Version: July 13, 2021
By accessing and using the payment processing services provided by Yardi Systems, Inc., and its affiliated entities including Yardi Kube, Inc. (collectively, “Yardi”), you acknowledge that you, your business and anyone who is permitted to access and use the payment processing services (“Client”) have read, understand and agree to be bound by the latest version of these Payment Processing Terms (posted at https://resources.yardi.com/legal/payment-processing/yardi-kube/), which will be updated from time to time (the “Terms”). Client acknowledges that, with respect to credit card or debit card Transactions, Yardi is entering into the Terms on behalf of and as an agent of the applicable Acquirer.
1. Definitions. For purposes of the Terms, the following capitalized terms shall have the meanings set forth below.
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 Processor” means the ACH processor and originator who has contracted with Yardi to process ACH Transactions, which is currently Jack Henry & Associates, Inc., ProfitStars Division, located at 663 West Highway 60, Monett, MO 65708.
c. “Acquirer” means (i) with respect to Transactions initiated with an American Express-branded payment method, American Express Travel Related Services Company, Inc., located at 3 World Financial Center, 200 Vesey Street, 49th Floor, New York, NY 10285, (ii) with respect to ACH Transactions, the ACH Processor, and (iii) with respect to all other Transactions, a member bank that has contracted with Yardi to provide Payment Services and which is licensed to participate in the card acceptance programs affiliated with Visa, Mastercard, Discover and other Payment Networks that enable Users to purchase goods and services.
d. “Applicable Law” means: (i) any applicable law, statute, regulation, ordinance, or subordinate legislation to which 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.
e. “Chargeback” means a Transaction that is disputed at the request of either the User or the User’s card issuer. A Chargeback will cause the amount of the original sale and a Chargeback fee to be deducted from Client’s bank account.
f. “Check 21” means the Check for the 21st Century (Check 21) Act and all regulations pertaining to the Check 21 Act.
g. “CHECKscan” means the process by which paper checks are scanned and converted into an electronic form for payment and automatically recorded within the software.
h. “CHECKscan Full-Service”means the process by which Yardi, on behalf of Client, will collect checks and/or money orders mailed to Client’s Lockboxes and scan such checks and/or money orders into the software making it available for the Client to post such amounts to the appropriate ledgers.
i. “Data” means bank account, credit card, debit card and other personal information in respect of Users, Third Parties and Client obtained by Yardi in order to process Transactions.
j. “Lockboxes“means one or more post office boxes with the United States Postal Service, established by Yardi in the name of, and to access as agent for and on behalf of the Client.
k. “Payment Network” means Visa USA, Inc. (“Visa”), Mastercard International, Inc. (“Mastercard”), Discover Financial Services, LLC, American Express Travel Related Services Company, Inc. (“American Express”), the National Automated Clearing House Association or any other regional ACH used to process ACH Transactions (“NACHA”), their affiliates, and such other payment card networks, brands and associations that Yardi may make available through the Payment Services from time to time.
l. “Payment Network Rules” means the written rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted, and as amended from time to time, by the relevant Payment Network. The term “Payment Network Rules” includes, but is not limited to, the Visa Core Rules and Visa Product and Service Rules available at https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf, Mastercard’s Rules and Transaction Processing Rules available at https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html, (“Amex MOG”) available at www.americanexpress.com/merchantopguide, and the NACHA Operating Rules and Guidelines, as such rules may be amended from time to time.
m. “Payment Services” means Yardi’s online payment and payment processing services set forth in these Terms.
n. “PCI-DSS” means the Payment Card Industry Data Security Standard.
o. “Portal” means the Yardi card services system, which is a payment-only portal to which Users are redirected when using RentCafe, COMMERCIALCafé, or CondoCafe and through which Users have the option to make payments through an online payment channel.
p. “SAAS Agreement” means that certain SAAS subscription agreement between Yardi and Client.
q. “Sweep” means ACH funds transfer of the proceeds of card sales processed through Client’s sponsored merchant account(s) from Yardi’s master merchant account to the bank account(s) specified by Client at implementation.
r. “Third Party” means Client’s supplier, vendor or other third party to which Client makes a Bill-Pay Payment.
s. “Transaction” means i) any debit, credit, ACH, check or walk in payment submitted for processing by a User, including but not limited to prospective tenant application fees, tenant rent payments, other document fees, applicable service fees, and resubmission of rejected items, or ii) Bill-Pay Payment.
t. “Users”means tenants and prospective tenants managed by Client, who make a Transaction. With respect to CondoCafe Certificates only, Users shall mean tenants and prospective tenants managed by Client, and other third parties including but not limited to real estate brokers and attorneys who make a Transaction as defined above. With respect to Yardi Kube, Users shall mean members and guests of Client who make a Transaction as defined above.
u. “Utility Billing Services Agreement” means that certain Utility Billing Services Agreement by and between YES Energy Management, Inc., a Colorado corporation and Client.
v. “Yardi Bill-Pay Payment” and “Bill-Pay Payment” means the ACH, static card number payment, virtual card number payment, or physical check payment made by Client.
