The following schedules are contained in this document:
Till Payments, LLC (Till Payments and/or Payment Facilitator), Processor, and Bank (collectively, we, us or our) will provide ________________________________ (Sub-Merchant, you or your) with certain Card processing services. Capitalized terms used in this Agreement are referred to Section 1.
By entering into this Sub-Merchant Processing Agreement (the Agreement), you agree to comply with the (1) Network Rules as they pertain to Card information you receive through the Payment Facilitator service and (2) Your Card Acceptance Guide.
You agree to comply with Your Card Acceptance Guide and all Network Rules, as such may be changed from time to time. You understand that we may be required to modify Your Card Acceptance Guide and the Agreement from time to time in order to comply with requirements imposed by the Networks.
In offering payment options to your customers, you may elect any one of the following options: (1) Accept all types of Visa and Mastercard cards, including consumer credit and debit/check cards, and commercial credit and debit/check cards; (2) Accept only Visa and Mastercard credit cards and commercial cards (If you select this option, you must accept all consumer credit cards (but not consumer debit/check cards) and all commercial card products, including business debit/check cards); or (3) Accept only Visa and Mastercard consumer debit/check cards (If you select this option, you must accept all consumer debit/check card products (but not business debit/check cards) and refuse to accept any kind of credit cards). The acceptance options above apply only to domestic transactions.
If you choose to limit the types of Visa and Mastercard cards you accept, you must display appropriate signage to indicate acceptance of the limited acceptance category you have selected (that is, accept only debit/check card products or only credit and commercial products). For recurring transactions, you must obtain a written request or similar authentication from your customer for the goods and/or services to be charged to the customer’s account, specifying the frequency of the recurring charge and the duration of time during which such charges may be made.
a. General. You agree to comply, and to cause third parties acting as your agents (Agents) to comply, with the Network Rules. You may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. As of the date of this Agreement, the websites are: https://usa.visa.com/support/consumer/visa-rules.html and https://www.mastercard.us/en-us/about- mastercard/what-we-do/rules.html and https://www.discoverglobalnetwork.com/en-us/partner-with- us/business-owners. You also agree to comply with all applicable state, federal, and local laws, rules, and regulations (Laws). For purposes of this section, Agents include, but are not limited to, your software providers and/or equipment providers.
b. Submitting Transactions. You will only submit Transactions for processing that meet the following requirements;
c. Data Security and Privacy. You represent to us that you do not have access to Card information (such as the cardholder’s account number, expiration date, and CVV2) and you will not request access to such Card information from us. In the event that you receive such Card information in connection with the Services, you agree that you will not use it for any fraudulent purpose or in violation of any Network Rules, including but not limited to Payment Card Industry Data Security Standards (PCI DSS) or applicable law. If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties. You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by Visa, Mastercard or any other Network, including, without limitation, the Visa U.S.A. Cardholder Information Security Program (CISP), the Mastercard Site Data Protection (SDP), and (where applicable), the PCI Security Standards Council, Visa, and Mastercard PA-DSS (Payment Application Data Security Standards) (collectively, the Security Guidelines). If any Network requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit. You may not use any Card information other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Network Rules, Your Card Acceptance Guide or required by law.
d. Security Tools. From time to time, Till Payments or Processor may make available to you certain software, hardware, applications, or other tools designed to assist in complying with the Security Guidelines or other requirements. You acknowledge and agree that unless otherwise agreed between the applicable parties, your use of these tools does not alter or reduce your compliance responsibilities under this Agreement.
e. Security of Access. Sub-merchant agrees to take all reasonable steps to protect the security of the personal electronic devices through which it accesses the Services including, without limitation, developing and safeguarding appropriate passwords.
f. Disputes with Cardholder. You agree that all disputes between you and any Cardholder relating to any Transaction will be settled between you and the Cardholder. We do not bear any responsibility for such disputes.
Upon our receipt of the Transaction Data for Card transactions, we will process the Transaction Data to facilitate the funds transfer from the various Networks for the Card sales. After we receive credit for such Transaction Data, subject to our other rights under this Agreement, we will provide provisional credit to the bank account you designate for receiving settlement of Transactions (Settlement Account).
You authorize us to initiate ACH credits and debits to the Settlement Account. Such authorization shall remain in full force and effect until thirty (30) days after Till Payments receive written notification from Sub-Merchant of termination of the ACH authorization, by email to US-Support@tillpayments.com. We reserve the right to terminate or suspend the services at any time that you fail to provide an active Settlement Account with debit authorization. In the event that setoff against payments made to Sub-merchant are not sufficient to cover the Fees and other amounts due under this Agreement, Sub-merchant agrees that we may initiate an ACH debit to the Settlement Account for such amounts.
You must not submit transactions for payment until the goods are delivered or shipped, or the services are performed. If the Cardholder disputes being charged for merchandise or services before receiving them, a Chargeback may result. We will provide you with statement or electronic reporting (either, Statements) reflecting the fees, settlement amounts, and other information related to the Services. You must review the Statement and inform Till Payments within 45 days.
You acknowledge and agree that you are solely responsible for all losses of any kind, including but not limited to (a) credit, chargeback, and fraud losses, and Network assessments that we may incur in connection with your Transactions; and (b) any fines, fees, assessments, or other costs or liability we may incur as a result of your violation of Law, Network Rules, Security Guidelines, or this Agreement.
Chargebacks can be received for a number of reasons. The following are some of the most common reasons for Chargebacks: (a) a refund is not issued to a customer upon the return or non-delivery of goods or services; (b) an authorization/approval code was required and not obtained; (c) the transaction was allegedly fraudulent; (d) the customer disputes the Card sale or the signature on the sale documentation, or claims that the sale is subject to a set-off, defense or counterclaim; or (e) The customer refuses to make payment for a Card sale because in the customer's good faith opinion, a claim or complaint has not been resolved, or has been resolved but in an unsatisfactory manner. You acknowledge and accept that you are solely liable for Chargebacks that occur in connection with your Transactions.
You agree to pay Till Payments the fees associated with the provision of the services contemplated hereunder, as specified on the Till Payments dashboard, and in accordance with this Agreement (including Exhibit A) and any other agreement between you and Till Payments (Fees). You understand and agree that Till Payments may direct Processor to pay Till Payments any Fees you owe out of amounts settled for your Transactions. Notwithstanding anything to the contrary in this Agreement, Till Payments may change or add Fees upon notice to you.
You further agree that Till Payments may direct Processor to pay Till Payments any amounts you owe Till Payments in connection with transactions and agreements outside the scope of this Agreement. You agree that neither Processor nor Bank shall have any liability in connection with processing such payment instructions provided by Till Payments.
You acknowledge that in addition to any other rights afforded us hereunder, we may establish a reserve account to satisfy your obligations or potential obligations under this Agreement (the Reserve), which may be funded by: (a) our demand and receipt of immediate payment for such amounts; (b) debiting the Settlement Account; (c) withholding your settlement payments until all amounts are paid, (d) delaying presentation of your refunds until you make a payment to us of a sufficient amount to cover the Reserve; and (e) pursuing any remedies we may have at law or in equity.
