Terms And Conditions
Following are the Terms and Conditions of Unity FI Solutions, a North Carolina LLC with its principal place of business
located at 508 W 5TH St, Charlotte, NC 28202 (the “Service Provider”)
1. Services Offered and/or Provided. Service Provider shall: (i) maintain a database of the Company’s customer (the “Customer”) payment records based on such Customer authorizations and other information provided by the Company to the Service Provider in accordance with this Agreement; (ii) create and transmit Automated Clearing House (“ACH”) Entries to the third party processor on certain due dates as provided by the Company to the Service Provider from time to time; (iii) provide the Company with reconciliation on a monthly basis of all ACH activity performed by the Service Provider on behalf of the Company; (iv) provide Return Check Re-presentment, (v) process Credit Card, Debit Card, Electronic Check transactions and Web Payments; and (vi) perform other such related services as required or necessary to perform services outlined in (i)–(v) above (each a “Service” collectively, the “Services”).
2. Term and Termination. The initial term (“Initial Term”) of this Agreement shall be twelve (12) months from the Effective Date. No less than ninety (90) days before the expiration of any Term, the Company may cancel this Agreement by delivering written notice via certified mail or with signed attached cancellation via email to the Service Provider. In the absence of written notice terminating this Agreement upon the expiration of the Initial Term, this Agreement shall renew for consecutive twelve (12) month renewal terms (each a “Renewal Term”) unless terminated by the Company.
3. Termination for Cause. In the event of a material breach of services, the Company may terminate this Agreement at any time provided the issue is not cured, as determined by the Service Provider, within thirty (30) days of written notification received via certified mail. The Service Provider may terminate this Agreement at any time upon a material breach of services or if required by a Regulatory Authority (refer to paragraph 8, Compliance).
4. Termination without Cause. If the Company chooses to terminate this agreement without cause prior to the expiration of any term, the Company agrees to pay the Service Provider the greater of $495.00 or the equivalent of the average monthly processing fees assessed from the beginning of the agreement term for each of the remaining months of the term. The Service Provider may terminate this Agreement without regard to breach or default upon thirty (30) days written notice to the Company if directed by Regulatory Authority to close
account. Notice may be fewer than 30 days if required by Regulatory Authority (refer to paragraph 8, Compliance).
5. Data Transmittal, Timing, Format, and Reporting. The Company and Service Provider shall mutually agree upon the timing, method of transmittal, and format of data received from the Company to be used for the processing of ACH transactions.
6. Service Provider Fees. Company agrees to compensate Service Provider for the Services provided by the Service Provider listed on the application (collectively, the “Fees”) Company hereby authorizes the Service Provider to collect its Fees from the Company by debiting the Company’s bank account or by withholding the Fees from funds collected by the Service Provider on behalf of Company.
All Fees will be due and payable by the Company to the Service Provider on the date that such services are performed. Company must notify Service Provider of any potential issues within 45 days of receiving your invoice. Any notification received after the 45-day period will be considered at the discretion of the Service Provider. Occasionally, our costs may increase, and the Service Provider reserves the right to increase fees with a forty-five (45) day written notice. If Company chooses not to accept pricing increases, they may terminate with sixty (60) days’ written notice.
7. Exclusivity. During the Term and any Renewal Term, the Company hereby agrees to obtain the Services listed in the Fee Section solely from the Service Provider.
8. Compliance. Company is subject to all applicable state, federal, local, and foreign laws, rules, regulations, and other laws, including without limitation, the Credit Card Brands (Visa, Master Card, Discover, American Express), the Uniform Commercial Code in effect in the states of North Carolina and Georgia, as well as, the NACHA Operating Rules & Guidelines, Regulation E. The Company and the Service Provider acknowledge that the processing of ACH credit and/or debit entries and Credit/Debit Card entries (“Entries”) are subject to the Operating Rules and Procedures as listed above. All terms used herein and not otherwise defined shall have the meaning ascribed thereto in the Rules. The Company and the Service Provider agree to comply with the Rules insofar as applicable. Company agrees to be responsible for any fines or penalties (e.g. from NACHA System of Fines) that might be charged by ODFIs, as well as, the Credit Card Brands for any non-compliance with the rules.
9. Authorization. For payment types other than checks, before the initiation of any entry to a Customer Account, the Company shall obtain from the Customer an Authorization by such Customer which complies with the requirements of the Rules authorizing the initiation of one or more Entries to such account by the Company.
