HomeMy WebLinkAbout2017-27772017 -2777
MERCHANT PROCESSING APPLICATION AND AGREEMENT
PARTIES AND SERVICES
Merchant # ISO Name: Higher Standards
Agent #' Sales Rep Name: Chris Haubie
r
_. ...
Loc. of
LOC7t b W 14FO7 11A31ON CORPORATE *FORMATION
Stare/DBA Name. Top Valu Liquor I Store #: :'Client's Co J ✓C of Columbia Heights
rp Legal Name. itY
''MCC Description. 5921 (Also for Headquarter's Info. and if dHferant then DBA)
Product/ ❑ Same as DBA Name
Services Sold: COitPORY1 ?8{gC7 MiFORlililTlON
Mf your business I3 cles&ifiad as High Risk and assigned (a is later assigned based upon your •' V - "
business activity) any of the Tollowing Merchant Category Codes (MCC): 5966, 5967, and 73411, then. ❑ Same as Location or-
registration Is required with Visa aedror MasterCard within 30 days from when your account becomes
active. An Annual Registration Fee of 5500 may apply for Visa and/or MasterCard (total registration .
fees could be 51,000.00). Fallure to reglater could resuh In fines in excess of 5to,000.00 Tor violating FirsVl-ast Name: Joseph Kloiber
Visa and/or MasterCard mgulatione,
'Registration for MCC 7841 is only required for non - face- to4ace adult content - Street Address: 590 40th Ave NE
'hAormation herein, Including applicable MCC&, is subject to change
ILOCAtIlONICONTACT INj6P4 -,RON City: Columbia Heights emu: MN Z,p; 55421
First/Last Name: Joseph Kloiber Country: USA
Streetpddre,m- 4950 Central Ave NE Business Phone: (763) 706 -3632 Fax #,
City: Columbia Heights state; MN zip; 55421 Mobile #: Pager #
Country: USA
Business Phone: (763) 7063819 Gust, Svc. Phone:(763) 7063819
Fax Type: Fax #:
Mobile #• Pager #:
E- Mail: Jkloiber @coiumbiaheightsmn.gov
01`9811 tion Type: ❑ Association ❑ Individual /Sole Proprietor
❑ Estate/Trust ❑ international LLC /Corp. (LLP /LLC)
❑ Public Corporation ❑ Private Corporation
❑ Government ❑ Tax Exempt
X Other: Municipal
SALES INF.ORMATR)Ai State Incorporated: MN
Visa /MasterCard Volume Percent: Swiped 95 % Keyed 5%: Date Business Acquired:
Discover*- PayPal Volume Percent: Swiped Keyed ry,1 + SS #:
American Express OptBlueF Volume Percent: Swiped 95% Keyed 5% ; # of Employees: 10
Bankcard Sales %: Hand Keyed 5 % Face to Face % POS 95% f
Mail/Phone % Internet % Tradeshow
Total Cash/Credit: $ 3,900,000 Average
MC /Visa Ticket:
Total Annual Average Discovere
MC /Visa Volume: $m 2.500.000 - PayPal Ticket: $ 30.00
Total Annual Discover* Average American
- PayPal Volume: S 60.000 Express OptBluea Ticket: $ 30.00
Total Annual American
Express Opt8lue° Vol.: $ 60,000 Highest Ticket: $ 750.00
PRIMARY OWNER
First /Middle /Last Name: First/Middle/Las! Name
ii TiOe _
Title.
SSN:
Date of Birth: % Ownership:
RESIDENCE INFORMATION
SSN:
Phone #• Fax #: Phone #:
Mobile #. #: Mobile #:
Street Address:
Street Address:
Chy: State: Zip: City:
BANKING INFORIi11�1TJON
Contact Name: Account Services Rep Phone #: (612) 379 -8811
Institution Name: Northeast Bank
Accountrype: Checking
ABA #: 091000132 DDA #: 5390174
SECONDARY OWNER'
Date of Birth: % Ownership:
RESIDENCE INFORMATION
Fax #:
Pager #:
State: Zip: _
FDSIS01905(ia) Page 1 of 3 FDSHI2002(ia)
TOTAL SALES , LANDLORD
Business to Business 5 % Business to Consumer 95% ❑ Own ❑ Rent Renting Since: Lease expires:
BANICCARD SALES Contact Name:
Business to Business 5 % Business to Consumer 95% Phone #:
ORDER DELIVERY ORDER FULFILLMENT VENDOR
0 -7 days 100% 8 -14 days % 15 -30 days % days % Company Name-
.
Express OptBiues Sales deposited: Contact Name:
X Date of Order ❑ Date of Delivery ❑ Other Phone #: City: State: Zip:
Explanation: Liquor Store
ENCLOSURES
Who fulfills orders: Direct ❑ Financial Statements ❑ Brochure /Directory ❑ Government Form
Description: Liquor Store ❑ Web Page or ❑ URL (required if Gov't Contract)
Use third party to store, process, transmit Cardholder data? ❑ Yes ❑ No
MODE OF ADVERTISING Name:
❑ Catalog ❑ Phone ❑ TV /Radio ❑ Internet ❑ Brochure/Directory Address:
XNewspaper/Magaz(ne ❑ Other Software Used:
TTIAOE REFERENCES
Company Name: Higher Standards Street Address: 10531 165th St. W
Phone #: (952) 736 -1700 Lakeville
City: State: MN Zip55044
product/Services: Merchant Services
MAIL CARD STATEMENTS:( DOCUMI I ys
Statement Recap Information: {check one) 1101 - Outlet X02 = Stmt to Bill To /No Recap ❑ 07 - Suppress Stmt (No Stmt) ❑ 08 = Produce Recap, No Stmt
09 = Bill to Address /Stmt and Recap ❑ 10 = Recap to Bill To /Stmt to Outlet
Statement Type, (checkone) ❑ Detail Xi Summary Statement Delivery Method: (check one) ❑ E -Mail ❑ Online X Print and Mail
Statement E-Mail Address:
Head Office /Bill To Name: First /Last Contact Name:
Address, City: State: Zip: Phone:
ON YOUR BUSINESS ACCOUNT CHECKING STATEMENT ROLLUP: (check one)
❑ 0 = Each Transfer X1 = Debit/Credit Grouped (By Category) ❑ 2 = Net Transfer Amount Only ❑ 3 =Net Transfer EOM Fee Combined
SITE SURVEY,
' RETURNI'OLICY.
Vise Performed? ayes ❑ No ❑ Exchange Only XRefund Cardholder ❑ None
Zone- Commercial Location:
Location Description: Retail Store PREYIOIISPROCESSOR
Seasonal Merchant? ❑ YesXNo Start Month: End Month:
# Floors in Building: 1 Floor(s) Occupied: Previous Processor:
Who occupies Other Floor? Previous Merchant #:
$r Fire Safety Act
Advertising Name Displayed: (Store Front ❑ Door ❑Window Reason for Leaving:
Approximate Sq. Footage: 2000+ # of Registers: , Other:
X Proper License Displayed
ENTITLEMENTS
SZrMC /Visa /Discover Network- PayPal Full Processing (Discover Network systems and rules will process and govern JCS, Diners Club international, and 5C Card Transactions.)
