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HomeMy WebLinkAbout13-170 - Retail Lockbox Merchant Services - Municipal Court Online Payment Processing13-170 Council Approval N/A 105 14th Ave Suite 300, Seattle, WA 98122 RETAIL LOCKBOX MERCHANT SERVICES PAYSTATION CUSTOMER SERVICES AGREEMENT This Service Agreement (the "Agreement ") is made by and between Retail Lockbox Merchant Services, LLC, a Washington limited liability company with headquarters at 220 Minor Ave N, Seattle, WA 98109, (hereinafter the "RLMS ") and the City of Tukwila (hereinafter the "CUSTOMER ") as of the date this Agreement is signed by RLMS (the "Effective Date "). RECITALS RLMS has developed certain technology, Paystation, that will enable CUSTOMER to pay their bills electronically and capture ACH and/or credit card transaction information and format the information into NACHA and credit card processing standard formats; and CUSTOMER desires to license the technology from RLMS on the terms herein; RLMS desires to grant a license to CUSTOMER and CUSTOMER desires to license the technology from RLMS on the terms herein; and in consideration of the mutual premises and covenants herein, RLMS and CUSTOMER hereby agree: 1. License and RLMS Site. Subject to the terms of this Agreement, RLMS hereby grants, and CUSTOMER hereby accepts, for the Term stated herein, a nonexclusive, nontransferable license to access and use the System and RLMS Site via the Internet ( "License "). RLMS grants CUSTOMER the right to sublicense the access and use of the System and RLMS Site. RLMS reserves all rights not expressly granted to CUSTOMER hereunder. During the Term of the License, CUSTOMER shall have the right to access and use the System and RLMS Site solely for its intended purpose in CUSTOMER's business. CUSTOMER hereby agrees not to: (i) reproduce, download, modify, create derivative works from, distribute, or attempt to reverse engineer, decompile, disassemble, or access the source or object code for, the System or RLMS Site; (ii) use the System or RLMS Site, or any component thereof, in any manner contrary to applicable laws or government regulations; or (iii) effect, attempt or enable the unauthorized use (with or without user ID and/or password) or misuse of any information posted on the RLMS Site. RLMS may assign each CUSTOMER a unique uniform resource locator ( "URL ") on the Internet for accessing the System. CUSTOMER will be solely responsible for assigning each additional user a single unique password and a User ID. CUSTOMER shall be solely responsible for the administration of all passwords and ID's issued by them to Users for access to the System, and for ensuring that each password provided to a User and the URL are kept confidential and utilized solely by such User for the purposes authorized hereunder. Payers on the site may be redirected to the Paystation homepage upon completion of a payment or viewing. 2. Definitions. The following definitions shall apply: (a) "RLMS Product(s)" means the computer software applications owned and developed by RLMS and accessible through the System as well as any documentation furnished to the CUSTOMER or a user concerning the use of such applications. (b) "Interface" shall mean the graphical user interface on the RLMS Site and associated code developed by RLMS to facilitate communication and data transfer between the Systems, any third -party applications used in connection with the System and a user or j st a 3048A——) 1 — Confidential Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 CUSTOMER's customer. (c) "User(s)" shall mean an individual or entity whose Agreement has been accepted by RLMS, who by use of the System agrees and accepts all the terms and conditions herein, and who may be issued a unique User ID and/or password by RLMS or by another CUSTOMER who received same from RLMS. (d) "System" shall mean the RLMS Products and Interface. (e) "Agents" means any duly authorized agent of RLMS, including bank affiliate or Automated Clearing House Network ( "ACH ") operator governed by the National Automated Clearing House Association ( "NACHA ") operating rules that enable depository financial institutions to exchange payments. 3. Term. The License shall commence on the Effective Date and remain in effect for an initial period of three (3) years, unless any party provides written notice of termination to the other party in at least 30 days notice. This Agreement shall renew automatically for successive terms of one year each, unless any party provides written notice of termination to the other parties at least 30 days prior to the end of the then current term. 4. Invoicing and Payment The fees will be debited from the daily transactions and the net proceeds will be delivered to the CUSTOMER. Fees will be collected via an ACH electronic transfer from Bank (To Be Provided) account number (To Be Provided) on that date. 5. CUSTOMER Covenants. During the Term of the License CUSTOMER hereby agrees: (a) CUSTOMER will comply with the NACHA rules and credit card association rules; (b) CUSTOMER will bear the full financial liability of processing the ACH transactions and agrees to the Terms and Conditions of the ACH Agreement found in Exhibit D of this contract (c) CUSTOMER hereby indemnifies RLMS and its Agents against any loss for its own or its customer's account, or damage, reasonable attorneys' fees or liability incurred by it on account of CUSTOMER's breach of this Agreement or CUSTOMER's, or its customers, transmittal of any transaction or file through the System, and RLMS and its Agents may rely on the authority of such transmittals without inquiry if such transmittals are received by RLMS or its Agents on the System or on the RLMS Site; (d) CUSTOMER shall be solely responsible for ensuring that any User's access to the System is subject to and in accordance with the terms herein. 