Legal POS-NMC Agreement

LEGAL POS-NMC AGREEMENT

This POS-NMC Agreement ("Agreement") is entered into as of Effective Date: by and between Provider Name: with principal place of business at (hereinafter "Provider"), and Non-Merchant Customer Name: with principal place of business at (hereinafter "NMC"). Provider and NMC are each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Provider develops, supplies and supports point-of-sale hardware, software and transaction routing services for the acceptance and settlement of payment transactions; and

WHEREAS, NMC desires to engage Provider to configure and operate a point-of-sale solution for the limited purpose of facilitating certain payment acceptance functions on terms and conditions set forth herein; and

WHEREAS, the Parties intend to allocate the rights, obligations and risks associated with the provision and use of the POS solution through this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

"Agreement" means this POS-NMC Agreement and all exhibits and schedules attached hereto. "Services" means the hardware, software, processing, settlement and support services described in Section 2. "Confidential Information" means non-public information disclosed by one Party to the other pursuant to this Agreement that is designated as confidential or that reasonably should be understood to be confidential.

2. SCOPE OF SERVICES

2.1 Provision. Provider shall provide the Services described in Schedule A, which may include point-of-sale terminals, software licensing, transaction routing, settlement, reporting and help desk support. The specific equipment and configuration to be provided to NMC are set forth in Exhibit: Equipment Description:

2.2 Installation and Acceptance. Provider will install or cause installation of the equipment at NMC's location. NMC shall cooperate with Provider and designate a site contact: and telephone: . Acceptance testing will be conducted in accordance with the acceptance criteria set forth in Schedule B.

3. FEES, SETTLEMENT, AND PAYMENT

3.1 Fees. NMC shall pay Provider the fees specified in Schedule C. Transaction processing fees shall be: Transaction Fee Rate: percent per transaction and Monthly Service Fee: .

3.2 Settlement. Provider will cause funds to be settled to NMC in accordance with the settlement schedule: , subject to chargebacks, reserves, and applicable network rules.

4. DATA SECURITY AND COMPLIANCE

4.1 PCI and Regulatory Compliance. Each Party shall comply with applicable card network rules, Payment Card Industry Data Security Standards (PCI DSS) and other applicable laws. Provider represents that it will maintain reasonable administrative, physical and technical safeguards to protect Payment Data. Provider PCI Compliance: Yes

4.2 Data Handling. Payment Data shall be processed only as necessary to perform the Services. Provider shall not use Payment Data for its own marketing or resale without NMC's prior written consent. Any storage, transmission or processing of cardholder data by Provider shall use industry-standard encryption and access controls.

5. CONFIDENTIALITY

5.1 Confidentiality Obligations. Each Party shall (a) hold Confidential Information in strict confidence, (b) use such Confidential Information solely for performance of this Agreement, and (c) not disclose Confidential Information to third parties except to its employees, contractors and advisors who have a need to know and are bound by confidentiality obligations at least as protective as those herein.

5.2 Exceptions. Confidential Information shall not include information that is (a) publicly available other than through breach of this Agreement, (b) already known to the recipient without obligation of confidentiality, (c) rightfully received from a third party without restriction, or (d) independently developed without use of the disclosing Party's Confidential Information.

6. WARRANTIES; DISCLAIMERS

6.1 Mutual Warranties. Each Party represents and warrants that it has the full power and authority to enter into and perform this Agreement and that performance will not violate any agreement with a third party.

6.2 Provider Warranty. Provider warrants that the Services will materially conform to the specifications set forth in Schedule A for a period of ninety (90) days following acceptance. Provider's sole obligation for breach of this warranty shall be to use commercially reasonable efforts to cure the non-conformity.

6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

Except for liability arising from a Party's gross negligence, willful misconduct, or breach of confidentiality, each Party's aggregate liability under or in connection with this Agreement shall not exceed: . Neither Party shall be liable for indirect, special, incidental, consequential or punitive damages.

8. INDEMNIFICATION

8.1 Indemnity by NMC. NMC shall defend, indemnify and hold Provider harmless from and against any third-party claims arising from NMC's breach of this Agreement, fraud, or misuse of the Services.

8.2 Indemnity by Provider. Provider shall defend, indemnify and hold NMC harmless from and against any third-party claims to the extent such claims arise from Provider's gross negligence, willful misconduct, or breach of its representations and warranties set forth herein.

9. TERM AND TERMINATION

9.1 Term. The initial term of this Agreement shall be: commencing on the Effective Date, and shall automatically renew for successive terms of the same duration unless either Party provides written notice of non-renewal at least days prior to the end of the then-current term.

9.2 Termination for Cause. Either Party may terminate this Agreement for material breach by the other Party if the breaching Party fails to cure the breach within days after receipt of written notice specifying the breach.

10. NOTICES

Notices shall be in writing and delivered by hand, nationally recognized overnight courier, or certified mail, return receipt requested, to the addresses set forth above or such other address as a Party may designate by notice to the other.

11. AMENDMENTS; WAIVER; COUNTERPARTS

This Agreement may be amended only by a written instrument signed by both Parties. No waiver of any provision or breach shall be effective unless in writing and signed by the waiving Party. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

12. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of: without regard to its conflicts of law principles.

12.2 Entire Agreement. This Agreement, together with all Schedules and Exhibits expressly incorporated herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, negotiations and communications, whether written or oral.

12.3 Severability. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, that provision shall be severed or reformed to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.

13. MISCELLANEOUS PROVISIONS

13.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that Provider may assign this Agreement to an affiliate or in connection with a merger, acquisition or sale of substantially all of Provider's assets without NMC's consent.

13.2 Remedies. Except as otherwise expressly set forth, the remedies provided in this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity.

Sign Now