MERCHANT TERMS AND CONDITIONS
THIS AGREEMENT SHALL NOT CONSTITUTE A NEGOTIABLE INSTRUMENT.
This Agreement is entered into by and between the Merchant and the Company. As used in this Agreement, the term “Company” also shall include Company’s agents, servicers and any assignee of this Agreement. “Customer” means clients of Merchant who wish to purchase goods or services using financing made available through Merchant.
1. MERCHANT SALES
A. FULFILLMENT OF APPROVED PURCHASE ORDERS.
The Company will communicate to Merchant via an electronic medium all requests for payment of purchase orders that have been approved (“Approved Purchase Orders”).Upon receipt of an Approved Purchase Order, Merchant will fulfill Approved Purchase Orders in accordance with this Agreement. Both parties acknowledge that they believe the transactions contemplated hereunder will be in compliance with all of the terms prescribed hereunder.
Merchant represents and warrants that each and every Approved Purchase Order now or hereafter referred to Company: (a) represents a bona fide sale and delivery of goods or rendition of services to the customer in the ordinary course of its business; (b) will be for a specific amount payable in United States funds in accordance with the terms of the invoice covering said sale, which shall not be changed without (i) Company’s written approval, or (ii) a Customer’s provision of an alternative payment method for any difference in charges incurred by such a change; (c) is owned solely by Merchant and Merchant has the sole legal rights to sell, assign, transfer, allocate and set over the same to Company; (d) any taxes or fees relating to the Approved Purchase Orders or goods, other than taxes associated with Company’s income, are solely Merchant’s responsibility; (e) to Merchant’s knowledge, Merchant is authorized to disclose to Company all Customer information necessary to obtain financing (“Customer Data”) and Approved Purchase Orders and the information set forth therein that is submitted to Company pursuant to this Agreement; and (f) to Merchant’s knowledge, all Customer Data, Approved Purchase Orders and the information set forth therein was obtained or collected by Merchant in compliance with all applicable laws.
2. COMPANY PAYMENT
Each Approved Purchase Order will be paid via Automated Clearing House (“ACH”) or Comdata ®MasterCard Corporate Cards®, which may include fleet, purchasing, T&E, multi cards and virtual cards (collectively, “Cards”). In the event that the payment is made by ACH, then the funds will be transferred no later than the following business day after the Merchant confirms the Approved Purchase Order. In the event that the payment is made by Cards, then the funds will be transferred according the agreement with Merchant’s credit card provider.
3. TRANSACTION DATA
A. TRANSACTION DATA REPORTING.
Company shall provide record of all transactions paid for the current calendar year in a password restricted online account hosted at www.Behalf.com. Merchant will keep a record of those Merchant Customers that successfully used the Company’s service and, upon a reasonable request from Company, will provide such list in a mutually acceptable format.
Payments (individually or in the aggregate) amounting to $600 or more are subject to IRS Form 1099 Filing Requirements. As the goods and/or services provided by the Merchant are for the benefit of the Customer and Company only functions as a payment facilitator, all reporting requirements shall be handled directly between Merchant and Customer.
B. CREDIT APPROVAL.
Company, and any lender or other third party with which Company contracts to extend credit to Merchant’s Customers (a “Designated Lender”), shall at all times have the absolute right, in its sole discretion, to assume or decline to assume the credit risk for any loan (“Loan”) that would be extended to fulfill a purchase order by such person, without regard to any prior assumption of credit risk by Company or the Designated Lender of any of Merchant’s purchase orders or invoices or any prior assumption of credit risk by Company with respect to a particular Customer. Company and any Designated Lender shall not be liable to Merchant or any person, firm or entity for any credit declinations or other decisions on any order. In the event that a Purchase Order provided by Merchant is declined, Merchant reserves the right to (a) cancel the Customer’s order, or (b) contact the Customer to arrange an alternative billing method. Company’s right to assume or decline credit risk includes situations where Merchant provides a list of Purchase Orders or Invoices for a variety of Customers (“Bulk Pre-Approval Order”).
Company or the Designated Lender (as the case may be) shall at all times have the absolute right in its sole discretion to offer a Pre-Qualification to any Customer.
C. Service Fee.
In the event that the Purchase Order is paid via ACH, then the Merchant agrees to a 2% fee (“Service Fee”) on all Purchase Orders .The Service Fee shall be deducted from the total amount of the Purchase Order and the remainder of the Purchase Order shall be paid to the Merchant.