The Reserve will contain sufficient funds to cover any unbilled processing costs plus our estimated exposure based on reasonable criteria for Chargebacks, fines, returns and unshipped merchandise and/or unfulfilled services. We may (but are not required to) apply funds in the Reserve toward, and may set off any funds that would otherwise be payable to you against, the satisfaction of any amounts which are or become due from you pursuant to this Agreement. The Reserve will not bear interest, and you will have no right or interest in the funds in the Reserve; provided that upon satisfaction of all of your obligations under this Agreement, we will pay to you any funds then remaining in the Reserve. Any funds in the Reserve may be commingled with other funds, and need not be maintained in a separate account. Effective upon our establishment of a Reserve, you irrevocably grant to us a security interest in any and all funds, together with the proceeds thereof, that may at any time be in our possession and would otherwise be payable to you pursuant to the terms of this Agreement. You agree to execute and deliver to us such instruments and documents that we may reasonably request to perfect and confirm the security interest and right of setoff set forth in this Agreement. The parties’ rights and obligations under this Section shall survive termination of this Agreement.
You authorize us, directly or through affiliates or contractors, to make any investigation of your finances, activities, and operations as we deem necessary and appropriate. Upon request, you will promptly provide us with any necessary permissions or consents, financial statements or other information reasonably requested by us to perform credit risk, security, qualification, and other reviews related to the provision of the Services, transactions submitted, fulfillment of obligations to us or Cardholders, or your financial condition. In addition, you authorize us (i) to share such information with each other; and (ii) our respective Affiliates and service providers as necessary to provide the Services.
We may perform a reasonable audit of your records related to performance under this Agreement during your normal business hours, upon 30 days’ advance written notice to you. Financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide other information concerning your business and your compliance with the terms and provisions of this Agreement as we may reasonably request.
This Agreement shall be effective upon the date of its execution by all parties (the Effective Date) and shall remain effective for an initial term of four (4) years from the Effective Date. Thereafter, the Agreement shall automatically continue until terminated by either party upon the provision of thirty (30) days’ notice to the other party.
The occurrence of any of the following events shall constitute an Event of Default: A material adverse change in your business, financial condition, business procedures, prospects, products or services; or Any assignment or transfer of voting control of you or your parent; or A sale of all or a substantial portion of your assets; or Irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable Security Guidelines, each as determined by us, an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; or Any of your conditions, covenants, obligations or representations or warranties in this Agreement are breached in any material respect or are incorrect in any material respect when made or deemed to be made; or You shall file a petition or have a petition filed by another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or Your violation of any applicable law, Network Rule or provision of this Agreement; or Our reasonable belief that termination of this Agreement or suspension of services is necessary to comply with any applicable laws, regulations, or Network Rules, including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the US Department of the Treasury.
Upon the occurrence of (1) an Event of Default specified in subsections (d) – (h) we may immediately terminate the Agreement, without notice, and all amounts payable hereunder shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by you; or (2) any other Event of Default, we may terminate this Agreement after giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder shall be due and payable on demand.
Neither the expiration nor termination of this Agreement shall terminate the obligations and rights of the parties pursuant to provisions of this Agreement which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Agreement. All obligations by you to pay or reimburse us for any obligations associated with transactions you have submitted to us are intended to survive termination of this Agreement.
If any Event of Default shall have occurred and regardless of whether such Event of Default has been cured, we may, in our sole discretion, exercise all of our rights and remedies under applicable law, and this Agreement.
The Networks often maintain lists of merchants who have had their merchant agreements or Card acceptance rights terminated for cause. If this Agreement is terminated for cause, you acknowledge that we may be required to report your business name and the names and other information regarding its principals to the Networks for inclusion on such list(s). You expressly agree and consent to such reporting if you are terminated as a result of the occurrence of an Event of Default or for any reason specified as cause by the Networks. Furthermore, you agree to waive and hold us harmless from and against any and all claims which you may have as a result of such reporting.
In the event we provide notice to you of an increase in the fees for services, you may terminate this Agreement without further cause or penalty by providing us 30 days advance written notice of termination. You must terminate within 30 days after we provide notice of the fee increase (Fee Termination). However, maintaining your account with us or your continued use of our Services after the effective date of any increase shall be deemed acceptance of the increased fees for Services, throughout the term of this Agreement. In the event that you provide a Fee Termination, you and Till Payments shall have thirty (30) days to come to a mutually agreeable resolution to the fee change, and, in the event a resolution is reached or Till Payments rescinds or waives the fee change, then you shall not have the right to terminate this Agreement. You acknowledge and agree that this section shall not be intended or construed to permit you to terminate the Agreement as a result of a change or increase in fees from third parties or in passthrough fees.
In the event this Agreement is terminated by Till Payments, Processor and/or Bank prior to the end of the Term due to an Event of Default caused by Sub-merchant, Sub-merchant will be charged a fee of $500.00 for such early termination. In the event Sub-merchant terminates this Agreement prior to the end of the Term, the Early Termination Fee described in the Merchant Application will be assessed.
We may terminate this Agreement at any time and for any or no reason upon the provision of thirty (30) days prior notice. We may also temporarily suspend or delay payments to you during our investigation of any issue and/or designate an amount of funds that we must maintain in order to protect us against the risk of, among other things, existing, potential, or anticipated Chargebacks arising under this Agreement or other amounts that may be owing to us under this Agreement.
a. General. You represent and warrant to us at the time and execution and during the term of this Agreement the following: (i) all information in your Application remains accurate and complete; (ii) Sub- merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Sub-merchant’s business operates; (iii) Sub-merchant and the authorized signatory executing this Agreement have the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Submerchant and no provision requiring Sub-merchant’s performance is in conflict with its obligations under any agreement to which Sub-merchant is a party; (iv) There is no action, suit or proceeding pending or to Sub-merchant’s knowledge threatened against Sub-merchant which if decided adversely would impair Sub-merchant’s ability to carry on business substantially as now conducted or which would adversely affect Sub-merchant’s financial condition or operations. Sub-merchant has never entered into an agreement with a third party to perform credit card or debit card processing which has been terminated by that third party.
b. Disclaimer of Warranties. THIS AGREEMENT AND ANY ADDENDA IS AN AGREEMENT FOR SERVICES AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND ANY ADDENDA, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
The parties acknowledge that the Services may be subject to outages and delay occurrences. As such, we do not guarantee continuous or uninterrupted access to the Services. Submerchant further acknowledges that access to the Services may be restricted for maintenance. We will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, we will not be liable for any interruption, outage, or failure to provide the Services.
c. No Consequential Damages. NOTWITHSTANDING ANYTHING IN THIS IN THIS AGREEMENT AND ANY ADDENDA TO THE CONTRARY, IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT AND ANY ADDENDA TO THE CONTRARY, WE AND OUR AFFILIATES’ CUMULATIVE LIABILITY, IN THE AGGREGATE (INCLUSIVE OF ANY AND ALL CLAIMS MADE BY SUB-MERCHANT AGAINST US AND/OR OUR AFFILIATES, WHETHER RELATED OR UNRELATED) FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT ANY ADDENDA) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL NOT EXCEED THE LESSER OF (I) $100,000; OR (II) THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO ANY ADDENDA ATTACHED AND INCORPORATED HEREIN FOR SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING 12 MONTHS.