10. Records Retention. The Company shall retain the original Authorization received from each Customer for any company-initiated transaction for the period of time as defined in the Rules, currently at least two (2) years, after the termination of such Authorization. The Rules may amend or change this two-year period in which case, the Company shall maintain the original Authorization as required pursuant to the new time
11. Funds Remittance. The Service provider agrees to remit the collected funds of the Company’s Customers to the account of the Company four (4) business days following the effective date of the transaction to ensure Customer funds are successfully collected. on the business day following the effective date of the transaction. If the Company voluntarily opens and maintains a Reserve Account (the “Reserve Account”) with the ServiceProvider, the collected funds from the Company’s Customers will be remitted to the account of the Company on the business day following the effective date of the transaction.
12. Reserve Account. If the Company chooses to open and maintain a Reserve Account, or the Service Provider considers the Reserve Account necessary, the Company agrees to maintain the Reserve Account during the entire term, including the Initial Term and any Renewal Term of this Agreement to cover any fees and expenses related to uncollectable Customer debits. The initial Reserve Account balance will be calculated per Exhibit B. The reserve will be reviewed from time to time and if needed, adjusted up or down to reflect actual uncollectible Customer debits. The Reserve Account balance will be held in a non-interest-bearing account for the Company. In the event this Agreement is terminated, the Company agrees to maintain the Reserve Account balance held at the time of termination for 180 days following the last Returned Item received by the Service Provider to cover any uncollectable Customer debits that may be returned to the Service Provider after such termination for services rendered prior to such termination.
13. Bank Return Item(s), Card Chargeback(s). ACH entries rejected due to insufficient funds in a Customer’s account at the Receiving Depository Financial Institution will be subject to state allowable Returned Debit service charge, payable to the Service Provider. Returned Debit service charges will be deducted electronically from the Customer’s account through an ACH debit. The Company will be charged a
Returned item fee, referred to in Section 6 of the Merchant Application, for all Return items in which the Service Provider cannot collect the state allowable return fee. For credit card chargebacks, Company will be subject to debits equaling the original transaction amount plus additional card brand charged fees. For both ACH returns and credit card chargebacks, Company will be responsible for any collection or legal fees incurred by the Service Provider.
14. Notification(s) of Change. Company agrees to incur all fees associated with Notifications of Change. The Company’s banks will notify the Services Provider and Company of any changes that need to be made regarding the company’s account information. If the required change is not made by the Company in the required timeline provided by the Bank, and an additional notification is sent a fee will be incurred by the Company. The Company agrees to pay a fee of $35.00 for the 3rd notification and any notifications to follow. If the Company receives the 4th notification the Service Provider will be reviewed for eligibility and services may be terminated by the Service Provider.
15. Uncollected Bank Return Item(s). Company agrees to accept a charge-back of any return that is uncollectible by the Service Provider. The Company shall reimburse the Service Provider for any fees and expenses related to any uncollectable Customer debits.
16. Non-Disclosure. Both parties agree to hold the Confidential Information in strict confidence and agree not to disclose the same to any third party. The parties further agree that they shall not disclose any Confidential Information to anyone within its own organization except its officers, employees, agents, and contractorsto whom disclosure is reasonably necessary in furtherance of the relationship between the parties. The parties shall appropriately notify each such agent and employee that the disclosure is made in confidence and the Confidential Information shall be kept in confidence in accordance with this agreement.
17. Confidential Information. Confidential Information shall mean information, data, or material deemed proprietary by Service Provider and Company whether or not it is marked as confidential, or, if orally transmitted, designated as “Confidential” and not generally known by the public or by parties which are competitors with or otherwise in industry, trade or business similar. Confidential Information also includes any information that Service Provider or Company obtains from another party and which Service Provider or Company treats as proprietary or designates in writing as Confidential Information, whether or not owned or developed by such party. Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): Consumer Information (as defined below), discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, algorithms, documentation, user manuals, diagrams, flow charts, consulting methods and techniques, research, development, processes, procedures, “know-how”, marketing techniques and materials, marketing and development plans, price lists, pricing policies and financial information, methods of production, use, operation and application, invented, owned or developed by either party as it applies to and is incorporated in each party’s proprietary software, and any patents, copyrights, trademarks existing now, for which applications may be pending or hereafter made, acquired and granted for any software. Confidential Information shall further include data regarding business practices, pricing, product philosophy, position relative to competitors, and review of actual deliverables of projects. Consumer Information means non-public identifiable information including all lists of customers, former customers, applicants, financial information, pricing information, information concerning business plans, and any list or grouping of customers derived from personally identifiable information that is not publicly available.
