This Card Program Services Terms and Conditions (the “Merchant Agreement”) is for the provision of the Services to the Merchant offered by Processor, and is entered into among Merchant, Processor and Bank. The appendices, addenda, schedules, and exhibits that accompany or are incorporated by reference into this Merchant Agreement, as amended from time to time as provided herein, are part of the terms and conditions of this Merchant Agreement, as are the Application and the Operating Rules. All capitalized terms used in this Merchant Agreement are defined terms and the definitions of such terms appear in Section 28 to this Merchant Agreement.
By completing and signing the Application, Merchant applies for the Services provided by Processor and covered by the Application and this Merchant Agreement (collectively, the “Agreement”) and agrees to comply with all terms and conditions contained in the Merchant Agreement, the Operating Rules and such other procedures and rules as Processor or Bank may from time to time prescribe for the creation or transmission of Transaction Data. In its sole and absolute discretion, Processor or Bank may accept or reject Merchant's Application. Note, the Merchant Agreement contains an arbitration clause (Section 21).
IMPORTANT INFORMATION ABOUT BANK’S RESPONSIBILITIES:
Notwithstanding anything in the Agreement, Merchant understands and agrees (A) that Bank does not sponsor Processor into the Discover or American Express or Diner's Club or JCB or CUP Network, is not providing or agreeing to provide Merchant any services hereunder with respect to Discover or American Express or Diner's Club or JCB or CUP Network Card transactions, does not determine or approve or agree upon any fees, charges, pricing, or any other terms and conditions, relating to Discover or American Express or Diner's Club or JCB or CUP Network Card transactions, and has no responsibility or liability to Merchant for Discover or American Express or Diner's Club or JCB or CUP Network Card transactions; and (B) that Bank does not provide or agree to provide Merchant any services hereunder or have any responsibility or liability to Merchant with respect to any PIN-based debit or stored value or electronic benefit transfer transactions (except only to the extent, if any, required under Visa's or Mastercard's Operating Rules or under any mandatory provisions of applicable law), or any other Card type transactions (other than Visa and Mastercard credit and non-PIN based debit/stored value Card transactions), or any other services specified in the Application as covered in whole or in part by this Agreement but as not being provided by Bank; and (C) that to the extent applicable to Discover or American Express or Diner's Club or JCB or CUP Network Cards or transactions, or to any of the other types of Cards, transactions or services referred to above or in the Application as not being provided by Bank, any reference herein or in any of the other documents constituting part of the Agreement to the term "Bank" (except only to the extent the reference constitutes a complete disclaimer of responsibility or liability on the part of Bank, or constitutes an obligation on the part of Merchant to indemnify, defend or hold harmless Bank from or against any responsibility or liability) means Processor only.
1.1 Merchant is responsible for any advice from, acts of and omissions of Merchant's employees, consultants, advisors, contractors, agents, officers and directors. Merchant is responsible for the use, unauthorized use or misuse of Merchant's equipment or software.
1.2 Merchant shall examine each Card physically presented at the point of sale to determine that the Card presented is valid and has not expired. Merchant shall exercise reasonable diligence to determine that the authorized signature on any Card physically presented corresponds to the Cardholder’s signature on the Charge Record.
1.3 Merchant agrees to, at all times, comply with Applicable Law, the applicable Operating Rules, this Agreement, and any future rules or other directives provided or made available to Merchant by Provider or the Card Networks in honoring and accepting properly presented Cards.
1.4 With respect to any Transaction for which a Cardholder is not physically present at the point of sale, such as in any online, mail, telephone or recurring Transaction, Merchant must have notified Processor on the Application or otherwise obtained Processor's prior written approval of Merchant's intention to conduct such Transactions, have procedures in place to ensure that such Transaction is made to a purchaser who actually is the Cardholder and shall at all times comply with the terms of the CNP Addendum and the Operating Rules.
1.5 Merchant agrees to accept all categories of Visa and Mastercard Cards unless Merchant has notified Processor on the Application or otherwise in writing of its election to limit its acceptance of Cards. All such limitations must comply with the Operating Rules in all instances.
1.6 Merchant consents to receiving Documents electronically rather than in paper form. Processor will notify Merchant that a Document is available at Processor's web site with a link to that specific page of the web site containing the Document. Merchant agrees that such notification will be sent to Merchant at the e-mail address provided as part of the Application. Merchant understands and acknowledges that access to the Internet, e- mail and the worldwide web are required for Merchant to access a Document electronically and Merchant confirms that Merchant has such access. Merchant understands that there are costs related to access Documents electronically and Merchant agrees that Merchant is responsible for these related access costs. At any time and without giving Merchant advance notice, Bank and/or Processor may elect not to send a Document electronically, in which case a paper copy of the Document will be sent to Merchant or such Document shall otherwise be provided as provided for herein.
2.1 Merchant agrees to properly obtain an authorization code for the total amount of the Transaction and shall record the authorization code on the Charge Record prior to completing the Transaction. If a Merchant completes a Transaction without an authorization code, Merchant will be responsible for any Chargeback of the Transaction and this Agreement shall be subject to immediate termination without notice. Obtaining an authorization code does not assure that the person using the Card is the Cardholder and will not prevent a Chargeback to Merchant. Processor reserves the right to refuse to process any Transaction presented by Merchant unless it includes a proper authorization.
2.2 Merchant agrees to maintain a written refund policy and to disclose such policy to Processor and all customers. Merchant will submit any changes to its refund policy to Processor in writing at least 30 days before the change and will not implement any change to which Processor reasonably objects. Merchant's policies will not override the Operating Rules and will not prevent Chargebacks to Merchant under those Operating Rules. To the extent that Merchant operates a website through which Transactions are generated, Merchant must include its refund policy on the website in accordance with the Operating Rules. Merchant will not make a refund or adjustment in cash (except when required or permitted by law or the Operating Rules), and will deliver to Processor Charge Record reflecting such refund or adjustment within 3 days of the refund or adjustment. The amount of the refund must not exceed the amount of the original Transaction except for any amount which Merchant agrees to reimburse the Cardholder for return postage. Merchant shall not accept any payment from a Cardholder as consideration for issuing a refund.
2.3 Except as otherwise permitted by the Operating Rules and as approved by Processor in advance, Merchant will not submit a Transaction for processing by Processor until Merchant has delivered or shipped the goods and/or performed all its services.
2.4 Merchant will not submit: (i) any Transaction previously submitted to Processor, (ii) any Transaction that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder, (iii) any Transaction that results from a transaction outside of Merchant's normal course of business, as described on the Application, or (iv) any Transaction that results from a transaction not involving Merchant or not originated as the result of an act between Merchant and a Cardholder.
2.5 Merchant acknowledges that all payments and credits provided to Merchant are provisional and subject to suspension, Chargebacks and adjustments in accordance with this Agreement and the Operating Rules.
2.6 Merchant shall display Card Network marks, advertising and promotional materials in compliance with the Operating Rules and as expressly authorized in writing by Processor. Additionally, Merchant shall not use the Card Network marks other than to display decals, signage, advertising and other forms depicting the Card Network marks that are provided to Merchant by Processor. Merchant shall not use Card Network marks in such a way that Cardholders could believe that the products or services offered by Merchant are sponsored or guaranteed by the Card Networks. Merchant recognizes that it has no ownership rights in the Card Network marks and agrees not to assign to any third party any of the rights to use the Card Network marks.
2.7 The Debit Network used to process debit Transactions will depend upon, among other things, our own business considerations, the availability of the Debit Network at the time of the Transaction, and whether a particular Card is enabled for a particular Debit Network. The Debit Network used to route Merchant’s Transaction may or may not be the lowest cost network available. We may in our sole discretion: (i) use any Debit Network available for a given Transaction; and (ii) remove Debit Networks available to Merchant based on a variety of factors, including availability, features, functionality and business considerations.
3.1 Failure to transmit Transactions to Processor within one business day following the day that such Transaction originated could result in higher interchange fees and other costs, as well as increased Chargebacks. Unless otherwise approved by Processor, Merchant shall not submit Transactions for processing until (i) the Transaction is completed; (ii) the goods are delivered or shipped; (iii) the services are performed; or (iv) Merchant has obtained the Cardholder's consent for a recurring Transaction. Processor reserves the right to refuse to process any Transaction presented by Merchant if Processor reasonably believes that the Transaction may be uncollectible from the Cardholder or was prepared in violation of any provision of this Merchant Agreement, applicable law, or the Operating Rules.
3.2 For Conveyed Transactions, Merchant shall have a valid agreement in effect with the applicable Card Network. If Merchant submits Conveyed Transactions to Processor and Merchant does not have a valid agreement with the applicable Card Network, Processor may, but shall not be obligated to, submit such Transaction to the applicable Card Network and to share with them information about Merchant (from the Application or otherwise) as may be required to approve Merchant's acceptance of the Card Network's Card. Payment of proceeds due Merchant for Conveyed Transactions shall be governed by the agreement Merchant has with the applicable Card Network, and neither Processor nor Bank bear any responsibility for their performance thereunder, including, without limitation, the funding and settlement of Merchant's Conveyed Transactions.
3.3 Except for Conveyed Transactions, Processor will submit Merchant's Transactions to the applicable Card Network. Promptly after Bank receives funds for settled Transactions from the Card Networks, Bank will provisionally fund the Settlement Account. The proceeds payable to Merchant shall be equal to the amounts submitted by Merchant in connection with its Transactions minus the sum of the following: (i) all Processing Fees, fees, charges, and other amounts described in this Agreement or that Merchant has otherwise agreed to pay; (ii) all refunds and Chargebacks; (iii) all Reserve Account amounts; (iv) all fees, charges, fines, assessments, penalties, or other liabilities that may be imposed on Processor or Bank from time to time by the Card Networks and all related costs and expenses incurred by Processor or Bank. All Reserve Account funds and other funds held by Processor and Bank related to the settlement of Merchant's Transactions shall be owned by Processor and Bank. In the event Processor or Bank does not deduct such amounts from Merchant's proceeds when such amounts are due and payable, Merchant agrees to pay all such amounts to Processor and/or Bank immediately without any deduction or offset. Additionally, Processor and/or Bank may debit the Settlement Account or the Reserve Account for such amounts at any time. Merchant shall maintain sufficient funds in the Settlement Account to prevent the occurrence of a negative balance.
3.4 In the event that the proceeds from Merchant's settled Transactions or the balance of Merchant's Settlement Account are not sufficient to pay amounts due under this Merchant Agreement, in addition to any other rights and remedies Processor or Bank may have under this Merchant Agreement, Processor and Bank may pursue one or more of the following options: (i) demand and receive immediate payment for such amounts; (ii) debit the Settlement Account for the amount of the negative balance; (iii) apply funds held in the Reserve Account against the negative amount; and (iv) withhold all or some of Merchant's settlement funds and apply them against the negative amount. Furthermore, if the amount represented by Merchant's Transactions in any day is negative due to refunds or credits being submitted by Merchant in excess of its proceeds from Transactions, Merchant shall immediately provide Processor or Bank, as the case may be, with sufficient funds to prevent the occurrence of a negative balance.
3.5 Merchant must maintain a Settlement Account in Merchant's name in satisfactory condition at a depository institution under arrangements acceptable to Processor and Bank. Merchant agrees that Processor or Bank may charge the Settlement Account for the amount of any Transaction processed under this Agreement or for any return, refund, adjustment, Chargeback, fine, penalty, charge, Processing Fee or fee set forth in this Agreement or any other amounts to which Processor or Bank may be entitled. Merchant may change or close the Settlement Account only upon prior written approval by Processor. Merchant is solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
3.6 Processor will supply a statement reflecting Merchant's processing activity by online access (or otherwise if agreed to by both parties) and Merchant shall ensure that any online access to such statements is secure. Processor shall presume that any amounts Processor or Bank pays to or debits from Merchant are correct unless Merchant disputes these by sending Processor written notice within 30 days of the date of the applicable statement containing any disputed payments or debits.
3.7 If Merchant chooses to purchase, rent or lease processing equipment from Processor or utilizes software provided by Processor for use in processing Transactions, Merchant agrees to pay Processor the purchase, rental or lease amounts, any initial upfront costs as required, and all applicable taxes for such processing equipment or software utilization. PROCESSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER CONCERNING ANY SOFTWARE, EQUIPMENT, OR SERVICES PROVIDED OR PROCURED BY PROCESSOR, AND SUCH SOFTWARE, EQUIPMENT, AND SERVICES ARE PROVIDED “AS-IS” TO MERCHANT. PROCESSOR ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE WHETHER ARISING BY OPERATION OR LAW OR OTHERWISE. Processor will, at Merchant's expense, use reasonable commercial efforts to assist Merchant in enforcing any warranty offered by the third party supplier of such software, equipment or services.
3.8 Merchant authorizes Processor and Bank (or their agents or designated representatives) to initiate debit and credit entries to the Settlement Account through the ACH settlement process for amounts due under this Agreement. This authorization will remain in full force and effect until termination of the Agreement and the full and final payment of all obligations of Merchant due under this Merchant Agreement. Merchant acknowledges and agrees that Processor and Bank will not be liable for any delays in receipt of funds, any failure by Merchant to receive funds, or errors in debit or credit entries caused by Merchant, or third parties, including but not limited to any Card Network or any financial institution.