Sub-merchant agrees to indemnify, defend, and hold harmless Till Payments, Processor, and Bank, their Affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) Sub-merchant’s breach of this Agreement or any other Agreement entered into with Till Payments or its suppliers in relation to Sub-merchant’s use of the Services;(ii) Sub-merchant’s or its employees’/agents’ fraud, gross negligence, willful misconduct, or failure to comply with this Agreement; (iii) Sub-merchant’s use of the Services; and/or (iv) Sub-merchant’s violation of any Laws or Network Rules.
a. Network Marks. Sub-merchant’s use or display of a Network Mark must fully comply with the Network Rules and will terminate effective with the termination of this Agreement or upon notification to discontinue such use or display. Sub-merchant’s use or display of a Network Mark does not provide Sub-merchant with any ownership or interest in that Network Mark.
b. Till Payments Marks. Till Payments grants Sub-merchant a revocable, non-exclusive, nontransferable license to use Till Payments’ trademarks to identify the Service (Trademarks) solely in conjunction with the use of the Service. Sub-merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Till Payments (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation).Upon expiration or termination of this Agreement, Sub-merchant will immediately cease all display, advertising and use of all of the Trademarks.
c. Intellectual Property. Other than the express licenses granted by this Agreement, we grant no right or license by implication, estoppel or otherwise to the Service or any our intellectual property rights. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein.
d. Confidential Information. Each party acknowledges and agrees that the other may be providing to it and that it may become aware of the confidential and proprietary information of the other party, including but not limited to, the terms of this Agreement, financial information and other information related to each party’s business operations. Each party agrees that it will maintain the confidentiality of such information and neither party shall disclose any such information to any other person or entity (other than to those of its employees, agents, contractors, representatives and Affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement). Notwithstanding the foregoing, the requirements of non-disclosure shall not apply to any information which: (a) at the time of disclosure is already in the possession of the receiving party; (b) is independently developed by the receiving party without reliance on the disclosed confidential or proprietary information; (c) is or becomes publicly available through no wrongdoing of the receiving party or (d) becomes available to receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party. Furthermore, this section shall not prohibit the receiving party from (x) disclosing information to its Affiliates, service providers, or other third parties as necessary to provide the services described in this Agreement; or (y) making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that receiving party shall provide disclosing party with prompt notice, unless prohibited by law or court order, thereof so that disclosing party may seek an appropriate protective order or other remedy. If in the absence of a protective order or other remedy or waiver of the terms of this section, if receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such confidential or proprietary information, receiving party may disclose such information upon written notice to disclosing party unless prohibited by law or court order.
a. Force Majeure. No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused directly or indirectly by a force majeure event. In any such event, the non-performing party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.
b. Notices. All notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the Services) shall be in writing, if to SubMerchant, at _____________________________________ or by any electronic means, including but not limited to the e-mail address you have provided to us, if to Payment Facilitator at Till Payments, LLC, Attn: General Counsel, 3133 W Frye Road, Suite 101, Chandler, Arizona 85226. Notice shall be deemed to have been given, if sent by mail or courier, when received and if sent by facsimile machine, when the confirmation copy is actually received. Notice given in any other manner, including by electronic means, shall be effective when delivered.
c. Publicity. No party shall make any press release or other public disclosure concerning the terms and conditions of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).
d. Entire Agreement; Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and supersedes any previous agreements and understandings. Except as provided in this Agreement, this Agreement can be changed only by a written agreement signed by all parties. A party's waiver of a breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition.
e. Severability. The parties intend every provision of this Agreement and any addenda to be severable. If any part of this Agreement and any addenda are not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.
f. Assignability. This Agreement may not be assigned by Sub-merchant directly or by operation of law without Till Payments’ written approval. If Sub-merchant nevertheless assigns this Agreement without the consent of Till Payments, this Agreement shall be binding upon the assignee. Sub-merchant shall inform Till Payments of any such assignment. Sub-merchant agrees that our rights and obligations hereunder may be transferred, and we may assign this Agreement.
g. Tax Reporting. We are required to report to the IRS, on an annual basis, Sub-merchant’s annual gross processing volume. Sub-merchant is responsible for providing us with a matching taxpayer identification number and legal name on file with the IRS and shall be liable to us for any amounts incurred arising out of incorrect information or the failure to provide such information. We will provide Sub-merchant a copy of Sub-merchant’s 1099-K by January 31st of each year for the previous calendar year’s transaction activity.
h. Consent to Electronic Communications and Notices. Sub-merchant consents to electronic delivery of all documents related to the Services, and accepts any future changes to those documents that may be delivered to Sub-merchant. By consenting to conduct transactions and receive disclosures and notices electronically, Sub-merchant agrees to provide us with the information needed to communicate electronically. Sub-merchant agrees to keep its e-mail information current at all times.
i. Governing Law. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Delaware without regard to conflicts of law provisions.
Sub-merchant agrees to the Network Required Disclosures set forth below.
Till Payments, LLC 3133 W Frye Road, Suite 101, Chandler, Arizona 85226 www.tillpayments.com (347) 991-5997
The Bank’s mailing address is Wells Fargo Bank, N.A., PO Box 6079, Concord, CA 94524, and it’s phone number is (844) 284-6834.
i. The Bank is the only entity approved to extend acceptance of Network products directly to you. ii. The Bank must be a principal (signer) to this Sub-Merchant Agreement. iii. The Bank is responsible for educating you on pertinent Visa and Mastercard Network Rules with which you must comply; but this information may be provided to you by Payment Facilitator. iv. The Bank is responsible for and must provide settlement funds to Payment Facilitator for distribution to Sub-Merchant or directly to Sub-Merchant. v. The Bank is responsible for all funds held in Reserve.
i. In the event Sub-Merchant obtains Card Information, ensure compliance with Cardholder data security and storage requirements. ii. Maintain fraud and chargebacks below Network thresholds. iii. Review and understand the terms of this Sub-Merchant Agreement. iv. Comply with Network Rules. v. Retain a signed copy of this Disclosures Page.
i. You may download “Visa Regulations” from Visa’s website at: https://usa.visa.com/support/consumer/visa-rules.html ii. You may download “Mastercard Rules” from Mastercard’s website at: https://www.mastercard.us/en- us/business/overview/support/rules.ht
The responsibilities above do not replace the terms of the Sub-Merchant Agreement and are provided to ensure that the Sub-Merchant understands some important obligations of each party and that the Bank is the ultimate authority should the Sub-Merchant experience any problems.
This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Sub-Merchant Agreement”) is made among First Data Merchant Services LLC (“Acquirer”), Pathward, National Association (“Member Bank”), Till Payments LLC (“Provider”), and the Sub-Merchant as named in the Application that applies to participate in Transactions using Till Payments’ processing products (“Sub-merchant”) in connection with the agreement between Sub-merchant and Provider pursuant to which Provider will act as a payment facilitator for Sub-merchant (“Agreement”). Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Sub-Merchant Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover (“Discover”), and certain similar entities (collectively, “Associations”), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Sub-Merchant Agreement, Sub-merchant has fulfilled such requirement. Member Bank is the member of VISA and MasterCard that sponsors Provider, Acquirer, and Sub-merchant’s acceptance of VISA and MasterCard transactions. Member Bank will also facilitate a portion of the debit transactions as set forth in the Acquirer Agreement. As between Member Bank and Acquirer and Member Bank and Provider, only Member Bank is approved to extend acceptance of VISA and MasterCard transactions directly to Provider and/or Sub-merchant. Member Bank is responsible for providing Provider (as allowed by the Operating Rules) or Sub-merchant with settlement funds for VISA and MasterCard transactions. The acquiring services that Sub-merchant receives from any Association other than VISA, MasterCard, and certain debit Associations are provided by Provider and/or Acquirer and not by Member Bank.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Sub-Merchant Responsibilities. For purposes of this Sub-merchant Agreement, “Card” refers to a card, code, device, or other means allowing access to a credit, debit, prepaid, stored value, or similar account, and a “Cardholder” refers to the person to whom a Card was issued. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA, MasterCard, and Discover websites for a copy of the VISA, MasterCard and Discover regulations. The websites are: http://usa.visa.com/merchants/ and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers. Sub-merchant represents and warrants that it shall only complete sales transactions produced as the direct result of bona fide sales made by Sub-merchant to Cardholders (each, a “Payor”) and will not submit transactions for payment until the goods are delivered or shipped or until the services are performed.