Voyager Fleet` or Existing Voyager Acct #. Annual Voyager Vol.: $
MC Fleet ❑ Wright Express or Existing WEX Acct #:
'Tax exempt Voyager Cards accepted: ❑ Yes ❑ No
• WEX Full Acquiring Annual WEX Volume S
• American Express OptSluO L? Amex Pass Through (existing) SE # - -- --
----- lATA/ARC: -- - - - - -- (MCC 4722)
Check one for Pass Through, ❑ Split Dial ❑ EDC
Debit Pkg: _ —_ _ — — — — ❑ EBT SNAP / FNS # (XREF): — - - - -- ❑ Non Lic. JCB (EDC) Existing SE #: -- - - - - --
DESCRIBE EQUIPMENT DETAILS
Network: ❑ (206) CARDneV ❑ Nashville f Buvnass R other.
Global Leastn for Information and dcin -end fees for r cyu�yo�n,n Pun:naae agreement wrm lout recrincnogy, mc. or your equipment lease agreement with First Data
p g your equipment or hardware. You are not purchasing or leasing equipment from Processor and you acknowledge and agree that Processor will have no
obligati on or iabiTny relating to such purchase or lease of equipment. Your purchase or lease of equipment is subject to separate terms and conditions between you and the equipment seller or lessor.
NOTE Any Special Instructions must be included on About Merchant's Business Page. j
FDSISO1905(a) Page 2 of 3 FDSH12002(ia)
Customer -Owned
Lease - Purchase•
Equipment Type
Retail • Restaurant • MOTO /Internet
Lodging • Supermarket • Car Rend
Clover Unit
For Customer -Owned
(check one)
QTY
IP
(Le- TerminaVVAR /Internet)
Quick Service Restaurant • Petr
Model Code and Name
Price
w/o Tax
Equipment
Track /Version/Serial #
X L -P
X
Microsoft RMS
X Re MOTOR L S C QSR P
$
C L "P
❑
R Re MOTO /1 L S C QSR P
g
C L 'P
R Re MOTO /I L S C QSR P
g
Global Leastn for Information and dcin -end fees for r cyu�yo�n,n Pun:naae agreement wrm lout recrincnogy, mc. or your equipment lease agreement with First Data
p g your equipment or hardware. You are not purchasing or leasing equipment from Processor and you acknowledge and agree that Processor will have no
obligati on or iabiTny relating to such purchase or lease of equipment. Your purchase or lease of equipment is subject to separate terms and conditions between you and the equipment seller or lessor.
NOTE Any Special Instructions must be included on About Merchant's Business Page. j
FDSISO1905(a) Page 2 of 3 FDSH12002(ia)
b"cRIBE;EQuipmt xrbii /ULS (cont'd) .
Installation/Training: ❑ MAG /MIG to Train (receive training via phone, dial 1- 800358 -7101 Opt. 01, M -F 8:00 am - 10:00 pm EST & Sat 10:00 am - 7:00 pm EST)
❑ Sales Rep, to Train ❑ No Merchant Training ❑ in- House ❑ PACT (Check Training via phone 1- 800366 -1054 7:00 am - 6.30p- Cn
First /fast Contact Name: Contact Phone #: Best Time To Call: ❑ am ❑ pm
Imprinter
Purchase: Li Yes ❑ No if Yes $ x Qty: = 5 (w /a Tax) Wireless Provider: ❑ GPRS Cingular or ❑ Other:
check one: ❑ Gateway Solutions ❑ Dial Solutions ❑ Payeezy Gateway ❑ VSAT"' -' ❑ Frame 0 Other: ❑ IC Verify Serial #
VAR /Intemet /Software: Name: (Nashville Only: Product ID # Vendor ID # )
NOTE: — Requires separate agreement between VSAT Provider prior to Implementation of this telecommunications protocol.
MOIL LEASING
LEASE COMPANY•. (04) First Data Global Leasing Annual Tax Handling Fee;
❑ AL, AR, CA, CT, GA, IN, KY, LA, MS, MO, NE, NV, NM, ❑Ail other
Lease Term: Mos. NC, OK, OR, RI, SC, TN, TY, VT, VA, WA, WV, WI, WY 30.20 States 10.20
Total Monthly Lease Charge for This Location: $ Total Cost to Lease (without tax): $
(w /a taxes, late fees, or other charges that may apply. See Lease Agreement for details. This is a NON- CANCELABLE base for the full term Indicated.)
Option to purchase: If you wish to buyout the equipment, please contact 1- 877 -257 -2094 to obtain the cost.
SIG*ATIIRS
Client certifies that all information set forth in this completed Merchant Processing Application and Agreement (MPA) is true. Client acknowledges having received the copy of the MPA, the
Program Guide (which includes terns and conditions for each of the services, the Your Payments Acceptance Guide, Third Party Agreement(s) and a Confirmation Page (version FDSIS01905(ia))
and agrees to be bound by all provisions as printed therein as modified from time to time, Client acknowledges and agrees that we, our Affiliates and our third party subcontractors and/or agents
may use automatic telephone dialing systems to contact Client at the telephone number(s) Client has provided in this MPA and/or may leave a detailed voice message in the event that Client is
unable to be reached, even if the number provided is a cellular or wireless number or if Client has previously registered on a Do Not Call rist or requested notto be contacted Clientfor solicitation
purposes. Client hereby consents to receiving commercial electronic mail messages from us or our Affiliates from time to time. Client further agrees that Client will not accept more than 201/6 of
its card transactions via mail, telephone or Internet order. However, if your MPA is approved based upon contrary information stated in the Sales Information Section above, you are authorized
to accept transactions in accordance with the percentages indicated in that section. This signature page also serves as a signature page to the Third Party Agreement(s) appearing In the Third
Party Section of the Program Guide.
By signing below, each of the undersigned authorizes us, our Affiliates and our third party subcontractor; and/or agents to verify the information contained in this MPA and to request and obtain
from any consumer reporting agency and other sources, including bank references, personal and business consumer reports and other information and to disclose such information amongst
each other for any purpose permitted by law. If the MPA is approved, each of the undersigned also authorizes us, our Affiliates and our third party subcontractors and /or agents to obtain
subsequent consumer reports and other information from other sources, including bank references, in connection with the review, maintenance, updating, renewal or extension of the Agreement
or for any other purpose permitted by law and disclose such information amongst each other.
Each of the undersigned furthermore agrees that all references, including banks and consumer reporting agencies, may release any and all personal and business credit finandai Information to
us, our Affiliates and our third party subcontractors and /or agents. Each of the undersigned authorizes us, our Affiliates and our third party subcontractors and /or agents to provide amongst
each other the information contained in this Merchant Processing Application and Agreement and any information received subsequent thereto from all references, including banks and consumer
reporting agencies for any purpose permitted by law. it is our policy to obtain certain information in order to verify your identity while processing your account application.
You further acknowledge and agree that you will not use your merchant account and /or the Services for illegal transactions, for example, those prohibited by the Unlawful Internet Gambling
EnforoementAct, 31 U.S.C. Section 5361 at seq, as may be amended from time to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31 CFR Part 500 e't seq.
and other laws enforced by the Office of Foreign Assets Control (OFAC).
