This User Agreement ("Agreement") is a legal agreement between you ("you", "your") and your payment facilitator ("PF") governing your use of PF's payment processing services and PF POS System, as defined below (together, the "Services"). Your PF is the entity that sent you a welcome letter following the submission of your PF Application, as defined below. If you have not retained a copy of your welcome letter, please log on to the merchant portal for the identify of your PF.
1. Relationship: PF is what is called a "Payment Service Provider" or "Payment Facilitator". As such, PF, and not you, will serve as the merchant of record with MasterCard International, Inc., Visa International, Discover Network, PayPal, American Express and other networks or associations (the "Card Associations") with regard to purchases (each, a "Transaction") by your customers in which credit or debit cards bearing the service mark of VISA, MasterCard, Discover Network, PayPal, American Express or another specified network or association (each, a "Card") are presented for payment. PF is not a bank, it does not offer banking services as defined by the United States Department of the Treasury, and it is not in the business of providing money transmission or other money service business services as defined by the U.S. Department of the Treasury. PF serves as your agent in completing Transactions with your customers. In furtherance of this relationship, you authorize PF (i) to submit Transactions to, and receive settlement from, the Card Associations and the applicable payment processors and bank sponsors through which PF processes your Transactions (collectively, "PF Providers"), (ii) to hold, receive, and disburse funds on your behalf and/or to direct PF Providers to hold, receive, and disburse funds on your behalf, and (iii) to generate a paper draft or an electronic funds transfer to process each Transaction that you authorize. Your authorizations will remain in full force and effect until your PF Account is closed or terminated. As part of your agreement to use PF, you attest that you are a Citizen of the United States, or other U.S. Person. You are considered a U.S. Person if you are a legal resident of the United States, a partnership, corporation, company, estate (other than a foreign estate), domestic trust, or association created or organized in the United States or under the laws of the United States.
2. Payment Transactions/Acceptance of Cards: You have been given a unique PF Account (the "PF Account") through which your Transactions will be recorded by PF. Your PF Account will permit you to accept and submit Transactions using a PF POS System. Your use of the Services will be subject to, and you agree to be bound by, all of the rules and requirements of the PF Providers, as applicable to your activities under this Agreement, and as modified from time to time.
Without limitation, you agree to abide by the following terms and conditions:
a. You will accept all Cards in accordance with the rules adopted by the applicable Card Associations.
b. You will only submit valid and completed Transactions produced as a direct result of bona fide sales of goods or services made to a customer by you, and such Transactions will accurately describe the goods or services sold or delivered. All such Transactions shall be free of any liens, claims, and encumbrances other than ordinary sales taxes. You will not use the Services for any fraudulent or illegal undertaking. No Transaction will represent a sale to any principal, partner, proprietor, or owner of you, if you are an entity. There are some business types which are prohibited from using PF. By creating an account with PF you agree that you will not be accepting payments for or in connection with the following prohibited businesses:
(1) Any Illegal activities or Goods, (includes marijuana services/paraphernalia) (2) Adult Sexually Oriented Material, (3) Age Sensitive Products sold direct to consumer, (4) Business or Investment Opportunities / Multi-level marketing, (5) Business physically located outside the U.S., (6) Dating / matchmaking, (7) Deceptive/Negative marketing practices, (8) Any division or agent of a foreign government, (9) Essay Mills/Paper Mills (ghost writing), (10) Financed Payments via Card, (11) Gambling or Sports Forecasting, (12) Internet/Telecom Services, (13) Magazine Subscriptions, (14) Money services, (15) Online auctions, (16) Products or Services with Unreasonable Guarantees or Claims, (17) Travel Services (18) Government Grants or Will-Writing kits.
PF reserves the right to modify, alter, or change this list at its sole discretion at any time with or without notice.
c. You will maintain a fair policy for the exchange, refund and return of goods sold and the adjustment of services rendered. You will post that policy at or before the Transaction occurs and in accordance with the rules adopted by the applicable Card Associations, and such policy must comply with the rules adopted by the applicable Card Associations. You will not give cash refunds to a customer in connection with a Transaction, unless required by law, and not accept cash or any other item of value for preparing a Transaction refund.
d. You will not bill or collect from any customer for any purchase or payment on a Card unless a chargeback has been exercised, you have fully paid for that chargeback, and you otherwise have the right to do so.
e. You will ensure compliance with rules adopted by any Card Associations relating to the privacy and security of cardholder and card transaction data, including without limitation the Payment Application Data Security Standard ("PA DSS") and the Payment Card Industry Data Security Standard ("PCI DSS"), as they may be amended from time to time;
f. You will maintain fraud and chargebacks below thresholds set by the Card Associations;
g. You will accept, without discrimination, all valid Cards properly presented by customers for payment for goods or services. With respect to VISA and MasterCard products, you may elect to accept credit cards or debit/prepaid cards or both, as reflected on the merchant application you completed with PF (the "PF Application"), and you must display appropriate signage to display the same. You agree to pay for any additional fees incurred as a result of your subsequent acceptance of Transactions with any VISA or MasterCard product that you have elected not to accept.
h. You may establish a minimum Transaction size for accepting Cards so long as such amount does not exceed $10, or such other amount established by law, and such minimum Transaction size requirement does not discriminate between Card issuers or between Card Associations. You may not impose a maximum Transaction size on Transactions, or add a fee to a Transaction.
i. You may offer discounts or in-kind incentives for payment by the use of cash, checks or Cards, provided that the terms of the discount or in-kind incentives do not differentiate on the basis of the Card issuer or Card Association.
j. You will not accept a Card as payment (other than for a preauthorized mail order, telephone order, or other sale), if the customer seeking to use the Card does not present the Card to permit you to examine it and obtain an imprint or otherwise use the physical Card to complete the transaction.
k. You will comply with all requirements and restrictions regarding the display of Card Association tradenames and marks, and will implement any changes to your website or otherwise that PF deems necessary or appropriate to ensure that you remain in compliance with the rules adopted by the Card Associations governing the use of Card Association tradenames and marks. You acknowledge and agree that the Card Associations are the sole and exclusive owners of their respective trade names and marks, and that you will not contest the ownership of such tradenames and marks for any reason. You also acknowledge and agree that the Card Associations may at any time, immediately and without advance notice, prohibit you from using any of its or their trade names or marks for any reason.
Any inconsistency between the rules adopted by any Card Association and this Agreement shall be resolved in favor of the rules adopted by such Card Association. You may use the Services only to the extent that you obey all laws, rules, and regulations applicable to your use of the Services. You may only use the Services in the fifty states of the United States of America and the District of Columbia. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Services on behalf of any third party. This means that you may not use the Services to handle, process or transmit funds for any third party. You also may not use the Services to process cash advances. PF reserves the right to reject any Transaction that you submit for settlement.
3. PF Fees: You agree to pay the applicable fees listed on the PF Application ("Fees") whenever you use the Services. You agree that if the account is not used to process a transaction for twelve (12) months, it will be considered inactive and will be subject to an inactivity fee of $3.99 beginning the 13th month of inactivity, and each month following, until processing resumes. If processing resumed on your account, the inactivity fee will no longer be charged until the next twelve (12) month period of inactivity. Subject to the terms of this Agreement, PF reserves the right to change Fees. If PF changes its Fees, it will give you thirty (30) days' notice of any change. You will not be permitted to continue to use the Services unless you consent to the changes in Fees. To withdraw your consent, you will need to close your PF Account.
4. Next Day Funding: PF will deposit, or will direct the PF Providers to deposit, to your PF Account the amounts actually received by PF or such PF Providers for Transactions submitted through PF (less any applicable Fees). Once your bank account information is verified, PF will automatically deposit or will direct the PF Providers to deposit, your money in your designated bank account. A deposit to your bank account in connection with a Transaction will normally occur one (1) business day after the completion of that Transaction. However, Transactions may not be deemed complete in PF's discretion until PF has or the PF Providers have, received or sent the funds and/or when PF or the designated financial institutions have accepted the Transaction or funds. PF may, in its discretion, provisionally credit, or cause the PF Providers to provisionally credit, amounts to your PF Account, subject to receipt of final payment by PF or the PF Providers in respect of a Transaction.
5. Suspension/Reserve/Recovery/Pooling of Funds: PF may temporarily suspend or delay payments to you or withhold or reserve your funds in order to secure your performance of your obligations to PF. This action may arise for any reason, including the occurrence or suspected occurrence of Transaction chargebacks or refunds, for which you are responsible. A chargeback will occur if the Transaction (a) is disputed, (b) is reversed for any reason, (c) was not authorized or PF has any reason to believe that the Transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of this Agreement. The amounts suspended, delayed or reserved shall be initially determined, and may be increased or decreased, in PF's reasonable discretion as necessary to cover potential financial exposure on the part of PF. You grant PF a security interest in and lien on any and all funds held in any such reserve, and also authorize PF to make any withdrawals or debits from such reserve, without prior notice to you, to collect amounts that you owe PF. This security interest survives for as long as PF holds your funds in reserve.
PF may recover, recoup, set off or deduct the amount of any chargeback and any associated Fees, fines, or penalties listed in the PF Application or assessed by the PF Providers, or any other amounts due under this Agreement, from your PF Account (including without limitation any reserve), any proceeds due to you, your bank account, or other payment instrument registered with PF. In furtherance of this right, you authorize PF to debit your bank and/or to initiate reversal or adjustment entries with respect to your bank account. If PF is unable to recover funds for which you are liable, you will pay PF the outstanding amount immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of PF in connection with the collection of all such amounts, along with interest on the unpaid amount calculated at the highest legal rate.
You understand that your funds may be commingled and held with other PF merchant funds in one or more pooled accounts at one or more FDIC-insured banks by PF for the benefit of you and other PF merchants (each a "Pooled Account"). PF has sole discretion over the establishment and maintenance of any Pooled Account. You will not receive interest or any other earnings on any funds that PF handles for you. As consideration for using the services provided by PF, you irrevocably assign to PF all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to its holding of your funds in a Pooled Account or reserve.
6. Transaction Errors: You are responsible for monitoring your Transactions and ensuring that PF's payments to you are correct. You must notify PF of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify PF of such an error will be deemed a waiver of any right to amounts owed to you.
