ZEAMSTER

SERVICE AGREEMENT

Updated: March 1, 2019

 

READ THIS ZEAMSTER SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY.  IT IS A LEGAL AGREEMENT BETWEEN FORTIS PAYMENT SYSTEMS LLC , (“ZEAMSTER/FORTISPAY/FOLIOPAY”) A FLORIDA LIMITED LIABILITY COMPANY AND THE ENTITY STATED ON THE CONFIRMATION (“MERCHANT”) WHICH CONTAINS TERMS AND CONDITIONS THAT GOVERN MERCHANT’S USE OF THE HOSTED SERVICE & ACH PROCESSING SERVICE (“SERVICES”) PROVIDED UNDER THE AGREEMENT.  BY CLICKING THE “I AGREE” BUTTON, OR CHECKING THE APPROPRIATE BOX, OR SIGNING THIS AGREEMENT, OR USING OR CONTINUING TO USE THE SERVICES (THE “CONFIRMATION”), THE PARTIES ACKNOWLEDGE AND AGREE THAT (I) ITS USE OR PROVISION OF THE SERVICES DESCRIBED IN THIS AGREEMENT, AS APPLICABLE, WILL BE GOVERNED BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, (II) THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF MERCHANT IS 18 YEARS OF AGE OR OLDER AND HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF MERCHANT, (III) MERCHANT HAS COMPLETED AN APPLICATION (THE “APPLICATION”) RECEIVED A PRICE SCHEDULE (“PRICE SCHEDULE”) AND, WHERE APPLICABLE, A VALUE ADDED RESELLER SHEET(S) (“VAR SHEET”) THROUGH AN EMAIL WITH  INSTRUCTIONS ON SETTING A PASSWORD (“WELCOME EMAIL”) OR OTHER COMMUNICATION FROM ZEAMSTER AND (IV) ALL INFORMATION PROVIDED IN CONNECTION WITH THIS AGREEMENT IS ACCURATE, CURRENT AND COMPLETE, WITH THE EXCEPTION OF § III ABOVE. MERCHANT AGREES TO NOTIFY ZEAMSTER OF ANY CHANGES TO THE INFORMATION PROVIDED, PROMPTLY AND IN WRITING.

 

  1.         Use, Restrictions and Support.

1.1.    Provision of Services    

(a) Provision of Hosted Service.   Conditioned upon Merchant’s compliance with this Section 1, Section 2 and Section 7, Zeamster shall make the Hosted Service available to Merchant pursuant to this Agreement, for the limited purpose of enabling Merchant to connect to selected bank processors for the transmission and security of payment card data. To the extent that any software will be delivered for download by Merchant as part of the Hosted Service (the “Licensed Software”), Zeamster grants Merchant a limited, non-exclusive, non- transferable right and license (in object code only and with no right to sublicense) to use such Licensed Software solely as necessary to use the Hosted Service during the term of this Agreement.   Zeamster may make the Hosted Service available to Merchant directly or through resellers, ISOs, merchant aggregators, banks or other third parties through which Zeamster provides the Hosted Service to Merchants.

(b) ACH Processing Service.   (i) Zeamster provides payment solutions relating to electronic transaction processing services for organizations who receive payments from customers by credit card and/or electronic ACH transactions. With respect to ACH transactions, Zeamster or its third party partner is the ACH processor through which debit and credit transactions are submitted to the ACH Network in conjunction with ACH check processing origination and settlement services. Merchant is lawfully engaged in the business of selling goods and/or services to third parties from whom it will receive credit card and/or ACH transactions and with whom it will initiate and process ACH transactions in the U.S. Federal Reserve Bank System, using Zeamster’s payment solutions.   (ii) Conditioned upon Merchant’s compliance with this Section 1, Section 2 and Section 7, Zeamster shall provide Merchant with software that permits Merchant make an electronic payment transaction originated by Merchant and processed through the Automated Clearing House (ACH) Network in the Federal Reserve System (“ACH Transaction”).

(c) Zeamster may make the Services available to Merchant directly or through resellers, ISOs, merchant aggregators, banks or other third parties through which Zeamster provides Services to Merchants.

1.2.      Restrictions; Reservation of Rights.   Merchant shall not use the Services or Licensed Software for any purpose other than as expressly set forth in Section 1.1. Merchant shall not copy, frame, mirror, modify or create derivatives of, translate, reverse engineer, disassemble, reverse compile, de-compile or otherwise attempt to determine the functionality of the Licensed Software or parts thereof.  Merchant shall not resell, redistribute or otherwise make the Services or the Licensed Software available to any third party and shall not use the Services or the Licensed Software to provide services to any third party (e.g., business process outsourcing, service bureau applications or third party training) without written authorization from Zeamster (and subject to any additional fees payable).  Merchant acknowledges and agrees that the rights granted hereunder are not a sale of the Services or the Licensed Software and that Merchant shall return all copies (in whatever form or media) of the Licensed Software to Zeamster upon expiration or termination of this Agreement for any reason. No express or implied rights or licenses are granted herein, except as expressly granted in Section 1.1, and Zeamster reserves all title and all other rights in or to the Services and the Licensed Software including all intellectual property rights therein.