6. RLMS Covenants. During the term of the license, RLMS agrees that it will comply with the NACHA rules and guidelines and credit card association rules and guidelines. RLMS will provide commercially reasonable procedures for the functionality of the System including system audit and disaster recovery procedures. RLMS's shall be responsible for creating the electronic ACH and/or Credit Card transaction information file and submitting the file to the check and/or credit card operator as designated by RLMS. Intellectual Property Representation. RLMS warrants and represents that it owns or has the right and authority to use all such intellectual property, copyrighted materials or trademarks, which make up the System and are used in the services provided to CUSTOMER, and that such use of the System will not infringe any copyright, violate any property rights, or contain any libelous or unlawful matter. 7. Confidentiality and Non - Disclosure. CUSTOMER and RLMS each agrees that information 2 — Confidential Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 regarding the other party's operations, strategies, organization, finances, business, trade secrets, pricing, and Customer Information obtained from the other party, whether marked confidential or not, and any information obtained from the other party that is marked confidential or about which notice of confidentiality is given within 30 days of the receiving party's receipt of such information ( "Confidential Information ") shall only be disclosed to third parties when required by law, including the Washington State Public Records Act or legal discovery. At the termination of this Agreement, each party shall, at the written request of the other party, either return to the other party or destroy all Confidential Information provided by the other party in whatever form or medium and so certify to the other party in writing, except as provided by law, including the Washington State Records Retention Schedules. In no event shall either party use Confidential Information to compete with the other party in its business. 8. Maintenance and Support. RLMS will maintain the RLMS Site in accordance with its internal policies. CUSTOMER will be notified via electronic mail of routine maintenance or System downtime and RLMS will make reasonable effort to schedule it outside of regular business hours. 9. Notices. Unless otherwise noted herein, any notice hereunder shall be deemed to have been given and received (I) upon receipt if personally delivered in writing (ii) one business day after being sent via overnight express courier, or (iii) three business days after being mailed through the United States Post Office by registered or certified mail, return receipt requested. All notices shall be sent to the address set forth below or at such other address to which notice is to be given, at least thirty days prior to initial use of revised address, as provided at end of Agreement. 10. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SYSTEM, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED. THE MAXIMUM AGGREGATE LIABILITY OF RLMS OR ITS AGENTS UNDER THIS AGREEMENT SHALL BE A SUM EQUAL TO THE AGGREGATE PAYMENTS MADE BY CUSTOMER TO RLMS FOR THE PRECEEDING ONE MONTH PERIOD. The System is provided to CUSTOMER "as is ". Other than as expressly set forth herein, RLMS expressly disclaims, and CUSTOMER hereby expressly waives, all warranties, express or implied, including, without limitation, warranties of title, warranties of CUSTOMER ability and fitness for a particular purpose, or warranties as to any results to be obtained from the System or information or results derived therefore. RLMS does not warrant access to the System or that access to the System will be uninterrupted or error -free. The parties understand that CUSTOMER may use certain third- party software (including web browsers) or hardware in connection with accessing the System and use of the supplemental software. RLMS makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or 3 — Confidential Retail Lockbox 105 14`h Ave Suite 300, Seattle, WA 98122 suitability of such third -party software or hardware. The quality, capabilities, operations, performance and suitability of such third -party software or hardware lie solely with CUSTOMER and the supplier of such third -party software or hardware, as the case may be. 11. Force Majeure. Neither party shall be liable, or be deemed to be in default, to the other by reason or account of any delay or omission caused by an event beyond their control (each, a "Force Majeure Event "). The time of performance of each party's obligations under this Agreement shall be extended for so long as such Force Majeure Event continues; provided, however, that in the event such period of extended delay exceeds thirty days in respect of a party, the other party may terminate this Agreement upon notice to such party. 