7. Information: You authorize PF to disclose all Transaction data and other information about you as required by the PF Providers, and their affiliates, agents, subcontractors and employees, in order to process your Transactions. You also authorize each of the foregoing parties to use such information to perform their responsibilities in connection with the programs offered by them and for such other purposes as they may reasonably deem necessary, including such purposes as are described in rules adopted by any Card Association. PF may request additional information and documentation from you at any time. PF may also ask for permission to inspect your business location. You agree to advise PF immediately of any change in the ownership or nature of your business, or in your or your business' financial condition, location or name, or in your approved monthly Transaction volume, average ticket or description of goods sold and services provided. You authorize PF, at any time during which this Agreement remains in effect, to make any credit inquiries of you or your business, including but not limited to requesting reports from third party credit reporting bureaus.
8. Conversion to Direct Merchant: You acknowledge that you will be converted from being a merchant of PF to a direct card acceptance relationship with the applicable Card Association or PF Provider, as applicable, under the following circumstances:
a. With regard to American Express, if and when you become what American Express calls a "High CV Merchant". Upon such conversion, (i) you will be bound by American Express' then-current card acceptance agreement, (ii) American Express will set the discount and other fees payable by you for its Card acceptance, and (iii) you will have the option of continuing to use PF to provide Services to you subject to the terms and conditions contained in this Agreement. A High CV Merchant is one that has greater than $1,000,000 in charge volume in a rolling 12 month period, or greater than $100,000 in charge volume in any three consecutive months.
b. With regard to Visa, MasterCard, Discover, and/or PayPal if and when you exceed $100,000 in charge volume for any of the applicable Card Associations in a rolling 12 month period. Upon such conversion, and in the event that you wish to continue to accept and submit Visa, MasterCard, Discover, and PayPal Transactions, you will be bound by the terms of the card acceptance agreement attached hereto as Exhibit A (as amended in accordance with its terms, the "Direct Agreement") at the Fees, or at such discount and other fees to be determined at the time. Upon the conversion, if you continue to accept the applicable Card Association Transactions, you agree that (i) you will automatically be deemed to have accepted the Direct Agreement, without any further notice, consent or action by PF, the PF Providers or you, (ii) the PF Application will be incorporated into the Direct Agreement, (iii) the terms of the Direct Agreement will thereafter be independently enforceable against you by the PF Providers, and (iv) the Direct Agreement will replace this Agreement.
9. Representations and Warranties: You confirm that: (i) you are at least 18 years of age; (ii) you are either a legal resident of the United States, a United States citizen, or a business entity authorized to conduct business by the state in which it operates; (iii) you are eligible to register for and use the Services; (iv) the name identified by you when registering for the Services is your legal name or business name under which you sell goods and services; (v) all information contained in your completed PF Application is true and correct in all respects; and (vi) this Agreement is your valid and binding obligation, and does not violate any provisions of law, or conflict with any other obligations to which you are subject.
10. No Assignment: You may not assign or transfer to any third party this Agreement or any payments due to you in connection with your Transactions.
11. Third Party Rights: You hereby authorize the PF Providers, and their affiliates, agents, subcontractors and employees, to enforce the terms of this Agreement as against you, without establishing any obligation on their part to do so. You also authorize the PF Providers to use your name, address, and website address in any media from time to time. You also acknowledge and agree that the Card Associations have the right to enforce any provisions of their rules against you, and to prohibit you from engaging in any conduct that they deem could injure or could create a risk of injury to them, and that you will not take any action that could interfere with or prevent the exercise of such rights by the Card Associations.
12. PF Provider Agreements: PF is a party to certain other agreements with the PF Providers. You acknowledge that you are not a beneficiary under any of those agreements. You also agree to abide by all limitations of liability contained in those agreements with respect to such PF Providers.
13. Wireless Carriers: PF does not warrant that the Services will be compatible with your mobile device or third party carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
15. Disclosures and Notices: You confirm that you have become a party to, and become bound by, this Agreement by completing the PF Application and accepting it electronically over the Internet or through your wireless carrier. This is done by clicking or entering "I Agree" where requested on an electronic version of the PF Application. By providing this consent, you acknowledge that you have received and reviewed all applicable pages, terms and conditions of this Agreement and the Direct Agreement.
16. Termination: PF or you may terminate this Agreement for any or no reason, and at any time. In order to terminate this Agreement, you must close your PF Account, at which time all pending Transactions will be cancelled. This Agreement will immediately and automatically terminate to the extent any PF Provider deregisters PF. Any funds held by PF for you at the time of closure or termination, less any applicable Fees, will be paid out to you, subject to PF's rights to suspend, delay or reserve funds. All provisions of this Agreement necessary to accomplish or enforce this Agreement shall survive the termination of this Agreement.
17. PF POS System: A PF POS System is any point of sale system, including tablets, Card readers, printers, cash draws, dongles, and associated devices, software, components, content, information, data, media, materials, and “online” or electronic documentation or files, delivered to you in connection with the Services, which enables you to accept credit card and/or debit card payments on purchases by customers, including but not limited to all intellectual property rights associated with such system. You may elect to receive a PF POS System in one of two ways, as designated in the PF Application: (i) through PF’s placement or licensing of that system; or (ii) through PF’s sale of that system.
If you have elected to receive a placement of a PF POS System (a “Placed PF POS System”), then the following terms and conditions shall apply to such placement: (a) you agree that the Placed PF POS System is PF ’s property, is being licensed to you, and must be returned to PF in good and working condition within ten (10) days of the termination or expiration of this Agreement; (b) if the Placed PF POS System is not returned within ten (10) days, you agree to pay PF the value of such equipment, which shall be the same as the amount PF charges for the same equipment to PF’s other merchants; (c) you agree to pay the license fee, as set forth in the PF Application, if any, on the Placed PF POS System, plus the applicable sales or use taxes, beginning in the month the Placed PF POS System is received by you and continuing until the Placed PF POS System is returned by you or this Agreement is terminated or expires; (d) you agree to be responsible for any damage to the Placed PF POS System as a result of misuse or negligence; and (e) you agree to pay PF a shipping/handling charge for each delivery of replacement Placed PF POS Systems, regardless of the reason. Notwithstanding the foregoing, if you subscribe to certain level(s) of PF’s “Mybizperks Program”, you will not be responsible for failure of a Placed PF POS System for any reason, so long as such Placed PF POS System is returned to PF. Under this program, PF will also provide overnight replacement of a Placed PF POS System free of shipping/handling charges, after remote troubleshooting efforts are unsuccessful. The replacement Placed PF POS System may be new or refurbished, or a different brand or model, and such replacements are limited to two (2) in any consecutive twelve (12) month period.
If you have purchased a PF POS System (a “Purchased PF POS System”), then the following terms and conditions shall apply to such purchase: (a) you agree to pay the purchase price of the Purchased PF POS System, plus the applicable sales or use taxes, and shipping/handling charges, as set forth in the PF Application; and (b) upon PF’s receipt of full payment of the purchase price and applicable sales or use taxes, the Purchased PF POS Systems will become your property, subject to the restrictions set forth in this Agreement.
With regard to any PF POS System received by you, whether placed or sold: (a) you agree to indemnify and hold PF harmless from and against any and all liabilities, losses, claims, damages, disputes, offsets, claims or counterclaims of any kind in any way related to the use (or misuse) of the PF POS System, which includes any damage resulting from an act of nature, fire, or theft, or from misuse or negligence by you or your agents; (b) you agree to use the PF POS System only to process Transactions through PF, and only in accordance with this Agreement and PF ’s, or its manufacturers’, instructions and requirements; (c) you agree not to reverse engineer, jailbreak, disassemble, disable or modify the PF POS System, or any components thereof, in any way, work around, bypass or circumvent any of the technical limitations of the PF POS System or and components thereof, wipe, delete or alter in any way the operating system or preset configurations of the PF POS System, or do anything else that would interfere with the authorized and intended working and use of the PF POS System; (d) you agree that you may only install, access and use PF POS System with compatible devices, and you will run a validly licensed copy of the operating system for which the PF POS System was designed (devices with disabled hardware and software controls are not compatible devices, and your use of any such modified device in connection with the PF POS System is expressly prohibited); and (e) you agree that you will only permit duly trained and authorized persons to use or access the PF POS System. You agree that you may not , nor may you permit any third party to, resell, lease or distribute in any way the PF POS System. Please refer to Section 23 below for a discussion of applicable, limited warranties relating to the PF POS System.
18. PF Ownership/License: You agree that the PF Provider's name and mark are owned by the respective PF Provider, and that the respective PF Provider owns the title, copyright and all other worldwide intellectual property rights associated therewith. The Services are protected by the copyright laws of the United States, international treaties and conventions, and other laws. Except as otherwise expressly stated below, you have no intellectual property rights in the Services, and PF reserves all rights not expressly granted to you under this Agreement.
PF grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Services in accordance with this Agreement. You may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on the PF POS System or any other PF system using any manual process or robot, spider, scraper, or other automated means unless expressly authorized by PF; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from PF; (iii) permit any third party to use and benefit from the Services; (iv) transfer any rights granted to you under this Agreement; (v) work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by PF's other users, or impose an unreasonable or disproportionately large load on PF's infrastructure; or (vii) otherwise use the Services except as expressly allowed under this Agreement. You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII). You must comply with all laws when using the Services, as well as all applicable copyright, trademark or other legal notices or restrictions.
19. Support Services/Updates/Modifications/Discontinuance: PF may provide you with support services related to the Services. Any supplemental software code or hardware provided to you as part of such support services will be considered part of the Services and subject to this Agreement. If you are accessing the Services via a distribution channel (hereinafter, a "Distribution Channel"), such as Google play, the Apple App Store or the Android Marketplace, you acknowledge that the Distribution Channel is not a party to this Agreement, that PF is solely responsible for the Services, and that the Distribution Channel will not provide you with support or maintenance of the Services.
PF may in its sole discretion from time to time update or modify, or at any time discontinue, temporarily or permanently, your access to or use of the Services, or any part thereof, without notice. PF may also impose certain limits on certain features or restrict your access to part or all of the Services without notice. You acknowledge and agree that even if a copy of PF's software continues to reside on your device after such action, the Services may not work as they did prior to such action. PF shall have no liability to you or any third party for any of the foregoing actions.
