Merchant Processing Terms of Service

These Terms of Service (these “Terms”) govern Merchant’s use of the Jack Henry & Associates, Inc. (“JH”) Services. These Terms are a legal contract between JH and the business entity using the Services (“Merchant”). Each party represents and warrants that it has the authority to enter into these Terms and that these Terms do not conflict with any other agreement to which it is a party.


(a) “ACH”: has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.

(b) “Bank of First Deposit”: has the meaning ascribed to the term “depositary bank” in the Check Clearing for the 21st Century Act.

(c) "Business Day”: Monday through Friday, excluding holidays observed by the Federal Reserve System.

(d) “Check”: has the meaning ascribed to such term in the Check Clearing for the 21st Century Act.

(e) “Confidential Information”: the Software programs and documentation used by JH to provide the Services to Merchant and passwords and other information or materials of a confidential and proprietary nature that JH provides to Merchant under these Terms. Confidential Information also includes all information provided by Merchant to JH.

(f) "Documentation”: all operating instructions, policies and procedures, end-user manuals, training materials, guides, implementation manuals, functional and technical specifications relating to the Services and provided to Merchant in writing, including any revisions or additions to the foregoing

(g) "Excluded Activity”: any activity or business which is illegal under U.S. law or with which JH declines to accept and conduct business generally.

(h) “Financial Institution”: as applicable, (i) in a Check Transaction, the Bank of First Deposit, or (ii) in an ACH Transaction, the ODFI.

(i) “Image”: the image that results from an electronic scan of a Check by Merchant.

(j) "Loss” any of the following, directly incurred by a party: losses, liabilities, damages, claims, costs, expenses, and reasonable attorney fees actually paid to a third party.

(k) “Originating Depository Financial Institution” or “ODFI”: has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.

(l) “Reseller”: A third party reseller appointed and authorized by JH to resell and/or deliver the Services to Merchant.

(m) “Rules” means all laws, regulations and industry rules that apply to the Services, including without limitation, the NACHA Operating Rules & Guidelines and associated regulations and guidelines, including those promulgated by any regional payment alliance associated with NACHA, the Check Clearing for the 21st Century Act and associated regulations and guidelines, and Federal Reserve System requirements.

(n) “Same Day Entry” has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.

(o) “Services”: the ACH processing services and/or the Check processing services provided by JH to Merchant under these Terms.

(p) “Settlement Account”: a commercial demand deposit bank account which Merchant has established for JH’s access and use to settle Transactions.

(q) “Software”: the software programs owned by JH and its licensors and provided by JH with or incorporated as part of the Services.

(r) “Substitute Check”: has the meaning ascribed to such term in the Check Clearing for the 21st Century Act.

(s) “Transaction” means an ACH transaction and/or a Check transaction processed by JH under these Terms, as applicable.


2.1 In conjunction with these Terms, Merchant has completed and submitted to JH or Reseller, as applicable, a written application and supporting documentation about Merchant’s business and financial status for JH’s consideration in connection with the account set-up and provision of the Services to Merchant. Merchant acknowledges that JH shall be entitled to rely upon the validity, accuracy and completeness of the information provided by Merchant in its application and supporting documentation for determining (a) if JH will provide the Services to Merchant under these Terms and (b) the credit and account processing standards and limits that JH will apply to the processing of Merchant’s Transactions. Subsequent to the initial acceptance and set-up of Merchant for JH’s provision of the Services, JH may from time to time request that Merchant provide updated information and supporting documentation to JH to confirm Merchant’s then-current business and credit status, which Merchant shall apply best efforts to deliver to JH within three Business Days following receipt of JH’s written request. Any failure by Merchant to provide the information and supporting documentation requested by JH via the application or by other means within a timely manner shall be deemed to be a material breach of these Terms by Merchant. JH will have no liability or responsibility for any errors, fees or penalties incurred in the set up or delivery of Services to Merchant which are caused by inaccurate or incomplete application information and/or supporting documentation or any subsequent written modification thereto.

2.2 When Merchant’s application has been accepted and approved by JH, JH, either directly or through a Reseller, shall provide the Services selected by Merchant in its application. Merchant shall utilize and access the Services in accordance with these Terms and the Documentation. As part of the Merchant set-up and boarding process, JH will provide Merchant with an administrative and gateway user name and password to access the Services. Merchant will designate an administrator who shall be the sole individual vested with the authority to determine who will be authorized to use the Services; establish separate passwords for each user; and establish limits on each user’s authority to access information and conduct Transactions. Merchant is responsible for the actions of its administrator, the authority the administrator gives others to act on Merchant’s behalf, and the actions of the persons designated by the administrator to use the Services. Merchant shall take reasonable security procedures and practices to safeguard the confidentiality of the passwords; limit access to its passwords solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating Transactions without proper authorization and supervision and adequate security controls.

