IMPORTANT – READ CAREFULLY. This Platform Services Agreement (“Agreement”) is a legal agreement between you (“Non-profit”) and National Payment Card Association Corp.: (“NPCA”) National Payment Card Association (doing business as ZipLine) 4171 W. Hillsboro Blvd., Suite 5, Coconut Creek, FL 33073. By registering and participating in the Give-the-Change System, Non-profit agrees to be bound by the terms and conditions of this Agreement.
Cause Based Solutions has developed a system (the “Give-the-Change System”) which will allow Non-profit to receive charitable contributions from Donors through use of debit cards branded and issued to Donors by Member (the “Give-the-Change Cards”). The payment processing services for the Give-the-Change Cards will be provided by NPCA.
NPCA is a provider of Merchant Payment and Non-profit Donation Solutions, (the “Platform”) including but not limited to: (i) Open and Closed Loop ‘Decoupled Debit’; (ii) Merchant processing and information services; (iii) card and/or account issuance; (iv) consumer (the “Donor”) enrollment and engagement services; and (v) various ancillary services in addition thereto, and in support thereof.
Non-profit desires to avail itself of the Platform through an exclusive agreement for use in its transactions with Donors.
NOW THEREFORE, in consideration of the mutual covenants and obligations contained herein, the sufficiency of which is hereby affirmed by the Parties, the Parties mutually agree to be bound by this Agreement as well as the following agreements and supporting Attachments, which are attached hereto and incorporated as a part of this Platform Agreement:
Platform Agreement Terms and Conditions
A. Schedule Of Fees and Program Requirements
In witness of this agreement, duly authorized representatives of the parties have executed this Agreement.
Contact Information. If Non-profit has any questions about the platform services or this agreement, please send all questions to firstname.lastname@example.org.
PLATFORM SERVICES AGREEMENT TERMS AND CONDITIONS
The following terms used in this Agreement shall have the meanings ascribed below:
1.1. “ACH” means the Automated Clearing House as governed by NACHA, and the primary electronic funds transfer interface through which banks submit credit/debit entries to one another on behalf of consumers and businesses. For purposes of this Agreement “ACH” can also refer to a Donor transaction (“Transaction”) submitted through the Platform via a Merchant POS terminal, web page or mobile phone.
1.2. “Agreement” means the agreement, also referred to as “Platform Agreement” contemplated herein by and between NPCA and Non-profit, and all exhibits, licenses, and attachments hereto, including any future addenda.
1.3. “Authorized Agent” means any individual authorized, or with the apparent authority from Non-profit to act as a bona fide representative of the Non-profit for all matters pertaining to this Agreement.
1.4. “Confidential Information” shall mean, as the context requires the following, whether disclosed orally or in writing or by any other media: (a) the terms of this Agreement, all information and materials provided by either party to the other party for its use in performing in its responsibilities under this Agreement, including but not limited to information relating to the business, products, processing services, technology and systems of the other party; the intellectual property, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, and inventions of the other party or its licensors; names and expertise of employees and consultants; SSAE and other audit reports; and all information and data relating to Donors, including Donor Data and NP Data (which is defined in Section 4.2 below), and other technical, business, financial, customer and product development plans, forecasts, strategies and information; (b) the trade secrets relative to NPCA’s Platform Services, respectively, and (c) all information and materials, including Donor nonpublic personal information and data, provided by a Donor to NPCA which is covered by a written agreement and obligation of confidentiality. Confidential Information shall not include information which: (i) is in or (through no improper action or inaction by the party receiving the information (the “Receiving Party”) or any employee or agent thereof enters the public domain; (ii) was rightfully in its possession or known by the Receiving Party prior to receipt from the party disclosing the information (the “Disclosing Party”); (iii) was rightfully disclosed to the Receiving Party by another person without restriction; (iv) was independently developed by or for the Receiving Party without access to and use of any Confidential Information of the disclosing Party; or (v) is disclosed as legally required pursuant to a court or regulatory agency order or subpoena, provided that the Disclosing Party is first given a reasonable opportunity to seek a protective order or other legal means for prohibiting or restricting the disclosure of its Confidential Information without appropriate confidentiality obligations.
1.5. “Decoupled Debit” Decoupled debit cards are issued by an entity other than the financial institution holding the cardholder’s bank account. In a decoupled debit arrangement, transactions that are authorized by the card issuer settle against the cardholder’s account held by an entity other than the issuer, generally via a subsequent ACH debit to that account.
1.6. “Documentation” shall mean NPCA’s written functional l specifications and user instructions regarding the operation of the Platform Services or systems; NPCA’s sales and marketing materials relating to the Platform Services or systems; and any other materials provided by NPCA to Non-profit under this Agreement.
1.7. “Enrollment” means the process by which an individual or entity applies for membership to the NPCA Platform by submitting certain information for evaluation and acceptance, and in doing so establishes a relationship and binding agreement with NPCA.