20. Content and Data: In using the Services, you will be delivering or uploading data to PF-owned or third party servers (hereinafter referred to as "Account Content"). You will not upload any Account Content unless you have created the data yourself, or you have permission from the owner thereof to do so. You are solely responsible for the export of your Account Content to your local computer or device to the extent that it may reside within the PF POS System. Your Account Content maintained within the PF POS System may be deleted by PF at any time on or after the ninetieth (90th) day following termination of your use of the PF POS System.
You grant PF a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display any your Account Content throughout the world in any media in order to provide and promote the Services, the PF POS System and PF's business. You will retain your rights in Account Content, subject to the rights granted to PF herein.
You agree not to upload Account Content or otherwise post, transmit, distribute, or disseminate through the PF POS System any material or data that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy, copyright or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with PF's or its partners' products and services, as determined by PF in its sole discretion; or (f) in PF's sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose PF, its respective business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors, agents and/or customers to harm or liability of any nature.
Although PF has no obligation to screen, edit, or monitor any Account Content, PF reserves the right, and has sole discretion, to remove, screen, edit, or disable any Account Content at any time and for any reason without notice. PF assumes no responsibility or liability for any Account Content, including any loss or damage to any Account Content.
PF may share Account Content with third parties, and PF is not responsible for the use or treatment of such data by such third parties. If you instruct PF to share Account Content with third parties, you agree to indemnify, defend, protect and hold PF, and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors, agents and affiliates (hereinafter referred to collectively as the "PF Parties") harmless from and against any and all third party damages, losses, claims and expenses, including but not limited to governmental penalties and reasonable attorneys' fees, which may be asserted against or incurred by PF Parties or any affiliate arising out of or resulting from the sharing, use or ownership of such data.
You understand and acknowledge that PF is not responsible for the delivery of or access to Account Content. PF will use reasonable efforts to ensure that Account Content uploaded on to the PF POS System is accessible on a 24/7 basis. However, there will be occasions when the PF POS System will be interrupted for maintenance, upgrades and repairs, or because of failure of telecommunications that are beyond PF's control. PF will not be liable to you for any suspension or interruption of the PF POS System.
Due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus PF cannot guarantee that communications between you, on the one hand, and PF, on the other, will be free from unauthorized access by third parties.
21. Account and Password: To use the PF POS System, you may be assigned a user ID and temporary password. If assigned, you will be asked to change that temporary password. You will: (i) keep the user ID and password confidential; (ii) not allow any other entity or person to use the user ID or password or gain access to the PF POS System or Account Content; (iii) be liable for all action taken by any user of the user ID or password; and (iv) promptly notify PF if you believe the user ID or password has been stolen or used inappropriately, or if the confidentiality or security of the information or systems made available through such use has been compromised. The use of the user name does not grant you ownership of such user name, which is retained by PF. PF may revoke your user name at any time for any or no reason and without liability to you.
22. Indemnification: You will indemnify, defend, and hold PF and the PF Providers harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, fines, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (b) your wrongful or improper use of the Services; (c) any transaction submitted by you through the Services; (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (e) your violation of PA DSS, PCI DSS, or any law, rule or regulation of the United States or any other country; (f) any other party's access and/or use of the Services with your username, password or other appropriate security code.
23. Warranties: EXCEPT AS EXPRESSLY PROVIDED BELOW, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED BELOW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PF OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, PF DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR FREE OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
The following express, limited warranties shall apply with respect to each PF POS System:
(1) PF warrants all tablets and Card readers sold or placed with you against defects in materials and workmanship under normal use for a period of one (1) year from the date delivered to you. PF will replace such defective tablet or Card reader at no cost to you. However, you must return the defective tablet or Card reader to PF at the designated address and in the designated box, with all accessories, cords, cables, parts and documentation included, within fourteen (14) days of receiving your replacement tablet or Card reader, as applicable. In the event you fail to return your defective tablet or Card reader pursuant to the process and time frame specified, PF will charge your bank account and/or pursue other available collection remedies. Such replacement is your sole and exclusive remedy for defects in your PF POS System. This limited warranty is only available to you as the original purchaser of a tablet or Card reader. Warranty coverage terminates if you sell or transfer your tablet or Card reader. No reseller, agent, or employee is authorized to make any modification, extension, or addition to this limited warranty.
This limited warranty does not apply to tablets or Card readers that have been subject to alteration, repair, tampering, accident, abuse, misuse, fire, acts of god (including, without limitation, earthquake, flood, hurricane, lightning, or tornado) or other external causes. This limited warranty does not apply to any third party hardware, such as, without limitation, any printers or cash drawers, any consumable parts, including batteries, or any software, even if resold or included with the tablet or Card reader. All third party hardware resold or included by PF is provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly.
(2) If you are not fully satisfied with your tablet, Card reader, printer, cash drawer or other equipment comprising the PF POS System, you may return it within thirty (30) days of delivery so long as they are in their original condition and packaging and you enclose the original packaging slip. Tablet returns must be unopened. PF does not accept returns of tablets where any part of the original packaging has been opened, broken, or altered. PF will refund your purchase price in full and cover the cost of return shipping. You must return all cords, cables, parts and documentation that were included with the original package. PF POS Systems purchased from PF through an installment plan are not eligible for partial returns, and must be returned with all other products included in the installment plan purchase. Refunds will be applied to the original purchase method. Only PF POS Systems purchased directly from PF can be returned to PF. A restocking fee may apply to all returns that are in open packages.
24. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PF OR THE PF PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL PF OR THE PF PROVIDERS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR PF ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL PF OR THE PF PROVIDERS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY PF IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. PF is not responsible for any liabilities, losses, claims, or damages of any kind in any way to any device(s) with which the Services are used, or to the software, applications or data downloaded or maintained on such device(s). You acknowledge that any software or content downloaded or otherwise obtained in connection with the Services is downloaded at your own risk and that you will be solely responsible for any damage to your property or loss of data that results from such download.
25. Governing Law: This Agreement and any dispute relating to it will be governed by Michigan law as applied to agreements entered into and to be performed entirely within Michigan, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
26. Disputes: PF and you each agree that any dispute or claim arising out of or relating to this Agreement or the Services (each, a "Dispute"), shall be settled by following the procedures:
a. The party initiating the Dispute shall contact the other party and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the "Claim Notice"). You agree to contact PF by calling or writing to: Claims Administrator, 250 Stephenson Hwy, Troy Michigan 48083, Tel. No. 1-855-733-7264.
b. The Claims Administrator for PF and you shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party initiating the Dispute, would settle the Dispute (the "Settlement Amount"). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
c. IN THE ABSENCE OF RESOLVING THE DISPUTE, AND INSTEAD OF SUING IN COURT, PF AND YOU AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) PF OR YOU MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) YOU MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST PF. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES.
d. The foregoing arbitration shall be administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules in effect when a Claim Notice is duly provided under this Section 26. If any AAA procedure or rule conflicts with the terms of this Agreement, the terms of this Agreement apply.
e. The arbitration set forth in this Agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (the "FAA"), 9 U.S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator's decision and award is final and binding, subject only to those exceptions under the FAA. The award of the arbitrator shall be accompanied by a reasoned opinion. PF and you agree the FAA's provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
f. Unless PF and you agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA's Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located - and for any claim against PF, that address shall be the address of the Claims Administrator. The federal or state law that applies to this Agreement will apply during the arbitration.
g. For Disputes of $10,000.00 or less that are initiated by you ("Small Disputes"), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA and/or in this Agreement: (1) the arbitration shall be conducted in accordance with the AAA's Expedited Procedures; (2) the arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous and, if it is determined by the arbitrator not to be frivolous, then PF shall pay the fees and costs assessed by the AAA in administering the arbitration; (3) If the arbitrator finds that PF is liable to you for an amount greater than the Settlement Amount presented by PF prior to the commencement of arbitration (after all offsets and counterclaims are applied), then PF shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $1,000.00, or (y) twice the amount of your reasonable attorneys' fees; (4) you may choose to conduct the arbitration in the state of your principal address.
h. PF AND YOU EACH AGREES NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. PF and you each waives the right to trial by jury of any Dispute.
27. Right to Amend: PF may change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that PF in its sole discretion deems to be reasonable in the circumstances. Any use of the Services after PF's publication of any such changes shall constitute your acceptance of this Agreement as modified.
28. Entire Agreement: This Agreement, including the PF Application, any schedule of fees, and information contained in websites or electronic links referenced in this Agreement, expresses the entire understanding of the parties with respect to its subject matter. Reference to "this Agreement" also includes all documents, websites and electronic links incorporated into this Agreement by reference.
29. Notices; Consent to Electronic Communications: You agree to the receipt of electronic communications by email or by the posting of such information by PF at one or more of its sponsored Internet websites. In addition, all notices and other communications required or permitted under this Agreement by PF to you may also be delivered by FAX, overnight carrier or first class mail, postage or other charges prepaid. All notices and other communications required or permitted under this Agreement by you to PF shall be delivered by you by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below.
MERCHANT PROCESSING AGREEMENT
RECITAL AND DEFINITIONS:
Parties to this Merchant Credit Card Processing Agreement (this "Agreement"):
"Merchant" - The Merchant identified on the Merchant Application, as defined below.
"Guarantor(s)" - The Guarantor(s) of Merchant's obligations under this Agreement, as set forth in the Merchant Application.
"Member" - BMO Harris Bank N.A.
"Agent" - North American Bancard, LLC.
"Processing Partner" - A third party provider of electronic transaction processing services that has contracted with AGENT to provide certain services to Merchants from time to time.
"Servicers" - collectively refers to Member, AGENT and any applicable Processing Partner.
"Merchant Portal" - The Merchant Portal is the online portal Merchant can access information and documents pertaining to the Merchant Account.
ACCEPTANCE OF TERMS BY MERCHANT:
Merchant has completed and submitted to Servicers an application for services that provides information about Merchant's business and processing needs (the "Merchant Application"). As part of the Merchant Application, Merchant has certified that it has read this Agreement, and understands and agrees that the terms of this Agreement will be binding upon it if and when Servicers approve the Merchant Application to receive requested services. A MERCHANT'S SUBMISSION OF A TRANSACTION TO SERVICERS SHALL CONSTITUTE RATIFICATION OF EACH AND ALL OF MERCHANT'S OBLIGATIONS UNDER THIS AGREEMENT.