2. Data Security. Sub-merchant further agrees and represents that it does not have access to Card information (such as the Cardholder’s account number, expiration date, and CVV2) and will not request access to such Card information from Acquirer or Member Bank. In the event that Sub-Merchant receives such Card information in connection with the Services provided under this Sub-Merchant Agreement, Sub-Merchant agrees not to use it for any fraudulent purpose or in violation of any Operating Regulations, including but not limited to Payment Card Industry Data Security Standards (PCI DSS), or applicable Law. If at any time Sub-Merchant has reason to believe Card information has been compromised, Sub-Merchant will notify Acquirer and Member Bank promptly and assist in providing notification to the proper parties. Sub- Merchant will ensure its compliance and the compliance of any third party service provider utilized by Sub-Merchant with all security standards and guidelines that are applicable to Sub-Merchant or such third party service provider and published from time to time by VISA, MasterCard, or any other Association, including without limitation, the VISA U.S.A. Cardholder Information Security Program (CISP), the MasterCard Site Data Protection (SDP), and (where applicable) the PCI Security Standards Council, VISA, and MasterCard PA-DSS (Payment Application Data Security Standards). If any Association requires an audit of Sub-Merchant due to a data security compromise event or suspected event, Sub-Merchant will cooperate with such audit. Sub-Merchant may not use any Card information other than for the sole purpose of completing the transaction authorized by the Payor for which the information was provided or as specifically allowed by Operating Regulations, the Your Payments Acceptance Guide provided by Provider, or required by applicable Laws. Sub-Merchant will reimburse Acquirer and/or Member Bank for all fines, fees, penalties, assessments, or other obligations of any kind imposed by an Association or a regulator on Acquirer or Member Bank due to a data security compromise event (i) caused by Sub-Merchant or its third party service providers or (ii) that otherwise takes place on Sub-Merchant or its third party service providers systems to the extent not caused by Acquirer or Member Bank.
3. Settlement; Chargebacks. a. Settlement. Upon receipt of Sub-merchant’s sales data for Card transactions (“Transaction Data”), Acquirer will process Sub-merchant’s Transaction Data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such Transaction Data, subject to the terms set forth herein, Acquirer, or Member Bank will provide provisional credit of funds to Sub- merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”) for such Card transactions. b. Sub-merchant Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub- merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant- Owned Designated Account. Provider will remit to Sub-merchant in accordance with the Agreement or apply as an offset to any obligation that Sub-merchant may have to Provider, any such payments that Provider receives on Sub-merchant’s behalf. c. Chargebacks. If a Cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub- merchant or Provider. Sub-merchant is solely responsible to pay the amount of any chargebacks resulting from transactions submitted by Sub-merchant under this Sub-Merchant Agreement.
4. Term and Termination. This Sub-Merchant Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Sub-Merchant Agreement shall begin and the terms of the Sub-Merchant Agreement shall be deemed accepted and binding upon Acquirer and Member Bank on the date Acquirer and Member Bank accepts this Sub-Merchant Agreement by issuing a merchant identification number. Unless otherwise terminated pursuant to this Sub-Merchant Agreement, the term of this Sub-Merchant Agreement shall be coterminous with Provider’s Agreement with Sub-merchant.Notwithstanding the foregoing, Acquirer or Member Bank may immediately cease providing Services and/or terminate this Sub-Merchant Agreement without advance notice for any reason, without cause. For example purposes only, Acquirer or Member Bank may terminate this Sub-Merchant Agreement if (i) Sub-merchant or Provider fails to pay any amount to Acquirer or Member Bank when due, (ii) in Acquirer's or Member Bank’s opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer or Member Bank believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire or Member Bank determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer and Member Bank’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer or Member Bank ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer or Member Bank is required to do so by any of the Associations.
5. Indemnification; Limits of Liability; Exclusion of Damages. a. Indemnification. Sub-merchant will indemnify Acquirer and Member Bank (including their respective affiliates, directors, officers, managers, and employees) for losses, damages, costs, or expenses (together, Losses) due to third party claims that result from Sub- merchant’s or Sub-merchant’s third party service providers’ gross negligence, willful misconduct, or breach of this Sub-Merchant Agreement. The indemnified party will promptly notify Sub-merchant of any third party claim that is subject to indemnification under this Sub-merchant Agreement. The indemnifying party will have the opportunity to defend these claims using counsel it selects and will have the authority to enter into a settlement for monetary damages provided that it pays such amounts to the indemnified party. The parties will cooperate with regard to any other conditions of settlement as well as in providing records and access to personnel or other information reasonably necessary to defend any indemnified claims. b. Limits of Liability; Exclusion of Damages. 1. Sub-merchant agrees to provide Acquirer and Member Bank, via a communication with Provider, with written notice of any alleged breach by Acquirer or Member Bank of this Sub-Merchant Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed a waiver by Sub-merchant of any and all rights to dispute such breach. 2. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS SUB-MERCHANT AGREEMENT, IF ANY, ACQUIRER AND MEMBER BANK DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 3. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer and Member Bank arising out of or in any way related to the transactions contemplated herein shall be termination of this Sub-Merchant Agreement. In the event that Sub- merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Sub-Merchant Agreement, Sub-merchant shall proceed against Provider and not against Acquirer or Member Bank, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer or Member Bank have any liability to Sub-merchant with respect to this Sub-Merchant Agreement or the Services. Sub-merchant acknowledges that Acquirer and Member Bank are providing the Services contemplated in this Sub-Merchant Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer and Member Bank are not liable for any action or failure to act by Provider, and that Acquirer and Member Bank shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Sub-Merchant Agreement and Acquirer or Member Bank elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Sub-Merchant Agreement will no longer apply and that Sub-merchant will enter into a separate processing agreement with Acquirer and/or Member Bank, as applicable, which would govern the provision of such services. 4. In the event that, notwithstanding the foregoing, Sub-merchant or Provider has any claim against Acquirer or Member Bank in connection with this Sub-Merchant Agreement, the following will apply: 1. Exclusion of Damages Neither Member Bank nor Acquirer are liable under any theory of tort, contract, strict liability, or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect, or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. 2. Limitation of Liability Member Bank and Acquirer’s liability, in the aggregate (inclusive of any and all claims made by Sub-merchant, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Sub-merchant Agreement) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by Provider for services provided under this Sub-merchant Agreement in the immediately preceding 12 months.