2.3 Prior to submitting a Transaction to JH for processing, Merchant shall secure all authorizations and approvals from its customer and deliver any notifications pertaining to that Transaction which are required by the Rules. Merchant shall be responsible for the accuracy and propriety of all Transactions submitted to JH for processing.

2.4 To the extent reasonably possible, JH will first attempt to process a Transaction as an ACH Transaction, unless the Transaction has clearly been designated to be processed as a Check Transaction, provided that the Transaction fully qualifies to be processed as an ACH Transaction according to applicable Rules and JH has received all of the required information from the Image or Check necessary to process the Transaction as an ACH Transaction. If the Transaction cannot be processed as an ACH Transaction for any reason, then JH will process the Transaction as a Check Transaction.

2.5 Merchant acknowledges that JH has specific processing deadlines imposed by the Financial Institution and ACH operator, as applicable. Files received by the deadline will be transmitted that day to the Federal Reserve Bank for settlement on the effective entry day. Files received after the deadline will be processed the next Business Day. Notwithstanding the foregoing, in the event JH provides Same Day Entry ACH Transaction Services under these Terms, the following terms will apply:

(a) If JH creates the Same Day Entry ACH Transaction file and provides sending point services to the ACH operator, Merchant must transmit the Transactions to JH prior to the published file cutoff time for Same Day Entry ACH Transactions. If JH creates the Same Day Entry ACH Transaction file and Merchant processes the file, Merchant may select the cutoff time; provided, however, that Merchant will allow enough time to receive the file and meet the ACH operator’s Same Day Entry ACH processing windows.

(b) If Merchant’s Same Day Entry ACH Transactions are received by JH after the Same Day Entry ACH Transaction cutoff time but before the standard ACH Transaction cutoff time, the Transactions will be processed as standard ACH Transactions and will be subject to the standard ACH Transaction fees. Same Day Entry ACH Transactions received after the standard ACH Transaction cutoff time will be processed the following Business Day as Same Day Entry ACH Transactions and subject to Same Day Entry ACH Transaction fees.

(c) If Merchant creates the Same Day Entry ACH Transaction file and sends it directly to the ACH operator, JH shall have no liability or responsibility for the transmittal of such Transactions.

2.6 In the event JH provides Check Transaction Services under these Terms, the following terms will apply:

(a) All Checks deposited electronically by Merchant through use of the remote deposit capture Services shall be subject to the following requirements: (i) The original Check will not be deposited through the remote deposit capture Services more than once; (ii) All Checks will conform to the requirements of Merchant’s deposit agreement with its financial institution; and (iii) Merchant shall review and validate the accuracy and completeness of the Check Transaction data being captured, including but not limited to the amount of the Check and the legibility of the Image generated from use of the remote deposit capture Services.

(b) If Merchant utilizes a scanner to create Images which are delivered to JH for processing, Merchant shall be solely responsible to ensure the quality, accuracy and completeness of the Image transmitted to JH for processing. Merchant shall be solely responsible for the selection, use and operation of the scanner. Any scanner used by Merchant with the remote deposit capture Services must meet the technical specifications for scanners published by JH to be deemed compatible with the remote deposit capture Services. JH has certified certain scanners as compatible for use with the remote deposit capture Services, and such scanners are available for purchase or lease by customers of JH’s remote deposit capture Services. Any purchase or lease of such scanners shall be transacted in a separate equipment purchase/lease agreement with JH or JH’s third-party provider.

(c) Merchant shall be solely liable and responsible for all damages, losses, expenses and claims arising from any of the following: (i) Duplication of Images transmitted by Merchant to JH through the remote deposit capture Services; (ii) Alteration of Images not caused by the Services or Software; (iii) Deposit of Checks on accounts with insufficient funds, counterfeit Checks, fraudulent Checks, or Checks bearing unauthorized or forged endorsements; (iv) Acts of fraud, negligence or willful misconduct committed by employees or agents of Merchant in depositing Checks using the remote deposit capture Services; (v) Hardware failure not caused by the Services or Software; and (vi) Merchant’s failure to properly store original Checks once the Image has been captured.