To the extent Merchant accepts American Express ("AXP") cards, the provisions in this Agreement with respect to AXP apply if Merchant does not have a separate agreement with AXP.
The General Provisions set out in this Article I govern the relationship between Servicers and Merchant for all services provided by or through Servicers. The subsequent sections of this Agreement define the terms of service for different service offerings of the Servicers and shall apply to Merchant at such time that Merchant commences receiving such services.
1.1 Compliance with Rules and Servicers Guidelines.
Merchant agrees to comply with and be subject to all Rules of MasterCard International, Inc., ("MasterCard"), Visa International ("VISA"), JCB, International ("JCB"), Discover Network ("Discover Network"), American Express ("AXP") and the National Automated Clearing House Association ("NACHA"), as they may exist from time to time and as applicable to Merchant's activities under this Agreement. Merchant also agrees to comply with all guidelines, policies and procedures for services provided to Merchant by Servicers from time to time. Additional information and links to locations where Merchant can see or obtain copies of the Rules are located at www.myresourceportal.com/programguide.
MERCHANT UNDERSTANDS AND ACKNOWLEDGES THAT DISCOVER, AXP, JCB, NACHA AND OTHER SERVICES ARE NOT PROVIDED TO IT BY MEMBER BANK, BUT ARE INSTEAD PROVIDED BY AGENT, THE PROCESSING PARTNER AND/OR THIRD PARTIES. FOR PIN DEBIT TRANSACTIONS, SUCHTHIRD PARTIES MAY INCLUDE SPONSORING OR ACQUIRING BANKS THAT ARE NOT RELATED TO MEMBER BANK.
THE PROVISIONS OF THIS AGREEMENT REGARDING DISCOVER NETWORK CARD TRANSACTIONS, AXP CARD TRANSACTIONS, JCB CARD TRANSACTIONS, NACHA TRANSACTIONS, OR ANY OTHER NON-BANK CARD TRANSACTIONS CONSTITUTE AN AGREEMENT SOLELY BETWEEN MERCHANT, AGENT AND THIRD PARTIES. MEMBER BANK IS NOT A PARTY TO THIS AGREEMENT INSOFAR AS IT RELATES TO SUCH TRANSACTIONS.
1.2 Enforcement of Servicer Rights.
To the maximum degree permitted by law and by the Rules of MasterCard, VISA, JCB, AXP, Discover Network, and NACHA, it is the intention of the parties that the rights of Servicers set forth in this Agreement, or arising from this Agreement, may be exercised solely by AGENT or an applicable Processing Provider, or its or their authorized designees
1.3 Warranties of Merchant.
Merchant hereby represents and warrants to Servicers at the time of submission of the Merchant Application and during the term of this Agreement that:
(a) All information contained in the Merchant Application or any other documents delivered to or on behalf of Servicers in connection therewith is true and complete and accurately reflects Merchant's business, financial condition and principal partners, owners or officers.
(b) Merchant is duly organized and in good standing under the laws of the jurisdiction of its organization, and is duly qualified to conduct business in each jurisdiction where failure to do so would have a material adverse effect on its business.
(c) Merchant has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, constitutes a valid and binding obligation of Merchant and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject.
(d) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so.
(e) There is no action, suit or proceeding at law or in equity now pending or to Merchant's knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations.
(f) Unless Merchant notifies Servicers in writing (either on the Merchant Application or otherwise) and is approved by Servicers, no other processing relationship for any of the services offered by Servicers under this Agreement may exist between Merchant and another Card processing institution, for any business owned or operated by Merchant.
(g) (i) the taxpayer identification number ("TIN") provided on the Merchant Application is Merchant's true and correct TIN; (ii) Merchant is not subject to backup withholding because (a) Merchant is exempt from backup withholding, (b) Merchant has not been notified by the IRS that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Merchant that it is no longer subject to backup withholding, and (iii) Merchant is a citizen of the United States of America ("U.S.") or other U.S. person. (For federal tax purposes, Merchant is considered a U.S. person if Merchant is: an individual who is a U.S. citizen, or U.S. resident alien, partnership, corporation, company or association created or organized in the United States or under the laws of the United States, and estate (other than a foreign estate), or a domestic trust (as defined in the Internal Revenue Code section 301.7701-7.))
(h) No owner, officer, director, employee or agent of Merchant is a current or former "senior" official in the executive, legislative, administrative, military, or judicial branch of any government (elected or not); or an official of a political party; or an executive of a government-owned commercial enterprise; or a family member of any of the foregoing officials; or a close personal or professional associate of any foregoing officials.
1.4 Notifications Regarding Changes in Merchant's Business or Application Information.
(a) Merchant must provide Servicers with immediate notice of its intent to: (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant's business; or (v) alter in any way Merchant's approved monthly volume and average ticket.
(b) Merchant must immediately notify Servicers of any Bankruptcy, receivership, insolvency, levy or similar action initiated by or against Merchant or any of its principals. Merchant will include Servicers on the list of creditors filed with the applicable Bankruptcy Court in connection with any such Bankruptcy, whether or not a claim exists at the time of filing.
(c) Merchant must notify Servicers in writing of any changes to the information in the Merchant Application, including but not limited to a material change to Merchant's financial condition (within three (3) days of such occurrence), any additional location or new business, a change in the business location or contact information, both physical and email addresses, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and how sales are completed. Merchant must also notify Servicers in writing if Merchant sells or closes its business. Except for a change to the financial condition, all such notices must be received by Servicers seven (7) days before the change. Merchant will also provide updated information to Servicers upon request.
(d) Merchant must immediately notify Servicers in writing if Merchant is threatened with or becomes party to any action, suit or proceeding at law or in equity that could substantially impair its right to carry on its business or adversely affect its financial condition or operations.
(e) Merchant must provide separate notification regarding changes to service providers used by Merchant in connection with Servicer-provided services, including but not limited to AXP, and equipment leasing companies.
1.5 Credit and Financial Inquiries: Anti-Money Laundering; Additional Locations: Inspections.
(a) IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person (individual, corporation, partnership, trust, estate, or any other entity recognized as a legal person) who opens an account. In order to comply with the requirements of the USA PATRIOT Act, Member Bank may require the Merchant to provide its legal name, street address, taxpayer identification number and other information that will allow Member Bank to identify Merchant prior to establishing accounts under, or in connection with, this Agreement. Member Bank reserves the right to require that Merchant promptly provide, to Member Bank sufficient identification documentation upon request and in connection with USA PATRIOT Act compliance. U.S. Economic Sanctions. Prior to establishing accounts under, or in connection with, this Agreement, Member Bank may require identifiable information on the Merchant's Cardholders to allow U.S. Bank USA to remain in compliance with U.S. Economic Sanctions. Merchant agrees to promptly provide any such information to Member Bank.
(b) Merchant hereby authorizes Servicers to make, at the time of submission of the Merchant Application and at any later time during which Merchant owes any obligation to Servicers, any credit inquiries which, in their discretion, may be necessary or prudent. Merchant, and each individual owner thereof (in the case of an unincorporated business), general partner thereof (in the case of a partnership), Guarantor, individual executing this Agreement, and individual who is or becomes personally liable for the performance of the obligations of Merchant under this Agreement, hereby agrees that such inquiries may include, in the Servicers' discretion and without limitation, obtaining a consumer credit report of each of them. If requested to do so by Servicers, Merchant shall provide the written consent of any other person for which an inquiry has been or is to be. Merchant will also provide any financial statements, income tax and business tax returns and other financial information as Servicers may consider necessary to perform initial or periodic reviews of Merchant's financial stability and business practices.
(c) Information obtained under Section 1.05(a) above may be used by Servicers, without limitation, for one or more of the following purposes: (i) to evaluate current and ongoing credit worthiness; (ii) to evaluate continuing eligibility for the services provided under this Agreement, and to establish, administer, service, and enforce provisions of this Agreement; (iii) to verify the identity of Merchant, and each individual identified in Section 1.05(b) above, including matching records or credit information; (iv) for detecting and preventing fraud and complying with anti-money laundering and terrorist financial regulations, including checking identities against watch lists established by regulatory agencies or similar bodies; (v) to meet legal, regulatory, audit, processing and security requirements; (vi) to support merchant retention operations; or (vi) from time to time, to determine Merchant's eligibility for and occasionally to communicate with Merchant regarding additional products, services or business opportunities.
(d) Merchant, and each person identified in Section 1.05(b), acknowledges and agrees that a permissible purpose exists under the Fair Credit Reporting Act to support the Servicers request for consumer credit inquiries identified in Section 1.05(b). Merchant may withdraw the authorization to obtain consumer credit reports by contacting the AGENT customer service department in writing.
(e) Merchant agrees to permit Servicers at any time from time to time, to inspect locations to confirm that Merchant has adhered or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and licenses or permits (where necessary) to conduct its business. However, nothing in this Section 1.05(e) shall be deemed to waive Merchant's obligation to comply in all respects with the terms of this Agreement.
(f) Merchant may process Card transactions only at locations and websites approved by Servicers. Additional locations may be added, subject to Servicers' approval. Either Merchant or Servicers may delete any location by providing notice as provided in this Agreement.
(g) Representatives of Servicers may, during normal business hours, inspect, audit and make copies of Merchant's books, accounts, records and files pertaining to any Card transactions processed by or through Servicers. 1.6 Guarantor Notifications and Authorizations. The decision of Servicers to enter into and continue processing Card transactions for Merchant is based on the financial condition of Guarantor and the ability of&
Guarantor to guarantee Merchant's obligations under this Agreement. Accordingly, Guarantor must provide Servicers with information regarding changes in his or her contact information and financial circumstances. Guarantor agrees to take the actions required under Section 1.04(b) through (e). Guarantor also authorizes Servicers to make ongoing inquiries about Guarantor as detailed in Section 1.5. For purposes of understanding Guarantors obligations and authorizations under this Section, Guarantor will apply the provisions of Section 1.04 and 1.05 to Guarantor by substituting the term Guarantor in place of Merchant where it appears in such sections.