12. Termination. Either party may immediately terminate this Agreement without notice in the event of: (a) any act of fraud or dishonesty is committed by the other party, its employees and/or its agents or that a party or its agents believes in good faith that such parties committed, are committing or are planning to commit any acts of fraud or misrepresentation; (b) the other party breaches this Agreement or any representation or warranty made by the other party in this Agreement is not true and correct; (c) the other party files a petition under any bankruptcy or insolvency law. 13. Relationship of the Parties. The relationship of RLMS to CUSTOMER shall be that of an independent contractor. Nothing herein shall be construed to constitute the parties as partners or joint ventures, or as employees or agents of the other. It is understood that in order for RLMS to enable CUSTOMER to accept customer payments by facilitating ACH and/or Credit Card transactions, and to submit such payments to CUSTOMER. RLMS may need to process certain forms with Agents on CUSTOMER's behalf. For CUSTOMER's convenience, CUSTOMER hereby acknowledges, agrees, and authorizes RLMS to provide necessary CUSTOMER information, including without limitation, and any information provided herein, to RLMS's Agents and to sign such forms on CUSTOMER's behalf. 14. Modification Assignment. This Agreement shall not be amended except by written agreement signed by both parties. This Agreement may not be assigned by either party without the express prior written consent of the other, provided, that a party may assign this Agreement, without prior written consent, to a successor in interest due to the party's acquisition or merger. 15. Subcontracting. CUSTOMER acknowledges and agrees that RLMS may use one or more Agents to perform under this Agreement, including for Hosting the System and maintaining and developing the Interface or the RLMS Products. 16. Successors and Assigns. All terms of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and permitted assigns. 4 — Confidential Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 17. Severability. Any provision of this Agreement which is unenforceable under any applicable law of any jurisdiction will be ineffective as to such jurisdiction without affecting any other provision in this Agreement, and the remaining provisions of this Agreement shall remain valid and binding enforceable in accordance with its terms and interpreted to achieve the same economic effect as the original Agreement. In addition, any interpretation of this Agreement shall not be construed against the party who drafted same. 18. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Washington and the United States. Both parties agree to submit any dispute arising out of or relating to this Agreement to mediation. The parties will cooperate in good faith and use reasonable efforts to informally resolve any such dispute. 19. Authority. Each of the parties represents and warrants that it has the requisite power and authority to execute, deliver and perform this Agreement, and that such execution, delivery and performance shall not constitute a violation or breach of any charter or by -law or any other provision of any other agreement to which RLMS or CUSTOMER is a party or by which it may be bound. Each party further represents that it has been represented by separate and independent counsel in the preparation and negotiation of this Agreement, or has waived their right to such counsel. Both parties agree to preserve as confidential all information related to the business of the other, its affiliates, agents, and their customers, and clients, suppliers, which may be obtained or may be developed as a result of this Agreement, and further agrees to cause any agent to be bound by the confidentiality provisions contained therein. 20. Entire Agreement. The parties agree that this Agreement, and pricing included within (and made a part hereof), by RLMS on CUSTOMER's behalf as provided herein, evidence the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all previous communications, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter hereof. 5 — Confidential Retail Lockbox 105 14`h Ave Suite 300, Seattle, WA 98122 List of Exhibits Exhibit A Statement of Work and Pricing Exhibit B IRS W -9 Exhibit C ACH Processing Contract (applicable if processing) The parties below hereby execute this Agreement and Exhibits as of the Effective Date: AGREED TO BY: Tukwila Municipal Court By: Authorized Signature Name: Kimberly A. Walden Title: Presiding Judge j Date: d // `// �..