|
either party, provide a written and reasoned opinion explaining his or her decision. The arbitrator shall apply the rules of
<br />the arbitration organization selected, as applicable to matters relating to evidence and discovery, not the federal or any
<br />state rules of civil procedure or rules of evidence. The arbitrator's decision shall be final and binding, except for any rights
<br />of appeal provided by the FAA or if the amount of the award exceeds US $100,000, in which case either party can appeal
<br />that award to a three-arbitrator panel administered by NAF or AAA, as applicable, which shall reconsider de novo any
<br />aspect of the initial award requested by majority vot6 and whose decision shall be final and binding. The decision of that
<br />three-person panel may be appealed as provided by the FAA. The costs of such an appeal shall be borne by the
<br />appellant regardless of the outcome of the appeal. Judgment upon the award rendered by the arbitrator may be entered
<br />in any state or federal court in the federal judicial district where your headquarters or your assets are located.
<br />i. Confidential Proceedings. The arbitration proceeding and all testimony, filings, documents, and any information relating
<br />to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other
<br />party. All offers, promises, conduct, and statements, whether written or oral, made in the course of the negotiations,
<br />arbitrations, and proceedings to confirm arbitration awards by either party, its agents, employees, experts or attorneys, or
<br />by the arbitrator, including any arbitration award or judgment related thereto, are confidential, privileged, and inadmissible
<br />for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or
<br />non-parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or
<br />non-discoverable as a result of its use in the negotiation or arbitration.
<br />j. Split Proceedings for Equitable Relief. Either you or we may seek equitable relief in arbitration prior to arbitration on
<br />the merits to preserve the status quo pending completion of such process. This section shall be enforced by any court of
<br />competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, including legal fees,
<br />to be paid by the party against whom enforcement is ordered. Except as otherwise provided in section 7.c. above, if any
<br />portion of this section 7 (other than section 7.c. or d.) is deemed invalid or unenforceable, it shall not invalidate the
<br />remaining portions of this section 7, the Agreement, or any predecessor agreement you may have had with us, each of
<br />which shall be enforceable regardless of such invalidity.
<br />8. MISCELLANEOUS
<br />a. Confidentiality. You must keep confidential and not disclose to any third party the provisions of the Agreement and any
<br />information that you receive from us that is not publicly available.
<br />b. Proprietary Rights and Permitted Uses. Neither party has any rights in the other party's Marks, except as otherwise
<br />expressly specified in the Merchant Regulations, nor shall one party use the other party's Marks without its prior written
<br />consent, except that we may use your name, address (including your website addresses or URLs), and customer service
<br />telephone numbers in any media at any time.
<br />C. Your Representations and Warranties. You represent and warrant to us that: (i) you are duly organized, validly
<br />existing, and in good standing under the laws of the jurisdiction in which you are organized; (ii) you are duly qualified and
<br />licensed to do business in all jurisdictions in which you conduct business; (iii) you have full authority to enter into the
<br />Agreement and all necessary assets and liquidity to perform your obligations and pay your debts hereunder as they
<br />become due; (iv) there is no circumstance threatened or pending that might have a material adverse effect on your
<br />business or your ability to perform your obligations or pay your debts hereunder; (v) you are authorized to enter into this
<br />Agreement on behalf of your Establishments and Affiliates, including those indicated in this Agreement, and the individual
<br />who signs this Agreement or otherwise enters into it has authority to bind you and them to it; (vi) you are not (1) listed on
<br />the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons
<br />List (available at www.treas.gov/ofac), (2) listed on the U.S. Department of State's Terrorist Exclusion List (available at
<br />www.state.gov), or (3) located in or operating under license issued by a jurisdiction identified by the U.S. Department of
<br />State as a sponsor of international terrorism, by the U.S. Secretary of the Treasury as warranting special measures due
<br />to money laundering concerns, or as noncooperative with international anti-money laundering principles or procedures by
<br />an intergovernmental group or organization of which the United States is a member; (vii) you have not assigned to any
<br />third party any payments due to you under this Agreement; (viii) all information that you provided in connection with this
<br />Agreement is true, accurate, and complete; and (ix) you have read this Agreement and kept a copy for your file. If any of
<br />your representations or warranties in this Agreement becomes untrue, inaccurate, or incomplete at any time, we may
<br />immediately terminate this Agreement in our discretion.
<br />d. Compliance with Laws. You shall comply with all applicable laws, regulations, and rules.
<br />e. Governing Law; Jurisdiction; Venue. The Agreement and all Claims are governed by and shall be construed and
<br />enforced according to the laws of the State of New York without regard to internal principles of conflicts of law.
<br />Notwithstanding the immediately preceding sentence, the parties agree that an electronic transmission contemplated
<br />hereunder is being provided in connection with a transaction affecting interstate commerce that is subject to the
<br />federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §1700 et seq (E-Sign Act). The
<br />parties intend that the E-Sign Act apply to the fullest extent possible to validate their ability to electronically transmit
<br />and electronically commit to be bound by the obligations and form assent described in the Merchant Regulations and
<br />releases of scheduled changes therein. Subject to section 7, any action by either party hereunder shall be brought
<br />only in the appropriate federal or state court located in the County and State of New York. Each party consents to the
<br />exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.
<br />f. Interpretation. In construing the Agreement, unless the context requires otherwise: (i) the singular includes the plural
<br />and vice versa; (ii) the term "or" is not exclusive; (iii) the term "including" means "including, but not limited to;" (iv) the term
<br />"day" means "calendar day;" (v) any reference to any agreement (including the Agreement), instrument, contract, policy,
<br />procedure, or other document refers to it as amended, supplemented, modified, suspended, replaced, restated, or
<br />notated from time to time; (vi) all captions, headings, and similar terms are for reference only. To the extent possible,
<br />these General Provisions, the provisions of Schedule A, and the provisions of the Merchant Regulations shall be
<br />interpreted to give each their full effect. However, if a conflict is deemed to exist between them, then that conflict shall be
<br />resolved in the following order of precedence: Schedule A and any accompanying exhibits shall control over these
<br />General Provisions or the Merchant Regulations (or both) and the Merchant Regulations shall control over these General
<br />201108 MTPA Terms and Conditions Page 32 of 35 CONFIDENTIAL
|