2. Fees. The Payment Services Fees (“Fees”) per Transaction are as follows:
a. Signature debit card:
i. Where Transaction amount is less than $1,000.00 per Transaction: $3.95
ii. Where Transaction amount is equal to or greater than $1,000.00 but less than $2,000.00 per Transaction: $4.95
iii. Where Transaction amount is equal to or greater than $2,000.00: $9.95
b. Credit cards:
i. Mastercard, Visa, Discover, AMEX: 2.5%
c. ACH: $0.95
d. CHECKscan: $0.50
e. CHECKscan Full-Service: $1.00 per Check, plus $1,200.00 per Lockbox per year
f. Yardi Bill-Pay Payments:
i. ACH Bill-Pay Payments: $1.00 per Transaction
ii. CHECK Bill-Pay Payments: $1.00 per check
g. Transaction adjustments for credit cards and debit cards:
i. Per Occurrence Fees (such as Chargebacks, and the like): $25.00
ii. Retrieval Fee: $25.00
h. Adjustments: $40.00
The Fees may be amended by Yardi in its reasonable sole discretion. Yardi will, upon Client’s written request, provide the Client with the then-current schedule of Fees.
3. Payment Processing Implementation. During implementation of Yardi’s Payment Services, Client shall:
a. Select whether the Client or the User shall be responsible for paying the Fees associated with each Transaction type; and
b. Select the types of Transactions to be made available to the Users from the available configuration options, which may be limited by Applicable Law in any particular jurisdiction and by the selection in subsection a., immediately above.
Note that the payment of applicable Fees by a User do not appear in the Client’s general ledger, and the payment of applicable Fees by the Client will be handled by way of an invoice from Yardi to Client, which Client acknowledges and agrees to pay.
4. Payment Processing Transactions and Sweeps. Unless otherwise agreed to in writing by Yardi, all Transactions shall be processed through Yardi’s master merchant account with Yardi’s ACH Processor. Client will generally receive Sweeps of Client’s: (i) Mastercard, Visa and Discover credit card funds from Client’s sponsored-merchant account(s) within four business days after such Transaction(s); (ii) American Express credit card funds from Client’s sub-merchant account(s) on the fifth business day after such Transaction(s); and (iii) all debit card and any other Transaction funds (including ACH Transaction funds) within four business days.
5. Client Portal Content. With respect to any content or trademarks provided by Client for use in connection with any Portal, Client represents that Client has all necessary right, title, and/or interest in and to any such content or trademarks, and agrees to defend, indemnify and hold Yardi harmless from and against any claims, damages or losses resulting from a breach of the foregoing warranty.
6. Utility Expense Management Setup. If Client obtains utility billing or utility expense management related services from YES Energy Management, Inc. or its affiliated companies, Client may engage Yardi to perform certain Payment Services associated with such utility billing services. Client authorizes Yardi to setup and configure records for utility billing vendors and update such vendor ACH account information as needed. Client acknowledges and agrees that it is the sole responsibility of Client to ensure and verify the accuracy of ACH account information, irrespective of whether the Client or Yardi, at the Client’s direction, makes such changes.
7. Transaction Limits. Yardi establishes Transaction limits in its sole discretion. Limits are established to conform with rent payments and to reduce the risk associated with funds transfer activities.
8. Client Representations, Warranties, and Covenants. Client represents, warrants and covenants to each of the following:
a. Client Authorizations. In connection with the Payment Services, Client expressly authorizes (i) Yardi to accept on behalf of Client any Payment Network-branded card or other payment method that Yardi makes available, in its sole discretion, to Users through the Payment Services, to submit charges on such payment methods on Client’s behalf, and to receive settlement from the applicable Payment Network for authorized charges, each in accordance with the applicable Payment Network Rules; and (ii) a Payment Network or Acquirer to establish a reserve against Client in the event Client is designated as the recipient for payments directly from a Payment Network or the Acquirer. Client acknowledges that Yardi’s approval of Client to use the Payment Services is subject at all times to the approval of the Acquirer or a Payment Network.
b. Compliance. Client is a legitimate business and will use the Payment Services only for legal purposes and in compliance with all Applicable Law, Payment Network Rules (including any Payment Network Rules specific to Client’s business or industry), the Terms, and any other Yardi policy, procedure or other requirement relating to the Payment Services (including any policies against restricted or prohibited goods or services), as each may be amended from time to time. In the event of any conflict between these Terms and a Payment Network Rule, the Payment Network Rule will control. Client acknowledges that a Payment Network or Acquirer has the right to enforce the applicable Payment Network Rules and to prohibit Yardi and/or Client from engaging in conduct that the Payment Network or Acquirer deems could injure or could create a risk of injury to the Payment Network, including injury to reputation, or that could adversely affect the integrity of the Payment Network’s systems and/or confidential information. Client agrees not to take any action that could interfere with or prevent the exercise of such right by the Payment Network or Acquirer, or Yardi’s or its Acquirer’s compliance with the Payment Network Rules.
c. Payment Network Marks. Client acknowledges that: (i) each Payment Network is the sole and exclusive owner of its respective marks; (ii) Client will not contest the ownership of any such marks for any reason; and (iii) the relevant Payment Network may, at any time, immediately and without advance notice, prohibit Client from using any of its marks for any reason.
d. Information Requests. Client shall promptly provide to Yardi, upon request from time to time during its use of the Payment Services, with all requisite information necessary for Yardi to perform the Payment Services, monitor Client’s activities and use of the Payment Services for the purpose of deterring fraud and other wrongful activities (including site surveys of Client’s physical, electronic or other establishments), perform verification checks (including credit, KYC and AML checks), and to ensure Client’s compliance with the Terms, Applicable Law, and the Payment Network Rules. Such requested information may include the names of Client’s principals and their country of domicile, current address of Client’s offices, all DBAs used by Client, Client’s URLs, Client’s customer service contacts for User disputes and inquiries, a complete description of Client’s goods or services paid for through the Payment Services, and bank and other financial statements and information.
