This Payment Processing Agreement (the “Agreement”) governs your acquisition and use of services. By executing an Order Form that references this Agreement, you are accepting this Agreement and agreeing to the terms and conditions listed herein. Executing an Order Form (“Order Form”) on behalf of a Company (the “Customer”) or other legal entity, you represent that you have the authority to bind the Customer or legal entity and its affiliates to the terms and conditions of this Agreement.
The Effective Date (or “Execution Date”) of this Agreement is the date the first Order Form the Customer executes with A&C Enterprises, LLC, an Arizona limited liability company (the “Provider”).
This Agreement shall remain in full force and effect during the entire period during which Provider is delivering services (the “Services”) to Customer. Any reference to this Agreement shall be deemed to include all applicable exhibits, schedules, addenda, supplements and set-up forms utilized to provide the Services
RECITALS
WHEREAS, Provider is in the business of providing payment processing services to qualifying property managers and property owners (the “Business”);
WHEREAS, Customer desires to broker and refer certain tenants (the “Tenants”) to use the Provider’s resident portal platform (“Henri”) to process payments;
NOW THEREFORE, in consideration of the mutual benefits, the parties intend to be legally bound, and hereby agree to the following:
AGREEMENT
1. Representations, Warrants, Covenants and Responsibilities of Provider.
(a) Provider hereby represents and warrants to Customer that it is duly organized, validly existing and in good standing under the laws of Arizona; and it has the authority to execute and deliver this Agreement.
(b) Provider shall not intentionally or knowingly violate any federal, state or local government laws, statutes, rules, regulations, or agency guidelines.
(c) Provider is responsible for supplying Customer and Tenants with a secure online platform through which Tenants can make electronic payments to Customer.
2. Representations, Warrants, Covenants and Responsibilities of Customer.
(a) Customer hereby represents and warrants to Provider that:
(i) it is duly organized, validly existing and in good standing in it’s state of incorporation
(ii) it has the requisite corporate power and authority to execute and deliver this Agreement;
(iii) it is willing, capable and experienced to perform all of its obligations and services as provided for and contemplated by this Agreement; (iv) to the best of its knowledge, each Tenant is a legitimate tenant in the stated property and is in compliance with all applicable laws and regulations.
(b) Customer shall comply with all laws and regulations applicable to its business and the services and obligations as provided for herein, including, without limitations, any federal, state or local government laws, statutes, rules, regulations, or agency guidelines.
3. Indemnification.
Subject to the limitations set forth in Section 4(a) through 4(c), each party shall indemnify and hold the other, its affiliates, and its and their respective directors, officers, employees, and agents from and against any and all third party claims, causes of action, losses, liabilities, damages, and expenses, including reasonable attorney’s fees, resulting from or arising out of its failure to comply with, or any breach of any representation, warranty or obligation of, this Agreement.
4. Limitation of Liability; Time Limitation.
(a) Limitation. Provider is not responsible for any nonpayment of rent, non-sufficient funds, chargebacks, or any other nonpayment issue as a result of the financial situation of a Tenant. Provider is not a rent collection agency, but rather a service provider that provides an online method for the Customer to conduct its normal rent collection business. Customer is responsible for ensuring all property bank account and routing numbers are correct. Customer is also responsible for all NSF or chargeback fees or penalties as a result of an online payment from any tenant associated with any property in Customer’s portfolio. Provider is not responsible for deposits made to incorrect accounts as a result of negligence on the part of the Customer. Customer is responsible to ensure the receipt of funds for all transactions and for the collection of funds for all returned transactions.
(b) Exclusion. In no event shall any party to this agreement, their affiliates, or any of their respective officers, directors, employees, or agents be liable for lost profits, lost business opportunities, lost revenues, exemplary, punitive, special, incidental, indirect or consequential damages or the like, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether a party has been advised of the possibility thereof.
(c) Time Limitation. Customer may not assert any cause of action against Provider that was or reasonably should have been discovered by Customer more than one (1) year prior to the filing of a suit or the commencement of arbitration proceedings alleging such cause of action.
5. Independent Contractor Relationship.
The parties specifically agree that their relationship shall be that of a principal and independent contractor and not that of an employer and employee or principal and agent. The parties hereto acknowledge and agree that no joint venture is intended or created by this Agreement. Each party shall be solely and entirely responsible for its acts and for the acts of its agents, employees, servants and subcontractors during the performance of this Agreement. Each party shall be solely responsible with respect to the compensation payable to its agents, employees, servants and subcontractors and neither party shall have responsibility to the other with respect to the same. Neither party shall have the authority to bind the other. Each party shall be solely responsible for all taxes of every kind and nature with respect to its own business activities and the other party shall have no responsibility with respect to the same. Each party agrees to file all required tax forms as to its own business activities and agents or employees.