% City of Tukwila Hagge ' • / i - Ti tle: D Retail Lockbox Merchant Services, LLC By: Authorized Signature Name: Lewis Townes Title: President Date: 1 a Email: Lewis @RetailLockbox.com Phone: (206) 925 -3604 Address: PO Box 84451 Seattle, WA 98124 6 — Confidential Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 EXHIBIT A STATEMENT OF WORK AND PRICING Statement of Work and Pricing for Paystation RLMS will create an external facing website that does not require any logon. A "Pay Now" link is created on the CUSTOMER's website that links to a custom payment page where customers can make payments. With this system RLMS will gather both the billing information for the payment, and the information required for posting to CUSTOMER's accounts receivable system. The pay site will allow for customers to go to Paystation.com and make a one -time payment, either check or credit card, for payments owed to the CUSTOMER. The website will be built and hosted by RLMS. Customers will be directed to go to Paystation.com/CUSTOMER name There will be a series of four steps to make a payment: 1. Account Details 2. Payment Details 3. Confirm Details 4. Payment Confirmation/receipt Standard branding includes customer logo, Sample Statement, and COMPANY name. The CUSTOMER will receive on a daily basis a report of everything that was processed online successfully. NOTE: Any custom development or changes outside of the scope of work must be agreed to and signed off by both parties before any work is done. RLMS will create the ability for a customer to call in to a phone number and pay a ticket over the phone by IVR and make a one -time payment via eCheck or Credit Card. The IVR system will allow a user to select English or Spanish as an option. Page 7 of 13 105 14th Ave Suite 300, Seattle, WA 98122 Fee Schedule for Paystation Terminal Processing Fees Online Payments E -Check Credit Card IVR Payments E -Check Credit Card Services Include: • Web based payments • Bi: Lingual phone IVR Payment • Daily Detail & Summary report Website Platform Fee Daily Reporting (Summary & Detail) Custom Accounts Receivable Posting File Custom Posting File Implementation Fee ACH Rejects Initial Training (2 hours) $ 1.00 per item 2.5% + $ 1.00 $ 2.00 per item 2.5% + $ 1.00 (in Spanish and English) $ X5.89 / Mo - Waived $ 4-2-5480 / Mo - Waived $ Variable based on file specifications $ Variable based on file specifications $ 35.00 per item $ Included Page 8of13 Retail Lockbox 105 14`" Ave Suite 300, Seattle, WA 98122 EXHIBIT C RETAIL LOCKBOX MERCHANT SERVICES ACH SERVICES AGREEMENT THIS ACH SERVICES AGREEMENT ( "Agreement ") is made by and between, RLMS and CUSTOMER as of the date this Agreement is signed above by RLMS (the "Effective Date "). RLMS and its affiliates provides through its products and services verification and Automated Clearing House ( "ACH ") services and related goods and services (collectively the "Services ") to CUSTOMER engaged in the selling of goods or services. RLMS or its vendors are 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. CUSTOMER is lawfully engaged in the business of selling goods or services to third parties (a "Customer ") and is an originator that wishes to initiate credit and /or debit ACH entries ( "Entries "). CUSTOMER desires that RLMS provide the Services as set out in this Agreement. The Services provided hereunder shall be subject to the CUSTOMER application, CUSTOMER pricing, any other exhibits attached hereto and all documents signed by the CUSTOMER, all of which are incorporated by reference and specifically made a part of this Exhibit. Therefore, the parties agree as follows: 1. NACHA RULES AND RLMS GUIDELINES: RLMS and CUSTOMER each agree that it will be in compliance with the current rules and regulations of the National Automated Clearing House Association ( "NACHA ") and/or all regional payment alliances associated with NACHA and any other applicable rules, regulations, laws and card association rules (collectively the "NACHA Rules ") applicable to it at all times during the term of this Agreement. All NACHA Rules are hereby incorporated herein by reference including any changes and updates to the NACHA Rules. In the Event of any inconsistency between the NACHA Rules and this Agreement the NACHA rules shall prevail and control. In addition, RLMS may publish to CUSTOMER and other companies 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. 2. SERVICES: RLMS shall provide various Services as selected by CUSTOMER. CUSTOMER shall utilize and access the selected Services in accordance with the practices and procedures established by RLMS. 3. MERCHANT ACCOUNTS: CUSTOMER agrees to immediately reimburse RLMS for any shortfalls that occur due to non - sufficient funds in the commercial demand deposit checking accounts (the "Merchant Accounts ") designated by CUSTOMER for use in conjunction with the Services. RLMS reserves the right to delay the availability of funds for deposit without prior written notices to CUSTOMER if in its sole discretion RLMS deems itself at financial or relative risk for any and all services performed under this Agreement. 