(a) Merchant will establish and maintain an Account at a depository institution approved by Servicers. Merchant will maintain sufficient funds in the Account to satisfy all obligations, including the fees, Chargebacks and returns contemplated by this Agreement. Merchant irrevocably authorizes Servicers to debit the Account for fees, Chargebacks, returns, fines and any other penalties or amounts owed under this Agreement. In the event the Account lacks sufficient funds, Merchant and Guarantors authorize Servicers, without notice, to debit any bank account in their name(s) or the name of any affiliated entity. Merchant must obtain prior consent from Servicers to change the Account. If Merchant does not obtain such consent, Servicers may immediately terminate this Agreement and may take other action necessary to protect their interests.
(b) Servicers will settle all valid Card transactions to the Account subject to the terms of this Agreement. Merchant authorizes Servicers to initiate reversal or adjustment entries and initiate or suspend such entries.
(c) Servicers, in their sole discretion, shall grant Merchant provisional credit for Card transaction amounts, subject to receipt of final payment by Servicers and subject to all Chargebacks and other amounts owed to Servicers under this Agreement.
(d) Merchant authorizes Servicers to initiate debit/credit entries to the Account, as the Account may be changed from time to time and to any other account maintained by Merchant at any institution, all in accordance with this Agreement. In the event Merchant changes the Account, this authorization will apply to the new Account. This authorization will be effective until both: (i) Servicers have received written notification from Merchant terminating this authorization, and (ii) all obligations of Merchant to Servicers have been paid in full. Merchant may be required to provide to Servicers with a voided Account check and/or fill in the required Account numbers on Merchant Application.
(e) If the Account is closed or is otherwise unavailable to Servicers for ACH debit, Merchant consents to Servicers locating additional deposit accounts or assets by using any means legally available. In this event, Merchant waives all rights to their privacy in favor of Servicers until such time as all unpaid Chargebacks and fees owed to Servicers have been paid in full.
1.8 Reserve Account.
discretion to be owed by Merchant pursuant to this Agreement. Servicers may also require as a condition of providing continued services, that Merchant fund and maintain a Reserve Account with Servicers as security against any costs, losses or expenses incurred by Servicers in connection with the provision of services to Merchant. Merchant's obligation to maintain any Reserve Account shall survive the termination of this Agreement by a period of two hundred seventy (270) days (or longer depending on Merchant's product and business practices) during which time Servicers' right, title and interest therein shall continue. In addition Merchant further agrees:
(a) Liabilities to be paid from the Reserve Account include, but are not limited to, those arising out of actual and/or potential post termination Chargebacks, as well as any and all post-termination fees, charges and expenses due or anticipated to be due Servicers from Merchant.
(b) The Reserve Account shall be in such amount Servicers deem reasonable under the circumstances in their sole discretion. The Reserve Account may be funded and/or replenished by Servicers by withholding from Merchant's Card transaction proceeds, and/or withholding or withdrawing from, or freezing all or any part of, the Account and/or any other deposit accounts maintained by Merchant wherever found by any means legally available. Unless Servicers agree otherwise in writing with Merchant, the Reserve Account shall not bear interest.
(c) Servicers may enforce their right, title and interest in the Reserve Account without notice or demand being first made to Merchant. Servicers' right to sums owed them by Merchant pursuant to this Agreement shall in no way be limited by the balance or existence of the Reserve Account. Servicers' right, title and interest with respect to the Reserve Account shall survive the termination of this Agreement.
(d) Servicers may exercise their rights under this Agreement to collect any amounts due to Servicers including, without limitation, rights of set-off and recoupment. Merchant shall have no right to withdraw funds or debit the Reserve Account.
(e) It is stipulated and agreed that the funds placed in the Reserve Account are trust fund monies legally and exclusively held for the benefit of Servicers. In the event of Bankruptcy proceedings, Servicers may exercise their rights under this Agreement to debit the Reserve Account for amounts due Servicers regardless of the pre-petition or postpetition nature of the amount due Servicers. In the event of a Bankruptcy proceeding, Merchant also agrees that it will not contest any motion for relief from the automatic stay which Servicers may file to debit the Reserve Account.
(f) Servicers may retain funds in the Reserve Account for as long as Merchant may be liable to make payments under this Agreement. Funds are typically retained in the Reserve Account for a minimum of two hundred seventy (270) days from the date of the oldest Card transaction in question or the date of termination, whichever is longer, and may be retained longer depending on the nature of Merchant's Card transaction activity. Servicers will have sole control of the Reserve Account. In the event of a Bankruptcy proceeding Servicers do not consent to the assumption of this Agreement. Nevertheless, if this Agreement is assumed, Merchant agrees that in order to establish assurance of future performance within the meaning of 11 U.S.C. Sec 365, as amended from time to time, Merchant must establish a Reserve Account in an amount satisfactory to Servicers.
Merchant acknowledges and agrees, notwithstanding anything set forth in this Agreement to the contrary, that any and all credits provided to Merchant by Servicers for collected Sales Drafts under this Agreement are provisional and cannot be equitably finalized until the respective periods permitted for Chargebacks, returns, fees, fines, penalties and other adjustments to be assessed or implemented have all expired under this Agreement. These Chargebacks, returns, fees, fines, penalties and other adjustments are an integral part of the credit to be given to Merchant in respect of such Sales Draft. To the extent that any Chargeback, return, fee, penalty, fine or other adjustment is assessed or implemented, Servicers may exercise their right of recoupment with regard to the credit provisionally paid for the respective Sales Draft. In the absence of this remedy, Merchant acknowledges that it would be overpaid for the respective Sales Draft, and such overpayment shall be held in trust by Merchant as the legal and equitable property of the Servicers. Merchant also acknowledges that, in order for rights and obligations of the parties to be fairly and equitable administered, the various Sales Drafts presented by Merchant to Servicers shall constitute a single, integrated transaction, and not a series of separate or discrete transactions.
1.10 Security Interest.
To secure MerchaJch deposit accounts until such time as all amounts due have been paid. Servicers may enforce this security interest as applicable by:
(a) Making an immediate debit/charge via the ACH system to any deposit account standing in the name or names of Merchant and/or Guarantor, without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the Automated Clearing House (ACH) system;
(b) Freezing the entire Account and/or Reserve Account, without notice or demand of any kind, upon Servicers determination that Merchant has breached any term of this Agreement;
(c) Taking possession of any or all of Merchant's or Guarantor's personal assets or property;
(d) Placing a receiver within Merchant's place of business without notice or bond to intercept and collect all income derived from Merchant's operations until such time as any indebtedness owed to Servicers arising under this Agreement has been satisfied in full;
(e) By obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant's and/or Guarantor's personal assets or property.
Merchant and Guarantor hereby irrevocably authorize the Servicers at any time and from time to time to file any financing statements and amendments thereto, in any jurisdiction required for the proper perfection of the Servicers' security interest, and shall provide any statement or notice that Servicers determine to be necessary to preserve and protect this security interest. Merchant's and/or Guarantor's granting of this security interest in no way limits Merchant's and Guarantor's liabilities to Servicers under this Agreement.
1.11 Fiduciary Relationship.
Whenever Merchant and/or Guarantor has a deposit held with Servicers that arose from or is subject to this Agreement, to which, pursuant to this Agreement, Merchant and/or Guarantor is not entitled, Merchant's and Guarantor's entitlement to such deposit shall be as a fiduciary of Servicers until any claim by Servicers against Merchant and Guarantor has been resolved. Merchant and Guarantor each agrees that its failure to repay, within five (5) calendar days of notification by Servicers, funds to which Merchant or Guarantor is not entitled to, shall result in a presumption that Merchant and/or Guarantor intends to misappropriate such funds. Merchant and Guarantor each further agrees that in the event Servicers seek to enforce their rights herein in a court of competent jurisdiction, that any receivership, temporary restraining order, preliminary injunction, writ of attachment or writ of possession may be issued against Merchant and/or Guarantor without bond.
As a primary inducement to Servicers to enter into this Agreement with Merchant, Guarantor, whether by signing the Merchant Application or by acknowledging consent by electronic means, jointly and severally (where more than one Guarantor), and unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Servicers pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor understands further that Servicers may proceed directly against Guarantor without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by Servicers. This guaranty will not be discharged or affected by the death of the Guarantor, will bind all heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any successor of Servicers. Guarantor understand that the inducement to Servicers to enter into this Agreement is consideration for this guaranty, and that this guaranty remains in full force and effect even if the Guarantor receives no additional benefit from the guaranty.
1.13 Payment of Fees and Other Amounts Owed.
Merchant shall pay to Servicers the fees and charges set forth on the Merchant Application, any separate schedule of fees and the fee provisions of this Agreement. Merchant agrees that Servicers may collect their fees and other amounts owed under this Agreement by netting against the proceeds of Merchant's processing activity. The Account will be debited through ACH for such amounts and for any other fees, charges or adjustments incurred by Merchant and associated with the services provided under this Agreement. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. Servicers have the right to change fees as set forth in this Agreement.
1.14 General Fees.
Additional fees specific to each service offering are set forth in the Pricing Schedule section of the Merchant Processing Application. If no per transaction fee is specified, AXP transactions will be subject to the same communications fee as VISA/MasterCard/Discover, specified on the Merchant Application.
Different discount rates and other fees may apply to different types of Card transactions. For example, a "Qualified Discount Rate" will be charged on certain types of Card transactions, including without limitation, swiped cards on which the full magnetic stripe has been read; a higher "Mid-Qualified Discount Rate" will be charged on other types of Card transactions, including without limitation, keyed cards at retail locations or keyed cards with valid AVS response and order number for "card not present" transactions; and a higher "Non-Qualified Discount Rate" will be charged on other types of Card transactions, including without limitation, Business, Corporate, Purchase, International, or Government cards, keyed cards where AVS is not present or missing any of the required data elements, batches not closed within one calendar day of transaction, all rewards cards as defined by the card issuers, and any Pre-Authorized sale that is not processed/captured within 7 business days. Merchant is encouraged to review certain of these additional rates and fees in Article VII below.
