WHEREAS, Client offers its customers the right to pay amounts due over time pursuant to the terms of a written contract (individually the “Contract” and collectively the “Contracts”).
WHEREAS Member Solutions is a billing and servicing company that services contracts and processes amounts due under contracts assigned to it by its clients, and remits the amounts processed, less its fees, to its clients.
WHEREAS Client wishes to engage Member Solutions as its exclusive agent to service the Contracts, and process payments due thereunder, and Member Solutions is willing to undertake such activities, on the terms and conditions contained herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Agency. Client appoints Member Solutions as its exclusive agent for the collection of periodic charges (“Periodic Payments”) from all of those persons (“Customers”) who have agreed to make such Periodic Payments pursuant to the applicable Contracts and authorizes Member Solutions to take all actions and execute all necessary documents relating to the billing, processing and servicing of the Contracts, including: contacting Customers via email, phone and printed correspondence; Member account management, including freezing memberships and processing cancellation requests, processing due date and payment method change requests, processing relocation requests and medical claims verification; providing an online portal to facilitate Customers making payments, updating personal and payment information, viewing payment history and communicating with Member Solutions’ customer service representatives (collectively, the “Services”).
Permissible Transactions; Prohibited Actions. Member Solutions will only process transactions with respect to services provided by Client to Customers generally in the course of Client’s business and will not process transactions or otherwise transfer money between a Member and Client that does not result from a Member’s purchase of services from Client. Client may not utilize the Services to provide cash advances to Customers or to facilitate the purchase by Customers of cash equivalents (e.g. traveler’s checks, money orders); provided, however, that Client may use the Services to facilitate the purchase by Customers of a gift certificate or stored value card generally made available by the Client. Client agrees not to: (a) establish a minimum or maximum purchase amount as a condition for Member’s use of the Services; (b) separately process the debiting or charging to a Member (a “Transaction”) the amount of any tax applicable to the purchase of services from the Client; or (c) submit to Member Solutions a Transaction that was previously returned as a chargeback. Client agrees to only to process Transactions through the Services related to its business operations. Client will not utilize the Services, directly or indirectly, in connection with the sale, distribution, display, promotion or dissemination of services or materials which: is unlawful; is in violation of card network, bank or other similar rules; is associated with any form of adult, sexually oriented, or obscene materials or services; infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; is threatening, abusive, harassing, defamatory or obscene; impersonates any person or entity, including but not limited to imitation and replica products such as those with respect to clothing and accessories; contains harmful content; is associated with the sale of weapons or related products; is associated with the sale of securities; or is associated with the sale of hazardous materials.
Servicing. Member Solutions accepts the appointment and agrees that on the agreed upon date(s) of each calendar month (or the next banking day if the agreed upon date(s) fall on non-banking days during the term of this Agreement), Member Solutions will submit to various applicable payment networks data in the form required for the electronic debiting of Periodic Payments from Customers’ bank deposit or credit card accounts. Member Solutions expressly disclaims all representations and warranties as to collectability of the Periodic Payments. Member Solutions has no responsibility to Client to investigate the background or to confirm the identity of Customers, except to the extent required by applicable law. Member Solutions may refuse to provide services in respect of any Contract at any time and for any reason.
Authorization. Client will obtain from each participating Member the necessary information, in proper form, authorizing automatic entries to such Member’s bank deposit or credit card account to transfer Periodic Payment amounts. Client will indemnify and hold Member Solutions and its directors, officers, agents, employees, affiliates subsidiaries, and successors in interest harmless from and against all claims, damages, losses, penalties, and expenses (including without limitation attorneys’ fees), resulting from or related to Client’s failure to obtain such authorizations. As required by Member Solutions’ underwriting requirements, to enable Member Solutions to determine creditworthiness, each person listed in this Agreement as owner or contact specifically authorizes Member Solutions to (i) request credit reports from reputable credit reporting agencies and authorizes such credit reporting agencies to disclose such information, including personal credit history, to Member Solutions and (ii) to conduct background and OFAC checks (Office of Foreign Assets Control of the US Department of the Treasury). This authorization shall remain valid for the duration of the Client’s relationship with Member Solutions. Member Solutions warrants that it will not share such information with any third party. In addition, Client authorizes Member Solutions, and its designees, to make any inquiries it deems necessary in connection with this application. Client further authorizes any person or Member reporting agency to complete and furnish Member Solutions any information that it may have or obtain in response to such inquiries.
