Terms and Conditions – PBS EPP

PROLIFIC BUSINESS SOLUTIONS, LLC. EQUIPMENT PLACEMENT PROGRAM AGREEMENT

1. PROGRAM

1.1 EQUIPMENT.

MERCHANT HEREBY APPOINTS PBS TO BE THE EXCLUSIVE PROVIDER OF MERCHANT ACCOUNTS, EQUIPMENT AND RELATED GOODS AND SERVICES THAT ALLOW BUSINESSES TO PROCESS CREDIT CARD, DEBIT AND AUTOMATED CLEARING HOUSE TRANSACTIONS (THE “PBS SERVICES”) TO MERCHANT AND MERCHANT SHALL NOT PROCESS CREDIT CARDS THROUGH ANY COMPETITOR OF PBS. PBS SHALL PROVIDE TO MERCHANT FREE EQUIPMENT (“EQUIPMENT”) AS DETERMINED BY PBS. MERCHANT ASSUMES ALL RISK FOR DAMAGE TO THE EQUIPMENT. IF MERCHANT VIOLATES ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, BY PROCESSING PAYMENTS W ITH A COMPETITOR OF PBS, FAILURE TO BEGIN PROCESSING PAYMENTS W ITHIN 30 DAYS OF RECEIPT OF EQUIPMENT, CEASES TO PROCESS PAYMENTS WITH THE COMPANY FOR THE DURATION OF 30 DAYS OR LONGER, MERCHANT SHALL AGREE TO PAY THE EQUIPMENT VALUED AT (EACH): USB CARD READER, SMARTPHONE CARD READER AND PIN PAD’S VALUED AT $149, CREDIT CARD TERMINAL VALUED AT $295, PBS’ COSTS OF POS CONVERSION FEES, PRIOR MERCHANT PROVIDERS CANCELLATION FEES REIMBURSED AND/OR SOFTWARE FEES PAID FOR, OR THE RETAIL PRICE OF ITEMS PROVIDED. AT THE END OF THE INITIAL TERM THE MERCHANT MAY BUY OUT THE EQUIPMENT FOR ONE DOLLAR ($1.00). MERCHANT’S ENROLLED IN THE PROLIFIC EPP THAT REQUIRE REPLACEMENT EQUIPMENT POST 30 DAYS OF SHIPMENT DATE AND WITHIN ONE (1) YEAR OF THE INITIAL TERM, DUE TO MANUFACTURER DEFECTS, WILL BE SUBJECT TO A $75 REPLACEMENT FEE PLUS SHIPPING FEE.

1.2 TERM AND TERMINATION.

THE INITIAL TERM OF THIS EQUIPMENT AGREEMENT SHALL BE FOR A PERIOD OF FOUR (4) YEARS, COMMENCING ON THE DATE FIRST SET FORTH AT THE BEGINNING OF THIS AGREEMENT. THIS AGREEMENT SHALL THEREAFTER BE AUTOMATICALLY RENEWED FOR ADDITIONAL TERMS OF ONE (1) YEAR EACH UNLESS EITHER PARTY NOTIFIES THE OTHER NO LATER THAN THIRTY (30) DAYS PRIOR TO THE END OF THE CURRENT TERM THAT IT DOES NOT WISH TO RENEW THIS AGREEMENT. PBS MAY CANCEL THIS AGREEMENT FOR ANY REASON, OR NO REASON AT ALL, BY PROVIDING MERCHANT WITH SEVEN (7) DAYS NOTICE. MERCHANT HEREBY AUTHORIZES PBS TO DEBIT ANY CHARGES DUE BY MERCHANT UNDER THIS AGREEMENT FROM ANY CHECKING, SAVINGS, CREDIT CARD OR ANY OTHER TYPE OF ACCOUNT PROVIDED BY MERCHANT TO PBS.

1.3 EQUIPMENT

THE EQUIPMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. PBS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PBS OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PBS’ OBLIGATIONS.

1.4 LIMITATION OF LIABILITY.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE EQUIPMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PBS’ TOTAL LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

2. NOTICES

2.1

All notices required under this AGREEMENT from MERCHANT shall be written paper notices effective, unless otherwise stated in AGREEMENT, upon the earlier of actual receipt thereof or the third (3rd) business day following such notices being deposited postage prepaid in the United States Postal System.

2.2

All written paper notices shall be sent to the following addresses, which may be changed by any PARTY by designating an alternate address, effective upon fourteen (14) days’ notice of such change at the address set out in the Merchant Application or such alternative address as designated in writing by ISO.

 
 
Prolific Business Solutions, LLC
Attention: Prolific Legal Department
10031 E. Dynamite Blvd.
Suite 265
Scottsdale, AZ 85262