All statements and representations contained in this Application and all documentation submitted in support of this Application are true and correct. As part of this Application or at any time thereafter, in connection with any ongoing Application evaluation process, review of activity by applicant or collection of any information or documents arising from such activity, the Merchant grants permission and authorization to SandP Solutions, Inc. aka Bitcoin of America ("BOA") to obtain information from prior credit reporting agencies, former employers, trade references, banks, consumer credit services, state and federal government agencies and representatives, without regard to whether they are specifically named or listed herein, regarding business and/or personal credit and other information related to the Merchant business or its owners.
In addition, the Merchant does not/will not knowingly provide services or products that involve payday lending, internet gambling, sexually-oriented products or services, or any activities that may be considered illegal based on local, state and/or federal regulations (with the exception of MRBs operating legally under state law); all of which are strictly prohibited by BOA. And, the undersigned further agrees that neither BOA nor anyone who has furnished BOA any information, concerning the Merchant or the undersigned shall be responsible for any losses or damages the Merchant, its officers, directors, owners, employees or representatives, including the undersigned may claim as resulting from verification, receipt, exchange, or obtaining business and/or personal credit or other business and/or personal information. And that, (1) the federal taxpayer identification (EIN) number and Social Security Numbers shown on this Application are correct (or I am waiting for a number to be issued to the Merchant business), and (2) the Merchant business is not subject to backup withholding because (a) the Merchant business is exempt from backup withholding or (b) the Merchant business has not been notified by the Internal Revenue Service (IRS) that is subject to backup withholding, or (c) the IRS has notified the Merchant business that it is no longer subject to backup withholding.
The undersigned Merchant Authorized Representative(s) warrants and represent that s/he has full power and authority to enter into this Agreement.
"Guarantors" means each Guarantor who signs below, jointly and severally. As a means of inducing SandP Solutions, Inc. aka Bitcoin of America ("BOA") to enter into agreements and provide services, whether entered into before or after the date of this Guaranty, Guarantor(s) personally and unconditionally guaranty the full performance of the Agreement by Merchant. Guarantor(s) agree to reimburse BOA, to the extent that such reimbursement is not made by the Merchant, for all expenses (including attorney fees) incurred by BOA in connection with any of the liabilities of the Merchant or the collection thereof. Guarantor agrees to indemnify BOA against any and all damages, loss, expense, fees, costs (including interest and attorneys' fees), and liability which BOA may sustain by reason of, or related to, any failure by Merchant to perform the Agreement. BOA may enforce this Indemnity and Guaranty against and Guarantor(s), and/or each of them, whether or not BOA takes any action against Merchant or any other Guarantor. BOA may enforce this Indemnity and Guaranty in the City of Chicago, Illinois, or in any other court having jurisdiction. BOA may change the Agreement without notice to Guarantor(s) and without effect on Guarantor's liability. Guarantor(s) waive(s) all defenses based on suretyship or impairment of collateral. Guarantor waives any right of subrogation to any of the rights of BOA against Merchant or any other Guarantor. Each Guarantor guaranties the obligation of each Merchant who signed the Agreement and of each Guarantor as to this or any other Agreement with BOA . Settlement with any Guarantor does not release any other Guarantor. This guaranty is a continuing guaranty and shall remain in full force and effect irrespective of any interruptions in the business relations of the Merchant with BOA; provided, however, BOA may terminate this guaranty with respect to all liabilities of the Merchant incurred or contracted by the Merchant or acquired by BOA after the date on which such notice is so delivered or received. All monies available to BOA for application in payment or reduction of the liabilities of the Merchant may be applied by BOA in such manner and in such amounts and at such time or times as it may see fit to the payment or reduction of such of the liabilities of the Merchant as BOA may elect, and the obligations pursuant to this guaranty shall not be affected by any surrender or release by the Merchant of any other security held by it for any claim hereby guaranteed. No delay on the part of Bank in exercising any rights hereunder or failure to exercise the same shall operate as a waiver of such rights; no notice to or demand on the undersigned shall be deemed to be a waiver of the obligations of the undersigned or of the right of BOA to take further action without notice or demand as provided herein; not in any event shall any modifications or waiver of the provisions of this guaranty be effective unless in writing nor shall any such waiver be applicable except in the specific instance for which given. This guaranty is, and shall be deemed to be, a contract entered into under and pursuant to the laws of the state of Illinois and shall be in all respects governed, construed, applied and enforced in accordance with the laws of said State, and no defense given or allowed by the laws of any other state of the United States of America shall be interposed in any action hereon unless defense is also given or allowed by the laws of the State of Illinois.