1.8. “Good Standing” shall mean the status of Donor that is in full compliance with all terms and conditions of this Agreement or an Enrollment Agreement.
1.9. “Mark” shall mean a trademark, service mark, trade name, logo or any other similar mark or identification of a party’s ownership of its product, material or service or related to its business.
1.10. “Donor” means any person or entity who has enrolled, and been accepted by NPCA as an ‘end user’ of the Platform.
1.11. “Donor Agreement” means the agreement between NPCA and Donor providing Donor access to the NPCA Platform, including but not limited to authorizing NPCA or its agents to initiate ACH debit entries on MERCHANT’S behalf in payment of Donor validated purchases of goods/services, or for membership fees or associated services within the Platform.
1.12. “Donor Data” means all data generated by and/or relating to Donors, including without limitation: (i) the Donor’s name, e-mail address, postal or street address, social security number, date of birth, driver’s license number, zip or postal code; (ii) the information used by a Donor to open and sign into the Platform, such as a user identification and a password; and (iii) the financial data, user preferences, or other personal information specific to a Donor’s account, and (iiii) Donor transactional data.
1.13. “Merchant” shall mean any merchant that accepts the Non-Profit branded debit card and can accept the debit card via its existing payment processing in an open loop manner via Pulse Debit Network or other sponsored Debit Networks.
1.14. “Merchant Payment” shall mean the gross amount of a purchase transacted by a Donor at Merchant.
1.15. “Non-profit Support” shall mean the provision of standard maintenance support relating to the Platform Services Agreement.
1.16. “Misc Fees” refers to the fees charged Non-profit by NPCA for ancillary and incidental services as more specifically described in Attachment A (“Schedule of Fees and Program Requirements”).
1.17. “NACHA Rules” shall mean the then-current National Automated Clearing House Association (the “NACHA”) ACH Operating Rules and Operating Guidelines published by NACHA.
1.18. “NPCA” means National Payment Card, Association.
1.19. “Originating Depository Financial Institution” or “ODFI” shall mean a financial institution which performs the processing of ACH transactions in the electronic payments system which have been submitted pursuant to an ACH origination agreement.
1.20. “Platform” shall mean the proprietary and patented NPCA payment and donation platform accessed by both Non-profits and Donors, and for which Non-profit expressly acknowledges its limited licensing thereto.
1.21. “Platform Services” shall mean the types of NPCA’s Enterprise Solutions identified in this Agreement and any Attachments or Addenda.
1.22. “POS” Shall mean a Point of Sale device at a Merchant location through which Transactions are processed.
1.23. “Re-presentment Fee” means the allowable state fee, or its equivalent, assessed to a Donor for a transaction using an account with NSF (non-sufficient funds).
1.24. “Software” shall mean, as the context requires, the software programs (a) owned by NPCA and its licensors and provided by NPCA with or incorporated as part of the Platform Services or (b) licensed as separate standalone software products to Merchant as described in this Agreement, its Attachments or Addenda.
1.25. “Third Party Software” shall mean a software product which is owned by a third party and is licensed to Non-profit or Donors for use in conjunction with the Platform Services and systems provided by NPCA under this Agreement.
1.26. “Third Party Services” means processing or other services which originate from a third party service provider which may be used in conjunction with the Services provided by NPCA under this Agreement.
1.27. “Transaction” means a Donor transaction submitted through the Platform via a Merchant POS or a webpage or mobile phone.
1.28. “Transaction Fee” means the fee charged Merchant by NPCA for each ACH or other transaction processed, as more specifically described in Attachment A (“Schedule of Fees and Program Requirements”).
2. NON-PROFIT SERVICES
NPCA shall provide Non-profit access to its Payment and Donation Platform as described below for the purpose of monitoring the processing of Donor initiated Decoupled Debit (ACH) transactions at Merchant sites and within the NPCA Platform, as well as performing other Donation based functions such as the rounding up of transactions to an amount agreed with the Donor, for instance the nearest dollar, this amount being known as the Donation;
2.1. Transaction Processing. Merchants shall submit for processing, Donor ACH transactions for purchases made at Merchants, which process shall include NPCA authorization of individual transactions via the Merchants’ POS, the application of any round-up of transactions, with the balance or “change” to be sent to the Non-profit, and the batch settlement of funds to the Merchants’ and Non-profit’s bank accounts for corresponding transactions.
2.2. Non-profit Reporting. Non-profit shall have access to the NPCA Non-profit Reporting Portal and the standard reports available thereto and as described in Attachment A (“Schedule of Fees and Program Requirements”). Custom reporting available, but may incur a development fee depending on the scope of the request. Non-profit will be provided a user name and password for login. Standard and special reports available to Non-profit for reconciliation and review processes and all reports are downloadable. At all times NPCA maintains the most recent twelve (12) months transactional data. Prior data is archived on a monthly basis and retrievable upon request for one hundred seventy five dollars ($175.00) per request, unless the request is the result of the actions of NPCA.