1.3.      Merchant and Zeamster Responsibilities.

(a)       Merchant shall (i) be solely responsible for its employees’ and agents’ compliance with this Agreement and for their actions, (ii) be solely responsible for the accuracy, quality, integrity and legality of Merchant Data and of the means by which it acquired Merchant Data, (iii) use or disclose Merchant Data only in connection with a Transaction, except as otherwise required by court order, government agency request, subpoena or order, (iv) be responsible for verifying the accuracy and completeness of all Transactions submitted to Zeamster and for verifying that all corresponding funds are accurately processed, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or the Licensed Software, and notify Zeamster promptly of any such unauthorized access or use of which Merchant becomes aware and take such steps as may be necessary to prevent additional unauthorized access or use, (vi) use the Services and the Licensed Software only in accordance with associated user documentation provided by Zeamster, and (vii) comply with all applicable laws and government regulations, and rules, standards and guidelines promulgated by the Card Networks, PCI DSS, HIPAA, and the Federal Trade Commission.

(b) Merchant shall not (i) use the Services or the Licensed Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Services or the Licensed Software to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Services or the Licensed Software or third-party data contained therein, (iv) attempt to gain unauthorized access to the Services or the Licensed Software or their related systems or networks, (v) knowingly submit any Transaction that is illegal or that the Merchant should have known was illegal, (vi) deposit a Transaction receipt that it knows or should have known to be either fraudulent or not authorized, or (vii) engage in any activity or knowingly submit any Transaction that (A) fails to comply with applicable laws and government regulations, including, without limitation, any and all rules, standards and guidelines promulgated by the Card Networks, PCI DSS, HIPAA, and the Federal Trade Commission or (B) subject Zeamster to investigation, prosecution, or legal action.

(c) Each party shall comply with the then-current NACHA Rules that apply to ACH Transactions processed under this Agreement. In addition, Zeamster may publish to Merchant and other Merchants 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.

(d) Merchant authorizes Zeamster to change its credit card processing account information to the new account, through Zeamster, as of the Effective Date. Merchant assumes responsibility for any loss that it may incur due to this change. Losses can occur if the account has been established incorrectly by my processor or the information has been entered incorrectly by Zeamster. It is Merchant’s responsibility to verify the information was entered correctly and the credit card settlements are being deposited into the correct bank account.

1.4.      Merchant Data.  As between Zeamster and Merchant, Merchant owns all rights, title and interest in and to all Merchant Data.  Merchant shall be solely responsible for the security of Merchant Data residing on servers owned or operated by Merchant or a third party designated by Merchant, other than Zeamster, and warrants that it has taken and will continue to take such precautions as may be necessary to ensure that Merchant’s servers and electronic systems are secure from unauthorized access by third parties.   Merchant shall be solely responsible for maintaining records of all Merchant Data. Zeamster shall be solely responsible for maintaining records of all Transactions and providing such records, electronically and securely, to Merchant via the application Programing Interface (“API”).

1.5.      Credit Card Processing.  Since the Hosted Service includes credit or debit card processing services to enable credit or debit card purchases, Merchant hereby acknowledges that third party fund processors provide all fund-processing services.  Zeamster agrees and acknowledges that Zeamster will submit all valid Transactions received for settlement to the applicable third party fund processor no less than once each day. Merchant shall be responsible for taking any action, providing information, maintaining, updating, implementing and executing any agreements or documentation required by any third parties, including obtaining a merchant account and all fees, costs and expenses in connection therewith. Zeamster shall not be responsible for any errors or omissions of third party contractors of Merchant in connection with fund processing services.

1.6.      Security Certificate.  The Services may include issuance to Merchant of an SSL certificate or other equivalent security certificate from a trusted certificate authority to enable secure and encrypted communications between Merchant and the Services. Merchant hereby acknowledges that all such security certificates are provided by third party certificate authorities and Zeamster shall not be responsible for any errors or omissions of third parties in connection with security certificates.  Merchant is responsible for reasonably cooperating with Zeamster as required in connection with the issuance and maintenance of security certificates.

1.7.      Passwords.  The Services are password protected.   Merchant shall solely and exclusively control the creation and provision of passwords for access to the Services.  Merchant hereby accepts responsibility for, and shall be liable for, all access to the Services other than access by Zeamster.  Merchant shall be responsible for maintaining the confidentiality of the Merchant-generated passwords provided that Zeamster shall be responsible for protecting the confidentiality and unauthorized use of user passwords by its personnel and any persons or entities to whom it has provided access to the same. Zeamster shall suspend in a reasonable time access rights for any Merchant generated password in the event that Merchant informs Zeamster in writing of potentially improper access to or use of such Merchant password.

1.8.      Third Party Agreements.  

Merchant acknowledges that Zeamster may engage the services of certain third party service providers in its provision of Services, including but not limited to Jack Henry & Associates, Inc. Merchant shall reasonably cooperate with any such third party in connection with the provision of the Services.  These third party services partners are providing some of the processing services specified in this Agreement and shall be an intended third party beneficiary of this Agreement between Zeamster and Merchant. Each third party services partner shall have the right to enforce directly against Merchant the terms of this Agreement which relate to the provision of the third party services partner’s processing services to Merchant and the ownership and protection of the intellectual property rights of the third party services partner and its licensors in and to its processing services. Merchant acknowledges that the third party services partners shall have no responsibility or liability with regard to Zeamster’s obligations to Merchant under this Agreement.