I (we) hereby authorize SandP Solutions, Inc. aka Bitcoin of America ("BOA") to initiate entries to my (our) checking/savings accounts at the financial institution listed below (i.e. Depository Name, below), and, if necessary, initiate adjustments for any transactions credited/debited in error. This authority will remain in effect until BOA is notified by me (us) in writing to cancel it, with sufficient time to afford BOA and the Depository named, a reasonable opportunity to act on it.
I (we) hereby also warrant that the signature(s) below is/are all the signature(s) necessary to make this Authorization effective as to entries to the account. BOA is not liable for any act or omission of any automated clearing house depository, or other person, including the originating depository financial institution.
I (we) hereby indemnify and hold harmless BOA, and any of its officers, directors, employees, agents or representatives for any and all claims, demands, losses, liabilities or expense, including attorneys; fees and expenses, directly or indirectly resulting or arising out of breach of these warranties and representations.
This Authorization contains the agreement of the parties with respect to the subject matter herein. This Authorization may be amended only in writing signed by both parties.
This Merchant Location Agreement (this "Agreement") is entered into by
SandP Solutions, Inc. an Illinois corporation, also doing business under
the name "Bitcoin of America" ("BOA") and the undersigned Merchant.
Merchant and BOA agree as follows:
The terms used herein shall have the meanings given to
such terms as set forth in this Section 1 or as defined elsewhere in this
Agreement or any Attachment hereto.
1.1 "Service Requirements" include BOA's Anti-Money Laundering Policy,
operations manuals, user guides, customer forms, receipts, record retention
schedules, rate schedules, policies, rules and regulations, all as may be
amended from time to time by BOA.
1.2 "Merchant Location Services" means the offering to the public by
Merchant at Merchant's Location or Locations of payment processing services through
access to BOA's tablet computer ("Tablet") and printer solely for the
purpose of the customers of BOA executing an exchange of fiat currency for
Bitcoin or other crypto-currency identified by BOA from time to time. All
amounts processed and collected from the customer shall be the funds of BOA
and deposited by Merchant into a BOA approved and/or designated account.
Merchant is accepting payment only as an integral part of the sale of
Bitcoin or other crypto-currency owned and made available by BOA. The risk
of loss in the customer's exchange of fiat currency for Bitcoin or other
crypto-currency, whether by fraud or otherwise, is assumed totally by BOA.
1.3 “Merchant Compensation” means $2.00 for each transaction, plus one percent (1%) of the gross amount processed, collected and deposited by the Merchant into the approved and/or designated BOA bank account with respect to each exchange completed on the Tablet. BOA will calculate this amount at least monthly based on the amount deposited by Merchant during the preceding month.
BOA retains Merchant for the sole and limited purpose of offering the
Merchant Location Services in accordance with the terms and conditions of
this Agreement and Merchant shall comply with the terms, conditions and
procedures set forth in this Agreement and any Exhibit to this Agreement,
as they may be amended from time to time.
3.1 Hours. Merchant shall offer the Merchant Location Services at
the Merchant Location or Locations at all times the Merchant is open for business.
3.2 Change of Location. Merchant shall not change any location at
which the Merchant Location Services are being offered without giving BOA
90-days prior notice. Merchant shall not offer the Merchant Location
Services at a location other than a Merchant Location without giving BOA
90-days prior notice and without BOA's written prior approval.
