Version: December 21, 2022
i. Payment Processing. Client has read, understands and agrees to be bound by the following payment processing terms (“Terms”) which shall govern Client’s use of Rent Relief Payment services by Yardi Systems, Inc., and its affiliated entities (collectively, “Yardi”).
ii. Definitions.
a. “ACH” means a nationwide funds transfer network that enables participating financial institutions to electronically credit, debit and settle entries to bank accounts.
b. “ACH Payments” means a payment made through the ACH payment processing services provided by Yardi pursuant to these Terms and JHA MC pursuant to the JHA Terms.
c. “Applicable Law” means: (i) any applicable law, statute, regulation, ordinance, and the NACHA Rules applicable to Client or Yardi or an affiliate of either is subject; (ii) any court order, judgement, or decree that is binding on Client or Yardi or an affiliate of either of them; and (iii) any directive, policy, rule, or order that is binding on Client or Yardi or an affiliate of either of them and that is made or given by a regulator or other government or government agency of any territory, or other national, federal, commonwealth, state, provincial, or local jurisdiction.
d. “Check 21” means the Check for the 21st Century (Check 21) Act and all regulations pertaining to the Check 21 Act.
e. “Check Payments” means a payment made by the Check 21 payment services provided by Yardi and JHA MC pursuant to these Terms.
f. “JHA Terms” means the Processing Services Agreement between Client and JHA Money Center, Inc. (“JHA MC”), set forth below.
g. “NACHA Rules” mean the then current rules, regulations and procedural guidelines published by the National Automated Clearing House Association (“NACHA”) and/or all regional payment alliances associated with NACHA.
h. “Payment Instruction” means a data file created by Client through Yardi’s payment services that expressly authorizes (a) with respect to Check Payments, the creation of a paper or electronic draft, signed in Client’s name or by Yardi on behalf of Client as Client’s authorized agent or representative, in the amount and payable to the Third Party as instructed in the data file, that will draw from Client’s designated bank account upon presentment, and the delivery of such draft to Third Party as directed in the data file, (b) with respect to ACH Payments, an ACH payment to Third Party’s designated bank account in accordance with the JHA Terms.
i. “Rent Relief Payments” means an ACH Payment or Check Payment made by Client to a Third Party.
j. “Third Party” means a landlord, tenant or utility company who has been approved for a Rent Relief Payment pursuant to a governmental COVID-19 rental assistance program.
iii. General Terms. Client agrees to the following terms with respect to Rent Relief Payments:
a. Acknowledgements. Client acknowledges that Client’s ability to make Rent Relief Payments is subject to review and acceptance of Client by JHA MC, and that Yardi’s sole responsibility for ACH Payments is the receipt and transmission of Payment Instructions from Client to JHA MC.
i. With respect to ACH Payments only, Client further acknowledges and agrees that (i) the JHA Terms govern the processing of ACH Payments, (ii) in order to initiate ACH Payments, Client must execute and submit the JHA Terms for review, acceptance and countersignature by JHA MC, and (iii) Yardi is not responsible or liable for any obligations under the JHA Terms or any performance relating to ACH Payments, other than an obligation required to be performed by Yardi expressly described in the Terms or applicable Yardi policy, procedure or other requirement relating to ACH Payments. Client agrees to indemnify and hold Yardi and its respective employees, officer’s agents, shareholders, and directors harmless from any and all damages resulting from or in connection with the JHA Terms or incurred as a result of, or related to, Client’s breach of the JHA Terms.
ii. Client may transfer funds for the Rent Relief Payments to a Yardi FBO bank account and in order to have such funds distributed by Yardi to Third Parties in accordance with the Client’s Payment Instructions. Yardi will provide Client with FBO bank account information for funding purposes; provided, however, Client shall be solely responsible for the transmission of such funds to the Yardi FBO bank account and for the accuracy and completeness of the Payment Instructions it provides to Yardi. Client acknowledges and agrees that, with respect to any Rent Relief Payment paid through the FBO bank account to a Third Party with which Yardi has a written agreement regarding the Rent Relief Payment, (1) the receipt of such Rent Relief Payment from Client into the FBO bank account shall constitute payment received on behalf of the Third Party, and extinguish Client’s payment obligation to the Third Party; (2) upon such payment, Client shall have no right to reverse or otherwise recover the Rent Relief Payment, except in the case of error or fraud subject to Yardi’s prior consent; and (3) as between the parties, Yardi is responsible for remitting the Rent Relief Payment to the Third Party. Should Client request a stop payment for a check drawn from the Yardi FBO bank account, Yardi will process such request, if possible, and pass through to Client a stop payment fee in the amount of $15 per such request.
