Services Agreement

This document contains the terms and conditions of the Tenerum Payment Gateway Services Agreement (“Agreement”) you agreed to when you signed the InnQuest Software Master Service Agreement.

1. Definitions.

  • a “Approve/Deny Transaction Data” means data received and stored by Tenerum and transmitted to and received from the POS System in connection with the approval or denial of the use of a Cardholder’s credit, debit or payment card to purchase goods and/or services from Merchant.
  • b “Cardholder” means any person or entity that purchases goods and/or services from Merchant requiring Merchant’s use of Services to complete the purchase transaction.
  • c “Cardholder Data” means Cardholder account data received by the POS System from a Cardholder during the Cardholder’s use of a debit, credit or payment card to purchase goods and/or services from Merchant (including without limitation financial information, card account number and all other personally identifiable Cardholder information) that is transmitted by the POS System to Tenerum for use in providing Services to Merchant.
  • d “Confidential Information” means, subject to the exceptions set forth below, any information disclosed by either party to the other party, either directly or indirectly, in writing or orally which is designated as “Confidential,” “Proprietary” or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information initially disclosed to a disclosing party by third parties and then disclosed by the disclosing party to the receiving party. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and, if requested by the disclosing party, the receiving party assists the disclosing party in obtaining an order protecting the information from public disclosure. Confidential Information of Tenerum will include, without limitation, this Agree¬ment and all Exhibits and any adden¬da to this Agreement signed by the parties, as well as the Documentation.
  • e “Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the use of the Services that are generally provided by Tenerum to customers in connection with the Services.
  • f “Force Majeure Event” means the delay or interruption of a party’s performance of obligations under this Agreement due to causes beyond its reasonable control and without its negligence, including but not limited to: acts of God or other catastrophes, acts of civil or military authorities, national emergencies, civil disturbances, terrorist attacks or wars, strikes or other labor disputes, fires, floods, severe weather, embargoes, quarantines, epidemics, interruptions in telecommunications, utility, Internet services or disruption of Services by a third party by any means including, but not limited to, malicious acts, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay Services.
  • g “Merchant Data” means information relating to the goods and/or services being purchased by a Cardholder that is received by the POS System and information of Merchant that is stored in the POS System, both of which are transmitted by the POS System to the Payment Gateway during a Cardholder’s purchase of goods and/or services from the Merchant for use by Tenerum in providing Services to Merchant.
  • h “Payment Gateway” means the Tenerum infrastructure that receives Transaction Data from Merchant’s POS System for authorization of a transaction between a Cardholder and Merchant, stores Transaction data, forwards Transaction Data to a Transaction Processor for authorization of the transaction, receives back an authorization response message from the Transaction Processor with approve or deny information for the transaction (“Approve/Deny Transaction Data”), generates a token associated with the Payment Card and sends back to Merchant’s POS System the authorization response message and the associated token.
  • i “Payment Gateway Services” means the services set forth in the InnQuest Software Master Service Agreement.
  • j “PCI DSS” means Payment Card Industry Data Security Standards.
  • k “POS System” means a point-of-sale (“POS”) workstation and/or server including payment terminal devices, a property management system (“PMS”), or an e-commerce website and any other system or equipment integrated therewith that is used by Merchant to receive Cardholder Data, transmit Cardholder Data and Merchant Data to the Payment Gateway for Services processing, receive Approve/Deny Transaction Data from Tenerum and store and/or access Transaction Data and Approve/Deny Transaction Data.
  • l “Token” means a surrogate value generated by the Payment Gateway and used as a reference pointer to Cardholder Data.
  • m “Transaction Data” means the Cardholder Data and the Merchant Data the Payment Gateway receives from Merchant to authorize a transaction between a Cardholder and the Merchant.
  • n “Transaction Processor” means a service entity that provides authorization and/or settlement services to support credit, debit, check and other types of transactions between a Cardholder and Merchant.