2.3. Testing. Prior to final rollout and activation of the Platform to all Merchant locations, NPCA technical team will test all aspects of the systems and provide Non-profit with acknowledgement that the system is ready for release.
2.4. Support. NPCA shall offer 24/7 front-line support to Non-profit in the performance of this Agreement and in support of the Platform.
2.5. Settlement.NPCA shall remit the full (gross) amount of all Donations to Non-profit’s designated bank account, via ACH, within one (1) month of authorization and
processing, provided however, that NPCA bears no responsibility for delays associated with third party systems.
2.6. Velocity Settings. NPCA Platform operates within established default parameters based on factors including average daily and weekly dollar volume, individual ticket size and daily transaction count as more specifically defined in Attachment A (“Schedule of Fees and Program Requirements”). Transactions falling outside established parameters will be declined.
3. NON-PROFIT SERVICES/ENROLLMENT
3.1. Donor Enrollment Portal. NPCA shall provide access to its Donor Enrollment Portal, which in conjunction with Non-profit cooperation, can be designed with Non-profit branding and ‘look and feel’ consistent with Non-profit’s desired image, and shall contain all applicable Donor disclosures and disclaimers regarding data
security, communications, etc.
3.2. Donor Reporting. Donors shall have access to their historical transaction activity through the Donor Reporting Portal. This may be used by them to summarize their donations to Non-profit for tax deduction purposes. To that end Non-profit shall provide the details (EIN) of its status as a non-profit in order for that information to be provided to the donor for tax reporting purposes.
3.3. Donor Support. NPCA shall provide front-line Donor support through a toll-free Donor support number which may include IVR, as well as NPCA Support Portal, through which Donors can amongst other things, add cards to their account, change e-mail, address or other info, or change bank account, etc. Donors can close their account through the portal, or reactivate a suspended account by remitting payment or other required info.
3.4. Donor Returned Item. From time to time a Donor ACH item will be returned to NPCA unpaid. Provided the item has been duly authorized through the NPCA Platform, the Merchant bears no liability for returned items. It is agreed and acknowledged that ownership of any such items is conveyed to NPCA as of the moment of
funding, and all rights title and interest accrues to NPCA and/or its agents, and NPCA shall endeavor to collect all such items either internally or through
a third party, electronically or manually, including the collections of any applicable NSF or other fees.
3.5. Donor Deactivation. Pending the collection of a returned Donor ACH, including any applicable NSF or other fees, or upon Donor reaching velocity limits as defined herein, a Donor’s account shall be deactivated until NPCA is made whole for any returned items, or, velocity limits are no longer exceeded.
4.1. Security Standards. Upon written request NPCA will provide to Non-profit a copy of its most current SSAE audit report pertaining to the NPCA data center(s) where the Services and Platform are hosted and accessed by Non-profit and/or Donors. These reports contain NPCA’s Confidential Information and shall not be used or disclosed within internally or outside of Non-profit, except on a strict need-to-know basis to Non-profit’s respective external regulatory examiners for the purpose of ensuring and demonstrating the security and confidentiality of the data of Non-profit and/or Donors processed through the NPCA.
4.2. Data Security and Privacy. To the extent that the Confidential Information of Non-profit is made available to NPCA which constitutes the personal, nonpublic (the “NP”) information and data of Non-profit and/or Donors which is subject to applicable data security and privacy laws and regulations, the following provisions shall
4.2.1. NPCA shall apply commercially reasonable efforts to ensure that all NP Data uploaded by Non-profit or Donors to or through the NPCA
servers hosting the Services will be transmitted and stored via secure channels, and employ industry-standard security, firewall and virus protection technology to safeguard the NP Data transmitted or stored on its servers.
4.2.2. NPCA shall not disclose or permit external access to the NP Data for any purposes other than in the fulfillment of its contractual obligations under this Agreement. In connection with providing Services, NPCA shall take all commercially reasonable steps to ensure the privacy and security of the NP Data and protect against anticipated threats and hazards to the security of the NP Data. NPCA shall take all commercially reasonable steps to prevent unauthorized access to or use of the NP Data that could result in substantial harm or inconvenience to Non-profit and/or Donors. NPCA has implemented policies and procedures to ensure the proper disposal of NP Data in accordance with applicable Federal and State requirements. In the event a court, regulatory agency or other government authority seeks to compel disclosure of the NP Data, NPCA shall, if legally permissible, promptly notify Non-profit of the disclosure requirement.
4.2.3. NPCA has separately published its data privacy and security compliance commitment to its Donors generally on the Donor Enrollment pages, which corresponds at a minimum to the provisions of this Section as of the Effective Date of this Agreement. To the extent that additional commitments by NPCA are reflected in future published versions of this policy, these additional commitments shall be incorporated as part of this Agreement without further actions by the parties. In no event shall a future published data privacy and security compliance statement issued by NPCA lessen or eliminate any of the commitments by NPCA stated in this Section 4.0.