iii. With respect to Check Payments only, Client further acknowledges and agrees that (i) JHA MC is providing some of the processing services for Check Payments, and as a result, JHA MC shall be an intended third party beneficiary of these Terms solely with respect to Check Payments; (ii) JHA MC shall have the right to enforce directly against Client the terms of the Terms which relate to Check Payments and the ownership and protection of the intellectual property rights of JHA MC and its licensors in and to its processing services; and (iii) JHA MC shall have no responsibility or liability with regard to Yardi’s obligations to Client under the Terms with respect to Check Payments.
b. Authorizations. Client expressly authorizes (i) Yardi to transmit Payment Instructions to JHA MC, and (ii) Yardi or JHA MC, as applicable, to process the Rent Relief Payment in accordance with these Terms and the JHA Terms. Client acknowledges and agrees that all ACH Payments in an amount exceeding $25,000.00 per transaction will be made by paper check via Check Payment. Client acknowledges and agrees that Yardi is not responsible for the content of any Payment Instruction (including the accuracy of payment amounts, bank account information, Third Party account numbers, or any other information provided by Client) and that Client is solely responsible for the accuracy of all information and instructions provided to Yardi. Client acknowledges that once submitted, a Payment Instruction may not be amended or modified, except (with respect to ACH Payments) as may be permitted under the JHA Terms.
c. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify Client of any Rent Relief Payment that may be rejected or returned by JHA MC, Third Party, or Third Party’s bank, but will not remake or represent such rejected or returned the Rent Relief Payment. Once a Rent Relief Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the Rent Relief Payment except (with respect to ACH Payments) as may be permitted under the JHA Terms. Client will reimburse Yardi immediately within two days for any losses arising directly or indirectly from any of the foregoing and will pay Yardi any fee applicable to a stopped payment request, or a returned or rejected Rent Relief Payment in accordance with the Terms.
d. Insufficient Funds. Any insufficiency of available funds in Client’s bank account with respect to a Rent Relief Payment may result in a delayed payment or non-payment to the designated Third Party. Yardi is not responsible for such delays or non-payment or for any related fees assessed by Third Party or Client’s bank, including but not limited to late payment fees or Third Party or bank fees charged for insufficient funds.
e. Indemnification. Client agrees to indemnify and hold Yardi, and its respective affiliates, employees, officers, agents, shareholders, and directors harmless from any and all third party claims, losses, damages, costs, expenses (including reasonable attorneys’ fees), fines, penalties regardless of whether the same are actual, direct, indirect, incidental, consequential, or punitive (“Damages”) resulting from or in connection with the Rent Relief Payment services or incurred as a result of, or related to, the following causes: (a) Client’s breach of the Terms and/or any covenant, representation or warranty set forth therein; (b) Client’s violation of Applicable Law; (c) reckless or willful misconduct by Client and any of Client’s agents, employees, officers, or directors; (d) any inaccuracies in the Client’s bank account information or Third Party’s bank account information provided to Yardi; and (e) any inaccurate Payment Instructions provided by Client to Yardi.
iv. Right to Suspend or Terminate Rent Relief Payments. Yardi (i) may immediately terminate or suspend Client’s ability to make Rent Relief Payments due to Client’s breach of the Terms, JHA Terms, Applicable Law, or at the direction of JHA MC; and (ii) may audit Client for compliance with the Terms or Applicable Law with respect to Rent Relief Payments.
v. Representations and Warranties. In addition to any other Client representations or warranties, Client further represents and warrants that:
a. Payment Instructions shall be exclusively for payments owed by Client to Third Parties, and not be made on behalf of other third parties;
b. Client will not make, and will not permit or cause any third parties to authorize, any Rent Relief Payment that Client knows or should have known to be either fraudulent, not authorized by the Third Party, made on behalf of another party, or in violation of Applicable Law;
c. Client’s bank account identified in a Payment Instruction or otherwise used to fund a Rent Relief Payment has been established in the United States for the purpose of administering emergency relief assistance programs and not for business, personal, family or household purposes;
d. Client will provide complete and accurate information regarding it and its Third Parties’ information (including mailing address and/or bank account);
e. Client will execute and maintain a written agreement with each Third Party authorizing Client to initiate an ACH Payment, or Check Payment, as applicable, and that for ACH Payments the Third Party has authorized Client to initiate an ACH credit to Third Party’s designated bank account, and
f. Any such written agreement and authorization have not been terminated or revoked on the date a Payment Instruction is submitted by Client to Yardi to initiate a Rent Relief Payment to the relevant Third Party.
JHA MONEY CENTER PROCESSING SERVICES AGREEMENT
By executing your underlying Yardi Rent Relief SaaS Agreement and accessing and using Yardi Rent Relief Payment services, you expressly acknowledge, agree to, and accept this JHA MONEY CENTER PROCESSING SERVICES AGREEMENT (this “Agreement”), which is made by and between JHA Money Center, Inc. with its principal place of business located at 663 West Highway 60, Monett, Missouri, 65708 (“JHA MC”), and you, the Customer, effective as of the Effective Date, as defined below. You further acknowledge and agree that the signature on your underlying Yardi Rent Relief SaaS Agreement constitutes your electronic signature of this Agreement.