A Merchant is billed a transaction fee each time communication is made with the host. This fee is assigned by the agent or sales representative at the time Merchant submits its Merchant Application. Merchant may also be assessed a PCI DSS Non-Compliance fee monthly, until they validate compliance which includes confirming the use of PA DSS validated payment applications.. Merchant may also be required an Early Termination Fee as fully set forth in Section 1.16 below. Furthermore, Merchant may also be assessed a fee in connection with their enrollment in the MyBizPerks Program as fully set forth in Section 6.01 below. Additional charges that may occur from time to time include chargeback fees, re-presentment fees and retrieval fees. A monthly minimum fee will be deducted unless Merchant has met its minimum processing volume. The standard delivery method for Monthly Statements is in an electronic, online version that will be generated each month and located on the Merchant Portal.
SERVICERS MAY MODIFY ALL FEES PAYABLE BY MERCHANT UNDER THIS AGREEMENT, INCLUDING THOSE DETAILED IN THE MERCHANT APPLICATION AND ANY SEPARATE SCHEDULE OF FEES, BY PROVIDING NOTICE TO MERCHANT OF CHANGES TO SUCH FEES; provided, however, that a minimum of thirty (30) days advance notice will be provided to Merchant in the case of any fee increase or introduction of a new fee related to MasterCard and Maestro, and in such event Merchant will have the right to terminate MasterCard or Maestro acceptance under this Agreement within ninety (90) days of receiving notice of such fee increase or introduction of a new fee. Notwithstanding the foregoing, this termination right as to MasterCard acceptance will not apply to any fee increase made in accordance with a predetermined fee schedule included in this Agreement.
1.15 Card Industry Pass Through Fees.
If fees are not listed on the Merchant Application or separate schedule of fees to the contrary, the following fees are applicable. These pass through fees are costs incurred by Merchant as a result of accepting VISA, MasterCard, AXP, Discover Network and JCB Card transactions. The names of the fees that will be charged on Merchant's statement will be listed below.
VISA Assessment, MasterCard Assessment, Discover Network Assessment, AXP Network Access Fee VISA Fixed Acquirer Network Fee (VISA FANF) MasterCard Licensing Fee
|Network and Other Card Brand Fees|
|Acquirer Processing Fee||$0.218 Per Authorization||Network Access Usage Fee||$0.0208 Per Transaction|
|International Fee (IAF)||0.45% or %0.09 Per Settled Transaction (based on MCC)||Cross-Border Fee||0.60% of MC International Sales|
|ISA Fee||0.08% of Visa International Sales||Acquirer's Program Support Fee||0.85% of MC International Sales|
|Cash Advance Fee (ISA)||0.40% of Visa International Sales||Assessment Fee||0.12% of Sales Volume|
|Misuse of Auth Fee||$0.090 Per Authorization||Acct Status Inq SVC Itraregional||$0.025 Per Transaction|
|Zero Floor Limit Fee||$0.20 per Visa Transaction without Proper Authorization||Processing Integrity Fee||$0.055 Per Authorization|
|Credit Assessment Fee||0.13% of Sales Volume||Digital Enablement Fee||0.01% of MC Card Not Present|
|Debit Assessment Fee||0.13% of Sales Volume||Discover*|
|Network Fee (Card Present)||Varies, Based on # of locations||Data Usage Fee||$0.195 Per Transaction|
|Network Fee (Card Not Present)||Varies, Based on CNP volume||International Processing Fee||0.40% Per Settled International Transaction|
|PULSE*||International Service Fee||0.55% Per Settled International Transaction|
|Pulse Debit Network Annual Fee||$15.00||Assessment Fee||0.13% of Sales Volume|
|STAR Debit Network Annual Fee||$15.00||Network Fee||0.15% Per Sales Transaction|
|Non-Swiped Transaction Fee||0.30% Per Non-Swiped Sales Transaction|
|Inbound Fee||0.40% Per International Sales Transaction|
|*Pricing may increase due to any increases in association and other third party fees, which will be passed through to you.|
1.16 Term: Termination.
(a) This Agreement shall not become effective until the Merchant Application is approved by Servicers. Any party may terminate this Agreement or one or more services delivered under this Agreement at any time with or without cause by providing written notice to the other parties and such termination will become effective on the date specified by such notice. If Merchant terminates this Agreement, Servicers shall have thirty (30) days from date of receipt of the notice to close Merchant's Account. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement. If Merchant has applied for Card processing and is approved by Servicers, and if Merchant exercises its option to terminate this Agreement within three (3) years after such approval, then Merchant will pay to Servicers a termination fee as follows: all monthly fees assessed to Merchant under the Agreement and due to Servicers for the remainder of the then existing term of the Agreement, including all minimum monthly fee commitments, shall be immediately due and payable to Servicers, and Merchant hereby authorizes Servicers to deduct the greater of (a) $295 and (b) all remaining monthly fees (provided in no event shall either such amount exceed the maximum amount permitted by applicable state law) from Merchant's account referenced in Section 1.07, or to otherwise withhold the total amount from amounts due to Merchant from Servicers, immediately on or after the effective date of termination. If the Merchant's account does not contain sufficient funds for the debit or the amount cannot be withheld by Servicers from amounts due to Merchant, Merchant shall pay Servicers the amount due within ten (10) days of the date of servicers' invoice for same. The payment of accelerated monthly fees as described here is not a penalty, but rather is hereby agreed by the parties to be a reasonable amount of liquidated damages to compensate Servicers for its termination expenses and all other damages under the circumstances in which such amounts would be payable.
(b) Servicers may terminate this Agreement for any reason immediately without prior notice, including, without limitation, if (i) they have reason to believe that fraudulent Card transactions or other activities prohibited by this Agreement are occurring at any Merchant location, (ii) such action is taken to prevent loss to Servicers or Card Issuers, (iii) Merchant appears on any Card Association's security reporting, (iv) Servicers' merchant acceptance criteria changes, (v) Merchant breaches this Agreement, (vi) Merchant violates the rules and regulations of a Card Association, or (vi) Merchant engages in conduct that creates harm to or loss of goodwill to any Card Association. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement. An administrative account closure fee of $500.00 will be charged if Merchant if terminated for any of the reasons set forth in subparts (i) through (iii) of this section.
(c) Merchant will be assessed a software recovery fee if it: (i) received a free promotional copy of any third party software (such as QuickBooks or Quicken) upon entering in this Agreement, and (ii) terminated this Agreement, in its sole discretion, within two years of acceptance by Servicers. Such software recovery fee shall be determined by Servicers in their sole discretion, but will be no greater than the then current direct, retail price charged to the public to purchase such software. This software recovery fee shall be in addition to any termination fee set forth in this Agreement.
(d) If any case or proceeding is commenced by or against Merchant under any federal or state law dealing with insolvency, Bankruptcy, receivership or other debt relief, this Agreement shall simultaneously therewith automatically terminate, and any amounts due to Servicers under this Agreement shall become immediately due and payable, without the necessity of any notice, declaration or other act by Servicers. Notwithstanding such termination, Servicers, in their sole discretion, may determine that consent to Merchant's subsequent assumption of this Agreement is in Servicers' best interests. In such event, the assumption will be made under terms and conditions that are acceptable to Servicers and comply with the applicable federal or state laws governing such assumption.
(e) ) Merchant acknowledges and agrees that a Card Association can limit or terminate processing in its sole discretion and at any time.
(f) Notwithstanding the foregoing, if within forty-five (45) days of Merchant's execution of this Agreement Merchant provides Agent with written notice that it wishes to terminate this Agreement immediately and, if applicable, returns at Merchant's expense any free terminals Merchant received in connection with this Agreement, Merchant shall not be responsible for the payment of the above-referenced accelerated monthly fees, but shall be responsible for compliance with all other terms and conditions set forth in this Agreement, including but not limited to payment for all fees incurred prior to the termination of this Agreement.
1.17 Effect of Termination.
Without limiting the provisions of Section 1.53 below, all of Merchant's obligations under this Agreement which arise or are incurred prior to the effective date of termination shall survive the expiration or termination of this Agreement.
1.18 Third Parties.
(a) Merchant may be using special products, services or software provided by a third party to assist Merchant in processing Card transactions, including Authorizations and settlements, or accounting functions. Merchant is responsible for ensuring compliance with the requirements of any third party in using its products, services or software. This includes making sure Merchant has and complies with any software updates and ensuring that such software satisfies all security standards required under the Rules (including PA DSS and PCI DSS), as set forth more fully below. Servicers have no responsibility for any Card transaction until that point in time Servicers receive data about the Card transaction.
(b) Merchant will notify Servicers prior to the use of any electronic Authorization or data capture terminal or software provided by any entity other than Servicers or its authorized designee ("third party terminals") to process Card transactions. If Merchant elects to use such third party terminals, Merchant agrees that the third party provider of the terminal is Merchant's agent and Merchant is liable for the acts and omission of its agent and the terminals for failing to comply with the Rules, this Agreement and any applicable federal and state law.
(c) Servicers may provide Merchant with reference links to websites operated by third parties ("Third Party Websites"). These links are provided as a convenience only. Such Third Party Websites are not under the control of Servicers. Servicers are not responsible for the content of any Third Party Website or any link contained in a Third Party Website. Servicers do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Servicers of any information contained in any Third Party Website. Access to any Third Party Website is at Merchant's own risk, and Merchant acknowledges and understands that linked Third Party Websites may contain terms and privacy policies that are different from those of Servicers. Servicers are not responsible for such provisions, and expressly disclaim any liability for them.
1.19 Limitation of Liability.
(a) MERCHANT AGREES AND ACKNOWLEDGES THAT SERVICERS SHALL HAVE NO LIABILITY, EITHER IN TORT, CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING FROM TRANSACTIONS PROCESSED UNDER THIS AGREEMENT EXCEPT IN THE CASE OF GROSS N E G L I G E N C E OR WILLFUL MISCONDUCT ON THE PART OF SERVICERS. ANY SUCH CLAIMS ARE SUBJECT TO LIMITATIONS SET FORTH BELOW AND IN NO EVENT SHALL SERVICERS BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES OR LOST BUSINESS OPPORTUNITIES.