4. RIGHT OF SETOFF: CUSTOMER hereby acknowledges and agrees that RLMS shall have a right of setoff against any and all fees, Returns and Refunds owed RLMS by CUSTOMER under this Agreement. CUSTOMER hereby authorizes RLMS to either initiate transaction entries to CUSTOMER's depository account number, (and as those numbers may be changed, any new account Pate 9 of 13 Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 numbers provided to RLMS) without additional authorization or consent for any balance due RLMS, including amounts due associated with any ACH reversal initiated by a Customer's financial institution for reasons such as cancellation of order, non - receipt of goods or services purchased, or fraud ( "Chargeback(s) "). In the event that an ACH reversal initiated by a Customer's financial institution for reasons such as cancellation of order, non - receipt of goods or services purchased, or fraud is unable to collect monies owed from CUSTOMER by these methods, CUSTOMER authorizes an ACH reversal initiated by a Customer's financial institution for reasons such as cancellation of order, non- receipt of goods or services purchased, or fraud to instruct the CUSTOMER's bank to return any monies originally transferred by an ACH reversal initiated by a Customer's financial institution for reasons such as cancellation of order, non - receipt of goods or services purchased, or fraud to CUSTOMER, until the balance of CUSTOMER's ACH account with RLMS is brought current with a zero balance. If RLMS reasonably believes that a Chargeback or refund is likely with respect to any transaction submitted by CUSTOMER to RLMS, RLMS may withhold from payments otherwise due to CUSTOMER under this Agreement until such time that: (a) RLMS is charged back by Customer's bank, in which case RLMS shall retain the funds; (b) the period of time under applicable law or regulation by which the Customer may dispute the ACH charge and the Customer's bank may exercise its chargeback rights has expired (generally 60 days from the date the financial institution first made available to the Customer its bank statement with the applicable charge transaction listed on it); and/or (c) RLMS determines that a Chargeback on the ACH charge requested by CUSTOMER will not occur. CUSTOMER further grants RLMS permission to initiate adjustment entries to CUSTOMER's checking account in the event of erroneous transactions being posted to said account. 5. PRICING AND PAYMENT: CUSTOMER shall pay RLMS the fees, penalties and charges for the Services shown in RLMS' then - current standard published Services fee schedule for CUSTOMER. RLMS may increase the Services fees by giving CUSTOMER at least thirty (30) days prior written notice of such increase. 6. PROCESSING DEADLINE: RLMS has specific processing deadlines imposed by its ODFI ( "Originating Depository Financial Institution ") and the ACH Operator. Files received by the deadline will be transmitted that day to the Federal Reserve RLMS for settlement on the effective entry day. Files received after the deadline will be processed the next business day. 7. INDEMNIFICATION: CUSTOMER shall indemnify, defend and hold RLMS harmless from and against all claims, actions, losses and expenses, including attorney's fees and costs, incurred by RLMS arising out a third party claim related to or in connection with CUSTOMER's breach of this Agreement or the NACHA Rules or wrongful use of the Services. RLMS shall indemnify, defend and hold CUSTOMER harmless from and against all claims, actions, losses and expenses, including attorney's fees and costs, incurred by CUSTOMER arising out a third party claim related to or in connection with RMLS's breach of this Agreement or the NACHA Rules or wrongful use of the Services. This indemnification shall survive the termination of this Agreement. 8. ENTRIES: CUSTOMER shall be responsible for the accuracy and propriety of all Entries submitted to RLMS for processing, as well as responsible for obtaining all required approvals for the processing of the Entry from the Customer. CUSTOMER shall be liable for each Entry and warrants that its Entries comply with the NACHA Rules. 9. DISCREPANCIES: event of any conflicts in the instructions received by RLMS regarding the CUSTOMER or any Entries relating to them, RLMS may at its option and with or In the Page 1 ti of Retail Lockbox Merchant Services 105 14th Ave Suite 300, Seattle, WA 98122 without notice, hold or interplead, comply with the legal process or other order, or otherwise limit access by the CUSTOMER or by RLMS to the funds, Entries or proceeds thereof. 10. SECURITY PROCEDURES: CUSTOMER shall comply with the security procedures described herein and as set forth in the NACHA Rules; CUSTOMER acknowledges that the purpose of such security procedure is for verification of authenticity and not to detect an error in the b. transmission or content of an Entry. No security procedure for the detection of any such error has been agreed upon between RLMS and CUSTOMER. CUSTOMER is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions. a. RLMS will provide CUSTOMER with an Administrative and Gateway User Name and Password. CUSTOMER may appoint an individual ( "Administrator ") c. with the authority to: (a) determine who will be authorized to use the ACH service; (b) establish separate passwords for each user; and (c) 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 other to act on its behalf, and the actions of the persons designated by the Administrator to use the RLMS service. CUSTOMER agrees to: (a) take reasonable steps to safeguard the confidentiality of all Passwords; (b) limit access to its passwords to persons who have a need to know such information (c) closely and regularly monitor the activities of employees who access the RLMS service; and (d) prohibit its employees and agents from initiating Entries without proper supervision and adequate controls. CUSTOMER understands that the use of Passwords and the RLMS service