e. Information Sharing. Client acknowledges that Yardi may share information about Client and its Transactions with its Acquirer or a Payment Network (including its affiliates, agents, subcontractors, and employees), and for the Acquirer or Payment Network (including its affiliates, agents, subcontractors, and employees) to use such Client and Transaction data to perform its services, operate and promote the Payment Network, perform analytics and create reports, and for other lawful purposes or as permitted under the relevant Payment Network Rules.
f. User Relations and Customer Service. Client shall maintain customer service information that is readily available for review by Users in accordance with Applicable Law and Payment Network Rules. The customer service information should provide clear instructions on how to contact the Client, including an active customer service email address and telephone number. Client shall further ensure that its refund policies for payments made through any given Payment Network are at least as favorable as its refund policies for purchases on any other payment method, and that such refund policies are clearly and conspicuously disclosed to the User. Client shall not bill or collect from any User for any payments made by the User through the Payment Services unless a Chargeback has been exercised, Client has fully paid for the charge, and Client otherwise has the right to do so.
g. Employees Agents and Representatives. Client is solely responsible for the performance of its obligations, and those of its employees, agents and representatives, in connection with Client’s use of the Payment Services.
h. Data Security. Client shall maintain sufficient safeguards to protect any cardholder, Transaction or Third Party information in its possession and shall comply with Applicable Laws and Payment Network Rules relating to the security of such information, including the PCI-DSS. Yardi may from time to time request evidence of Client’s compliance with its data security obligations. Client may not otherwise disclose any User cardholder account, Transaction data or Third Party data to any third-party except as permitted under Applicable Law or the Payment Network Rules.
i. Payment Network Liability. At Yardi’s discretion, Client agrees to pay all fines, fees, penalties and other assessments or indebtedness levied by a Payment Network to Yardi which are attributable in any way to any act of or omission by Client.
j. Direct Acquiring Agreement. In the event that Client processes: (i) one million dollars ($1,000,000) or more in Visa transactions (or such other amount as Visa may determine from time to time); or (ii) one million dollars ($1,000,000) or more in Mastercard transactions (or such other amount as Mastercard may determine from time to time), in each case in any 12-month period, then Client agrees to the terms and conditions of the separate payment processing agreement with the Acquirer, available at https://clientcentral.yardi.com/core_custompage/WorldPay_MSA_Sub-Merchants and incorporated herein by this reference.
k. American Express Additional Terms. In addition to all other obligations established by the Terms, Client agrees to the terms and conditions set forth in the AMEX MOG, available at www.americanexpress.com/merchantopguide and other similar terms that maybe published by American Express, which are incorporated herein by this reference.
l. Forensic Investigations. If Client is undergoing a forensic investigation at the time these Terms become effective, Client agrees to fully cooperate with the investigation until completed.
m. Prohibited Acts. Client will not: (i) take any action that results or may result in a significant circumstance that creates harm or loss of goodwill to any Payment Network, Acquirer or Yardi; (ii) accept, and will ensure that its Users do not initiate or deposit, any Transactions that Client knows or should have known to be either fraudulent, not authorized by the User, or made on behalf of or redirected to another party; or (iii) transfer or attempt to transfer its financial liability by asking or requiring Users to waive their dispute rights. In addition, Transactions shall not include payments between and among Client’s partners, investors and other third parties not affiliated with rent.
n. Client Duty to Inform. For anti-money laundering and other lawful purposes, Client agrees to immediately notify Yardi: (i) regarding circumstances concerning Client or its parent or owner that result in or pose a significant risk to Client’s financial status; (ii) about changes relating to Client’s address, its management, its board or other changes having a significant effect on the Client’s ownership structure; (iii) if there are any material changes with regard to the type of products or services offered by Client as reported to Yardi in the applicable Client application or if the name under which Client conducts its business is changed; or (iv) if there are any other material changes relating to Client or its activities.
o. Chargebacks, and Other Fees. Client acknowledges and agrees to pay all fees and other charges, including any statement, service, Chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client’s Transactions.
p. OFAC Obligations. Client expressly acknowledges and agrees to the following Office of Foreign Asset Control (OFAC) obligations:
i. Client shall not use any of the Payment Services , or allow any Payment Services to be used, for any purpose other than the payment of rent and related charges by Users who physically occupy the dwelling for which the rent payment or related charges apply.
ii. Client shall at all times comply with all OFAC requirements and fulfill all OFAC responsibilities that apply to Client concerning the administration and enforcement of economic and trade sanctions against targeted foreign states, organizations, and individuals, including providing any information to Yardi that is reasonably necessary for Yardi to fulfill its obligations under OFAC, if any.
iii. If at any time Client discovers or reasonably believes a User, employee or organization on the Specially Designated Nationals and Blocked Persons List, published from time to time by OFAC (the “OFAC List”), is using the Payment Services for any reason, Client shall immediately notify Yardi and cooperate fully with any subsequent investigation or request for information that may be required in connection with complying with OFAC requirements and all other applicable laws and regulations.
iv. Except to the extent an OFAC violation arises solely as a result of Yardi’s gross negligence or willful misconduct, Client agrees to defend, indemnify and hold Yardi and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, penalties and other liabilities relating to or arising out of any acts or omissions by Client and its parent, subsidiaries, directors, officers, agents, representatives, Users or employees that give rise to an OFAC violation.
