ISO Terms & Conditions

Partner Terms and Conditions 

The executed SERVICE Partner agreement (“Agreement”) specifies in Section 7 that additional Terms and Conditions shall apply.  The following Partner Terms and Conditions herein constitute these additional Terms and Conditions (“T & C’s”) to the Agreement:

1. OBLIGATIONS OF PARTNER. 
i) Partner shall provide Provider a complete data file of all Partner Merchants eligible for Services; ii) Partner has no obligation to reference Provider as the vendor of the Services and may private label the Services if desired for an additional fee; iii) Provider shall not directly communicate with any Partner Merchant with respect to any product offerings of Provider (other than for Services) without the prior written consent of Partner.  All Partner Merchants who request additional accounts or related goods and services shall be referred to Partner for providing said items;  iv) in addition, it is understood that the Approved Scan Vendor (ASV) or Provider shall have the right to contact the Partner Merchants should such contact be required for completion of scans and/or based on other Payment Brand mandates;  v) Partner also agrees to designate an individual as the authorized contact person on the "set up binder" to receive, review, prepare, and approve work applicable to the Services and data uploading of the MIDs on at least a monthly basis for monthly billed Partner Merchants and on an annual bases for annual billed Partner Merchants;  vi) Partner also agrees and understands that full authority is granted to the Partner to assist the Merchants in completing their PCI requirements on the Portal.  Therefore any assistance provided by Partner to the Merchant including but not limited to the entire completion of SAQ selection and/or completion is completed at Partners full risk and liability even if tools are available by Provider it is Partners responsibility to use such tools correctly.  Also the loading, disabling, and/or errors or omissions of Merchant or Merchant data due to Partners action or inaction are Partner’s sole liability as Provider has no access to validate or invalidate such data on Partner’s behalf; vii) Partner shall also promptly provide up to date data, original logo art graphics, and other required electronic submissions as reasonably requested by Provider within a reasonable time frame as to complete the set-up of the Portal.  

2. OBLIGATIONS OF PROVIDER. 
Provider will designate an individual or a team of individuals who has the authority to review and approve data for uploads, accept orders for Services to be provided by Provider to a Partner Merchant (collectively, “Orders”) and any other work as presented on a monthly basis.  Provider will notify Partner on the acceptance of such Orders and until that time of acceptance Provider has no obligation to fill that Order.  Provider shall also store Partner Merchant’s SAQ and certificates for scanning as per PCI DSS compliance requirements for a minimum of one (1) year or as required by the Payment Brand rules.        

3. FEES. 
Services rendered under this T & C’s are subject to fees payable by Partner as set forth in the Agreement and its Exhibits.  These Exhibits may be amended only as agreed by either parties via facsimile or mail from time to time, with no less than sixty (60) days prior written notice.  Pricing is inclusive of basic support, training and general consulting, and loading for Partner Merchants.  A written quote will be provided prior to any additional work being completed, should such additional design work be requested by Partner.  

4. BILLING
It is further agreed that any MID loaded to the Portal shall be billed for a minimum of one calendar year.  Partner may disable the MID’s ability to view their account Portal prior to the completion of this one year period but the Service shall maintain that MID data for no less than one year even if in disabled status.  No credit shall be given for any disabled, cancelled, or deleted MIDs on the Portal as all Services are considered to be annual licenses regardless of billing model chosen by Partner (whether monthly or annual).  MIDs that are deactivated at Partner’s direction will not be credited but this action will disable Partner Merchant’s ability to login to the Portal.  Terminated MIDs identified one month prior to the next billing period will remove that MID from the next cycle for billing, however, any partial period or unused portion of the Service shall not be credited.  Any MID on the Portal during the calendar month for any period of time triggers billing for that MID for that calendar month.  MIDs not removed prior to the next billing period shall be renewed for a new period and likewise will not be credited.  Any MID which utilizes a self-payment module shall have access open until such a time that the Services are provided for the full term paid by the Merchant.  

5. ELECTRONIC TRANSMISSION. 
Provider and Partner agree that (i) electronic transmission and approval of Orders are deemed to satisfy any legal formalities, (ii) neither Party will contest the validity or enforceability of any such electronic transmission under any applicable statute of frauds, and (iii) computer maintained records when produced in hard copy form constitute business records and have the same validity as any other generally recognized business records. 