4.2.4. If a breach of security results in an unauthorized intrusion into NPCA’s systems which directly and materially affects Non-profit or Donor or its respective Donors or consumers, NPCA will take appropriate measures to stop the intrusion; report on the intrusion to Non-profit or Donor affected by the intrusion within a reasonable time after discovery of the intrusion; subsequently report the corrective action taken by NPCA in response to the intrusion; and provide reasonable assistance to Non-profit or Donor affected by the intrusion to support any mandatory disclosures about the intrusion by Non-profit or Donor to its Donors or consumers required by law. If NPCA has notified law enforcement agencies about the intrusion, NPCA may delay its notification of the intrusion to Non-profit or Donor affected by the intrusion to the extent prohibited from doing so by the law enforcement agencies, and Non-profit and/or Donor waive(s) any claims against NPCA in this regard.
5.1. Non-Solicitation of Employees or Contractors/Providers. During the term of this Agreement and for two (2) years after its termination or expiration, neither party shall directly or indirectly solicit for employment purposes any of the employees of the other party, without the prior written consent of the other party. For the purpose of this Section only, the scope of the term “employment” shall encompass any relationship with an employee of the other party in a capacity as an employee, contractor, partner or agent of the hiring party. Similarly, Non-profit shall not engage any Contractor or Provider of NPCA except as provided for and in the performance of this agreement, for a period of two (2) years following termination of this agreement, unless Non-profit had contracted with such parties prior to its relationship with NPCA.
5.2. Withdrawal of Services Due to Legal or Regulatory Concerns. NPCA reserves the right, on sixty (60) days written notice or the minimum notice allowable by law, if less, to notify Non-profit of its intention to suspend or cease providing any Services if continuing to so provide the Services would, in the written opinion of NPCA counsel as made available to Non-profit, would be illegal, or would be reasonably likely to cause material liability relating to legal or regulatory issues for NPCA.
5.3. Disaster Recovery and Contingency Plans. Upon written request of Non-profit, throughout the term of this Agreement, NPCA agrees to submit to Non-profit a written
summary of its most current Contingency, Disaster and Business Recovery plans applicable to the NPCA operations and Platform from which NPCA provides Services. These summaries contain NPCA’s Confidential Information and shall not be used or disclosed within or outside of Non-profit, except on a strict need-to-know basis and Non-profit’s external regulatory examiners for the purpose of complying with audit requirements.
5.4. Billing Disputes. If Non-profit in good faith notifies NPCA within one hundred eighty (180) days of a valid error or other disputed item relative to NPCA billing for services, NPCA will commence an audit and analysis of the reported item and will not process an ACH debit against Non-profit’s bank account for the amount in dispute until the disputed item has been corrected or confirmed to be correct as originally presented in the billing, provided however, that time is of the essence and it shall be the Non-profit’s responsibility to timely review all billings.
5.5. Third Party or Complimentary Services. Should NPCA provide any Third Party Services to Non-profit (e.g. web site development or other adjunct or complimentary services) Non-profit shall be entitled to purchase these services at the prices identified in Attachment A (“Schedule of Fees and Program Requirements”) or an Addendum to this Agreement, which pricing may be changed from time to time only upon advanced written notice to Non-profit. NPCA shall be entitled to pass through to Non-profit any cost increases initiated by the providers of any Third-Party Services. However, in the event NPCA increases the prices identified in Attachment A (“Schedule of Fees and Program Requirements”) or an Addendum to this Agreement without a corresponding increase in cost from a provider of the Third Party Services, Non-profit shall have the option of terminating such services if it chooses.
5.6. Service Levels. The Services shall comport in all material respects with reasonable and customary industry standards, and the parties acknowledge that the availability of the Services depends on many factors, including but not limited to, NPCA/Non-profit/Donor connections to the Internet, cell service or wifi where applicable, and that any equipment or software, by its nature, is not fault proof. The Service Level Standards do not apply to performance or other issues: (a) that directly result from any actions or inaction of Non-profit, Donors or third parties, including without limitation from a breach by Non-profit of the Platform Services Agreement or any other agreement relating to the Services, or (b) that result from equipment or other processing services not provided by NPCA.
5.7. Hosting and Management. The Platform Services (including the Donor pages) is (are) hosted and controlled by NPCA, and available through a URL provided to Non-profit and Donors for the purposes of single-sign-on connectivity by NPCA. NPCA shall be solely responsible for providing and maintaining the NPCA software, NPCA hardware, NPCA equipment, NPCA systems, and NPCA personnel necessary to ensure the hosting and delivery of the Platform Services to Non-profit and Donors. Non-profit and Donors are entitled to all commercially available releases, bug-fixes, versions, new functionality and other updates to the Platform, relative to their POS, at no additional charge if NPCA is making such releases available generally to its other Non-profits.
5.8. Taxes. All prices quoted in the Attachments, Exhibits or Addenda to this Agreement, and any price lists issued by NPCA to Non-profit from time to time, and in any services orders or statements of work for services executed between NPCA and Non-profit under this Agreement shall be exclusive of applicable taxes, duties and other fees charged or imposed by a government entity on the transaction involved and shall be the sole responsibility of Non-profit.
