USB PAYMENT PROCESSING MERCHANT BENEFITS AGREEMENT
This Agreement is by and between USB Payment Processing N.E., Inc. ("USB") and ("Merchant").
1. INITIAL TERM. This agreement shall commence upon execution and shall be in force for an initial twelve (12) month term ("Initial Period").
2. TERMS. By executing this agreement Merchant becomes an authorized member of the Merchant Benefits Program. As a member, Merchant may have access to discounts and promotions for products and services ("Benefits") provided by the USB Preferred Vendors, as listed on the Website which may be amended from time to time without notice. Once enrolled, Merchant will remain a member until such time as this agreement is terminated in accordance with Paragraph 5 herein. USB reserves the right, in its sole discretion, to suspend or end the Merchant Benefits Program or any aspect thereof without prior notice to Merchant. USB also reserves the right to eliminate, add, change and/or substitute any of the providers on the Preferred Vendor List without notice to Merchant. USB assumes no responsibility for the payment of or contribution to any use or sales tax on the Benefits which may be imposed by taxing authorities, and such taxes, to the extent imposed, shall remain Merchant’s sole responsibility.
3. RENEWAL. This agreement shall automatically renew after the Initial Period for a successive twelve (12) month period, and shall continue to renew every twelve (12) months ("Extended Periods") unless terminated by either party in accordance with Paragraph 4 herein.
4. TERMINATION. The Date of Cancellation shall be the date of the notice of termination given to either party. USB may terminate this agreement at any time without notice to Merchant, except as may be necessary to establish the Date of Cancellation. In the event Merchant’s membership is not used in accordance with this agreement or has not been properly enrolled, USB reserves the right to (i) refuse to refund any and all membership fees paid by Merchant; and (ii) refuse to fulfill any pending benefits up to one (1) month prior to the Date of Cancellation. Merchant may terminate this agreement at any time by sending written notice to USB, certified mail, return receipt requested. Merchant’s notice to terminate will function as a non-renewal, and this agreement will terminate on the last day of the Initial Period or Extended Period in which the notice was giving to USB. Merchant’s notice to terminate will not entitle Merchant to a refund of any membership fees which may have been assessed or which may become due hereunder. Merchant is prohibited from re-enrolling in the Merchant Benefits Program for at least twelve (12) months from the Date of Cancellation.
5. CONFIDENTIALITY. The terms of this agreement are confidential and may not be disclosed by Merchant or its agents or employees without the prior written consent of USB.
6. WAIVER. Merchant hereby covenants not to sue and agrees to hold harmless USB, its past, present and future parent and affiliate corporations, its past present and future divisions, subsidiaries and related companies, and its and their respective directors, officers employees, attorneys, agents and representatives, both personally and in their capacity as such, and its and their respective parents, affiliates, predecessors, successors, and assigns of and from all and every manner of action and actions, cause and causes of action, grievances, arbitrations, obligations, damages, demands, liabilities, defenses, suits, debts, judgments, expenses, rents, claims and/or counterclaims whatsoever. This covenant not to sue includes, but is not limited to, all causes of action of any kind, in contract, tort, or otherwise.
7. COVENANTS AND OBLIGATIONS OF THE PARTIES. Merchant and USB agree to the following terms: (i) The individual executing this agreement is at least 18 years of age and authorized to sign on behalf of Merchant; (ii) The information provided by Merchant on the application and enrollment form is true, current and accurate; (iii) If the information provided by Merchant on the application and enrollment form is not true, current and/or accurate or if USB has reasonable grounds to suspect that such information is not true, current and/or accurate, USB may, in its sole discretion, suspend or terminate Merchant’s membership without further notice; (iv) Merchant will be provided a promotion code redeemable with all USB Preferred Vendors listed on www.usbne.com ("Website") which may be amended from time to time without notice; (v) Only Merchants who have executed this agreement are authorized to access restricted or password protected areas of the website, and any unauthorized users attempting to access restricted or password protected areas of the Website may be subject to prosecution; (vi) Merchant may not assign or transfer any of its rights under this agreement; (vii) USB will not be liable to any Merchant or third party for suspension or termination of Merchant’s membership; (viii) Membership in the Merchant Benefits Program shall be free to Merchant as long as Merchant is actively processing credit and debit payments with USB; (ix) If this agreement is terminated for any reason in accordance with Paragraph 4 herein, and Merchant, prior to the Date of Cancellation, has utilized any of the benefits described herein, USB is authorized to debit Merchant’s bank account in the amount of $395.00 ("Termination Fee"), and Merchant shall retain access to the Merchant Benefits Program for a twelve (12) month period beginning on the Date of Cancellation; (x) If Merchant’s payment under subparagraph (ix) hereunder is dishonored, Merchant hereby authorized USB to divide the total Termination Fee into incremental charges in order to process the total Termination Fee; (xi) USB is not responsible for any overdraft or over-the-limit charges or bank fees if Merchant’s payment of the Termination Fee is dishonored; (xii) In the event Merchant’s payment of the Termination Fee is dishonored, Merchant shall be responsible for a $35.00 fee payable to USB in addition to the total Termination Fee; (xiii) USB may, at any time and without notice, increase or decrease the Termination Fee or add new fees and charges; (xiv) All charges in effect upon the Date of Cancellation will be due and owing to USB; (xv) Merchant shall be responsible for all reasonable attorneys’ fees and costs of collection in the event Merchant fails to pay the Termination Fee or any other fees assessed under the terms of this agreement.