Disbursements. Client may choose up to two (2) of the permitted funding dates, being the 5th, 10th, 15th, 20th and 25th of each month, whereby 80% of Net Collections (as defined in Section 6) then available are paid to Client (“Scheduled Advance”). Scheduled Advances in excess of two (2) per month are available to Client for a fee indicated in the applicable fee schedule (the “Fee Schedule”) for each additional Advance. Scheduled Advances to be processed on dates not specified herein (“Special Advance”) may be requested by Client for an additional fee, as indicated in the Fee Schedule. Such Special Advances may be scheduled between the 2nd and 25th of any month. Member Solutions will disburse to Client all remaining Net Collections (as defined in Section 6) on the first (1st) business day of each month.
Payment for Services Rendered. Member Solutions will, and Client hereby authorizes Member Solutions to, retain a percentage of all amounts processed based on the billing method chosen by Client as payment for services rendered pursuant to this Agreement and the schedule hereto. The total amount processed less the sum of all Member Solutions’ fees and any other authorized charges is defined as “Net Collections.” If Member Solutions accepts a Contract where payment is past due at the time of assignment, Member Solutions may charge a one-time fee in the amount indicated in the Fee Schedule for each past due Contract accepted to offset additional servicing costs. For processing and paying any refund authorized by Client, Member Solutions shall charge Client the amount set out in the Fee Schedule over and above the principal amount of such refund. Member Solutions reserves the right to increase credit card rates on ten (10) days’ notice if credit card processing costs increase. Commencing on the first of the month that is three (3) months after the Effective Date and continuing during the term of this Agreement, the minimum monthly fee payable to Member Solutions shall be the minimum monthly amount indicated in the Fee Schedule. Member Solutions reserves the right to impose a surcharge for statement accounts. Member Solutions will charge the amount indicated in the Fee Schedule for each Contract entered into its system by a Member Solutions staff member. There is no charge for contracts entered online by Client via a Member Solutions product. Beginning the first month that member data is stored by Member Solutions; a monthly data security / regulatory compliance fee, as set forth in the Fee Schedule, will be charged to Client. In addition, Member Solutions may charge reasonable fees to the Customers such as late or declined payment fees, etc. Such fees shall be excluded from the computation of Net Collections. Member Solutions may change the fees it charges and/or the Fee Schedule upon thirty (30) days’ prior written notice to Client. Failure by Client to notify Member Solutions of receipt of a direct payment within ten (10) days of receipt of such payment will result in an additional charge to Client for the amount indicated in the Fee Schedule. If Client accepts a payment directly under an assigned Contract, Client shall immediately notify Member Solutions. In such case, Member Solutions will charge the Client, or deduct from Net Collections, any applicable fees due with respect to that payment in connection with such Contract.
Authorized Account; Settlement. At the time of execution of this Agreement, Client will provide Member Solutions with valid bank account and/or credit card information (the “Authorized Account”). Client accepts full financial responsibility for the amount of any debit entries returned unpaid to Member Solutions, irrespective of the reason for the return. Notwithstanding anything else herein to the contrary, Client knowingly and irrevocably authorizes Member Solutions to deduct from Net Collections and/or charge electronically Client’s Authorized Account on file with Member Solutions any amounts due to Member Solutions that remain outstanding beyond the dates set forth herein.
Chargebacks etc.; Reserve. If Member Solutions is notified of a payment that has been reversed, charged back, stopped or is unable to be processed for any reason and Member Solutions has already remitted payment to the Client, Client authorizes Member Solutions to deduct all such amounts previously remitted from the Authorized Account and, in in the event Member Solutions is unable to debit such amounts against the Authorized Account for whatever reason, Client shall reimburse Member Solutions for such amounts within ten (10) days of notice by Member Solutions. Client warrants that it shall, at all times, maintain a sufficient balance in the Authorized Account to cover returned debit entries. Client authorizes Member Solutions to establish and maintain a reasonable reserve for chargebacks, stop payment orders and other disputed items. Member Solutions will furnish Client with regular, timely and complete documentation showing what portion, if any, of the funds being retained have been applied to such chargebacks, stop payment orders and disputed items. Upon notice of non-renewal or termination, Member Solutions may establish a reserve in an amount equal to 25% of Net Collections to cover post-termination chargebacks and other disputed items (the “Post-Term Reserve”). Member Solutions may maintain such Post-Term Reserve for a period not to exceed ninety (90) days. If Member Solutions incurs fees or expenses in excess of any reserve, Client agrees to reimburse Member Solutions for all such fees within ten (10) days of notice by Member Solutions. If Member Solutions declines to service a Contract, no cancellation fee will be charged.