4. REPRESENTATIONS, WARRANTIES AND GUARANTEES
By fulfilling an Approved Purchase Order, Merchant represents, warrants and guarantees that:
(a) The Merchandise will be new and not used, remanufactured, reconditioned or refurbished, unless otherwise agreed and understood in advance by the Customer, and will comply with all specifications contained in such Approved Purchase Order;
(b) The Merchandise is genuine and is not counterfeit, adulterated, misbranded, falsely labeled or advertised or falsely invoiced within the meaning of any applicable local, state or federal laws or regulations;
(c) The Merchandise is properly labeled as to content as required by applicable Federal Trade Commission Trade Practice Rules, the Fair Labor Standards Act, the Federal Food, Drug and Cosmetics Act and similar local, state or federal laws, rules or regulations;
(d) The Merchandise shall be delivered in good and undamaged condition and shall, when delivered, be merchantable and fit and safe for the purposes for which the same are intended to be used, including but not limited to consumer use;
(e) All weights, measures, sizes, legends or descriptions printed, stamped, attached or otherwise indicated with regard to the Merchandise are true and correct, and conform and comply with all laws, rules, regulations, ordinances, codes and/or standards of federal, state and local governments relating to said Merchandise;
(f) There is no other impediment or restriction, legal or otherwise, that limits, prohibits or prevents Merchant from selling and delivering the item(s) listed on the Approved Purchase Order to Customer or limits, prohibits or prevents Customer from using or reselling the Merchandise to its Customers;
(g) If a services contract in which merchant is selling services to Customer, such services shall be timely and properly provided in a manner, and shall consist of a quality, that is commensurate with the respective industry in which merchant operates, and shall not be misbranded, falsely labeled or advertised or falsely invoiced within the meaning of any applicable local, state or federal laws or regulations. Upon request by the Company, Merchant agrees to provide proof that such services were provided to Customer;
(h) Where the Customer rejects or revokes the delivery of goods or disputes the rendition of services and Merchant fails or refuses to cure said rejection or revocation timely as defined by the Uniform Commercial Code (“UCC”) or to resolve such disputes within thirty (30) days of the notice said dispute, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the Purchase Order or Orders that are the subject of said rejection, revocation or dispute.
(i) Nothing contained in this Agreement shall be deemed a waiver of any representations, warranties or guarantees implied by law.
Merchant will deliver merchandise listed in this agreement to the Customer listed on Approved Purchase Orders on the dates and in the quantities specified in each Approved Purchase Order. In the event of any delays to the scheduled delivery date, and without limiting Company’s other rights and remedies hereunder, Merchant will notify Company and Customer of such delay and work diligently to remedy such delay immediately. In the event of any delay in delivery, in addition to any other rights or remedies otherwise available, Company or Customer shall have the right to cancel or reschedule the affected order in Company’s sole discretion without further liability under this Agreement and/or Customer shall have the right to reject any merchandise listed in the Approved Purchase Orders delivered to Customer after the time specified. Merchant will be responsible for all costs associated with the rejected merchandise including but not limited to (i) unpacking, examining, repacking and storing such Merchandise; (ii) and landing and reshipping such Merchandise.
Acceptance. All merchandise listed on the Approved Purchase Orders, purchased and shipped hereunder are subject to acceptance by Customer at the ship-to address designated in the Approved Purchase Order. Customer shall have thirty (30) days after delivery of any merchandise listed in this agreement to inspect and accept or reject such merchandise (the “Acceptance Period”). Any merchandise that is not rejected during the Acceptance Period is deemed accepted by Customer. Acceptance of any merchandise shall not preclude any subsequent claim with respect to such merchandise as set forth throughout this Agreement. If during the Acceptance Period, Customer identifies any merchandise that does not conform to the Specifications (“Nonconforming Product”), Customer shall have the right, at its sole option, to: (a) reject such Nonconforming Product, (b) require replacement of the Nonconforming Product, (c) accept the Nonconforming Product with an adjustment in price, or (d) return such Nonconforming Product for credit or refund. Any rejected merchandise must be replaced by Merchant, at Merchant’s expense, within seven (7) business days after the request of Customer and/or Company. Upon delivery of replacement merchandise, Customer shall accept or reject such replacement in accordance with this Section.
Where the Customer rejects or revokes the delivery of goods and Merchant fails or refuses to cure said rejection or revocation in a timely manner, as defined by the UCC, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the Purchase Order or Orders that are the subject of said rejection, revocation or dispute. Where the Merchant has breached the agreement with the Customer in any other manner, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the Purchase Order or Orders that are the subject of said breach or dispute. In the event Merchant fails to provide a refund to the Company, Merchant shall be responsible to pay all legal expenses and costs, reasonable attorney’s fees, and collection expenses incurred by Company in attempting to enforce the terms of this Agreement.