4.1 Merchant has full liability and responsibility for all Chargebacks and any and all fees, charges, fines, penalties, and liability assessments related thereto. Some of the most common reasons for a Chargeback are (i) the Charge Record was prepared incorrectly or fraudulently (ii) Merchant did not obtain proper authorization, or did not provide a correct and legible authorization code on the Charge Record, (iii) the Cardholder disputes participating in or approving the Transaction, (iv) the Cardholder alleges that return of goods was improperly refused or that a refund was not processed for the Cardholder, (v) the Cardholder has asserted what the Cardholder believes is a good faith claim or defense against the Transaction, or (vi) the Card was not actually presented at the time of the Transaction and the Cardholder denies making the purchase.
4.2 If Merchant has a reason to dispute or respond to a Chargeback, then Merchant must do so by the date provided on the applicable Chargeback Notice. Processor will not investigate or attempt to obtain a reversal or other adjustment to any Chargeback if Merchant has not timely responded to the notice.
4.3 If Processor or Bank determines that Merchant is receiving excessive Chargebacks (as determined by Processor’s or Bank’s reasonable discretion), Processor or Bank may, but are not obligated to, (i) notify Merchant of new procedures it should adopt, (ii) increase or add additional Processing Fees imposed for processing Chargebacks, (iii) establish or increase the amount held in any Reserve Account, and/or (iv) terminate this Merchant Agreement, at Processor's or Bank's' discretion, without advance notice. Merchant must immediately pay any, fees, charges, fines, penalties or liability assessments imposed by a Card Network or Processor or Bank relating to Chargebacks to Merchant.
4.4 Each Chargeback to Merchant is immediately due and payable by Merchant. Without limiting Processor's or Bank's other remedies or Processor's or Bank's security interest described in this Merchant Agreement, Processor or Bank may deduct, debit and withhold the amount of a Chargeback or anticipated Chargeback from the Settlement Account, Reserve Account, or any Merchant account at Bank.
4.5 In order to comply with Retrieval Requests, Merchant shall store and retain Charge Record in compliance with the Operating Rules, including any time frames set forth therein. Within 7 days (or such shorter time as the Operating Rules may require) of Processor sending Merchant a Retrieval Request, Merchant must provide to Processor (i) written resolution of Merchant's investigation of such Retrieval Request, and (ii) legible copies of any supporting documentation requested or required by the Retrieval Request. Merchant acknowledges that failure to fulfill a Retrieval Request timely and in accordance with the Operating Rules may result in an irreversible Chargeback.
4.6 To the extent that Processor or Bank has provisionally paid or may pay a Chargeback or return, Merchant will be obligated to reimburse Processor and Bank for any sums Processor or Bank pay. If Merchant does not reimburse Processor or Bank, Processor and Bank will have all of the rights and remedies of Cardholders under law and may assert any claim on behalf of a Cardholder individually or on behalf of all Cardholders as a class.
As to all Stored Value Card Transactions, if any, in addition to any representations and warranties previously made, Merchant agrees to: (i) comply with all applicable laws relating to Stored Value Card Transactions, and indemnify and hold Processor and Bank harmless from any loss, damage, or claim relating to or arising out of any failure to comply with applicable laws in connection therewith; (ii) be responsible for ensuring that all Stored Value Cards require activation at the point of sale; (iii) provide immediate written notification to Processor of any Stored Value Card fraud losses immediately; (iv) be solely responsible for any and all value adding and fraud losses and expenses relating to or arising from Merchant's Stored Value Card Transactions; (v) discourage transportation of groups of sequentially numbered gift cards; (vi) deactivate or otherwise remove all value from Stored Value Cards that have been compromised; and (vii) be responsible for any fraudulent transactions involving Merchant's Stored Value Cards, including, without limitation, the unauthorized activation of Stored Value Cards, reloading of existing Stored Value Cards (whether pursuant to a manual telephone order or otherwise) with additional value, or the unauthorized replication of Stored Value Cards or Stored Value Card data for fraudulent Transactions.
6.1 Merchant will retain in a secure and confidential manner original, complete and legible copies of each Charge Record for at least 2 years or longer if required by law or the Operating Rules. Merchant shall render all materials containing Card Information unreadable prior to discarding. Merchant will store Charge Records in an area limited to selected personnel, and when record-retention requirements have been met, Merchant will destroy the Charge Records so that Transaction data is rendered unreadable.
6.2 Merchant agrees to comply with the Security Standards. Merchant acknowledges and understands that its use of any fraud mitigation or security enhancement solution (e.g. an encryption product or service), whether provided to Merchant by Processor or a third party, in no way limits Merchant's obligation to comply with the Security Standards or Merchant's liabilities set forth in this Merchant Agreement. Without limiting the foregoing Merchant will have in place and comply with at all times during the Term of this Agreement a comprehensive written information security program that is designed to ensure the security, confidentiality and integrity of Transaction and Cardholder information, and includes a procedure (i) for periodic review to identify new and emerging threats and vulnerabilities and (ii) to take appropriate measures to remediate and remove such threats and vulnerabilities, all in accordance with the Security Standards. Without limiting the generality of the foregoing, Merchant understands that the payment card industry has required all merchants to be PCI DSS compliant. Processor and Bank, in compliance with Card Network mandates, will not board merchants for the Card Program Services provided for in this Agreement that are not PCI DSS compliant. Merchant and Merchant's principals hereby covenant that they are, and will continue for the duration of the Term to be, PCI DSS compliant. Processor and Bank also require compliance with the PA-DSS requirements in accordance with industry mandates, and with all applicable Card Network mandates relating to PIN and PIN entry device (PED) security, including without limitation, and as applicable, the applicable Payment Card Industry PCI PIN Security Requirements, PCI PIN-Entry Device Security Requirements, and PCI Encrypting PIN Pad Security Requirements. Merchant covenants that all point-of-sale (POS) and/or terminal hardware and software (make and version) that Merchant will use to submit Transactions during the Term is PA-DSS compliant, and compliant with all applicable PIN and PED security requirements, and that any future changes in Merchant’s POS hardware or software will be in compliance with the PA- DSS and all applicable PIN and PED security requirements.
6.3 If at any time Merchant determines or suspects that Card Information has been compromised Merchant must notify Processor immediately and assist in providing notification to such parties as may be required by law or the Operating Rules, or as Processor or Bank otherwise reasonably deem necessary. Merchant information may be shared by Processor or Bank with its affiliates and with the Card Networks subject to the provisions of this Agreement and the Operating Rules.
6.4 Without limitation as to Merchant's obligations or liabilities under other provisions hereof, (i) Merchant hereby agrees to indemnify Processor and Bank, including their officers, directors, employees, and agents, and to hold them harmless from any fines, penalties, and liability assessments that may be assessed by the Card Networks or any governmental agency in regards to PCI-DSS or PA-DSS or otherwise in regards to any actual or suspected Data Compromise Event that may occur, as well as all costs of forensic exam/audit, card replacement fees, all claims and demands of Cardholders, Card Issuers, Card Networks, governmental agencies, or other third parties, and all litigation costs and expenses including reasonable attorney's fees, and all other costs of any kind, associated with any actual or suspected Data Compromise Event or noncompliance with the Security Standards or data security requirements of applicable law; and (ii) in the event of a computer or other Data Compromise Event, or suspected computer or other Data Compromise Event, Merchant agrees to abide by Card Network requirements which may include without limitation a forensic network exam by a Qualified Incident Response Assessor (QIRA), and (iii) Merchant agrees to cooperate with Processor and Bank in order to effectively manage breach response.
6.5 Merchant agrees to provide Processor and Bank, within two (2) days upon its request, with such tests, scans, and assessments of Merchant's compliance with Security Standards as may from time to time be required by the Card Networks. Merchant also acknowledges that it may be subject to ongoing validation of compliance with Security Standards.
6.6 Merchant must notify Processor and receive Processor’s prior approval of its use of any Service Provider and, to the extent required by each Card Network, all Service Providers must be (i) compliant with all Security Standards applicable to Service Providers; and (ii) registered with and/or recognized by such Card Network(s) as being so compliant. Merchant agrees to exercise due diligence to ensure that all Service Providers, and any other agents, business partners, contractors, or subcontractors with access to Card Information, maintain compliance with the Security Standards. To the extent required by each Card Network, all Payment Applications or software utilized by Merchant in processing, storing, receiving, or transmitting of Card Information, shall be (a) compliant with all Security Standards applicable to such Payment Applications or software; and (b) registered with and/or recognized by such Card Network(s) as being so compliant. Merchant will be bound to the acts and omissions of its Service Providers and will be responsible for the compliance of such Service Providers with all applicable laws, regulations, Security Standards and Operating Rules. Neither Processor nor Bank shall in any event be liable to Merchant or any third party for any actions or inactions of any Service Provider used by Merchant, and Merchant hereby expressly assumes all such liability.
6.7 Merchant understands that failure to comply with the Operating Rules, including the Security Standards, or the compromise of any Card Information, may result in assessments, fines, and/or penalties by the Card Networks, and Merchant agrees to indemnify and reimburse Processor and Bank immediately for any such assessment, fine, or penalty imposed on Processor or Bank and any related loss, cost, or expense incurred by Processor or Bank. If any Card Network requires a forensic examination of Merchant or any of Merchant's Service Providers, agents, business partners, contractors, or subcontractors due to a Data Compromise Event or suspected event, Merchant agrees to cooperate with such forensic examination until it is completed, including, without limitation, the engagement of an examiner acceptable to the relevant Card Network. Notwithstanding the foregoing, the Card Networks may directly, or demand that Processor or Bank, engage an examiner on behalf of the Merchant in order to expedite the investigation of the Data Compromise Event or suspected event. In either scenario, Merchant agrees to pay for all costs and expenses related to such forensic examination, including all of Processor's or Bank's reasonable attorneys' fees and other costs relating to such forensic examination.
6.9 If Merchant receives any password from Processor to access any of Processor’s systems or otherwise utilize any of Processor’s services, Merchant shall (i) keep the password confidential; (ii) not allow any other entity or person to use the password; (iii) be liable for all action taken by any user of the password; and (iv) promptly notify Processor if Merchant believes that any of Processor’s systems have been accessed or compromised by the use of the password by anyone other than the Merchant.
6.10 Merchant acknowledges and agrees that it is responsible for being aware of and adhering to privacy and data protection laws and Merchant has and will maintain a comprehensive privacy program that is reasonably designed to address privacy risks related to Merchant and Merchant customer and Cardholder information, including personally identifiable information (“PII”), and to protect the privacy of PII. This program includes and will include appropriate privacy controls and procedures, including but not limited to:
6.10.1 the designation of an employee or employees to coordinate and be responsible for the privacy program;
6.10.2 provide specific and adequate disclosures to Cardholders of collection, use, and processing of PII;
6.10.3 the identification of reasonably foreseeable, material risks, both internal and external, that could result in Merchant’s unauthorized collection, use, or disclosure of PII, and an assessment of the sufficiency of any safeguards in place to control these risks. At a minimum, this privacy risk assessment should include consideration of risks in each area of relevant operation, including, but not limited to employee training and management;
6.10.4 the design and implementation of reasonable privacy controls and procedures to address the risks identified through the privacy risk assessment, and regular testing or monitoring of the effectiveness of those privacy controls and procedures; and
6.10.5 the evaluation and adjustment of Merchant’s privacy program in light of any circumstances that Merchant knows or has reason to know may have a material impact on the effectiveness of its privacy program.
6.11 Processor acknowledges that it is responsible for the security of Card Information that it transmits on behalf of Merchant in connection with the Services while such Card Information is in Processor’s possession.
Subject to the Operating Rules, the Services may be performed by Processor, its affiliates, its agents or other third parties that Processor may designate from time to time in connection with this Agreement. During the term of this Merchant Agreement, Processor will be Merchant's exclusive provider of all Services and Merchant will not use the services of any other entity other than Processor for the Services. Merchant agrees to submit all Transactions to Processor via electronic data transmissions in accordance with Processor's formats and procedures.
8.1 Merchant must comply with the Operating Rules, as amended from time to time. The Operating Rules may change with little or no advance notice to Merchant and Merchant will be bound by all such changes. If Merchant objects to any change in the Operating Rules, it must immediately stop accepting Cards. The Operating Rules will govern in the event that there is any inconsistency between this Agreement and the Operating Rules. However, nothing in this Agreement shall be construed to impose on Merchant a requirement (including a requirement under the Operating Rules) the imposition of which on Merchant is prohibited by mandatory provisions of applicable law (i.e., where the applicability of such provisions of law to this Agreement, and of the law's prohibition to the particular requirement which otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by agreement), but the requirement hereunder shall be construed to continue in effect and to be imposed on Merchant in all respects and at all times to the fullest extent possible without violating the law's prohibition, with only those particular applications of the requirement which would violate the law's prohibition deemed severed from the provisions hereof.
8.2 Operating Rules of the Debit Networks may differ among them with respect to the Card Transactions they allow. Processor or Bank, at their discretion, may require that the most restrictive requirements of one Debit Network apply to all of Merchant's On-line Debit Card Transactions, regardless of Card type.