6. BILLING CORRECTION AND ACCEPTANCE OF ORDERS. 
(i)  A monthly invoice shall be provided for the prior month’s activity on approximately the tenth (10th) of each calendar month.  The billing will be deemed applicable upon review by Partner.  Billing shall be via delivery of electronic mail (email) sent to the Partner’s designated billing contact.  (ii)  Partner shall have until the sixteenth (16th) calendar day of that month to request adjustments prior to billing.  The ACH collection shall be transmitted for the prior month’s activity on the twenty first (21st) of each month.  Should the twenty first (21st) calendar day fall on a weekend or bank holiday, then, the due date (ACH billing date) shall be that next business day.   Should Partner, upon review of the invoice provided by Provider note potential errors or discrepancies then that invoice shall be deemed disputed.  (iii)  It is agreed that any disputed amount over one thousand dollars ($1,000) on that billing period shall suspend collection of the billing for seven (7) additional business days or until approximately the twenty eighth (28th) of the calendar month.  Only the undisputed portion shall be billed on the billing date.  The disputed portion of the invoice shall not be billed until a resolution is made before the end of that calendar month.  If it is determined by the Parties that resolution cannot be made on the invoice prior to the time frame defined herein, then the invoice shall remain unpaid until the next monthly billing period.  Disputes fewer than one thousand dollars ($1,000) shall bill as invoiced and adjustments (if any) shall be made in the next billing period.  If any Services contain errors or otherwise do not conform to specifications as set herein, or should such an error or nonconformance not be attributable to any act or omission of Partner, its customers, employees, or their agents, Provider will correct the deficiencies within a mutually agreed upon time period at no additional cost to Partner.  This correction shall be provided only should Partner notify Provider of such error or deficiency within sixty (60) days of discovered error or omission.    

7. STATEMENTS AND LATE PAYMENTS. 
Statements are to be paid in full as defined herein.  Partner shall execute an ACH billing method to be used for payment of invoices upon execution of Agreement.  Should accounts become overdue or ACH collection be disrupted for any reason, then an additional service charge of thirty-five dollars ($35.00) or one and a half percent (1.5%) shall be added to the unpaid balance whichever is greater per month.  These costs (if any are calculated) shall be added to Partner’s invoice principle amount and be subject to the monthly service charge.  Should undisputed amounts payable hereunder go beyond forty five (45) days past due, then access to Portals, logins, and compliance tools may be suspended, or Merchant’s will be set to “self-payment” where they will be instructed to use a credit card for Services, either as to be determined at Provider’s sole discretion.   Should payment be beyond the forty five (45) days past due then at Providers sole discretion additional services such as but not limited to Full Support or Breach Protection shall be terminated.  In the event that collection action is initiated, then Partner agrees to pay any and all of Provider’s reasonable expenses associated with such collection efforts.  

8. CONFIDENTIALITY. 
The Parties acknowledge that in their performance of their duties hereunder either Party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Services and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing Party.  Confidential Information does not include information that:  (i) is public knowledge at the time of disclosure by the disclosing Party; (ii) becomes public knowledge or known to the receiving Party after disclosure by the disclosing Party other than by breach of the receiving Party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving Party prior to disclosure by the disclosing Party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving Party.  As a condition to the receipt of the Confidential Information from the disclosing Party, the receiving Party shall:  (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing Party's Confidential Information; (ii) not use the disclosing Party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing Party's express prior written consent; (iii) disclose the disclosing Party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving Party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in these T & C’s; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.  The receiving Party shall promptly notify the disclosing Party of any unauthorized disclosure or use of the Confidential Information.  The receiving Party shall cooperate and assist the disclosing Party in preventing or remedying any such unauthorized use or disclosure.