1.9.    Support and Maintenance.  Merchant’s requests for additional services that are not included in Support will be chargeable at Zeamster’s published rates.  Such additional services include but are not limited to: (a) requests for support after Zeamster’s local standard business hours; (b) requests to repair damage or failure attributable to improper site preparation, site or environmental conditions that do not conform to Zeamster’s site specifications, operation outside of Zeamster’s specifications and failure to follow applicable user documentation, inadequate maintenance, Merchant or third-party media, software, interfacing, supplies or other products, modifications not performed or authorized by Zeamster, or abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Merchant or other causes beyond Zeamster’s control.  Upon 30 days’ prior notice to Merchant, Zeamster may in its reasonable judgment modify the Hosted Service or the Licensed Software to improve operation, supportability, and reliability, or to meet legal requirements.

1.10.    Contact Person.  Merchant shall designate a principal contact person who shall act as a liaison between Zeamster and Merchant and who shall have sufficient authority to grant or communicate the granting of all necessary approvals. All operational notices shall be delivered to Merchant’s contact person.  The contact information for Merchant’s initial contact person is in the Confirmation. Merchant may replace its contact person upon written notice to Zeamster.

1.11.    Zeamster Responsibilities. Zeamster shall (a) be solely responsible for its employees’ and agents’ compliance with this Agreement and for their actions, (b) use or disclose Merchant Data only in connection with a Transaction, except as otherwise required by court order, government agency request, subpoena or order, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or the Licensed Software, and notify Merchant in a reasonable timely manner of any such unauthorized access or use of which Zeamster becomes aware and take such steps as may be necessary to prevent additional unauthorized access or use, and (v) provide the Services and the Licensed Software in accordance with all applicable laws and government regulations, including but not limited to Sarbanes-Oxley Act of 2002, as amended, and rules, standards and guidelines promulgated by the Card Networks, PCI DSS, HIPAA, and the Federal Trade Commission.

1.12.    Set-Up and Delivery of ACH Service.

(a) When Merchant’s Application has been accepted and approved by Zeamster, Zeamster, either directly or through a Reseller who has contracted for the delivery of Services with Merchant, shall provide the Services selected by Merchant in the Application. Merchant shall utilize and access the Services in accordance with the terms of this Agreement and the practices and procedures established by Zeamster for the Services, which have been communicated in writing to Merchant. As part of the Merchant set-up and boarding process:

Zeamster will provide Merchant with an administrative and gateway user name and password (“Password”) to access the Services, which are hosted on Zeamster’s processing system. Merchant will designate an Administrator who shall be the sole individual 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. Merchant is responsible for the actions of its Administrator, the authority the Administrator gives others to act on Merchant’s behalf, and the actions of the persons designated by the Administrator to use the Services. Merchant 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 entries in the Services without proper authorization and supervision and adequate security controls.

(b) Prior to submitting an Entry to Zeamster for processing, Merchant shall secure all authorizations and approvals from its client and deliver any notifications pertaining to that Entry that are required by the NACHA Rules and/or applicable laws and regulations. Merchant shall be responsible for the accuracy and propriety of all Entries submitted to Zeamster for processing.

(c) Merchant acknowledges that Zeamster has specific processing deadlines imposed by its ODFI and the ACH Operator for ACH Transactions. Files received by the deadline will be transmitted that day to the Federal Reserve Bank for settlement on the effective entry day. Files received after the deadline will be processed the next Banking Day as defined in the NACHA Rules.

(d) In the event of any conflicts in the instructions received by Zeamster regarding Merchant or any Entries relating to them, Zeamster may at its option and with or without notice, hold or interplead, comply with the legal process or other order, or otherwise limit access by Merchant or by Zeamster to the funds, Entries or proceeds thereof.

(e) Zeamster or a Reseller may make available to Merchant, end-user training and/or Courseware to assist Merchant in understanding and using the Services and the Zeamster processing system. The Courseware is a proprietary product of Zeamster and its licensors and is provided to Merchant for its sole internal use. Zeamster and its licensors reserve all ownership rights in and to the Courseware materials. For training classes performed by Zeamster or the Reseller at Merchant’s site, Merchant shall pay the applicable onsite training class fee quoted by Zeamster or the Reseller and the reimbursable out-of-pocket travel expenses of the Zeamster or Reseller trainer who travels to and from Merchant’s location to deliver the training session. For on-line classes and e-Learning modules provided by Zeamster or the Reseller, Merchant shall pay the training class fee specified in the online class registration site. If Zeamster or the Reseller offers a Courseware license which permits the Merchant to perform its own internal training classes for the personnel of Merchant and its clients, Merchant shall pay the annual Courseware license fee quoted by Zeamster or the Reseller for use of the Courseware modules licensed by Merchant for this purpose.

 

  1.         Fees and Payment.

2.1.    Fees. Merchant shall pay Zeamster the Fees set forth in of the Price Schedule.  Any fees that are not listed, or are zero figures, or omitted, shall default to Zeamster’s then-current standard rates unless Merchant notifies Zeamster.  Fees begin on the Effective Date and shall be due on the first day of each month (“Due Date”) thereafter. Zeamster will initiate a debit transaction to the bank account on file on the Due Date (or within 5 business days of the Due Date).  Merchant shall promptly notify Zeamster of any changes in its bank account number.  In the event that Merchant notifies Zeamster of its desire to terminate this Agreement, the applicable foregoing authorization shall remain in effect until Zeamster has collected all amounts due prior to receipt by Zeamster of said notice of termination.  Each time Zeamster attempts to debit Merchant’s depository account or charge Merchant’s credit card for an amount due under this Agreement, and receives a returned item or decline message from Merchant’s bank, Merchant shall pay to Zeamster the then-current returned payment fee charged by Zeamster to its merchants.

