Thank you for your interest in Harbortouch. The following items are needed for your account to be approved: • Merchant Info Sheet: Please fill the info sheet out completely. This information is on page 2 of the application, but will be clearer on the info sheet. • Signed Application: Please fill out the highlighted sections of page 2 in section A2, and sign/initial on pages 1, 3, and 4 of the application. If two owners are listed in section A3 (or on info sheet), both owners must sign in sections D5 and D6 on page 4. • Signed Harbortouch Service Agreement (separate document): Please initial at the bottom of page 1 of the agreement and sign in all 3 locations on page 2. If 2 owners are listed, both must sign three times on page 2. • Voided Check or Bank Letter: A business checking account is needed to open your merchant account with United Bank Card. A voided check with the business name printed on it is required. If you do not have printed checks, a letter from the bank will also be accepted. The letter must be on bank letterhead and include the following: o Business name o Bank account # o Bank routing # o Signature of bank official • Two Forms of Business ID: Two forms of business ID are required. A copy of the business license, Articles of Incorporation, liquor license, tax certificate, or utility bill would be acceptable documents. • Recent Processing Statements (EXISTING BUSINESS ONLY): Two months of recent processing statements are required. • Menu (Hospitality/Pizza merchants only): Please include your complete menu. Partial menu will be accepted to get the account approved, but a full menu will be required during the Order Administration process. Please fax or email all required documents to me at 973‐630‐9033 or email them to [email protected]. If you have any questions please give me a call. Joe Froelich Relationship Manager‐ POS Reseller Division Harbortouch 1‐800‐963‐6928 ext. 447 Fax: 973‐630‐9033 [email protected]
Transcript
Thank you for your interest in Harbortouch. The following items are needed for your account to be approved:
• Merchant Info Sheet: Please fill the info sheet out completely. This information is on page 2 of the application, but will be clearer on the info sheet.
• Signed Application: Please fill out the highlighted sections of page 2 in section A2, and sign/initial on pages 1, 3, and 4 of the application. If two owners are listed in section A3 (or on info sheet), both owners must sign in sections D5 and D6 on page 4.
• Signed Harbortouch Service Agreement (separate document): Please initial at the bottom of page 1 of the agreement and sign in all 3 locations on page 2. If 2 owners are listed, both must sign three times on page 2.
• Voided Check or Bank Letter: A business checking account is needed to open your merchant account with United Bank Card. A voided check with the business name printed on it is required. If you do not have printed checks, a letter from the bank will also be accepted. The letter must be on bank letterhead and include the following:
o Business name o Bank account # o Bank routing # o Signature of bank official
• Two Forms of Business ID: Two forms of business ID are required. A copy of the business license, Articles of Incorporation, liquor license, tax certificate, or utility bill would be acceptable documents.
• Recent Processing Statements (EXISTING BUSINESS ONLY): Two months of recent processing statements are required.
• Menu (Hospitality/Pizza merchants only): Please include your complete menu. Partial menu will be accepted to get the account approved, but a full menu will be required during the Order Administration process.
Please fax or email all required documents to me at 973‐630‐9033 or email them to [email protected]. If you have any questions please give me a call.
Do you want to accept American Express? _______ Existing Amex # (if applicable):__________________________
THE FOLLOWING INFO IS USED BY OUR HARBORTOUCH DEPARTMENT WHEN CONTACTING YOU TO COMPLETE YOUR ORDER:
Primary Contact:____________________________________ Best # to reach Primary Contact:________________
Best time to reach Primary Contact:______________ Preferred email address:_____________________________
Secondary Contact:__________________________________ Best # to reach Secondary Contact:______________
Best time to reach Secondary Contact:____________ Preferred email address:_____________________________
The responsibilities listed above do not supercede terms of the Merchant Agreement and are provided to ensure the Merchant understands some important obligations of each party and that the Visa Member (Acquirer) is the ultimate authority should the Merchant have any problems.
First National Bank of Omaha
1620 Dodge Street, Omaha, NE 68197
VISA DISCLOSURE
MERCHANT'S SIGNATURE MERCHANT'S NAME AND TITLEDATE
MEMBER BANK (ACQUIRER) INFORMATION
ACQUIRER NAME:
ACQUIRER ADDRESS:
ACQUIRER PHONE:
IMPORTANT MEMBER BANK (ACQUIRER) RESPONSIBILITIES1. A Visa Member is the only entity approved to extend acceptance of Visa products directly to a Merchant.2. A Visa Member must be a principal (signer) to the Merchant Agreement.3. The Visa Member is responsible for educating Merchants or pertinent Visa Operating Regulations with which
Merchants must comply.4. The Visa Member is responsible for and must provide settlement funds to the Merchant.5. The Visa Member is responsible for all funds held in reserve that are derived from settlement.
MERCHANT INFORMATION
MERCHANT DBA NAME:
MERCHANT ADDRESS:
MERCHANT PHONE:
IMPORTANT MERCHANT RESPONSIBILITIES1. Ensure compliance with cardholder data security and storage requirements.2. Maintain fraud and chargebacks below thresholds.3. Review and understand the terms of the Merchant Agreement.4. Comply with Visa Operating Regulations.
x
(800) 853-9586
M E R C H A N T A P P L I C AT I O N
HARBORTOUCH2202 North Irving StreetAllentown, PA 18109
Tel: 866-563-3045Fax: 908-730-7437
www.harbortouch.com
PAGE 1 OF 4HARBORTOUCH IS A REGISTERED ISO/MSP OF FIRST NATIONAL BANK OF OMAHA, 1620 DODGE ST., OMAHA, NE – FDICMAY11 1969_12132011
H A R B O R T O U C H
jfroelich
Text Box
973-630-9033
jfroelich
Sign Here
NAME OF ACCOUNT (DOING BUSINESS AS)
DBA ADDRESS (IF DIFFERENT FROM LEGAL)
CITY STATE ZIP
CONTACT
EXACT LEGAL NAME
LEGAL ADDRESS
CITY STATE ZIP
FEDERAL TAX I.D. NUMBERTELEPHONE #
WEBSITE ADDRESSMERCHANT E-MAIL ADDRESS (AGENT E-MAIL ADDRESS CANNOT BE ACCEPTED)
MERCHANDISE/SERVICE SOLD
MONTHLY VOLUME AVERAGE TICKET AMOUNT HIGHEST TICKET AMOUNT
HAS MERCHANT OR ANY PRINCIPAL BEEN TERMINATED AS A VISA/MASTERCARD MERCHANT (TMF)?
YEARS IN BUSINESS
LENGTH OF CURRENT OWNERSHIP # OF LOCATIONS
HAS MERCHANT OR ANY PRINCIPAL DISCLOSED BELOW FILED BANKRUPTCY OR BEEN SUBJECT TO ANY INVOLUNTARY BANKRUPTCY?
$ $ $
PERCENT OF BUSINESS
CARD SWIPED
MANUAL KEY WITH IMPRINT
MAIL ORDER/TELEPHONE ORDER
TOTAL
%
%
%
100%
HAS MERCHANT PREVIOUSLY ACCEPTED CREDIT CARDS? YES NO
DOES MERCHANT CONDUCT BUSINESS SEASONALLY?