9. General Yardi Rights.
a. Availability of Payment Networks. Yardi has the right to suspend or terminate a User’s ability to pay Client using any or all payment methods, including a specific Payment Network-branded payment device, through the Payment Services: (i) at the direction of the relevant Payment Network, the Acquirer or a governmental authority; (ii) for Client’s failure to comply with the Terms, or (iii) in Yardi’s sole reasonable discretion. Client is aware and accepts that the Payment Networks available through the Payment Services may change from time to time and that Yardi may remove any specific Payment Network at any time. Yardi reserves the right to revise, temporarily suspend, discontinue, replace and/or make changes to its Payment Services or any portion thereof, its websites or other User or Client interfaces to the Payment Services, in its sole discretion for any reason from time to time and without notice, provided that Yardi will inform Client prior to any changes that will materially affect the provision of the Payment Services.
b. Restricted Merchant List. If Client violates the Terms or any obligation under the Payment Network Rules, Yardi may report Client to the relevant Payment Network’s restricted or terminated merchant database.
c. Chargebacks, Withholdings and Setoff. Client is fully liable for all charges, Chargebacks, disputes and other customer service issues relating to Transactions or Bill-Pay Payments made through the Payment Services. Yardi reserves the right to withhold from settlement any amount of payments due to Yardi in anticipation of any liabilities, damages, Fees, Chargebacks, refunds and other reversal fees, fines, penalties and other amounts owed by Client to Yardi, including in the following situations: (i) if Client, after a written warning, repeatedly fails to meet its obligations under the Terms, or is otherwise in material breach of the Terms; (ii) if Client experiences a significantly elevated level of Chargebacks, returns or complaints relative to its historic figures; or (iii) if Yardi reasonably suspects that Client’s financial situation has deteriorated significantly. Prior to withholding funds pursuant to this paragraph, Yardi will inform Client of the reason for such withholding. Yardi may retain such withholding until the underlying breach has been cured or the risk has been mitigated to Yardi’s reasonable satisfaction. Yardi may, in its own discretion, offset any amounts owed to Client against any claims Yardi may have against Client. In the event of termination of the SAAS Agreement, Utility Billing Services Agreement, other agreement with Yardi, or the Payment Services by either party, Yardi reserves the right to retain further payments to Client until all amounts due to Yardi are satisfied.
d. Data Use. Yardi shall collect, use and retain Data and/or other personal information of Users or Third Parties for the purposes of providing the Payment Services and for reasonable business record retention purposes. Yardi shall not disclose Data and/or other personal information of Third Parties or Users to third parties except as necessary to provide the Payment Services or as permitted or required by Applicable Law or Payment Network Rules.
e. Right to Audit Transactions. ln accordance with Yardi’s obligation to help prevent and detect potentially fraudulent and or suspicious activity, Client acknowledges and agrees that Yardi may conduct random as well as regular monitoring of individual Transactions or Transaction volume in order to validate that payments are processed and received for legitimate purposes and in accordance with the Terms. Additionally, pursuant to any obligations Yardi has, or may have, concerning the prevention of identity theft, financial fraud, money laundering, terrorist financing etc. Yardi may occasionally need to access Client’s Voyager database in order to review individual Transactions and Transaction volume which appear to be anomalous or suspicious.
10. ACH. In addition to all other obligations established by the Terms, with respect to ACH Transactions, Client agrees to the additional NACHA obligations set forth in Attachment A attached to these Terms and incorporated herein by this reference.
11. Bill-Pay Payment. In addition to all other obligations established by the Terms, with respect to Bill-Pay Payments, Client agrees to the additional terms set forth in Attachment B attached to these Terms and incorporated herein by this reference and also the JHA MONEY CENTER PROCESSING AGREEMENT incorporated herein.
12. CHECKscan. If Client uses or accesses CHECKscan, Client shall comply with all applicable CHECKscan terms and conditions set forth herein or otherwise provided to Client by Yardi from time to time. Transactions with respect to CHECKscan means a check or money order submitted for processing, including resubmissions of rejected items. Client agrees to pay all fees and other charges, including any statement, service, Chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client’s Transactions.
a. Record-Keeping. Client acknowledges and agrees that it shall comply with all record-keeping and User or customer authorization and notification requirements relating to each CHECKscan Transaction and agrees to be responsible for each submitted CHECKscan Transaction and all CHECKscan Transaction returns.
b. Third Party CHECKscan Software. Client acknowledges that Yardi’s CHECKscan software functionality utilizes 3rd party software licensed by Yardi and integrated into CHECKscan for sublicense to Client. Yardi warrants that it has all necessary right, title and interest in and to the 3rd party software to convey the license to CHECKscan. Client acknowledges the 3rd party proprietary rights in and to an integrated portion of CHECKscan. Client agrees that Yardi’s 3rd party software provider is an intended 3rd party beneficiary of the Agreement with respect to the foregoing terms.
c. Direct to Banking Institution. Client agrees that Client must either: (i) utilize a banking institution that is supported by Yardi; (ii) secure the agreement of Client’s banking institution to work with Yardi in interfacing CHECKscan with Client’s banking institution (in which case reasonable time will be necessary to complete the interface in light of the interface requirements), or (iii) sign-up for, and utilize, Yardi’s ACH Processors’ banking institution processing services.
d. Terms Applicable If Client Uses Yardi’s Master Merchant Account with ACH Processor for X9 Transactions. If Client utilizes Yardi’s master merchant account with ACH Processor, Client acknowledges and agrees that: (i) Client may only process User Transactions through Yardi’s master merchant account with ACH Processor; and (ii) Client agrees that Yardi may satisfy reimbursement for any fees and other charges, including any statement, service, Chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client’s Transactions from subsequent deposits to the corresponding bank account.