6. Confidentiality.
“Confidential Information” includes this Agreement and any information obtained by one party (“Recipient”) regarding the other party (“Discloser”) or their respective businesses, including without limitation, all confidential or proprietary concepts, Software, documentation, reports, data, processes, specifications, computer software, source code, object code, flow charts, databases, inventions, know-how, show-how and trade secrets, whether or not patentable or copyrightable. Confidential Information shall not include information that: (a) is or becomes in the public domain through no fault of Recipient; (b) was received from a third party free of any obligation of confidence to Recipient’s knowledge; (c) was in Recipient’s possession prior to receipt from Discloser; (d) is required to be disclosed by law, regulation or court order after giving Discloser as much advance notice as practical; or (d) is independently developed or obtained by Recipient’s employees, consultants or agents without use of or reference to the Discloser’s Confidential Information. Confidential Information will be used by Recipient only to exercise its rights and to perform its obligations under this Agreement. Recipient will return or destroy Confidential Information within thirty (30) days after the request by Discloser. Breach of the restrictions on use or disclosure of Confidential Information will result in immediate and irreparable harm to Discloser and money damages will be inadequate to compensate for that harm. Discloser shall be entitled to equitable relief in addition to all other available remedies to redress any breach. Except as expressly provided herein, no license is granted to Recipient under any Discloser patent, trademark, copyright, trade secret or other proprietary right.
7. Fees.
- a) Monthly Fees. Refer to the HenriPay Resident Service Fee Schedule on your Henri Order Form.
- b) Credit Card Merchant Account Regulatory Fee. All credit card merchant accounts may be assessed a monthly regulatory fee of $7 by our credit card processing bank, Merrick Bank, in accordance with the new IRS annual credit card merchant account reporting requirements.
- c) Returned Payment and Chargeback Fees. Customer agrees to be responsible for any and all Returned Payments and Chargebacks by any of the Customer’s Tenants in any and all of the Customer’s properties. Customer agrees to pay a fee of $25 for any and all returned payments and chargebacks made both by electronic check or credit card.
8. Term; Termination.
This Agreement begins when it is signed by both parties and continues for one (1) year from the date hereof (the “Initial Term”). This Agreement shall remain in force beyond the termination date until such time either party elects to terminate the Agreement upon thirty (30) days written notice to the other or a successor agreement is entered into. This Agreement may be terminated at any time during the Initial Term or any Renewal Term by either party if the other materially breaches this Agreement and fails to cure the breach within twenty (20) days after receipt of notice.
9. Governing Law; Arbitration.
This Agreement shall be governed by and construed in accordance with, the laws of the State of Arizona. All disputes shall be submitted to the American Arbitration Association the (“AAA”) for resolution before a panel consisting of one (1) arbitrator, which shall be selected by the AAA. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA then in effect. The decision of the arbitrator shall be binding upon the parties. Any judgment upon any arbitration award or decision may be entered in any court having jurisdiction. Arbitration shall be held in Scottsdale, Arizona. Each party shall pay its own arbitration expenses and one-half of the fee of the arbitrator and the administrative fee of the AAA. The Arizona Rules of Evidence shall apply to such arbitration. The arbitrators shall be required to render a decision based on this Agreement terms and applicable law.
10. Entire Agreement.
This Agreement, including all exhibits, schedules and addenda attached hereto, constitutes the entire and exclusive agreement between the parties with respect to the subject matter of this Agreement. Any agreements, promises, negotiations, representations or other terms not set forth or referred to in this Agreement are of no force or effect. This Agreement may not be modified or amended except in writing signed by both parties.
11. Notices.
Notices shall be effective upon receipt if they are received in writing, by registered or certified mail, postage prepaid, return receipt requested or by overnight courier to the person and at the address set forth below.
12. Miscellaneous.
If any part of this Agreement shall be deemed invalid under any applicable law, the remaining parts of this Agreement shall be in full force and effect as though any unenforceable part or parts were not written into this Agreement. In construing this Agreement, the singular tense shall be deemed to include the plural and the male or neuter gender shall mean and comprehend all genders, whenever such meaning or interpretation is necessary and appropriate. Headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be binding upon the parties hereto, their legal representatives, successors and assigns, and the parties hereto do hereby covenant and agree that they, their legal representatives, successors and assigns will execute any and all papers and documents that may be required in accordance with this Agreement. This Agreement may be executed by facsimile and in multiple counterparts, each of which will constitute an original and all of which, when taken together, shall constitute one and the same Agreement.