(d) JH is not responsible for printing any Substitute Checks which may be required by a financial institution to receive and process the Transactions. The party who prints a Substitute Check, and not JH, shall be wholly liable for all applicable warranties and indemnification obligations under the Rules. JH shall not be liable for any degradation of a Substitute Check not caused by JH.


3.1 Merchant shall pay JH or Reseller (if Merchant has contracted for the Services to be delivered by a Reseller) the fees, penalties and charges for the Services shown in the then-current standard published fee schedule. All amounts are stated and due and payable in U.S. dollars, and are exclusive of any taxes or other charges which may be imposed by a government entity on the Services, except for taxes due on JH’s or the Reseller’s income. For Services fees invoiced by JH directly to Merchant, JH reserves the right to require Merchant’s payment of these fees due under these Terms via an ACH debit made by JH against Merchant’s Settlement Account or other banking account.

3.2 After the initial twelve-month period of the initial term of these Terms has been completed, if Merchant has not contracted for the delivery of Services through a Reseller, JH reserves the right to increase the Services fee rates once each 12-month period during the term of these Terms by no more than 10% from the previous Services fee rates by giving Merchant at least 60 days prior written notice of such increase. The foregoing limitation on increases does not apply to increases attributable to a change in the Rules that changes JH’s cost for providing the affected Service, pass-thru fees, or third-party costs. If Merchant has contracted with a Reseller for JH’s provision of the Services to Merchant, then any price increases in the Services fee rates will be determined and applied in accordance with the written agreement between Reseller and Merchant.


4.1 Each Party shall protect and maintain the confidentiality of all Confidential Information under these Terms and comply with the security procedures described in these Terms and in any JH policies and procedures communicated in writing to Merchant. Merchant acknowledges that the purpose of these security procedures is for verification of authenticity of a Transaction and not to detect an error in the transmission or content of a Transaction. No security procedure for the detection of any such error has been agreed upon between JH and Merchant. Merchant is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions.

4.2 Merchant understands that the password and Services access and use instructions provided by JH are confidential and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any party whatsoever except for JH, whether such disclosure of use are on account of Merchant’s negligence or are deliberate acts. Merchant acknowledges that no person from JH will ever ask for any password and that JH employees do not need and should not ask for Merchant’s password.

4.3 Merchant shall change its password periodically and whenever anyone who has had access to a password is no longer employed or authorized by Merchant to use the Services. JH may require Merchant to change its password at any time. JH may deny access to the Services without prior notice if it is unable to confirm to its satisfaction any person’s authority to access the Services or if JH believes such action is necessary for security reasons.

4.4 Merchant acknowledges that the Services and Software provided by JH under these Terms incorporates trade secrets of JH and its licensors, and as such is protected by civil and criminal law. Merchant shall notify JH immediately of the unauthorized possession, use or knowledge of any item supplied under these Terms by any person or organization not authorized by these Terms to have such possession, use or knowledge. JH shall have, in addition to any other remedies available to it at law or equity, the right to seek injunctive relief enjoining any wrongful use or possession of the trade secrets contained in the Services or Software by any party. Merchant acknowledges that irreparable harm will occur to JH in the event of such wrongful use or possession of the trade secrets contained in the Services or Software and that other remedies are inadequate.


5.1 In accordance with data privacy Rules applicable to these Terms, which may include but not be limited to the Gramm-Leach-Bliley Act (“GLBA”), JH shall not disclose or permit access to or use of the non-public personal information made available by Merchant to JH for any purposes other than those specifically required to fulfill JH's contractual obligations with Merchant. JH shall not sell such information for any reason. In connection with providing Services to Merchant, JH shall take all commercially reasonable steps to ensure the privacy and security of the non-public personal information made available by Merchant to JH and protect such information against anticipated threats and hazards to the security of such information. JH shall take all commercially reasonable steps to prevent unauthorized access to or use of such information. In the event any court or regulatory agency seeks to compel disclosure of such information, JH shall, if legally permissible, promptly notify Merchant of the disclosure requirement and will cooperate so that Merchant may at its expense seek to legally prevent this disclosure of the information.

5.2 If a breach of security results in an unauthorized intrusion into JH’s systems which directly and materially affects Merchant, JH will take appropriate measures to stop the intrusion; report on the intrusion to Merchant within a reasonable time after discovery of the intrusion; subsequently report the corrective action taken by JH in response to the intrusion; and provide reasonable assistance to Merchant to support any mandatory disclosures about the intrusion by Merchant to its customers required by law. If JH has notified law enforcement agencies about the intrusion, JH may delay its notification of the intrusion to Merchant until authorized to do so by the law enforcement agencies.