REFUND POLICY:
LIST ALL APPLICABLE URL'S FOR YOUR WEBSITE: IF E-COMMERCE, DO YOU USE A FULFILLMENT CENTER? YES NOIF YES, PLEASE LIST CONTACT INFORMATION:
DOES YOUR SITE HAVE A SECURE CERTIFICATE? YES NO
YES NO REASON:
PROCESSOR:
YES NO
IF YES, PLEASE PROVIDE COPIES OF MOST RECENT STATEMENT
E-COMMERCE MERCHANTS ONLY
WHEN IS THE CARDHOLDER BILLED FOR PRODUCTS/SERVICES? ON ORDER SHIPMENT
DELIVERY OF PRODUCTS: TIME OF SALE 1-3 DAYS 3-5 DAYS 5-15 DAYS 15 DAYS+
MERCHANT #
SIC CODE FAIR ISAAC SCORE ANALYST
SECTION A — PLEASE COMPLETE MERCHANT'S BUSINESS INFORMATION
PRINCIPAL #1
SOCIAL SECURITY NUMBER
RESIDENCE ADDRESS
TELEPHONE #
CITY STATE ZIP
AGENT NAME
OFFICE PHONE OFFICE CODE ASSOC
FAX #
TYPE OF OWNERSHIP: SOLE PROPRIETOR PARTNERSHIP CORPORATION LLC NON-PROFIT OTHER:
PLEASE CONTACT CUSTOMER SERVICE TO DEACTIVATE ACCOUNT DURING SEASONAL MONTHS
DOES THE BUSINESS USE ANY THIRD PARTIES IN THE PAYMENT PROCESS? YES NOIF YES, PLEASE LIST:
SERVICE PROVIDER:
YES NO REASON:
DATE OF BIRTH SOCIAL SECURITY NUMBER
RESIDENCE ADDRESS
TELEPHONE #
CITY STATE ZIP
DATE OF BIRTH
REP CODE
OFFIC
E U
SE
ON
LY
CONTACT ACCOUNT # TELEPHONE #
TRADE REFERENCE CONTACT ACCOUNT # TELEPHONE #
TRADE REFERENCE
CONTACT BANK LOCAL TELEPHONE #
ROUTING/ABA # DBA/CHECKING ACCOUNT
NAME OF MERCHANT'S BANK
Each merchant certifies that the average ticket size, highest ticket and sales volume indicated is accurate and acknowledges any variance to this information could result in delayed and/or withheld settlement of funds and/or termination of merchant.
MERCHANT INFORMATIONA1
A2 MERCHANT PROFILE
A3% OF EQUITY OWNERSHIP PRINCIPAL #2 % OF EQUITY OWNERSHIP
OWNERS OR OFFICERS
A4 REFERENCES
A5 PLEASE INCLUDE A VOIDED CHECK OR BANK LETTERBANKING INFORMATION
DOES MERCHANT USE A FULFILLMENT HOUSE? YES NO
DETAILED BUSINESS DESCRIPTION:
In accordance with the terms set out in the Terms and Conditions, transfer funds will be made to/from the account set forth in the enclosed voided check or bank letter.
GO GREEN - OPT IN FOR PAPERLESS STATEMENTS (MUST PROVIDE E-MAIL ADDRESS)
COUNTY COUNTY
NEW LOCATION OWNERSHIP CHANGE ADDITIONAL LOCATION
PROMO CODE:
PAGE 2 OF 4HARBORTOUCH IS A REGISTERED ISO/MSP OF FIRST NATIONAL BANK OF OMAHA, 1620 DODGE ST., OMAHA, NE – FDICMAY11
H A R B O R T O U C H
jfroelich
Text Box
Need Voided Check
MERCHANT TYPE: RETAIL RESTAURANT FUEL LODGING MOTO E-COMMERCE SUPERMARKET OTHER
SETUP FEE: $35.00 EACH MONTHLY FEE: $19.95 EACH TRANSACTION FEE: $0.05 EACH
VERIFONE Vx510 TERMINAL
NURIT 2085 TERMINAL
®If yes, the cost is $35.00. Visa/MC/Discover Network regulations require an imprint for non-swipe transactions.
By checking this box and initialing below, the merchant acknowledges that an imprint is required for non-swiped transactions.
YES
NO, DO NOT WANT ONE
SECTION C — PLEASE SELECT OPTIONAL SERVICES
FT PROGRAMC1
C3
HYPERCOM T4210/T4220 TERMINAL
ONLINE GATEWAY & VIRTUAL TERMINAL SERVICE
WIRELESS TERMINALS (PER TERMINAL) WHEN APPLICABLEC4
MANUAL IMPRINTERC6
25.00DDA CHANGE FEE $
SPECIAL PETROLEUM CARD TYPES (WRIGHT EXPRESS SETUP REQUIRES ADDITIONAL PAPERWORK. A $25.00 SETUP FEE PER LOCATION, PER SPECIAL CARD TYPE WILL BE ASSESSED)
25.00
NURIT 8020 WIRELESS TERMINAL
CHECK ONE FOR AMERICAN EXPRESS:RETAIL $0.10 TRANS FEE + 0.30% CNP DOWNGRADESERVICES, WHOLESALE + ALL OTHER $0.15 Trans Fee
0.35
MERCHANT'S INITIALS: _________
MEMBERSHIP ENROLLMENT
MEMBERSHIP PROGRAMA membership fee of $79.00 per merchant number is billed within 30 to 60 days after this application has been approved and is debited directly from merchant's designated account. The membership covers notification and postage expenses plus account maintenance. Merchants participating in the FT Program (C1) are required to have a membership fee.
CURRENT SERVICE PROVIDER CURRENT RATE CURRENT MONTHLY CHECK SALES TOTAL MONTHLY CHECK LOSSES
$ $
PLEASE SELECT CHECK CONVERSION PLUS OR STANDARD CHECK SERVICE (SEE TERMS AND CONDITIONS FOR DETAILS. CHECK IMAGER REQUIRED.)
CHECK CONVERSION PLUS (MAXIMUM APPROVAL LIMIT OF $1,000.00) STANDARD CHECK SERVICE (MAXIMUM APPROVAL LIMIT OF $1,000.00)
C8
C9
VISA CREDIT
VISA DEBIT
MASTERCARD CREDIT
MASTERCARD DEBIT
®DISCOVER NETWORK CREDIT ®DISCOVER NETWORK DEBIT
AMERICAN EXPRESS
VOYAGER
EBT
All card types will be applied for unless otherwise instructed.
WRIGHT EXPRESS
DEBIT
B1 REQUESTED CARD TYPES
®Please review the Rate Descriptions in your Terms and Conditions for additional information on which interchange programs qualify as Visa Rewards, Visa Signature and MasterCard World, MasterCard Enhanced and Discover Network premium cards.
EACH
EACHEACH
EACH
EACH
EACH
EACHEACH
NURIT 8320 TERMINAL
HYPERCOM T7PLUS TERMINAL NURIT 8500X TERMINAL
35
ECR PROGRAMC2
RDM CHECK IMAGER
CASIO TK 1550 CASIO TE I500
Please refer to the complete Terms & Conditions provided by your sales representative.
SHIPPING (PER REGISTER ): GROUND $25.00 2ND DAY AIR $51.50 NEXT DAY AIR $76.95
E-MAIL ADDRESS:
Merchants participating in the ECR Program will receive one (1) ECR with integrated processing. For the first ECR, merchant is required to have UBC's standard annual fee of $79.00. After the first ECR, merchant will be required to have an annual fee of $79.00 for each additional ECR plus a Rental Fee for each additional ECR. The annual fee covers replacement of defective cash registers. Shipping charges are applicable for every shipment of an ECR (initial or replacement). Some merchants may be accepted into the ECR Program with a Security Fee to cover amounts owed at the termination of the Agreement. Please see terms & conditions for details.
MONTHLY RENTAL FEE (PER ADD'L REGISTER): $ NUMBER OF REGISTERS:
(Do not fill out if selling/leasing ECR, complete account setup form only)
Online reporting through the Interactive Merchant System (IMS) is provided free of charge with your merchant account. The IMS provides online access to daily transaction history, settlements, deposits, fees, charge-backs, and end of month statements.