2.2.      Late Fees.  In addition to those amounts described in Section 2.1, Merchant shall pay to Zeamster a late fee equal to the product of (a) the then overdue payment for each month multiplied by (b) one percent (1%), (or if such amount exceeds that permitted under applicable law, the maximum amount permitted thereunder) for any amounts not paid by Merchant within fifteen (15) days of the date due.  In addition, Zeamster may in its sole discretion discontinue performance of this Agreement if Merchant fails to pay any sum due hereunder, and does not cure such failure within 15 days after notice by Zeamster to Merchant of such failure. Merchant agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Zeamster in collecting any unpaid Fees.

2.3.  Taxes.  There shall be added to the charges provided for in this Agreement amounts equal to any taxes, whether federal, state, or local, however designated, which may be validly levied or based upon this Agreement or upon the Services or Licensed Software furnished hereunder, excluding, however, ad valorem personal property taxes, if any, state and local privilege, excise, or use taxes based on gross revenue, taxes based on or measured by Zeamster’s net income, and any taxes or amounts in lieu thereof paid or payable by Zeamster in respect of the foregoing excluded items. Taxes payable by Merchant shall be billed as separate items on Zeamster’s invoices and shall not be included in Zeamster’s prices. Zeamster agrees to notify Merchant in advance of any taxes incurred by Zeamster for which Merchant will be invoiced under this Section, and Merchant shall have the right to have Zeamster contest with the imposing jurisdiction, at Merchant’s expense, any such taxes that Merchant deems are improperly levied.

2.4.    Additional Fees.  (a) Authorization Review Request: $50.00; (b) Debit Blocks: $25.00; (c) Failure to Notify of Bank Account Change: $80.00; (d) merchant processor change fee $250; (e) change of service fee $250; (f) expedited change of service fee $500.  

2.5.    Recoupment and Set-Off.  

(a) Merchant shall immediately reimburse Zeamster for any returns or shortfalls that occur in Merchant’s Settlement Account. Zeamster reserves the right to delay the availability of funds for deposit without prior written notices to Merchant if, in its sole discretion, Zeamster deems itself at financial or relative risk for any and all Services performed under this Agreement.

(b) Merchant hereby acknowledges and agrees that Zeamster shall have a right of setoff against: (i) any amounts Zeamster would otherwise be obligated to deposit into Merchant’s account, and (ii) any other amounts Zeamster may owe Merchant under this Agreement.

 

  1.         Term and Termination.

3.1.      Term. The term of the Hosted Service (and the license of the Licensed Software) shall commence on the Effective Date and continue in full force and effect until terminated as provided in Section 3.2 below.

3.2.   Termination.    Zeamster may terminate this Agreement and/or Merchant’s access to the Hosted Service, at any time, for any reason, with or without cause.  Merchant may terminate this Agreement for any reason, with or without cause, upon sixty (60) days’ advance written notice to Zeamster.

3.3.      Survival.  Sections 4, 6.2, 6.3, 6.4, 7, 9.1, 9.6, 9.9 and 9.10, as well as any payment obligations that have accrued pursuant to Sections 2.1 or 2.2, shall survive expiration or termination of this Agreement for any reason.

3.4.      Effect of Termination.  In the event of any termination of this Agreement, Merchant shall immediately cease use of the Hosted Service and the Licensed Software.  Upon request by Merchant, made within 3 calendar days after the effective date of termination of this Agreement, Zeamster will make available to Merchant a download of all Merchant Data then-held by Zeamster.  After such 3-day period, Zeamster shall have no obligation to maintain or provide any Merchant Data and shall thereafter, unless legally prohibited, delete all Merchant Data in its systems or otherwise in its possession or under its control.  Merchant retains no rights in the Merchant Data.

 

  1.         No Promotion.  Neither party shall, without the prior written consent of the other party, use in advertising, publicity, or otherwise, the name of such other party or any officer, director, employee, consultant or agent of such party, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by either of the foregoing.

 

  1.         Representations and Warranties

5.1.      Mutual Representations and Warranties.   Each party represents and warrants to the other that:

(a)       It has the full corporate right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and

(b)       Entering into this Agreement and the performance by it of its obligations hereunder, do not and shall not violate any other agreement to which it is a party or by which it is otherwise bound.

5.2.      PCI Data Security Warranty.   Zeamster represents and warrants that the data center and any back-up or alternative facility used by Zeamster to provide the Services is and shall remain, during the term of this Agreement, compliant with applicable PCI data security standards for hosting facilities supporting consumer and business financial transactions.

(a)      Security. (i) Data Protection.  Zeamster acknowledges and agrees that the Hosted Services will capture certain Merchant Data.  Zeamster shall not disclose Merchant Data to other third parties or use the Merchant Data except to the extent the use or disclosure of Merchant Data is necessary in (A) providing Hosted Services; (B) maintaining records for internal tracking, reporting and support purposes; or (C) upon prior notice to Merchant, complying with industry requirements, a court or governmental agency request or subpoena, or to defend Zeamster’s rights in a legal dispute.