JHA MC is in the business of providing payment processing solutions and related maintenance and support services. This Agreement establishes the terms and conditions that will apply to the initial transaction and all subsequent transactions which JHA MC and Customer enter into pursuant to this Agreement.
The parties agree as follows:
1. JHA MC agrees to provide to Customer the payment processing solutions described in this Agreement and any Solution Section or then-current customer processing services price list provided by JHA MC or a JHA MC reseller partner (as the case may be), on the Standard Terms and Conditions appended to and incorporated as a part of this Agreement. Customer agrees to use the JHA MC payment processing solutions in accordance with these Standard Terms and Conditions.
2. Client understands and acknowledges that the use of payment processing services to facilitate money transmission transactions creates a risk of fraudulent transactions, which may result in the loss of money for Customer with no recourse.
3. Following acceptance of this Agreement by an authorized representative of Customer, this Agreement will become effective on the date that JHA MC accepts Customer’s application and boards Customer as a customer of the JHA MC processing services as provided in this Agreement the (“Effective Date”). JHA MC’s commencement of its provision of the processing services to Customer shall confirm JHA MC’s acceptance of this Agreement.
Standard Terms and Conditions
1. DEFINITIONS: The following terms used in this Agreement shall have the meaning specified below:
(a) “ACH Transaction”: An electronic payment transaction originated by Customer and processed through the ACH Network in the Federal Reserve System.
(b) “Administrator”: The Customer’s employee who has been designated as Customer’s primary contact with JHA MC for the Services and has been appointed by Customer to manage the administration of Services access, including passwords, and communicate authorizations to JHA MC.
(c) “Confidential Information”: As the context requires, whether disclosed orally or in writing or by any other media: (a) the terms of this Agreement, all information and materials provided by either party to the other party for its use in performing in its responsibilities under this Agreement, including but not limited to information relating to the business, products, processing services, technology and systems of the other party; the intellectual property, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, and inventions of the other party or its licensors; names and expertise of employees and consultants; SSAE16 and other audit reports; and other technical, business, financial, customer and product development plans, forecasts, strategies and information; (b) the trade secrets contained in JHA MC’s Software and Services, and (c) all information and materials, including customer and consumer nonpublic personal information and data, provided by a Customer to JHA MC which is covered by a written agreement and obligation of confidentiality. Confidential Information shall not include information which: (i) is in or (through no improper action or inaction by the party receiving the information (the “Receiving Party”) or any employee or agent thereof) enters the public domain;(ii) was rightfully in its possession or known by the Receiving Party prior to receipt from the party disclosing the information (the “Disclosing Party”); (iii) was rightfully disclosed to the Receiving Party by another person without restriction; (iv) was independently developed by or for the Receiving Party without access to and use of any Confidential Information of the Disclosing Party; or (v) is disclosed as legally required pursuant to a court or regulatory agency order or subpoena, provided that the Disclosing Party is first given a reasonable opportunity to seek a protective order or other legal means for prohibiting or restricting the disclosure of its Confidential Information without appropriate confidentiality obligations.
(d) “Courseware”: The end user training courseware and materials relating to the use and operation of the Services and JHA MC’s processing system that JHA MC or a Reseller may provide through classroom training, online training or e-Learning delivery to Customer.
(e) “NACHA Rules”: The then-current rules, regulations and procedural guidelines published by the National Automated Clearing House Association (“NACHA”) and/or all regional payment alliances associated with NACHA.
(f) “Reseller”: A third party reseller, such as an ISO reseller or Value Added Reseller, appointed and authorized by JHA MC to resell and/or deliver the Services and Courseware to Customer.
(g) “Services”: The payment processing services provided by JHA MC to Customer under this Agreement.
(h) “Settlement Account”: A commercial demand deposit bank account which Customer has established for JHA MC’s access and use to settle financial payment transactions processed by JHA MC under this Agreement.
(i) “Software”: Software programs and associated documentation and materials that JHA MC provides to Customer for use with the Services.
(j) “Solution Section” means each segment of Exhibit A that describes a Service or Software that is subject to this Agreement with the associated fees, costs, and any special terms and conditions applicable to the Service or Software.
(k) “Transaction”. A payment transaction initiated by Customer and processed by JHA MC.