Client certifies, under penalties of perjury, that the federal taxpayer identification number and corresponding filing name provided herein are correct.
Client agrees to all the terms of this Merchant Processing Application and Agreement. This Merchant Processing Application and Agreement shall not take effect
until Client has been approved and his gre ment has b on accepted by First Data Merchant Services LLC and Bank.
Client's Business Principal /Offc r:
Signature X (Servicers)i For First Data Merchant Services LLC and.
Print Name of Sign Joseph Kloiber WellsTargo Bank, N.A., is member of Visa USA, Inc.
9 and KaslekCard International, Inc.)
Title
Finance Director Date 3/6/2017
X Signature
Signature X
Print Name of Signer
Tittle
Date
Personal Guaraittev in exchange for First Data Merchant Services LLC and Wells Fargo Bank, N.A., (a member of Visa USA, Inc, and MasterCard International, Inc.), (the Guaranteed Panties)
acceptance of, as app~ the Agreement, and /or the applicable Third Party Agreement(s), the undersigned unconditionally and irre�ocably s the fu0 payment and performance of
Clients obligations under the agreements, as applicable, as they now ex'isi or as modified from time to time, whether before o or expiration of such agreements and
whether or not the undersigned has rece ce of any amendment of such agreements. The undersigned waives nonce of defeu s to Indemnify the Guaranteed Parties
for arty and all amounts due from Client under the o reements. The Guaranteed Parties shall not be required to fsrst eed against Client to enforce any remedy before proceeding
against the undersigned. This is a continuing personal guaranty an be discharged or affected for any reason. Th dersigned understands that this is a Personal Guaranty of payment
and not of collection and that the Guaranteed Parties are relying upon this Pe rs my in enter ng into the fo ing agreements, as applicable.
Personal Guarantee
Signature
Personal Guarantee
Signature
Print Name: _ �_ Date
Print Name: Date
FDSIS01905(ia) Page 3 of 3 FDSH12002(ia)
f •
PROCESSOR Name: FDS Holdings, Inc.
INFORMATION: Address: 1307 Walt Whitman Road, Melville, NY 11747
URL:
Customer Service #: 1- 800 - 366 -1841
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and/or Processor or the contents of your
Agreement with TeleCheck.The following information summarizes portions of yourAgreement in order to assist you in answering some of the
questions we are most commonly asked.
I. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover_ Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
Z. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the Agreement.
3. There are many reasons why a Chargeback may occur. YVhen they
occur we will debit your settlement funds or Settlement Account_ For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears
for Card Processing or within 30 days of the date of a TeleCheck
transaction_
5. TheAgreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7, 31.3, and 3110 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Sen-ices Agreement in Sections 1.1, 13.2, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obligations to
us and our Affiliates are satisfied.
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A.3 under "Additional Fee Information" and Section 1 of the TeleCheck
Services Agreement.
4. If you lease equipment from Processor, it is important that you review
Section 1 in Third Party Agreements. Bank is not a pan), to this Agreement.
THIS IS A NON- CANCELABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information:Wells Fargo Bank N.A.
The Bank's mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746 -4143.
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Print Client's Business Legal Name: City of Columbia Heights
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply w th Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download `Visa Regulations' from Visa's website at:
littmHusa-visa.com/merchan
era tin g, -reg ulations.Isp
g) You may download "MasterCard Regulations" from MasterCard's website at:
httl2:1/wwNk,-niastercard.com/us/merchant/support/rules.hLmI
h) You may download "American Express Merchant Operating Guide' from
American Express' website at: w- wwamerican express.cotn/merchantopguide
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
FDSISOOB1805(ia)] consisting of 52 pages [including this Confirmation Page and the applicable Third Party Agreement(s)], Interchange
Qualification Matrix and American Express Program Pricing (version IQM.MVD.S I S. I or ),and Interchange Schedule.
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Client's Application will be processed.
NO ALTERATIONS OR STRIKE -OUTS TO THE PROGRAM TERMS AND CONDITIONSWILL BE ACCEPTED.
Client's Business Princi al:
Signature (Please sign be/o
X Finance Director 03/06117
Title Date
Joseph Kloiber
Please Print Name of Signer
FDSISOOB1805(ia)
Schedule `A' to Merchant Application and Agreement
Pricing Plan: interchange Pass Through Discount Frequency: Settlement (Monthl
Debit Network Interchange Pass - Through: Yes (add FSC 590)
Pricing Method: Net
Targeted Interchange Qualification: VISA: 23 CPS Retail All Other
MC: 9 Domestic Merit III DISC:10 PSL - Retail
CR
DISCOUNT
Card Type
Discount
Rate
Trans Fee Auth Fee
MasterCard Credit
.08% (800, 801)
(001, 002) .07 (030, 031, 032, 033, 034, 03V)
MasterCard Check Card
.08% (850, 851)
(130, 131)
Visa Credit
-08% (804, 805)
(005, 006) .07 (040.041, o42, o43, 044, 04V)
Visa Check Card
.08% (&54,855)
(134,135)
Discover Credit
.08% (170,171)
(o15, o16) .07 (070, 071, 072, 073, 074, 07V)
Discover Check Card
.08% (964, ass)
(787.788)
PayPal Credit
.08% (ns)
(13A)
American Express OptBlues
.80% (164)
(013.014) .07 ❑ (1 OP-Q &K Platforms ❑ (060.0(31,062,063,054,06V) — Sys 5
PINless
(27P)
(18c) (19E)
Voyager Fleet Card
(844, 845)
(Dow, 00x) .10 (ODC, ODI, ODV, ODO, OD1, OD3)
Wright Express Fleet Card
(Dou) (0130, OB1, OD4, OBV, ODX, ODY, ODZ)
PIN -based Debit
.30 (018)
Electronic Benefits Transfer (EBT)
.30 (029) (19E)
Discover Assessment
.13 (aAc)
MasterCard Assessment Fee41 K IPT /Flat Rate
.13 (242)
Visa Assessment (Credit) IPT /Flat Rate
.13 (27K)
Visa Assessment (Debit) IPT /Flat Rate
.13 (244)
MC Assessment Tran. Amt .,=- $1 K
02 (26c)
MasterCard, Visa & Discover Interchange Fee
0 (550, 560, 529)
PINLess Interchange Fee
0 (50c)
American Express OptBluea Program Pricing
0 (57B)
American Express OptBlueO Network Fee of .15% (286) (American Express OptBlue" has Program Pricing and not Interchange and are subject to change)
The discount rate and trans fee for Check Cards will be billed at the same amounts as Credit Cards unless a different amount is listed.