(b) THE LIABILITY, IF ANY, OF SERVICERS, UNDER THIS AGREEMENT WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE DIFFERENCE BETWEEN (I) THE AMOUNT OF FEES PAID BY MERCHANT TO SERVICERS DURING THE MONTH IN WHICH THE TRANSACTION OUT OF WHICH THE LIABILITY AROSE OCCURRED, AND (II) ASSESSMENTS, CHARGEBACKS, RETURNS AND ANY OFFSETS AUTHORIZED UNDER THIS AGREEMENT AGAINST SUCH FEES WHICH AROSE DURING SUCH MONTH. IN THE EVENT MORE THAN ONE MONTH WAS INVOLVED, THE AGGREGATE AMOUNT OF SERVICERS LIABILITY SHALL NOT EXCEED THE LOWEST AMOUNT DETERMINED IN ACCORD WITH THE FOREGOING CALCULATION FOR ANY ONE MONTH INVOLVED. IN NO EVENT WILL THE LIABILITY OF SERVICERS UNDER THIS AGREEMENT EXCEED $50,000.
(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICERS MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES, AND NOTHING CONTAINED IN THIS AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. SERVICERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. SERVICERS FURTHER DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. SERVICERS FURTHER EXPRESSLY DISCLAIM ANY LIABILITY FOR UNAUTHORIZED ACCESS OF FACILITIES OR TO MERCHANT'S DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND SERVICERS' REASONABLE CONTROL.
1.20 Indemnification by Merchant.
Merchant agrees to indemnify and hold harmless Servicers, and their affiliates, agents, representatives, members, or stockholders (including, without limitation, the respective officers, directors, employees, attorneys of all of the foregoing), from and against any and all claims actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) arising out of or relating to:
(a) any transaction that does not conform to the requirements of this Agreement, the program guide, the Rules or applicable laws;
(b) any dispute between Merchant and a Cardholder or check writer or customer, or any Sales Draft or ACH deposit paid for by Servicers;
(c) any actual or alleged action or omission by Merchant that would constitute a breach of any representation, warranty, or obligation of Merchant set forth in this Agreement;
(d) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of its employees, agents or customers;
(e) the reliability, accuracy, or legitimacy of payment data submitted by Merchant;
(e) any alleged infringement of another party's intellectual property rights by Merchant;
(f) a failure of Merchant to maintain the confidentiality of Cardholder or check writer information;
(g) any action Servicers take against the Account under this Agreement. Merchant will also indemnify and hold harmless the institution at which Merchant maintains the Account for acting in accordance with any instruction from Servicers regarding the Account; or
(h) any Chargebacks or fees, fines or penalties assessed by a Card Association with respect to transactions submitted by Merchant to Servicers.
If Merchant is an agency or instrumentality of a state of the United States and is precluded by the law of Merchant's state from entering into indemnification obligations, then the obligations under this Section shall apply only to the extent permitted by such state law. This section will survive termination of this Agreement.
1.21 Confidential Information.
(a) Servicers may disclose information relating to Merchant's sales to financial institutions, Card Associations and third parties that need the information for a purpose relating to this Agreement and to the Servicers' agent or referral source, if any that played a role in establishing Merchant's relationship with Servicers solely for the purpose of computing payment due to such persons. Servicers may also disclose information regarding Merchant as part of an investigation by Servicers into Merchant's compliance with its obligations under this Agreement if Servicers determine there is cause to make such an inquiry, or to the extent required or requested by a court or governmental authority, or otherwise as required by law.
(b) Except to the extent specifically permitted by the Rules, the operating rules of NACHA or this Agreement, Merchant shall not disclose any information relating to any Card transaction , or any Cardholder or check writer, to any person or entity other than Servicers, Servicers' employees, agents and independent contractors, and those of Merchant's employees who have a specific need to know such information except to complete the Card transaction or as otherwise required or authorized under this Agreement or by law. Merchant shall treat all documents provided by Servicers relating to this Agreement as confidential and proprietary and protect them with the same degree of care as Merchant would protect its own confidential and proprietary information, and not less than reasonable care.
(c) Merchant agrees that this Agreement, and all other user information provided by Servicers, the process utilized by Servicers for providing services, and all written communications concerning services hereunder are confidential and proprietary information of Servicers. Merchant agrees that neither it nor any of its employees, agents, representatives, or independent contractors will disclose any such confidential, proprietary information to any person or entity that is not a party to this Agreement without the express written consent of Servicers.
1.22 Safeguarding of Information.
(a) Merchant and its agents shall be in full compliance with Rules adopted by any Card Association relating to the privacy and security of Cardholder and Card transaction data, including without limitation the Payment Application Data Security Standard ("PA DSS") and the Payment Card Industry Data Security Standard ("PCI DSS"), as they may be amended from time to time. Information pertaining to such requirements may be found at https://www.pcisecuritystandards.org. PCI DSS and other industry aligned validation requirements collectively form the basis for each of the following Card Association compliance programs, with which Merchant must also comply: (i) the Cardholder Information Security Program ("CISP") - VISA's data security program; (ii) the Site Data Protection ("SDP") - MasterCard's data security program; (iii) AXP's Data Security Operating Policy ("DSOP"); and (iv) the Discover Network Information Security and Compliance ("DISC") - Discover Network's data security program. Additionally, Merchant shall be responsible for demonstrating compliance by its agents for these programs.
(b) Merchant shall be liable for all fines, charges and penalties that may be assessed by any Card Association as a result of transactions made by Merchant or Merchant's noncompliance with the preceding requirements. Merchant also acknowledges that it may be prohibited from participating in Card Association programs if it is determined that Merchant is non-compliant. Merchant acknowledges that it may be subject to, and Servicers retain the right, to conduct or cause to be conducted an audit to verify Merchant's compliance with the foregoing security requirements. Merchant must notify Servicers within twenty-four (24) hours after becoming aware of (i) any suspected or actual data security breach or (ii) any noncompliance by Merchant with the security requirements set forth herein. In such event, if requested by Servicers or Card Association, Merchant shall, at its own expense, (a) perform or cause to be performed an independent investigation of any data security breach of Card or Card transaction data by an authorized assessor acceptable to Servicers, (b) take all such remedial actions recommended by such investigation, by Servicers or by VISA, MasterCard, AXP or Discover, and (c) cooperate with Servicers in the investigation and resolution of any security breach.
(c) Merchant will not, under any circumstances, disclose any Cardholder's account number nor any information relating to any Cardholder's account number or any Sales Drafts or Credit Vouchers which may have been imprinted with any Card to any person other than Servicers, or as required by law. Merchant agrees not to store, distribute, copy or otherwise manipulate card account numbers or PINs that appear, are encoded or are otherwise associated with Cards. All electronic commerce Merchants must provide Cardholders with a secure transaction method, such as Secure Sockets Layer (SSL) or 3-D Secure. Further, Merchant agrees to store (to the extent such storage is permitted) any and all material containing Cardholder account numbers, imprints or information in a secure manner, in an area limited to selected personnel, and to destroy such numbers, imprints, and information before discarding in a fashion that renders the data unreadable and unrecoverable. Neither Merchant nor any of its agents shall retain or store the full contents of any track on the Magnetic-Stripe, or equivalent data on the Contactless Payment chip, subsequent to Authorization of a Card transaction.
(d) Merchant must notify Servicers of any third party agent of Merchant that will have any access to Cardholder data.
(e) Merchant understands and agrees that due to requirements of law, Card receipts may not contain (i) more than the last five digits of the credit card account number; and (ii) that the Card receipt may not contain the expiration date.
(g) Merchant must fully cooperate with Servicers and Card Associations if Merchant is undergoing a forensic investigation at any time with regard to the Account.
1.23 Account Access Password.
(a) If Merchant receives a user identification name or password from Servicers to access Servicers' database or use services offered by Servicers, Merchant will: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to Servicers' database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify Servicers if Merchant believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through their use has been compromised.
(b) Merchant agrees that any loss incurred as a result of any party gaining access to Account or Servicers' website using information which that party was not authorized to obtain or using such information in a manner not permitted by this Agreement (including but not limited to improper or unauthorized use of Merchant's ID number and PIN) shall be the responsibility of Merchant.
1.25 5 Feedback.
Servicers may provide Merchant with a mechanism to provide feedback, suggestions and ideas about Servicers products and services ("Feedback"). Merchant agrees that Servicers may, in their sole discretion, use the Feedback in any way, including in future modifications of the products and services and any related advertising and promotional materials. Merchant grants Servicers a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, reproduce, modify, create derivative works from, perform, distribute and display for any purpose any information Merchant provides to Servicers in the Feedback. Merchant will have no obligation to provide any Feedback to Servicers.
1.26 Modifications to Agreement.
Servicers may from time-to-time amend any provision of this Agreement, including those relating discount rates or other fees and charges payable by Merchant, whether such amounts are set forth in the Merchant Application, any separate schedule of fees or the fee provisions of this Agreement. Servicers will provide notice to Merchant of the amendment, and unless specified otherwise, the amended agreement shall become effective at the start of the first billing cycle after Servicers have provided notice. Amendments due to changes in a Card Association's fees, interchange, assessments, Rules, gift card systems or any law or judicial decision will become effective at such time that Servicers may specify, which may be sooner than the beginning of the next billing cycle following the date of notice.
1.27 Additional Services Offered by Agent.
From time to time, Agent may offer to Merchant additional products and services which may or may not be related to the processing of Card transactions. In the event of such offers, Merchant shall indicate its desire to Agent to decline such offers or be deemed to have accepted the offers and be liable for payment therefore.
1.28 Compliance with Law.
Merchant shall comply with all laws applicable to Merchant, Merchant's business and any Card transactions, including without limitation to all Rules, state and federal consumer credit and consumer protection laws, as well as laws for any special services used by Merchant, such as gift card and other services.
1.29 Merchant Dispute Notification.
Merchant is responsible for the timely reconciliation of all issues related to services provided under this Agreement. Merchant will promptly examine all merchant statements relating to the Account and immediately notify Servicers in writing of any errors. Merchant's written notice must include: (i) Merchant name and Account number, (ii) the dollar amount of the asserted error, (iii) a description of the asserted error, and an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by Servicers within thirty (30) days after Merchant received the periodic statement containing the asserted error. Merchant may not make any claim against Servicers for any loss or expense relating to any asserted error for sixty (60) days immediately following receipt of Merchant's written notice. During that sixty (60) day period, Servicers will be entitled to investigate the asserted error and Merchant will not incur any cost or expense in connection with the asserted error without notifying Servicers.