2. SET-UP AND DELIVERY OF SERVICES:
2.1 In conjunction with this Agreement, Customer has completed and submitted to JHA MC or a Reseller (as applicable) an initial written application and supporting documentation about Customer’s business and financial status, for JHA MC’s consideration in the account set-up and provision of the Services to Customer. Customer acknowledges that JHA MC shall be entitled to rely upon the validity, accuracy and completeness of the information provided by Customer in its application and supporting documentation to JHA MC, for JHA MC’s use in performing its due diligence review of Customer’s status and financial standing for determining (a) if JHA MC will enter into this Agreement with Customer; (b) if JHA MC will provide all or any of the Services to Customer under this Agreement; and (c) the credit and account processing standards and limits that JHA MC will apply to the processing of Customer’s Entries. Subsequent to the initial acceptance and set-up of Customer for JHA MC’s provision of the Services, JHA MC may from time to time request that Customer provide updated information and supporting documentation to JHA MC to confirm Customer’s then-current business and credit status, which Customer shall apply best efforts to deliver to JHA MC within three (3) business days following receipt of JHA MC’s written request. Any failure by Customer to provide the information and supporting documentation requested by JHA MC via the application or by other means within a timely manner shall be deemed to be a material breach of this Agreement by Customer.
2.2 When Customer’s application has been accepted and approved by JHA MC, JHA MC, either directly or through a Reseller who has contracted for the delivery of Services with Customer, shall provide the Services selected by Customer in its application. Customer shall utilize and access the Services in accordance with the terms of this Agreement and the practices and procedures established by JHA MC for the Services which have been communicated in writing to Customer. As part of the Customer set-up and boarding process:
JHA MC will provide Customer with the necessary user name(s) and password(s) (“Password”) to access the Services which are hosted on JHA MC’s processing system. Customer will designate an Administrator who shall be vested with the authority to determine who will be authorized to use the Services; establish separate passwords for each user; and establish limits on each user’s authority to access information and conduct transactions. Customer is responsible for the actions of its Administrator, the authority the Administrator gives others to act on Customer’s behalf, and the actions of the persons designated by the Administrator to use the Services. Customer shall take reasonable security procedures and practices to safeguard the confidentiality of the passwords; limit access to its passwords solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating Transactions in the Services without proper authorization and supervision and adequate security controls.
2.3 JHA MC or a Reseller may make available to Customer end-user training and/or Courseware to assist Customer in understanding and using the Services and the JHA MC processing system. The Courseware is a proprietary product of JHA MC and its licensors and is provided to Customer for its sole internal use. JHA MC and its licensors reserve all ownership rights in and to the Courseware materials. For training classes performed by JHA MC or the Reseller at Customer’s site, Customer shall pay the applicable onsite training class fee quoted by JHA MC or the Reseller and the reimbursable out-of-pocket travel expenses of the JHA MC or Reseller trainer who travels to and from Customer’s location to deliver the training session. For on-line classes and e-Learning modules provided by JHA MC or the Reseller, Customer shall pay the training class fee specified upon registration. If JHA MC or the Reseller offers a Courseware license which permits the Customer to perform its own internal training classes for the personnel of Customer and its Customers, Customer shall pay the annual Courseware license fee quoted by JHA MC or the Reseller for use of the Courseware modules licensed by Customer for this purpose.
3. REFUND, RECOUPMENT AND SET-OFF:
3.1 JHA MC will send an ACH debit on JHA MC’s behalf to Customer’s Settlement Account to collect the funding for the Transactions initiated by Customer. Any return by Customer of the debit sent to collect the cumulative amount for all daily payments is strictly prohibited and shall constitute breach of contract by Customer. As soon as notice is provided to Customer that any debited funds have been returned, Customer shall wire to JHA MC on that same day immediately available funds in the amount of any returned debit. Customer acknowledges that time is of the essence in its obligation to cover immediately any such returned debited funds. Further, Customer shall indemnify JHA MC from any and all actual direct loss suffered by JHA MC from any such incorrectly returned debit. All funds held by JHA MC overnight will be held for safety in overnight investment accounts. Interest, if any, on such funds will be paid to JHA MC as part of its compensation for the Services.
3.2 Customer hereby acknowledges and agrees that JHA MC shall have a right of setoff against:
(a) any amounts JHA MC would otherwise be obligated to deposit into Customer’s account, and
(b) any other amounts JHA MC may owe Customer under this Agreement.
3.3 Right to Refund. Customer may request a refund of a Transaction, by contacting Customer Service, if:
(a) the instructions as to where the funds should be forwarded or transmitted have not been complied with by JHA MC; or
(b) the funds have not been committed, forwarded or transmitted to the designated recipient within ten (10) calendar days of JHA MC’s receipt of the funds.
4. PRICING AND PAYMENT:
4.1 Customer shall pay Reseller the fees, penalties and charges for the Services or Courseware shown in Exhibit A or the then-current fee schedule in effect for Customer. All amounts are stated and due and payable in U.S. dollars, and are exclusive of any taxes or other charges which may be imposed by a government entity on the Services or Courseware, except for taxes due on JHA MC’s or the Reseller’s income. Customer shall pay all fees invoiced according to the directions set forth in Exhibit A.