OTHER SERVICE
FEES
rvi a
Fee
Frew*
Service Fee
Frame *
Account Set -Up
1 (339)
MC NABU Fee •0195
P
(60Mr0141
ACH Reject Fee
20.00
p (401)
MC CNP AVS Fee .0075
P
(1oZ)
Program Cost Fee -AX
P (3AL)
MC Acquirer AVS Billing .005
P
(OFB)
Annual Membership
49.00
A (294)
MC LLS Acct Status Inquiry Service
Batch Settlement
.25
p (227)
Interregional Fee .03
P
(r G)
Chargeback Processing
20.00
P (205, 72Z, 20L)
MC LLS Acct Status Inquiry Service
intraregional Fee .025
P
(11x1)
Cross Border Fee - Nan -USD
.80
P (606)
MC Processing Integrity Fee .055
p
(oaf
Cross Border Fee - US
50
P (s0s)
MC Merchant Annual Location Fee
P
(Y06)
Discover Data Usage Fee
.0195
P (22E)
MC Merchant Monthly Location Fee 1.25
M
(YO7)
Discover Int'I Processing Fee
.50
P (22G)
MC License Per Item Fee
P
(OIC)
Discover Int'l Service Fee
.80
P (22H)
MC License Volume Fee .0076%
P
(818)
PayPal Assessment Fee
.13%
P (451)
MC CVC 2 Fee .0025
P
(11 lo)
Discover Network Auth Fee
P (08c)
MC Digital Enablement Fee
P
(24E)
PayPal Network Auth Fee
.0195
P (ODD)
MC Global Wholesale Travel B213 Fee
P
(2zw)
Global Gateway Waau Gateway Fee
M (455)
MC Secure Code Trans. Fee
P
(03E)
Help Desk Fee
M (388)
Visa APF Fee .0195
P
(04H)
Minimum Monthly Discount
25,00
M (954:2D2,)
Visa Misuse Fee .045
P
(04G)
Monthly Maintenance Fee
M (354)
Internet Service Fee
M
(394)
Monthly Report Fee
M (391)
Internet Setup Fee
1
(301x)
Monthly Service/ Support
0,00
M (3"P)
Zero Limit Fee .10
P
(041)
POS Equipment Billing
M (362)
Acquirer Processing Fee Debit .0155
P
(04J)
Statement
10.00
M (823)
Visa Processing Integrity Fee .10
P
(2m)
Retrieval
20.00
P (262)
Visa Network Fee CP Pass Thru
P
(NFt)
Frequency: 1 = One Time Charge A . Annual Charge M = Monthly Charge P = Per Occurrence Charge
FDSIS01905(a) ScheduleAIPT2002ia)
Schedule `A' to Merchant Application and Agreement (cont'd)
OTHER SERVICE
FEES (cont'd)
Mr,vice
Fee Frew
Service
Fee EnW
Visa Network Fee CNP
Pass Thru P (NF2)
Monthly Access Fee (Datawire- Apriva)
Visa International Service Fee BASE
.50 P (22A)
(P /TID x Qty = Mo. Fee)
20.00 M (6ci)
Visa International Service Fee ENH
P (22z)
WEX Chargeback Fee
P (29H)
Visa International Cash Advance
P (2213)
Regulatory Prod. Fee
5.95 M (350
Visa Zero AMT & AVS Fee
.025 P (1 ox)
TIN /TFN Blank or Invalid Fee
24.95 P
Visa Zero AMT Fee
.025 P (toy)
(181)
Visa Partial Auth Fee
.10 P (12D)
Data File Manager Setup Fee
1 (27A)
Visa New BASE Il System File Fee
P (47N)
Data File Manager Monthly Fee
M (27B)
VI Base it CR Voucher Fee DB /PP
p (470)
Run Now File Over 8 GB -DFM
M (27C)
VI Base Il CR Voucher Fee CR
P (47P)
Statement SpendTrend Fee
M (22r)
Wireless Access Fee
NYCE File Fee
P (180)
(P /TID x Qty = Fee)
P (ass)
NONE
Wireless Monthly Services /Support
20.00 M (472)
Early Termination Fee
1
Apriva Activation Fee
Other: PCI Annual Fee
99.00 (38A )
(P /TID x Qty = Fee)
85.00 P (sot)
Other: PCI Non - Receipt of PCl/Mo
24.95 (601 )
WEX FULL ACQUIRING
FEES
Service
Fee Frew'
Service
Fee F_ggi
WEX Auth Fee
P (OD4)
WEX Chargeback Reversal
P (843)
WEX Sales Discount
P (840)
WEX Chargeback Fee
P (29H)
WEX Refund Discount
P (841)
WEX Retrieval Fee
P (281)
WEX Chargeback Discount
P (842)
PRODUCTFEES
Service
Egg Fri"
Servic a
Fee Frea`
TransArmor Monthly Fee
5.00 M (30t.)
Mobile Payments (Clover Go) Monthly
TransArmor Minimum Monthly Fee
M (959)
Fee (P /MID x Qty = Mo. Fee)
6.00 M (32y)
TransArmor Token & Encryption
P (1211)
Payeezy Auth Fee
P (OFC)
TransArmor Token Only
P (12G)
Payeezy Monthly Fee
M (40A)
TransArmor Token Registration
P (12H)
Payeezy Setup Fee
1 (4013)
TransArmor Solution Monthly Fee
M (3cM)
Payeezy Webstore Solution Fee
TransArmor Essentials Solution
Monthly per Webstore Qty.
Total
Non - Clover Fee
M (yol)
$ x =
M (2D9)
TransArmor Essentials Solution
(For the Payeery Webstore Solution, you will be provided with registration Instructions and will
for Clover Fee
M (yo1)
be asked to electronically agree to terms and condtions.)
TransArmor Solution Bundle w/o
Perka Solutions Fee
M (2D6)
TransArmor Data Protection
M (3CM)
(For the Parka Solution, you will be provided with registration instructions and will be asked to
electronically agree to Perim Ines terms and conditions.)
Clover Services Fee
Access One
M (�st)
Monthly per Station Qty.
Total
$ 39.95 x 1 =
39.95 M (zsn
MC GEP Service Fee
P (897)
Mobile Payments (Clover Go)
Visa GEP Service Fee
P (898)
Set Up Fee
1 (62S)
Insightics Solution (p /MID)
M (490
SQrvice. Fee
AUTH
FEES
Service
Fee
Internet Authorizations .10 (03R, o4R, osi, on) Wireless Auth /Trans Fee 10 (434)
Voice /VRU .75 (035, 036, 037, 045, 046, 047, Connectivity Fee (03Z)
os5, oss, os7, o7s, o7s, oriJ Other
Other:
Voice Auth Issuer Referral 2.50 (03Y, 04Y, 06Y, OM
Electronic AVS .05 (405, 406, 407, 408, 435)
Voice AVS 2.50 (o3s, 048, oes, o7s)
Add'I Comments /Special Instructions:
Merchant DBA Name: Top Valu I
Merchant Signature:
i
FDSIS01905(ia)
Josep
oiner, r finance uirector -2017 3-6
Date:
ScheduleAlPT2002(ia)
MERCHANT PROCESSING APPLICATION AND AGREEMENT
PARTIES AND SERVICES
Merchant #:
Higher Standards
ISO Name:
Agent #: Saies Rep Name. Chris HaU e
1
Loc. of
LOCATION INFORMATION
CORPORATE INFORMATION
Store/DSA Name: Top Valu Liquor If Store #
Client's CorpJLegai Namepity of Columbia Heights
'MCC Description: 5921
(Also for Headquarter's Info. and if different then DBA)
Product/
O Same as DBA Name
Services Sold:
V your business is classed as High Risk and assigned (or is later assigned based upon
CORPORATE•'CONTACT IIMFORMiiT10N
your
business activity) any of the fotbwing Merchant Category Codes (MCC): 59s6,5967, and 78411, then
registration Is required with Visa and/or MasterCard within 30 days from when
❑ Same as Location or,
your account becomes
active. An Annual Registration Fee of S500 may apply for Visa and /or MasterCard (total registration
fees could be $1,000.00). Faflure to register could result in lines in excess of 510,000.00 for
First /Last Name: Joseph Kloiber
violating
Visa and/or MasterCard regulations'.