Harbortouch's paper and supplies program allows you to obtain a reasonable amount of processing supplies including printer paper and ribbons. This program is free for a 60 day trial period – thereafter at $12.95 per month. For Harbortouch merchants, it is $12.95 per month per system.
PAPER & SUPPLIES PROGRAM
FREE
60 DAY FREE TRIAL
TRANSACTION FEE:
CHARGE ANYWHERE MOBILE SOLUTIONSC5
MONTHLY FEE: $0.04 $5.00
®CHARGE ANYWHERE PLUG-INC7®Designed for use with QuickBooks
MONTHLY FEE: TRANSACTION FEE: ® ®*Intuit , the Intuit logo, and QuickBooks , among others, are registered trademarks and/or service marks of Intuit Inc. in the United
States and other countries. Harbortouch is in no way affiliated with nor sponsored or endorsed by Intuit.
$5.00 $0.03
CREDIT: INTERCHANGE, DUES & ASSESSMENTS + % + ¢
DEBIT: INTERCHANGE, DUES & ASSESSMENTS + % + ¢
PAGE 3 OF 4HARBORTOUCH IS A REGISTERED ISO/MSP OF FIRST NATIONAL BANK OF OMAHA, 1620 DODGE ST., OMAHA, NE – FDICMAY11
jfroelich
Initial Here
LOWER 48 STATES: SHIPPING (PER BASE PACKAGE): GROUND - $25.00 2ND DAY AIR - $51.50 NEXT DAY AIR - $76.95
SECTION C (CONTINUED) — PLEASE SELECT OPTIONAL SERVICES
HARBORTOUCH POS SYSTEMS
YES! PLEASE ENROLL ME IN UNITED BANK CARD'S GIFT CARD PROGRAM AND SEND ME 50 FREE CUSTOM GIFT CARDS
By choosing this option, I understand that I will be enrolled in a 60 day trial gift card program and will receive 50 free customized gift cards, 50 gift card sleeves with envelopes, a window decal, an acrylic display stand with insert and two register decals. Merchant will receive an email with a link to customize and order their 50 free cards using the online wizard.
FREE GIFT CARD ENROLLMENTC10
FNBO is authorized to perform such functions under the Terms and Conditions, for the purposes set forth in the Terms and Conditions.
AGREED AND ACCEPTED
PRINCIPAL#1 FROM APPLICATION — SIGNATURE DATE PRINCIPAL#2 FROM APPLICATION — SIGNATUREx
PRINT NAME PRINT NAME
MERCHANT LEGAL NAME:
DATE
In witness whereof the parties hereto have caused this agreement to be executed by their duly authorized representatives effective on the date signed or approved by FNBO.
PRINT LEGAL NAME OF MERCHANT BUSINESS
x
PRINCIPAL#1 FROM APPLICATION — SIGNATURE DATE PRINCIPAL#2 FROM APPLICATION — SIGNATUREx
PRINT NAME PRINT NAME
DATEx
TITLE TITLE
ACCEPTED BY FIRST NATIONAL BANK OF OMAHAx
ACCEPTED BY HARBORTOUCHx
MERCHANT LOCATION: RETAIL LOCATION WITH STOREFRONT OFFICE BUILDING RESIDENCE OTHER:
SQUARE FOOTAGE: 0-250 251-500 501-2000 2000+
DOES THE AMOUNT OF INVENTORY AND MERCHANDISE ON SHELVES APPEAR TO BE CONSISTENT WITH THE TYPE OF BUSINESS? YES NO
THE MERCHANT: OWNS LEASES THE BUSINESS PREMISES
WHOM DOES THE MERCHANT LEASE FROM? (NAME & TELEPHONE #)
FURTHER COMMENTS BY INSPECTOR (MUST BE COMPLETED):
AGENT NAME (PLEASE PRINT)AGENT SIGNATURE SALES REP ID DATE
PHOTOS ATTACHED? YES NO
I hereby verify that this application has been fully completed by merchant and that I physically inspected the business premises of the merchant at this address and the information stated above is true and correct to the best of my knowledge and belief. Any misrepresentation may result in losses and/or liabilities.
x
SECTION D — PLEASE REVIEW AND COMPLETE WITH SIGNATURES
AMERICAN EXPRESSD1
DISCLAIMERD2
FUNDS TRANSFER AUTHORIZATION D3
SITE SURVEY REPORT (TO BE COMPLETED BY SALES REPRESENTATIVE)D4
D5 PERSONAL GUARANTY (NO TITLES)
D6 SIGNATURES
SPECIAL INSTRUCTIONS (MAY REQUIRE APPROVAL):
MERCHANT has indicated above which additional optional services it is requesting. MERCHANT agrees that FNBO is not a party to any agreement for the optional services and any such agreement is strictly between MERCHANT and the company providing the service. MERCHANT must be approved by each company and each company may send its terms and conditions to the address of MERCHANT indicated herein upon such approval. MERCHANT agrees to be bound by such company’s terms and conditions. Depending upon MERCHANT'S authorization and settlement composition, MERCHANT may not have a direct agreement with Discover Network and instead will receive Discover Network services through this agreement with FNBO. If that is the circumstance, the portion of this disclosure pertaining to Discover Network does not apply.
By signing below, I represent that I have read and am authorized to sign and submit this application on behalf of the entity above and all information I have provided herein is true, complete, and accurate. I authorize American Express Travel Related Services Company, Inc. (“American Express”) to verify the information in this application and receive and exchange information about me personally, including by requesting reports from consumer reporting agencies. I authorize and direct American Express to inform me directly, or through the entity above, of reports about me that American Express has requested from consumer reporting agencies. Such information will include the name and address of the agency furnishing the report. I understand that upon American Express' approval of the entity indicated above to accept the American Express Card, the terms and conditions for American Express® Card Acceptance (“Terms and Conditions”) will be sent to such entity along with a Welcome Letter. By accepting the American Express Card for the purchase of goods and/or services, or otherwise indicating its intention to be bound, the entity agrees to be bound by the Terms and Conditions.
C11
BY THEIR EXECUTION BELOW, THE UNDERSIGNED PARTIES AGREE TO ABIDE BY THE MERCHANT TRANSACTION PROCESSING AGREEMENT (THE “AGREEMENT”). THE AGREEMENT CONSISTS OF THE MERCHANT APPLICATION AND THE TERMS AND CONDITIONS (A SEPARATE ATTACHMENT HERETO), AND MERCHANT ACKNOWLEDGES RECEIPT OF THE TERMS AND CONDITIONS AT THE TIME OF SIGNING. MERCHANT WARRANTS THAT THE INFORMATION PROVIDED ON THE APPLICATION IS COMPLETE AND ACCURATE. MERCHANT AUTHORIZES FNBO TO PROVIDE A COPY OF THEIR APPLICATION TO ANY THIRD PARTY FOR THE SERVICES REQUESTED. MERCHANT, AND ITS SIGNING OFFICER/OWNER/PARTNER, AUTHORIZE FNBO, OR ITS AGENTS OR ASSIGNS TO MAKE, FROM TIME TO TIME ANY BUSINESS AND PERSONAL CREDIT AND OTHER INQUIRIES. DEPENDING UPON MERCHANT'S AUTHORIZATION AND SETTLEMENT COMPOSITION, THE REFERENCES TO DISCOVER NETWORK IN THIS AGREEMENT MAY NOT APPLY, AND MERCHANT MAY CONTRACT DIRECTLY WITH DISCOVER NETWORK FOR THESE SERVICES.”