4.2 Customer shall pay Reseller for the Services in accordance with the written agreement between Reseller and Customer. Reseller is responsible for providing Customer with an accurate statement of all fees due for the Services.
5. NACHA RULES AND JHA MC GUIDELINES: Each party shall comply with the then-current NACHA Rules which apply to ACH Transactions processed under this Agreement. In addition, JHA MC may publish to Customer and other customers its own standard operating and implementation guidelines for the Services with respect to specific NACHA Rules which will govern and apply to this Agreement as if set forth herein.
6. CONFIDENTIAL INFORMATION AND SECURITY PROCEDURES:
6.1 Customer shall protect and maintain the confidentiality of all Confidential Information disclosed by JHA MC to Customer under this Agreement and comply with the security procedures described in this Agreement and in any JHA MC policies and procedures communicated in writing to Customer. Customer acknowledges that the purpose of these security procedures is for verification of authenticity of a Transaction and not to detect an error in the transmission or content of a Transaction. No security procedure for the detection of any such error has been agreed upon between JHA MC and Customer. Customer is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions.
6.2 Customer understands that the password and Services access and use instructions provided by JHA MC are confidential and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any party whatsoever except for JHA MC, whether such disclosure of use are on account of Customer’s negligence or are deliberate acts. Customer acknowledges that no person from JHA MC will ever ask for any password and that JHA MC employees do not need and should not ask for Customer’s password.
6.3 Customer shall change its password periodically and whenever anyone who has had access to a password is no longer employed or authorized by Customer to use the Services. JHA MC may require Customer to change its password at any time. JHA MC may deny access to the Services without prior notice if it is unable to confirm to its satisfaction any person’s authority to access the Services or if JHA MC believes such action is necessary for security reasons.
6.4 Customer acknowledges that the Services and Software provided by JHA MC under this Agreement incorporates trade secrets of JHA MC and its licensors, and as such is protected by civil and criminal law. Customer shall notify JHA MC immediately of the unauthorized possession, use or knowledge of any item supplied under this Agreement by any person or organization not authorized by this Agreement to have such possession, use or knowledge. JHA MC shall have, in addition to any other remedies available to it at law or equity, the right to seek injunctive relief enjoining any wrongful use or possession of the trade secrets contained in the Services or Software by any party. Customer acknowledges that irreparable harm will occur to JHA MC in the event of such wrongful use or possession of the trade secrets contained in the Services or Software and that other remedies are inadequate.
7. CONSUMER TRANSACTIONS; DATA PRIVACY AND SECURITY
7.1 Customer acknowledges and agrees that at the time of execution of this Agreement only business-related Transactions may be processed under this Agreement. No consumer Transactions for personal, family or household purposes shall be submitted without JHA MC’s prior written consent, which may be withheld in JHA MC’s sole discretion. In the event JHA MC grants such written consent, the following sub-sections shall apply.
7.2 In accordance with applicable data privacy laws and regulations, which may include but not be limited to the Gramm-Leach-Bliley Act (“GLBA”) and the Health Insurance Portability and Accountability Act (“HIPAA”), JHA MC shall not disclose or permit access to or use of the non-public personal information of individual consumers made available by Customer to JHA MC for any purposes other than those specifically required to fulfill JHA MC’s contractual obligations with Customer. JHA MC shall not sell the consumer information for any reason. In connection with providing services to Customer, JHA MC shall take all commercially reasonable steps to ensure the privacy and security of the consumer information in JHA MC’s possession and protect against anticipated threats and hazards to the security of such information. JHA MC shall take all commercially reasonable steps to prevent unauthorized access to or use of such consumer information that could result in substantial harm or inconvenience to Customer or its consumers. In the event any court or regulatory agency seeks to compel disclosure of the information, JHA MC shall, if legally permissible, promptly notify Customer of the disclosure requirement and will cooperate so that Customer may at its expense seek to legally prevent this disclosure of the information.
7.3 JHA MC’s parent company, Jack Henry & Associates, Inc. (“JH”), has separately published its data privacy and security compliance commitment to its and its affiliated companies’ customers, which corresponds at a minimum to the provisions of this Section 7 as of the effective date of this Agreement. To the extent that additional commitments are reflected in future published versions of this policy, these additional commitments shall be incorporated as part of this Agreement without further actions by the parties. In no event shall a future published data privacy and security compliance statement lessen or eliminate any of the commitments stated in this Section 7.
7.4 If a breach of security results in an unauthorized intrusion into JHA MC’s systems which directly and materially affects Customer or its consumers, appropriate measures will be taken to stop the intrusion; JHA MC will report on the intrusion to Customer within a reasonable time after discovery of the intrusion and report the subsequent corrective action taken in response to the intrusion; and provide reasonable assistance to Customer to support any mandatory disclosures about the intrusion to its consumers as required by law. If law enforcement agencies are notified about the intrusion, JHA MC may delay its notification of the intrusion to Customer until authorized to do so by the law enforcement agencies.