.
'Registration for MCC 7841 is only required for nonrface -to -race adult content
! Street Address: 590 40th Ave NE
'kfformslion herein, Including applicable MCCs, Is subject to change
---
L0C4TION /CONTACT INFORMATION ..
City: Columbia Heights State: MN tp; 55421
FimVLast Name; Joseph Kloiber
Country: USA
Street Address: 2105 37th Ave NE
Business Phone: {763) 706-3632 Fax #:
City: Columbia Heights state: MN zip; 55421
Mobile #: Pager #:
Country: USA
Organization Type: ❑ Assoclation ❑ Individual /Sole Proprietor
Business Phone. (763) 7063819 Cust. Svc. Phone: (763) 7063819
O Esffite/Trust ❑ International LLC /Corp. (LLP /LLC)
Fax Type: Fax #:
❑ Public Corporation 0 Private Corporation
Mobile #; Pager #•
❑ Government 0 Tax Exempt
E- Mail :ikloiber @columbfaheightsmn.gov
3j Omer: Municipal
SALES INFORMATION State Incorporated: MN
Visa/MasterCard Volume Percent: Swiped 95 % Keyed 5 % Date Business Acquired:
Disoovera- PayPal Volume Percent: Swiped 95 % Keyed 5'/, SS #:
American Express 00811,10 Volume Percent: Swiped 95 % Keyed 5% : # of Employees: 10
Bankcard Sales %: Hand Keyed 5 % Face to Face % POS 95
Mall/Phone % Internet -% Tradeshow q,
Total Cash /Credit: $ 3,100,000 Average
MC /Visa Ticket: $ 30.00 '
Total Annual Average Discover'
MC /Visa Volume: $ 2,000,000 - PayPaf Ticket:
Total Annual Discover1° Average American
- PayPal Volume: S 60,000 Express OptBlue"Ticket: $ 30.00
Total Annual American
Express OptBluee Vol.: $ 60.000 Highest Ticket: $ 750.00
PRIMARY OWNER
First /Middle /Last
Title:
SSN:
Phone #•
Mobile #:
Street Address:
City:
Date of Birth:
RESIDENCE INFORMATION
Fax #:
Pager #:
State:
% Ownership:
First /Middle /Last
Title:
SSN:
Phone #
Mobile #:
Street Address:
Zip: City:
6 i4NKI011143 •INFORMATION
Contact Name: Account Services Rep
Phone #..(012) • 379 -bail
Institution Name: Northeast Bank Account Type: Checking
ABA 9: 091000132 DDA #: 5390174
SECONDARY OWNER
Date of Birth: % Ownership:
RESIDENCE INFORMATION
Fax #:
Pager #:
State: Zip:
FDSIS01905(ia) Page 1 of 3 FOSH12002(a)
TOTAL SALES
Business to Business 5 % Business to Consumer 95 % ❑ Own D Rent
. BANKCARD'SALES Contact Name: _ 1.
Business to Business 5 % Business to Consumer 95% Phone #:
ORDER DELIVERY
0 -7 days 100% g -14 days % 15 -30 days / 3D+ days %
MasterCard/ Visa /Discovers- PayPal/American Express OptBluee Sales deposited:
Date of Order ❑ Date of Delivery ❑ Other
Explanation: Liquor Store
Who fulfills orders: Direct
Description: Liquor Store
Company Nam
Contact Name:
Phone #:
.LANDLORD
Renting Since: Lease expires:
ORDERFULFILLMEN3 VENDOR
City: State: Zip:
ENCLOSURES
D Financial Statements 0 Brochure /Directory D Government Form
D Web Page or ❑ URL (required if Gov't Contract)
Use third party to store, process, transmit Cardholder data? ❑ Yes D No
MODE OF ADVERTISING Name:
❑ Catalog D Phone 0 TV /Radio ❑ Internet ❑ Brochure/Directory Address:
XNewspaper/Magazine ❑ Other: Software Used-
TRADE, REFERENCES
Company Name: Higher Standards Street Address: 10531 165th St W
Phone #, (952) 7364700 City: Lakeville State: MN zip55044
Product/Services: Merchant Services
MAIL CARD STATEMENTS /^DOCUMENTS
Statement Recap Information: (check one) D 01 =Outlet X(02 = Stmt to Bill To /No Recap ❑ 07 = Suppress Stmt (No Stmt) D 08 = Produce Recap, No Stmt
❑ 09 = Bill to Address /Stmt and Recap ❑ 10 = Recap to Bill To /Stmt to Outlet
Statement Type: (check one) D Detail fi Summary Statement Delivery Method: (check one) D E -Mail D Online X Print and Mail
Statement E-Mail Address:
Head Office /Bill To Name: First /Last Contact Name:
Address: City: State: Zip: Phone:
ON YOUR BUSINESS ACCOUNT CHECKING STATEMENT ROLLUP: (check one)
❑ 0= Each Transfer X 11= Debit/Credit Grouped (By Category) ❑ 2 =Net Transfer Amount Only ❑ 3 =Net Transfer EOM Fee Combined
SITE SURVEY., RETURN POLICY
Visit Performed? XYes D No
❑ Exchange Only XRefund Cardholder D None
Zone; Commercial Location:
Equipmem Type
(i.e., TerminaVVAR /Internet)
Location Description: Retail Store
PREVIOUS PROCESSOR
Seasonal Merchant? ❑ Yes X No Start Month: End Month:
For Customer -Owned
Equipment
Track[Version/Sedal #
# Floors in Building: 1 Floor(s) Occupied:
Previous Processor:
Who occupies Other Floor?