6. REFUNDS & CHARGEBACKS
A. Where the Customer returns, rejects or revokes the delivery of goods and Merchant fails or refuses to cure said return, rejection or revocation timely as defined by the Uniform Commercial Code (“UCC”) or fails to resolve such disputes within thirty (30) days of the notice of said dispute, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the Purchase Order or Orders that are the subject of said rejection, revocation or dispute.
B. Where the Customer disputes the rendition or quality of services and Merchant fails or refuses to resolve such disputes within thirty (30) days of the notice of said dispute, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the services, Purchase Order or Orders that are the subject of said dispute.
C. In the event of a Customer return, rejection or revocation of goods, dispute regarding the rendition of services, or in the event of a refund, Merchant shall notify Company within forty-eight (48) hours by email to firstname.lastname@example.org the name of the Customer, Purchase Order Number, nature of the dispute or other issue and the date and amount of any refunds or reimbursements.
D. Where the Merchant has breached the agreement with the Customer in any other manner, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the Purchase Order or Orders that are the subject of said breach or dispute. In the event Merchant fails to provide a refund to the Company, Merchant shall be responsible to pay all legal expenses and costs, reasonable attorney’s fees, and collection expenses incurred by Company in attempting to enforce the terms of this Agreement.
E. Company will charge a 1% fee to all Merchant refunds that occur more than forty (40) days after Merchant received notice by Customer of the return, rejection, revocation or dispute regarding the goods delivered or services received.
F. If any cure of a return, rejection, revocation, or other dispute decreases or otherwise interferes with the amounts due to Company under the Approved Purchase Order, Merchant must refund the affected amount to the Company via ACH or wire transfer.
G. In the event a Customer disputes a Merchant transaction directly with Company, Company will investigate each disputed transaction before the dispute is presented to the Merchant. A Dispute Agent of Provider will coordinate with the Merchant representative to provide documentation to aid in resolving the dispute.
Merchant shall protect, defend, hold harmless and indemnify Company, including its officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorney fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged:
(a) Misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other right relating to any Merchandise listed on the Approved Purchase Order;
(b) Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in the Merchandise listed on the Approved Purchase Order, including but not limited to (i) any actual or alleged failure to provide adequate warnings, labelings or instructions, (ii) any actual or alleged improper construction or design of said Merchandise, or (iii) any actual or alleged failure of said merchandise to comply with specifications or with any express or implied warranties;
(c) Violation of any law, statute, ordinance, governmental administrative order, rule or regulation relating to the merchandise listed on the Approved Purchase Order, or to any of its components or ingredients, or to its manufacture, shipment, labeling, use or sale, or to any failure to provide a Material Safety Data Sheet or certification; (d) Act, activity or omission of Merchant or any of its employees, representatives or agents.
Merchant shall promptly notify Company of the assertion, filing or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity and shall immediately take such action as may be necessary or appropriate to protect the interests of Company, its officers, directors, employees and agents. Company shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Company or any of its officers, directors, employees or agents.
If Merchandise listed on the Approved Purchase Order is the subject of a Recall, whether initiated by Merchant, Supplier or a government entity (including the issuance of safety notices), Merchant shall be responsible for all matters and costs associated with the Recall, including but not limited to:
(a) Consumer notification and contact;
(b) All expenses and losses incurred by Company and/or Customer in connection with such Recall (and where applicable, any products with which the Recalled Merchandise has been packaged, consolidated or commingled), including but not limited to refunds to Customers, lost profits, transportation costs and all other costs associated therewith;
(c) Initial contact and reporting of the Recall to any government agency having jurisdiction over the affected Merchandise listed on the Approved Purchase Order; and
(d) Where the recall of Merchandise listed on the Approved Purchase Order cannot be cured timely, as defined by the UCC, the Merchant shall refund to the Company via ACH or wire transfer the monies paid by the Company for the merchandise on the Purchase Order or Orders that are the subject of the recall.
9. TITLE & RISK OF LOSS
Title in the Goods and Merchandise identified in the Approved Purchase Orders, shall not pass to Customer listed on the Approved Purchase Order until the Merchandise listed in the Approved Purchase Orders have been delivered. All risk of loss or damage with respect the merchandise in the Approved Purchase Orders shall remain with Merchant and pass to Customer upon delivery by Merchant to Customer.
