D. This provision 9. (EXPANDED PERSON/\L AND ADVERTISING INJURY COVERAGE) Page 4mf0 A P P 110 U E / RM does not apply if Sect|om| — CovarageB — Personal And Advertising Injury Liability is excluded either by the provisions of the Coverage Part nrbyendorsement. 10. MEDICAL PAYMENTS A. Paragraph 7. Medical Expense Limit, of Section III — Limits of Insurance io deleted and replaced by the following: 7. Subject 1o5. above (the Each Occurrence Limd). the Medical Expense Limit iathe most we will pay under Section —|— Coverage C for all medical expenses because nf "bodily injury" auatalnedby any one person. The Medical Expense Limit ie the greater of: (1) $15'800; or (2) The amount shown in the Declarations for K4mdicuil Expense Limit. B. This provision 1W. (Medical Payments) does notopp|yifS*ntionW — CovermgeCONediomU Payments is excluded either bythe provisions of the Coverage Part orbyendorsement. C. Paragraph 1.a.(3)(3) of Section | — CovemageC —K8ediumN Payments,, is replaced by the following: The expenses are �mourred and reported tows within three years of the date of the accident; and 71. SUPPLEMENTARY PAYMENTS A.UnderSecUwn/ — SupplmmnemtaryPaynments —Coverages A and B. Paragraph 1.b., the limit of $25Q shown for the cost of bail bonds ioreplaced by $2,500: B.|n Paragraph 1'.d., the limit of$25,O shown for daily loss of earnings Ko replaced by$1,8D0. 12. PROPERTY DAMAGE —ELEVATORS With respect \o Exclusions of Section |— Coverage A, paragraphs (3),(4) and ($)of Exclusion ]. and Exclusion k.do not apply tothe use of elevators, The, insurance afforded bythis provision 12. is excess over any valid and collectible property insurance (including any deductible) available tu the insured, and the Other Insurance Condition im changed accordingly. 13. LEGAL L|AB|UTY— DAMAGETO PREMISES A. Under Section |— Coverage A— Bodily Injury and Property Damage 2. Exclusions, Exclusion ]. /m replaced by the following. "Property damage" to: G-144294-C99 (Ed. 12/00 Attachment Co&D504371 Certificate JD� 13545184 (1) Property you nwm, rent, or occupy, including any costs or expenses incurred by you, orany other person, organization or entity, for repair, replacement, enhancement, restoration mr maintenance ofsuch property for any reason, inclmdingpr*vmmtionpf injury toa person or damage toamother'oproperty; (2) Premises you sell, give away or abandon, if the '' property damage" arises out of any part ofthose Premises; (3) Property loaned toyou; (4) Personal property im the care, custody orcontrol of the inauped� ' (S) That particular part of real property omwhich you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be rmstmn*d, repaired or replaced because "your work" was incorrectly performed onit� Paragraph (2)ofthis exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (1),(3) and (4)of this exclusion donot apply to"pnopeTty damage" (other than damage by fire, lightning, explosion, smoke, or leakage from automatic fire protective systems) to premises including the contents uf such premises, rented tm you for a period nf7nr fewer consecutive days. A separate limit Vf insurance applies \o Damage Tn Premises Rented To You au described |mSection III ~ Limits OfInsurance. Paragraphs (3)'(4).(5) and (0)pf this exclusion do not apply to liability assumed under osidetrack agreement, Paragraph (G) of this exclusion does not apply to ^ property damage" included in the ''prnducts- uonmp|e1edoponatiomohazend.^' B. Under Section [— Coverage A— Bodily Injury and Property Damage the last paragraph of2. Exclusions irdeleted and nap|ored by the Page 5u«V APPROYED � �~*r/�/�( l �fp �, u, �C� 1 ' ��/ // CMA Exclusions u. through n.do not apply ho damage by 15. NON-OWNED AIRCRAFT five. |iQhtning, axpioaion, smoke, or leakage from Exclusion 2.Q. of Section | - Cummroym 4-Bodily automatic fire protective systems to premises while Injury and Property Damage, does not apply 8u rented to you or temporarily occupied by you with on aircraft you do not own, provided that� permission of the owner. Y. The pilot im command' holds a currently effective A separate limit of insurance applies tothis certificate issued by the duly constituted authority coverage om described in Section Ill - Limits [>f of the United States of America orCanada, Insurance, designating that C. Paragraph 6. Damage Tm Premises Rented To person aaa commercial nr airline transport piiot� You Limit ofSection III -Limits Of Insurance is 2. It is rented with atmained. paid crew; and replaced by the following: 3. It does not transport persons or cargo for a 6. Subject toS. above, the Damage TmPremises charge. Rented To You Limit is the most vve will pay under 16. BROAD KNOWLEDGE OF OCCURRENCE Coverage A for damages because cf"property You must give usur our authorized representative damage" 10 any one notice ofan"oocunence.