3.3 Additional Locations. Merchant agrees that this Agreement shall apply to all locations listed on Exhibit A attached
hereto (the "Initial Locations"). Merchant further agrees that all additional
locations of Merchant, whether newly opened or acquired after the Effective
Date, shall offer the Merchant Location Services pursuant to the terms of
this Agreement as soon as reasonably possible after such opening or
acquisition. Inclusion of additional locations under this Agreement shall
be subject to BOA's prior written approval.
4 Advertising; Trademarks.
4.1 Advertising. Merchant agrees to advertise and promote the
Merchant Location Services so as to develop consumer interest and
confidence in the Merchant Location Services and to enhance the goodwill
associated therewith. Merchant shall (a) participate in any BOA promotional
program, and, (b) make prominent use of signs, brochures, displays, decals
and other promotional materials provided by BOA.
4.2 Approval. Merchant may promote any of the Merchant Location
Services in its own advertising or promotional materials in any form of
media, including radio, television, print or the Internet, subject to the
prior written approval of BOA.
4.3 Trademarks. Merchant is granted a nonexclusive, royalty-free
right to use the trade names, trademarks, trade dress, symbols, logos and
copyrighted material (collectively "Trademarks") of BOA specified by BOA
from time to time, and BOA is granted the nonexclusive, royalty-free right
to use Merchant's Trademarks, each for the limited purpose of advertising
and promoting the Merchant Location Services, and subject in each case to
the prior written approval of the party whose Trademarks are being used.
Each party agrees that use of any other party's Trademarks shall not confer
any proprietary right thereto. Each party shall cease all use of the other
party's Trademarks immediately upon termination or suspension of this
4.4 Press Releases. No party may issue any press release or other
public notice relating to the subject matter of this Agreement without the
prior written approval of the other party.
5.1 Merchant acknowledges that all records and information regarding
consumers that Merchant may collect relating to the Merchant Location
Services (including but not limited to, information provided by consumers
on the Tablet or printed in a receipt or confirmation) ("Consumer
Information") is the exclusive property of BOA. Merchant agrees that it
shall only use the Consumer Information in its performance of the Merchant
Location Services, and that Merchant shall not use, sell, rent, exchange or
otherwise disclose the Consumer Information to any party other than BOA for
any purpose whatsoever without the prior written consent of BOA, except as
may be required by Applicable Law. All Consumer Information shall be
provided to BOA upon its request. If BOA shall consent to any collection,
use or transfer of Consumer Information, then Merchant warrants to BOA that
such collection, use and transfer shall be accomplished in full compliance
with all applicable laws and regulations governing data protection and
consumer privacy, and with the Service Requirements. In the event that
Merchant receives a request or demand to disclose any Consumer Information
outside of the ordinary course of reporting Merchant shall immediately
notify BOA and, if requested by BOA, will fully cooperate with any effort
to obtain a protective order or any other protective measures. Merchant
shall cooperate fully with BOA in implementing all procedures mandated by
law in order to protect consumer privacy and/or consumer data, and any such
commercially reasonable policies and/or procedures implemented by BOA.
5.2 Merchant agrees that neither Merchant nor its officers, principals or
employees shall use, sell, rent, exchange or otherwise disclose to any
person or entity, other than BOA, and other than for purposes of Merchant's
performance under this Agreement, or as may be required by Applicable Law:
(a) sales or transaction volumes, revenues, earnings, commission rates,
terms, conditions or payments hereunder; (b) any other confidential
information with respect to BOA, the Merchant Location Services, (c) the
Tablet, or, (d) any software contained on the Tablet or run from the
Tablet. Merchant will not permit the Tablet to leave the Location or to be
used for any purpose other than the provision of the Merchant Location
5.3 Merchant's Financial Information. BOA agrees that it shall not
sell, rent, exchange or otherwise disclose any financial information of
Merchant to any party other than as may be required by law or as may be
voluntarily reported to a governmental or regulatory agency by BOA,
pursuant to its internal compliance policies or in connection with money
transmission or anti-money laundering laws or regulations.