(b)    Data Security.  Zeamster shall be responsible for the security of Merchant Data residing on servers operated, controlled or owned by Zeamster or a third party designated by Zeamster.  Zeamster agrees to use commercially reasonable efforts, at its sole cost and expense, to maintain the security of its systems, including creating firewalls to protect against unauthorized access and any other data privacy requirements as set forth in applicable laws, rules or regulations or in the PCI-DSS (“Data Privacy Requirements”).  Zeamster shall reasonably notify Merchant of any actual or suspected security breach involving Merchant Data. Zeamster shall at all times comply with all Data Privacy Requirements, as amended from time to time.

(c)      Compliance.  Zeamster acknowledges that it processes, transmits, and/or stores Merchant Data in the performance of the Services, and is therefore considered a “Service Provider” under Requirement 12.8 of the PCI-DSS.

    1. Zeamster agrees that it is responsible for the security of Merchant Data that it possesses, including the functions relating to storing, processing, and transmitting of Merchant Data.

 

    1. Zeamster affirms that, as of the effective date of this Agreement, it has complied with all applicable requirements to be considered PCI DSS compliant, and has performed the necessary steps to validate its compliance with the PCI DSS.

 

    1. Zeamster agrees to supply the current status of Zeamster’s PCI DSS compliance status, and evidence of its most recent validation of compliance upon execution of this Agreement to Merchant. Zeamster must supply to Merchant a new status report and evidence of validation of compliance at least annually.

 

  1. Zeamster acknowledges that any indemnification provided for under this Agreement applies to the failure of Zeamster to be and to remain PCI DSS compliant.

5.3    (a) all Entries submitted to Zeamster for processing will comply with applicable laws and regulations and the NACHA Rules pertaining to the Entries; (b) Merchant will comply with all laws, regulations and the NACHA Rules applicable to Merchant’s activities covered by this Agreement; (iii) Zeamster warrants to Merchant that its Services will be performed in a professional and timely manner consistent with credit card processing industry standards and/or ACH transaction processing industry standards and in accordance with the NACHA Rules and applicable laws and regulations and any written Zeamster policies and procedures communicated by Zeamster to Merchant. In the event that Merchant discovers an error in the Services or Software which has been caused by Zeamster, if Merchant has contracted directly with Zeamster for the Services, Merchant shall immediately notify Zeamster of the existence and details of the error; if Merchant has contracted with a Reseller for the Services, then Merchant shall provide this notification to Reseller. Zeamster shall apply commercially reasonable efforts to correct the error within a reasonable time after Zeamster’s receipt of notification of the error.

 

  1.         Indemnification; Disclaimer of Warranties; Limitation of Liability; Insurance.

6.1.      Indemnification by Zeamster.  Subject to the limitations set forth in Section 6.4, Zeamster shall indemnify, defend and hold harmless Merchant and its officers, directors, managers, employees, agents and representatives, from and against any and all third party claims, actions, damages, obligations, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and other costs of defense), arising from or relating to (a) willful misconduct by Zeamster or any of Zeamster’s employees with respect to information or data provided by Merchant; and provided further that Merchant (i) notifies Zeamster promptly in writing of any such claim or suit; (ii) gives Zeamster full information and assistance in settling and/or defending the claim or suit; and (iii) gives Zeamster full authority and control of the defense and/or settlement of any such claim or suit.

6.2.      Indemnification by Merchant. Merchant agrees to defend, indemnify and hold Zeamster and its officers, directors, managers, employees, agents and representatives harmless from and against any and all third party claims, actions, damages, obligations, losses, liabilities, costs and expenses (including reasonable attorneys’ fees, costs of collection, and other costs of defense) arising from or related to (a) any breach of this Agreement, including the breach of any representation or warranty or failure to perform any covenant required under this Agreement,  and/or (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of Merchant’s employees, agents or individuals with “user accounts”, and/or (c) use of the Services or the Licensed Software or user documentation except as set forth in Section 1.1 (subject to the limitations in Section 1.2) (d) violations of failure to comply with the NACHA Rules or applicable laws and regulations; provided that Merchant ‘s indemnification obligations shall not apply to the extent arising from claims for which Zeamster is obligated to indemnify Merchant,  and provided further that Zeamster (i) notifies Merchant in writing in a reasonably timely manner of any such claim or suit; (ii) gives Merchant full information and assistance in settling and/or defending the claim or suit; and (iii) gives Merchant full authority and control of the defense and/or settlement of any such claim or suit, and/or (d) return of an Entry due to incorrect or incomplete data or information provided by Merchant in the submission of the Entry to Zeamster, a closed Merchant account, or insufficient funds in the Merchant account, and/or (d) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Entries by Merchant or a third party who has gained access to the Services through the use of Merchant’s password

6.3.      Warranty. Zeamster warrants that it owns all rights, title, and interest in and to the Software and Software Products that it has the right to grant the licenses granted hereunder.  This warranty coverage shall include all Software Maintenance performed and any enhancements or fixes to the Software by Zeamster. Zeamster does not warrant that Merchant’s use of the Software will be uninterrupted or error free.  Zeamster warrants that it shall correct or replace, at no additional charge to Merchant, any part of the Software found to be defective.