13. CHECKscan Full-Service. If Client elects to use CHECKscan Full-Service, then the following terms in addition to the CHECKscan terms above will apply.
a. Lockbox Authorization. Client hereby authorizes Yardi to establish in the name of, and to access as agent for and on behalf of, Client, one or more post office boxes with the United States Postal Service at locations to be designated by Yardi (the “Lockboxes”) for the purpose of receiving checks and/or money orders sent by Users to Client pursuant to lease agreements between Client and the Users. Client agrees to execute any and all forms and authorizations as may be required in connection therewith and to bear the out of pocket annual or other periodic post office rental or other fee for establishing and maintaining the Lockboxes. If Yardi pays this cost, Client will promptly reimburse Yardi without markup.
b. Lockbox Pickup and Scanning. Yardi will arrange for the pickup and delivery of all checks and money orders from the Lockboxes to its processing site on a Daily Basis (as defined herein). Daily Basis means Monday through Friday but otherwise on a day when both the United States Post Office at which the Lockboxes are located and open for public businesses. Each check or money order will be scanned into the software through Yardi’s scanning equipment making it available for the Client to post such amounts to the appropriate ledgers. Yardi will keep all checks and money orders for a period of 6 weeks at which time such checks and money orders will be destroyed by cross-cut shredding.
14. Intentionally Deleted.
15. Push to Debit. Yardi’s rent deposit return services provide Client the ability to return security deposits and/or make housing or utility billing reimbursements to a User’s bank account using the User’s debit card (“Disbursement”). Upon termination or expiration of the User’s lease, the User shall have the option to have his or her security deposit returned via “push to debit”. It is the Client’s sole responsibility to return security deposits to Users in compliance with the applicable statutory requirements. Prior to initiating the Disbursement, Client must fund the Disbursement to an Evolve Bank & Trust (“Evolve”) account (“Funding Account”), as instructed by Yardi. When Yardi receives the Disbursement instruction (“Instruction”) from Client, Yardi shall pass the Instruction to Evolve. Evolve then sends the Instruction to the appropriate Payment Network. By delivery of the Instruction to Yardi, Client authorizes Yardi to instruct Evolve to pay the Payment Network with Client funds held in the Funding Account and for Evolve to make such payment. Evolve will notify Yardi in the event of a failed or returned Disbursement. Yardi will then instruct Evolve to return the funds to Client. The Funding Account at Evolve is held in Evolve’s name for the benefit of Client.
16. Termination of Payment Services. Upon notice to Client, Yardi may immediately terminate Client’s use of the Payment Services upon the occurrence of any of the following: (a) Client materially breaches the Terms or Payment Network Rules and fails to cure such breach within 7 days (or such other time as directed by Yardi or its Acquirer) of written notice of a material breach (or if Client cannot reasonably cure the material breach within such time, fails to continuously and diligently work to cure the breach until the breach is cured); (b) Client notifies Yardi, or Yardi receives information that indicates, that Client does not meet Yardi’s underwriting or creditworthiness requirements; (c) Yardi, in its sole reasonable discretion, determines that Client’s activities are fraudulent, create harm or loss of goodwill to any Payment Network, or are otherwise wrongful; (d) as directed by any Payment Network, the Acquirer or a governmental authority; (e) Yardi is no longer authorized to process Transactions as Client’s payment facilitator or payment service provider; or (f) Client’s assignee pursuant to applicable Section 15.b of the SAAS Agreement or 7.b of the Utility Billing Services Agreement does not satisfy Yardi’s underwriting requirements or the sponsored merchant standards under Applicable Law or Payment Network Rules.
17. Indemnification. Client agrees to indemnify and hold Yardi, Acquirer, any Payment Network, and their respective affiliates, employees, officers, agents, shareholders, and directors harmless from any and all third party claims, losses, damages, costs, expenses (including 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 Payment Services services or incurred as a result of, or related to, the following causes: (a) Client’s breach of any covenant, representation or warranty; (b) Client’s violation of Applicable Law or Payment Network Rules; (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 by Client to Yardi; and (e) any instructions from Client regarding the release or holding of Client’s settlement funds.
18. Damage Limitations.
a. IN NO EVENT SHALL YARDI, ACQUIRER, ANY PAYMENT NETWORK OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES. NEITHER YARDI, ACQUIRER, CLIENT NOR ANY PAYMENT NETWORK WILL BE RESPONSIBLE TO THE OTHER FOR DAMAGES ARISING FROM DELAYS OR PROBLEMS CAUSED BY TELECOMMUNICATIONS CARRIERS OR THE BANKING SYSTEM, EXCEPT THAT YARDI, ACQUIRER AND THE PAYMENT NETWORKS RIGHTS TO CREATE RESERVES AND EXERCISE CHARGEBACKS WILL NOT BE IMPAIRED BY SUCH EVENTS.
b. In addition to the limitations otherwise set forth in these Terms AND EXCEPT TO THE EXTENT THERE IS A HIGHER LIMITATION OF LIABILITY SET FORTH IN THE SAAS AGREEMENT or Utility Billing Services Agreement, and to the fullest extent allowed by applicable law, Client agrees that in the event of any claim or cause of action by Client arising out of or connected with THESE TERMS and/OR the payment services, yardi’s maximum liability to Client, regardless of the amount of loss client may have suffered, shall not exceed ONE HUNDRED THOUSAND DOLLARS ($100,000).
19. Third Party Beneficiaries. The Terms are intended for the sole and exclusive benefit of Client and Yardi and are not intended to benefit any third party; provided, however, that the benefits, but not the obligations, arising from the Terms shall be conferred to a Payment Network to the extent required by that Payment Networks, which grants such Payment Network the right to enforce relevant terms of the Terms against Client. Client acknowledges, covenants and agrees that it is not a third-party beneficiary under any Payment Network Rule.