6 Compliance with Laws.
6.1 Compliance with Laws. Merchant shall comply (and shall cause its
officers, principals and employees to comply) with all federal, state and
local laws and regulations applicable to Merchant's business and to
Merchant's provision of the Merchant's Services, as the same may be amended
from time to time (collectively "Applicable Law"), including but not
limited to: (a) state licensing laws; (b) the Bank Secrecy Act (31 U.S.C. §
5311 et. seq., and its implementing regulations, 31 C.F.R. Part 1022); (c)
the IRS's cash reporting requirements (26 U.S.C. § 60501) and related
regulations; (d) state currency reporting requirements; (e) federal and
state anti-money laundering laws, including all rules and regulations
promulgated thereunder (e.g., 18 U.S.C. §§ 1956 and 1957); (f) all
applicable federal and state privacy laws and regulations; (g) the USA
PATRIOT Act; (h) the Dodd-Frank Wall Street Reform and Consumer Protection
Act (Section 1073 and related regulations); (i) the Consumer Financial
Protection Bureau Remittance Rules (77 FR §§ 6194, 40459 and 50243) and
related regulations; and (j) all applicable federal and state laws
regulating access for the disabled, including but not limited to the
Americans with Disabilities Act.
6.2 Anti-Money Laundering. Merchant will cooperate with BOA to
insure compliance with all state and federal anti-money laundering laws,
rules and regulations. Merchant consents to permit BOA to monitor and
review Merchant's activities, Merchant's risk assessment policies, and
Merchant's due diligence and practices in enforcing any applicable laws,
rules or regulations, whether directly by BOA or through a third-party
retained by BOA. Merchant further agrees to abide by the terms of any
procedures or compliance program developed by BOA, to correct any
noncompliance by Merchant, and to abide by any corrective policies or
procedures developed by BOA.
6.3 Compliance with BOA Policies. Among other things, Merchant will
comply with BOA's policies and procedures to identify suspicious or unusual
behavior engaged in by Merchant or its personnel and to comply with BOA's
monitoring policies and procedures.
6.4 Failure to Comply. Any failure on the part of Merchant to comply
with any law, rule, regulation, policy or procedure identified in this
Article 6 shall permit BOA to terminate Merchant immediately, for cause and
without any liability of any sort on the part of BOA.
7 Representations and Warranties.
7.1 Merchant and its Employees. With regard to itself, and on behalf
of its officers, principals and all other Merchant employees and/or
representatives with managerial oversight and/or responsibility for
Merchant Locations offering the Merchant Location Services, Merchant
represents and warrants that: (a) none of them has been charged with or
convicted of (or plead guilty or no contest to) any (i) felony, or (ii)
misdemeanor involving or relating to financial services or a financial
services-related business, fraud, false statements or omissions, theft or
any wrongful taking of property, bribery, perjury, forgery, counterfeiting,
extortion, or a conspiracy to commit any of these offenses that has not
been disclosed to BOA, in writing, prior to the Effective Date; (b) none of
them is subject to any (i) criminal investigation, including, but not
limited to a subpoena issued by a federal or state court to produce records
or testimony or a search warrant issued by a federal or state court, or
(ii) regulatory or administrative action, order, or proceeding by a
governmental agency or self-regulatory organization; (c) none of them is
subject to any pending material civil litigation; (d) none of them is
subject to a bankruptcy petition, receivership proceedings, or similar
events. This representation and warranty shall be deemed an ongoing
representation and warranty from Merchant. In accordance with Section 13.1
of this Agreement, Merchant shall provide notice to BOA within forty-eight
hours after any of the foregoing representations or warranties shall cease
to be true at any time during the term of this Agreement.