2. Services.

Tenerum will provide Merchant with the Payment Gateway Services and Transaction Management Services set forth in the InnQuest Master Service Agreement. Tenerum may provide upgrades to the Services from time to time.

3. Merchant Responsibilities.

  • a. Connectivity Responsibilities. Merchant is solely responsible for establishing and maintaining connectivity necessary to access and use the Services and to meet all connectivity requirements as specified by Tenerum, including encryption, security, antivirus and firewall requirements.
  • b. Data Responsibilities. Merchant is solely responsible for the security of data residing on its POS System and all other systems interfaced to or used with its POS System. Merchant shall comply with all applicable federal and state laws, policies and regulations governing the security, privacy, collection, retention and use by Merchant of Cardholder data. During the term of this Agreement, Merchant will maintain applicable PCI compliance (PCI-DSS and/or PA-DSS) and comply with all legal obligations, as applicable, including without limitation those issued by any credit, debit and payment card issuing company and the Federal Trade Commission that are associated with the collection, security, dissemination and destruction of Cardholder data. Merchant is responsible for maintaining the security of Cardholder data in its possession and will take all reasonable precautions necessary to ensure that its POS System is secure from breach or access by unauthorized third parties. In the event its POS System is breached and an unauthorized third party has accessed or has access to Cardholder data, Merchant promptly shall notify Tenerum and law enforcement officials of such breach and take all reasonable precautions as are necessary to prevent such breach from occurring again in the future.
  • c. Compliance with Tenerum Security Requirements. Merchant will comply with all Tenerum security protocols and advisories in effect during the term of this Agreement. Merchant is solely responsible for verifying the accuracy and completeness of all transactions processed through the Services. Merchant shall keep secret all passwords for access to the Services and shall share login information only with its employees on a need-to-know basis. Merchant acknowledges that Tenerum is not liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to Merchant’s account, Cardholder data or related transaction data. Merchant shall notify Tenerum immediately if it suspects an unauthorized party has logged into Merchant’s account or if any suspicious transactions are detected. Also, Merchant acknowledges that its use of the Services does not protect Merchant’s environment from third party breaches.
  • d. Merchant is responsible, with Tenerum’s assistance, for engaging the vendor or remarketer, as applicable, of Merchant’s POS System to ensure that Merchant’s POS System is certified and compatible with the Services in order to maintain compliance under applicable industry rules and regulations and the standards set by bankcard associations. Failure of the Merchant’s POS System to be compatible and function in accordance with the Services as regulated and/or required shall excuse Tenerum from any and all of its obligations under this Agreement.
  • e. Additional Responsibilities. Merchant shall provide, or make available to Tenerum, free of charge, reasonable assistance in the implementation of Merchant’s access to the Services. Merchant acknowledges and agrees that Tenerum’s performance is dependent on Merchant’s timely and effective satisfaction of all of Merchant’s material responsibilities hereunder and timely decisions and approvals by Merchant. Tenerum is entitled to rely on all decisions and approvals of Merchant in connection with the Services provided hereunder.
  • f. Failure to Perform Responsibilities. In the event Merchant fails to perform its responsibilities set forth in this Section 3, Tenerum shall be excused from any delay or non-performance of its obligations under this Agreement, beginning upon the date Merchant fails to perform its responsibilities, to the extent such Tenerum delay or non-performance results from Merchant’s failure to perform its responsibilities; provided that Tenerum shall work with Merchant to minimize the impact or potential impact of any such failure by Merchant.

4. Tenerum Responsibilities.

  • a. Connectivity Responsibilities. Tenerum shall provide Merchant with connectivity requirements, including encryption requirements, for access to the Payment Gateway.
  • b. Data Responsibilities. Tenerum will collect, retain, and disclose information and data collected from Merchant and Cardholders for the purposes only of providing Services. During the term of this Agreement, Tenerum will comply with all requirements of PCI-DSS, as applicable, in the provision of Services including the security of Cardholder data in its possession received from Merchant.