5.3 In the event Merchant is a “Covered Entity” or a “Business Associate,” as such terms are defined in the Health Insurance Portability and Accountability Act (“HIPAA”), Merchant acknowledges and agrees that HIPAA does not apply to the Services and activities in which JH is engaged under these Terms.


6.1 Merchant shall immediately reimburse JH for any returns or shortfalls that occur in the Settlement Account. JH reserves the right to delay the availability of funds for deposit without prior written notice to Merchant if, in its sole discretion, JH deems itself at financial or relative risk for any and all Services performed under these Terms. Merchant hereby acknowledges and agrees that JH shall have a right of setoff against: (a) any amounts JH would otherwise be obligated to deposit into the Settlement Account; and (b) any other amounts JH may owe Merchant under these Terms.

6.2 JH will not knowingly provide Services to Merchant if Merchant’s use of the Services involves or pertains to an Excluded Activity. JH reserves the right to decline to process any Transaction which it deems in its sole discretion is in conjunction with an Excluded Activity.

6.3 JH reserves the right to hold, freeze or otherwise limit access by Merchant or JH to any settlement funds, Transactions or proceeds thereof for the purposes of complying with any court, regulatory agency or government authority order or request.

6.4 JH reserves the right to withdraw the Services provided generally to its customers including Merchant for individual Transaction types from general market availability and coverage under these Terms upon 90 days prior written notice to Merchant.


7.1 Each party represents and warrants to the other that it has (a) taken all corporate action necessary for the authorization and performance of these Terms, and (b) no agreement or understanding with any third party that may prevent, prohibit, or substantially hinder its performance of its obligations under these Terms.

7.2 JH warrants to Merchant that the Services will be performed in a professional and timely manner consistent with transaction processing industry standards and in accordance with the Rules and Documentation. In the event that Merchant discovers an error in the Services or Software which has been caused by JH, if Merchant has contracted directly with JH for the Services, Merchant shall immediately notify JH of the existence and details of the error; if Merchant has contracted with a Reseller for the Services, then Merchant shall provide this notification to Reseller. JH shall apply commercially reasonable efforts to correct the error within a reasonable time after JH’s receipt of notification of the error. EXCEPT FOR THE FOREGOING WARRANTY, JH MAKES NO OTHER WARRANTIES FOR THE SERVICES PROVIDED BY JH AND JH DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JH does not guarantee the completeness or accuracy of the information provided from a third-party database. JH shall have no liability to Merchant for any invalid customer or Transaction information provided by Merchant or Transactions returned unpaid to Merchant.

7.3 Merchant warrants to JH that: (a) all Transactions submitted to JH for processing will comply with applicable Rules and Documentation; (b) Merchant will comply with all Rules and Documentation applicable to Merchant’s obligations under these Terms; (c) all information provided by Merchant initially in its application and supporting documentation and subsequently in all updates to its application and supporting documentation provided to JH is valid, complete, accurate and up-to-date; (d) it will not utilize the Services in conjunction with any Excluded Activity; and (e) if applicable, Merchant is registered as a Money Services Business (“MSB”) with US Department of Treasury Financial Crimes Enforcement Network (“FinCEN”) and it is registered as an MSB and / or licensed as required by the applicable state MSB laws; Merchant shall maintain all state licenses in good standing; and Merchant will not originate a transaction in or to a state in which Merchant is not a fully licensed and in good standing.


8.1 JH shall indemnify, defend and hold harmless Merchant for Losses from third-party claims against Merchant that, during the term of these Terms, the Software or Services, owned by JH, infringe any valid United States copyright, patent, trademark, trade secret, or other proprietary right of any entity or individual. If Merchant is enjoined or otherwise prohibited from using any such Software or Services as a result of, or in connection with, any claim described in this section, JH shall, at its sole expense and at its sole option, promptly (a) procure for Merchant the right to continue to use such Software or Processing Services, (b) modify such Software or Processing Services so that it becomes non-infringing, without substantially diminishing the form, features, functionality, or performance of the Software or Processing Services, or (c) replace such Software or Processing Services with Software or Processing Services that are non-infringing, with materially equivalent features, functionality, and performance. If JH cannot, within a reasonable period of time, procure, modify, or replace the Software or Processing Services involved, JH may terminate Merchant's right to use such Software or Processing Services after giving Merchant advance notice, if possible under the circumstances. THE PROVISIONS OF THIS SECTION STATE JH’S ENTIRE LIABILITY AND MERCHANT’S EXCLUSIVE REMEDY FOR JH’S INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