8.3 If Merchant selects, and Processor provides Services for, any one or more of Discover Network, JCB Card or Diners Club as payment options and Merchant's selection is approved by Processor, Merchant understands that
(i) Merchant's acceptance of any of those payment options may require execution of a separate merchant card acceptance agreement with those individual Card Networks, as applicable, and that agreement will likewise govern the completion, processing, transactions, and (ii) Merchant will be obligated to contact the appropriate service provider(s) for service.
Upon signing the Application, and each time Merchant submits a Transaction, Merchant represents and warrants that:
9.1 Merchant has abided by this Agreement and all Applicable Law and applicable Operating Rules with regard to the Transaction;
9.2 Each statement made on the Application was true as of the date Merchant signed the Application agreeing to be bound by this Merchant Agreement;
9.3 There have been no materially adverse changes in information provided in the Application or in Merchant's financial condition, or management;
9.4 Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Merchant's business or the product lines that Merchant sells not previously disclosed;
9.5 The Transaction is genuine and arises from a bona fide sale of merchandise or services by Merchant, the merchandise or services have been fully delivered or performed, and the Transaction represents a valid obligation for the amount shown on the Charge Record and does not involve the use of the Card for any other purpose;
9.6 All information and data provided by Merchant to Processor in connection with a Transaction, including information and data on or associated with a Charge Record, is true, correct, and accurate; is processed promptly; and complies with applicable Card Brand technical specifications;
9.7 There are no liens or other encumbrances on the Transaction, and Merchant has the authority to convey the Transaction for processing;
9.8 The Transaction is not subject to any dispute, set-off or counterclaim;
9.9 The Transaction has not been previously presented for processing unless allowed by the Operating Rules;
9.10 Each statement on the Charge Record is true, and Merchant has no knowledge of facts that would impair the validity or collectability of the amount of the Transaction;
9.11 The person who executes the Application on behalf of the Merchant has the full power and authority to execute the Application and to enter into this Merchant Agreement;
9.12 The Charge Record is free from any material alteration not authorized by the Cardholder;
9.13 Merchant has not disbursed or advance any cash to the Cardholder (except as authorized by the Operating Rules) or itself or to any of its representatives, agents, or employees in connection with the Transaction, nor has Merchant accepted payment for effecting credits to a Cardholder;
9.14 The goods or services related to each Transaction are Merchant's property or Merchant has the legal right to sell them;
9.15 Merchant has made no representation or agreement for the issuance of refunds except as stated in Merchant's refund policy, which has been previously submitted to Processor in writing and which is available to the Cardholder;
9.16 Any Transaction submitted to Processor to credit a Cardholder's Settlement Account represents a refund for a Transaction previously submitted to Processor; and
9.17 Unless specifically stated in its Application or otherwise approved in writing by Processor in advance, Merchant has not accepted Cards in connection with installment plans or recurring transactions, and if such approved Transactions have been submitted, Charge Record has been prepared separately for each installment transaction or recurring transaction on the dates the Cardholder agreed to be charged, and all such Transactions comply in all respects with the Operating Rules.
10.1 Merchant will pay Processing Fees in the amount specified in the fee schedule attached to the Application or as otherwise provided for in this Agreement as amended from time to time as set forth herein. Processor may revise the Processing Fees by giving Merchant 30 days advance written notice. Processor will not be required to provide the Merchant with 30 days’ notice of any changes in Processing Fees in the event that any Card Network or any other entity having such authority changes the Processing Fees or the fees and charges on which such Processing Fees are based. Upon Merchant’s request, Processor will provide Merchant access to the Processing Fees associated with the applicable selected “Pass Through Plan” on the Application. Merchant may terminate this Agreement without payment of the Early Termination Fee by sending notice to Processor between the date of notice and the effective date for Processing Fee adjustments not attributable to the Card Networks or third party pass through adjustments by providing notice as set forth herein.
10.2 Merchant understands that the fees stated in the fee schedule are based upon the assumption that Merchant's Transactions will qualify for certain interchange rates as determined by the applicable Card Network and that the volume and character of Merchant's Transactions will be substantially similar to the volume and character of transactions described in the Application. If any of Merchant's Transactions fail to qualify for such interchange rates, Processor shall process each such Transaction at the applicable interchange rate determined by the applicable Card Network.
10.3 Unless otherwise indicated on the fee schedule, Merchant shall be solely responsible for all communication expenses required to facilitate the transmission of all Transactions to Processor.
10.4 Processing Fees and other service charges owed by Merchant to Processor or Bank may be deducted by Processor or Bank from amounts due Merchant, or from the Settlement Account or from the Reserve Account. Merchant will pay the amounts due by the next business day if sufficient funds are not available in the Settlement Account.
11.1 Upon 5 days' written notice at any time, Merchant agrees to furnish to Processor its most recently prepared financial statements and credit information and, if applicable, its three most recent filings with the SEC. From time to time, Processor may obtain credit and other information on Merchant, owners of Merchant and officers of Merchant, from others (such as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish information on Merchant's relationship with Processor and Processor's experience with Merchant to others seeking the information.
11.2 With prior notice and during Merchant's normal business hours, Processor's or Bank's duly authorized representatives may visit Merchant's business premises and may examine Merchant's operations, activities, books and records that pertain to Merchant's Transactions or Merchant's compliance with this Merchant Agreement.
11.3 Merchant agrees to provide Processor at least 30 days' prior written notice of its intent to change current product lines or services, Merchant's trade name, or the manner in which Merchant accepts Cards. If Processor determines such a change is material to its relationship with Merchant, Processor may refuse to process Transactions made subsequent to the change or terminate this Merchant Agreement. Merchant agrees to provide Processor with prompt written notice if Merchant is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Merchant's signature on this Agreement authorizes Processor and Bank to perform any credit check deemed necessary with respect to Merchant. Merchant will also provide Processor with prompt written notice of (i) any adverse change in Merchant's financial condition, (ii) any planned or anticipated liquidation or substantial change in the nature of Merchant's business, or (iii) any transfer or sale of any material part of Merchant's total assets or securities. Merchant will also notify Processor of any judgment, writ, warrant of attachment, execution or levy against any material part of Merchant's total assets not later than 3 days after Merchant obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy.
11.4 Federal regulations enacted pursuant to the USA Patriot Act and other applicable laws require financial institutions to verify the identity of every person who seeks to open an account with a financial institution. As a result of Merchant's application of Services, Merchant shall provide documentary verification of Merchant's identity, such as a driver's license or passport for an individual and certified copy of organization documents for an entity in manner acceptable to Bank. Processor and Bank reserve the right to verify Merchant's identity through other non-documentary methods as Processor or Bank deem appropriate in their sole discretion. Processor and Bank may retain a copy of any document it obtains to verify Merchant's identity.
12.1 Merchant will not provide Card Information to anyone except Processor or Bank, Card Networks, or Merchant's agents that have been approved by Processor as required under this Agreement and are properly registered with the Card Networks for the purpose of assisting Merchant in completing Transactions, or as specifically required by law. Merchant will not retain or store Card magnetic stripe, CVV, CVV2, CVC2, CID or any other data classified by PCI-DSS as “Sensitive Authentication Data” subsequent to authorization for a Transaction or sell, purchase, provide or exchange Card Information to any third party, or to any entity other than the Processor or Bank, the Card Networks, or in response to valid legal process or subpoena.
12.2 Merchant may not, in the event of its failure, including bankruptcy, insolvency, or other suspension of business operations, sell, transfer, or disclose any materials that contain Transaction data or Card Information to third parties. Upon request, Merchant must return such information to Processor or provide Processor with acceptable proof of its destruction.
12.3 Merchant agrees to keep confidential and not disclose the terms and conditions of this Merchant Agreement including without limitation, Processing Fees and Processor’s and Bank’s Confidential Information. Merchant also agrees to keep confidential and not disclose or use any information supplied or otherwise made accessible by Processor or Bank or their agents, including without limitation Processor’s and Bank’s Confidential Information. Notwithstanding the foregoing, Merchant may use Processor’s or Bank’s Confidential Information only to exercise its rights and to perform your obligations under this Agreement. Merchant will protect Processor’s and Bank’s Confidential Information from unauthorized disclosure, publication, or dissemination by employing at least those precautions that Merchant employs to protect its own confidential information, but in no event less than reasonable care, and shall not use, reproduce, distribute, disclose, or otherwise disseminate Processor’s or Bank’s Confidential Information, except in connection with the performance of its obligations under this Agreement. Upon request by Processor or Bank or upon termination of this Agreement, Merchant shall return to us or destroy all of Processor’s or Bank’s Confidential Information, as applicable, in Merchant’s possession or control.
12.4 Except as expressly provided for in this Agreement, this Section does not confer any right, license, interest or title in, to or under Processor’s or Bank’s confidential information to Merchant. Except as expressly provided for herein, no license is hereby granted to Merchant under any patent, trademark, copyright, trade secret or other proprietary rights of Processor or Bank. All rights, title, and interest in and to all intellectual property related to the Services provided by Processor hereunder (including, without limitation, the content of any materials, web screens, layouts, processing techniques, procedures, algorithms, and methods), owned, developed or licensed by us prior to, during the term of, or after this Merchant Agreement, or employed by Processor in connection with the Services and any updates, changes, alterations, or modifications to or derivative works from such intellectual property, shall be and remain, as among the parties, Processor’s exclusive property.
12.5 Merchant authorizes Processor and Bank to release its name and address to any third party whom the Processor or Bank determines needs to know such information in order for Processor or Bank to perform the Services under this Agreement and who has requested such information. Without limitation as to the authority granted to Bank and Processor in Section 10 of the Application, Merchant authorizes Processor and Bank to collect and disclose Transaction data and other information relating to the Merchant, Guarantor and each of their principals, to the Card Networks, current and prospective Card issuers, current and prospective acquirers, regulatory authorities, and other entities to whom Processor or Bank or any such entity may be required to provide such information and to Processor's, Bank’s and each such entity's affiliates, agents, subcontractors and employees, for purposes Processor or Bank or such other entities deem necessary in Processor's, Bank’s or their reasonable discretion, including without limitation, in connection with the performance of their various obligations hereunder or under their other applicable agreements or under the Operating Rules or applicable law.
12.6 Merchant is responsible for ensuring its Merchant Identification Number (“MID”) is kept confidential. When a change to a Merchant account is required, Merchant shall disclose its MID to the Processor representative as confirmation that the person requesting the change has authority. If the person requesting the change discloses the proper MID, Processor shall assume that person has the proper authority to make the change. Merchant shall be fully liable for any changes to its account after disclosure of the MID. Processor may request from Merchant additional information to further verify Merchant's identity.
13.1 This Agreement will be effective during the three (3) year period commencing on the date this Agreement is executed by Bank and Processor (by signature or otherwise) (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term”) thereafter unless a party provides the other parties with notice of its intent not to renew this Agreement at least ninety (90) days prior to the expiration of the then current Term. The Initial Term and Renewal Term shall together be referred to herein as the “Term.”
13.2 Either Bank or Processor may terminate this Agreement as to all Card types or individually specified Card types, without cause, upon 30 days’ advance written notice. Bank or Processor may terminate this Agreement in either's sole and absolute discretion, effective immediately, upon written, electronic or oral notice to Merchant if Processor or Bank in its sole discretion, determines that any of the following conditions exists: (i) Merchant has violated any provision of this Agreement or the Operating Rules or any Card Network requires Processor or Bank to terminate this Merchant Agreement, (ii) there is a material adverse change in Merchant's financial condition or change in Merchant's Card acceptance policy which increases Processor's or Bank's risks; (iii) a petition in bankruptcy has been filed by or against Merchant, the Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar official is appointed for a substantial portion of Merchant's business, there is a general assignment for the benefit creditors, or the business terminates, (iv) any information which Merchant provided to Processor was false, incomplete or misleading when received, (v) irregular Transactions by Merchant, excessive Chargebacks, or any other circumstances which, in Processor's or Bank's discretion, may increase Processor's or Bank's risks,
(vi) fraudulent or otherwise unauthorized Transactions have been submitted to Processor for processing, (vii) Merchant is or will be unable or unwilling to perform its obligations under this Agreement or any applicable laws, (viii) Merchant has failed to pay Processor any amount when due, (ix) the Operating Rules are amended in any way so that the continued existence of this Agreement would cause Processor or Bank to be in breach of such Operating Rules, (x) Merchant fails to fund or establish a Reserve Account as requested by Processor or Bank, (xi) Merchant assigns or attempts to assign the Agreement or any portion thereof without the prior written consent of Processor and Bank, (xii) Processor or Bank, in its sole discretion, deems Merchant to be financially insecure, (xiii) Merchant or any person owning or controlling Merchant's business is listed in one or more databases of terminated or high risk merchants maintained by the Card Networks, (xiv) Merchant engages in conduct that creates or could tend to create harm or loss to the goodwill of any Card Network or Processor or Bank, (xv) for a period of more than 60 consecutive days, Merchant does not submit Transactions to Processor, (xvi) Merchant appears on any Card Network’s security reporting; (xvii) a judgment in excess of $1,000 is entered against Merchant or any Guarantor and not discharged or bonded off within fifteen (15) days after the entry of the judgment; (xviii) if Merchant submits for processing Charges that were not originated as a result of a direct Charge transaction between a Cardholder and Merchant in the normal course of business; or (xix) the circumstances otherwise warrant immediate termination. Merchant further acknowledges and agrees that any Card Network may limit or terminate this agreement as to Merchant’s acceptance of such Payment Network’s Cards, with or without cause, at any time and with immediate effect.