1.30 Notices; Consent to Electronic Communications; Telephone Monitoring; Online Statements.
(a) By applying for services and confirming that it has read this Agreement, Merchant is confirming to Servicers that it has the means to access the Internet through its own service provider and download or print electronic communications. Merchant agrees to the receipt of electronic communications by email or by the posting of such information by Servicers at one or more of Servicers' sponsored Merchant Portal.. Such communications may pertain to the services delivered by Servicers, the use of information Merchant may submit to Servicers, changes in laws or Rules impacting the service or other reasons, such as amendment of this Agreement. In addition, all notices and other communications required or permitted under this Agreement by Servicers to Merchant may also be delivered by Servicers to Merchant either by FAX, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under this Agreement by Merchant to Servicers shall be delivered by Merchant to Servicers by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or email shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first (1st) business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section:
(b) From time to time the Servicers and/or their agents may monitor and record telephone calls regarding Merchant's account to assure the quality of their service(s) and for other evidentiary reasons. Merchant agrees, in order for Servicers and/or their agents to service the account or to collect any amounts Merchant may owe, that Servicers and/or their agents may from time to time make calls and/or send e-mails and/or text messages to the Merchant, using prerecorded/artificial voice messages and/or through the use of an automatic dialing device, at any telephone number associated with Merchant's account, including wireless telephone numbers that could result in charges to Merchant, or at any email address Merchant provide to Servicers and/or their agents.
(c) If Merchant elects to receive monthly statements by accessing them online (an "E-statement"), Merchant will need to visit and register at the Merchant Portal, agent's secure website, to obtain a user ID and password. Merchant will be required to provide their merchant ID and other additional information to verify their identification. After completing the registration process, Merchant will be able to access their E-statement(s) by visiting the Merchant Portal and logging in with their user ID and password, which user ID and password can l be reset at any time by Merchant. Merchant will typically have access to the E-statement by the second week of the following month. Merchant acknowledges and agrees that if they elect to receive E-Statements, they will not receive a monthly paper account statement by mail. However, Merchant is entitled to also receive a paper copy of monthly statements through the U.S. mail by visiting the Merchant Portal paper, and following the opt-out procedures provided through that link, or by contacting their agent or the customer service number provided on their statements and in the welcome letter; provided, however, exercising the option to opt out does not constitute a withdrawal of consent to receive monthly E-statements. If Merchant chooses to receive paper statements, Merchant may be charged a monthly fee for each statement. In order to register to receive and access to E-statements, Merchant will need (i) internet access, (ii) a currently supported version of one the following internet browsers Internet Explorer, Firefox or Safari, and (iii) a currently supported PDF viewer (such as Adobe Reader which is available for free download at http://get.adobe.com/reader/). These requirements, browsers and/or PDF readers may change from time to time, and Merchant will be provided notice of any such change. Neither the Servicers nor their agents are responsible for ensuring that Merchant's E- statements are accessible through outdated vendor products. In the event Merchant is unable to access any of the information that has been made available on the E-statement, it is Merchant's obligation to notify its agent immediately. Without limiting any of the rights under this Agreement, neither the Servicers nor their agents are responsible for: (i) consequential or incidental damages caused by services performed by the Servicers or their agents, or Merchant's internet services provider; (ii) damages arising from unauthorized access to Estatements; or (iii) any costs associated with updating, modifying, or terminating Merchant's software or hardware. Servicers and its agents may change, suspend, or terminate all or any aspect of the E-statement upon notice to Merchant
1.31 Further Assurances.
At any time or from time to time upon the request of Servicers, Merchant will execute and deliver such further documents and do such other acts as Servicers may reasonably request in order to effectuate fully the purposes of this Agreement.
1.32 Force Majeure.
Any delay in or failure of performance by Servicers under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond their reasonable control, including, but not limited to, acts of God, power outages, failures of the Internet, failures of banking institutions, or Card Associations.
1.33 Choice of Law, Jurisdiction, Venue.
The parties agree that all performances and transactions under this Agreement will be deemed to have occurred in Michigan and that Merchant's entry into and performance of this Agreement will be deemed to be the transaction of business within the State of Michigan. This Agreement will be governed by Michigan law, without regard to its conflicts- oflaw principles, and applicable federal law. Subject to Section 1.50 below: (i) the parties hereby knowingly, intelligently and voluntarily consent to the exclusive jurisdiction and venue for any action relating to the subject matter of this Agreement in either the courts of the State of Michigan sitting in Oakland County, Michigan or the United States District Court for the Eastern District of Michigan, sitting in Detroit, Michigan; (ii) the parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of the State of Michigan or United States federal law: (iii) the parties hereby knowingly, voluntarily and intelligently waive any claim or defense in any such legal action, suit or proceeding commenced in any of the above-referenced courts asserting that it is not subject personally to the jurisdiction of such court, that service upon it as hereinabove set forth is invalid, that its property is immune or exempt from attachment or execution, that the legal action, suit or proceeding is brought in an inconvenient forum, that the venue of the legal action, suit or proceeding is improper or that this Agreement, or the subject matter hereof, may not be enforced in or by such court.
1.34 Jury Waiver.
In the event any controversy or claim between or among the parties, their agents, employees, representatives, or affiliates shall arise in any judicial or legal proceeding, each party hereby knowingly, intelligently and voluntarily waives its respective right to trial by jury of such controversy or claim.
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, or any part thereof, the prevailing party shall be entitled to recover its reasonable attorneys' and experts' fees and costs in addition to any other legal and/or equitable remedies to which it is entitled.
Merchant agrees that Servicers may issue a press release or similar public announcement referencing Merchant as a customer of Servicers. Merchant also grants to Servicers a limited license to use Merchant's and its affiliates' names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Servicers or their affiliates' services.
1.37 Intellectual Property.
Servicers retain all right, title and interest in and to the services and any related technology utilized by it under or in connection with this Agreement, including but not limited to all associated intellectual property rights. No title to or ownership of any of the foregoing is granted to Merchant or any other entity or person under this Agreement. Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Servicers services or related technology.
Merchant shall promptly pay when due any and all liability or expense relating to the payment of federal, state, and local taxes (other than taxes based in whole or in part upon income attributable to Servicers). Merchant represents and warrants that the taxpayer identification and/or social security number provided to Servicers is true, correct and complete. Upon request, Merchant will complete, sign and deliver to Servicers a Form W-9 to verify Merchant's taxpayer identification and/or social security number. Merchant shall also take all other actions as may be required by Servicers in order to comply with Internal Revenue Section 6050W, and any amendments or supplements thereto.
1.39 Rights Cumulative.
All rights and remedies existing in this Agreement are cumulative to, and not exclusive of, any other rights or remedies available under contract or applicable law.
The headings listed after each section number in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and are not to be considered in connection with the interpretation or enforcement of this Agreement.
Failure by Servicers to enforce one or more of the provisions of this Agreement shall not constitute a waiver of the right to enforce the same or other provision in the future. All waivers must be signed by the waiving party.
1.42 2 Entire Agreement.
This Agreement, including the Merchant Application, any separate schedule of fees, the Rules, information contained in websites or electronic links referenced in this Agreement, and Exhibits to this Agreement, expresses the entire understanding of the parties with respect to its subject matter and except as provided herein. Reference to "this Agreement" also includes all documents, websites and electronic links incorporated into this Agreement by reference.
If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement is construed to remain fully valid, enforceable and binding on the parties.
This Agreement may be assigned by Servicers, but may not be assigned by Merchant, directly or by operation of law, without the prior written consent of Servicers, which may be withheld in its sole discretion. The Servicers' right to assign this Agreement includes the ability to assign Servicers' right to debit the Account (and other accounts). If Merchant nevertheless assigns this Agreement without such consent, this Agreement will be binding upon the assignee at the option of Servicers, but otherwise such assignment shall be null and void, and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs an d personal representatives for an individual, and otherwise its permitted successors and assigns. If Merchant sells its business and the new owners incur Chargebacks or returns, absent notification and consent by Servicers, both the new owner and the original owner and all Guarantors will be held personally liable for all liabilities of Merchant before and after the sale of the business. Without limiting the foregoing, the assignment by Merchant of its future payment rights under this Agreement to any merchant advance company or other purchaser of such payment rights is expressly prohibited, and therefore null and void, unless approved by Servicers' in advance and in writing.
1.45 Authorization of Agreement.
Merchant represents and warrants that the person signing or electronically authorizing this Agreement is duly authorized to bind Merchant to all provisions of this Agreement and that such person is authorized to execute any documents and to take any action on behalf of Merchant which may be required by Servicers now or in the future. Merchant will execute a separate Entity Certification if requested to do so by Servicers. Merchant, by its signature, upon its first transmission of Card transactions, or first payment of fees acknowledges that it agrees to be bound by this Merchant Agreement as it may be modified from time to time.
1.46 Relationship of the Parties.
The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other party.
1.47 Export Restrictions.
Merchant acknowledges that any software provided to it by Servicers in connection with delivering services is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII). These laws include restrictions on destinations, end users and end use.
If copies of this Agreement or any amendments are to be physically signed, this Agreement may be executed and delivered in several counterparts and transmitted by facsimile, a copy of which will constitute an original and all of which taken together will constitute a single agreement.
1.49 Electronic Signature.
Merchant may become a party to, and become bound by, this Agreement by completing the Merchant Application and accepting it electronically over the Internet. This is done by clicking or entering "I Agree", by providing an electronic form of signature or otherwise by affirmatively indicating acceptance or consent where requested on an electronic version of the Merchant Application (any such method constituting an "Electronic Consent"). By providing such Electronic Consent, Merchant acknowledges that it has received and reviewed all applicable pages, terms and conditions of this Agreement, and it represents, warrants, consents and agrees as follows:
(a) The electronic application process allows Merchant to sign and agree to legally binding agreements online by providing its Electronic Consent.
(b) Merchant intends to use the electronic application process to provide its Electronic Consent.
(c) Merchant's Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Merchant agrees to be bound by these governances.
(d) The individual providing Electronic Consent on behalf of Merchant is authorized by Merchant to do so.
(e) The Electronic Consent will be binding upon Merchant, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.
(f) The information provided on the electronic version of the Merchant Application is complete and accurate, and Servicers are authorized to verify the information on such Merchant Application and to receive and exchange information about Merchant, including the credit and financial inquiries identified in Section 1.05 of this Agreement and confidential information under Section 1.21 above.