R2013-17 AUTHORIZING CITY MANAGER TO EXECUTE AND ENTER INTO A MASTER PAYMENT PROCESSING AGREEMENT AND ANCILLARY ADDENDUMS

Home Browse Search

2.2. Termination. 2.2.1. Except as provided otherwise or elsewhere in this Agreement, immediate termination of this Agreement may be initiated by the non-breaching party under any of the following circumstances: 2.2.1.a.a party neglects or fails to perform any of the covenants,terms or obligations required to be performed by it under this Agreement, and such failure is not cured within the ninety(90) day period after receiving written notice of the non-breaching party's intent to terminate the Agreement, provided that the notice specifies the nature of such failure; 2.2.1.b.any representation or warranty made by a party in this Agreement shall prove to have been false or misleading in any material respect as of the date on or as of which the same was made; 2.2.1.c. a party ceases permanently to carry on its present business,except as a result of a bona fide reorganization in the course of which the Agreement is transferred to a successor FirsTech of equal or greater financial resources carrying on substantially the same business; 2.2.1.d.a party makes an assignment for the benefit of creditors; or admits in writing its inability to pay debts as they mature; or a trustee or receiver of a party, or of any substantial part of such party's assets, is appointed by any court;or a proceeding is instituted against a party under any provision of the United States Bankruptcy Code or any other law affecting the rights of creditors and such proceeding is acquiesced in or is not dismissed within ninety(90)days; or 2.2.2. The rights provided to the non-breaching party under this Section are not intended to constitute an election of remedies,and, except as provided otherwise in this Agreement,the non-breaching party is entitled to any additional rights and remedies available to it at law or in equity. 2.2.3. In the event that either party is required to take legal action in order to enforce its rights hereunder, the breaching party shall pay all costs incurred by the non-breaching party in enforcing its rights hereunder. These costs shall include, but not be limited to reasonable costs of collection of fees, attorney's fees and court costs. 2.2.4. In the event of termination hereunder, the parties agree to continue to cooperate, and to perform such tasks as may be reasonably necessary in order to complete performance under this Agreement as intended. The parties shall complete transactions then in process, and shall honor such obligations as extend into the future in order to reasonably effectuate the intent of this Agreement. 3. Miscellaneous Provisions. 3.1. Assignment. None of this Agreement, nor any rights and obligations hereunder, shall be assigned by either party without the prior written consent of the other, except; (a)to an Affiliate; (b) in connection with the assignment of substantially all of the assets relating to the business to which this Agreement relates; or(c) in connection with a merger or sale of all or substantially all of the stock of the assigning party. 3.2. Audits. Client shall have the right to inspect and review,on FirsTech's premises, all Customer Payment Data that directly relates to Client. Audit rights shall be extended to Client or to any representative designated by Client. Client shall provide reasonable notice of any audit and such audit(s)shall occur during normal business hours. Any costs incurred by Client while undertaking such audit(s)shall be borne solely by Client. 3.3. Relationship of the Parties. Client hereby authorizes FirsTech to accept payments on behalf of Client for the purpose of fulfilling its obligations hereunder. It is expressly agreed that the parties are independent contractors and that the relationship between the parties shall not constitute a partnership,joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind,or to take any action,which shall be binding on the other, without the prior written consent of the other. 3.4. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster,act of government,strikes or labor disputes, any act of terrorism, act or omission of carriers, including telecommunications carriers, inability to provide telecommunications services or Internet services, power or supplies,or any other similar act or condition beyond its reasonable control ("Force Majeure Conditions"); provided that the party so affected provides prompt notice and uses reasonable efforts to avoid or remove the causes of nonperformance and continues performance hereunder immediately after those causes are removed. In the event that any Force Majeure Condition prevents either party from carrying out its obligations under this Agreement for a period of more than thirty(30) days,the other party may terminate this Agreement upon ten (10) days written notice; provided, however, that if a Force Majeure Condition affects less than all the Payment Outlets, this Agreement may be terminated only with respect to the Payment Outlets which are affected. For the duration of any FirsTech Force Majeure Condition, Client may temporarily obtain services Master Agreement—City of Decatur -3-