13.3 Merchant may terminate this Agreement in the event of a material breach of the terms of this Agreement by Processor, provided Merchant gives Processor written notice of any alleged breach and such breach remains uncured for a period of 30 days following receipt of written notice by Processor.
13.4 The parties further agree and acknowledge that if (i) Merchant breaches this Agreement by improperly terminating it prior to expiration of the Initial Term or any Renewal Term, or (ii) this Agreement is terminated prior to the expiration of the initial Term or any Renewal Term in accordance with this Section 13.2, then Processor will suffer a substantial injury that is difficult or impossible to accurately estimate. Accordingly, in an effort to assess in advance the sum that should represent the damages which would actually be sustained by Processor, the parties have agreed that the amount calculated in the manner specified below is a reasonable estimate of Processor's probable loss for which Merchant shall pay to Processor as damages (the “Early Termination Fee”). Any recovery pursuant to this section shall in no way limit Merchant's financial obligations under this Merchant Agreement, including, without limitation, Merchant's obligation with respect to Processing Fees, fees, fines, penalties, returns, refunds, liability assessments, Chargebacks, and Reserve Account. The Early Termination Fee amount shall be: $500 if Merchant’s annual processing volume is less than $2,000,000 or the sum of the number of months remaining from the date of termination to the end of the then current Initial Term or Renewal Term multiplied by the average monthly Processing Fees paid by Merchant during the most recent six (6) months plus the costs and attorneys' fees Processor and Bank incurs as a result of Merchant’s termination if Merchant’s annual processing volume is greater than
$2,000,000. If this Agreement has been in place less than 6 months, the average monthly Processing Fees shall equal the average monthly fees (net of interchange and assessments) that Processor would have received based upon Merchant's representations on the Application. If this Agreement has been in place less than 1 year, the determination of Merchant’s annual processing volume shall be as the Merchant represented on the Application. Early Termination Fees shall be paid, to the extent possible, according to the same methods for collecting amounts otherwise due under this Merchant Agreement. All amounts payable hereunder by Merchant to Processor shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by Merchant.
13.5 It is understood that a file for terminated merchants is maintained by Card Networks containing the names of any business (and its principals) which have been terminated for certain reasons. Merchant acknowledges that Processor and Bank are required to report Merchant to the terminated merchant file if this Agreement is terminated for any of the reasons set forth in the Operating Rules and consents to such reporting in the event of the termination of this Agreement for any of those reasons.
13.6 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 even after termination of this Merchant Agreement, with respect to all Transactions made prior to such termination or after such termination. After termination of this Agreement for any reason, Merchant shall continue to bear total responsibility for all Chargebacks, Processing Fees, fees, fines, penalties, liability assessments, credits, and adjustments resulting from Transactions processed pursuant to this Agreement and all other amounts then due or which thereafter may become due to Processor or Bank under this Agreement or which may be due to Processor or Bank before or after such termination. If Merchant submits Transactions to Processor after the date of termination, Processor may, at its sole discretion and without waiving any of its rights or remedies under this Merchant Agreement, process such Transactions in accordance with and subject to all of the terms of this Merchant Agreement.
13.7 Sections 3.4, 3.5, 3.7, 3.8, 4, 6, 9, 10, 12, 11.2, 13.4, 13.5, 13.6, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25 and 27 will survive termination of this Merchant Agreement.
14.1 Merchant may be required to deposit, or authorize Bank to deposit, by deducting from any payment due to Merchant or from any funds in the Settlement Account or any other deposit account of Merchant, into an account maintained and controlled by Bank (the “Reserve Account”), initially or at any time in the future as requested by Processor or Bank, sums sufficient to satisfy Merchant's current and/or future obligations as determined by Processor or Bank in its sole and absolute discretion. The Reserve Account will be separate from the Settlement Account. Merchant shall have no right of withdrawal from the Reserve Account. Funds in the Reserve Account will be held and, owned and controlled by Bank, will not bear interest, and may be commingled with other funds.
14.2 At any time in Processor's or Bank’s sole and absolute discretion, Processor or Bank may (i) designate the minimum balance required to be deposited in the Reserve Account, (ii) require that the amount on deposit in the Reserve Account be increased, (iii) require that the Merchant deposit, or Bank may deposit for Merchant into the Reserve Account a percentage of, or a fixed amount from each Charge processed, or (iv) otherwise determine the amount to be deposited in the Reserve Account. Processor or Bank shall notify the Merchant as to the amount of the funds to be deposited in the Reserve Account, which may be on a recurring monthly basis.
14.3 If funds are not available in the Settlement Account, Processor or Bank without prior notice to Merchant may deduct from the Reserve Account any obligation of Merchant to Processor or Bank under this Agreement, including all Processing Fees, Chargebacks, refunds, Early Termination Fees, and any and all additional fees, charges, fines, penalties, liability assessments and charges due the Card Networks.
14.4 Whenever the balance in the Reserve Account is less than the minimum balance required, or is otherwise deficient, Bank may, without prior notice, deposit the deficiency into the Reserve Account by reducing any payment to Merchant required by this Agreement or deduct the deficiency from the Settlement Account or any other deposit account of Merchant with another depository institution (including accounts of general partners if Merchant is a partnership) and deposit it into the Reserve Account. Merchant authorizes deductions from its accounts by ACH entry, sight draft, preauthorized check, reverse wire, or otherwise as Processor or Bank deem appropriate under the circumstances. In addition, Merchant will deposit any deficiency into the Reserve Account within one (1) business day after receiving Processor's or Bank’s oral or written request. Without limiting Processor's or Bank’s remedies, Merchant's failure to deposit any deficiency on time will permit Processor or Bank, without advance notice, to suspend or cease processing additional Transactions and refunds. Processor or Bank will give Merchant written notice of any suspension or cessation of processing.
14.5 Bank may continue to hold or deposit funds in the Reserve Account after termination of this Agreement, regardless of whether termination is by Merchant, Processor or Bank. Upon termination of the Agreement by Merchant, Processor or Bank, Processor or Bank may retain sufficient funds to satisfy any and all Processing Fees, Chargebacks, refunds, Early Termination Fees, and any and all additional fees, fines, penalties, liability assessments and charges due or projected to be due to Processor or the Card Networks. If no funds have been deposited into the Reserve Account before termination, Processor or Bank, at Processor's or Bank’s option, may notify Merchant to deposit funds into the Reserve Account upon termination of this Agreement. All provisions which apply to a pre- termination Reserve Account will apply after termination, including replenishment of deficiencies. The funds will be held by Bank or its designated agent for a period of not less than one hundred eighty (180) days from the date of the last Transaction processed under this Agreement, plus the period of any warranty, guarantee, and/or return policy on goods and/or services sold. Processor or Bank will pay the balance in the Reserve Account to Merchant after Processor or Bank reasonably determines that the risk of Processing Fees, Chargebacks, refunds, Early Termination Fees, and any and all additional fees, fines, penalties, liability assessments and charges due or projected to be due to Processor or the Card Networks has ended and after deducting all amounts that Merchant owes to Processor or Bank under this Agreement or any other agreement.
To secure Merchant's performance of its obligations under this Merchant Agreement, Merchant grants Processor and Bank a security interest in each Transaction and its proceeds, and any moneys or deposits held by Processor or Bank, whether now existing or established in the future, and in the proceeds of all those accounts, any funds due Merchant from Processor or Bank and any of Merchant's property held by Processor or Bank. Furthermore, and without limiting or detracting from the Bank and Processor’s ownership over the Reserve Account and all funds therein, Merchant further grants Processor and Bank a security interest in the Reserve Account, whether now existing or established in the future, and in the proceeds of such account(s). Processor or Bank may enforce these security interests without notice or demand. The security interests granted under this Agreement will continue after this Agreement terminates, until Merchant satisfies all its obligations to Processor and Bank. Merchant agrees to execute and deliver to Processor and Bank such instruments and documents that Processor or Bank may reasonably request to perfect and confirm the security interest set forth herein.
16.1 Merchant agrees to indemnify Processor and Bank and their officers, directors, employees, and agents against and to hold them harmless from any and all claims and demands of any party arising from or related to any act or omission of Merchant or its employees, representatives, agents, or Service Providers in connection with or arising out of this Merchant Agreement, the duties to be performed by Merchant pursuant to this Merchant Agreement, any Transactions which Merchant submits to Processor, or Merchant's violation of the Operating Rules or any applicable law. In the event that Processor or Bank shall be made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process commenced by any third party, Merchant shall protect and hold Processor and Bank harmless from and with respect to such litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process and shall pay all costs, expenses, and attorney's fees incurred or paid in connection therewith, together with any judgments rendered. Merchant shall indemnify, defend, and hold harmless Processor and Bank for any hacking, infiltration, or compromise of Merchant's systems or the systems of Merchant's representatives, agents or Service Providers.
16.2 Limitation of Liability. PROCESSOR AND BANK WILL NOT ACCEPT RESPONSIBILITY FOR ERRORS, ACTS, OR FAILURE TO ACT BY OTHERS, INCLUDING BUT NOT LIMITED TO, AGENTS, THIRD PARTY SUPPLIERS OF SOFTWARE, EQUIPMENT OR SERVICES; OR, BANKS, COMMUNICATION COMMON CARRIERS, DATA PROCESSORS OR CLEARINGHOUSES THROUGH WHICH TRANSACTIONS MAY BE PASSED, ORIGINATED AND/OR AUTHORIZED. PROCESSOR AND BANK WILL NOT BE RESPONSIBLE FOR ANY LOSS, LIABILITY OR DELAY CAUSED BY FIRES, EARTHQUAKES, WAR, CIVIL DISTURBANCES, POWER SURGES OR FAILURES, ACTS OF GOVERNMENTS, ACTS OF TERRORISM, LABOR DISPUTES, FAILURES IN COMMUNICATION NETWORKS, LEGAL CONSTRAINTS OR OTHER EVENTS BEYOND THE REASONABLE CONTROL OF PROCESSOR AND BANK. IN ANY EVENT, PROCESSOR'S AND BANK'S CUMULATIVE LIABILITY TO MERCHANT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF $10,000 OR, AN AMOUNT EQUAL TO THE AGGREGATE OF MONTHLY NET PROCESSING FEES PAID BY MERCHANT IN THE 3 MONTH PERIOD PRIOR TO THE MONTH THAT THE INCIDENT GIVING RISE TO LIABILITY OCCURRED.
16.3 IN NO EVENT SHALL PROCESSOR OR BANK BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR PROCESSOR OR BANK WERE ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PROCESSOR AND BANK SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROCESSOR AND BANK DO NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
16.4 In no event will Processor or Bank be liable for any claim, loss, damage, expense, billing error, overcharge, or fee discrepancy arising out of or relating in any way to this Agreement which is not reported in writing to Processor by Merchant within 30 days of such failure to perform, claim, loss, damage, or expense, or, in the event of a billing error, overcharge, or fee discrepancy, within 60 days of the date of the invoice or applicable statement. MERCHANT EXPRESSLY WAIVES ANY SUCH CLAIM THAT IS NOT BROUGHT WITHIN THE TIME PERIODS STATED HEREIN.
Unless otherwise provided for in this Merchant Agreement, Processor or Bank may amend this Agreement at any time by providing Merchant with 30 days' prior notice by:
17.1 sending Merchant written notice of such amendment, or
17.2 posting such amendment to the Processor's web site and providing Merchant with electronic notice as provided in this Merchant Agreement. Processor or Bank may amend this Agreement upon less than 30 days' prior notice if Processor or Bank reasonably determines immediate modification is required by Applicable Laws, the Operating Rules or any adverse change in Merchant's financial condition. Amendments submitted by Merchant will bind Processor and Bank only if in writing and approved and signed by Bank and Processor. Processor's or Bank's failure to enforce this Agreement will not waive Processor's or Bank's rights under this Merchant Agreement. Waivers of any provision of this Agreement must be in writing and signed by Bank and Processor. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver.
17.3 Merchant may terminate this Agreement without payment of the Early Termination Fee by sending notice to Processor between the date of notice and the effective date for an amendment not attributable to Applicable Laws, the Operating Rules or any adverse change in Merchant's financial condition by providing notice as set forth herein.
Except to the extent oral or electronic notice is explicitly authorized herein, each notice required by this Agreement will be in writing and will be effective when delivered, addressed to Bank at the address designated on the Application, to Processor at the address designated on the Application and to Merchant at Merchant's address designated in the Application, or at such other address as any party may provide by written notice to the other parties. Delivery by facsimile transmission will be considered effective when the sender receives electronic confirmation of the transmission.
This Agreement is governed by Georgia law, without reference to conflict of laws provisions. Any action or proceeding to which Merchant or any Guarantor is a party and which relates in any way to this Agreement may be brought and enforced in the courts of Fulton County in the State of Georgia or of the United States for the Northern District of the State of Georgia. Any such process or summons in connection with any such action or proceeding may be served by mailing a copy thereof by certified or registered mail, or any substantially similar form of mail, addressed to Merchant as provided for notices hereunder.