^' offense, claim, or~suit' premises while rented tm you orin the case nf only when the ''occurremoe.^ offense, claim nr"owit" damage by fire. |ightming, esp|omiom, smoke, or is known to : leakage from automatic fire protective systems, (1) You, if you are mnindividwa|� while rented tn you or (2)Apartner, if you are apartnership; temporarily occupied by you with the permission of (3)Anexecutive officer orthe employee the owner. The Damage To Premises Rented To designated by you to give such notice, if you are a You Limit io the greater of� corporation; or o.$b8O.ODO;or (4)A manager, if you are a limited liability b. The Damage ToPremises Rented To You Limit company. shown |n the Declarations. 17. NOTICE OFOCCURRENCE D. Paragraph 4.b.(1)(b)of Section |V- The following is added to paragraph 2.ofSection Commercial General Liability Conditions is UV - Comnmevc[a| General Liability Conditions - deleted and replaced by the following: Duties in The Event of Occurrence, Offense (b) That io property insurance for pmsm�aesrented Claim nrSuit: to you on temporarily occupied by you with the Your rights under this Coverage Part will not be permission ofthe prejudiced if you feHto give ua notice nfam mmner�or ^000urrenoe,,' offense, claim or"muit° and that E. This provision 13. (LEGAL LIABILITY - failure im solely due 0m your reasonable belief that DAMAGE TC) PREMISES) does not apply if the "bodily injury" or "property damage" [anot Damage To Premises Rented To You Liability covered under this Coverage Part. However, you underSwot|on( - Cmvenuge Ais excluded either shall give written notice of this ''000urnsnoe," by the provisions of the Coverage Part nrby offense, claim Vr'suit"toouaa soon an you are endorsement. aware that this insurance may apply tosuch 14. NON-OWNED WATERCRAFT' "onounenoe^" offense claim or''ouiL" Under Section |- Coverage A- Bodily Injury and 1B. UNINTENTIONAL FAILURE TO DISCLOSE Property Damage, Exclusion %g, subparagraph (2)ia HAZARDS deleted and replaced by the fm|iom|ng. (2)A watercraft you do not own that is: Based om our reliance nm your representations aetoexisting (u) Less than 55 feet long; and hazards, ifunintentiona|Iy you should fail k, disclose all such hazards ot the inception date of your policy, wo will not deny <N Not ba�mQ used tu carry persons or property for mcharge coverage under this Coverage Part because nf such failure. 19. EXPECTED, OR INTENDED INJURY Exclusion a. of Section I - Coverage A - Bodily Injury and Property Damage Liability is replaced by the following: a.^enm/y injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not appty to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property, 2D. LIBERALIZATION CLAUSE If we adopt a change in our forms or rules which would broaden coverage provided under this endorsement without an: additIonal premium charge, your policy will automaticafly provide the additional coverages as of the date the revision is effective m your state. m-114294-C9e(cu.12m6) Page onro APPROONED Attachment Code: -50437I Certificate 135*51** /u� VMS] 10-11M This endorsement modifies insurance provided under the following: C01VIMERCIAL GENERAL LIABILITY COV, 1.211AGE PART Coverage afforded under this extension of coverage endorsement does neat apply to any person or organization covered as an adclitional insured on any other endorsement now or hereafter attached to this Coverage Part, L ADDITIONAL INSURED — BLANKET VENDORS WHO IS AN INSURED (Section II) is amended to include as an additional insured any person or organization (referred to below as vendor) with whom you agreed, because of q,,vritten contract of agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "'your products" which are distributed or sold in the regular course of the vendor's business, subpect to the following additional exclusions: 1. '1"l -re insurance afforded the vendor does not apply to. a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a, contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b, Any express warranty unauthorized by you; c. Any physical or chcr.rucal change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of part,,, under instructions from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demons tration, installation, servicing or repair operations, except such operations performed at the vendor's 1.