7.2 Authority. Merchant represents and warrants that: (a) Merchant
has full power and authority to enter into this Agreement; (b) the
execution, delivery and performance by Merchant of this Agreement will not
constitute a default (or an event which, with notice or lapse of time or
both, would cause a default) under any contract or agreement to which
Merchant or any of its affiliates are a party, or require consent or
approval from any other party to any such contract; and (c) this
Agreement constitutes a legal, valid and binding obligation of Merchant,
enforceable against Merchant in accordance with the terms and conditions of
7.4 Acknowledgment of Responsibility and Training.
Merchant represents and acknowledges that it: (a) has been instructed in
features and requirements of the Tablet and its software and its
capabilities; (b) has reviewed and understands the requirements and
expectations of BOA regarding transaction processing and BOA's Anti-Money
Laundering program and policies; (c) must identify any suspicious activity
or transaction; (d) must verify the identity of each customer using the
Tablet; (e) must comply with BOA's Anti-Money Laundering program; (f) will
report any suspicious activities related to the use of the Tablet
immediately to BOA via email at
; (g) each employee with access to the Tablet will receive training on its
use and on the BOA Anti-Money Laundering program before permitting access
by a customer to the Tablet; (h) understands that for orders of $1,999 and
above the user of the Tablet must scan valid government Issued ID; and, (i)
understands that, if Merchant has any questions related to the Tablet or
its use, it will immediately contact BOA at
7.5 No Warranty. BOA MAKES NO REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO ANY EQUIPMENT, SOFTWARE, THE TABLET AND OTHER ITEMS PROVIDED
UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY,
AND ANY WARRANTY AGAINST INFRINGEMENT. ANY EQUIPMENT, SOFTWARE OR OTHER
ITEMS PROVIDED UNDER THIS AGREEMENT BY BOA ARE PROVIDED TO MERCHANT "AS IS"
WITH ALL FAULTS.
8. Term and Termination.
8.1 Term. This Agreement shall be effective on the Effective Date
and continue in force for a period of five years (the "Initial Term"),
unless otherwise terminated as provided herein. This Agreement shall
automatically renew for an additional term of five years (the "Renewal
Term"), unless either party provides the other party with at least 12, but
not more than 24, months prior written notice of termination. Upon
expiration of the Initial Term and the Renewal Term, this Agreement shall
continue in effect, subject to the right of either party to terminate this
Agreement at any time thereafter by giving the other party at least 12
months prior written notice of termination.
8.2 Suspension and Termination. BOA may take, or demand that
Merchant take (as applicable) any one or more, of the Remedial Actions (as
defined below) if BOA, acting in its sole discretion, determines: (i) that
a material adverse change in the financial condition or business prospects
of Merchant, a principal of Merchant or any guarantor of this Agreement,
has occurred, or may occur, in the following twelve (12) months; (ii) that
Merchant's continued performance under this Agreement is, or may become,
impaired; or (iii) Merchant breaches any of the terms, conditions,
representations or warranties set forth in this Agreement (including the
provision of false or misleading information) or any other agreement
between BOA and Merchant.
83 Remedial Action. As used in this Agreement a "Remedial Action" is
defined as: (a) the immediate suspension, or termination, of Merchant's
ability to provide one or more of the Merchant Location Services; (b)
exercise any legal and/or equitable remedies available to BOA, for which
BOA shall be entitled to reimbursement of reasonable attorneys' fees and
expenses; or, (c) the offset against any funds that may be due or owing by
BOA to Merchant for any damages incurred by BOA.
8.4 Violation of Law. Notwithstanding any other provision of this
Agreement to the contrary, BOA may immediately terminate this Agreement if
BOA, in its sole discretion, determines that compliance with this Agreement
would cause BOA to violate or potentially violate any local, state or
federal law or regulation or any court order.
9. Indemnification; Limitation of Liability.
9.1 Indemnification by Merchant. Merchant shall indemnify and hold
BOA, its officers, directors, agents and employees, harmless from and
against any claims, losses, causes of action, damages, liabilities or
expenses (including reasonable attorneys' fees and expenses) arising out of
or resulting from: (a) any violation of this Agreement; (b) Merchant's
failure to comply with Applicable Law; (c) any failure to adhere to BOA's
policies, programs and procedures; (d) any negligence, recklessness or
willful misconduct of Merchant, its officers, directors, agents or
employees, as applicable; (e) the loss, misuse, theft, burglary, forgery,
robbery or other crime, destruction, disappearance and all other causes of
loss with respect to the Tablet; or (f) any claim of premises liability
involving any of Merchant's locations. The indemnification obligations set
forth herein shall survive the termination of this Agreement.