Merchant will be liable for and will indemnify and reimburse Processor and Bank for all attorneys' fees and other costs and expenses paid or incurred by Processor or Bank in the successful enforcement of this Agreement or in matters relating to this Agreement, in successfully collecting any amounts due from Merchant to Processor or Bank, or arising from any breach by Merchant of this Agreement, or any other wrongdoing by Merchant.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE MERCHANT AND/OR ANY GUARANTOR, ON THE ONE HAND, AND PROCESSOR AND/OR BANK, ON THE OTHER HAND, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING HERETO AND ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL AT THE REQUEST OF ANY PARTY BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. IN THE EVENT ANY ACTION OR PROCEEDING HAS BEEN INITIATED AT THE TIME OF SUCH REQUEST, THE INITIATING PARTY SHALL PROMPTLY MOVE, AND SHALL BE DEEMED TO CONSENT, TO THE STAY OR DISMISSAL OF SUCH ACTION PENDING THE OUTCOME OF ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED IN FULTON COUNTY, GEORGIA IN ACCORDANCE WITH THE UNITED STATES ARBITRATION ACT (TITLE 9, U.S. CODE), NOTWITHSTANDING ANY CHOICE OF LAW PROVISION IN THIS MERCHANT AGREEMENT, AND UNDER THE AUSPICES AND RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT. EACH PARTY MAY SERVE A SINGLE REQUEST FOR PRODUCTION OF DOCUMENTS. IF DISPUTES ARISE CONCERNING THESE REQUESTS, THE ARBITRATORS SHALL HAVE SOLE AND COMPLETE DISCRETION TO DETERMINE THE DISPUTES. THE ARBITRATORS SHALL GIVE EFFECT TO STATUTES OF LIMITATION IN DETERMINING ANY CLAIM, AND ANY CONTROVERSY CONCERNING WHETHER AN ISSUE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATORS. THE ARBITRATORS SHALL DELIVER A WRITTEN OPINION SETTING FORTH FINDINGS OF FACT, CONCLUSIONS OF LAW AND THE RATIONALE FOR THE DECISION. JUDGMENT UPON THE DECISION RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL RELIEF OR PURSUIT OF A PROVISIONAL OR ANCILLARY REMEDY SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OF EITHER PARTY TO SUBMIT THE CONTROVERSY OR CLAIM TO ARBITRATION IF THE OTHER PARTY CONTESTS SUCH ACTION FOR JUDICIAL RELIEF.
As a primary inducement to Processor and Bank to enter into this Merchant Agreement, and to approve the Application of Merchant, the Guarantor(s), individually and severally, who signed on the Guarantor signature line(s) on the Application, agree to be bound by all terms and provisions of this Agreement to the same extent and in the same manner as Merchant, and unconditionally and irrevocably, personally guarantee the continuing full and faithful performance and payment by Merchant of each and all of Merchant's duties and obligations to Processor and Bank under this Agreement or any other agreement currently in effect or in the future entered into between Merchant and Processor and Bank, as such agreements now exist or are amended from time to time, with or without notice to Guarantor(s). Guarantor(s) understands that Processor and Bank, without notice to Guarantor(s), may from time to time renew or extend the Merchant Agreement, modify rates, limits, charges and fees, or modify the amount or type of services provided to Merchant all of which may increase the Guarantor's obligations under this Guaranty. Guarantor(s) further understands that Processor and Bank may proceed directly against Guarantor(s) without first exhausting Processor's or Bank's remedies against the Merchant, any other person or entity responsible to Processor and Bank or any security held by Processor or Bank. This Guaranty is a continuing guaranty and will not be discharged or affected by the release or discharge of Merchant or the death of the Guarantor(s). This Guaranty will bind all heirs, administrators, and representatives of the Guarantor(s) and may be enforced by or for the benefit of any successor of Processor or Bank. To the fullest extent permissible under applicable law, Guarantor(s) waives any and all rights of subrogation, reimbursement or indemnity derived from Merchant, all other rights and defenses available to Merchant, and all other rights and defenses available to Guarantor(s).
Unless Merchant is otherwise exempt, and, if applicable, provides a valid exemption certificate, Merchant agrees to pay any taxes imposed on the services, equipment, supplies, and other property provided under this Merchant Agreement, and Merchant authorizes Processor or Bank to increase the amount collected from Merchant to reflect any and all assessments or increases in the sales, use, occupational, property, lease, or other taxes imposed on such sale or lease of services, tangible property, intellectual property, equipment, supplies, and other goods purchased.
Any transfer or assignment of this Agreement by Merchant, by operation of law, merger, or otherwise without Processor's and Bank's prior written consent is null and void. In the event of such transfer or assignment, the party to whom the Agreement was transferred or assigned shall be bound to the terms and conditions of this Agreement to the same extent as if Processor or Bank and such assignee or transferee, as the case may be, entered into an agreement identical to this Agreement on the effective date of such transfer or assignment. Furthermore, Merchant shall indemnify and hold Processor and Bank harmless from all liabilities, Chargebacks, expenses, costs, fees, and fines arising in connection with the submission of Transactions to Processor or Bank by such transferee or assignee. For purposes of this Agreement any transfer of voting control of Merchant or its parent, or the sale of all or substantially all of Merchant's assets, shall be considered an assignment or transfer hereof. Subject to Operating Rules, Processor or Bank 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, whether in connection with a change in sponsorship or otherwise without notice to or consent of Merchant. No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession, sheriff or any other officer of a court, or other person charged with taking custody of a party's assets or business, shall have any right to continue or to assume or to assign this Merchant Agreement.
This Agreement is the complete and final agreement between Merchant and Processor and Bank with respect to the matters contained herein and supersedes all prior or contemporaneous negotiations, stipulations or agreements. Merchant agrees that in entering into this Agreement it has not relied on any statement of Processor or Bank or its representatives. This Agreement shall prevail over any conflicting terms of any agreement governing the Settlement Account. If any provision of this Agreement is invalid or unenforceable, the other provisions remain effective.
This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
Pursuant to 26 USC 6050W, Processor is a “payment settlement entity”, obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, in conjunction with the execution of this Merchant Agreement, Merchant shall provide Processor with the appropriate taxpayer certification documentation. Merchant shall promptly notify Processor if there are any changes in this information. Processor may deduct withholding taxes, if any, from proceeds payable to Merchant or any entity that is a party to this Agreement where required under Applicable Law. Processor may, in accordance with applicable law and from time to time during the term of this Merchant Agreement, request Merchant to recertify its taxpayer certification hereunder.
Furthermore, Merchant shall be responsible for any penalties related to the reporting obligations of Processor hereunder to the extent such penalties accrue based on the actions or inactions of Merchant despite reasonable notice from Processor.
“Agreement” means the Application and the Merchant Agreement among Merchant, Processor and Bank, including the appendices, addenda, schedules and fee schedule incorporated thereto, as amended from time to time as provided therein.
“American Express” means American Express Travel Related Services Company, Inc. or its successors or assigns.
“Applicable Law” means all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance, as well as the lawful directives of any federal, state, or local commission, bureau, agency, law enforcement, or governing body.
“Application” is the Merchant application that Merchant completed and signed and which is subsequently individually accepted by both Processor and Bank by execution or as otherwise provided herein.
“Bank” means Wells Fargo Bank, N.A.
“BIN” is the Bank Identification Number or Interbank Card Association Number, as applicable, which is a number assigned to a Card issuer that is used for Card issuing, Authorization, clearing, and settlement processing.
“Card” means an account, or evidence of an account, authorized and established between a Cardholder and a Card Network, or representatives or members of a Card Network that Merchant accepts from Cardholders as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates, and credit accounts.
"Cardholder" means the person or entity to whom a Card is issued or who is otherwise authorized to use a Card.
“Cardholder” is sometimes referred to as “Cardmember” or “Card Member” in some of the Card Network materials.
“Card Information” means information related to a Cardholder or the Cardholder's Card that is obtained by Merchant from the Cardholder's Card, or from the Cardholder in connection with his or her use of a Card (e.g., a security code, a PIN number, credit limits, account balances, or the Cardholder's zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Card account number and expiration date, the Cardholder'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 Card, whether printed thereon, or magnetically, electronically, or otherwise stored thereon. For the avoidance of doubt, the data elements that constitute Card Information shall be treated according to their corresponding meanings as “cardholder data” and “sensitive authentication data” as such terms are used in the then current PCI DSS.
“Card Network” means any entity formed to administer and promote Cards, including, without limitation, Visa, Mastercard, Discover, American Express, and other credit and debit card providers, Debit Networks, gift card, and other stored value and loyalty program providers. Card Network also includes the Payment Card Industry Security Standards Council.
“Confidential Information” includes (i) information about operations, technology, employees, products or services, sales, clients, customers, pricing, business or marketing plans of Processor or Bank or their affiliates;
(ii) any technical information, design, process, procedure, or enhancement that is commercially valuable over Processor’s or Bank’s competitors; and
(iii) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, databases, inventions, know-how, and trade secrets, whether or not patentable or copyrightable.
“Conveyed Transaction” means any Transaction conveyed to a Card Network for settlement by such Card Network directly to Merchant.
“Charge Record” means the paper or electronic record of a Transaction, including, without limitation, an authorization code or settlement record, which is submitted to the Processor.
“Chargeback” means a reversal of a Transaction previously presented to Processor by Merchant pursuant to the Operating Rules.
“Data Compromise Event” means an occurrence that results, or could result, directly or indirectly, in the unauthorized access to or disclosure of Transaction data, PII and/or Card Information.
"Debit Network" is an online data processing system used to support PIN based or non-PIN based Card Transactions, as applicable.
“Discover” means Discover Financial Services or its successors or assigns.
“Documents” means written notices, disclosures and other documents which are to be provided by Processor or Bank to Merchant under this Merchant Agreement.
“Initial Term” will have the meaning set forth in Section 13.1 of the Merchant Agreement.
“Mastercard” means Mastercard International Incorporated, doing business as Mastercard Worldwide, or its successors or assigns.
“Merchant” means the legal entity identified in the Application.
“Merchant Agreement” this agreement and all exhibits, appendices, addenda, schedules, pricing sheets, fee schedules, the Operating Rules and the like attached hereto or incorporated by reference herein, as amended from time to time.
“Operating Rules” means all bylaws, rules, programs, and regulations, as they exist from time to time, of the Card Networks. Merchant may find the Visa Operating Rules at: https://usa.visa.com/support/small- business/regulations-fees.html. Merchant may find the Mastercard Operating Rules at: https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html. Merchant may find the American Express Operating Rules (referred to as the
“Merchant Operating Guide”) at: www.americanexpress.com/merchantopguide.
“Payment Application” means a third party application used by Merchant that is involved in the authorization or settlement of a Transaction.
“PCI DSS” means the Payment Card Industry Data Security Standards. “Processor” means Merchant eSolutions, Inc.
“Processing Fees” means the fees and charges set forth on the fee schedule that is a part of the Application and this Merchant Agreement, as modified by Processor from time to time as set forth in this Agreement.
“Processor” means Merchant eSolutions, Inc.
“Renewal Term” will have the meaning set forth in Section 13.1 of the Merchant Agreement.
“Reserve Account” means an amount of funds designated by Processor or Bank in its sole discretion that must be maintained by Bank and funded by Merchant in order to protect Processor's and Bank's risks related to Transactions and the services provided pursuant to this Merchant Agreement.
“Retrieval Request” means a request for information by a Cardholder or Card Network relating to a claim or complaint concerning a Transaction.
“Security Standards” means all rules, regulations, standards, or guidelines adopted or required by the Card Networks or the Payment Card Industry Security Standards Council relating to privacy, data security, and the safeguarding, disclosure, and handling of Card Information, including, without limitation, PCI DSS, Visa's Cardholder Information Security Program (CISP), Discover's Information Security & Compliance Program (DISC), American Express's Data Security Operating Policy, Mastercard's Site Data Protection Program (SDP), Visa's Payment Application Best Practices , the Payment Card Industry's Payment Application Data Security Standard, Mastercard's POS Terminal Security program, and the Payment Card Industry PIN Transmission Security program, in each case as they may be amended from time to time.
Merchant may find the PCI-DSS requirements at https://www.pcisecuritystandards.org/security_standards/index.php
Merchant may find details on CISP at https://usa.visa.com/partner-with-us/pci-dss-compliance-information.html#1
Merchant may find details of the DISC program at http://www.discovernetwork.com/fraudsecurity/disc.html
Merchant may find the American Express Data Security Requirements at www.americanexpress.com/dsr
Merchant may find details of the SDP program at https://www.mastercard.us/en-us/merchants/safety-security/security- recommendations/site-data-protection-PCI.html
“Service Provider” means any party that processes, stores, receives, transmits, or has access to Card Information on Merchant's behalf, including, without limitation, its agents, business partners, contractors, and subcontractors.
“Services” The activities undertaken by Processor and/or Bank, as applicable, necessary to facilitate the authorization, processing, and settling of all Transactions undertaken by Cardholders at Merchant’s applicable location(s).