10. MISCELLANEOUS PROVISIONS
A. TRANSMISSION AND UTILIZATION OF ELECTRONIC DATA.
Company will provide Merchant online access to its account information via the internet for transactional, review and reporting purposes. Merchant shall use due care and extreme caution and will use commercially reasonable efforts to ensure that any passwords provided to Merchant by Company remain confidential and that Merchant shall safeguard the security and integrity of its computer systems. Company shall have the right to assume that anyone who accesses Merchant’s account through the internet has the requisite authority and that all transactions performed on the account are with the Merchant’s full authorization. Merchant assumes the risk of all loss incurred in connection with this Section and understands that Company makes no warranties, express, implied or statutory with respect to its services contemplated by this Section. Company agrees to use commercially reasonable efforts (equivalent to the efforts Company applies to maintain the confidentiality of its own confidential information) to maintain as confidential all information provided to Company by Merchant (“Confidential Information”); provided, however that Company may disclose any information provided by Merchant to its lenders, accountants, advisors, Affiliates, outside auditors counsel and other professional advisors that have a need to know the Confidential Information and are under an obligation to protect Confidential Information or as required or requested by any governmental body or representative thereof pursuant to binding legal process and competent jurisdiction. Any unauthorized disclosure or use of Merchant’s Confidential Information, including Merchant’s Customer data and Purchase Orders, constitutes a material breach of this Agreement.
B. Force Majeure.
If any place of business or other premises of Merchant shall be affected by lockouts, strikes, riots, war, acts of terrorism, fire, civil insurrection, flood, earthquake or any other casualty or cause beyond Merchant’s control, which might reasonably tend to impede or delay the reception, handling, inspecting or processing of the Merchandise covered by this Agreement and the Approved Purchase Orders, Company may, at its option, cancel all or any part of the undelivered Order hereunder by giving written notice to Merchant which notice shall be effective upon mailing.
This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder, provided, however, that the provisions hereof shall enure to the benefit of, and be binding upon, each successor of the Company, whether by merger, consolidation, acquisition or otherwise, unless otherwise agreed to by the Merchant and the Company.
D. Applicable law & Venue.
This Agreement is entered into under, and shall be governed for all purposes, by the laws of the State of New York. Merchant consents to the personal jurisdiction of the state and/or federal courts located in New York. Merchant waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue in any action brought in such courts.
E. Invalid Provisions.
The invalidity or unenforceability of a particular provision of this Agreement shall not affect the enforceability of any other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
Any notice required or permitted to be given to the Company pursuant to this Agreement shall be sufficiently given if sent to the Company by registered or certified mail addressed to the Company at PO Box 1804, New York, NY 10159, or at such other address as he shall designate by notice to the Company, and any notice required or permitted to be given to the Merchant pursuant to this Agreement shall be sufficiently given if sent to the Merchant by registered or certified mail addressed to it or at such other address as it shall designate by notice to the Merchant.
This Agreement may only be amended in writing by an agreement executed by both parties hereto.
H. Entire Agreement.
This Agreement contains the entire agreement of the parties hereto and supersedes any and all prior agreements, understandings or offers, oral or written, and negotiations between said parties regarding the subject matter contained herein.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of that provision shall not affect the validity or unenforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.
Merchant’s failure to comply with any of the terms and conditions of this Agreement or any of the Approved Purchase Orders shall be grounds for the exercise by Company of any one or more of the following remedies:
(a) Cancellation of all or any part of any undelivered Approved Purchase Orders without notice, including but not limited to the balance of any remaining installments on a multiple-shipment Order;
(b) Rejection (or revocation of acceptance) of all or any part of any delivered shipment. Upon rejection or revocation of acceptance of any part of or all of a shipment, Customer may return the Merchandise or hold it at Merchant’s risk and expense. Payment of any Approved Purchase Order shall not limit Customer or Company’s right to reject or revoke acceptance.
(c) Termination of all current and future business relationships;
(d) Assessment of monetary fines as determined in Company’s reasonable discretion;
These remedies are not exclusive and are in addition to all other remedies available to Company at law or in equity.
Merchant acknowledges that Merchant has carefully read this Agreement, Merchant knows and understands its terms and conditions and Merchant has had the opportunity to ask the Company any questions Merchant may have had prior to signing this Agreement. The parties have been advised in writing to consult with an attorney prior to execution of this Agreement having elected to execute this Agreement, each party agrees to fulfill the promises set forth herein.
The headings in this Agreement are for reference only and do not affect the interpretation or meaning of this Agreement.
M. Further Actions
Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be reasonably necessary or appropriate in order to carry out the purpose and intent of this Agreement.