6.1. Non-profit’s Warranties: Non-profit warrants to NPCA that:
a)it has the full legal right and authority to enter into this Agreement with NPCA, and that by entering into this Agreement with NPCA, it will not be in violation of any other agreement between Non-profit and a third party;
b)it has secured, or will secure in a timely manner all written agreements, authorizations, consents and other documentation required in this Agreement; and
c)Non-profit will comply with all applicable laws and regulations.
6.2. : NPCA warrants to Non-profit that:
a)it has the full legal right and authority to enter into this Agreement with Non-profit and that by entering into this Agreement with Non-profit, it will not be in violation of any other agreement between NPCA and a third party; and
b)NPCA will comply with all applicable laws and regulations, including but not limited to the NACHA Rules to the extent applicable to NPCA; and
c)that Platform Services will operate in material conformity with the specifications established by NPCA, provided however NPCA does not warrant that Services will be error-free or never be intermittently interrupted.
6.3. . EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR REQUIRED BY LAW OR UNDER THE NACHA RULES, NEITHER PARTY MAKES ANY WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES TO THE OTHER PARTY WITH RESPECT TO ITS PERFORMANCE OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1. . Non-profit shall indemnify, hold harmless and defend or settle at its expense any claim or suit, including without limitation any proceeding, investigation or claim (an “Action”) brought by a third party against NPCA, and each of its directors, officers, employees and agents (the “NPCA Indemnitee“) to the fullest extent permitted by law arising out of or in connection with a claim that:
a) That any of Non-profit’s technology, processing services, information, content or other materials or services provided or made available by Non-profit or the use thereof as specifically authorized by Non-profit, infringe upon any intellectual property rights of any third party; or
b) Any actions or omission of actions by Non-profit or its employees, agents or contractors constitute negligence, willful misconduct, fraud or a criminal act; or,
c) Non-profit has failed to comply with applicable laws or regulations.
7.2. Non-profit shall indemnify and hold harmless the NPCA Indemnitee from and against any and all damages, costs, liabilities and reasonable attorneys’ fees, incurred in defending and/or resolving such Action; provided that: (i) Non-profit is promptly notified in writing of such Action, (ii) Non-profit shall have the sole control of the defense and/or settlement thereof, (iii) the NPCA Indemnitee furnishes to Non-profit, within a reasonable time, information available to the NPCA Indemnitee for such defense, and (iv) the NPCA Indemnitee cooperates in any defense and/or settlement thereof as long as Non-profit pays all of the NPCA Indemnitee’s reasonable out-of-pocket expenses and attorneys’ fees.
7.3. . NPCA shall indemnify, hold harmless and defend or settle at its expense any claim or suit, including without limitation any proceeding, investigation or claim brought by a third party against Non-profit, each of its directors, officers, employees, agents (the “Non-profit Indemnitee“) to the fullest extent permitted by law arising out of or in connection with a claim that:
a)NPCA’s Processing Services, Software, technology, information, content or other materials or services provided or made available by NPCA or the use thereof as specifically authorized by NPCA, infringe upon any intellectual property rights of any third party. For the avoidance of doubt, NPCA’s indemnification obligations only extend to claims arising from NPCA’s proprietary, or licensed software used in conjunction with the Platform, but shall not include any hardware and/or software provided by NPCA in connection with Third Party Services requested by Non-profit; or
b)any actions or omission of actions by NPCA or its employees, agents or contractors constitute negligence, willful misconduct, fraud or a criminal act; or
c)NPCA has failed to comply with applicable laws, regulations and NACHA Rules (to the extent applicable to NPCA).
7.4. NPCA shall indemnify and hold harmless the Non-profit Indemnitee from and against any and all damages, costs, liabilities and reasonable attorneys’ fees, incurred in defending and/or resolving such Action; provided that (i) NPCA is promptly notified in writing of such Action, (ii) NPCA shall have the sole control of the defense and/or settlement thereof, (iii) the Non-profit Indemnitee furnishes to NPCA, within a reasonable time, information available to the Non-profit Indemnitee for such defense, and (iv) the Non-profit Indemnitee cooperates in any defense and/or settlement thereof as long as NPCA pays all of the Non-profit Indemnitee’s reasonable out-of-pocket expenses and attorneys’ fees.
8. LIMITATION OF LIABILITY
8.1. Neither party shall be liable to the other or any third party for any consequential, incidental, indirect, special or punitive damages whatsoever (including without limitation, damages for loss of profits, loss of use, business interruption, loss of data or other pecuniary loss), in connection with or arising out of this Agreement, whether based upon contract, tort or any other legal theory, including negligence, even if such party has been advised of the possibility of such damages. This limitation shall apply notwithstanding any failure of the essential purpose of any limited remedy provided herein.