Previous Merchant #:
X Fire Safety Act
$
Reason for Leaving:
Advertising Name Displayed: XStore Front D Door D Window
Approximate Sq. Footage: 2000+ # of Registers:
Other:
X Proper License Displayed
S
ENTITLEMENTS
VMC /Visa /Discover Network- PayPal Full Processing (Discover Network systems and rules will process and govern JCB, Diners Club International, and BC Card Transactions_)
• Voyager Fleet` or Existing Voyager Acct #:
Annual Voyager Vol,: $
• MC Fleet ❑ Wright Express or Existing WEX Acct #:
R Re MOTO /1 L S C QSR P
"Tax exempt Voyager Cards accepted: ❑ Yes D No
$
• WEX Full Acquiring Annual WEX Volume $
❑ American Express OptBluee ❑ Amex Pass Through (existing)SE# — —
— — — — — — — — IATA /ARC: - -. „_ ,-- - -- (MCC 4722)
Check one for Pass Through: ❑ Split Dial D EDC
D Debit Pkg: _; EBT SNAP / FNS # (XREF):
0 Non tic. JCB (EDC) Existing SE #:
-- - - - - -- — — — — — — — ---- - - - ---
DESCRIBE EQUIPMENT DETAILS
Network: ❑ (206) CARDnet'a D Nashville D Buypass G Other. SDecifv Security, Code: f 5
Customer -Owned
Lease - Purchase'
(check one)
QTy
IP
Equipmem Type
(i.e., TerminaVVAR /Internet)
Retail • Restaurant - MOTO /Internet
Lodging - Supermarket • Car Rental
Quick Service Restaurant - Pair
Model Code and Name
Clover Unit
Price
w/o Tax
For Customer -Owned
Equipment
Track[Version/Sedal #
X L -P
Microsoft RMS
Re MOTO /I L S C QSR P
$
• L 'P
El
R Re MOTO /I L S C QSR P
S
• L -P
❑
R Re MOTO /1 L S C QSR P
$
`Clover Equipment PUrCha3e Only- This is for information purposes only. Please refer to your equipment purchase agreement with TASQ Technology, Inc. or your equipment lease agreement with First Data
Global Leasing for information and pricing and fees for your equipment or hardware. You are not purchasing or leasing equipment from Processor and you acknowledge and agree that Processor will have no
obligation or liability relating to such purchase or lease of equipment. Your purchase or lease of equipment is subject to separate terms and conditions between you and the equipment seller or lessor.
NOTE: Any Special Instructions must be included on About Merchant's Business Page.
FDSIS01905(ia) Page 2 of 3 FDSH12002(ia)
DESCRIBE EQUIPMENT DETAIL'S (cont'd)
Installation/Training- ❑ MAG /MIG to Train (receive training via phone, dial 1 -8010- 558 -7101 Opt #1, M -F8:00 am - 10 :00 pm EST & Sat 10:00 am - 7:00 pm ES7)
❑ Safes Rep. to Train ❑ No Merchant Training ❑ In- House ❑ PACT (Check Training via phone 1- 800- 366 1054 7:00 am - 6:30 pm C7)
First /Last Contact Name: Contact Phone #: Best Time To Call: ❑ am ❑ pm
imprinter
Purchase: ❑ Yes ❑ No If Yes $ x Qty: _ $ (w /o Tax) Wireless Provider. ❑ GPRS Cingular or ❑ Other:
Check one: ❑ Gateway Solutions ❑ Dial Solutions ❑ Payeezy Gateway ❑ VSAT" ❑ Frame ❑ Other: ❑ IC Verify Serial #
VAR /IMemet/Software: Name: (Nashville Only: Product ID # Vendor ID # )
NOTE: "'Requires separate agreement between VSAT Provider prior to Implementation of this telecommunications protocol.
FD X LEASING
LEASE COMPANY: (04) First Data Global Leasing Annual Tax Handling Fee:
❑ AL, AR, CA, CT, GA, iN, KY, LA, MS, MO, NE, NV, NM, ❑ Ail other
Lease Term: Mos. NC, OK, OR, RI, SC, TN, TX, VT, VA, WA, WV, Wi, WY 30.20 States 10.20
Total Monthly Lease Charge for This Location: $ Total Cost to Lease (without tax): $
(w/o taxes, late fees, or other charges that may apply. See l.easeAgreement for details. This is a NON - CANCELABLE lease for the full term indicated.)
Option to purchase: If you wish to buyout the equipment, please contact 1-877. 257 -2094 to obtain the cost.
` SIGNATURES.
Client certifies that all information set forth in this completed Merchant Processing Application and Agreement (MPA) is true. Client acknowledges having received the copy of the MPA, the
Program Guide (which includes terms and conditions for each of the services, the Your Payments Acceptance Guide, Third Party Agreement(s) and a Confirmation Page (version FDSISO1g05(ia))
and agrees to be bound by all provisions as printed therein as modified from time to time. Client acknowledges and agrees that we, ourAffillates and our third party subcontractors and/or agents
may use automatic telephone dialing systems to contact Client at the telephone number(s) Client has provided in this MPA and /or may leave a detailed voice message in the event that Client is
unable to be reached, even If the number provided is a cellular or wireless number or if Client has previously registered on a Do Not Call list or requested not to be contacted Client for solicitation
purposes. Client hereby consents to receiving commercial electronic mail messages from us or our Affiliates from time to time. Client further agrees that Client will not accept more than 20% of
its card transactions via mail, telephone or Internet order. However, it your MPA is approved based upon contrary information stated in the Sales Information Section above, you are authorized
to accept transactions in accordance with the percentages indicated in that section. This signature page also serves as a signature page to the Third Party Agreement(s) appearing in the Third
Party Section of the Program Guide.
By signing below, each of the undersigned authorizes us, our Affiliates and our third party subcontractors and /oragents to verify the information contained in this MPA and to request and obtain
from any consumer reporting agency and other sources, including bank references, personal and business consumer reports and other information and to disclose such information amongst
each other for any purpose permitted by law. If the MPA is approved, each of the undersigned also authorizes us, our Affiliates and our third party subcontractors and /or agents to obtain
subsequent consumer reports and other Information from other sources, including bank references, in connection with the review, maintenance, updating, renewal or extension of the Agreement
or for any other purpose permitted by law and disclose such information amongst each other,
Each of the undersigned furthermore agrees that all references, including banks and consumer reporting agencies, may release any and all personal and business credit financial Information to
us, our Affiliates and our third party subcontractors and /or agents. Each of the undersigned authorizes us, our Affiliates and our third party subcontractors and /or agents to provide amongst
each otherthe information contained in this Merchant Processing Application and Agreement and any information received subsequent thereto from all references, including banks and consumer
reporting agencies forany purpose permitted by law. it is our policy to obtain certain information in order to verify your identity while processing your account application.
You further acknowledge and agree that you will not use your merchant account and /or the Services for illegal transactions, for example, those prohibited by the Unlawful Intemet Gambling
Enforcement Act, 31 US.C. Section 5361 et seq, as may be amended from time to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq.
and other laws enforced by the Office of Foreign Assets Control (OFAC).
Client certifies, under penalties of perjury, that the federal taxpayer identification number and corresponding filing name provided herein are correct.
Client agrees to all the terms of this Merchant Processing Application and Agreement. This Merchant Processing Application and Agreement shall not take effect
until Client has been approved and th Agree ent as bee accepted by First Data Merchant Services LLC and Bank.
Client's Business Principal /OfFcer
Signature X (Servicers):.For First Data Merchant Services LLC and
Wells Fargo Bank, N.A., (a member of Visa USA, Inc.
Print Name of SWW.��,"Jos.ph4b.r and MasterCard International, Inc.)