9.2 Indemnification by BOA. BOA shall indemnify and hold Merchant,
its affiliates, and their respective officers, directors, agents, and
employees, harmless from and against any third party claims, losses, causes
of action, damages, liabilities or expenses (including reasonable
attorneys' fees and expenses) arising out of or resulting from the
intentional, willful or reckless conduct of BOA or from the fraudulent
activities of any consumer using the Tablet.
9.3 Limitation of Liability. IN NO EVENT SHALL BOA OR ITS DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY
(INCLUDING, BUT NOT LIMITED TO TORT, CONTRACT, STRICT LIABILITY, AND
WARRANTY) FOR PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES AND REGARDLESS OF WHETHER OR
NOT BOA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Audit and Inspection.
10.1 Records. Merchant shall maintain records with respect to the
Merchant Location Services for such period as may be required by law or
BOA. Such records shall include copies of all transaction forms, receipts
and all other records Merchant may compile in connection with its
performance of the Merchant Location Services. Merchant shall provide
copies of any such records to BOA upon BOA's request.
10.2 Audit. During the term of this Agreement, and for a period of
one year thereafter, BOA shall have the right at any time to audit and
inspect Merchant's performance of the Merchant Location Services and
Merchant's compliance with this Agreement, the policies, programs and
procedures of BOA, and Applicable Law.
11.1 Any transfer or assignment of this Agreement or any rights hereunder
by Merchant, in whole or in part, by operation of law or otherwise, without
BOA's prior written consent, is prohibited, constitutes a material breach
of the Agreement and in BOA's sole discretion shall be voidable. In the
event of such transfer or assignment, the party to whom the Agreement was
transferred or assigned shall be bound to the terms and conditions of this
Agreement to the same extent as if BOA and such assignee or transferee, as
the case may be, entered into an agreement identical to this Agreement.
Furthermore, Merchant shall indemnify and hold BOA harmless from all
liabilities, expenses, costs, fees and fines arising from, or in connection
with, such transferee's or assignee's offering of the Merchant Location
Services. For purposes of this Agreement, an assignment or transfer shall
include, among other things: (a) a Change of Control of Merchant or any
person or entity that directly controls the Merchant, or (b) the transfer
or sale of any substantial part (10% or more in value) of the total assets
of Merchant. "Change of Control" means that: (i) the persons directly or
indirectly owning the voting stock or interests shall cease to own,
directly or indirectly, more than 10% of all such voting stock or interests
(on a fully-diluted basis); and/or (ii) the persons directly or indirectly
owning the voting stock or interests shall otherwise cease to have such
ability, directly or indirectly, to elect the majority of the board of
directors or other governing members. Under no circumstances shall any
assignment or transfer of this Agreement by Merchant release Merchant from
its obligations hereunder unless BOA consents to such a release in writing.
11.2 Merchant shall provide BOA with written notice of Merchant's intent to
liquidate, substantially change the basic nature of its business, or
transfer or sell any substantial part (10% or more in value) of its total
assets. Merchant shall also notify BOA of any judgment, writ, warrant of
attachment, execution or levy against any substantial part (10% or more in
value) of Merchant's total assets not later than three days after Merchant
obtains knowledge of any such judgment, writ, warrant of attachment,
execution or levy.
11.3 BOA may assign or transfer this Agreement and its rights hereunder and
may delegate its duties hereunder, in whole or in part, to any third party,
whether in connection with a change in ownership or otherwise, without the
consent of Merchant.