6. Reserve. a. In addition to any holdback and/or reserve rights that Provider may have in the Agreement, Member Bank or Acquirer may require Sub- merchant to fund a cash reserve (Reserve) in an amount that reflects Member Bank’s or Acquirer’s assessment of risk, as each may determine in its discretion from time-to-time. The Reserve is a payment obligation of Member Bank and Acquirer, established by holding back transaction proceeds or debiting the Sub-merchant-Owned Designated Account in order to potentially offset any obligations that Sub-merchant may have to Member Bank or Acquirer. The Reserve is not a segregated fund that Sub-merchant may claim to own. Member Bank and Acquirer are obligated to pay to Sub-merchant any amounts remaining from the Reserve after all other then-current and contingent liabilities or obligations related to Sub-merchant’s payment transactions have expired (as provided for under the Operating Regulations). b. The obligations due to Sub-merchant from the Reserve will not accrue interest unless required by applicable Laws. c. Member Bank or Acquirer will notify Sub-merchant if a Reserve is established (including its amount) or if the amount of the Reserve is modified. d. Member Bank or Acquirer may set off any obligations that Sub-merchant owes to Member Bank or Acquirer from the Reserve. e. Although Sub-merchant acknowledges that the Reserve is a general obligation of Member Bank and Acquirer, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of Sub-merchant that is held by Member Bank or Acquirer, Sub- merchant grants and acknowledges that Member Bank and Acquirer have a security interest in the Reserve and, at Member Bank’s or Acquirer’s request, will provide documentation to reflect this security interest. f. Set-off. All funds that Member Bank or Acquirer owe to Sub-merchant under this Sub-Merchant Agreement are subject to Sub- merchant’s payment obligations under this Sub-Merchant Agreement. Member Bank or Acquirer may set off amounts Sub-merchant owes to either or both of Member Bank or Acquirer against any funds that either or both of Member Bank or Acquirer owe to Sub- merchant.
7. Financial Information; Audit. Sub-Merchant will promptly provide any financial or other information reasonably requested by Acquirer or Member Bank to perform credit risk, security, qualification, and other reviews related to the provision of the services, transactions submitted, fulfillment of obligations to Provider, Acquirer, Member Bank, or Cardholders, or the financial condition of Sub-Merchant. Sub-Merchant authorizes Acquirer and Member Bank to obtain information from third parties when performing credit risk, security, qualification, and other reviews. Acquirer, Member Bank, or their designees may perform a reasonable audit of Sub-merchant’s records related to its performance under this Sub-Merchant Agreement with 30 days’ advance written notice to Sub-Merchant, during Sub-Merchant’s normal business hours, and at Acquirer’s or Member Bank’s expense, as applicable.
8. Notice of Material Change; Third Parties. Sub-Merchant will provide Acquirer with reasonable advance notice of any material change in the nature of Sub-Merchant’s business (including any change in control or merger, any liquidation, any transfer or sale of substantially all of its assets, or any change to Sub-Merchant’s operations that would materially affect the products or services sold, the procedures for payments acceptance, or the fulfillment of obligations to a Cardholder). Sub-Merchant will provide Acquirer with written disclosure identifying the third parties, systems, and services that Sub-Merchant uses to receive, transmit, process, or otherwise manage information or its information technology systems (e.g., without limitation, encryption or firewall providers) related to the transaction information or payment data processed in connection with this Sub-Merchant Agreement (these third parties must be registered providers with the Associations).
9. Confidentiality. 1. Confidentiality. No party will disclose non-public information about another party’s business (including the terms of this Sub-Merchant Agreement, technical specifications, customer lists, or information relating to a party’s operational, strategic, or financial matters) (together, Confidential Information). Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information. 2. Disclosure. The recipient may disclose another party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its subsidiaries, affiliates, subcontractors, or vendors) that need to know it in connection with the recipient’s performance under this Sub-Merchant Agreement and that are bound by confidentiality obligations materially similar to those required under this Sub-Merchant Agreement; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable Laws or Operating Regulations.
10. MATCH Reporting. If this Sub-Merchant Agreement is terminated for cause, Sub-merchant acknowledges that Member Bank or Acquirer may be required to report Sub-merchant’s business name and the names and other identification of Sub-merchant’s principals to the Associations. Sub-merchant expressly agrees and consents to such reporting in the event Sub-merchant is terminated as a result of Member Bank’s, Acquirer’s, or Provider’s termination for cause or for any reason specified by the Association(s) as cause. Furthermore, Sub-merchant agrees to waive and hold Member Bank and Acquirer harmless from and against any and all claims which Sub-merchant may have as a result of such reporting.
11. Notices. a. Notice to Sub-merchant will be sent to: The physical or email address provided in the Application b. Notice to Provider will be sent to: 3133 W Frye Road, Suite 101, Chandler, Arizona 85226 c. Notice to Acquirer will be sent to: First Data Merchant Services LLC, Attn: Executive Vice President – Operations, 5565 Glenridge Connector NE, Atlanta, Georgia 30342; with a copy to: First Data Merchant Services LLC, Attn: General Counsel’s Office, 6855 Pacific Street, AK-32, Omaha, NE 68106. Emailed notices to Acquirer will be sent to: legalpapers@firstdata.com. d. Notice to Member Bank will be sent to: Pathward, Attn: Vice President - Operations, 5501 South Broadband Lane, Sioux Falls, South Dakota 57108; with a copy to: Pathward, Attn: Legal, 5501 South Broadband Lane, Sioux Falls, South Dakota 57108.
12. Arbitration. a. This arbitration provision will be broadly interpreted. If Sub-merchant has a dispute with Acquirer or Member Bank that cannot be resolved informally, Sub-merchant, Member Bank, or Acquirer may elect to arbitrate that dispute in accordance with the terms of this arbitration provision rather than litigate the dispute in court. b. The parties agree that the following will not be subject to arbitration: (a) disputes relating to the scope, validity, or enforceability of this arbitration provision; (b) any claim filed by either party in which the amount in controversy is properly within the jurisdiction of a small claims court; and (c) any dispute related to the validity of any party’s intellectual property rights. c. If a party elects to resolve the dispute through arbitration pursuant to this arbitration provision, the party initiating the arbitration proceeding must open a case with the American Arbitration Association - Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org. d. Because the services provided to Sub-merchant under this Sub-Merchant Agreement concern interstate commerce, the Federal Arbitration Act (FAA) will govern this arbitration provision, including the issue of whether the dispute is subject to arbitration. The Commercial Arbitration Rules of the American Arbitration Association (AAA) will govern any arbitration. If there is a conflict between this arbitration provision and the AAA Rules, this arbitration provision will govern. If the AAA will not administer a proceeding under this arbitration provision as written, it cannot serve as the arbitration organization to resolve the dispute. If this situation arises, the parties will agree on a substitute arbitration organization. If the parties are unable to agree, the parties will mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written. If there is a conflict between this arbitration provision and the rest of this Sub-Merchant Agreement, this arbitration provision will govern. e. A single arbitrator will resolve the dispute. The arbitrator will honor claims of privilege recognized by applicable Law and will take reasonable steps to protect each party’s information and other confidential or proprietary information. If the claim alleged in the dispute is for $10,000 or less and the dispute is not excluded based on Section 16.2 above, Sub-merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement. f. If an award granted by the arbitrator exceeds $50,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The arbitration organization will then notify the other party that the award has been appealed. The members of the three-arbitrator panel will be selected according to the AAA’s Commercial Arbitration Rules. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. g. All parties to an arbitration must be individually named. There will be no right or authority for any claims to be arbitrated or litigated on a class action, joint, or consolidated basis or on a basis involving claims brought in a purported representative capacity on behalf of the general public (such as a private attorney general), other clients, or persons. h. The arbitrator may award injunctive or similar relief only in favor of the individually named party and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award injunctive relief applicable to any class or similarly situated individual or groups. i. The arbitration will take place in Suffolk County, NY. j. Member Bank or Acquirer will pay arbitration filing fees and arbitrator’s costs and expenses of which Sub-merchant provides notice to Member Bank or Acquirer prior to the commencement of the arbitration. Sub-merchant is responsible for all additional costs that Sub- merchant incurs in the arbitration, including fees for attorneys or expert witnesses. If the arbitration is resolved in Member Bank and Acquirer’s favor, Sub-merchant will reimburse Member Bank and Acquirer for the filing fees and costs paid to Sub-merchant only up to the extent awardable in a judicial proceeding. If the arbitration is resolved in Sub-merchant’s favor, Sub-merchant will not be required to reimburse Member Bank or Acquirer for any of the fees and costs paid by Member Bank or Acquirer. Notwithstanding anything to the contrary in this arbitration provision, Member Bank or Acquirer will pay all fees and costs that Member Bank or Acquirer are required by applicable Law to pay. k. If Sub-merchant does not wish to arbitrate disputes, Sub-merchant must notify Member Bank and Acquirer in writing within 30 days of the date that Sub-merchant first receives this Sub-Merchant Agreement by writing a notice including Sub-merchant’s name, address, and account number, as well as a clear statement that Sub-merchant does not wish to resolve disputes through arbitration and sending that notice (a) by e-mail to arbitrationoptout@firstdata.com; (b) by fax to 402-916-2200; or (c) by mailing to “Arbitration Opt Out Notice, 3975 N.W. 120th Ave, Coral Springs, FL 33065 (These Fax Numbers and Addresses are only for submitting the notice described in this Section). Sub-merchant’s decision to opt out of arbitration will have no adverse effect on Sub-merchant’s relationship with Member Bank, Acquirer, or the services provided under this Sub-Merchant Agreement. l. If a court of competent jurisdiction finds any part of Section 16.7 to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the dispute will be decided by a court. If any other clause in this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this arbitration provision will be given full force and effect. m. Sub-merchant, Acquirer, and Member Bank have each agreed to waive the right to trial by jury.