8.2. Except for the indemnification liability stated in Article 7 (indemnification) above, in no event shall either party’s aggregate liability for actual, direct damages incurred by the other party in all claims or causes of action arising against that party under this Agreement exceed an amount equal to the total amount of net sales revenue generated by NPCA from its sale and licensing of the NPCA solutions to Non-profit and Donors under this agreement during the twelve (12) calendar month period immediately preceding the month in which the claim or cause of action arose. The foregoing limit on the amount of actual direct damages recoverable by a party against the other party shall not apply to actual, direct damages resulting from an action or omission of a party which constitutes the gross negligence or willful misconduct of the liable party.
9. CONFIDENTIAL INFORMATION
The Receiving Party and the Disclosing Party shall:
a) use such Confidential Information only for the purposes for which such disclosure was made, but in no event for any purpose competitive with the business of the Disclosing Party;
b) restrict dissemination to employees, agents and contractors on a need-to-know basis and only to those employees and agents who have executed a nondisclosure agreement as protective of the Disclosing Party’s Confidential Information as of its own and who shall use the Confidential Information only to the extent reasonably necessary to fulfill the purposes of this Agreement, or in response to a subpoena, summons, Court Order or other legal process, The Federal Reserve System, the ODFI and any other party performing a role in the electronic payment processing ecosystem, with respect to Donor Data and Confidential Information included in or relating to the transactions processed by NPCA under this Agreement after providing written notice to the Disclosing Party, to the extent not prohibited by law;
c) prohibit dissemination and disclosure to third parties, except to the extent specifically authorized to do so in writing, or as otherwise set forth in this Agreement, and in such event, shall reproduce the Confidential Information with the Disclosing Party’s or its licensors’ confidentiality and proprietary notices provided on the original copies of the Confidential Information on all such copies;
d) guard such information from disclosure with the same degree of care the Receiving Party applies to its own Confidential Information of a similar nature and importance, but applying no less than a standard of reasonable care; and
e) refrain from translating, modifying, altering, moving, adapting, divulging, copying, publishing, disseminating, creating derivative works from, decompiling, disassembling, reverse engineering or disclosing, for any purpose whatsoever, any of the Disclosing Party’s Confidential Information to any third party unless authorized by the Disclosing Party by this Agreement, or otherwise in writing or pursuant to applicable law.
f) The Receiving Party acknowledges that the Confidential Information of the Disclosing party contains valuable trade secrets and other proprietary property or non-public information of the Disclosing Party and that any such Confidential Information is and will at all times remain the sole and exclusive property of the Disclosing Party.
g) The Receiving Party shall not allow the removal or defacement of any confidentiality or proprietary notice placed on the Disclosing Party’s Confidential Information. The placement of copyright notices on Confidential Information will not constitute publication or otherwise impair its confidential nature.
9.2. . If an unauthorized use or disclosure occurs by the Receiving Party or a Sub-Non-profit or Donor with whom the Receiving Party has executed a Confidentiality Agreement, the Receiving Party shall promptly notify the Disclosing Party and take, at the Receiving Party’s expense, all steps which are necessary to recover the Confidential Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If the Receiving Party fails to take these steps in a timely and adequate manner, the Disclosing Party may take appropriate steps to pursue this action in its own name.
9.3. . The parties agree that the obligations hereunder are necessary and reasonable in order to protect the other party’s business and Confidential Information, and expressly agree that monetary damages would be inadequate to compensate the Disclosing Party or its licensors for any breach by the Receiving Party of any covenants and agreements set forth in this Article 9. Accordingly, the parties agree and acknowledge that any such violation or threatened violation will cause irreparable injury to the Disclosing Party or its licensors and that, in addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party or its licensors shall be entitled to seek permanent injunctive relief against the threatened breach of this Article 9 or the continuation of any such breach, by the Receiving Party or its employees, agents, contractors or Donors, without the necessity of proving actual damages.
10. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
10.1. Ownership. All intellectual property rights in or related to a party’s respective products, services and Confidential Information are and will remain the exclusive property of that party and its licensors. Neither party shall take any action that jeopardizes the proprietary ownership rights of the other party nor acquire any right in or to the other party’s products, services or Confidential Information of the other party, except for the rights specifically granted to that party in this Agreement. Unless otherwise agreed by NPCA in writing on a case‑by‑case basis, NPCA and its licensors will own all rights in any copy, translation, modification, adaptation or derivative work of the Services, Software or Confidential Information owned by NPCA and its licensors, including any customization, improvement or development thereof created by or for Non-profit. Without limiting the foregoing, the work product of all custom solution engineering work performed by NPCA, including but not limited to any software program interfaces created by NPCA to establish interoperability between the Services and Non-profit, shall be and remain the exclusive property of NPCA and its licensors.