6.4      Disclaimer of Warranties.   EXCEPT AS SET FORTH HEREIN, THE SERVICES, THE LICENSED SOFTWARE, AND SUPPORT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.   EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 5.2, NEITHER ZEAMSTER NOR ITS LICENSORS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CORRECTNESS, QUALITY, ACCURACY, SECURITY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, PRICING OR CONTINUED AVAILABILITY OF THE HOSTED SERVICE, THE LICENSED SOFTWARE, SUPPORT OR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN ACCESS TO THE HOSTED SERVICE OR THE LICENSED SOFTWARE.  EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 5.2, ZEAMSTER AND ITS LICENSORS SPECIFICALLY DISCLAIM AND MERCHANT HEREBY WAIVES ALL EXPRESS OR IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OPERATION OF THE HOSTED SERVICE OR THE LICENSED SOFTWARE AND ANY PARTICULAR APPLICATION OR USE OF THE HOSTED SERVICE OR THE LICENSED SOFTWARE (WHETHER OR NOT KNOWN).

6.5.      Limitation of Liability.  NEITHER PARTY NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME OR OPPORTUNITIES, LOSS OF USE OF THE SERVICES, LOSS OF DATA, COST OF RECREATING DATA OR COST OF CAPITAL.  IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT DAMAGES OR INDEMNITY OBLIGATIONS UNDER SECTION 6.1 IN EXCESS OF FEES PAID BY MERCHANT UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO (a) MERCHANT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, (b) EITHER PARTY’S OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (c) MERCHANT’S OBLIGATIONS UNDER SECTION 2, OR (d) TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

  1.         Confidential Information.

7.1.      Confidential Information.  Each party acknowledges that, during the term of this Agreement, it may receive information from the other party that such other party regards as highly confidential and proprietary, including but not limited to information concerning such party’s business and operations (“Confidential Information”).   Confidential Information of Zeamster includes all non-public information of Zeamster and its Affiliates, whether disclosed in written, oral or electronic form, including information regarding (a) the Services and the Licensed Software and other software of Zeamster and its Affiliates, including benchmark results, manuals, program listings, databases, data structures, flow charts, logic diagrams, documentation and specifications, (b) concepts, techniques, ideas, and know- how embodied and expressed in the Services and the Licensed Software and other software of Zeamster and its Affiliates, and (c) information relating to Zeamster’s business plans, pricing, accounting, finance, employees, contractors, customers and suppliers. Confidential Information of Merchant includes all non-public information of Merchant and its Affiliates, whether disclosed in written, oral or electronic form, including information regarding (i) Merchant’s use of the Services and the Licensed Software and other software of Zeamster and its Affiliates, including benchmark results, manuals, program listings, databases, data structures, flow charts, logic diagrams, documentation and specifications, (ii) concepts, techniques, ideas, and know-how embodied and  expressed in the Merchant Data or any other information provided to Zeamster, (iii) information relating to Merchant’s business plans, pricing, accounting, finance, employees, contractors, customers and suppliers; and (iv) all Merchant Data. Confidential Information shall not include (A) information already lawfully known to one party at the time of disclosure by the other, (B) information generally known to the public other than as a result of disclosure in violation of this Section 7, or (C) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information.

7.2.      Non-Disclosure and Non-Use Obligations.   Merchant acknowledges that the Confidential Information of Zeamster embodies valuable confidential and proprietary information of Zeamster and/or its licensors, the development of which required the expenditure of considerable time and money by Zeamster and/or its licensors.  Zeamster acknowledges that the Confidential Information of Merchant embodies valuable confidential and proprietary information of Merchant and/or its customers. Each party shall treat all Confidential Information of the other in confidence and shall not use, copy, or disclose, nor permit any of its personnel or any other party to use, copy, or disclose the same, for any purpose that is not specifically authorized under this Agreement.   Each party shall use at least the same degree of care in handling Confidential Information of the other as it uses with regard to its own confidential information, but no less than reasonable care. Each party shall advise each of its employees who may be exposed to Confidential Information of the other of their obligations to keep that information confidential, and shall require all contractors permitted access to such Confidential Information to execute confidentiality agreements at least as protective of the Confidential Information as this Section 7.

7.3.    Exceptions.   Notwithstanding Section 7.2, one party may disclose Confidential Information of the other only to the extent required by law or by order of a court or governmental agency; provided, however, that the party directed to disclose shall first give the other party prompt notice and shall cooperate with such other party if such other party wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.  Notwithstanding the foregoing, Zeamster may share Confidential Information of Merchant with resellers, ISOs, merchant aggregators, banks and other third parties through which Zeamster provides the Services to Merchants that have executed agreements with Zeamster containing with the same confidentiality and security provisions as set forth in this Agreement.

7.4.      Return of Confidential Information.   Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Confidential Information of such other party and any copies of documents, papers or other material which may contain or be derived from any such Confidential Information that is in its possession, and shall certify the same in writing at the request of such other party.

7.5.    Intellectual Property Rights. The Software and their systems are proprietary to Zeamster. All the text, images, marks, logos and other content of the Systems (“Site Content”) are proprietary to Zeamster or to third parties from whom Zeamster has obtained permission. Zeamster authorizes Merchant to view, download, and print the Site Content provided that: (a) Merchant may only do so for its own personal and non-commercial use; (b) may not copy, publish or redistribute any Site Content; (c) may not modify Site Content; (d) may not remove any copyright, trademark, or other proprietary notices that have been placed in the Site Content by Zeamster. Except as expressly permitted above, reproduction or redistribution of the Site Content, or any portion of the Site Content, is strictly prohibited without the prior written permission of Zeamster. To request permission Merchant may contact Zeamster at admin@zeamster.com. Merchant represents and warrant that its use of Site Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.