13. Publicity. No party will make any press release or other public disclosure concerning the terms and conditions of this Sub-Merchant Agreement without the prior written consent of the other party.
14. Miscellaneous. a. This Sub-Merchant Agreement is entered into, governed by, and construed pursuant to the laws of the State of New York without regard to conflicts of law provisions. b. This Sub-Merchant Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer and Member Bank. Member Bank or Acquirer may each, in whole or in part, assign or transfer this Sub-Merchant Agreement or delegate or subcontract its respective rights, duties, or obligations under this Sub-Merchant Agreement without Sub-merchant’s or Provider’s consent. Sub-merchant further acknowledge that another financial institution may be substituted for Member Bank with respect to Member Bank’s obligations. c. This Sub-Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Sub-Merchant Agreement is for the benefit of, and may be enforced only by, Acquirer, Member Bank, Provider, and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. d. Except as otherwise provided in this Sub-Merchant Agreement, this Sub-Merchant Agreement can be changed only by a written agreement signed by all parties. e. If any provision of this Sub-Merchant Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Sub-Merchant Agreement will be construed as if such provision is not contained in this Sub-Merchant Agreement. f. This Sub-Merchant Agreement constitutes the entire agreement between the parties with respect to the subject matter discussed in this Sub-Merchant Agreement and supersedes any previous agreements and understandings.
This Commercial Entity Merchant Agreement (this “Agreement”) applies to all merchants that (a) use Plum Technologies, LLC.’s (“Plum”) service (the “Service”) for the acceptance of credit or debit card payments; and (b) are considered “Commercial Entities” as defined by Visa, Inc. and MasterCard International, Inc. (collectively, the “Card Brands”). Contingent and effective upon being considered a Commercial Entity, the merchant (“Merchant”) is entering into this Agreement with JPMorgan Chase Bank, N.A. (the “Member”), and Paymentech, LLC (“Paymentech”), to govern the authorization, conveyance and settlement of Transactions utilizing the Service. By agreeing to the Plum Terms of Service to which this Agreement is an exhibit (by “click through” agreement or otherwise), Merchant is fulfilling the Card Brand Rules requiring a direct contractual relationship between the Member and Merchant, and Merchant is agreeing to comply with Card Brand Rules as they pertain to payments Merchant receives through Plum. Certain capitalized terms are defined in Section 12 below. Capitalized terms not otherwise defined herein have the respective meanings given them in the Plum Terms of Service. Paymentech shall be a third-party beneficiary of, and may enforce any provisions of, or cease providing credit card processing services under, the Plum Terms of Service between Merchant and Plum.
1.1 Payment Card Acceptance Policies and Prohibitions. Merchant shall be provided guidelines which prescribe:(a) accept all categories of Visa and MasterCard Payment Cards,(b) honor all foreign bank-issued Visa or MasterCard Payment Cards; and (c) provide the Purchaser with a Transaction Receipt for each Transaction. All Transaction Receipts must conform to applicable law and the Card Brand Rules.
Except to the extent permitted by law or the Card Brand Rules, Merchant must not: (d) engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand;(e) set a dollar amount above or below which Merchant refuses to honor otherwise valid Payment Cards;(f) issue a refund in cash or a cash equivalent (e.g. checks) for any Transaction originally conducted using a Payment Card;(g) request or use a Payment Card account number for any purpose other than to process a payment for goods or services sold; or(h) add any tax or surcharge to a Transaction; if any tax or surcharge amount is permitted under the Card Brand Rules and applicable law, such amount shall be included in the Transaction amount and shall not be collected separately.
1.2 Card Brand Rules. Merchant agrees to comply with:(a) all applicable Card Brand Rules in effect from time to time; and(b) such other procedures as Paymentech may from time to time prescribe for the creation or transmission of Transactions.
1.3 Requirements for Certain Transactions.Merchant represents, warrants, and covenants that, to the best of its knowledge, each Transaction:(a) represents payment for or refund of a bona fide sale or lease of the goods, services, or both, which Merchant has the legal right to sell and which is provided by Merchant in the ordinary course of its business;(b) is not submitted on behalf of a third party;(c) represents a current obligation of the Purchaser solely for the amount of the Transaction;(d) does not represent the collection of a dishonored check or the collection or refinancing of an existing debt;(e) represents goods that have been provided or shipped, or services that have actually been rendered, to the Purchaser;(f) is free from any material alteration not authorized by the Purchaser;(g) or the amount thereof, is not subject to any dispute, setoff, or counterclaim;(h) if such Transaction represents a credit to a Purchaser’s Payment Card, is a refund for a Transaction previously submitted; and(i) complies with the terms of this Agreement, applicable laws and all applicable Card Brand Rules.
Merchant is required to obtain an authorization code through Paymentech for each Transaction. Paymentech reserves the right to refuse to process any Transactions presented by Merchant unless it includes a proper authorization.
3.1 Merchant must:(a) maintain a refund policy (e.g. “NO REFUNDS”, “REFUNDS WITH ORIGINAL RECEIPT WITHIN 30 DAYS OF ORIGINAL SALE”) in accordance with the Card Brand Rules; and(b) disclose all refund policies to Paymentech and to Merchant’s Purchasers.