“Settlement Account” means the checking account or other acceptable deposit account Merchant maintains at a depository institution acceptable to Processor and Bank for credits and debits related to Transactions, Chargebacks, Processing Fees and any fines or fees assessed by the Card Networks or other governmental agency or entity having authority.
“Stored Value Card” means a stored value Card, gift Card, or loyalty Card issued by or on behalf of Merchant.
“Stored Value Card Transaction” means a Transaction in which a Cardholder adds or redeems value to or from a Stored Value Card.
“Term” will have the meaning set forth in Section 13.1 of the Merchant Agreement.
“Transaction” means any interaction between a Cardholder, using a Card, and a Merchant to purchase Merchant’s goods or services that results in activity on the Cardholder’s account.
“Visa” means Visa Inc. or its successors or assigns.
The following Addenda are made a part of this Agreement: CARD NOT PRESENT (CNP) ADDENDUM, SPECIAL SERVICES ADDENDUM, MERCHANT RESTRICTIONS ADDENDUM (including the “Merchant Use and Disclosure of BIN Information”), DISCOVER CARD ACCEPTANCE ADDENDUM, VISA ACCOUNT UPDATER ADDENDUM, MASTERCARD AUTOMATIC BILLING UPDATER ADDENDUM, and AMERICAN EXPRESS CARD ACCEPTANCE ADDENDUM. The applicability of these Addenda depends upon the Merchant's business, and the Card Program services requested by Merchant. In its sole and absolute discretion (except as otherwise set forth in the Merchant Use and Disclosure of BIN Information), Processor or Bank may accept or reject Merchant's request for services provided in the Addenda. Merchant understands and agrees that any attached Addendum is considered a part of the Agreement and Merchant will comply with the terms therein. In the event of conflict between the provisions of this Agreement and the provisions of an Addendum, the provisions of the Addendum will control, provided, however, that nothing in this Addenda shall be construed to limit or impair any Processor or Bank rights set forth in the Agreement.
This CARD NOT PRESENT (CNP) ADDENDUM is made a part of the terms and conditions of the Agreement, and Merchant has agreed to comply with all terms and conditions of the Addendum. The following terms and conditions describe the procedures for CNP Transactions. All capitalized terms used in this Addendum and not otherwise defined herein shall have the meanings assigned to them in the Agreement. Requirements set forth herein are in addition to requirements set forth in the Agreement, the Operating Guide and the Operating Rules.
1.1 3-D Secure - A Visa-approved method that is the global authentication for Electronic Commerce Transactions.
1.2 Electronic Commerce Transaction - A Transaction conducted over the Internet or other network.
1.3 Deferred Payment Transaction - A CNP Transaction for which the Cardholder is billed once no more than 90 days after the first shipment of merchandise.
1.4 Delayed Delivery Transaction - A single Transaction where a Cardholder completes 2 separate Transactions. The first Transaction functions as a deposit (such as a down payment) for goods or services; the second is to pay the balance due the Merchant.
1.5 Installment Billing Transaction – The single purchase of goods or services billed to an account in multiple segments over a period of time agreed to between a Cardholder and a Merchant.
1.6 Order Form - A document bearing the Cardholders signature, either written or electronic, authorizing goods or services to be charged to his or her account. An Order Form may be: (i) a mail order form, (ii) a Recurring Transaction form, (iii) a Preauthorized Health Care Transaction form, or
(iv) an e-mail or other electronic record that meets the requirements of applicable law.
1.7 Permanent Establishment - A fixed place of business through which an Electronic Commerce or Mail Order/Phone Order Merchant conducts its business, regardless of its Web site or server locations.
1.8 Recurring Transaction - A Transaction for which a Cardholder provides permission, in either written or electronic format, to a Merchant to periodically charge an Account Number for recurring goods or services. These may include payment of recurring charges, such as insurance premiums, subscriptions, internet service provider monthly fees, membership fees, tuition, or utility charges.
2.1 Merchant may accept Card Not Present (CNP) Transactions (“CNP Transactions”) based upon the description of Merchant's business (“Business”) on the Application and as authorized by Processor and Bank. Processor and Bank reserve the right to terminate CNP Transactions in the event that there is any material change in the Business, including any material change in the customers, products, management or employees of the Business. Merchant agrees that, except as expressly permitted by the Operating Rules, no CNP Transactions shall be submitted for processing prior to shipping of the product purchased and/or the implementation of the service offered.
2.2 Merchant understands and agrees that CNP Transactions: (i) do not require the Cardholder's signature on the Charge Record, sales draft or sales slip (with the exception of Order Forms authorizing a Recurring Transaction); (ii) require the Merchant to obtain the valid Expiration Date for each Card used for a CNP Transaction; and (iii) require the Expiration Date of the Card be submitted as part of the Authorization process.
2.3 It is understood that Authorizations for CNP Transactions are subject to Chargeback and such Authorizations do not guarantee the validity or collectability of the Transaction. Merchant agrees to take reasonable additional steps to verify the identity of the authorized Cardholder on these types of Transactions, especially when merchandise is shipped to a third party. Merchant acknowledges and agrees that the receipt of an Authorization Code indicating approval does not guarantee Merchant against Chargebacks. Merchant is encouraged to use (when not prohibited under applicable law) fraud reduction systems offered by the Card Networks, such as AVS and CVV2/CVC2 in CNP Transactions.
2.4 Generally, in order to satisfy a retrieval request for CNP Transactions, the following Charge Record information must be provided by Merchant: (i) the Cardholder Account number, (ii) the Card expiration date, (iii) the Cardholder name, (iv) the Transaction date, (v) the Transaction amount, (vi) the Authorization Code, (vii) Merchant's Name, (viii) Merchant's location,
(ix) a description of the goods or services, (x) the “ship to” address, and (xi) the AVS response code (if AVS was used).
3.1 If at any time the volume of CNP Transactions, substantially exceeds the projected annual volume stated on the Application, or if at any time Processor or Bank suspects fraud, money laundering or violations of the Operating Rules, Processor or Bank may, in their sole and absolute discretion and in addition to other remedies that Processor or Bank may have:
3.1.1 refuse to process the excessive or suspect CNP Transactions;
3.1.2 process the CNP Transactions and retain the funds received from processing until such time as the excess or suspect charges are found to be valid or invalid and processed in accordance with the Operating Rules;
3.1.3 suspend the CNP Transactions and/or terminate the Agreement; or
3.1.4 amend the Agreement to protect the interests of Processor or Bank.
4.1 If Processor or Bank authorize Merchant to accept Electronic Commerce Transactions, Merchant agrees to comply with all the provisions of the Operating Rules pertaining to Electronic Commerce Transactions.
4.2 Merchant shall at all times maintain a secure site for the transmission of data relating to the processing of Electronic Commerce Transactions. Merchant shall be responsible for ensuring, obtaining and maintaining site security, for the encryption of all data, and for any and all storage of data both in electronic and physical form.
4.3 Each Electronic Commerce Transaction must be identified as such when submitted by Merchant by using the appropriate Electronic Commerce Transaction indicator values specified by the Card Networks.
4.4 Merchant may not submit a request for Authorization for an Electronic Commerce Transaction that has failed a 3-D Secure authentication request.
(viii) Merchant's delivery/fulfillment policy.
4.6 Merchant shall provide Cardholders a secure transaction method, such as Secure Socket Layer or 3-D Secure.
4.7 Each web site operated by Merchant must display the marks of the Card Networks for the Card types which are accepted by the Merchant, as specified in the Operating Rules.
4.8 Merchant cannot refuse to complete an Electronic Commerce Transaction using a Mastercard-branded Card solely because the Cardholder does not have a digital certificate or other secured protocol.
4.9 Merchant agrees to include, in addition to the other data required under the Operating Rules, the following data on a Charge Record completed for an Electronic Commerce Transaction: (i) Merchant's name most recognizable to the Cardholder, such as: Merchant “doing business as” name or Merchant's “universal resource locator” (URL), or Merchant name used in the VisaNet Clearing Record; (ii) Customer service contact information including telephone country code and area code. If Merchant delivers goods or services internationally, Merchant must list both local and internationally accessible telephone numbers; (iii) Terms and conditions of sale, if restricted; (iv) The exact date any free trial period ends, if offered; (v) Cancellation policies; (vi) Merchant's online address; and (vii) A unique Transaction identification number. For receipts completed by internet payment service providers, see additional requirements set forth in the Operating Guide and Operating Rules.
4.10 Merchant will provide a completed copy of the Charge Record to the Cardholder at the time the purchased goods are delivered or services performed. Merchant may deliver the Charge Record in either of the following formats: (i) electronic (e.g., e-mail or fax), or (ii) paper (e.g., hand- written or terminal-generated). Merchant may not transmit the Cardholder Account number or card expiration date to the Cardholder over the Internet or on the Charge Record.
If Merchant is so permitted by Processor or Bank, Merchant may offer Cardholders involved in Electronic Commerce Transactions or mail order/telephone order Transactions an Installment Billing Transaction option. If Merchant offers an Installment Billing Option, Merchant must comply with the requirements set forth in the Operating Rules, including without limitation, those set forth in the Visa Operating Rules.
Merchant shall comply with all applicable Operating Rules, including without limitation those set forth in the Visa Operating Rules.
Merchant must complete a recurring Transaction in accordance with the requirements set forth in the Operating Rules, including without limitation, those set forth in the Visa Operating Rules.
Merchant must comply with the requirements set forth in the Operating Rules, including without limitation, those set forth in the Visa Operating Rules.
Card Program duties may, from time to time, be delegated to and among Processor's business units without giving notice to Merchant, provided, however, Processor will remain responsible for any obligation owed by Processor under the Agreement.
Should Merchant, at any time, fail to agree or comply with this Addendum, Processor or Bank shall have the right to immediately and without prior notice suspend and/or terminate CNP Transactions and/or the Agreement.
This SPECIAL SERVICES ADDENDUM is made a part of the terms and conditions of the Agreement, and Merchant has agreed to comply with all terms and conditions herein. This Addendum describes additional requirements that Merchant is to follow for the special card processing services referred to below. Requirements set forth herein are in addition to requirements set forth in the Agreement and the Operating Rules. All capitalized terms used in this Addendum and not otherwise defined herein shall have the meanings assigned to them in the Agreement.
Merchant may be eligible to participate in a number of additional services provided by Visa (the “Visa Services”), as listed below and as further described in the Visa Operating Rules and other official publications from Visa regarding such Visa Services. Merchant’s eligibility for, and participation in, these services is subject at all times to the terms of the Operating Rules and any other official publications from Visa governing such Visa Services, as such may be changed from time to time, and Merchant agrees that it will at all times comply with the Operating Rules when receiving or utilizing any of these services. Merchant must receive Processor’s Bank’s prior approval before participating in any of the Visa Services, including, without limitation, those listed below.
1. Account Funding Transaction - Use of a Card to find another account, such as a prepaid Card account.
2. Advance Payment Service - A Visa service that allows a Cardholder to use his or her Card for a partial or complete advance payment for recreational services or activities provided by an Advance Payment Service Merchant.
3. Advance Payment Service Merchant - A non-T&E Merchant participating in the Advance Payment Service, whose primary function is to provide recreational services to tourism and travel.
4. Advance Payment Service Transaction - A Transaction completed by an Advance Payment Service Merchant.
5. Car Rental Company - A merchant whose primary business is the rental of passenger vehicles.
6. Central Reservations Service - An entity that acts as a reservations resource for lodging establishments located in close proximity to each other.
7. CPS/Small Ticket - A Visa-offered service designed to meet the special Card acceptance and operating procedures of certain Merchants involving small dollar Transactions.
8. Dynamic Currency Conversion - A conversion of currency in which goods or services are normally priced into a different currency, as agreed upon by the Cardholder and Merchant.
9. Small Ticket Payment Service - A Visa service that permits certain Merchants (e.g., certain local commuter passenger transportation, taxicabs and limousines, bus lines, toll and bridge fees, restaurants, fast food restaurants, news dealers, newsstands, laundries--family, commercial, dry cleaners, quick copy, reproduction, and blueprinting services, parking lots and garages, car washes, motion picture theaters and video tape rental stores) to process Card Transactions using special procedures as outlined in the Visa Operating Rules.
10. Lodging Merchant - A merchant that sells overnight accommodations intended for a limited period of time.
11. No Signature Required Service - A Visa Point of Sale service that permits certain No Signature Required Merchants (e.g., certain local commuter passenger transportation, taxicabs and limousines, bus lines, toll and bridge fees, restaurants, fast food restaurants, news dealers, newsstands, cigar stores/stands, laundries--family, commercial, dry cleaners, quick copy, reproduction, and blueprinting services, parking lots and garages, car washes, motion picture theaters and video tape rental stores; or certain convenience stores, filling stations --automotive gasoline, and drug stores, pharmacies, U.S. Postal Service) to process Card Transactions under $25 using special procedures as outlined in the Visa Operating Rules.
12. Priority Check-Out Service - A Visa service provided that allows a Cardholder to authorize the use of the Cardholder's Card for payment of the total obligation to the Lodging Merchant with or without prior knowledge of the total amount, by signing a completed Priority Check-Out Agreement.