Past Due Accounts.
(a) Client may authorize Member Solutions to automatically offer a settlement of 50% of the contract balance when a Customer account reaches ninety (90) days past due.
(b) Member Solutions has made arrangements with one or more national collection agencies to collect on defaulted accounts. To participate in this program, Client must select a Member Solutions partner and enroll directly with the collection agency.
(c) Member Solutions will change the status of a Customer account to “Default” and no longer service the account if it reaches ninety (90) days past due and Client has opted not to enroll in the settlement or collection agency programs.
(d) Client authorizes sending delinquent member accounts directly from Client electronically to Member Solutions for delinquency management, and collection of past due payments up to 180 days past due. Contact information provided by Client including but not limited to phone and email will be used solely for the delinquency management purpose listed above. Delinquent accounts may be contacted thru email, text communications, automated phone calls, and mailed communications. After 180 days Member Solutions will no longer contact delinquent accounts and Client is free to pursue the balance on their own. Additionally, Member Solutions at any time can discontinue attempt to contact the delinquent account if any of the following apply: If the customer has refused payment, customer has initiated a “do not call”, “cease and desist”, or customer has been unresponsive to our attempts to collect payment on past due balance by phone calls or emails. Members can either make payments with Customer Service representatives, online or through use of the pay by phone IVR offered by Member Solutions. Communications will include a mix of email, and phone contact. We will attempt to contact delinquent members up to 3 times per week using the telephone numbers and email address provided.
Cancelled Contracts. Client may cancel an assigned Contract with no obligation to pay the cancellation fee only if: (a) the Member is entitled to cancel the Contract under applicable state law because of death, disability or relocation, or (b) Client wishes to terminate the Contract and release the Member from any further obligation to Client. Any outstanding fees accrued by the Member or Client relating to the Contract will be paid to Member Solutions prior to cancellation of any Contract. Client acknowledges that Contracts that are cancelled with outstanding chargebacks, returns or processing fees will result in an additional charge to the Client for such amounts upon cancellation of the applicable Contract. If Client cancels billing on any open Contract for any reason other than those set forth in the foregoing points (a) and (b), Client agrees to pay Member Solutions the amount set out in the Fee Schedule for each Contract cancelled.
Representations and Warranties. Client represents and warrants that: (a) At the time of assignment to Member Solutions and during the term of such Contracts, the Contracts will be in compliance with all applicable federal, state and local laws and regulations, enforceable in accordance with their terms and not subject to any setoff, counterclaim, or defense; (b) the assignment of Contracts to Member Solutions will not violate the terms of any of the Contracts or any obligation or agreement to which the Client or the Contracts are bound; (c) Client will faithfully, and to the best of its ability, perform its obligations under the Contracts for the term of each Contract, and the Client will take no action that may injure Member Solutions’ rights or interests with respect to the Contracts; (d) Client will cooperate with Member Solutions and furnish any additional information or documents requested by Member Solutions in connection with its obligations under this Agreement; (e) the bank account and/or credit card information provided by Client to Member Solutions shall be valid, existing accounts at the time provided and at all times during the Term of this Agreement. Client shall immediately notify Member Solutions in the event of the change, cancellation, modification or alteration to the account information; and (f) for each Member, Client shall provide to Member Solutions personal contact information, including but not limited to disclosed cell phone number, telephone number, and email address and Client shall immediately notify Member Solutions in the event that any of the Member’s personal contact information has changed. Member Solutions warrants that it will exercise reasonable care in the performance of its obligations under the Agreement. MEMBER SOLUTIONS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF VALUE OR ACCURACY OF DATA, SYSTEM INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT MEMBER SOLUTIONS’ OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CLIENT ONLY. MEMBER SOLUTIONS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MEMBER SOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH ISSUES.