3.2 Policies for Ecommerce Merchants. Merchant must (subject to subsection (c) below): (a) display the following on each electronic commerce website: i. all refund policies;ii. its Purchaser data privacy policy; iii. offer its Purchasers a data protection method such as 3-D Secure or Secure Sockets Layer (SSL). iv. the address of Merchant’s fixed place of business (regardless of website or server locations); and (b) disclose all refund policies to Paymentech and to Merchant’s Purchasers.(c) Subsections (a) and (b) of this Section shall apply in the event that Merchant is an Electronic Commerce Merchant (as defined in the Card Brand Rules and such Merchant engages in Electronic Commerce Transactions (as defined under the Card Brand Rules).
4.1 Chargeback Reasons. Merchant is liable for all chargebacks.
4.2 Responding to Chargebacks. If Merchant has reason to dispute or respond to a chargeback, then Merchant must do so by the date provided on the applicable chargeback notice. If Merchant misses the chargeback due date, Paymentech has no obligation to investigate or attempt to obtain a reversal or other adjustment to any chargeback on Merchant’s behalf. Upon receiving a chargeback Merchant may resubmit the applicable Transaction for a second presentment if permitted by the Card Brand Rules.
4.3 Excessive Chargebacks. If Merchant is receiving an excessive amount of chargebacks, in addition to Paymentech’s other remedies under this Agreement, Paymentech may terminate this Agreement and cease providing processing services.
Merchant is authorized to use the Visa and MasterCard names, logos, or marks only at the point of sale, on Merchant's promotional materials, and on Merchant’s website to indicate that Visa and MasterCard cards are accepted payment methods for the purchase of goods or services from Merchant through its use of the Service.
6.1 Term. This Agreement is effective upon the date Merchant becomes a Commercial Entity and continues so long as Merchant uses the Service or until sooner terminated by Merchant or Paymentech. This Agreement will terminate automatically upon any termination or expiration of Merchant's agreement with Plum. This Agreement may be terminated by Paymentech at any time (a) based on a breach of any of Merchant's obligations under this Agreement; (b) based on a breach of any of Merchant’s obligations under Merchant’s agreement with Plum; or (c) based on the termination of the payment processing relationship between Plum and Paymentech.
6.2 Post Termination. If this Agreement is terminated by Paymentech, Merchant acknowledges that Paymentech may be required to report Merchant’s business name, and information about its principals, to the Card Brands, and Merchant expressly agrees and consents to such reporting. The termination of this Agreement will not affect either party’s rights or obligations with respect to Transactions submitted prior to termination. Therefore, the provisions governing processing and settlement of Transactions, all related adjustments, fees, and other amounts due from Merchant, and the resolution of any related chargebacks, disputes, or other issues involving Transactions, will continue to apply for all Transactions made prior to termination.
Paymentech agrees to indemnify and hold Merchant harmless from and against all losses, liabilities, damages and expenses arising from our or our employee's gross negligence or willful misconduct in connection with this Agreement. Merchant agrees to indemnify Paymentech, Member, the Card Brands, and their respective affiliates, officers, directors, employees, agents, and sponsoring banks from any losses, liabilities, and damages of any and every kind (including, without limitation, Paymentech’s costs, expenses, and reasonable attorneys’ fees) arising out of:(a) any breach of any warranty, covenant or agreement or any misrepresentation by Merchant under this Agreement;(b) Merchant's or its employees' negligence or willful misconduct; (c) any assessment, fine, or penalty imposed on Paymentech or the Member, and any related loss, cost, or expense incurred by Paymentech or the Member; and(d) any claim, complaint, or chargeback:(i) made or claimed by a Purchaser with respect to any Transaction submitted by Merchant, Merchant’s provision of goods and services to Purchasers, or Merchant’s use of the Service;(ii) caused by Merchant’s noncompliance with this Agreement, applicable law, or the Card Brand Rules (including, without limitation, any breach of a representation or warranty made by Merchant or Merchant’s failure to comply with PCI-DSS); (iii) resulting from any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; or (iv) related to Paymentech’s reporting of Merchant, or any person owning or controlling Merchant’s business, to the Card Brands for inclusion in one or more databases of terminated or high risk merchants maintained by the Card Brands.
Merchant must not: (a) disclose Payment Card Information, except: (i) to select employees, agents, and contractors on a “need to know” basis, solely for the purpose of assisting Merchant in completing a Transaction or otherwise complying with this Agreement; or (ii) as specifically required by PCI-DSS, Card Brand Rules, or applicable law;(b) use Payment Card Information, except:(i) to complete a Transaction; or(ii) as specifically permitted by this Agreement, PCI-DSS, Card Brand Rules, or applicable law; and(c) sell, transfer, or disclose to third parties any materials that contain Transaction or Payment Card Information in the event of Merchant’s failure, including bankruptcy, insolvency, or other suspension of business operations.
Merchant must: (d) comply with the PCI-DSS, Card Brand Rules, and all applicable laws relating to the security, storage, and disclosure of Transactions and Payment Card Information;(e) notify Paymentech immediately if Merchant determines or suspects that Transactions or Payment Card Information has been compromised and assist Paymentech in providing notification to all interested parties as may be required by law or Card Brand Rules, or as Paymentech otherwise reasonably deems necessary; (f) cooperate with any forensic examination or other audit required by the Card Brands,(g) pay for all costs and expenses related to a forensic examination or other audit required by the Card Brands, Paymentech, or Member (including all of Paymentech’s reasonable attorneys’ fees and other costs related to the forensic exam or audit); and (h) take all actions necessary to achieve and maintain compliance in accordance with the results of, and in the time frame set forth in, a forensic examination or audit report from Paymentech, the Card Brands, or Member.
Paymentech may:(i) share Merchant’s financial information, information related to Merchant’s Transactions, and other information provided by Merchant with Paymentech’s affiliates;(j) use or disclose information related to Merchant’s Transactions: (i) as necessary to process Merchant’s Transactions or otherwise provide Services and maintain Merchant’s account pursuant to this Agreement;(ii) to detect prevent, reduce, or otherwise address fraud, security, or technical issues;(iii) to enhance or improve Paymentech’s products and Services generally; or(iv) as required or permitted by the Card Brands or applicable law; and (k) prepare, use, or share with third parties, aggregated, non-personally identifiable information derived from Transactions of all of Paymentech’s customers or specific segments of Paymentech’s customers.
Paymentech will, at its own expense, correct any Transaction if errors have been caused by Paymentech or by malfunctions of Paymentech’s processing systems.
UNDER NO CIRCUMSTANCES WILL PAYMENTECH’S FINANCIAL RESPONSIBILITY FOR ITS FAILURE OF PERFORMANCE UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO PAYMENTECH BY MERCHANT UNDER THIS AGREEMENT (NET OF CARD BRAND FEES, THIRD PARTY FEES, INTERCHANGE, ASSESSMENTS, PENALTIES, AND FINES) FOR THE SIX (6) MONTHS PRIOR TO THE TIME THE LIABILITY AROSE. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO MERCHANT’S FAILURE TO COMPLY WITH PCI-DSS OR OTHER SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OR ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT. ANY FINES, FEES, PENALTIES OR ASSESSMENTS IMPOSED BY THE CARD BRANDS RELATED TO MERCHANT’S ACCEPTANCE OF PAYMENT CARDS SHALL NOT BE DEEMED TO BE CONSEQUENTIAL DAMAGES. ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR COMMERCIAL SERVICES. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY AND PAYMENTECH AND MEMBER HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.