-)remises in connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or G-144294-C'99 iEd. 12/06) MM persons or organizations are additional insureds under this endorsement and coverage provided to such additional insureds is limited as provided herein: a. Additional Insured — "Your Work" That person or organization for whom you do work is an additional insured solely for liability due. to your negligence Attachment Code: D504371 Certificate ID - 13545184 relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage"' arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions, contained in Stibparagraphs d, or f; or. (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or fiori-naUy undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2, This insurance does not ;apply to any insured person or organization, from whom you have acquired such products, or arty ingredient, part or contwiner, entering into, accompanying or containing such products. 3. This provision 1. does not apply to any vendor included as an insured by an endorsement issued by wand made a part of this Coverage Part. 4. This provision 1. does not apply if "bodily injury"' or "property darriage" included within the "products- completed operations hazard" is excluded either by the provisions of the Coverage Part or by endorsement. 2. MISCELLANEOUSA.DDITIONAL INSUREDS WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization (called additional insured) described in paragraphs 2.a, through 2.h. below whom you are required to add as an additional insured on this policy under a written contract or agreement but the written contract or agreement must be; 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the "bodily injury," "property damage" or "personal injury and advertising injury,"' but only the following Page 1 (.) f 6 (1) This insurance applies only with respect to the following hazards for which the state or political subdivision has issued a Permit in connection with premises you own, rent, or control and to which this insurance applies: (a)The existence, maintenance, repair, construction, f fi7 IM", APPRONA ED �� °� � �� ,, , �" ���"�,�" � � r "r ��, ° Asa, llle",' ( c_ rx/// Specifically resulting frorn "your work" for the additional insured which is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured. The insurance provided to the additional irisured is limited as follovrs; (1) The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreerrient or in the Declarations of this policy, whichever is less. 'These hese Limits of Insurance are inclusive of, nand not in addition to, the Limits Of Insurance shown in the Declarations. (2) The coverage provided to the additional insured by this paragraph. 2.a,, does not apply to "hodily injury" or "property damage" arising out of the "products completed operations hazard" unless: (a) It is required by the written contract or written agreement; and (b) "Bodily injury" or "property damage" included within the "products-completed operations hazard" is not excluded either by the provisions of the Coverage Part or by endorsernent. (3) The insurance Provided to the additional insured does not apply to " "bodily injury,"' "property damage," o "personal and advertising injury" arising out of the r g I rendering or failure to render any professional services, b. State or Political Subdivisions A state or political subdivision subject to the following provisions; G-144294-(-,99 (Ed. 12/06) MW (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. e. Mortgagee, Assignee or Receiver .A mortgagee, assignee or receiver but only with respect to their liability as mortgagee, assignee, or receiver and ,arising out: of the ownership, maintenance, or use of a preinises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. f Owners/Other Interests — Land is Leased Attachment Code : D504371 Certificate ID : 13545 184 erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or (b) The construction, erection, or rernoval of elevators; or (2) This insurance applies only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. This insurance does not apply to "bodily injury," "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality. c. Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of, (1) Their financial control of you; or (2) Premises they own, maintain or control while you lease or occupy these premises. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for such additional insured. d. Managers or Lessors of Premises A manager or lessor of premises but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the premises leased to you and subject to the Following additional exclusions: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to lee tenant in that premises; or Papa 2 of 6 (1) To any "occurrence" which takes place after the equipment lease expires; or (2) To "bodily injury," "property damage," or "personal and advertising injury" arising out of the sole negligence of such additional insured, Any insurance provided to in additional insured designated under paragraphs b, through la. above does not apply to "bo&y injury" or "property damage" included within the "products-completed operations hazard." As respects the coverage provided under this endorsement, Paragraph 4.b. SECTION IV — COMMERCIAL GENERAL LIABILITY 1461 AP , 1 _ An owner or other interest from whom land has been teased by you but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the land leased to you and subject to the following additional exclusions: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. g. Co-owner of Insured Premises A co-owner of a premises co-owned by you and covered under this insurance but drily with respect to the co- owners liability as co-owner of such premises. h. Lessor of Equipment Any person or organization from whom you lease equipment. Such person or organization are insureds only with respect to their liability arising out of the maintenance, operation or use by you of equipment ]eased to you by such person or organization. A person's or organization's status as ,in insured under this endorsement ends when their written contract or agreement with you for such leased equipment ends. With respect to the insurance afforded these additional insureds, the following additional exclusions apply: This insurance does not apply: (;- 14,1294. C 99 (I"Id, 12/06) liability company. This coverage does not apply: a. Prior to the termination date of any joint venture, partnership or limited liability company; or b If there is other valid and collectible insurance purchased specifically to insure the partnership, joint venture or limited liability company. B. The last paragraph of Section 11 —Who Is An Insured is deleted and replaced by the following: Except as provided in 4, atxwe, no person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. 5. PARTNERSHIP OR JOINT VENTURES Paragraph I.b. of Section II — Who Is An Insured is deleted anti replaced by the following: b. A partnership (including a limited liability partnership) or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. Attachment Code : D50437 I Certificate ID : 13545184 CONDITIONS is deleted and replaced with the following: 4, Other Insurance b. Excess Insurance: "This insurance is excess over Any other insurance narning the additional insured as an insured whether primary, excess, contingent or on any other basis unless a written contract or agreement specifically requires that this insurance be either primary or primary and noncontributing. Where required by written contract or agreement, we will consider any other insurance maintained by the additional insured for injury or damagc covered by this endorsement to be excess and noncontributing with this insurance. 3. NEWLY FORMED OR ACQUIRED ORGANIZATIONS Paragraph 3.a. of Section II — Who Is An Insured is deleted and replaced by the following: Coverage under this provision is afforded only until. the end of the policy period or the next anniversary of this policy's effective date after you acquire or form the organization, whichever is earlier. 4, JOINT VENTURES / PARTNERSHIP LIMITED LIABILITY COMPANY COVERAGE A. The following is added to Section 1.1 —Who Is AnInsured: 4. You are an insured when you had an interest in joint venture, partnership or limited liability cornp-any which terminated or ended prior to or during this policy period but only to the extent of your interest iri such joint venture, partnership or Innited Page 3 of '6 "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the bodily injury, sickness or disease. 9. EXPANDED PERSONAL AND ADVERTISING INJURY A. The following is added to Section V — Definitions, the definition of "personaland advertising injury": h. Discrinlination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of. (a) The insured; or (b) Any "executive officer," director, stockholder, partner, member or manager (if you are a bruited liability company) of the insured; and (2) Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or persons lay any ipsured. 