13. Priority Check-Out Agreement - A written agreement that, when bearing the Cardholder's signature, authorizes a Lodging Merchant participating in Visa's Priority Check-Out Service to deposit a Transaction without the Cardholder's signature for the total amount of the Cardholder's obligation.
14. Supermarket Incentive Program - A Visa program that permits certain supermarket merchants to qualify for reduced interchange reimbursement fees.
15. T&E Advance Deposit Service - A Visa service that a Lodging Merchant or Car Rental Company provides to a Cardholder, allowing use of a Visa Card to pay in advance deposit required to reserve accommodations or a vehicle.
16. [Intentionally Omitted]
17. T&E Merchant - A merchant whose primary function is the provision of travel related services.
18. Telephone Service Transaction - A Card Transaction in which a Cardholder uses a Visa Card to purchase a telephone call.
19. Visa Cash Back Service - A Visa service whereby cash is obtained from a qualified Merchant through the use of a Visa Check Card II in conjunction with, and processed as a PIN-based Transaction.
Merchant Restrictions Addendum
This MERCHANT RESTRICTIONS ADDENDUM is made a part of the terms and conditions of the Agreement, Merchant has agreed to comply with all terms and conditions of the Addendum.
1. Merchant agrees (in the case of each of the following, to the extent such agreement is not prohibited by mandatory provisions of applicable law) that Merchant will not:
1.1 Refuse to honor any valid, properly presented Card of a type specified by Merchant for acceptance on the Application.
1.2 Accept Cardholder payments for previous Transactions incurred at the Merchant location.
1.3 Establish a minimum or maximum Transaction amount as a condition for honoring a Card, unless otherwise required or allowed by the Operating Rules.
1.4 Require a Cardholder to complete a postcard or similar document that includes the Cardholder's account number, Card expiration date, signature, or any other Card account data in plain view when mailed.
1.5 Add any surcharge or convenience fee to Transactions if the surcharge or convenience fee is prohibited by the Operating Rules (Travelers Cheque and Foreign Currency fees are not surcharges).
1.6 Add any tax to Transactions, unless applicable law expressly requires that Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately.
1.7 Enter any Transaction for a Transaction that was previously charged back to Merchant Bank and subsequently returned to Merchant, irrespective of Cardholder approval. Merchant may pursue payment from the customer outside the Visa system.
1.8 Request or use an account number for any purpose other than as payment for its goods or services.
1.9 Require a Cardholder to provide fingerprints or other personal information, such as address, license, telephone number or social security number as a condition for honoring a Card, unless required to do so by the Operating Rules.
1.10 Submit Transactions for processing without physical possession of the Card, unless Merchant is registered with Processor or Bank, as applicable, to submit CNP Transactions and does so in accordance with the CNP ADDENDUM.
1.11 Require a Cardholder, as a condition of honoring a Card, to sign any statement that waives the Cardholder’s rights to dispute the Transaction with the Card Issuer.
1.12 Disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant.
1.13 Disburse funds in the form of cash, unless: (i) Merchant is dispersing funds in the form of travelers cheques, Visa TravelMoney Cards, or Foreign Currency. In this case, the Transaction amount is limited to the value of the travelers cheques, Visa TravelMoney Cards, or Foreign Currency plus any commission or fee charged by the Merchant, or (ii) Merchant is participating in the Visa Cash Back Service.
1.14 Accept a Card for the purchase of scrip.
1.15 Accept a Card for a manual cash disbursement.
1.16 Accept a Card to collect or refinance an existing debt that has been deemed uncollectible by Merchant providing the associated goods or services.
1.17 Enter a Transaction that represents collection of a dishonored check.
2. Merchant must not, in the event of its failure, including bankruptcy, insolvency, or other suspension of business operations, sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Transaction information to third parties. Merchant must return this information to Processor or provide acceptable proof of the destruction of this information to Processor.
3. Merchant Use and Disclosure of BIN Information
3.1 Processor or Bank may provide BIN information or other product- identifying data to the Merchant or its Service Provider solely for purposes of identifying Visa or Mastercard Card product types at the point of sale. Processor or Bank must provide this Visa BIN information to any Merchant requesting it for the permitted purpose.
3.2 Processor or Bank must provide a complete list of the BINs that apply to Debit Mastercard Cards to Merchants upon any form of reasonable request.
3.3 A U.S. Merchant or its Service Provider that receives BIN information or other product-identifying data from Processor or Bank must not use such information for any reason other than to identify Visa or Mastercard Card product types at the point of sale and to implement acceptance practices permitted by the Visa or Mastercard Operating Rules based on such information, unless authorized by Visa or Mastercard, as applicable.
3.4 A U.S. Merchant or its Service Provider must not disclose BIN information or other product-identifying data to any third party without prior written permission from Visa or Mastercard, as applicable. If Merchant provides BIN or other product data information to a Service Provider, Merchant must: (i) Ensure that the Service Provider complies with the substance of these “Merchant Use and Disclosure of BIN Information” requirements and (ii) Include the substance of these requirements in Merchant's agreement or contract with its Service Provider.
4. Submission Requirements and Restrictions
4.1 Merchant must submit only Transactions that directly result from Cardholder Transactions with Merchant.
4.2 An Internet Payment Service Provider (ISP) may deposit Charge Records on behalf of Merchant, as long as the ISP has been approved by the Merchant Bank. (i) The ISP name may appear in the clearing record only if both these conditions are met: Cardholder accesses the web site of the ISP directly, and the name of the ISP is visible to the Cardholder during the selection, order, and payment processing services. (ii) If the Cardholder accesses the Merchant's web site and is then linked to the web site of the ISP for payment, the ISP's name must appear in the clearing record in conjunction with the Merchant's name.
4.3 Merchant must not submit a Transaction until it does one of the following:
(i) Completes the Transaction, (ii) Ships or provides the goods, (iii) Performs the purchased service, or (iv) Obtains the Cardholder's consent for a recurring Transaction.
4.4 Merchant must not submit a Transaction that it knows or should have known to be either fraudulent or not authorized by the Cardholder.
4.5 Merchant is responsible for its employees' actions while in Merchant's employ.
4.6 Merchant may submit a Transaction for a prepayment, within the time limits specified in section 5 below, if the Merchant advises the Cardholder of the immediate billing at the time of the Transaction, for (i) prepayment of services, excluding estimates for services to be provided, and (ii) full prepayment of custom-ordered merchandise, manufactured to the Cardholder's specifications. For prepayment of services, the Transaction date is considered to be the date of Cardholder prepayment.
4.7 An Advance Payment Service Merchant must only submit a Transaction representing a partial or complete advance payment, provided Merchant informs the Cardholder of the following: (i) the total price of the services or activity, (ii) the advance payment amount, (iii) the advance payment confirmation code, and (iv) the cancellation terms.
4.8 For more information on restrictions related to Advance Payment Service Transactions, see the Special Services Addendum, section 2.
4.9 If Merchant has multiple outlets, Merchant must ensure that Processor and Merchant Bank are able to: (i) Identify the location of each Transaction on the Charge Record, and (ii) Include this identification in the clearing record.
5. Visa Submission Time Limits
5.1 Merchant must submit Transactions within 5 calendar days of the Transaction date, except as specified below.
5.2 Merchant must submit Transactions for Delayed Delivery Transactions within 5 calendar days of the date of both the deposit and final payment.
5.3 Merchant with multiple outlets; transportation companies subject to federal or foreign regulations; oil companies; car rental companies; hotels; motels; and restaurant chains must deposit Transactions as follows: (i) Transactions within 20 calendar days of the Transaction date; and (ii) Credit Transactions within 9 calendar days of the Transaction date, if accumulated at a central office facility.
This Discover Card Acceptance Addendum (“Discover Addendum”) is made between Processor and Merchant, and is made a part of the terms and conditions of the Agreement. This Addendum governs Merchant’s acceptance of Discover and Diners Club International, UnionPay, and JCB (“Discover Cards”). Capitalized terms used in this Discover Addendum and not defined herein shall have the meaning given them in the Agreement. Except as specifically modified or amended in this Discover Addendum, Merchant agrees to comply with the terms of the Agreement in accepting Discover Card Transactions. Merchant understands that a request to accept Discover Cards is subject to approval by Discover and Processor. Failure to comply with the terms of this Discover Addendum or the Agreement may result in suspension of Discover Card processing services and all other payment processing services for Merchant.
1.1 Merchant must comply with the terms of the Discover Operating Regulations, including the Technical Specifications and the Dispute Rules Manual. The appendices, addenda, schedules and Operating Guide that accompany or are incorporated by reference into this Discover Addendum or the Agreement, as amended from time to time, are part of the terms and conditions of this Discover Addendum, as are the Application and the Discover Operating Regulations, including the Technical Specifications and the Dispute Rules Manual, and with this Discover Addendum are individually and collectively hereinafter referred to as the “Agreement” or as the “Merchant Agreement”.
1.2 With respect to Discover Card Transactions, Processor is responsible for providing settlement funds directly to Merchant. Settlement funds will be deposited to the Settlement Account.
1.3 Merchant agrees to provide Transaction data and other Merchant information as requested to Discover and any entities required by Discover, including information required for the Consortium Merchant Negative File (commonly referred to as MATCH).
1.4 Merchant may not use, store or disclose Transaction data or Merchant information except as permitted under the terms of the Discover Operating Regulations, including the Technical Specifications and the Dispute Rules Manual.
1.5 Merchant may not require a minimum or maximum purchase amount for use of Discover Card or impose any surcharge or convenience fee on Discover Card Transactions except as permitted by the Discover Operating Regulations.
1.6 Merchant agrees to accept Discover Card Checks consistent with card checks of other card types and similar to Merchant's policies concerning personal checks.
1.7 A Payment Service Provider (PSP) shall be treated as a Merchant for all purposes under the Agreement, this Discover Addendum and the Discover Operating Regulations, and shall also be subject to additional requirements applicable to PSPs as set forth in the Discover Operating Regulations.
1.8 In the event the Agreement is terminated for any reason, whether for cause or without cause, this Discover Addendum will immediately terminate. Either Processor or Discover may terminate this Discover Addendum at any time without cause upon thirty (30) days advance written notice and may terminate this Discover Addendum for cause in either's sole discretion, effectively immediately.
1.9 The Discover Operating Regulations, including the Technical Specifications and the Dispute Rules Manual may be obtained by contacting Processor customer service.
1.10 For the avoidance of doubt, Discover Card includes Cards branded Discover, Diners Club International, UnionPay and JCB, and Merchant shall accept all such branded Discover Cards.
Prohibited from using the Program Marks, as defined below, other than as expressly authorized in writing by Processor. Program Marks mean the brands, emblems, trademarks, and/or logos that identify Discover Cards, including, without limitation, Diners Club International Cards. Additionally, Merchant shall not use the Program Marks other than to display decals, signage, advertising, and other forms depicting the Program Marks that are provided to Merchant by Processor pursuant to the Merchant Program or otherwise approved in advance in writing by Processor. Merchant may use the Program Marks only to promote the services covered by the Program Marks by using them on decals, indoor and outdoor signs, websites, advertising materials and marketing materials; provided that all such uses by Merchants must be approved in advance by Processor in writing. Merchant shall not use the Program Marks in such a way that customers could believe that the products or services offered by Merchant are sponsored or guaranteed by the owners of the Program Marks. Merchant recognizes that it has no ownership rights in the Program Marks. Merchant shall not assign to any third party any of the rights to use the Program Marks.
3.1 As to Discover Card Transactions, the Business Checking section of the Application that references the AUTHORIZATION FOR AUTOMATIC FUNDS TRANSFER (ACH) shall include the following: Processor is authorized to initiate or transmit automatic debit and/or credit entries and/or check entries to the Settlement Account identified in the Application for all services contemplated under this Discover Addendum. Merchant agrees that Processor may charge the Settlement Account for the amount of any sales draft processed under this Agreement, or any agreement Processor may have with any Merchant Affiliate that results in a Chargeback, or for any Credit Voucher or other reimbursement or Processing Fees to which Processor may be entitled.
3.2 By signing the Application or accepting Discover Card with Processor as the Discover Card Transaction processor, Merchant agrees to be bound by the terms of this Discover Addendum and will not receive a separate Discover Card Terms and Conditions from DFS Services LLC.
4.1 As to Discover Card Transactions only, Section 3.3 of the Merchant Agreement is amended to add the following language: (i) Processor will provide provisional credit to Merchant for each valid Discover Card Transaction which Merchant submits to Processor by crediting Merchant's Settlement Account, provided Processor has received settlement for the valid Transaction through the interchange procedures specified by Discover. Processor is not obligated to provide provisional credit to Merchant for Transactions submitted that are not valid Transactions, and may suspend or discontinue any provisional credit in Processor’s sole and absolute discretion, including for any reason that would justify termination of this Agreement. Each provisional credit from Processor to Merchant will be subject to Adjustment, including revocation, upon Processor’s further review and verification. Provisional credit to Merchant for a Transaction disputed by a Cardholder for any reason is not final. (ii) Processor may deduct from any payment to Merchant the amount of any Credit Voucher processed for Merchant, any Chargeback to Merchant, any amount to be deposited in the Reserve Account and any Processing Fees and Discover fines or charges due from Merchant. Merchant must immediately pay Processor the amount by which a Credit Voucher processed on any day exceeds valid Transaction submitted on that day. Without limiting Processor’s remedies, Processor may obtain the amount due by deducting it from the Settlement Account, Reserve Account or other accounts of or funds due Merchant. (iii) Merchant acknowledges that all payments and credits provided to Merchant are provisional and subject to suspension, to Chargebacks and to Adjustments in accordance with this Discover Addendum, the Agreement and the Discover Operating Regulations, including the Technical Specifications and the Dispute Rules Manual.