10.1 Section Headings. The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement.
10.2 Assignment. Merchant may not transfer or assign this Agreement without the prior written consent of Paymentech. Any transfer or assignment of this Agreement by Merchant, by operation of law, merger, or otherwise, without Paymentech’s prior written consent is null and void, and Merchant is fully responsible with respect to all Transactions submitted by the purported assignee/transferee, and for any and all related liabilities, chargebacks, expenses, costs, fines, fees or penalties arising from such Transactions. Subject to Card Brand Rules, Paymentech may assign or transfer this Agreement and its rights and obligations hereunder and may delegate its duties hereunder, in whole or in part, to any third party, without notice to or consent of Merchant.
10.3 Parties; Independent Contractor. No agency, partnership, joint venture or employment relationship is created between Merchant and Member by this Agreement. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.
10.4 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement.
10.5 Waivers. No term or condition of this Agreement may be waived except pursuant to a written waiver executed party against whom such waiver is sought to be enforced.
10.6 Entire Agreement. This Agreement represents the entire understanding between Merchant and Paymentech with respect to the matters contained herein and supersedes any prior agreements between the parties. Merchants agrees that in entering into this Agreement it has not relied on any statement of Paymentech or its representatives.
10.7 Notices. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed) to Merchant’s legal address, to Paymentech at: Attn: Legal Department, 8181 Communications Pkwy, Plano, Texas 75024, or to such other address as either party may from time to time specify to the other party in writing.
10.8 Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in Dallas County, Dallas, Texas.
WITH BINDING ARBITRATION MERCHANT ACKNOWLEDGES AND AGREES THAT:(a) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH, MEMBER, OR RELATED THIRD PARTIES;(b) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH, MEMBER OR RELATED THIRD PARTIES; AND (c) MERCHANT IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST PAYMENTECH, MEMBER, AND RELATED THIRD PARTIES. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, MERCHANT AND PAYMENTECH MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS). BUT, EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
Any claim, dispute, or controversy ("Claim") by either Merchant, Paymentech or Member against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entireAgreement,shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Merchant, Paymentech’s or Member’s negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non- representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Merchant and Paymentech will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and Paymentech and/or Member. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section shall be non-severable from the remainder of this Section. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which Merchant appears will take place at a location within Dallas County, Dallas, Texas. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other.
10.9 Force Majeure. Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of Paymentech’s vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 10.10 will affect or excuse Merchant’s liabilities and obligations for chargebacks, refunds, or unfulfilled goods and services.
10.10 Amendment. This Agreement may only be amended by Merchant upon mutual written agreement. Paymentach may amend this Agreement at any time via Plum posting a revised version on the Plum Website. The revised version will be effective at the time Plum posts it. You will be considered as having expressly consented to all changes to this Agreementif you continue to use the Service
The following Sections survive termination of this Agreement: 4, 6.3, 7, 8, 10, 11 and 12
“Card Brand” means is any payment method provider whose payment method is accepted by Paymentech for processing, including, but not limited to, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, electronic check and ACH payments, gift card and other stored value and loyalty program providers. “Card Brand Rules” means the bylaws, rules, and regulations, as they exist from time to time, of the Card Brands, including, without limitation, any operating principles, as may be revised from time to time by the Card Brands in their sole discretion. “Customers” means the person or entity to whom a Payment Card is issued or who is otherwise authorized to use a Payment Card. "Payment Card" means an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that Plum or Merchant accepts from Customers as payment for a good or service. Payment Cards include, but are not limited to, credit and debit cards, electronic check and ACH payments, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts.
Payment Card Information means Information related to a Purchaser or the Purchaser’s Payment Card that is obtained by Merchant from the Purchaser's Payment Card, or from the Purchaser in connection with his or her use of a Payment Card). Such information may include, but is not limited to: the Payment Card account number and expiration date; the Customer’s name or date of birth; PIN data, security code data (such as CVV2 and CVC2); and any data read, scanned, imprinted, or otherwise obtained from the Payment Card, whether printed thereon, or magnetically, electronically, or otherwise stored thereon.
For the avoidance of doubt, the data elements that constitute Payment Card Information are treated according to their corresponding meanings as “cardholder data” and “sensitive authentication data” as such terms are used in the then current PCI DSS. "Transaction" means is a transaction conducted between a Customer and Merchant utilizing a Payment Card in which consideration is exchanged between the Customer and Merchant, and which is submitted to Paymentech by Plum. "Transaction Receipt" means a paper or electronic receipt evidencing a Transaction containing the information required by Card Brand Rules applicable to Transaction Receipts.
This MERCHANT SERVICES AGREEMENT FOR MERCHANTS (“Agreement”) is made among WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, SymmesTownship, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) and Merchant in connection with the agreement between Merchant and Plum. Acquirer will provide Merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement. In consideration of Merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover (“Discover”), and certain similar entities (collectively, “Associations), Merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Agreement, Merchant has fulfilled such requirement. However, Acquirer understands that Merchant may have contracted with Plum to obtain certain processing services and that Plum may have agreed to be responsible to Merchant for all or part of Merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Merchant Responsibilities. Merchant agrees to comply, and to cause third parties acting as Merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Merchant’s software Plums and/or equipment Plums. If appropriately indicated in Merchant’s agreement with Plum, Merchant may be a limited-acceptance merchant, which means that Merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. Merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Page 11 of 14 11.2017 Merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. Merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 –Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
2. Merchant Prohibitions. Merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Merchant, v) disburse funds in the form of cash unless Merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoneycards, or foreign currency, plus any commission or fee charged by the Merchant), or Merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a transaction that represents collection of a dishonored check. Merchant further agrees that, under no circumstance, will Merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
3. Settlement. Upon receipt of Merchant’s sales data for card transactions, Acquirer will process Merchant’s sales data to facilitate the funds transfer between the various Associations and Merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Merchant, either directly to the Merchant-Owned Designated Account or through Plum to an account designated by Plum (“Plum Designated Account”), at Acquirer’s discretion, for such card transactions. Merchant agrees that the deposit of funds to the Plum Designated Account shall discharge Acquirer of its settlement obligation to Merchant, and that any dispute regarding the receipt or amount of settlement shall be between Plum and Merchant. Acquirer will debit the Plum Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Merchant’s designated demand deposit account (“MerchantOwned Designated Account”) upon receipt of such account information from Merchant or Plum, or if Acquirer deposits settlement funds into the Merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Merchant or Plum.
4. Term and Termination. This Agreement shall be binding upon Merchant upon Merchant’s execution of an Order. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Plum’s agreement with Merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Merchant or Plum fails to pay any amount to Acquirer when due,(ii) in Acquirer's opinion, provision of a service to Merchant or Plum may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire determines Merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with Plum terminates, (vi) any Association deregisters Plum, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
5. Limits of Liability. Merchant agrees to provide Acquirer, via a communication with Plum, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Merchant and a waiver of any and all rights to dispute such breach. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Merchant shall proceed against Plum and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Merchant with respect to this Agreement or the Services. Merchant acknowledges Acquirer is only providing this Agreement to assist in Plum’s processing relationship with Merchant, that Acquirer is not liable for any action or failure to act by Plum, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Merchant by Plum. If Plum is unable to provide its services to Merchant in connection with this Agreement and Acquirer elects to provide those services directly, Merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Merchant, will govern Acquirer’s relationship with Merchant. If Plum subsequently provides its services to Merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Plum and this Agreement will govern Acquirer’s relationship with Merchant.
6. Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement “Member Bank” as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Merchant.