11. TERMINATION. This Agreement and all obligations of the Company hereunder may be canceled byCompany in the event IAD fails to comply with the terms of this Agreement. IAD may terminate thisAgreement prior to the end of the then current term, provided IADs gives Company 90 days advanced notice and pays Company any outstanding fees. Any unpaid charges are subject to debit from monthly commissions or ACH. IAD hereby authorizes Company to collect any unpaid balance due on the termination date by electronic fund transfer from IAD's clearing account.
12. ATTORNEY'S FEES. If legal action is instituted to enforce or interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to costs, such sums as the court may adjudge reasonable for legal fees at trial and on any appeal there from.
13. COMPANY NOT FINANCE AGENT. IAD understands and agrees that Company is not an agent of anyfinancing party for ATM purchases, that it has no authority to act on behalf of any financing party, and that it is not authorized to waive or alter any term or condition of any ATM financing.
14. COMPANY'S LIMITED LIABILITY TO IAD.
a) Company will use ordinary care in providing transaction processing service and will, at Company'sexpense, correct any errors that are due solely to Company's personnel. However, the expense of correctingsuch errors incurred by Company shall be the only responsibility of Company occasioned by its performanceor non-performance of its obligations under this Agreement, and IAD agrees to accept the correction oferrors by Company as its sole and exclusive remedy. IAD may not assert any claim against Company afterone (1) year from the date that IAD has or should have had knowledge of facts giving rise to such claim orany loss.
(b) Company shall have no liability to third parties for any damages incurred by such third partiesarising out of the performance or non-performance of services under this Agreement, and IAD agrees to andhereby shall indemnify and hold Company harmless of, from and against any and all liability, claims, causesof actions or expenses relating thereto including Company's attorneys' fees in connection therewith.
(c) EXCEPT AS PROVIDED IN THIS PARAPGRAPH 14, IAD UNDERSTANDS AND AGREES THAT COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE ATM, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THE SERVICES RENDERED TO IAD. COMPANY SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE FOR ANY LOST PROFITS OR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, ADDITIONAL, OR PUNITIVE DAMAGES OF IAD, OR ANY OTHER LIABILITY ARISING OUT OF ANY BREACH OF THIS AGREEMENT.
15. INDEMNIFICATION. IAD shall indemnify Company and hold Company, and its officers, directors,employees, agents, and independent contractors, harmless of, from and against any and all claims, liabilities, costs, attorney's fees, losses or expenses, directly arising or resulting from the training, coaching, installation, use, maintenance, or removal of the ATM or the services covered by this Agreement accruing after the date hereof and/or from IAD's breach of this Agreement, except to the extent such claim, liability, cost, loss or expense, or a portion thereof arises directly from the gross negligence or willful misconduct of Company, its officers, agents, or employees. This provision shall survive termination of this Agreement.
16. ASSIGNMENT. This Agreement may be assigned by Company or IAD with Company's prior written consent. Company reserves the right, in its sole discretion, to delegate or assign to third parties theperformance of certain of Company's servicing and settlement obligations to IAD. In the event of any such
delegation, the provisions of this Agreement applying to Company shall apply equally to such third party inthe performance of such services including, but not limited to, the limited liability, indemnification, and forcemajeure provisions hereof.
17. FORCE MAJEURE. Neither party shall be considered in default in the performance of its obligation shouldits performance thereof be delayed or prevented by force majeure. "Force majeure" shall include, but shallnot be limited to: hostilities, restraint of rules or peoples, revolution, civil commotion or riots, strike orlockout, epidemic, accident, fire, flood, earthquake, wind storm or explosion, lack of or failure oftransportation facilities, lack of or failure of power facilities, regulation or ordinance, demand orrequirements of or denial of approval by any government or governmental agency having or claiming tohave jurisdiction over the subject matter of this Agreement or the parties, or any act of God, or any act ofgovernment, or any cause, whether of the same or different nature existing or future, which is beyond thecontrol and without the fault or negligence of the parties.
20. NETWORK CHARGEBACKS. IAD acknowledges that Company does not process cash transactions, butthat the same are processed by the cardholder's financial institution or others. In the event any transactionor daily settlement amount is disputed by a cardholder's (customer's) financial institution or the processorand, as a result, charged back by that financial institution or processor, IAD hereby agrees to submit required ATM journals as proof of claim. IAD further authorizes and approves charging the amount of any such dispute, plus any assessed fees, directly to the IAD's clearing account, as identified in the ATM Depot ACH form or, the amount of any such dispute may, at Company's discretion, offset and reduce any transaction processing fees, daily settlements or remaining surcharge revenue due IAD under paragraphs 3 and 4 above. Notwithstanding, Company shall exert reasonable efforts to assist in the resolution of any dispute.
18. TRADE SECRETS. The processing services provided by Company consist in part of computer programs,procedures, forms, and other related materials which have been acquired, licensed to or developed byCompany at substantial expense. IAD acknowledges that the foregoing are trade secrets which are of great
value to Company, and disclosure to others of any of the training programs, procedures, forms, and other related materials with respect thereto will result in loss and irreparable damage to Company. IAD, therefore, agrees not to disclose to others any information regarding such process, except as required in the properperformance of this Agreement. All specifications, online programs, service and trademarks, and relatedmaterial developed by or for Company in connection with this Agreement shall be the property of Company.
19. RELATIONSHIP OF PARTIES. It is not the intention or the purpose of this Agreement nor shall anyprovision herein create nor shall the same be construed as creating any type of partnership or joint ventureof the parties hereto.
20. WAIVER. A waiver by either party of a breach of any provision of this Agreement shall not constitute awaiver or prejudice of the parties' rights to otherwise demand strict compliance with this Agreement andany and all provisions hereof.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties hereto. There areno other promises, representations, terms, conditions or obligations other than those contained herein. ThisAgreement supersedes all prior communications, representations or agreements, oral or written, betweenthe parties and shall not be modified except in writing signed by each party.
( a ) ASSIGNMENT. It is understood and agreed that if IAD sells any ATMs associated with this agreementor its ATM Business, this agreement and each individual ATM Operator Agreement shall remain in force forthe new ATM Operators throughout its remaining or renewed term.
22. COUNTERPARTS. This Agreement may be executed in one or more counterparts, which counterpartsshall together constitute one and the same instrument. A true and complete facsimile copy of this Agreement
and any signature affixed hereto shall be legally effective for all purposes.
23. NOTICES. Any notices to be given under this Agreement shall be deemed adequate if given in writingand sent by certified or registered international mail, by recognized air courier, or by facsimile transmittalat a fax number known to be maintained by the party to whom notice is to be given, coupled with a copy ofthe fax confirmation sheet. Notice shall be deemed given when it is received.
24. MISCELLANEOUS. This Agreement shall bind and insure to the benefit of each of the parties and theirsuccessors, representatives, and heirs. This Agreement sets forth the entire agreement of the parties withrespect to its subject matter and shall supersede any prior discussions, understandings and agreements. No waiver or modification to this Agreement shall be effective unless it is in writing, signed by the parties. Thisagreement shall be deemed to have been made in the State of California and shall be governed by its laws.No provision of this Agreement shall be interpreted or construed against any party because such party orits legal counsel was the drafter thereof. If any part of this Agreement is held invalid or unlawful by a courtof competent jurisdiction, the remainder of the Agreement shall remain in full force and effect.