If the AGREEMENT is terminated early during the INITIAL TERM or any RENEWAL TERM for any reason other than set out in paragraph 5.1, 5.2.A or 5.2.B, MERCHANT agrees to pay United Bank Card an early termination fee ("EARLY TERMINATION FEE") of two hundred fifty dollars ($250) or thirty five dollars ($35) multiplied by the number of months remaining in the merchant agreement (whichever is greater) per Merchant Identification Number ("MID"). MERCHANT agrees that this fee is not a penalty, but rather a reasonable estimation of the actual damages United Bank Card would suffer if United Bank Card were to fail the receive the processing business for the then current term. MERCHANT agrees that the EARLY TERMINATION FEE shall also be due to United Bank Card if MERCHANT discontinues submitting SALES for procesing during the INITIAL TERM or any RENEWAL TERM of the AGREEMENT. Paragraph references and capitalized terms not defined in this paragraph are defined in the Terms and Conditions. Designated Cancellation Forms must be faxed to United Bank Card.
This general, absolute, and unconditional continuing Guaranty ("GUARANTY") by the undersigned (collectively "GUARANTOR" or "my" or "I' or "me"), is for the benefit of First National Bank of Omaha and SPC Inc. (collectively referred to as "FNBO"). For value received, and in consideration of the mutual undertakings contained in the Merchant Transaction Processing Agreement and allied agreements ("AGREEMENT") between FNBO and ("MERCHANT") as set forth below, I absolutely and unconditionally guarantee the full performance of all MERCHANT's obligations to FNBO, together with all costs, expenses, and attorneys' fees incurred by FNBO in connection with any actions, inactions, or defaults of MERCHANT with respect to this AGREEMENT or any other AGREEMENT currently in effect or in the future entered into between MERCHANT or its principals and any of the PARTIES. I waive any right to require FNBO to proceed against other entities or MERCHANT. There are no conditions attached to the enforcement of this GUARANTY. I authorize FNBO, its agents or assigns to make from time to time any personal credit or other inquiries and agree to provide, at FNBO's request, financial statements and/or tax returns. I agree that this GUARANTY shall be governed and construed in accordance with the laws of the state of Nebraska, and that the courts of the state of Nebraska shall have and be vested with personal jurisdiction over me. This is a continuing GUARANTY and shall remain in effect until one hundred eighty (180) days after receipt by FNBO of written notice by me terminating or modifying the same. The termination of the AGREEMENT or GUARANTY shall not release me from liability with respect to any obligations incurred before the effective date of termination. No termination of this GUARANTY shall be effected by any change in my legal status or any change in the relationship between MERCHANT and me. This GUARANTY shall bind and inure to the benefit of the personal representatives, heirs, administrators, successors and assigns of GUARANTOR and FNBO.
During the 60 Day Trial, merchant will pay no monthly fees or cost for the 50 Free Gift Card Package or the service. After the 60 day trial, merchant will be assessed a monthly gift card service fee of $9.95. A per-item fee of $0.15 will apply for each gift card transaction, inquiry attempt, activation or decline. For multiple locations, the main location will be billed the monthly and transaction fees for all linked accounts.
GIFT CARDS WILL APPLY TO MULTIPLE LOCATIONS ADDRESS OF MAIN LOCATION:
Harbortouch Account Setup Form and signed Service Agreement are required to establish a Harbortouch POS account. Service Agreement lists monthly equipment service fees. A $59.00 quarterly software support fee also applies per POS system.Shipping charges will be assessed on the first monthly statement after account approval. Additional equipment may incur additional shipping charges.
SHIPPING (PER ADDITIONAL ACCESSORY): GROUND - $11.00 2ND DAY AIR - $26.00 NEXT DAY AIR - $39.00
ALASKA & HAWAII: SHIPPING (PER BASE PACKAGE): GROUND - $115.00 2ND DAY AIR - $139.00
SHIPPING (PER ADDITIONAL ACCESSORY): GROUND - $57.00 2ND DAY AIR - $75.00
PAGE 4 OF 4HARBORTOUCH IS A REGISTERED ISO/MSP OF FIRST NATIONAL BANK OF OMAHA, 1620 DODGE ST., OMAHA, NE – FDICMAY11
jfroelich
Sign Here
jfroelich
Sign Here
Wayne
Stamp
EXHIBIT AMERCHANT NAME (“Merchant”): DATE:
MERCHANT ADDRESS:
CITY: STATE: ZIP:
MERCHANT PHONE: E-MAIL ADDRESS:
TYPE OF OWNERSHIP: SOLE PROPRIETOR PARTNERSHIP CORPORATION LLC NON-PROFIT OTHER:
ENROLLMENT OPTIONS
For the Service Fees set forth below and in accordance with the terms and conditions set forth in the Service Agreement the Merchant shall receive the following service:
II. OPTIONAL ADD-ONS (“Add-Ons”)For an additional monthly per-item service charge Merchant shall be entitled to service for the Add-Ons as set forth in the Agreement:
PRODUCT/SERVICE QUANTITY MONTHLY COST TOTAL COST
Remote Printer
Advance Wiring Package (per cable drop)
$7.00
$8.00
$
$
TOTAL OPTIONAL ADD-ONS:
TOTAL MONTHLY SERVICE FEE (SECTION 1 + SECTION II):
$ /month
$ /month
III. OPTIONAL ACCESSORY PURCHASES
(These Items are Purchased by Merchant before or after initial sale and are NOT part of the Service Agreement. All products received “as is, whereis”)
PRODUCT/SERVICE QUANTITY PRICE TOTAL COST
Debit Pin-Pad (Retail Merchants Only)
Cash Till
Kitchen Video System (includes screen)
$89.00
$14.95
$
$
$
TOTAL OPTIONAL ACCESSORIES: $
HT1098_01312012 UPDATED 01/31/2012
I. BASE PACKAGE
1 FIVE (5) WIRE TOUCH SCREEN MONITOR WITH MAGNETIC STRIPE READER
1 HARBORTOUCH PROCESSING STATION
1 CASH DRAWER
1 RECEIPT PRINTER
1 BAR CODE READER (RETAIL MERCHANTS ONLY)
1 CUSTOMER DISPLAY POLE (RETAIL MERCHANTS ONLY)
5 EMPLOYEE CARDS (RETAIL MERCHANTS ONLY) OR 1O SERVER CARDS (HOSPITALITY MERCHANTS ONLY)
PRICE: NUMBER OF SYSTEMS: x $59.00/month TOTAL PRICE: $ /month
PAGE 1
PRINCIPAL #2 INITIALS:
PRINCIPAL #1
SOCIAL SECURITY NUMBER
RESIDENCE ADDRESS
TELEPHONE #
CITY STATE ZIP
DATE OF BIRTH
% OF EQUITY OWNERSHIP
OWNERS OR OFFICERSPRINCIPAL #2
SOCIAL SECURITY NUMBER
RESIDENCE ADDRESS
TELEPHONE #
CITY STATE ZIP
DATE OF BIRTH
% OF EQUITY OWNERSHIP
Harbortouch Point of Sale System Service Agreement
H A R B O R T O U C H
PRINCIPAL #1 INITIALS:
CAS PD-II Digital Scale (reads in pounds and/or ounces) $16.95 $
plus local, federal, and state taxes
plus local, federal, and state taxes
plus local, federal, and state taxes
MERCHANT IS ENTITLED TO ONE (1) STANDARD CABLE DROP UPON ENROLLMENT OF THE BASE PACKAGE. MERCHANT AUTHORIZES HARBORTOUCH, IN ITS REASONABLE DISCRETION, TO INSTALL ADDITIONAL CABLE LINES THAT DO NOT FIT WITHIN THE DEFINITION OF A STANDARD CABLE DROP. MERCHANT SHALL BE BILLED TWO HUNDRED FORTY NINE ($249.00) DOLLARS FOR EACH CABLE DROP AS FURTHER DETAILED IN SECTION 2.1 OF THE SERVICE AGREEMENT. MERCHANT SHALL BE DEBITED THE AMOUNT THE ADDITIONAL CABLE DROPS AT THE TIME OF THE NEXT BILLING.