11.4 Except as provided in the following sentence, this Agreement will
inure to the benefit of BOA, its successors and assigns. No assignee for
the benefit of creditors, custodian, receiver, trustee in bankruptcy,
debtor in possessions, sheriff, constable or any other officer of the
court, or other person charged with taking custody of Merchant's assets or
business, shall have any right to continue or to assume or to assign this
12.1 Delivery. All notices hereunder shall be in writing and shall
be deemed given when personally delivered, or when sent by facsimile
transmission with receipt confirmed, one day after being sent by a
reputable overnight courier, or three business days after being mailed by
certified mail, return receipt requested, in each case directed: (a) if to
Merchant, to the address of the Location; (b) if to BOA, to the BOA Legal
Department at firstname.lastname@example.org
or (c) to such other address for each party as is specified by such party
in a notice given to the other party.
12.2 Additional Notice Events. In addition to the events requiring
notice under this Agreement, Merchant shall provide notice to BOA within
forty-eight hours in accordance with Section 13.1 of this Agreement upon
the discovery of any of the following events involving or relating to
itself, its officers, principals and all other Merchant employees and/or
representatives, whether or not a criminal offense: (a) fraud; (b)
dishonest activities; (c) embezzlement; (d) acting without a license,
registration, or authorization required under applicable law; (e) making of
false statements or omissions in any communications with BOA or a
governmental agency; (f) larceny; (g) forgery; (h) holdups, thefts,
including loss or theft of the Tablet, burglaries, or check kiting schemes;
(i) destroying or altering information requested by BOA or a governmental
agency; or (j) operating in an unsafe or unsound manner or any other
13.1 Waiver of Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING A CLAIM ARISING OUT OF, OR RELATING TO, THIS
13.2 Waiver of Service of Process. MERCHANT HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS THAT SERVICE OF PROCESS
UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, AT THE ADDRESS PROVIDED PURSUANT TO SECTION 13.
13.3 Independent Contractors. The parties agree that they are acting
hereunder as independent contractors and that nothing in this Agreement
shall be construed to constitute either party as a partner, employee or
agent of the other (except for the limited purpose of offering the Merchant
Location Services as defined herein), and no employee or agent of either
party shall be deemed to be the employee or agent of the other. Neither
party shall have the authority to make any agreement or commitment, nor
incur any liability on behalf of the other, nor be liable for any acts or
omissions of the other, except as specifically provided herein.
13.4 This Agreement, including, all Exhibits and Attachments hereto, and
any documents incorporated by reference herein, constitutes the entire and
sole agreement between the parties with respect to the subject matter
herein. This Agreement supersedes all prior understandings, arrangements or
agreements, whether verbal or written, between the parties hereto with
respect to the subject matter of this Agreement. Provisions of this
Agreement that concern or relate to obligations and duties to be performed
after the termination of this Agreement shall survive termination of this
Agreement to the extent reasonably necessary to effectuate the intent and
purpose of such provisions. Except as provided hereinabove, no
modification, renewal, extension or waiver of any of the provisions of this
Agreement shall be binding upon the parties unless made in writing and
signed by the parties. Emails, including emails that bear an electronic
"signature block" identifying the sender, shall not constitute signed
writings for purposes of this Agreement. No failure of either party to
require performance by the other of any provision hereof shall be construed
to be a modification of this Agreement or a waiver of any succeeding
breach. If any provision of this Agreement is determined to be invalid by a
court of competent jurisdiction, such provision shall be deemed void and
the remainder of this Agreement shall continue in full force and effect.
Except as expressly set forth herein, nothing contained in this Agreement
is intended to confer upon any person not a party hereto any rights,
benefits or remedies of any kind or character whatsoever, and no such
person shall be deemed a third-party beneficiary under this Agreement. In
the event this Agreement references more than one person, corporation,
partnership or entity as Merchant, then it is expressly agreed that the
liability of such persons or entities hereunder shall be both joint and
several. This Agreement shall be construed and enforced in accordance with,
and shall be governed by, the laws of the State of Illinois (without regard
to any provisions concerning choice of law or conflict of laws which might
result in the application of the law of another jurisdiction). In the event
this Agreement is translated into a language other than English, it is done
solely for convenience purposes, with only the signed English language
version of this Agreement being valid and binding upon the parties.