5. Transaction Interchange Compliance.

Tenerum is not responsible for any higher fees charged to Merchant by a Transaction Processor or the Merchant’s bank in connection with its transactions that are processed through the Payment Gateway. In addition, Tenerum is not responsible for any additional fees or fines levied by a Transaction Processor, an acquiring bank or a card association for any transactions that are deemed as non-compliant, non-qualifying or fraudulent.

6. Services Support.

  • a. Technical Support. Tenerum shall provide technical support via telephone and email (“Technical Support”) pursuant to the type of Technical Support purchased by Merchant as set forth in Exhibit A. “Standard Technical Support” is back-up support provided by Tenerum to assist Merchant and the vendor or remarketer, as applicable, of Merchant’s POS System in resolving problems and concerns with respect to the Services and for reporting suspected interruptions, malfunctions, omissions, mistakes, accidents or errors in the Services or failure of the Services to operate substantially in accordance with its specifications (each an “Interruption”). Under Standard Technical Support, Merchant’s first line of technical support is the vendor or remarketer, as applicable, of Merchant’s POS System. “Direct Technical Support” is initial and direct support provided by Tenerum to assist Merchant with Interruptions. Under Direct Technical Support, Tenerum is Merchant’s first line of support to resolve Interruptions.
  • b. Scheduled Downtime. Tenerum will notify Merchant via email at least 24 hours in advance of any scheduled downtime (“Scheduled Downtime”). Scheduled Downtime will occur at predetermined times during off-peak periods and not during the hours of 9:00 a.m. to 9:00 p.m., Eastern Time, Monday through Friday, excluding federal holidays.
  • c. Unscheduled Downtime. Tenerum will notify Merchant via telephone, email and/or through the Tenerum transaction management portal within a reasonable time of any known and verified unscheduled Interruption of the Services and update Merchant periodically with status reports until the Interruption is remedied. Tenerum will notify Merchant via telephone, email and/or through the Tenerum transaction management portal when the Services have been substantially restored.
  • d. Authorized Merchant Contact. As a condition to the obligations of Tenerum under this Section, Merchant shall appoint, and identify in Exhibit A, one or more authorized employees as its “Authorized Representative” and principal point(s) of contact for the communication with Tenerum and for the receipt of status reports and notices. Merchant may appoint additional person(s) as a backup(s) of the Authorized Representative when the Authorized Representative is unavailable. In the event the Authorized Representative changes, for whatever reason, Merchant shall immediately contact Tenerum and identify the newly Authorized Representative. Tenerum shall not be responsible for distributing status reports and notices to the previously Authorized Representative and for not distributing status reports and notices to the newly Authorized Representative unless and until Merchant has provided Tenerum with written notice of its rescission of the previously Authorized Representative and its appointment of the newly Authorized Representative.
  • e. Additional Support. Tenerum may provide Merchant with additional consulting and technical services pursuant to the” Professional Services Fees” set forth on Exhibit A on a case-by-case basis as mutually agreed to by the parties.

7. Taxes.

Merchant shall be liable for, pay and, to the extent applicable, reimburse Tenerum for all local, state, federal and foreign taxes or similar assessments or charges (including any interest and penalties imposed thereon), arising out of this Agreement or relating to the sale or use of the Services hereunder, but excluding taxes based on the net income or gross receipts of Tenerum. In addition, Tenerum has the right, at any time during any term of this Agreement to pass through and invoice to Merchant any new or increased fees, assessments, taxes or other charges imposed on, or required to be collected by, Tenerum or its subcontractors or agents by any governmental agency or its designee. In addition, Merchant will pay and be solely responsible for all taxes, fees and charges levied directly upon it. If Merchant provides Tenerum with a duly authorized exemption certificate, Tenerum will exempt Merchant in accordance with the law, effective on the date Tenerum receives the exemption certificate.