(C)
25 Server Cards $49.95
$26.00 $
Customer Display Pole (Hospitality) $49.00 $
Term of Service Agreement is sixty (60) months. See Terms and Conditions for further details.
Caller ID - 2 Line (includes keyboard) $8.00 $
Caller ID - 4 Line (includes keyboard) $12.00 $
Caller ID - 8 Line (includes keyboard) $18.95 $
1 KEYBOARD AND 1 MOUSE (RETAIL MERCHANTS ONLY)
jfroelich
Oval
Personal Guaranty: This general, absolute, and unconditional Guaranty (“Guaranty” by the undersigned (collectively “Guarantor” or “my” or “I” or “me”) is for the benefit of Harbortouch Financial, LLC. a division of United Bank Card, Inc. (referred to as “Harbortouch”). For value received, and in consideration for the mutual undertakings contained in the Agreements, exhibits, and all other related agreements entered into between Merchant and Harbortouch or its parents, affiliates, successors, and assigns, I absolutely and unconditionally guarantee the full performance of all Merchant's obligations to Harbortouch, together with all costs, expenses, and attorneys’ fees incurred by Harbortouch, its parents, affiliates, successors, or assigns, in connection with any action, inactions, or defaults of Merchant with respect to this Agreement or any other Agreement currently in effect or in the future entered into between Merchant or its principals and Harbortouch, its parents, affiliates, successors, or assigns. I waive any right to require Harbortouch, its parents, affiliates, successors, or assigns, to proceed against other entities or Merchant. There are no conditions attached to the enforcement of this Guaranty. I authorize, Harbortouch, its parents, affiliates or assigns to make from time to time any personal credit or other inquiries and agree to provide, at Harbortouch's request, financial statements and/or tax returns. I agree that this Guaranty shall be governed and construed in accordance with the State of New Jersey, and that the courts of New Jersey shall have and be vested with personal jurisdiction. The termination of this Agreement or Guaranty shall not release me from liability with respect to any obligations incurred before the effective date of termination. No termination of this Guaranty shall be effected by any change in my legal status or any change in the relationship between Merchant and me. This Guaranty shall bind and inure to the benefit of the personal representatives, parents, heirs, administrators, successors and assigns of Guarantor and Harbortouch.
AGREED AND ACCEPTED:
BY THEIR EXECUTION BELOW, THE UNDERSIGNED AGREES TO ABIDE BY THE SERVICE AGREEMENT AND ITS EXHIBITS, THE AGREEMENT CONSISTS OF THE SERVICE AGREEMENT TERMS AND CONDITIONS, EXHIBITS (ENROLLMENT OPTIONS AND MERCHANT AGREEMENT), AND MERCHANT ACKNOWLEDGES RECEIPT OF SERVICE AGREEMENT TERMS AND CONDITIONS AND MERCHANT AGREEMENT TERMS AND CONDITIONS, AT THE TIME OF SIGNING. MERCHANT WARRANTS THAT THE INFORMATION PROVIDED TO HARBORTOUCH IS COMPLETE AND ACCURATE.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT OT BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES EFFECTIVE ON THE DATE SIGNED OR APPROVED BY HARBORTOUCH.
AGREED AND ACCEPTED: MERCHANT LEGAL NAME:
ACH Authorization: The service charges as specified in Exhibit A shall be debited from Merchant's account upon the execution of this Agreement and then monthly on the 1st of every month. All other charges payable hereunder shall be debited during the month in which they have been incurred. Authorized Merchant Representatives signature below authorizes Harbortouch, a division of United Bank Card, Inc. (“UBC”), its affiliates, subsidiaries, designated assignees, or third party providers, to initiate ACH transfer entries to credit and/or debit the account identified in the voided check provided to Harbortouch for Monthly Service Fees as set forth in Exhibit A. This authorization shall remain in effect unless and until UBC receives written notification from Merchant that this authorization has been terminated in such time and manner to allow UBC to act.
Credit Inquiry Authorization: Authorization is hereby granted by the Merchant representative who has signed below to Harbortouch, a division of United Bank Card, Inc. (“UBC”) to obtain a consumer credit report through a credit reporting agency chosen by Harbortouch. Authorized Merchant Represent-ative understands and agrees that Harbortouch intends to use the consumer credit report for the purposes of evaluating my financial readiness to enter into this Service Agreement. Authorized Merchant Representative understands that this credit report will be retained on file at the UBC office for use only by UBC staff. This information will not be disclosed to anyone by UBC without written consent unless required by law. Authorized Merchant Representatives signature below authorizes the release to the credit reporting agency of financial information which I have supplied to Harbortouch in connection with such an evaluation. Authorization is further granted to the credit reporting agency to use photostatic reproduction of this form if required to obtain any information necessary to complete my consumer credit report.
SIGNING BELOW GRANTS UBC AUTHORIZATION TO DEBIT THE MERCHANT ACCOUNT AS SET FORTH HEREIN AND GRANTS UBC PERMISSION TO THE RELEASE OF FINANCIAL INFORMATION TO THE CREDIT REPORTING AGENCY AND GRANTS PERMISSION FOR UBC TO OBTAIN A COPY OF MY CREDIT REPORT.
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®Harbortouch Point-of-Sale (“POS”) System Service Agreement (“Service Agreement”)
TERMS AND CONDITIONS
THIS SERVICE AGREEMENT (together with its addenda, attachments, schedules, and exhibits shall be hereinafter known as the “Agreement” or “Service Agreement”)) is made and effective on the date as set forth in Exhibit A, by and between Harbortouch Financial, LLC (“Harbortouch”), a division of United Bank Card, Inc. d/b/a Harbortouch (“UBC”), with its principal place of business at 2202 North Irving Street, Allentown, PA 18109 and Merchant with its principal place of business located at the address as set forth in Exhibit A.
WHEREAS, Harbortouch has placed certain Equipment at the Merchant Location for the exclusive use by Merchant;
WHEREAS, Merchant now desires to purchase services for such Equipment and Harbortouch agrees to supply such service to the Merchant on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows.
1. Definitions
Equipment shall mean any products listed in Exhibit A as a Base Package or Add-Ons (Section I and II).
Merchant Agreement shall mean the separate agreement between UBC and the Merchant, attached as Exhibit B herein, for the purpose of providing merchant processing services.
Merchant Authorized Representative shall mean the individual authorized to enter into agreements on behalf of the Merchant and who signs this Agreement on behalf of the Merchant.
Merchant Location shall mean the address of the Merchant where the Equipment is physically located listed in Exhibit A.
Software shall mean proprietary Harbortouch Hospitality, Harbortouch Retail, and any additional Harbortouch software developed, enhanced, or revised from time to time contained in the Equipment.
2. Harbortouch's Obligations
2.1 Service of Equipment: During the term of this Agreement, so long as Merchant is not in default of this Agreement, Harbortouch shall, for the monthly service charges set forth in Exhibit A hereto, provide service to the Merchant Location as set forth in this Section:
(a) Technical Support: Merchant shall be entitled to twenty-four (24) hours a day, seven (7) days a week remote technical support for the Equipment.