8.2 Merchant shall indemnify, defend and hold harmless JH and the Financial Institution from and against all Losses incurred by JH and/or the Financial Institution arising out of (a) Merchant’s breach of these Terms or the Rules; (b) return of a Transaction due to incorrect or incomplete data or information provided by Merchant in the submission of the Transaction to JH, a closed Merchant or customer account, or insufficient funds in a Merchant or customer account, and/or (c) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Transactions by Merchant or a third party who has gained access to the Services through the use of Merchant’s password.

9 LIMITATIONS OF LIABILITY: IN NO EVENT SHALL JH OR THE FINANCIAL INSTITUTION BE LIABLE TO MERCHANT OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except for JH’s indemnification liability stated in Section 8.1 above and actual, direct damages arising from any action or omission of action by JH which constitutes the gross negligence or willful misconduct of JH, JH’s aggregate, cumulative liability to the Merchant for all claims of actual direct damages relating to the Services, these Terms, or the relationship between JH and Merchant, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees paid by the Merchant to JH or a Reseller (as the case may be) for Services delivered under these Terms during the three-month period preceding the origination of the claim giving rise to liability.


10.1 These Terms shall take effect upon Merchant's use of the Services and continue in effect as long as Merchant uses the Services. Merchant is not obligated to use the Services and, if applicable, these Terms shall have no effect upon the expiration of termination of Merchant's agreement with Reseller.

10.2 These Terms shall terminate upon either party giving the other party written notice of the breach of these Terms committed by the other party and giving the other party a reasonable time to cure the breach. For the purpose of these Terms, a reasonable time to cure the breach specified in the written notice shall be deemed to be:

(a) For any breach of Sections 2.1, 2.2, 3.1, 4, 6.1, or 7.3 above: five business days from receipt of written notice.

(b) For all other types of breach of these Terms, except as provided below: 30 calendar days from receipt of written notice of the breach.
Notwithstanding the foregoing, in the event either party materially breaches any provision of these Terms by fraud, act of intent to defraud, failure to notify the other party of a material change in party’s financial structure or a material change in the information originally provided to induce the other party to enter into the Agreement, the non-breaching party may immediately terminate these Terms in writing without giving the breaching party an opportunity to cure the breach with prior written notice.

10.3 JH reserves the right to terminate these Terms in whole or in part at any time due to the occurrence of any of the following:

(a) Merchant becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights, any of which in JH’s reasonable judgment impairs the ability of Merchant to perform its responsibilities under these Terms;

(b) In JH’s sole but reasonable discretion, JH determines that providing the Services to Merchant falls outside JH’s risk tolerance based on, but not limited to, any of the following: (i) JH has knowledge of a material degradation or other materially negative change in Merchant’s financial status, structure, or business operations; (ii) JH has knowledge that indicates it is likely to experience a financial loss or reputational harm; or (iii) JH has knowledge of or reasonably suspects Merchant’s involvement in suspicious or fraudulent activity;

(c) There is a change in the Rules that are applicable to these Terms and JH’s provision of any of the Services which restricts or prohibits JH from providing the affected Services to Merchant or significantly increases JH’s costs in providing the affected Services to its customers generally;

(d) Merchant’s business and/or assets are acquired by a competitor of JH;

(e) In JH’s sole judgment, Reseller fails to comply with Reseller’s underwriting and/or other due diligence obligations applicable to Merchant;


(f) The agreement between JH and Reseller is terminated or expired.

In instances 10.3(a)-(e), JH will provide written notice of the termination on the applicable basis to Merchant, which shall become effective upon receipt by Merchant. In instance 10.3(f), termination shall become effective immediately upon termination or expiration of the agreement between JH and Reseller.


11.1 Governing Law; Venue: These Terms are governed by and will be construed in accordance with the laws of the State of Missouri, without reference to its conflict of laws provisions. The United Nations Convention on Contracts in the International Sale of Goods shall not apply to these Terms. Merchant consents to jurisdiction and venue of all state and federal courts located in the State of Missouri, waives notice and service of process, and agrees that valid service of process in any Missouri court proceeding is confirmed upon notice.