18. Non-Use and Non-Circumvention. Both parties agree to use the Confidential Information solely in furtherance of their business dealings with the other and for no other purpose whatsoever. Further, the parties agree that in consideration of the other parties’ disclosure of the Confidential Information, they will not at any time prior to the date immediately preceding the fifth year anniversary date after the termination of this Agreement, attempt in any manner to commercially exploit the proposed business concepts and plans of the party or any of the Confidential Information without the party’s prior written consent, that may be given or withheld by the other party at its sole discretion
19. Customer Data Terms. “Definition of Customer Data.” “Customer Data” means all data and information
about the Company’s businesses, customers (current, former, or prospective), employees and their families, operations, facilities, products, markets, assets, or finances that the Service Provider obtains, creates, generates, collects, or processes in connection with providing the Services, and all Intellectual Property Rights in that data and information. As between the Company and the Service Provider, the Company will
own all of the Customer Data. All Customer Data shall be considered Confidential Information of the Company and the Service Provider agrees to treat all Customer Data as Company Confidential Information. The Service Provider will not withhold any Customer Data as a means of resolving a dispute.
20. Internet Services/Disclaimer Service Provider does not, and cannot, control the flow of any documents, files, data, or other information via the Internet, whether to or from Service Provider’s network, other portions of the Internet, or otherwise. Such flow depends in large part on the performance of Internet services provided or controlled by third Parties. Actions or inactions of such third Parties can impair or disrupt Institution’s or Customer’s connections to the Internet (or portions thereof). Service Provider cannot guarantee that such events will not occur.
a. Accordingly, Service Provider disclaims any and all liability arising out of, resulting from, or related to, such events, and in no event, shall Service Provider be liable for any damages of any kind (whether in contract, in tort, or otherwise) that are attributable or in any way related to the Internet infrastructure or Institution’s, Customer’s, or Service Provider’s ability or inability to connect to the Internet.
b. Institution understands that, while Service Provider and its service providers have established certain Security Procedures, such as firewalls, Codes, and/or data encryption designed to prevent unauthorized access to Institution’s or Customer’s accounts or transactions, there can be no assurance that inquiries or transaction activity will be completely secure. Institution and Customer agree that Service Provider is not responsible for any such unauthorized access, delays, or malfunctions, and Service Provider is not responsible for the acts of Third Parties.
21. Indemnity. Service Provider and the Company each agree to indemnify, defend and hold the other, together with their respective successors, directors, officers, shareholders, employees, and agents, harmless from and against any and all claims, losses, liabilities, and expenses (including reasonable attorney’s fees and expenses) which the other may incur, arising directly or indirectly from or as a result of (a) any breach by it of any of the covenants or other provisions of this Agreement; or (b) the negligence or misconduct of the indemnitor or its principals, officers, employees, agents or representatives in the conduct of its business or in the performance of this Agreement.
22. Additional Terms. Additional terms of this Agreement, if any, are set forth in Exhibit A hereto signed by authorized representatives of the parties, and are incorporated by reference.
23. Amendments. No amendment to this Agreement shall be effective unless in writing and signed by the Company and the Service Provider, except where NACHA has exercised its right to amend its respective Rules.
24. Assignment. This Agreement shall not be assigned or otherwise transferred by the Company or the Service Provider; provided, however, that the Service Provider may assign this Agreement to its affiliates or the purchaser of all, or substantially all, of the Service Provider’s assets or outstanding securities. The Service Provider is required to notify Company thirty (30) days prior to the assignment of this Agreement to another entity. Failure to do so will constitute a breach of this Agreement and Company may terminate this Agreement.
25. Governing Law; Attorneys’ Fees. This agreement shall be governed by the internal laws of the State of North Carolina, without regard to the choice of law provisions of any jurisdiction. If any claim or controversy arises between the parties hereto relating to this Agreement, or the breach of this Agreement and action, including arbitration, by one (1) party taken against the other party, the prevailing party in such action will be entitled to recover from the other the costs and expenses, including reasonable fees of attorneys, accountants and other professionals, incurred in taking or defending such action of such prevailing party.
26. Entire Agreement. This Agreement, as well as Schedule “A” and Exhibits A and B, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes, cancels, and replaces all prior agreements and understandings between the parties, whether written or unwritten.