8. WARRANTIES:
8.1 JHA MC warrants to Customer that its Services will be performed in a professional and timely manner consistent with industry standards and in accordance with the NACHA Rules and applicable laws and regulations and any written JHA MC policies and procedures communicated by JHA MC to Customer. In the event that Customer discovers an error in the Services or Software which has been caused by JHA MC, if Customer has contracted directly with JHA MC for the Services, Customer shall immediately notify JHA MC of the existence and details of the error; if Customer has contracted with a Reseller for the Services, then Customer shall provide this notification to Reseller. JHA MC shall apply commercially reasonable efforts to correct the error within a reasonable time after JHA MC’s receipt of notification of the error. EXCEPT FOR THE FOREGOING WARRANTY, JHA MC MAKES NO OTHER WARRANTIES FOR THE SERVICES PROVIDED BY JHA MC AND JHA MC DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JHA MC does not guarantee the completeness or accuracy of the information provided from a third-party database. JHA MC shall have no liability to Customer for any invalid Customer information provided by Customer or Entries returned unpaid to Customer.
8.2 Customer warrants that:
(a) all Transactions submitted to JHA MC for processing will comply with applicable laws and regulations and the NACHA Rules pertaining to the Transactions;
(b) Customer will comply with all laws, regulations and the NACHA Rules applicable to Customer’s activities covered by this Agreement;
(c) all information provided by Customer initially in its application and supporting documentation and subsequently in all updates to its application and supporting documentation provided to JHA MC pursuant to Section 2.1 above is valid, complete, accurate and up-to-date;
(d) the individual signing and submitting this Agreement, the application for purchase of the Services from JHA MC, and all future updates to the application and supporting documentation has the legal authority to make and bind Customer to the agreements, warranties and commitments stated in this Agreement and the submitted application on Customer’s behalf; and
(e) only business-related Transactions may be processed under this Agreement and no consumer Transactions for personal, family or household purposes shall be submitted without JHA MC’s prior written consent pursuant to Section 7.1.
(f) It is JHA MC’s corporate policy not to knowingly provide processing Services for any person or organization whose use of the processing Services involves or pertains to, and Customer acknowledges and agrees that, it is strictly prohibited for Customer to utilize the JHA MC Services for, any activity which is illegal under U.S. law or involves an activity or business with which JHA MC declines to accept and conduct business generally (“Excluded Activity or Activities”). Customer warrants that it will not utilize the Services with respect to any of the Excluded Activities, which include but are not limited to the following:
(1) Cash Advance/Check Cashers/ Payday Loan Business
(2) Bank Drafts, Remotely Created Checks or Electronically Created Payment Orders
(3) Government Grant or Will-Writing Kits
(4) International ACH Transactions (IAT)
(5) Internet Gambling payments (see Regulation GG)
(6) Internet Tobacco or Firearms Sales
(7) Predatory consumer lending business
(8) Pornography or other Sexually-Oriented Businesses
(9) Psychic or Horoscope Consultation Services
(10) Sweepstakes
(11) Shell Banks
(12) Used car dealerships exporting cars
(13) Foreign businesses importing cars
(14) Title Loan Businesses
(15) Embassy/Foreign Consulate/Foreign Mission Accounts
(16) Cannabis Products (i.e. marijuana, hemp and CBD)
(17) Crowdfunding
(18) Consumer Debt Collection Agencies
(19) Cryptocurrency Businesses
(20) Hate groups
JHA MC may publish to its resellers and customers from time to time a more detailed and comprehensive list of businesses and activities which JHA MC includes within the scope of Excluded Activities. JHA MC reserves the right to reject and to refuse to process a Transaction that JHA MC deems, in its sole discretion, may constitute use the processing Services in conjunction with any Excluded Activity. If JHA MC has reason to believe that the Customer is utilizing the processing Services in conjunction with an Excluded Activity, JHA MC may immediately terminate its provision of processing Services to Customer immediately upon written notice to Customer.
If JHA MC encounters activity which it believes may be suspicious, as determined in JHA MC’s sole discretion, Customer agrees to promptly provide such support and information as JHA MC may reasonably request for investigating and/or reporting of such transactions to governmental entities.
8.3 Each party represents and warrants to the other that it has (i) taken all corporate action necessary for the authorization, execution and delivery and performance of this Agreement, and (ii) no agreement or understanding with any third party that may prevent, prohibit, or substantially hinder its performance of its obligations under this Agreement.