7.6    HIPAA and Other Laws and Regulations.  In accordance with data privacy laws and regulations applicable to this Agreement, which may include but not be limited to the Gramm-Leach-Bliley Act (“GLBA”), Payment Card Industry (PCI) Security Standards and the Health Insurance Portability and Accountability Act (“HIPAA”), Zeamster shall not disclose or permit access to or use of the non-public personal information of Merchant or its clients made available by Merchant to Zeamster for any purposes other than those specifically required to fulfill Zeamster’s contractual obligations with Merchant.  To the extent that HIPAA applies, diagnostic and treatment information shall not be used to process a payment transaction, and covered entities shall limit the exchange of Protected Healthcare Information (“PHI”) to the minimum necessary to accomplish the intended purpose of the use, disclosure or request, consistent with 45 CFR § 164.502(b). (a) If Merchant is a Covered Entity: (i) it shall notify Zeamster of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect Zeamster’s use or disclosure of protected health information.  (ii) it shall notify Zeamster of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate’s use or disclosure of protected health information.  (iii) It shall notify Zeamster of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Zeamster’s use or disclosure of protected health information.  (iv) It shall not request Zeamster to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity.

 

  1.         Title.  Nothing contained in this Agreement shall directly or indirectly be construed to assign or grant to Merchant any right, title or interest in and to the trademarks, copyrights, patents or trade secrets of Zeamster or any ownership rights in or to the Services and the Licensed Software, including any documentation.

 

  1.         General

9.2.      Entire Agreement.  Except for § III of the Preamble of this Agreement and the Application, this Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing and all other oral, written or other communications between the parties concerning this subject matter.   The parties agree that all previous licenses for Zeamster-owned software products granted by Zeamster (or its predecessor) to Merchant, if any, are hereby terminated and replaced by this Agreement.

9.3.      Amendments.  This Agreement may be modified by Merchant or Zeamster only by a writing signed by both parties.  

9.4.      Assignment.  This Agreement shall not be assigned or delegated in whole or in part by Merchant to any other party without the prior written consent of Zeamster, which shall not be unreasonably withheld.

9.5.      Force Majeure.  Neither party (including Zeamster, the ODFI, or any of their respective affiliates) shall be liable for any performance delays or failure to perform its obligations under this Agreement (except obligations to make payments) or any failure of the Hosted Service or the Licensed Software, or failures of the ODFI, ACH or Federal Reserve Bank system network because of circumstances beyond the control of such party, which such circumstances shall include natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, laws, and court orders (other than with respect to claims covered by Zeamster’s indemnification obligations or otherwise due to Zeamster or Merchant actions).  In the event of the occurrence of such circumstances, the party affected by the force majeure condition shall promptly notify the other party of the situation. For the avoidance of doubt, force majeure shall not apply to any obligation to make any payments hereunder.

9.6.      Equitable Relief.  Each party acknowledges that a breach of any provision of Section 1.2 or Section 7 of this Agreement shall cause the other party irreparable injury and damage.   Therefore, those breaches may be stopped through injunctive proceedings, without posting of any bond, in addition to any other rights and remedies which may be available to such party at law or in equity, and the breaching party will not urge that such remedy is not appropriate under the circumstances.

9.7.      Independent Contractors.  All work performed by Zeamster in connection with the Services or Licensed Software described in this Agreement shall be performed by Zeamster as an independent contractor and not as the agent or employee of Merchant.  All persons furnished by Zeamster shall be for all purposes solely Zeamster’s employees or agents and shall not be deemed to be employees of Merchant for any purpose whatsoever. Zeamster shall furnish, employ, and have exclusive control of all persons to be engaged in performing services under this Agreement and shall prescribe and control the means and methods of performing such services by providing adequate and proper supervision.  Zeamster shall be solely responsible for compliance with all rules, laws, and regulations relating to employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes, such as employment, Social Security, and other payroll taxes including applicable contributions from such persons when required by law.

9.8.      Notices. With the exception of invoices, insurance papers, shipping papers, reports, and correspondence in the normal course of business, all notices, demands, or other communications herein provided to be given or that may be given by any party to the other shall be deemed to have been duly given when made in writing and delivered in person, or upon receipt, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or via overnight courier, as follows:

If to Zeamster:

Address:  43155 Main St. Suite 2208, Novi, MI 48374.

Attn:  President, Zeamster

If to Merchant the name and address provided during the enrollment/boarding process, or to such address as the parties may provide to each other in writing from time to time.

9.9.      Severability.  If any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement shall not be affected or impaired.

9.10.    No Waiver.  The failure by either Zeamster or Merchant to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party in the performance or compliance with any of the terms and conditions set forth in this Agreement.

9.11.    Construction.  The headings and captions in this Agreement are intended for convenience of reference and shall not affect interpretation.   The terms “include” or “including” and “e.g.,” as used in this Agreement, shall be deemed to include the phrase “without limitation.”