10.2. Ownership and Usage of Marks.
a) NPCA’s Marks. All Marks identifying the NPCA Solutions and NPCA’s business are and shall remain the exclusive property of NPCA. Non-profit shall not take any action that jeopardizes these proprietary rights or acquire any right in NPCA’s Marks, except the limited use rights specified in this Agreement. Non-profit shall not use or register, directly or indirectly, any trademark, service mark, trade name, copyright, company name or other proprietary or commercial right which is identical or confusingly similar to NPCA’s Marks.
b) Non-profit’s Marks. All Marks identifying Complementary Solutions and Non-profit’s business are and shall remain the exclusive property of Non-profit and, as applicable, and its licensors. NPCA shall not take any action that jeopardizes these proprietary rights or acquire any right in Non-profit’s Marks. NPCA shall not use or register, directly or indirectly, any trademark, service mark, trade name, copyright, company name or other proprietaryor commercial right which is identical or confusingly similar to Non-profit’s Marks.
11. TERM AND TERMINATION
11.1. Term. The initial term of this Agreement will commence on the date shown on page one of this Agreement (the “Effective Date”) and continue through the following June 1st, and for a period of three (3) years thereafter. This Agreement will automatically renew for subsequent annual terms each, unless either party gives written notice of non-renewal of this Agreement no later than one hundred eighty (180) days prior to the expiration of the then-current term.
11.2. Termination. In addition to any other rights to terminate this Agreement as indicated above, either party may terminate this Agreement at any time upon written notice to the other party, based on the occurrence of any of the following events:
a)A material breach of this Agreement is committed by the other party, which has not been cured to the reasonable satisfaction of the non-breaching party within thirty (30) days following delivery of written notice of the breach to the breaching party;
b)Non-profit fails to achieve the minimum transaction count requirements for the applicable sales generation measurement period as specified in Attachment A (“Schedule of Fees and Program Requirements”) to this Agreement;
c)Either party becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights, any of which in the other party’s reasonable judgment impairs the ability of the affected party to perform its responsibilities under this Agreement;
d)Either party commits any act of misrepresentation, dishonesty or fraud or a criminal act in relation to the Processing Services or its responsibilities under this Agreement;
e)Either party ceases regular business operations; or
11.3. Non-profit shall be responsible for all services rendered to Non-profit, and costs incurred by NPCA in rendering such services to Non-profit through the date of termination.
12. COMPLIANCE WITH LAWS, REGULATIONS
12.1. Each party shall be responsible to become familiar with and comply with all laws, regulations and other legal requirements that apply to its performance of this Agreement and shall, at its own expense, obtain and maintain any governmental authorizations, registrations and filings that may be required under laws to execute or perform this Agreement.
12.2. In the event that any such law, regulation, or legal requirement or the NACHA Rules are changed which in NPCA’s reasonable judgment materially affects, restricts or prohibits NPCA’s delivery of some or all of the NPCA Solutions being delivered to Non-profit and Donors or increases NPCA’s operating costs for delivering the affected NPCA Solutions, NPCA reserves the right to amend any of the Attachments, Exhibits or Addenda to this Agreement so affected upon sixty (60) days advance written notice to Non-profit.
13. GENERAL PROVISIONS
13.1. Independent Contractor. NPCA and Non-profit shall be at all times during this relationship act as independent contractors, and each be responsible for bearing its own costs and directing its own activities in support of this Agreement. In no event shall either party act or represent themselves as an agent of the other party with the authority to make legally binding commitments on behalf of the other party. Use of terms such as “partner”, “partnership” or similar terms in describing this relationship refers to the spirit of business cooperation between the parties and shall not imply or be interpreted to create a legal partnership or joint venture or any responsibility by one party for the actions of the other, either expressly or by implication.
13.2. Insurance. At its own expense, each party shall maintain sufficient insurance to protect itself from claims for damages, fraud, injuries, or death arising from its performance of this Agreement.
13.3. Notices. Any notice required or permitted under this Agreement shall be given in writing and sent by U.S. Postal Service registered or certified mail, return receipt requested, or by overnight express mail service provided by a national courier, with proof of delivery retained, to the address specified below or to any other address that may be designated by prior written notice. Notice to NPCA shall be directed to its Legal Department.
13.4. . Non-profit shall not transfer or assign its rights or obligations hereunder without the written consent of NPCA, which consent shall not be unreasonably withheld. Any attempted assignment in contravention of this provision shall be void. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
13.5. . Except as otherwise provided above, any waiver, amendment or other modification of this Agreement will not be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. Notwithstanding the foregoing, NPCA shall have the right to unilaterally modify (a) the buy-rate prices shown in any Attachment, Exhibit or Addendum to this Agreement, as permitted in that Attachment, Exhibit or Addendum, and (b) the Attachments, Exhibits and Addenda to this Agreement in accordance with the provisions of Articles 5.7 and 12 (Compliance with Laws, Regulations and NACHA Rules) above.
13.6. . Any portion or provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining portions or provisions hereof in such jurisdiction or, to the extent permitted by law, rendering that or any other portion or provision hereof invalid, illegal or unenforceable in any other jurisdiction.