Limitation of Liability. DUE TO THE EXTREME DIFFICULTY OF FIXING ACTUAL DAMAGES FOR ANY FAILURE OF MEMBER SOLUTIONS TO PERFORM ITS OBLIGATIONS HEREUNDER, OR FROM ANY FAILURE OF MEMBER SOLUTIONS TO PERFORM ANY OBLIGATIONS IMPOSED BY LAW, THE PARTIES AGREE THAT MEMBER SOLUTIONS’ AGGREGATE LIABILITY HEREUNDER, IF ANY, SHALL BE LIMITED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE TOTAL FEES PAID BY CLIENT TO MEMBER SOLUTIONS FOR THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT OCCURRED WHICH GAVE RISE TO THE CLAIM. THE PROVISIONS OF THIS PARAGRAPH APPLY EVEN THOUGH THE LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS, DIRECTLY OR INDIRECTLY, FROM EITHER PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT. IN NO EVENT WILL MEMBER SOLUTIONS BE RESPONSIBLE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY OF MEMBER SOLUTIONS’ DUTIES HEREUNDER, (B) FOR ANY LOSS OR DAMAGE TO CLIENT, WHETHER DIRECT OR CONSEQUENTIAL, ARISING OUT OF OR IN ANY WAY RELATED TO ACTS OR OMISSIONS OF THIRD PARTIES INCLUDING, BUT NOT LIMITED TO: VARIOUS COURIER SERVICES, THE FEDERAL RESERVE BANK, THAT BANK WITH WHICH THE CLIENT DEALS OR THE EMPLOYEES OR AGENTS OF SUCH BANK OR ANY FINANCIAL INSTITUTION WHICH RECEIVES OR ORIGINATES ENTRIES OR PAYS ELECTRONIC DEBITS OR CREDIT CARD PAYMENTS FROM MEMBER ACCOUNTS, OR (C) FOR ANY LOSS OR DAMAGE TO CLIENT, WHETHER DIRECT OR CONSEQUENTIAL, ARISING FROM CLIENT INSTRUCTING MEMBER SOLUTIONS TO DEBIT THE INCORRECT CUSTOMER ACCOUNT.
Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties. Absent such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
Compliance with Law and Indemnification. Client shall be solely responsible for compliance with all laws and regulations whether federal, state or local, as well as any federal or regional automated clearing house rules applicable to automatic and electronic transfers of funds, including, without limitation, laws, regulations and rules governing correct authorizations by Customers, disclosures and notices required in connection with electronic funds transfers, and all necessary waivers and releases. Client will indemnify and hold harmless Member Solutions, its officers, directors, employees and agents and Member Solutions ‘s processing financial institution from and against any and all claims, demands, actions, liabilities, damages, costs or expenses, including court costs and reasonable attorney’s fees arising out of or relating to: (i) Client’s breach of any warranty contained herein, any term or condition of this Agreement or arising by operation of law, (ii) any act or omission of Client or Client’s employees or agents, (iii) any act by any Member or Member’s employees or agents, or (iv) Client’s failure to comply with any applicable law, regulation or rule; Member Solutions’ execution and performance of this Agreement, or (v) claims by third parties, including but not limited to Customers arising out of or relating to any matter or thing. Client’s obligations hereunder shall survive termination of this Agreement.
Term and Termination.
(a) Unless otherwise terminated as provided herein this Agreement shall continue during any period in which Member Solutions is servicing Contracts for Client.
(i) Member Solutions may terminate this Agreement for any reason or no reason upon thirty (30) days prior written notice to Client.
(ii) Subject to the terms and conditions hereof, Client may terminate this Agreement at any time upon ninety (90) days prior written notice to Member Solutions.
(b) If Client terminates this Agreement, Member Solutions shall have the right to continue billing any Contracts assigned to Member Solutions prior to the effective date of termination. Client agrees that the terms of this Agreement shall remain in full force until Member Solutions has completed billing on all such open Contracts.
(c) This Agreement may be immediately terminated by Member Solutions upon notice to Client if;
(i) a petition in bankruptcy, insolvency or reorganization is filed by or against Client, Client becomes subject to a composition for creditors, goes into receivership or otherwise becomes insolvent,
(ii) there is a change in the ownership of Client,
(iii) Client breaches this Agreement, and/or
(iv) any representation or warranty of Client is untrue in any material respect; and/or
(v) any adverse financial or operational change to the Client’s business or the Client’s principal/business owner, at the sole discretion of Member Solutions.