8. Limited Warranty and Limitation of Liability.

  • a. Performance. Tenerum warrants that the Services will perform in substantial accordance with the Documentation. If the Services do not perform as warranted, Tenerum shall correct the Services. The foregoing remedies are Merchant’s sole and exclusive remedies for breach of warranty. The warranty set forth above is made to and for the benefit of Merchant only.

9. Indemnification for Infringement.

  • a. Indemnification by Tenerum. Tenerum shall, at its expense, indemnify, defend and hold harmless Merchant and its employees, officers, directors and agents from and against all claims, losses, demands, damages, liabilities, obligations, costs and expenses (including reasonable attorneys’ fees and other fees) incurred by Merchant arising out of or in connection with any third party claim, suit or proceeding alleging that that Merchant’s use of the Services infringes any patent or copyright and/or misappropriates or constitutes unauthorized use of a trade secret or other intellectual property right of a third party; provided that Merchant gives prompt written notice to Tenerum of any such claim, action or allegation of infringement. Tenerum will have the exclusive right and obligation to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Merchant may not settle or compromise such claim, action or alle¬gation, except with prior written consent of Tenerum. Merchant shall provide assistance and information as Tenerum may reasonably require to settle or oppose such claims. The foregoing indemnification will not apply to the extent the claim of infringement based upon the combination(s) of one or more Services with Merchant’s use of its or a third party’s equipment, services, code or messages including Merchant’s use of its POS System.
  • b. Options. In the event any such infringement, claim, action or allegation is brought or threatened, Tenerum may, at its sole option and expense:i. procure for Merchant the right to continued use of the Services;ii. modify or amend the Services or replace the Services with other services having substantially the same or better functionalities; or, if neither of the foregoing is commercially practicable,iii. terminate this Agreement and repay Merchant a portion of the Services Fee for each month or portion thereof remaining on the term of the Agreement; each party will then be released from any further obligation to the other party under this Agree¬ment, except for the obligations of indem¬nification provided for above and such other obligations that survive termination of this Agreement.
  • c. Limitation. This Section 10 states the entire liability of Tenerum with respect to claims of infringement of any patent, copyright or trade secret.

10. Confidential Information.

  • a. Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise rights and perform obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, except to those employees of the receiving party with a need to know.
  • b. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information. Neither party shall make any copies of the Confidential Information of the other party unless the other party previously approves the copying in writing. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

11. Term and Termination.

  • a. Term. Tenerum’s implementation and subsequent provision of Services will com¬mence on the Effective Date and will continue for an initial term of three (3) years from the Effective Date. This Agreement will automatically renew at the end of the initial term and any subsequent term for a renewal term of one year unless (i) Merchant has provided Tenerum with a written termina¬tion notice of its intention not to renew the Services at least ninety (90) days prior to the termination of the initial term or the then-current renewal term, or (ii) Tenerum provides written notice to Merchant of the termination of the Services at least ninety (90) days prior to the termination of the initial term or the then-current renewal term. Services Fees may be modified by Tenerum for each renewal term by written notice to Merchant at least one hundred twenty (120) days prior to the end of the then-current term.
  • b. Termination by Merchant. This Agreement may be terminated by Merchant, upon thirty (30) days’ prior written notice to Tenerum, for material breach. If this Agreement is terminated by Merchant for material breach and such breach continues unremedied for thirty (30) days after Tenerum receives written notice of the material breach, Merchant may terminate this Agreement and receive a prorated refund of the Services Fees.
  • c. Termination Events. Tenerum may, by written notice to Merchant, termi¬nate this Agreement if any of the follow¬ing events (“Termination Events”) occur:i. Merchant is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Tenerum gives Merchant written notice of such breach (in addition, Tenerum may suspend immediately Services if Merchant is not acting in accordance with PCI DSS or if its POS System is known to be the cause of a data breach); oriii. Merchant (a) terminates or suspends its business, (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the bene¬fit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (c) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; oriv. Tenerum refunds Merchant’s Services Fees in accordance with Section 9.b.iii or Section 11.b.
  • d. If any Termination Event occurs , termination will become effective immediately or on the date set forth in the written notice of ter¬mi¬nation. Termination of this Agreement will not affect the provisions regarding Merchant’s or Tenerum’s treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming Tenerum’s liability, which pro¬visions will survive termination of this Agreement.