9. INDEMNIFICATION:
9.1 JHA MC shall indemnify, defend and hold Customer harmless from and against all claims, actions, losses and expenses, including reasonable attorney’s fees and legal costs, incurred by Customer arising out of a third party claim that the Services or Software owned and provided by JHA MC under this Agreement infringe the valid United States intellectual property rights of the third party, provided that JHA MC is promptly notified by Customer of its receipt of notice of such claim, is given control of the defense or settlement of such claim, and is given reasonable assistance requested by JHA MC at JHA MC’s cost with regard to such claim.
9.2 Customer shall indemnify, defend and hold JHA MC and its third party service providers harmless from and against all claims, actions, losses and expenses, including fines, penalties, reasonable attorney’s fees and legal costs, incurred by JHA MC or its third party service providers arising out of (a) Customer’s breach of this Agreement, the NACHA Rules or applicable laws and regulations; (b) incorrect or incomplete data or information provided by Customer in the submission of a Transaction to JHA MC, a closed Settlement Account, or insufficient funds in the Settlement Account, or return of an ACH debit on the Settlement Account initiated by JHA MC, and/or (c) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Transactions by Customer or a third party who has gained access to the Services through the use of Customer’s password.
10. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL JHA MC OR ITS THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except as otherwise required by law, in no event shall JHA MC be liable for damages for non-delivery or delay of a payment transaction, unless arising from the gross negligence or willful misconduct of JHA MC. Further, JHA MC will remain liable to Customer in the event JHA MC deposits funds into an account other than the account specified by Customer or forwards funds to a third-party location which was not designated by Customer, to the extent the error is caused by the acts of JHA MC, and JHA MC, Reseller, or an authorized third party is unable to recover the funds. Except for (1) JHA MC’s indemnification liability stated in Section 9.1 above; (2) actual, direct damages arising from any action or omission of action by JHA MC which constitutes the gross negligence or willful misconduct of JHA MC; or (3) return of the amount of funds that JHA deposited into the incorrect account or forwarded to a third-party location which was not designated by Customer and was unable to recover, the sole remedy of Customer and JHA MC’s aggregate, cumulative liability to the Customer for all claims of actual direct damages relating to the Services, this Agreement, or the relationship between JHA MC and Customer, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees earned by JHA for Services delivered under this Agreement during the three (3) month period preceding the origination of the claim giving rise to liability.
11. TERM AND TERMINATION:
A. Term: This Agreement shall have an initial term of three (3) years from and after the Effective Date. Upon expiration of the initial term, this Agreement shall automatically renew for additional consecutive twelve (12) month terms unless either party gives written notice of its election not to renew this Agreement to the other party no later than sixty (60) calendar days prior to the end of the then-current term.
B. Termination For Cause:
(a) Termination Due to Material Breach: This Agreement may be terminated by either party for cause upon giving the other party written notice of the breach of this Agreement committed by the other party and giving the other party a reasonable time to cure the breach. For the purpose of this Agreement, a reasonable time to cure the breach specified in the written notice shall be deemed to be:
(1) For any breach of Sections 2.1, 2.2, 3.1, 3.3, 4.1, 6, 7.1 or 8.2 above: Five (5) business days from receipt of written notice.
(2) For all other types of breach of this Agreement, except as provided below: Thirty (30) calendar days from receipt of written notice of the breach.
Notwithstanding the foregoing, in the event either party materially breaches any provision of this Agreement by fraud, act of intent to defraud, failure to notify the other party of a material change in party’s financial structure or a material change in the information originally provided to induce the other party to enter into the Agreement, the non-breaching party may immediately terminate this Agreement in writing without giving the breaching party an opportunity to cure the breach with prior written notice.
(b) Termination Due to Changed Circumstances: JHA MC reserves the right to terminate this Agreement in whole or in part at any time due to the occurrence of any of the following changed circumstances:
(1) Customer becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights, any of which in JHA MC’s reasonable judgment impairs the ability of Customer to perform its responsibilities under this Agreement;
(2) In JHA MC’s sole judgment, there is a deterioration or other materially negative change in Customer’s financial status or structure which increases the financial risk being assumed by JHA MC in processing Customer’s Transactions;
(3) There is a change in the laws, regulations, regulatory guidance, or NACHA Rules that are applicable to this Agreement and JHA MC’s provision of any of the Services which restricts or prohibits JHA MC from providing the affected Services to Customer, would be reasonably likely to cause material liability relating to legal or regulatory issues for JHA MC, or which presents reputational risk to JHA MC or would significantly increase JHA MC’s costs in providing the affected Services to its customers generally; or
(4) Customer’s business and/or assets are acquired by a competitor of JHA MC,
In these instances, JHA MC will provide written notice of the termination on this basis to Customer, which shall become effective upon receipt by Customer.
C. Termination for Convenience: Either party may exercise the right to terminate this agreement without cause and for its convenience by giving the other party at least thirty (30) days prior written notice of such termination.