20. Disputes. In the event of a dispute arising out of or related to these Terms, Yardi will use commercially reasonable and good faith efforts to informally and timely resolve the dispute. All such efforts shall be confidential and be protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations in accordance with this section the parties are unable to reach a mutually satisfactory resolution, either party may pursue its rights and remedies under applicable law.
21. Assignment. These Terms cannot be assigned by Client for any reason without the prior, express, written consent of Yardi, which Yardi may withhold in its sole discretion. Any attempted or purported assignment without the prior, express, written consent of Yardi is void. These Terms are binding on and inure to the benefit of both Client and Yardi and its respective, authorized assigns, successors, and legal representatives.
22. Amendments to the Terms. Yardi reserves the right to add, delete or change the Terms at any time, including but not limited to when such changes are required by Applicable Law, a Payment Network Rule, Acquirer, third party payment processor contractual obligations or any other legal, regulatory, contractual or other requirement imposed by regulatory authority, payment processing institution, correspondent bank, merchant bank or any other entity involved in any way, whether directly or indirectly, with THE Payment Services. Yardi will let Client know of changes when legally required and will try to notify Client even when not legally required to do so. Yardi may communicate changes either by email, or notice on yardi’s client central website (where the updated Terms will be available). Continuing to use the Payment Services after the date changes are made means that Client agrees to the updated Terms.
23. Confidentiality. For the purposes of these Terms, “Confidential Information” means the property and tenant data that is submitted to Yardi by Client or Users, and all Yardi patent, copyright, trade secret, and other proprietary information of any kind. Client agrees not to disclose any of Yardi’s Confidential Information. Yardi agrees not to disclose any of Client’s Confidential Information, except as necessary to perform the Payment Services, as required by Applicable Law, or as expressly set forth in these Terms. Confidential Information is not protected from disclosure if the information: (1) is no longer confidential (through no fault of the party that would like to disclose it); (2) was already in the possession of the party that would like to disclose it, provided it was obtained properly and without any violation of any other confidentiality requirements that apply; or (3) was independently developed by the party that wants to disclose it without having used, referred to, or relied on the other party’s Confidential Information. From time to time, Yardi may receive a legal request from a third party in the form of a subpoena, search warrant, or other legal process (collectively, a “Disclosure Demand”) demanding that Yardi disclose certain Confidential Information that belongs to Client. When this happens, Yardi will notify Client that it has received the Disclosure Demand unless Yardi is legally prohibited from doing so (such as if a court orders Yardi to surrender data without notifying Client, which can sometimes happen in criminal or other sensitive investigations). If Client receives a Disclosure Demand notice from Yardi, Client can either take no action in which case Yardi will comply with the Disclosure Demand in whatever way it is legally required to do so, or Client can take steps, at its own expense, to prevent Yardi from complying with the Disclosure Demand. Taking steps to prevent Yardi from complying with a Disclosure Demand will almost certainly require that Client get competent legal advice, which Yardi cannot provide.
24. Governing Law and Venue. These Terms are governed and determined by the laws of the State of California, without any regard to conflicts of laws rules or regulations. Any action or proceeding related to or arising out of these Terms shall be resolved only in a court of competent jurisdiction in the City of Santa Barbara, State of California (or, if there is no court of competent jurisdiction in the City of Santa Barbara, California, then the court of competent jurisdiction closest to the City of Santa Barbara, California), and Client and Yardi expressly consent to the personal jurisdiction of such courts and waive any right to cause any action or proceeding to be brought or tried elsewhere.
25. Waiver. If Client or Yardi waive any breach of these Terms by the other party, that waiver shall not be construed as a waiver of any subsequent breach of the same or similar nature, or any other breach of any kind.
26. Severability. If a court or other body of competent jurisdiction determines that any part of these Terms is unenforceable, Client and Yardi expressly acknowledge and agree that all other parts of these Terms unaffected by that determination shall remain valid and enforceable.
27. Entire Agreement. These Terms constitute the final, complete, and exclusive agreement between Client and Yardi pertaining to the subject matter in these Terms, and these Terms expressly replace and supersede other prior understandings or agreements, if any and no matter what form they may have been in. Client and Yardi also acknowledge and agree that each has not been induced to enter into these Terms by or because of any representations, warranties, or otherwise that are not set forth in these Terms. These Terms may be modified by Yardi pursuant to Section 22 above.
28. Headings. The section headings and captions in these Terms are for convenience only, and Client and Yardi agree that the headings and captions do not and are not intended to limit or change the substance of these Terms in any way.
ACH Payments Additional Terms
With respect to ACH Transactions, Client acknowledges and agrees to the additional terms below. Capitalized terms used in this Attachment A shall have the meanings ascribed to them below or as defined in the Terms if not defined herein.
i. Definitions. The following additional definitions will apply to this section on ACH Payments:
a. “ACH Payment” means a debit Entry to a User’s bank account authorized by such User through the Payment Services.
b. “Entry” has the meaning set forth in the NACHA Rules.
c. “NACHA Rules” means the operating rules and guidelines of the National Automated Clearing House Association or any other regional ACH used to process payments via the Payment Services, as such rules are in effect from time to time.
d. “Originating Depository Financial Institution” or “ODFI” has the meaning set forth in the NACHA Rules.
e. “Originator” has the meaning set forth in the NACHA Rules. For purposes of ACH Payments, Client is deemed an Originator.
f. “Receiving Depository Financial Institution” or “RDFI” has the meaning set forth in the NACHA Rules.