instructions is confidential and agrees to assume all risks of accidental disclosure or inadvertent use by any party whatsoever, whether such disclosure of use are on account of CUSTOMER's negligence or are deliberate acts. CUSTOMER acknowledges that no person from RLMS will ever ask for any Passwords and that RLMS employees do not need and should not ask for passwords. CUSTOMER shall change its passwords periodically and whenever anyone who has had access to a password is no longer employed or authorized by it to use the RLMS service. RLMS may require CUSTOMER to change its passwords at any time. RLMS may deny access to the RLMS service without prior notice if it is unable to confirm (to its satisfaction) any person's authority to access the service or if RLMS believes such action is necessary for security reasons. 11. WARRANTY: RLMS warrants to CUSTOMER that its Services will be performed in a professional and timely manner consistent with ACH transaction processing industry standards and in accordance with the NACHA Rules and any written RLMS policies and procedures communicated by RLMS to CUSTOMER. EXCEPT FOR THE FOREGOING WARRANTY, BANK MAKES NO OTHER THE SERVICES ARE PROVIDED BY BANK ON AN `AS IS' BASIS WITHOUT WARRANTY OF ANY KIND, AND RLMS DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF CUSTOMER 12. ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RLMS does not guarantee the completeness or accuracy of the information provided from a third -party database. RLMS shall have no liability to CUSTOMER for any invalid Customer information or Customer checks returned unpaid to CUSTOMER. 13. LIMITATION OF LIABILITY: In no event shall RLMS be liable to CUSTOMER or any other party for any loss of profits or Page (1 of 13 Retail Lockbox 105 14`" Ave Suite 300, Seattle, WA 98122 any incidental, special, exemplary, punitive, or consequential damages even if RLMS has been advised of the possibility of such claims or demands. RLMS' cumulative liability to the CUSTOMER for all claims relating to or stemming in any way from the Services, this Agreement, or the relationship between RLMS and CUSTOMER, including any cause of action in contract, negligence, tort, strict liability of otherwise, shall not exceed the total amount of all fees paid by the CUSTOMER to RLMS during the three (3) month period preceding the origination of the claim giving rise to liability. 14. TERM TERMINATION: a. TERM: This Agreement shall have an initial term of twelve (12) months 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 to the other party no later than thirty (30) calendar days prior to the end of the current term, whether the initial term or any renewal term. AND b. TERMINATION: 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 Section 3, 4 or 6 above: Five (5) business days. Either party may cancel this Agreement for any reason, or no reason at all, by providing the other party with thirty (30) days notice. 15. MISCELLANEOUS: a. b. GOVERNING LAW /ARBITRATION: This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflicts of laws principles. NOTICE: Any notice required or permitted hereunder shall be in writing and shall be sent by certified mail, return receipt requested, or by overnight express mail, with proof of delivery retained, and addressed to the respective parties at the address set forth below. A copy of any notice of breach or termination sent to RLMS shall be delivered to the following: Retail Lockbox Merchant Services, LLC 220 Minor Avenue N. Seattle, WA 98109 Attn: Legal Department c. ASSIGNMENT: This Agreement shall not be assigned or delegated by CUSTOMER to any other party without the prior written consent of RLMS, which shall not be unreasonably withheld. RLMS may assign this Agreement in its sole discretion without the written consent of CUSTOMER. 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 RLMS, ODFI or their affiliates, of any Service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of, among other things, labor disputes, strikes, acts of God, fire, floods, lightning, earthquakes, severe weather, utility or communications failures, failures of the ODFI or the ACH network, computer associated outages or delay in receiving electronic data, war, civil commotion, or any law, order or regulation, etc. having legal effect, then RLMS, ODFI and their affiliates shall be excused from their performance hereunder to the extent of the prevention, restriction, delay or interference. ace: 12 of 1 s Retail Lockbox 105 14th Ave Suite 300, Seattle, WA 98122 f. AMENDMENT: Except as otherwise set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. g. CAPITALIZED TERMS: All capitalized terms used in the Agreement have the meaning assigned to that term in the current NACHA Rules. h. ENTIRE AGREEMENT: This Agreement, contains the entire agreement between the parties relating to the subject matter addressed herein, and supersedes any prior or contemporaneous understandings or agreements, whether oral or written, between the parties regarding the subject matter contained herein. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by facsimile copies reflecting the party's signature hereto, and any such facsimile copy shall be sufficient to evidence the signature of such party as if it were an original signature. 3 of 13