9. OWNERSHIP OF MATERIALS. 
Partner acknowledges that Provider is engaged in the business of providing Services and similar deliverables to various clients and that this arrangement is not exclusive to Partner.  Provider retains all ownership, right, title and interest in all works made by Provider for Partner, or any customer of Partner, excluding any Confidential Information of Partner or its customers. Partner retains all rights to data provided by Partner or its customers and any data and portions of deliverables based thereon provided all payments for Services are paid in full.  Notwithstanding the foregoing, all right, title and interest in and to: (i) all copyrights, trademarks, trade secrets, inventions, proprietary processes and other intellectual property of Provider, including software, source code, the look and feel of websites, training and implementation methodologies, documentation, databases, and other materials, regardless of media or form, which were created or conceived by Provider or its agents prior to the date hereof, and any works based thereon, will remain the property of Provider or its vendors; and (ii) all document templates, proprietary document formats, structures and designs, boilerplate language and narrative portions of deliverables that are not compilations of customer data, whether created before or after the date hereof, will remain the property of Provider.  

10. TERMINATION.
Provider may terminate Services in the event Partner fails to make timely payment of undisputed fees and expenses due hereunder, but only once Provider provides Partner written notice of such failure and Partner fails to remedy such failure within thirty (30) days after its receipt of said notice.  Upon the expiration of the thirty (30) day period provided for above.  In the event that Partner fails to make the payment as provided herein, Provider will pursue its rights to collection and may disable accessibility to the Portal or Services as determined at Provider’s sole discretion.   Subject to providing sixty (60) days’ prior written notice to the other Party, either Party may terminate the Agreement for any reason.  Additionally, if either Party fails to observe, keep or perform any material term or condition of these T & C’s required to be observed, kept or performed by that Party, the other Party, in addition to any other rights and remedies either Party may have.  The Agreement and these T & C’s shall automatically terminate (except those terms which Survive termination) upon the occurrence of any of the following events with respect to the other Party:  (a) the commencement of any voluntary bankruptcy; (b) the commencement of an involuntary bankruptcy proceeding with respect to the other Party that is not dismissed within thirty (30) days after commencement; (c) insolvency, reorganization, readjustment of debt, dissolution, liquidation of debt, appointment of a receiver, trustee, or similar officer to take charge of a substantial part of such other Party’s assets; or (d) other insolvency proceeding in which such other Party is a debtor.  Termination shall not terminate Partner’s obligations to pay Provider fees for all services performed and expenses incurred under the Agreement and as defined on the exhibits.

11. WARRANTY.
PROVIDER AND ITS VENDORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.   PROVIDER AND ITS VENDORS CANNOT WARRANT ANY PARTNER MERCHANT AS BEING OR NOT TO BEING “PCI COMPLIANT” BASED ON A MULTITUDE OF POSSIBLE VARIABLES AND / OR PAYMENT BRAND REQUIREMENTS AND / OR USER ERRORS.  THIS SERVICE DOES NOT EXTEND OR PROVIDE INSURANCE TO ANY PARTY.  EACH USER SHALL BE LIABLE TO MEET THE STANDARDS OF COMPLIANCE INDEPENDENT TO THIS SERVICE.  

12. LIMITATION OF LIABILITY; INDEMNIFICATION. 
IN NO EVENT WILL PROVIDER OR ITS AGENTS OR ITS VENDORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER, WHETHER ARISING FROM DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF SERVICES, RELATED DELIVERABLES OR RELATED WEBSITES, WITH THE DELAY OR INABILITY TO USE ANY DELIVERABLES, SERVICES, RELATED EQUIPMENT OR RELATED WEBSITES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF SERVICES, WHETHER BASED ON CONTRACT, STRICT LIABILITY OR OTHERWISE. EXCEPT FOR EACH PARTY’S (I) INDEMNIFICATION OBLIGATIONS SET FORTH IN THE AGREEMENT.   Each party agrees to indemnify, defend, and hold harmless the other party, its employees, directors, managers, members, officers or agents from and against any loss, liability, damage, penalty or expense (including reasonable attorneys' fees and court costs) which may be claimed by a third party as a result of any failure by the other party or any employee, agent, or affiliate of the party to comply with the terms of the Agreement or these T & C’s.    

13. NON-SOLICITATION. 
During the term of the Agreement and for a period of three (3) years thereafter, both Parties agree not to solicit the employment of, or contract with, any current or former agents or personnel, or customer files of either Party.  Provider shall keep all data confidential and release such data only to Partner or to the party designated as the contact for a Partner Merchant.  Partner agrees to use Provider as a preferred vendor for services as defined within the Agreement or any subsequent renewal thereafter.  During the term of the Agreement, without Provider’s prior written consent (which consent may be withheld in Provider sole and absolute discretion), Partner shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the Services to any merchant that has been accepted by Provider; or (ii) to solicit or otherwise cause any merchant that has been accepted by Provider or its vendors to terminate its participation in any of the Services.