Title Finance Director Date 3/6/2017
X Signature
Signature X
Print Name of Signer
Title
Date
Personal Guarantee: In exchange fbrNrst Data Merchant Services LLC and Wells Fargo Bank, N.A., (a member of Visa USA, Inc. and MasterCa;44rf r tional, Inc.), (the Guaranteed Parties)
acceptance of, as applicable, the Agreement the applicable Third Party Agreement(s), the undersigned unconditionally and irevoca uarantees a full payment and performance of
Client's obligations under the foregoing agreement Icab[e, as they now exist or as modified from time to time whether before er termination or xpiration of such agreements and
whether or not the undersigned has received notice of any ante t of such agreements. The undersigned waives notice of de y Client and agrees to indemnify the Guaranteed Parties
for any and all amounts due from Client under the foregoing agreemen . Guaranteed Parties shall not be required to fi oceed against Client to enforce any remedy before proce eding
against the undersigned. This is a continuing personal guaranty and shall not be ed or affected for any reason. ndersigned understands that this is a Personal Guaranty of payment
and not of collection and that the Guaranteed Parties are relying upon this Personal Guara ntering in #o the f oing agreements, as applicable.
Personal Guarantee
Signature
Personal Guarantee
Signature
Print Name: \ Date
Print Name: \ Date
FDSIS01905(ia) Page 3 of 3 FDSH12002(ia)
FDSiSOOt37805(ia) PART 1: CCNFIRMATI!Ob PAGE
PROCESSOR Name: FDS Holdings, Inc.
INFORMATION: Address. 1307 Walt Whitman Road, Melville, NY 11747
URI - Customer Service #: 1- 800 -366 -1641
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and /or Processor or the contents of your
Agreement with TeleCheck.The following information summarizes portions of your Agreement in order to assist you in answering some of the
questions we are most commonly asked.
1. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional Fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the Agreement
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears
for Card Processing or within 30 days of the date of a TeleCheck
transaction.
S. The Agreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7.31.3, and 3110 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security lntejest),
(see TeleCheck Services Agreement in Sections 1. 1, 1.12, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obligations to
us and our Affiliates are satisfied.
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV A3 under "Additional Fee Information" and Section 1 of the TeleCheck
Services Agreement,
9. If you lease equipment from Processor, it is important that you review
Section 1 in Third Party Agreements, Bank. is not a parry to this Agreement.
THIS IS A NON- CANCELABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank lnforrnation:Wells Fargo Bank N.A.
The Bank's mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746 -4143.
Important Member Bank Responsibilities
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent ti isa
and MasterCard rules with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Print Client's Business Legal Name: City of Columbia Heights
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements.
b) Maintain fraud and Chargebacks below Card Organisation thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download 'Visa Regulations" from Visa's website at:
http l /Usa.visa.conV merchants /merchant- support/international-
operatin g- regulations.sg
g) You may download "MasterCard Regulations" from MasterCard's website at:
hLtp://w-,v%&emasterca.rd-coin/us/taerchant/supporL/rules,html
h) You may download "American Express Merchant Operating Guide" from
American Express' website at: www.americanexpress com/merclhantop ,-aide
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
FDSISOO81805(ia)] consisting of 52 pages [including this Confirmation Page and the applicable Third PartyAgreement(s)], Interchange
Qualification Matrix and American Express Program Pricing (version IQM.MVD.S 15. I or ),and Interchange Schedule.
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Client's Application will be processed.
NO ALTERATIONS OR STRIKE -OUTS TO THE PROGRAM TERMS AND CONDITIONSVViLL BE ACCEPTED.
Client's Business Prine' al:
Signature (Please sign b to ):
X Finance Director 03106/17
Idle Date
Joseph K1 of hPr
Please Print Name of Signer
FDSISOOB1805(ia)
Schedule `A' to Merchant Application and Agreement
Pricing Plan: Interchange Pass Through
Discount Frequency: Settlement (Monthly)
Debit Network Interchange Pass - Through: Yes (add FSC 590)
Pricing Method: Net
Targeted Interchange Qualification: VISA: 23 CPS Retail All Other
MC: 9 Domestic Merit III DISC:10 PSL -Retail CR
DISCOUNT
Card Tvoe
Discount Rate
Trans Fee Auth_ Fee
MasterCard Credit
.08% (800, 801)
(001, 002) .07 (030, 031, 032, 033, 034, 03V)
MasterCard Check Card
-08% (850, 851)
(130,131)
Visa Credit
.08% (804, 805)
(006, 006) .07 (o4o. o41, o42, o43. o44, 041n
Visa Check Card
.08% (854, ass)
(134, 135)
Discover Credit
.08% (170, 171)
(015, 016) .07 (070, 071, 072, 073, 074, 07V)
Discover Check Card
.08% (964.965)
(787.788)
PayPal Credit
.08% (175)
(13A)
American Express OptBlue°
.80% (164)
(013.014) .07 ❑ (1 OP -Q &K Platforms ❑ (060.061,062,063,064,06V)
- Sys S
PINIess
(27P)
(18C) (19E)
Voyager Fleet Card
(644, 845)
(OOW, GOX) .10 (DDC, ODI, ODV, ODO, 0D1, OD3)
Wright Express Fleet Card
(D0u) (0130, OB1, OD4, OBV, ODX, ODY, ODZ)
PIN -based Debit
.30 (018)
Electronic Benefits Transfer (EBT)
.30 (029) (18E)
Discover Assessment
.13 (6AC)
MasterCard Assessment Fee41K IPT /Flat Rate
.13 (242)
Visa Assessment (Credit) IPT /Flat Rate
.13 (27K)
Visa Assessment (Debit) IPT /Flat Rate
.13 (244)
MC Assessment Tran. Amt x $1 K
.02 (26c)
MasterCard, Visa & Discover Interchange Fee
0 (550, 660, 529)
PINLess Interchange Fee
0 (50c)
American Express OptBlue Program Pricing
0 (57B)
American Express OptBiue® Network Fee WAS%
(286) (American Express OptBlu&
has Program Pricing and not Interchange and are subject to change)
The discount rate and trans fee for Check Cards will be billed
at the same amounts as Credit Cards unless a different amount is listed.