4.2 As a condition to Processor providing Discover Card processing services under this Discover Addendum, Merchant may be required to provide additional collateral security, beyond the amounts provided for under the Agreement, for Merchants obligations under this Discover Addendum. The additional collateral security shall be of a kind, and in amounts, satisfactory to Processor and may include delaying payments to Merchant on Discover Card Transaction settlements.
5. Discover Pricing Merchant will pay the Processing Fees specified for Discover Card Transactions in the “Fee Schedule” of the Application in addition to Visa and Mastercard Card Transactions. All other terms and conditions of the Agreement apply to Processing Fees payable by Merchant for Discover Card Transactions.
Visa Account Updater Addendum
This Visa Account Updater (“VAU”) Addendum and is made between Merchant and Processor, and is made a part of the terms and conditions of the Agreement. Merchant understands that a request for VAU service is subject to approval by Visa and the Processor. Merchant signature on the Application signifies acceptance of the terms of this Visa Account Updater Addendum, including VAU pricing, in addition to the terms of the Agreement. Failure to comply with the terms of this Visa Account Updater Addendum or the Agreement may result in suspension of VAU service and all other payment processing services for Merchant. The VAU program enables U.S. card issuers to supply the most current Cardholder account information through U.S. acquirers to U.S. acquired merchants whose businesses require electronic maintenance of customer account data. Participating merchants use updated Cardholder account information to support subscription services, recurring payments, and other account-on-file functions, such as T&E “gold”, preferred check-in programs, internet and registered user “one-click” capabilities. VAU service provides an automated, dedicated, secure clearinghouse to make changes to limited Cardholder account information (such as account number, expiration date, account closure or other changes) available in a timely, efficient and cost- effective manner.
1. Merchant Security Requirements
1.1 Merchant must comply with all applicable laws, such as data protection laws (including gathering specific consent of Cardholders for processing and transfer of their personal data, if applicable).
1.2 Merchant must ensure that Cardholder information is securely stored, and that such information is available only to those employees of Merchant who have a legitimate business need and authorization to access the information.
1.3 Merchant must ensure that employees who have access to Cardholder information are aware of, and familiar with Merchant's policies as they relate to the use of such information (and related personal data).
1.4 Merchant must delete all Visa Account Updater files with Cardholder information after use to minimize the likelihood of improper access to, or use of, the data.
1.5 Merchant must be in compliance with Payment Card Industry Data Security Standards at all times.
2. Merchant Participation Requirements Merchant must continue to meet Visa Merchant Participation Requirements as established by Visa from time to time including;
2.1 Merchant must be a U.S. acquired merchant.
2.2 Merchant must not have been disqualified from participating in the Visa system.
2.3 Merchant must be in compliance with Visa Operating Rules.
2.4 Merchant must have a valid business need to receive updated account information, including but not limited to: (i) Subscription services (ii) “Express checkout services” (iii) Membership (club) services (iv) Recurring payment services
2.5 Merchant must meet the following risk management criteria: (i) Must not be engaged in business categorized by the following Merchant Category Codes: 5962, 5966, 5967, and 7995. (ii) Must not be a merchant whose sales Transactions are predominantly Quasi-Cash, Account Funding, or any combination thereof.
2.6 Merchant must comply with all applicable laws and regulations.
2.7 Merchant must be approved by Visa U.S.A. for participation.
2.8 Merchant will promptly notify the Processor of any change in Merchant's Participation Requirements.
3. VAU Merchant Inquiry Records
3.1 Merchant must be registered with Visa for the Visa Account Updater program before merchant can submit account inquiries.
3.2 Merchant must request a VAU update through the Processor for every participating Visa account in merchant's customer VAU qualified database at least once every 180 calendar days.
3.3 Merchant must submit inquiries only for those accounts with which the merchant has an ongoing customer relationship as defined by Visa.
3.4 Merchant may not subsequently inquire on accounts that have previously returned a response of “Closed Account”.
3.5 Merchant may not submit VAU inquiries on behalf of any other entity.
3.6 Merchant must submit account inquiries in the Processor-specified file format and manner.
4. VAU Merchant Response Records
4.1 Merchant must update its customer account database within five (5) business days of a VAU update from Processor
4.2 Merchant must ensure that information received from VAU is properly, completely, and accurately incorporated into the merchant's customer database for utilization in future Visa Transactions.
5. Error Resolution
5.1 Merchant must correct erroneous account information within five (5) business days of receipt of an error notification from the Processor or Visa.
5.2 Merchant must correct operational errors within five (5) business days of receipt of an error notification from the Processor or Visa.
6. Issuer Exclusions Merchant understands that an issuer may request that VAU withhold account updates from one or more selected merchants.
7. VAU Pricing
7.1 Match Fees: Merchant will pay the Processing Fees specified in the “Fee Schedule” of the Application, which is assessed on a per match basis, with a match considered to be any of the following responses: (i) Account Number changes (includes Issuer Reason Codes R, B and P) (ii) Expiration Date Changes (Issuer Reason Code E).
7.2 Fee Changes: Should Visa change the fee structure for VAU, Processor will make similar changes to the merchant fee structure.
Mastercard Automatic Billing Updater Addendum
This Mastercard Automatic Billing Updater (“ABU”) Addendum is made between Merchant and Processor, and is made a part of the terms and conditions of the Agreement. Merchant understands that a request for ABU service is subject to approval by Mastercard and the Processor. Merchant signature on the Application signifies acceptance of the terms of this Mastercard Automatic Billing Updater Addendum, including ABU pricing, in addition to the terms of the Agreement. Failure to comply with the terms of this Mastercard Automatic Billing Updater Addendum or the Agreement may result in suspension of ABU service and all other payment processing services for Merchant. The Mastercard Billing Account Updater program enables U.S. card issuers to supply the most current Cardholder account information through U.S. acquirers to U.S. acquired merchants whose businesses require electronic maintenance of customer account data. Participating merchants use updated Cardholder account information to support subscription services, recurring payments, and other account-on-file functions. ABU service provides an automated, dedicated, secure clearinghouse to make changes to limited Cardholder account information (such as account number, expiration date, account closure or other changes) available in a timely, efficient and cost-effective manner.
1. Merchant Security Requirements
1.1 Merchant must comply with all applicable laws, such as data protection laws (including gathering specific consent of Cardholders for processing and transfer of their personal data, if applicable).
1.2 Merchant must ensure that Cardholder information is securely stored, and that such information is available only to those employees of Merchant who have a legitimate business need and authorization to access the information.
1.3 Merchant must ensure that employees who have access to Cardholder information are aware of, and familiar with Merchant's policies as they relate to the use of such information (and related personal data).
1.4 Merchant must delete all Automatic Billing Updater files with Cardholder information after use to minimize the likelihood of improper access to, or use of, the data.
1.5 Merchant must be in compliance with Payment Card Industry Data Security Standards at all times.
2. Merchant Participation Requirements Merchant must meet Mastercard Participation Requirements as established by Mastercard from time to time, including:
2.1 Merchant must be a U.S. acquired merchant.
2.2 Merchant must not have been disqualified from participating in the Mastercard system.
2.3 Merchant must be in compliance with Mastercard Operating Regulations.
2.4 Merchant must have a valid business need to receive updated account information.
2.5 Merchant must comply with all applicable laws and regulations.
2.6 Merchant must be approved by Mastercard for participation.
2.7 Merchant will promptly notify Processor of any change in Merchant's Participation Requirements.
2.8 ABU Merchant Inquiry Records
2.9 Merchant must be registered with Mastercard for the Mastercard Billing Account Updater program before merchant can submit account inquiries.
2.10 The Mastercard Automated Billing Updater application will identify account change information only for Mastercard accounts
2.11 Merchant must submit account inquiries in the Processor-specified file format and manner.
2.12 Merchant must submit inquiries only for those accounts with which the merchant has an ongoing customer relationship.
2.13 Merchant may not subsequently inquire on accounts that have previously returned a response of “Closed Account”.
2.14 At this time, only Mastercard-branded card programs are included in this service. Therefore, no account number should be longer than 19 digits. All account numbers should begin within the range of 51 through 55.
2.15 Merchant may not submit ABU inquiries on behalf of any other entity.
3. ABU Merchant Response Records Merchant will update Cardholder account data within ten (10) days of receipt.
4. ABU Pricing
4.1 Match Fees: Merchant will pay the Processing Fees specified in the “Fee Schedule” of the Application, which is assessed on a per match basis, with a match considered to be any of the following responses: (i) Account Number changes (includes Issuer Reason Codes R, B and P) (ii) Expiration Date Changes (Issuer Reason Code E).
4.2 Enrollment Fee: An enrollment fee of $50 is assessed by Mastercard on a per merchant number basis. Changes: Should Mastercard change the fee structure for ABU, the Processor will make similar changes to the merchant fee structure.
American Express Card Acceptance Addendum
This American Express Card Acceptance Addendum (“American Express Addendum”) is made between Processor and Merchant, and is made a part of the terms and conditions of the Agreement. This Addendum governs Merchant’s acceptance of American Express Cards (“American Express Cards”). Capitalized terms used in this American Express Addendum and not defined herein shall have the meaning given them in the Agreement. Except as specifically modified or amended in this American Express Addendum, Merchant agrees to comply with the terms of the Agreement in accepting American Express Card Transactions. Merchant understands that a request to accept American Express Cards is subject to approval by American Express and Processor. Failure to comply with the terms of this American Express Addendum or the Agreement may result in suspension of American Express Card processing services and all other payment processing services for Merchant.
1. American Express General Terms and Conditions.
1.1. By signing the Application or accepting American Express Card with Processor as the American Express Card Transaction processor, Merchant agrees to be bound by the terms of this American Express Addendum and will not receive separate American Express terms and conditions from American Express.
1.2. Merchant authorizes Processor to submit American Express Card Transactions to, and receive settlement from, American Express on behalf of the Merchant.
1.3. Merchant may opt out of American Express Card acceptance at any time without directly or indirectly affecting its rights to accept other Card Network Cards.
1.4. Merchant is prohibited from billing or collecting from any Cardholder for any purchase or payment on the American Express Card unless Chargeback has been exercised, the Merchant has fully paid for such American Express Card Transaction, and it otherwise has the right to do so.
1.5. Merchant must remove American Express program marks from Merchant’s website and wherever else they are displayed upon termination of the Agreement or American Express Card acceptance under this American Express Addendum.
2. Transaction and Merchant Information.
2.1. Merchant consents to American Express’ use of American Express Card Transaction data and other information related to Merchant to perform its responsibilities in connection with processing an American Express Card Transaction, promote the American Express network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of its agreement with Processor and the marketing opt-out set forth in the Application, and important transactional or relationship communications from American Express.
2.2. Merchant acknowledges and agrees that American Express may use the information obtained in the Application at the time of setup to screen and/or monitor Merchant in connection with American Express Card marketing and administrative purposes.
3. High Charge Volume Conversion. Merchant acknowledges and agrees that it may be converted from American Express Card acceptance pursuant to this Agreement to a direct American Express Card acceptance relationship with American Express if and when it becomes a “High CV Merchant.” A “High CV Merchant” means a merchant with either (i) greater than $1,000,000 in American Express Card Transaction volume (including all volume from all merchant locations) in a rolling twelve (12) month period or (ii) greater than $100,000 in American Express Card Transaction volume (including all volume from all merchant locations) in any three (3) consecutive months. Upon any such conversion, Merchant acknowledges and agrees that (i) merchant will be bound by American Express’ then- current Card Acceptance Agreement, and (ii) American Express will set pricing and other fees payable by Merchant for American Express Card acceptance.
4. Transaction Encumbrances. Merchant acknowledges and agrees that its shall not assign to any third party any payments due to it under the Agreement, and all indebtedness arising from American Express Card Transactions will be for bona fide sales of goods and services (or both) at its place of business and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future American Express Card Transaction receivables to Processor, its affiliated entities and/or any other cash advance funding source that partners with Processor or its affiliated entities, without consent of American Express.
5. Refund Policies. Merchant agrees to have a refund policy for purchases on the American Express Card that is at least as favorable as its refund policy for purchases on any other Card Network Cards, and to disclose the refund policy to Cardholders at the time of purchase. Moreover, Merchant agrees that its refund policy for purchases on the American Express Card is compliant with applicable law.
6. Third-Party Beneficiary. American Express shall be a third party beneficiary of the Agreement for purposes of American Express Card acceptance. As a third party beneficiary, American Express shall have the right to enforce directly against Merchant the terms of the Agreement and this American Express Addendum as related to American Express Card acceptance. Merchant acknowledges and agrees that American Express shall have no responsibility of liability with regard to Processor’s obligations to Merchant under the Agreement and this American Express Addendum.