Use of Trademarks. Client consents to Member Solutions’ unrestricted use of Client’s trademarks, trade names, logos, names, statements and/or photographs provided to Member Solutions by Client for Member Solutions’ advertising, sales, marketing, promotion or any other business purpose. Client shall have the right to use such marketing materials containing the Member Solutions name, service mark, symbols and logos associated therewith (“Member Solutions Marks”) as may be supplied by Member Solutions from time to time. Client will use the Member Solutions Marks only in a manner and form approved by Member Solutions and solely in connection with solicitation of Member participation in the automatic payment collection services to be provided hereunder. All title and interest in and to the Member Solutions Marks remain with Member Solutions, and upon termination of this Agreement for any reason, Client shall have no further right to the use of the Member Solutions Marks, shall immediately cease all use and display thereof, and shall return to Member Solutions all marketing materials provided by Member Solutions and then in Client’s possession.
Ownership. At all times Member Solutions will own all intellectual property rights (including copyright) in its online membership management portal and billing and event management tools (the “Hosted Services”), including all intellectual property rights in any software (other than any third party components) to which access may be provided by means of such online portal, and all upgrades, enhancements and modifications to them. Client will not attempt to decompile or reverse engineer the Hosted Services. At all times Client will own all intellectual property rights in any data entered or submitted by the Client by means of the Hosted Services (the “Client Data”).
Confidentiality. Client will hold in strict confidence and not disclose to third parties, or use for any purpose except to obtain the Hosted Services, any confidential information of Member Solutions, including the Hosted Services. Client will be responsible for all damages or costs incurred by Member Solutions related to Client allowing third parties to access the Hosted Services. Member Solutions will hold in strict confidence and not disclose to third parties, or use for any purpose except to provide the Hosted Services, any confidential information of Client; provided, however, that Member Solutions may provide to third parties summary level data (being non-identifying Client Data used only in the aggregate) or statistical evaluations using the aforementioned non-identifying data, and Member Solutions may disclose Client Data if compelled by law to do so. Member Solutions will have the right to issue a press release in respect of the execution of this Agreement or the work completed by Member Solutions under this Agreement.
Data. Client retains all ownership and intellectual property rights in and to its data. Client will have sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of its data. Client will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy rights, includes malicious code, or that will interfere with the integrity of the Hosted Services. Member Solutions will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Client’s data. Upon request from Client, Member Solutions shall following the termination of this Agreement, and payment by Client of Member Solutions’ standard data transition fee, provide Client with a final extract of the Client’s data in an industry standard format.
Member Solutions is committed to maintaining all applicable PCI DSS requirements to the extent that customer cardholder data is possessed, or otherwise stored, processed, or transmitted on behalf of the customer.
Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed to create a joint venture or partnership between Member Solutions and Client and, except as set forth herein, neither party shall have the power to control the activities and operations of the other. Member Solutions status at all times will be that of independent contractor. Neither party is authorized as an agent, employee or legal representative of the other and neither party shall have any power or authority to bind or commit the other except that Member Solutions may establish or administer rules or policies for Client if Client’s rules conflict with Member Solutions’ billing policies.
Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to the principles of conflicts or choice of law. Any legal action arising under or in connection with this Agreement shall be commenced in Montgomery County, Pennsylvania or in federal court in Philadelphia, Pennsylvania. This Agreement shall bind the parties hereto and their officers, directors, agents, successors, and assigns, provided, however, that Client may not assign its obligations hereunder without Member Solutions’ express written permission.
Entire Agreement. This Agreement and the Exhibits attached hereto constitute the entire agreement between the parties hereto and supersede all prior and contemporaneous agreements between the parties, whether oral or written. Except as otherwise provided, this Agreement may be modified only by Member Solutions, upon thirty (30) days’ notice to Client. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. The waiver of any breach shall not constitute a waiver of any subsequent breach of this Agreement.
Notices. Any notice or other communication hereunder shall be by hand or overnight delivery, registered or certified mail or electronic mail. In addition, Member Solutions may provide notice to Client by posting notice on its website, www.membersolutions.com. Unless otherwise provided herein notice shall be deemed to have been given or made when delivered, mailed or posted to the other party at its address set forth herein.
Unenforceable Terms. If any provision of this Agreement is held invalid, illegal or unenforceable, this Agreement will be interpreted as if such provision, to the extent the same has been held invalid, illegal or unenforceable, had never been contained herein.
Assignability. This Agreement is not assignable by Client without first receiving the prior written consent of Member Solutions.
Counterparts; Electronic Execution. This Agreement may be executed in counterparts, including by way of electronic means, such as portable document format (PDF), each of which shall constitute an original and all of which shall be one and the same instrument.