g. “Receiver” has the meaning set forth in the NACHA Rules. For purposes of ACH Payments, User is deemed a Receiver.
ii. ACH Payments.
a. Acknowledgements; Representations and Warranties. Client acknowledges that (i) Client is an Originator with respect to each ACH Payment, (ii) Client agrees to assume the obligations and responsibilities of an Originator under the NACHA Rules, and (iii) Client represents and warrants that ACH Payments shall be exclusively for payments owed by Users to Client, and not for payments by Users to third parties. Client understands that the ACH Payment will be transmitted through the ACH, and Client’s rights and obligations concerning an ACH Payment will be governed by, and construed in accordance with the Terms. Client further acknowledges that it will not originate, and will not permit or cause Users to authorize, ACH Payments in violation of the laws of the United States, including, without limitation, the sanctions, laws, regulations and orders administered by OFAC, FinCEN and any state laws, regulations or orders applicable to ACH Payments. Client agrees to comply with the NACHA Rules and represents and warrants that it has read and understands all NACHA Rules (inclusive of amendments) applicable to Client.
b. Authorizations. In order for User to initiate an ACH Payment to Client, Yardi will obtain, on behalf of and for the benefit of Client, an authorization from User that authorizes Yardi and ODFI to initiate the ACH Payment. Yardi is not responsible for the content of a User’s authorization, including the accuracy of payment amounts or bank account information as provided by the User. Client acknowledges that once submitted, the authorization may not be amended or modified. Yardi will promptly notify Client of any ACH Payment that Yardi, the ODFI or the ACH rejects, or of any ACH Payments that are rejected or returned by the RDFI or the ACH, but will not remake or represent such rejected or returned ACH Payments. Once an ACH Payment has been initiated, Yardi does not have an obligation to honor any request for a stop payment, correction, reversal or recall of the ACH Payment.
c. Additional Rights. Yardi or its ODFI (i) may terminate or suspend Client’s ability to originate ACH Payments for breach of the NACHA Rules in a manner that permits Yardi or the ODFI to comply with the NACHA Rules and (ii) may audit Client for compliance with the NACHA Rules.
Yardi Bill-Pay Payments Additional Terms
With respect to Yardi Bill-Pay Payments, Client acknowledges and agrees to the additional terms below. Capitalized terms used in this Attachment B shall have the meanings ascribed to them below or as defined in the Terms if not defined herein.
a. “ACH Bill-Pay Payments” means a payment made through the ACH payment processing services provided by Yardi pursuant to these Terms and (if applicable) JHA MC pursuant to the JHA Terms.
b. “Banking Institution” means the institution Client has elected to send Payment Instructions to in the case that the institution is not JHA MC.
c. “Card Bill-Pay Payments” means a payment made using i) Client’s static card-on-file payment card credentials, or ii) a one-time virtual card number (“VCN”) generated for a single Bill-Pay Payment.
d. “Check Bill-Pay Payments” means a payment made by the Check 21 payment services provided by Yardi and (if applicable) JHA MC pursuant to these Terms.
d. “Client Card” means either the i) Client’s static card-on-file payment card, or ii) Client’s one-time VCN generated by its chosen bank.
e. “JHA Terms” means the Processing Services Agreement between Client and JHA Money Center, Inc. (“JHA MC”), set forth below.
f. “Payment Instruction” means a data file created by Client through Yardi’s Payment Services that expressly authorizes (a) with respect to Check Bill-Pay 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 Bill-Pay Payments, an ACH payment to Third Party’s designated bank account in accordance with the JHA Terms, (c) with respect to Card Bill-Pay Payments, a card payment to a Third Party’s designated bank account.
g. “Yardi Card” means Yardi’s one-time VCN generated by partner VCN issuer (“VCN Issuer”).
ii. General Terms- JHA MC.Client agrees to the following terms with respect to Bill-Pay Payments made pursuant to Payment Instructions to JHA MC:
a. Acknowledgements. Client acknowledges that Client’s ability to make Bill-Pay Payments is subject to review and acceptance of Client by JHA MC (or other replacement Bill-Pay Payments payment processor), and that Yardi’s sole responsibility for ACH Bill-Pay Payments is the receipt and transmission of Payment Instructions from Client to JHA MC.
With respect to ACH Bill-Pay Payments only, Client further acknowledges and agrees that (i) the JHA Terms govern the processing of ACH Bill-Pay Payments, (ii) in order to initiate ACH Bill-Pay 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 Bill-Pay 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 Bill-Pay 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.
With respect to Check Bill-Pay Payments only, Client further acknowledges and agrees that (i) JHA MC is providing some of the processing services for Check Bill-Pay Payments, and as a result, JHA MC shall be an intended third party beneficiary of these Terms solely with respect to Check Bill-Pay Payments; (ii) JHA MC shall have the right to enforce directly against Client the terms of the Terms which relate to Check Bill-Pay 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 Bill-Pay 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 Bill-Pay Payment in accordance with these Terms and, as applicable, the JHA Terms. Client acknowledges and agrees that all ACH Bill-Pay Payments in an amount exceeding $25,000.00 per transaction will be made by paper check via Check Bill-Pay Payment, for accounts using Yardi’s ACH Processors’ services as the clearinghouse. 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 Bill-Pay Payments) as may be permitted under the JHA Terms.
c. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify Client of any Bill-Pay 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 Bill-Pay Payment. Once a Bill-Pay Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the Bill-Pay Payment except (with respect to ACH Bill-Pay 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 returned or rejected Bill-Pay Payment in accordance with the Terms.