9.12.    Governing Law and Venue.  This Agreement is deemed entered into in Michigan and shall be governed and construed in all respects by the laws of the State of Michigan, without giving effect to principles of conflict of law of any jurisdiction.  The parties agree that, should either party claim a breach of this Agreement the party claiming breach shall provide written notice thereof to the allegedly breaching party.  In the event of such notice, the parties shall negotiate in good faith for no fewer than thirty (30) days in an attempt to resolve the problem.  The parties may choose, on their own, to engage in mediation.  Following the thirty (30) day time period, either party may initiate litigation to resolve the dispute.  If either party initiates such litigation, it shall file the suit in the State of Michigan. 

9.15.    Authority.   Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.

9.16.    Equal Drafting. Each party acknowledges that this Agreement has been the result of substantial negotiations. Accordingly, this Agreement will not be construed against any party on the grounds that such party drafted this Agreement. Instead, this Agreement will be interpreted as though drafted equally by all the parties to this Agreement.

9.17    Form and Delivery of Signed Agreement.  This Agreement may be executed by the parties by applying manual or electronic signatures of its authorized representatives to original documents or facsimile, scanned or other electronic copies of original documents and transmitted by physical or electronic means for this purpose. For legal evidentiary purposes, a facsimile, scanned or other electronic copy of this Agreement bearing the signatures of the authorized representatives of both parties shall be accepted as an equivalent to a signed original copy of this Agreement.

9.18  In the event of a merger, acquisition, sale, or other transfer of ownership of MERCHANT’S BUSINESS OR OF MERCHANT’S RESELLER – Merchant’s data, and Merchant’s Customer’s personal data may be made available to any legal successors of MERCHANT’S BUSINESS OR OF MERCHANT’S RESELLER.  Merchant must complete Zeamster’s transfer of ownership form. 

 

  1.       Definitions. When used in this Agreement, the words or phrases below shall have the following meanings:

10.1.    “Affiliate” means, with respect to a party hereto, any subsidiary, parent or other affiliate controlled by such party and any entity directly or indirectly controlled by, under common control with, or controlling such party.   For the purposes of this Section, “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

10.2.    “Card Network” means American Express, Discover Financial Services, MasterCard International Inc., Maestro International Inc., Visa U.S.A. Inc., Visa, Inc., Visa International Inc., and any other credit or debit card issuing company.

10.3.    “Courseware”: The end user training courseware and materials relating to the use and operation of the Services and Zeamster’s Software that Zeamster or a Reseller may provide through classroom training, online training or e-Learning delivery to Merchant.

10.4.    “Confidential Information” means the Software programs and documentation used by Zeamster to provide the Services to Merchant and passwords and other information or materials of a confidential and proprietary nature that Zeamster provides to Merchant under this Agreement and the meaning set forth in Section 7.1.

10.5.    “Confirmation” has the meaning set forth in Section 1.12.

10.6.    “Merchant Data” means all electronic data or information submitted by Merchant to the Hosted Service, including but not limited to all personal and identifiable information relating to customers of Merchant, cardholder account numbers and transactional information.

10.7.    “Merchant Facilities” means the Merchant premises and all equipment, systems, networks, and phone lines or other means used for the transmission of voice or data over networks, and all software programs and data used or stored on such equipment and systems, in any case that is owned or leased by Merchant.

10.8.    “Entry”: A transaction submitted by Merchant to Zeamster for processing by the Services and further defined in the NACHA Rules for ACH Transactions.

10.9.    “Effective Date” means the earlier of the date Merchant (i) clicks the Confirmation button, (ii) acknowledges its acceptance of the Agreement by signing the Confirmation or by any other method approved by Zeamster (iii) uses the Hosted or ACH Service.

10.10.    “Fees” means the amounts to be paid by Merchant for the Services and support as set forth on the Confirmation.

10.11.    “Hosted Service” means the online web-based service provided by Zeamster to Merchant via a designated website as described in such documentation as may be provided by Zeamster from time to time.

10.12.    “Licensed Software” has the meaning set forth in Section 1.1.

10.13.    “Monthly Minimum Processing Fees”: Fee to be billed if the Total Monthly Transaction Fees are not greater than this fee.

10.14.    “Originating Depository Financial Institution” or “ODFI”: In an ACH Transaction, the financial institution which receives the Entry from Zeamster and transmits the Entry to its ACH Operator for transmittal to a Receiving Depository Financial Institution for debit or credit to the Merchant’s account, as these terms are further defined in the NACHA Rules.

10.15.    “Reseller”: A third party reseller, such as an ISO reseller or Value Added Reseller, appointed and authorized by Zeamster to resell and/or deliver the Services and Courseware to Merchant.

10.16.    “Services”: The Credit Card Gateway, ACH processing services, and/or Hosted Services provided by Zeamster to Merchant under this Agreement. The Services are provided via Software.

10.17.    “Settlement Account”: A commercial demand deposit bank account which Merchant has established for Zeamster’s access and use to settle financial payment transactions processed by Zeamster under this Agreement.

10.18.    “Software”: Software programs and associated documentation and materials that Zeamster provides to Merchants for use with the Services. Software may include but not limited to (a) web based system (b) Application Programming interface (API) (c) mobile application.

10.19.  “Support” means the technical support and maintenance services provided to its Merchants of the Hosted Service in the ordinary course of business.

10.20. “Transaction” means any billable occurrence completed or submitted under Merchant’s account, including but not limited to sale, void, refund, credit, offline force, capture authorization, validate, update or settlement, regardless of whether approved or declined.

10.21. “ZEAMSTER” means gateway products under the Fortis Payment Systems LLC umbrella including but not limited to, “FortisPay” and “FolioPay”.