14. RELATIONSHIP OF PARTIES. 
The Agreement and these T & C’s do not create a joint venture or partnership between the Parties;  Provider is a vendor for Partner.

15. FORCE MAJEURE. 
Neither Party will be responsible for any delay or failure in performance of any part of this T & C’s to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, power outage, internet outage, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control.  If any such event of force majeure occurs and such event continues for ninety (90) days or more, the Party delayed or unable to perform will give immediate notice to the other Party, and the Party affected by the other’s delay or inability to perform may elect at its sole discretion to: (a) terminate this Agreement; or (b) resume performance once the condition ceases with the option of the affected Party to extend the period of this Agreement up to the length of time the condition endured.  Unless written notice is given within thirty (30) days after the affected Party is notified of the condition, option (b) will be deemed selected.

16. TERMINATION.
Either Party may terminate the Agreement as follows: (a) at any time upon mutual written consent of the Parties; (b) if either Party fails to perform any of its material obligations under the Agreement or these T & C’s and such failure remains uncured for thirty (30) days (or in the case of failure to make a required payment ten (10) days), after receipt of written notice of default from the other Party that is not cured within the time limits of such notice; or (c) immediately if either Party ceases to conduct business, becomes or is declared insolvent or bankrupt, files a petition in bankruptcy, is the subject of any proceeding relating to its bankruptcy, liquidation or insolvency that is not dismissed within thirty (30) days, appoints a receiver or liquidator of any of its properties or assets or makes an assignment for the benefit of its creditors.  Provider will continue to provide Services to Partner during any applicable notice period however, access to portals and / or reporting and logins for Partner may be suspended at Provider sole discretion should default involve non-payment of fees. Partner acknowledges that following such termination, Partner remains obligated to pay for all Provider’s fees and costs owed to Provider, accrued on or before the time of termination.

17. SURVIVAL. 
Sections 4, 5, 7, 8, 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and 24 of this Agreement and these T & C’s will survive termination.

18. SEVERABILITY. 
If any provision of the Agreement or of these T & C’s in whole or in part is held to be invalid or unenforceable for any reason, the remaining provisions continue to be valid and enforceable.  If a court finds that any provision of the Agreement or of these T & C’s invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision is deemed to be written, construed and enforced as so limited.

19. WAIVER OF CONTRACTUAL RIGHT. 
The failure of either Party to exercise any right granted, or to enforce any provision of the Agreement or these T & C’s, or the waiver by Provider of any breach of the Agreement or these T & C’s is not a waiver of the provision and does not limit that Party’s right to subsequently enforce and compel strict compliance with any other provision of the Agreement or these T & C’s. No provision of the Agreement or these T & C’s may be waived except by a writing executed by the Party against whom the waiver is to be effective. 

20. ARBITRATION. 
Any and all controversies or claims arising out of or relating to this contract, or breach thereof, will be resolved by binding arbitration conducted in the Denver Metro Area to include  Centennial or Englewood, Colorado in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

21. APPLICABLE LAW. 
The Parties acknowledge and agree that to promote uniformity in the interpretation of the Agreement and these T & C’s, the validity, construction and enforceability as governed in all respects by the domestic laws of the United States and the State of Colorado without giving effect to any choice of law, or any principles of comity, or conflicts of laws or rules that would cause the application of the law of any jurisdiction other than the State of Colorado.

22. ATTORNEY’S FEES AND COSTS. 
If any action at law or in equity is necessary to enforce or interpret the terms of the Agreement or these T & C’s, the prevailing Party is entitled to reasonable attorney’s fees, costs and necessary disbursements incurred both before and after judgment in addition to any other relief to which such Party may be entitled.

23. INTERPRETATION. 
Article titles and section headings contained herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of the Agreement or these T & C’s.

24. COUNTERPARTS, FACSIMILES AND ELECTRONIC TRANSMISSION. 
The Parties may execute the Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same Agreement. The Agreement may be delivered by facsimile or electronic transmission, and facsimile or electronic copies of executed signature pages are binding as originals.  The T & C’s shall be maintained on the Portal.