d. Insufficient Funds. Any insufficiency of available funds in Client’s bank account with respect to a Bill-Pay 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.
iii. General Terms – Client Direct to Banking Institution. Client agrees to the below terms when sending Payment Instructions to their own Banking Institution (“Direct to Bank”):
a. Acknowledgements. Client acknowledges that Client’s ability to make Bill-Pay Payments is subject to review and acceptance of Client by their chosen Payment Institution, and Yardi’s sole responsibility for Bill-Pay Payments is the receipt and transmission of Payment Instructions from Client to the client’s Banking Institution. With respect to ACH Bill-Pay Payments only, Client further acknowledges and agrees that (i) Client has agreed to certain terms and conditions with Banking Institution with respect to the processing of ACH Bill-Pay Payments, (ii) in order to initiate ACH Bill-Pay Payments with a Banking Institution that is not JHA MC, Client must have an account with their chosen Banking Institution (“Banking Institution Agreement”), and (iii) Yardi is not responsible or liable for any obligations under Client’s Banking Institution Agreement or any performance relating to ACH Bill-Pay 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 Bill-Pay 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 Client’s Banking Institution Agreement or incurred as a result of, or related to, Client’s breach of the Client’s Banking Institution Agreement.
b. Authorizations. Client expressly authorizes (i) Yardi to transmit Payment Instructions to Client’s Banking Institution, and (ii) Yardi or Client’s Banking Institution, as applicable, to process the Bill-Pay Payment in accordance with these Terms and, as applicable, the Client Banking Institution’s Agreement. 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 Bill-Pay Payments) as may be permitted under the Client’s Banking Institution’s Agreement.
c. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify Client of any Bill-Pay Payment that may be rejected or returned by Client’s Banking Institution, Third Party, or Third Party’s bank, but will not remake or represent such rejected or returned Bill-Pay Payment. Once a Bill-Pay Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the Bill-Pay Payment. 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 returned or rejected Bill-Pay Payment in accordance with the Terms.
d. Insufficient Funds. Any insufficiency of available funds in Client’s bank account with respect to a Bill-Pay 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.
iv. General Terms – Card Bill-Pay Payments. Client agrees to the following terms with respect to Card Bill-Pay Payments:
a. Yardi Card. With respect to Yardi Card Bill-Pay Payments, Client acknowledges and agrees that upon Yardi’s receipt of Payment Instructions from Client, VCN Issuer will issue the VCN when processing such payment and then funds will be sent by Yardi in accordance with Client’s Payment Instructions via JHA MC. Client expressly authorizes (i) Yardi to transmit Payment Instructions to VCN Issuer, and (ii) Yardi or JHA MC, as applicable, to process the Bill-Pay Payment in accordance with these Terms and, as applicable, the JHA Terms.
b. Client Card. With respect to Client Card Bill-Pay Payments, Client acknowledges and agrees that Client’s Card will be charged when processing such payment and then the funds will be sent by Yardi in accordance with Client’s Payment Instructions via JHA MC. Client further acknowledges and agrees that (i) Client has agreed to certain terms and conditions with a bank other than Yardi’s VCN Issuer with respect to the processing of Client Card Bill-Pay Payments, (ii) in order to initiate Client Card Bill-Pay Payments with a bank that is not Yardi’s VCN Issuer, Client must have an agreement or account in place with its chosen bank (“Bank Agreement”), and (iii) Yardi is not responsible or liable for any obligations under Client’s Bank Agreement or any performance relating to Client Card Bill-Pay 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 Client Card Bill-Pay Payments. Client expressly authorizes (i) Yardi to transmit Payment Instructions to Client’s bank, and (ii) Yardi or Client’s bank, as applicable, to process the Client Card Bill-Pay Payment in accordance with these Terms and, as applicable, the Client Bank Agreement. 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 Client’s Bank Agreement or incurred as a result of, or related to, Client’s breach of the Client’s Bank Agreement.
c. Payment Instructions. 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 Bill-Pay Payments) as may be permitted under the JHA Terms.
d. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify Client of any Card Bill-Pay Payment that may be rejected or returned by VCN Issuer, Client’s bank, Third Party, or Third Party’s bank, but will not remake or represent such rejected or returned Card Bill-Pay Payment. Once a Card Bill-Pay Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the Card Bill-Pay Payment except (with respect to ACH Bill-Pay 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 returned or rejected Card Bill-Pay Payment in accordance with the Terms.
v. Right to Suspend or Terminate Bill-Pay Payments. Yardi (i) may immediately terminate or suspend Client’s ability to make Bill-Pay Payments or submit Payment Instructions 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 Bill-Pay Payments.
vi. 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 Third Parties to authorize, any Bill-Pay 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 Bill-Pay Payment has been established in the United States primarily for business purposes and not for 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 Bill-Pay Payment, Check Bill-Pay Payment, or Card Bill-Pay Payment, as applicable, and that for ACH Bill-Pay Payments, or Card Bill-Pay Payments, 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 Bill-Pay Payment to the relevant Third Party.
JHA MONEY CENTER PROCESSING SERVICES AGREEMENT
By accessing and using Yardi Bill-Pay, 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.
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 the 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 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) “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 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 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.
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., 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.
8.1 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 Solutions 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
(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)
(18) Consumer Debt Collection Agencies
(19) Cryptocurrency Businesses
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.
9.1 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) 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 JHA’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 JHA 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 JHA Marks in accordance with the JHA 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 JHA 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: JHA may use subcontractors at its discretion. JHA is responsible for the performance of its subcontractors to the same extent as if JHA 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.