11. ARBITRATION (AGREEMENT TO ARBITRATE CLAIMS)
Except as otherwise stated below, any Claim (as defined below and in 11.D) will be resolved, at the election of the Company or Merchant, by binding arbitration pursuant to (a) this Arbitration Provision and (b) the code of procedure of the national arbitration organization to which the Claim is referred (as in effect when the Claim is filed). Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. Streamlined arbitration procedures will be used if available. For purposes of this Arbitration Provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future, (collectively, “Claims”) as further described below. If for any reason a selected organization cannot, will not, or ceases to serve as an arbitration administrator, Company or Merchant may substitute another arbitrator or arbitration organization that uses a similar code of procedure and is mutually acceptable to both parties, in accordance with Section 5 of the Federal Arbitration Act. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization. An arbitration proceeding can decide only Company’s or Merchant’s Claims. Merchant cannot join other parties (or consolidate Claims). Neither Company nor Merchant will be permitted to arbitrate claims on a class-wide (that is, on other than an individual) basis.
A. Small Claims Court Option.
All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of in which Merchant is headquartered for disputes within the scope of such tribunal’s jurisdiction. Any dispute that cannot be adjudicated within the jurisdiction of a small claims tribunal, including claims transferred by the small claims tribunal to another court, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
B. SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS.
IN ARBITRATION, NEITHER COMPANY NOR MERCHANT WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT COMPANY OR MERCHANT COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN COMPANY’S OWN OR MERCHANT’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) above. If a court holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. Company or Merchant can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this Arbitration Provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this Arbitration Provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide any Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to any Claim, between the parties, is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding any Claim.
C. Right to Opt-Out of Arbitration.
Merchant may opt-out of this Arbitration Provision. If Merchant does so, neither Company nor Merchant will have the right to engage in arbitration. Opting out of this Arbitration Provision will have no effect on any of the other provisions in this Agreement. To opt out of this Arbitration Provision, Company must receive Merchant’s written notice of opt-out, within 30 calendar days after Merchant’s Loan is approved, at PO Box 1804, New York, NY 10159. In Merchant’s letter, Merchant must also give Company the following information: Merchant’s name, address and loan number. The right to opt-out granted here applies solely to this Arbitration Provision and this Agreement, and not to any other provision of this Agreement or to any other loan made under the Loan Facility Agreement or other agreement with Company. In the event of a dispute over whether Merchant has provided a timely opt-out notice, Merchant must provide proof of delivery.
D. Broad Meaning of “Claims.”
The term “Claims” in this Arbitration Provision is to be given the broadest possible meaning and includes, by way of example and without limitation, Claims arising from or relating to (i) this Agreement, (ii) any transactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement, (iv) collection of Merchant’s obligations arising from this Agreement, (v) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between Merchant and Company pursuant to this Agreement, including any Claims regarding information obtained by Company from, or reported by Company to, credit reporting agencies or others, (vi) Claims between Merchant and Company or their parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between Merchant and Company pursuant to this Agreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or this Agreement including but not limited to whether a given claim or dispute is subject to arbitration.
E. Arbitration Procedure and Costs.
For a copy of relevant codes of procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their website or call them at: (i) for JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, http://www.jamsadr.com, or 1-800-352-5267; or (ii) for AAA, 120 Broadway, 21st Floor, New York, NY 10271, http://www.adr.org, or 1-800-778-7879. If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorneys’ fees, incurred by the party compelling arbitration. Any physical arbitration hearing will be held in the federal judicial district selected by Merchant. No matter which party initiates the arbitration, Company will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses. Unless prohibited by law, the arbitrator may, applying applicable law, award fees, costs and reasonable attorneys’ fees and expenses to the party who substantially prevails in the arbitration. The allocation of fees and costs relating to an appeal in arbitration will be handled in the same manner. For an explanation and schedule of the fees that may apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is hereby incorporated by reference into this Arbitration Provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding a physical arbitration hearing can increase the cost of arbitration.
F. Governing Law for Arbitration.
This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo, that is, without deference to the ruling of the original arbitration, any aspect of the initial award requested by the appealing party.
G. Continued Effect of Arbitration Provision.
This Arbitration Provision will continue to govern any Claims that may arise without regard to any termination or cancellation of this Agreement. If any portion of this Arbitration Provision, other than the provisions prohibiting class-wide arbitration, joinder or consolidation, is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this Arbitration Provision. If a conflict or inconsistency arises between the code of procedures of the selected arbitration administrator and this Arbitration Provision, this Arbitration Provision will control.
12. SECURITY QUESTIONNAIRE
Upon Company’s written request, to confirm compliance with any applicable law and industry standards, Merchant shall promptly and accurately complete any security questionnaire submitted by Company or a third party on Company’s behalf. Company reserves the right to take or require any actions necessary to ensure that Merchant’s network, data security, and other procedures and controls with all applicable laws and sufficiently protect Company, any Designated Lender, and Customers.