(b) Customization: Merchant shall be entitled to custom development and configuration of the Equipment. Such customization is done with the assistance of the Merchant who must provide information requested by Harbortouch. Upon completion of Equipment customization Harbortouch shall provide Merchant with an online presentation of the Equipment. Upon completion of this presentation, or if the Merchant declines to participate in such presentation, Merchant shall be required to complete a recorded voice verification which shall confirm that the Equipment meets the needs of the business. Merchant authorizes Harbortouch to record such verification and agrees that no Equipment shall be shipped prior to such verification. Any additional customization after the Equipment has been shipped to the Merchant is expressly excluded from this Agreement. Additional fees may apply. HARBORTOUCH DOES NOT WARRANT THAT CUSTOMIZATION WILL BE FREE FROM DEFECTS OR MISTAKES. HARBORTOUCH EXPRESSLY DISCLAIMS AND MERCHANT AGREES TO HOLD HARBORTOUCH HARMLESS FOR ANY ERRORS IN THE EQUIPMENT ONCE THE MERCHANT HAS COMPLETED VOICE VERIFICATION.
(c) Installation/Training: Merchant shall be entitled to one (1) on-site installation of the Equipment including (1) one cable run to a point-of-sale system located no more than ten feet from the wall/cable connection and without the need to install any cable jacks into the wall (hereto referred to as a “Standard Cable Drop”). Merchant must verify time and place of installation. Additional fees will apply for cable drops in excess of the one provided herein. All on-site (at Merchant Location) installation and training shall be set up and confirmed no less than forty-eight hours in advance of the scheduled training/installation. Such confirmation shall include but not be limited to the time and place of installation/training, and that the owner and/or authorized signer shall be at the Merchant Location. If (i) Merchant cancels or reschedules the appointment less than twenty four hours prior to the confirmed time, (ii) the owner/authorized signer is unavailable at the confirmed time, or (iii) the Merchant location in Harbortouch's reasonable discretion is not in a condition suitable to conduct the installation/training, a One Hundred Fifty ($150) Dollar rescheduling/ revisit fee shall be charged to the Merchant.
MERCHANT AUTHORIZES HARBORTOUCH TO LAY ADDITIONAL CABLES AND CABLE LINES THAT DO NOT FIT WITHIN THE DEFINITION OF A STANDARD CABLE DROP AT ITS REASONABLE DISCRETION AT THE TIME OF INSTALLATION. MERCHANT SHALL BE BILLED TWO HUNDRED FORTY NINE ($249) DOLLARS FOR EACH CABLE DROP THAT DOES NOT FIT WITHIN THE DEFINITION OF STANDARD CABLE DROP AS SET FORTH ABOVE AND FOR EACH CABLE DROP AFTER THE STANDARD CABLE DROP.
MERCHANT SHALL BE DEBITED THE AMOUNT FOR ADDITIONAL INSTALLATION AT THE TIME OF THE NEXT BILLING.
(d) Repair/Replacement: Upon notification either verbal or written, of malfunction of any Equipment covered under this Agreement, Harbortouch shall provide remote support to determine if the part is defective and, if so, at Harbortouch's sole discretion, repair Equipment or supply replacement Equipment. Replacement parts shall be sent to Merchant via priority shipping. All inoperative, repaired, or replaced parts are the property of and shall be returned to Harbortouch. Failure to return replaced or repaired parts will result in charges to Merchant as referenced in Section 3.6. Merchant's failure to maintain the Equipment as set forth in Section 3.3 shall result in additional charges for the service of Equipment.
2.2 Non-Standard Services: Harbortouch shall, at its sole discretion, for the additional charges referred to in Exhibit A, provide services and make required repair, redesign, reinstall, reconfigure or replace the Equipment when either is required due to causes not attributable to normal wear and tear, including, but not limited to:
(a) (i) the failure of Merchant to continually maintain the Merchant Location in conformance with commercially reasonable standards (ii) impairments in the performance of the Equipment resulting from changes in the design of the Equipment made by Merchant or mechanical, electrical, or electronic interconnections made by Merchant; (iii) damage caused by accidents, natural disasters or the negligence of, or improper use or misuse of, the Equipment by Merchant; (iv) damage or necessity of repair resulting from unauthorized maintenance by Merchant or any third party other than Harbortouch or its authorized representative; (v) damage or repair necessitated as a result of relocation of the Equipment; (vi) change in laws or Association rules that require service, repair, or replacement above normal day to day maintenance; (vii) any third party hardware or software in con- junction with the use of the Equipment without Harbortouch's express written consent or (vii) theft of the Equipment.
3. Merchant Obligations
3.1 Notice of Equipment Failure: Merchant shall notify Harbortouch immediately upon Equipment failure or malfunction and shall allow Harbortouch full and free access to the Equipment and the use of necessary data communications facilities and equipment at no charge to Harbortouch, subject to Merchant's security rules.
3.2 Receipt of Equipment: Merchant warrants that it has completed the voice verification acknowledging the proper customization of the Equipment prior to shipping and has completed a Equipment Sign-Off form acknowledging receipt of the Equipment. Any additional customization of equipment after completion of the verification shall be at additional cost to Merchant.
3.3 Merchant's Maintenance Efforts: Merchant shall maintain the Equipment in good operating condition, repair, and appearance, and protect the same from deterioration other than normal wear and tear; shall use the Equipment in the regular course of its business, within its normal operating capacity, without abuse, and shall comply with all laws, regulations, directives, requirements and rules with respect to the use, maintenance and operation of the Equipment; shall use the Equipment solely for business purposes; shall not make any modification, alteration or addition to the Equipment, without the written consent of
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Harbortouch; shall not at any time affix, and shall not remove the Equipment from the Merchant Location without the written consent of Harbortouch, which shall not be unreasonably withheld.
3.4 Merchant Security. Merchant shall be responsible to (a) have and maintain in place virus protection and security for all of its systems, data, and overall network access, and (b) all risk of loss, theft, damage or destruction of the Equipment from any cause whatsoever after taking possession of the Equipment. Merchant acknowledges that security and access to any Equipment located on its premises is solely Merchant's responsibility and agrees to notify Harbortouch immediately if Equipment is lost, destroyed, stolen or taken by any other person. HARBORTOUCH DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT, AFTER THE INITIAL INSTALLATION OF THE EQUIPMENT OR ANY SOFTWARE CONTAINED THEREIN, THAT THE EQUIPMENT, SOFTWARE CONTAINED THEREIN, OR CUSTOMER'S DATA WILL REMAIN VIRUS-FREE. MERCHANT WAIVES ANY CLAIMS HEREUNDER AGAINST HARBORTOUCH TO THE EXTENT ARISING FROM MERCHANT'S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER'S SECURITY FOR ITS SYTEMS OR DATA, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO MERCHANT'S SYSTEMS.
3.5 Exclusive Credit Card Processing: Merchant agrees that during the term of this Agreement, and any renewal term that it shall enter into a Merchant Transaction Processing Agreement and exclusively process credit/debit/gift card transactions with United Bank Card, Inc. Failure to do so shall result in Harbortouch's right to immediately terminate this Agreement as set forth in Section 8, and forfeiture of the Equipment without notice or opportunity to cure. Such termination of this Agreement shall not relieve Merchant of its obligation to pay Fees that have accrued as of the termination date and shall result in an Early Termination Fee as set forth in Section 8.4.
3.6 Equipment Return:
Merchant agrees that:
(a) upon termination of the Agreement that it shall return all Equipment to Harbortouch within fifteen (15) days.
(b) upon receiving replacement Equipment that it shall return any Equipment which it has requested being replaced to Harbortouch within fifteen (15) days of receipt of the substitute Equipment.
(c) to the extent permitted by applicable law, without demand or legal process, Harbortouch, its agents, affiliate, or assigns, may enter into the premises where the Equipment may be found and take possession of and remove the Equipment, without liability of such retaking.