6, Rl", Ca. EMPLOYEES AS INSUREDS — HEALTH CARE SERVICES For other than a physician, paragraph 1a#)(d) of Section 11 — Who Is An Insured does not apply with respect to professional health care services provided in the course of employment by you. 7. PROPERTY DAMAGE — PATTERNS, MOLDS AND DIES Paragraphs (3) and (4) of Exclusion j. Damage to Property of SECTION I — EXCLUSIONS do not apply to patterns, rnolds or dies in the care, custody or control of the insured if the Patterns, molds or die,", are not being used to perform operation,-, at the time of loss. A limit of insurance of $25,000 per policy period applies to PROPERTY DAMAGE — PATTERNS, MOLDS AND DIES and is included within the General Aggregate Lirnitas described in SECTION III — LIMITS OF INSURANCE. The irisurance afforded by this provision 7, is excess over any valid and collectible property insurance (including any deductible) available to the insured, and the Other Insurance Condition is changed accordingly. 8. BODILY INJURY Section V — Definitions, the definition of "bodily injury" is changed to read: G- 1442944,99 (Ed, 121tiW)) WN, does not apply if Section I — Coverage B — Personal And Advertising Injury Liability is excluded either by the provisions of the Coverage Part or by endorsement. 10�. MEDICAL PAYMENTS A. Paragraph 7. Medical Expense Limit, of Section III — Limits of Insurance is deleted and replaced by the following: 7. Subject to 5. above (the Each Occurrence Limit), the Medical Expense Limit is the most we will pay under Section — I — Coverage C for all medical expenses because of "bodily injury" sustained by any one person. The Medical Expense Limit is the greater of'. (1) $15,000; or (2)'T'he amount shown in the Declarations for Medical Fxpense Limit, & This provision 10. (Medical Payments) does not apply if Section I — Coverage C Medical Payments is excluded either by the provisions of the Coverage Part or by endorsement. C. Paragraph La.(3)(2) of Section I — Coverage C — Medical Payments, is replaced by the following: The expenses are incurred and reported to us within three years of the date of the accident; and 11. SUPPLEMENTARY PAYMENTS A. tJnder Section I — Supplementary Payinents —Coverages A and B, Paragraph 1.b., the limit of$250t Attachment Code : D5�04371 Certificate ID : 13545184 B. Exclusions of Section I — Coverage B — Personal and Advertising Injury Liability is amended to include the Following: p. Discrimination Relating To Room, Dwelling or Premises Caused by discrirrrination directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any insured. q. Fines Or Penalties Fines or penalties levied or imposed by a governmental entity because of discrimination, E. This Provision 9. (EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE) does not apply to discrunination or humiliation cormnitted in the states of New York or Ohio. Y"also, EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE does not apply to policies issued in the states of New York or Ohio. D.17his provision 9. (EXPANDED PERSONAL AND ADVERTISING INJURY COVERAGE) 11,rgn 4 of (1) Property you Own, rent, or occupy, including any costs of expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the ""property damage" arises out of any part of those prernises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly of indirectly on your behalf are performing operations, if the "property damage," arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "'your work" was incorrectly performed on it. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, retired or held for rental by you, Paragraphs (1), (3) and (4) of this exclusion do not apply to "property darriage" (other than damage by Fire, lightning, explosion, smoke, or leakage from automatic fire protective systems) to PrCMiSeS inClUdin& the 1i -7 0" & shown for the cost of bail bonds is replaced by $2,50,0: B. In paragraph l.d,, the limit of $250 shown for daily loss of earnings is replaced by $1,000, 12. PROPERTY DAMAGE — ELEVXrORS With respect to Exclusions of Section I — Coverage A, paragraphs (3), (4) and (6) of Exclusion j. and Exclusion L do not apply to the use of elevators, The insurance afforded by this provision 12, is excess over deny valid and collectible property insurance (including any deductible) available to the insured, and the Other Insurance Condition is changed accordingly, 13. LEGAL LIABILITY — DAMAGE TO PREMISES A. Under Section I — Coverage A — Bodily Injury and Property Darnage 2. Exclusions, Exclusion j. , is replaced by the following. "Property danutge" to; G-1 4112944"99 (Fkl, 12/06) Exclusions c. through n. do not apply to damage by fire, Lightning, explosion, smoke, or leakage from automatic fire protective systems to prernises while rented to you or temporarily occupied by you with permission of the owner. A separate lirnit of insurance applies to this coverage as described in Section III — Limits Of Insurance. C. Paragraph 6. Damage To Premises Rented To You Limit of Section III — Limits Of Insurance is replaced by the following: 6. Subject to 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "p"roperty cl,.unage" to any one premises while rented to you or in the case of damage by fire, lightning, explosion, smoke, or leakage from automatic fire protective systems, while rented to you or temporarily occupied by you with the permission of the owner. The Damage To Premises Rented To You Limit is the greater of: a, $500,000; or It. The Damage To Premises Rented To You Lirnit shown in the Declarations. D. Paragraph 4.b.