12. GENERAL PROVISIONS:
a. Governing Law Venue: This Agreement is governed by and will be construed in accordance with the laws of the State of Missouri, without reference to its conflict of laws provisions. Customer consents to jurisdiction and venue of all state and federal courts located in the State of Missouri.
b. Notice: Any notice required under this Agreement must be in writing and is deemed received on the business day after (i) delivered to the appropriate address by hand or by nationally recognized overnight courier service, or (ii) sent electronically via a commercially reasonable method to the attention of the undersigned or designated contact, or (iii) received or rejected by the addressee if sent by certified mail, return receipt requested, in each case to the addresses and marked to the attention of the person (by name or title) designated on the signature page (or to another address, or person as a party may designate by notice to the other party). Customer shall also deliver a copy of any notice of breach of contract to the attention of JH’s Legal Department at [email protected].
c. Assignment: This Agreement binds and benefits the parties and their successors and assigns and may not be assigned or transferred by Customer voluntarily, involuntarily, or by operation of law without the written consent of JHA MC, which shall not be unreasonably withheld.
d. Legal Fees: In the event of any dispute arising out of or related to the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and collection expenses in addition to any other recovery.
e. Force Majeure: If performance by JHA MC, its third party service providers or any of their respective affiliates, of any Services or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of acts or events beyond their reasonable control, including but not limited to labor disputes and strikes; acts of nature, fire, floods, lightning, hurricanes, earthquakes or severe weather; utility or communications failures; failures of the ACH network or Federal Reserve Bank system; computer-associated outages or delay in receiving electronic data; war, civil commotion or acts of terrorism; or the introduction of any new law, order or regulation which prohibits or restricts performance of this Agreement, then JHA MC its third party service providers and their respective affiliates affected by the occurrence of such acts or events shall be excused from their performance hereunder to the extent of the prevention, restriction, delay or interference.
f. Amendments: Unless otherwise expressly provided in this Agreement, this Agreement can be modified or altered only by a written instrument that specifically references this Agreement and is signed by a corporate officer of both parties. No handwritten changes or other manual changes made to the face of this Agreement will be effective, whether or not initialed or signed by one or more parties.
g. Entire Agreement: This Agreement supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter and contains the entire agreement between the parties with respect to the subject matter.
h. Publicity and Marketing Efforts: Neither party shall issue any press release, public endorsement, public announcement, or other public statement arising out of or relating to this Agreement or the relationship of the parties, without the prior written consent of the other party. Customer acknowledges and agrees that this Agreement does not include any rights to participate in any JH events, trade shows, or other marketing efforts. Any such rights must be mutually agreed upon in a separate agreement.
i. Trademarks: Each party agrees that is will not use the names, trademarks, or service marks (“Marks”) of the other party in any medium or manner, without the prior written consent of the other party. Each party agrees it will not use the other party’s Marks in a manner which misappropriates or infringes any third-party’s Marks, or which may reasonably be anticipated to diminish the value of a Mark or the owning party’s rights therein. Without limiting the foregoing, Customer shall only use the JH Marks in accordance with the JH Trademark Usage Guidelines, as in effect from time to time.
j. Drafting: References to sections, subsections, and exhibits refer to the sections, subsections, and exhibits of this Agreement. References to a particular section of this Agreement refer to all of its subsections. All provisions of this Agreementwill be construed as consistent with one another whenever possible. Whenever the context requires, the singular number will include the plural and vice versa, and any gender will include both genders. The words “include”, “includes”, “included” and “including” and variations are terms of inclusion without limitation. The captions and headings are for convenience only and will not affect the interpretation of this Agreement. The parties have jointly negotiated and drafted this Agreement. No presumption or burden of proof will favor or disfavor either party by virtue of authorship.
k. Time Limitation on Cause of Action: No action arising out of this Agreement may be brought by Customer or JH more than two (2) years after the cause of action has accrued. The prevailing party in any litigation conducted in relation to this Agreement will be entitled to recover its reasonable attorneys’ fees from the other party.
l. Relationships; Third Party Beneficiaries: The parties are independent contractors and have no legal right or authority to make any binding commitments on behalf of each other. Each party is responsible for providing insurance, workers compensation, and other benefits to its own personnel. Nothing in this Agreement creates any third-party beneficiaries.
m. Subcontractors: JH may use subcontractors at its discretion. JH is responsible for the performance of its subcontractors to the same extent as if JH itself performed the activity itself.
n. Signatures: This Agreement may be executed by manual or electronic signatures in counterparts, which are each an original document.
o. Waiver: Waiver of any provision of this Agreement is not a waiver of any other provision, nor is a waiver of any breach of this Agreement construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
p. Survival: All provisions in this Agreement which by their nature and intent should survive expiration or termination, including, but not limited to, Sections 6, 7, 8, 9, 10, and 12, will survive the expiration or termination of this Agreement.
q. Severability: If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of the provision to other persons or circumstances will be interpreted so as to reasonably effect the intent of the parties.