Any Equipment that is; (a) in Harbortouch's sole discretion damaged above ordinary wear and tear, or (b) is not returned within the timeframe specified in this Section will result in a charge to Merchant of the then current rate of the Equipment which shall be debited within thirty days of the occurence of events listed in this subsection.
3.7 Indemnification of Harbortouch: Merchant shall indemnify Harbortouch and hold Harbortouch harmless against all claims, liabilities, and costs, including reasonable attorneys' fees, (i) reasonably incurred in the defense of any claim brought against Harbortouch arising out of or related to the use of the Equipment; (ii) reasonably incurred as a result of Merchant's breach of this Section or under (i) and (ii) so long as Harbortouch promptly notifies Merchant in writing of any such claim and any such suit will not be settled without Harbortouch's consent, such consent not to be unreasonably withheld. Harbortouch shall cooperate in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Harbortouch.
4. Charges and Payments
4.1 Debit of Service Charges: Merchant shall be charged the Total Monthly Service Fee as set forth in Exhibit A upon the first business day of the month beginning on the Commencement Date. Harbortouch shall continue to debit Merchant for service charges on the first of every subsequent month during thInitial Term and any renewal term of this Agreement. Merchant expressly permits Harbortouch to re-debit Merchant's bank account should its attempt tocollect fees reject for any reason.
4.2 Billing, Payments and Credit Authorization: (a) Merchant grants Harbortouch, its affiliates, subsidiaries, successors, and assigns, Automated Clearing House (“ACH”) Authorization to credit and debit its demand deposit account and permission to make a credit inquiry in order to obtain a consumer credit report as set forth in Exhibit A. (b) Harbortouch may share such information with third parties so long as such third party is under no less of an obligation to maintain the security of this information as Harbortouch. (c) Should any ACH debit made upon Merchants demand deposit account for payment due under this Agreement reject for any reason including but not limited to Merchant not having sufficient funds in its account, Merchant shall be charged for a Thirty Five ($35) Dollar Insufficient Fund (“NSF”) Fee.
4.3 Adjustments: Harbortouch may adjust the monthly service charges in Exhibit A upon thirty (30) days written notice in accordance with the provisions of Section 10.6 hereof.
4.4 Taxes: Merchant shall pay (or reimburse Harbortouch), in addition to the charges for the services specified herein and as a separate item, all taxes (exclusive of Harbortouch net income taxes), however designated, or amounts legally levied in lieu thereof, based on or measured by the charges seforth in this Agreement, or on the services rendered hereunder, now or hereunder imposed under the authority of any federal, state or local taxingjurisdiction.
4.5 Shipping. All Equipment shall be shipped via UPS Ground Shipping (“Courier”). Merchant authorizes Harbortouch to debit the amount for shipping atthe time the unit ships. Harbortouch shall have no liability for failure of Equipment to reach its destination in a timely manner once it has delivered theEquipment to Courier.
5. Limitation of Remedies and Liability
5.1 Scope of Damages.
HARBORTOUCH AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE TO THE MERCHANT OR ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, OR ASSIGNS, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTIAL, PUNITIVE OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER OR INADEQUATE TAXES CHARGED), WHETHER ARISING FROM MERCHANT'S USE (OR INABILITY TO USE) THE EQUIPMENT, SERVICES PROVIDED IN CONNECTION HEREWITH, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT SHALL THE MERCHANT BE ENTITLED TO RECOVER OR COLLECT ANY DAMAGES IN THE AGGREGATE IN EXCESS OF AN AMOUNT EQUAL TO THE FEES PAID HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE MERCHANT'S FIRST CLAIM OF ALLEGED DAMAGES
NOTWITHSTANDING THE FOREGOING, HARBORTOUCH AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES INCURRED AS A RESULT OF DOWNTIME OF THE EQUIPMENT.
5.2 DISCLAIMER OF WARRANTIES AND LIMITATION OF WARRANTIES:
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, HARBORTOUCH AND ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, AND ASSIGNS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED AS TO ANY HARBORTOUCH SERVICE, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY HARBORTOUCH, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
HARBORTOUCH DOES NOT GUARANTEE THAT THE EQUIPMENT WILL SATISFY MERCHANT'S REQUIREMENTS, OR THAT THE OPERATIONS OF SUCH WILL BE UNINTERRUPTED OR ERROR FEE. EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS AGREEMENT, IF ANY, THE EQUIPMENT (OR SERVICES) IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY WILL BE WITH THE MERCHANT.
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HARBORTOUCH SHALL NOT BE LIABLE FOR ANY COSTS OR FOR PERFORMING ANY SERVICES HEREUENDER ARISING IN CONNECTION WITH MERCHANT'S NEGLIGENCE, ABUSE, MISUSE, OR FAILURE TO PERFORM ROUTINE MAINTENANCE AND STANDARD OPERATING PROCEDURES.
6. Insurance: During the term of this Agreement, Merchant agrees to maintain, at Merchant's expense “Special Form” property insurance protecting theEquipment for its replacement value, naming Harbortouch as a loss payee on public liability insurance, in amounts acceptable to Harbortouch, naming Harbortouch as an additional insured. Merchant must provide Harbortouch satisfactory written evidence of the insurance within thirty (30) days of the commencement date of this Agreement or any subsequent written request. If Merchant does not do so, Harbortouch may obtain insurance from an Insurer of its choosing in such forms and amounts as Harbortouch deems reasonable to protect its interests. Such insurance covers the Equipment and Harbortouch; it does not name the Merchant as the insured. Merchant agrees to pay Harbortouch periodic charges for insurance that include: a premium that may be higher than if the Merchant maintained its own insurance separately, a finance charge of up to 1.5% per month on any premium advances made by Harbortouch or its agents, affiliates or assigns, and billing and processing fees; each of which my generate a profit for Harbortouch and its agents, affiliates, and assigns. Unless Merchant provides satisfactory evidence of insurance by the due date set forth herein, Harbortouch shall pay such insurance by debiting Merchant's account under the withdrawal provision in this Agreement. Harbortouch shall discontinue billing insurance charges upon receipt of satisfactory evidence of insurance. Merchant agrees to arbitrate any dispute with Harbortouch or Harbortouch's agents, affiliates, or assigns regarding insurance or insurance charges under the rules of the American Arbitration Association in Newark, New Jersey; provided however, such agreement does not authorize class arbitration.
7.
8. Termination. This Agreement may be terminated in accordance with the following:
8.1 Merchant's Default on Payments: In the event Merchant defaults on any payment due under this Agreement, Harbortouch shall be entitled to either (a) immediately terminate this Agreement, or (b) direct United Bank Card, Inc. to withhold Merchant processing funds in the amount which it is in default for which Harbortouch may immediately apply to payment of the fee set forth in Exhibit A.
8.2 Breach: In the event Merchant commits a breach of any of its obligations under Section 3 - Merchant Obligations, Harbortouch may terminate this Agreement or exercise its rights as set forth in this Section.
8.3 Survival of Merchant's Obligations: Customer's obligation to pay all charges which shall have accrued hereunder prior to termination of this Agreement shall survive termination, irrespective of the reason.
8.4 Early Termination Fee: If this Agreement is terminated either during the Initial Term or any renewal term for any reason set forth in this Section, Merchant agrees to pay an early termination fee equal to the total monthly service fee as set forth in Exhibit A multiplied by the number of months remaining on the then-current term, in addition to all other amounts that the Merchant owes. The parties agree that the precise damages resulting from an early termination by Merchant are difficult to ascertain, and this early termination fee is a reasonable estimate of anticipated actual damages and not a penalty, but rather is reasonable in light of the financial harm caused by Merchant's early termination. Merchant expressly authorizes Harbortouch to debit this fee from its account which may be done within thirty (30) days of termination.