11.2 Publicity and Marketing Efforts: Neither party shall issue any press release, public endorsement, public announcement, or other public statement arising out of or relating to these Terms or the relationship of the parties, without the prior written consent of the other party. Merchant acknowledges and agrees that these Terms does not include any rights to participate in any JH events, trade shows, or other marketing efforts. Any such rights must be mutually agreed upon in a separate agreement.

11.3 Trademarks: Each party agrees that it will not use the names, trademarks, or service marks (“Marks”) of the other party in any medium or manner, without the prior written consent of the other party. Each party agrees it will not use the other party’s Marks in a manner which misappropriates or infringes any third-party’s Marks, or which may reasonably be anticipated to diminish the value of a Mark or the owning party’s rights therein. Without limiting the foregoing, Merchant shall only use the JH Marks in accordance with the JH Trademark Usage Guidelines, as in effect from time to time.

11.4 Notice: Any notice required under these Terms must be in writing and is deemed received on the Business Day after (i) delivered to the appropriate address by hand or by nationally recognized overnight courier service, (ii) sent electronically via a commercially reasonable method to the attention of the undersigned or designated contact, or (iii) received or rejected by the addressee if sent by certified mail, return receipt requested, in each case to the addresses and marked to the attention of the person (by name or title) designated on the application (or to another address, facsimile number, or person as a party may designate by notice to the other party). Merchant shall also deliver a copy of any notice to the attention of JH’s Legal Department at

11.5 Relationships; Third Party Beneficiaries: The parties are independent contractors and have no legal right or authority to make any binding commitments on behalf of each other. Each party is responsible for providing insurance, workers compensation, and other benefits to its own personnel. Nothing in these Terms creates any third-party beneficiaries.

11.6 Subcontractors: JH may use subcontractors at its discretion. JH is responsible for the performance of its subcontractors to the same extent as if JH itself performed the activity itself.

11.7 Assignment: These Terms bind and benefit the parties and their successors and assigns and may not be assigned or transferred by Merchant voluntarily, involuntarily, or by operation of law without the written consent of JH.

11.8 Force Majeure: Except with respect to delays or failures caused by the negligent act or omission of either party, and except for the payment of amounts due under these Terms, any delay in or failure of performance by either party under these Terms will not be considered a breach of these Terms and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, acts of terrorism, power outages, failures of the Internet, and ; failures of the Financial Institution, ACH or Federal Reserve Bank system network, provided that the party affected by such event shall immediately begin or resume performance as soon as practicable after the event has abated. Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. In the event that the party experiencing the force majeure event is not able to resume performance within 10 business days after the force majeure event has commenced, the other party shall have the right to terminate these Terms immediately upon written notice to the party experiencing the force majeure event.

11.9 Drafting: References to sections, subsections, and exhibits refer to the sections, subsections, and exhibits of these Terms. References to a particular section of these Terms refer to all of its subsections. All provisions of these Terms will be construed as consistent with one another whenever possible. Whenever the context requires, the singular number will include the plural and vice versa, and any gender will include both genders. The words “include”, “includes”, “included” and “including” and variations are terms of inclusion without limitation. The captions and headings are for convenience only and will not affect the interpretation of these Terms. The parties have jointly negotiated and drafted these Terms. No presumption or burden of proof will favor or disfavor either party by virtue of authorship.

11.10 Time Limitation on Cause of Action: No action arising out of these Terms may be brought by Merchant or JH more than two years after the cause of action has accrued. The prevailing party in any litigation conducted in relation to these Terms will be entitled to recover its reasonable attorneys’ fees from the other party.

11.11 Entire Agreement: These Terms, along with the terms in the EPS Application for Payment Processing if applicable, supersede all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter and contains the entire agreement between the parties with respect to the subject matter.

11.12 Amendments: These Terms can be modified or altered by JH at any time without notice. Merchant's continued use of the Services shall constitute acceptance of any additional modifications, amendments, and new terms.

11.13 Waiver. Waiver of any provision of these Terms is not a waiver of any other provision, nor is a waiver of any breach of these Terms construed as a continuing waiver of other breaches of the same or other provisions of these Terms.

11.14 Survival. All provisions in these Terms which by their nature and intent should survive expiration or termination, including, but not limited to, Confidential Information and Security Procedures, Limitations of Liability, Indemnification, Pricing and Payment, Warranties, and Recoupment and Setoff, will survive the expiration or termination of these Terms.

11.15 Severability. If any provision of these Terms becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of these Terms will continue in full force and effect and the application of the provision to other persons or circumstances will be interpreted so as to reasonably effect the intent of the parties.