12. Miscellaneous.

  • a. Dispute Resolution; Negotiation. If a dispute, controversy, or claim arises out of or relating to this Agreement or the breach thereof (a “Dispute”), either party may provide written notice to the other party identifying the Dispute in sufficient detail to facilitate a discussion regarding the Dispute and requesting that the parties attempt to resolve the Dispute as provided herein. The parties each agree to attempt in good faith for a period of thirty (30) days after delivery of any such notice to consider, discuss and resolve the Dispute through negotiation and agreement. Unless otherwise provided in this Section, any Disputes that cannot be settled in this manner shall be conclusively determined by binding arbitration in accordance with Section 13.b below.
  • b. Arbitration. The provisions of Section 12.a-b shall not preclude any party from seeking injunctive or other provisional or equitable relief in order to preserve the status quo of the parties pending resolution of a Dispute, and the filing of an action seeking injunctive or other provisional relief shall not be construed as a waiver of that party’s arbitration rights. If a Dispute that cannot be resolved as provided above, either party may file a “Demand For Arbitration” with the American Arbitration Association (“AAA”) and give notice to the other party of the filing of such Demand for Arbitration. The Dispute shall be conclusively settled by binding arbitration in Pinellas County, Florida in accordance with commercial arbitration rules of the AAA”. A judgment upon the award obtained in such arbitration may be rendered in any court having jurisdiction thereof and such award shall not be subject to judicial review. The parties shall endeavor in good faith to select an arbitrator within twenty (20) business days of the other party’s receipt of notice of the filing of the Demand for Arbitration. If the parties fail to agree upon an arbitrator, each party shall appoint an arbitrator, and the two so appointed shall select a third. The prevailing party will recover its costs and attorneys fees as determined by the arbitrator. All expenses of the mediation or arbitration, including required travel and other expenses and fees of the mediator/arbitrator and expenses of representatives of the AAA, and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the arbitrator, shall be borne equally by the parties.
  • c. Nonassignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Merchant, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Tenerum, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
  • d. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writ¬ing and must be (a) delivered in person, (b) sent by first class registered mail, or (c) sent by overnight courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be consi¬dered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight courier service.
  • e. Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
  • f. No Warranties. No employee, agent, representative or affiliate of Tenerum has authority to bind Tenerum to any oral or written representa¬tion or warranty concerning the Services. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
  • g. Force Majeure. Neither party will incur any liability to the other party on account of a Force Majeure Event provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practical and will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event. The inability to meet financial obligations and/or pay any monetary sum due under this Agreement is expressly excluded from a Force Majeure Event.
  • h. Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this License Agreement or that such party is entitled by law to enforce.
  • i. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amend¬ments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
  • j. Integration. This Agreement (including the Exhibits and any addenda hereto signed by both parties) con¬tains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
  • k. Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other busi¬ness form that Merchant may use in connection with the acquisition of the Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any fail¬ure of Tenerum to object to such terms, provisions or conditions.
  • l. Publicity. Merchant acknowledges that Tenerum may desire to use its name in press releases, product bro¬chures and financial reports indicating that Merchant is a customer of Tenerum, and Merchant agrees that Tenerum may use its name in such a manner, subject to Merchant’s written consent, which consent will not be unreasonably withheld.
  • m. Counterparts. This Agreement may be executed in counter¬parts, each of which so executed will be deemed to be an original and such counter¬parts together will constitute one and the same agree¬ment.
  • n. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of Florida and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Pinellas County, Florida for resolution of any disputes arising out of this Agreement.