8. INDEMNIFICATION. For such time as this Agreement remains effective, Merchant hereby agrees to the following: In the event that any third party asserts against USB any claim, complaint, or legal action arising out of or related to this Agreement and USB notifies Merchant of the assertion of such claim, complaint or legal action, Merchant will assume the defense of such claim, complaint or legal action against USB (who shall cooperate in the defense thereof) and thereafter indemnify and hold harmless USB against any and all losses, damages, liabilities or expenses, including reasonable attorneys’ fees, incurred by USB as a result thereof. In no event, however, shall USB be liable to Merchant hereunder for any incidental or consequential damages incurred by Merchant, even if Merchant has advised USB that such damages may be incurred.
9. DISCLAIMER OF WARRANTIES. Merchant expressly understands and agrees that its participation in the Merchant Benefits Program is at Merchant’s sole risk. All services provided by USB are "as is" and "as available". USB makes no representation or warranty, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement, and implied warranties arising from a course of dealing, course or performance, or usage of trade with respect to the usability, timeliness, reliability, accuracy, validity or completeness of any services, that the services will meet Merchant’s needs, or that the services will be provided on an uninterrupted basis. USB disclaims all such representations and warranties. The information contained on the Website or other materials Merchant may receive from USB do not constitute legal, tax, accounting, or other professional advice.
10. INTERPRETATION. The section or paragraph headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. Wherever herein the singular is used, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa, as the context shall require. Wherever herein reference is made to "days" the same shall mean "calendar days" unless the context clearly refers otherwise. In the event that when counting the number of days by which a party to this Contract is to perform an obligation or exercise a right, the last day of that period falls on a Saturday, Sunday or national banking holiday, then and in such event the period of time to perform the obligation or exercise the right shall be extended to the next business day immediately following the date on which the period of time otherwise would have elapsed.
11. PARTIAL INVALIDITY. If any term, covenant or condition of this Contract or the application thereof to any person or circumstances shall be invalid or unenforceable, the remainder of this Contract, or the application of such term, covenant or condition to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby, and each term shall be valid and enforceable to the fullest extent permitted by law.
12. GOVERNING LAW. It is the intention of the parties hereto that all questions with respect to the construction and interpretation of this Contract and the rights and liabilities of the parties hereunder shall be determined in accordance with the laws of the State of Maryland.
13. BINDING EFFECT. All of the covenants, conditions and obligations contained in this Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
14. SURVIVAL. Unless expressly provided for to the contrary elsewhere in this Contract, all of the representations, warranties, covenants and agreements made by the parties each to the other in or pursuant to this Contract shall survive Closing and the delivery of the Deed hereunder for a period of three (3) years following the Closing Date.
15. ENTIRE AGREEMENT. This Contract contains the entire agreement between the parties with respect to the sale of the Property. There are no promises, contracts, conditions, undertakings, warranties or representations, oral or written, express or implied, between the parties, other than as herein set forth. This Contract is intended by the parties hereto to be an integration of all prior or contemporaneous promises, contracts, conditions, negotiations and undertakings between the parties hereto. This Contract may not be modified orally or in any manner other than by an agreement in writing agreed by both of the parties hereto.
16. MISCELLANEOUS. This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same agreement. By completing the Registration form and clicking the "I have read and agreed" button, you represent and warrant that you agree to provide true and accurate information as prompted by the registration form, and that you agree to be bound by this agreement.