9. Force Majeure: Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
10. General Terms and Conditions
10.1 Assignment: Merchant shall not have the right to assign or otherwise transfer its right and obligations under this Agreement except with the written consent of Harbortouch. Harbortouch shall have the right to assign any or all of its interest, rights, and obligations in this Agreement without the need for consent from Merchant. Any prohibited assignment shall be null and void.
10.2 Ownership:
10.3 Confidentiality: Merchant shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of any Equipment, or any software or products used in conjunction with the Equipment. Merchant is not permitted to make derivative works of any software, hardware, or otherwise used in conjunction with or part of the Equipment, and ownership of any unauthorized derivative works shall vest in Harbortouch. Merchant shall not, without Harbortouch's prior written consent, disclose any of the Proprietary Information of Harbortouch, including but not limited to the Equipment, to any person, except as is necessary to enable such party to exercise its rights hereunder. Merchant agrees to solely use the Proprietary Information of Harbortouch as is necessary in its performance under this Agreement and as otherwise necessary to enjoy the acceptable use of the Equipment. Merchant agrees that any party that has access to this information will be subject to the confidentiality terms as set forth in this section.
Term: The term of this Agreement shall commence on the date the first payment is debited from the Merchant's bank account for the Total Monthly ServiceFee listed in Exhibit A (“Commencement Date”) and shall continue for a period of five (5) years from that date (“Initial Term”). This Agreement shallautomatically renew for a period of four (4) years at the end of any term unless the terminating party provides sixty (60) days prior written notice to the nonterminating party in accordance with the provisions of Section 10.6 hereof of its intent to terminate the Agreement prior to the end of the then current term.
10.4 Proprietary Interest: Merchant shall have no interest whatsoever, including copyright interest, franchise interests, license interest, patent rights, property rights or other interest in the Equipment or Software provided by Harbortouch. This Agreement is not construed as granting the Merchant any intellectual rights or intellectual license in any intellectual property which Harbortouch may obtain in respect of the Equipment and Software. The Merchant will make no attempt to duplicate or otherwise ascertain the Proprietary Information, or otherwise attempt to reverse engineer any Harbortouch provided Equipment or Software.
10.5 Amendments: This Agreement may be amended by Harbortouch, its affiliates, or assigns, upon thirty (30) days written notice. Merchant's continued use of the Equipment shall be acceptance of such amended terms.
10.6 Notices: Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified air mail, postage prepaid, return receipt requested, courier services, addressed to the respective addresses or the parties as first above written or at such other addresses as the respective parties may designate by like notice from time to time. Notices so given shall be effective as of the date stamped on the receipt.
10.7 Severability: In the event that any of the terms of this Agreement are in conflict with any rule of laws, regulations, provisions or otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such Invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement such continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
10.8 Governing Law and Forum: Agreement to Arbitrate.
(a) Harbortouch and Merchant agree to arbitrate all disputes and claims between each other or its affiliates, subsidiaries, successors, or assigns. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
During the Initial Term, the Equipment is, and will remain at all times, the exclusive property of Harbortouch, its affiliates, successors, or assigns. Merchant's use of the Equipment is expressly conditioned on the terms of this Agreement and does not confer any ownership rights of any kind to the Merchant. Merchant hereby authorizes Harbortouch, at Merchant's expense, to cause this Service Agreement or any statement or any other instrument in respect to this Agreement showing Harbortouch's interest in the Equipment, to be filed or recorded. During the Initial Term, Merchant shall at all times keep the Equipment free from legal process or encumbrance whatsoever and, shall indemnify Harbortouch from any loss caused thereby. Notwithstanding the foregoing, upon the completion of the five (5) year Initial Term ownership of the Equipment (excluding the Software) shall automatically transfer to the Merchant.
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(1) claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
(2) claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
(3) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
(4) claims that may arise after the termination of this Agreement.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Office of the Comptroller of the Currency. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Harbortouch are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
(b) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Harbortouch should be addressed to: General Counsel, Harbortouch, 2202 North Irving Street, Allentown, PA 18109 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Harbortouch and Merchant do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Harbortouch may commence an arbitration proceeding.
(c) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide.
(d) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU, HARBORTOUCH, AND ITS AFFILIATES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Harbortouch agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(e) Notwithstanding any provision in this Agreement to the contrary, we agree that if Harbortouch makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your Service Agreement, you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
(f) Merchant and Harbortouch acknowledge and agree that this Agreement and Guaranty contained herein, was, and shall be deemed to have been, made and delivered in Hunterdon County, New Jersey. The laws of the State of New Jersey, except as such law is preempted by or inconsistent with applicable federal law shall govern all matters (whether in contract, statute, tort or however characterized) arising out of or relating to this Agreement and the Guaranty contained herein, including without limitation, the validity, interpretation, construction, performance and enforcement of the Agreement and Guaranty contained herein. Unless Harbortouch and Merchant agree otherwise, any arbitration hearings will take place in Hunterdon County, NJ. If your claim is for $10,000 or less, Harbortouch agrees that Merchant may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. Except as otherwise provided for herein, Harbortouch will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of Merchant's claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Harbortouch for all monies previously disbursed by it that are otherwise Merchant's obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules. If Merchant brings legal action against Harbortouch for any reason, Merchant shall commence the action within one (1) year of the date the error or the incident giving rise to such action occurred.
(g) If, after finding in Merchant's favor in any respect on the merits of your claim, the arbitrator issues Merchant an award that is greater than the value of Harbortouch's last written settlement offer made before an arbitrator was selected, then Harbortouch will:
a. pay Merchant's attorney, if any, the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that Merchant's attorney reasonably accrues for investigating, preparing, and pursuing Merchant's claim in arbitration ("attorney fees").
If Harbortouch did not make a written offer to settle the dispute before an arbitrator was selected, Merchant and Merchant's attorney will be entitled to receive the attorney fees, respectively, if the arbitrator awards Merchant any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the attorney fees at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The right to attorneys' fees and expenses discussed in subparagraph (g) supplements any right to attorneys' fees and expenses Merchant mayhave under applicable law. Thus, if Merchant would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding Merchant that amount. However, Merchant may not recover duplicative awards of attorneys' fees or costs.
10.9 Conflicting Terms: The terms and conditions of this Agreement shall prevail over any additional or contrary terms which may be contained in any instructions or other communications submitted to Harbortouch by Merchant.
10.10 Independent Contractor: Nothing in this Agreement or in the performance thereof shall be construed to create any partnership, joint venture, or relationship of principal and agent or employer and employee between Harbortouch and Merchant or any of their respective affiliates or subsidiaries. Harbortouch and Merchant are and shall remain independent contractors. As such, neither Merchant nor any employees, agents or affiliated persons of Merchant shall be entitled under any circumstances to maintain any action against Harbortouch for any physical injury incurred by Merchant or any employees, agents or affiliated persons of Merchant (including, but not limited to, the filing of claims under the workers' compensation laws of any state). Furthermore, Merchant acknowledges that Merchant shall be solely responsible for the purchase and maintenance of employment and/or workers compensation insurance coverage related to its employees, agents or contractors, and that Harbortouch shall have no responsibility for any such coverage.
10.11 Entire Agreement: THIS AGREEMENT, INCLUDING THE EXHIBITS ATTACHED HERETO AND INCORPORATED AS AN INTEGRAL PART OF THIS AGREEMENT, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PREVIOUS PROPOSALS, ORAL OR WRITTEN, AND ALL NEGOTIATIONS, CONVERSATIONS OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY ANY REPRESENTATIONS OR STATEMENTS, ORAL OR WRITTEN, NOT EXPRESSLY CONTAINED HEREIN.