(1)(b) of Section IV — Commercial General Liability Conditions is deleted and replaced by the following: (b) That is property insurance for premises rented to you or temporarily occupied by you with the permission of the owner; or E. This provision 13, (LEGAL LIABILITY— DAMAGE TO PREMISES) does not apply if Damage To Premises (Rented To You I.,tability under Section I — overage A is excluded either by the provisions of the Coverage Part or by endorsement. 14.1" ON -gyp D WATERCRAFT Attachment Code D504371 Certificate ID : 13545184 such premises, rented to you for a period of 7 or fewer consecutive days. A separate limit of insurinceapphes to Damage To Premises Rented To You as described in Section III — Limits Of Insurance. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under as sidetrackagreenient. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products- completed operations hazard." B, Under Section I — Coverage A — Bodily Injury and Property Damage the last paragraph of 2. Exclusions is deleted and replaced by the following. fair 5 (a f 6 15. NON-OWNED AIRCRAFT Exclusion 2.g. of Section I — Coverage A— Bodily Injury and Property Damage, does not apply to an aircraft you do riot own, provided that: I, The pilot in command holds a currently effective certificate issued by the duly constituted authority of the United States o,f Anicrica or Canada, designating that person as a cominercial or airline transport pilot; 1 It is rented with a trained, paid crew; ,and 1 It does not transport persons or cargo for a charge. 16. BROAD KNOWLEDGE OF OCCURRENCE You Must give us or our authori2ed representative notice of an "occurrence," offense, claim, or "suit"' only when the "occurrence," offense, claim fir "'suit" is known to (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) An executive officer or the employee desig .,nated by you to give such notice, if you are a corporation; or (4) A manager, if you are a limited liability company. 17. NOTICE OF OCCURRENCE The following is added to paragraph 2, of Section IV — Commercial General Liability Conditions — Duties in The Event of Occurrence, Offense Claim or Suit: Your rights under this Coverage Part will not be prejudiced if you fail to give us notice of an " "occurrence, "" offense, claim or "suit" and that failure is solely due to your reasonable belief that the "bodily injury" or "property damage" is not covered under this Coverage Part. I lowever, you shall give written notice of this "occurrence," offense, claim or "suit" to us as soon as you are aware that this insurance may apply to such "occurrence," offense claim or "suit." 18. UNINTENTIONAL, FAILURE TO DISCLOS HAZARDS A P Under Section I — Coverage A — Bodily Injury and Property Kired oo our relistrice on your represeritatlons as to existing hazards, Darriage, Exclusion 2.g., subparagraph (2) is deleted and replaced if"runintermorially you SITOUld fail to disclose all KLJC11 haxards at the by the fiollowl'ng. ince'.1ition, date of your policy, we will not deny coverage under tllss (2) A watercraft YOU do not own that is: Covuiagc part because of'such fRihrwe, (a) Lcss than 55 feet long; and (b) Not being used to carry persons or pr(j)erty for a charge 19. EXPECTED OR wrENDED INJURY Exclusion a. of Sect ion I — Coverage A — Bodily Injury and Property Damage Liability is replaced by the Hlowjng; a. "Bodify injury" or " "prop crty damage" expemd or untended from the standpoint of the insured This cxclusion does nor apply lo "bodily iiijury" or "property darnage" rcsiliting from the use of reasonable force u) protect persons or property 20. LIBMULIZATION CLAUSE If we adopt a changc in our fimns, or rUICs which Would broaden c<o,crsqqe provadcd under this undorsernent without an additional premium chafrc, Your Policy Will 'MM MTKI aiCally provide the additional coverages as of the (late the revision is effective in your state. G, '144294-C99 (HA 12/06) Page 6 of '6 Attachment Code : D504371 Ceftificate ID 13545184 P if) too, 17 Attachment Code : D504371 Ceftificate ID 13545184