13.7. . Except with respect to delays or failures caused by the negligent act or omission of either party, and except for the payment of amounts due under this Agreement, any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, acts of terrorism, power outages, failures of the Internet, provided that the party affected by such event shall immediately begin or resume performance as soon as practicable after the event has abated. Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. In the event that the party experiencing the force majeure event is not able to resume performance within ten (10) business days after the force majeure event has commenced, the other party shall have the right to terminate this Agreement immediately upon written notice to the party experiencing the force majeure event.
13.8. . This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without reference to its conflict of laws provisions, and applicable US federal laws and regulations. The application of the United Nations Convention on Contracts in the International Sale of Goods is expressly excluded from this Agreement.
13.9. . This Agreement (including the Attachments, Exhibits and Addenda hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior written or oral and all contemporaneous oral. acknowledges that it has not been induced to enter this Agreement by any representations or statements, oral or written, not contained in this Agreement.
13.10. . Neither party shall issue any advertising, press releases, marketing announcements or other publicity regarding this Agreement or the relationship established between the parties, which utilize the name or the trademarks, service marks or logos of the other party or its solutions, without first submitting the proposed publicity to the other party for review and securing the written approval of the other party, which consent shall not be unreasonably withheld.
13.11.. The provisions of Sections 6 (“Warranties”), 7 (“Indemnification”), 8 (“Limitation of Liability”), 9 (“Confidential Information”) and 10 (“Ownership of Intellectual Property”) shall survive the expiration or termination of this Agreement.
14. WAIVER OF JURY AND ARBITRATION PROVISION: READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR RIGHT TO JURY TRIAL
14.1. . Any and all disputes, claims or controversies by any party hereto, arising out of or in connection with this Agreement (or any agreement executed in association herewith), including but not limited to claims arising in tort and/or in contract, shall be decided exclusively and finally by binding arbitration. THERE SHALL BE NO RIGHT TO A JURY TRIAL. The arbitration hearing shall be conducted at a location within twenty (20) miles of Non-profit’s business address at the time of such arbitration, or, if Non-profit has no business address at the time of the arbitration, then within twenty (20) miles of Non-profit’s business address as specified in this Agreement. The arbitration shall be conducted before the American Arbitration Association (the “AAA”), pursuant to the AAA Commercial Arbitration Rules, which can be obtained on line at www.adr.org, or by calling the AAA at 1-800-778-7879. NPCA will provide a copy of the Arbitration Rules to Non-profit via email upon written request. The arbitration shall be conducted by one (1) neutral arbitrator appointed by the AAA. The arbitrator shall have actual experience in and knowledge of the Payments Processing and Gift and Donation Industries to the greatest extent practicable, unless the parties agree otherwise.
The parties agree that the Federal Arbitration Act (the “FAA”) and related federal law shall govern the interpretation, implementation and enforcement of this Section to the fullest extent possible. In the event state law shall govern, the laws of the State of Delaware shall apply.
The arbitrator shall have the authority to award any relief at law, or in equity which would otherwise be available in a court of law. The arbitration filing fee and the arbitrator’s fee shall be paid by NPCA, as the Parties intend that the costs of arbitration to Non-profit be the same or less than the cost of filing and prosecuting a lawsuit.
14.2. : The Parties hereto acknowledge and agree that this arbitration shall be solely between the Parties to this Agreement, and no class arbitration, or other representative action may be undertaken by the arbitrator. The parties further agree that the arbitrator shall not have the power to combine this with any other arbitration or to treat this as a representative action, or as a class action.
Non-profit may elect to opt out of this Waiver of Jury Trial and Arbitration Provision by sending written notice to NPCA to be received by the close of business on or before the tenth (10th) calendar day after this Agreement is executed, time being “of the essence”. Opt-out notices received after this deadline shall be of no force and effect. The opt-out shall not modify any of the parties other rights and remedies contained herein.
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Schedule of Fees and Program Requirements
(a) NPCA will charge per each Donor online enrollment into the program. The Enrollment process consist of identity check via a third party database that validates the consumer entered information in the enrollment web site and a process that validates the consumer bank account via a deposit and withdrawal of random amounts that require the Donor’s verification.
(b) NPCA will charge per each Donor manually enrolled into the program and per each Donor manual activation into the program. The manual enrollment will include but is not limited to paper application processing. The manual Donor activation is defined as any Donor that is initially activated in the program by customer service.
ACH Payments Bank Information and Authorization
Non-profit shall provide NPCA with the following information regarding its bank account details prior to commencement of the Platform Services:
Single Bank Account:
(You may designate a single bank account for credit of Donations and debit of Service Fees)
Billing for Service Fees:
(Fees and charges billed by NPCA will be debited from this account (i.e. Ancillary Services))
Non Standard Development $120.00 / Hour
This is our current rate for Software development changes for customized work to the NPCA payment system.
3) *Velocity Parameters and Settlings (per Section 2.9. of Master Agreement):
$100 Daily single transaction Limit
$150 Daily Limit
$500 Weekly limit
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