OTHER SERVICE
FEES
Service Fee Frog`
Service Fee FM -
Account Account Set -Up
1 (339)
MC NABU Fee .0195
P
(60M, 084)
ACH Reject Fee
20.00 P (401)
MC CNP AVS Fee .0075
P
(1 c21
Program Cost Fee - AX
P (3-)
MC Acquirer AVS Billing .005
P
(OFa)
Annual Membership
49.00 A (294)
MC LLS Acct Status Inquiry Service
Batch Settlement
.25 p
Interregional Fee .03
P
(11G)
Chargeback Processing
20.00 P (205,725,20L)
MC LLS Acct Status Inquiry Service
Intraregional Fee
P
Cross Border Fee- Non -USD
.80 P (605)
.025
MC Processing Integrity Fee .055
P
(11H)
(0417)
Cross Border Fee - US
.50 P (6Ds)
MC Merchant Annual Location Fee
P
(YO6)
Discover Data Usage Fee
.0195 P (227
MC Merchant Monthly Location Fee 1.25
M
(Yo7)
Discover Int'l Processing Fee
.50 P (22G)
MC License Per Item Fee
P
(olc)
Discover Int'l Service Fee
.80 P (22H)
MC License Volume Fee .0076%
P
(ais)
PayPal Assessment Fee
.13% P (451)
MC CVC 2 Fee .0025
P
(11t,4)
Discover Network Auth Fee
P (OBC)
MC Digital Enablement Fee
P
(24E)
PayPal Network Auth Fee
.0195 P (ODD)
MC Global Wholesale Travel B2B Fee
P
(env)
Global Gateway Wa2zu Gateway Fee
M (4551
MC Secure Code Trans. Fee
P
(03E)
Help Desk Fee
M (388)
Visa APF Fee 0195
P
(04H)
Minimum Monthly Discount
25.00 M (954,2M)
Visa Misuse Fee .045
P
(04G)
Monthly Maintenance Fee
M (354)
Internet Service Fee
M
(394)
Monthly Report Fee
M (391)
Internet Setup Fee
1
(30R)
Monthly Service / Support
0.00 M (329)
Zero Limit Fee .10
P
(041)
POS Equipment Billing
M (382)
Acquirer Processing Fee Debit .0155
P
(04,t)
Statement
10-00 M (323)
Visa Processing Integrity Fee .10
P
(238)
Retrieval
20.00 P (262)
Visa Network Fee CP Pass ThrU
P
(NF7)
Frequency: 1 = One rime Charge A =Annual Charge M = Monthly Charge P = Per Occurrence Charge
FDSIS01905(ia) ScheduleAlPT2002ia)
Schedule `A' to Merchant Application and Agreement (cont'd)
Service
Fee FrW
Service Fee
-T
TransArmor Monthly Fee
5.00 M (30L)
Mobile Payments (Clover Go) Monthly
Service
Fee
FrW
Senvic e
Fee
F["
Visa Network Fee CNP
Pass Thru
P
(NF2)
Monthly Access Fee (Datawire- Apriva)
M (40A)
TransArmor Token Registration
P (12H)
Visa International Service Fee BASE
.50
P
(22A)
(P /TID x Oty = Me. Fee)
20.00
M
(6oi)
Visa International Service Fee ENH
P
(22Z)
WEX Chargeback Fee
P
(29H)
Visa International Cash Advance
M (209)
P
(2213)
Regulatory Prod. Fee
5.95
M
(350
Visa Zero AMT & AVS Fee
.025
P
(lox)
TIN /TFN Blank or Invalid Fee
24.95
P
(tat)
Visa Zero AMT Fee
.025
P
(tor)
Data File Manager Setup Fee
Clover Services Fee
1
(27A)
Visa Partial Auth Fee
-10
P
(12D)
$____19.95 x 1
_ 39.95 M (2s)
MC GEP Service Fee
Visa New BASE If System File Fee
P
(47N)
Data File Manager Monthly Fee
Mobile Payments (Clover Go)
M
(2713)
VI Base 11 CR Voucher Fee DB /PP
Set Up Fee
P
(470)
Run Now File Over 8 GB -DFM
Service
M
(27C)
VI Base Il CR Voucher Fee CR
Internet Authorizations
P
(47P)
Statement SpendTrend Fee
Voice /VRU
M
(22r
Wireless Access Fee
065, 066, 067, 075, 076, 077)
Other:
NYCE File Fee
Voice Auth Issuer Referral
P
(180)
(P /TID x Oty = Fee)
Electronic AVS
P
(ass)
NONE
2.50 (039, 049, 069, 079)
Add'I Comments /Special Instructions:
Early Termination Fee
Merchant DBA Name: Top Valu II
�
Wireless Monthly ervices /Su
y pport
20.00
M
(472>
Other: PCI Annual Fee
99.00
Apriva Activation Fee
FDSIS01905(ia)
(38A )
(P /TID x Gty = Fee)
85.00
P
(601)
Other: PCI Non - Receipt of PCl/Mo
24.95
(60L )
WEX
FULL
ACQUIRING FEES
Service
Fee
Frea*
Seryl
Fee
Frgq*
WEX Auth Fee
P
(004)
WEX Chargeback Reversal
P
(8413)
WEX Sales Discount
P
(840)
WEX Chargeback Fee
P
WH)
WEX Refund Discount
P
(841)
WEX Retrieval Fee
P
(291)
WEX Chargeback Discount
P
(842)
Service
Fee FrW
Service Fee
.ECG$'`
TransArmor Monthly Fee
5.00 M (30L)
Mobile Payments (Clover Go) Monthly
TransArmor Minimum Monthly Fee
M (13139)
Fee (P /MID x Gty = Mo. Fee) 6.00
M (32r)
TransArmor Token & Encryption
P (12E)
Payeery Auth Fee
P (oF0)
TransArmor Token Only
P (12G)
Payeery Monthly Fee
M (40A)
TransArmor Token Registration
P (12H)
Payeery Setup Fee
1 (4013)
TransArmor Solution Monthly Fee
M (SCM)
Payeery Webstore Solution Fee
Monthly per WebStore Qty. Total
TransArmor Essentials Solution
Non - Clover Fee
M (Yol)
$ x =
M (209)
TransArmor Essentials Solution
TransArmor
(For the Payeery Webstore Solution, you will be provided with registration instructions
and will
for Fee
M (YD7)
be asked to electronically agree to terms and conditions.)
Perks Solutions Fee
M (zoe)
TransArmor Solution Bundle w/o
(For the Perks Solution, you will be provided with registration instructions and will be asked to
TransArmor Data Protection
M (3CM)
electronically agree to Perka Inc.'s terns and conditions.)
Clover Services Fee
Access One
M (Lst)
Monthly per Station Qty
Total
$____19.95 x 1
_ 39.95 M (2s)
MC GEP Service Fee
P (397)
Visa GEP Service Fee
P (898)
Mobile Payments (Clover Go)
Set Up Fee
1 (62s)
Insightics Solution (p /MID)
M (490
Service
Fee
Service Fee
Internet Authorizations
.10 (03R, 04R, 061,070
Wireless Auth /Trans Fee .10
(434)
Voice /VRU
.75 (035, 0361037, 045, 046, 047,
Connectivity Fee
(03z)
065, 066, 067, 075, 076, 077)
Other:
( )
Voice Auth Issuer Referral
2.50 (03Y, 04Y, 06Y, o7Y)
Other:
( >
Electronic AVS
.05 (405, 406, 407.406, ass)
Voice AVS
2.50 (039, 049, 069, 079)
Add'I Comments /Special Instructions:
Merchant DBA Name: Top Valu II
" Joseph
Kloiber, Finance Director
3-6
Merchant Signature:
Date. .
-2017
FDSIS01905(ia)
ScheduleAIPT2002(1a)
MERCHANT PROCESSING APPLICATION AND AGREEMENT
PARTIES AND SERVICES
Merchant #: ISO Name: Higher Standards
Agent #: C Chris Hau e
Sales Rep Name: Loo. 7 of
LOCATION INFORMATION CORPORATE INFORMATION
Store /DBA Name: Heights Liquor Store #: Client's Co JL I Name
rp ega C. i of Columbia Heights
'MCC Description: 5921 (Also for Headquarter's Info, and N different then DBA)
Product/ G Same as DBA Name
Services Sold: CORPORATE CONTACT INFORmAT10N
•H your business is classified as High Rlsk and assigned (or is later assigned traced upon your
business activity) any of the following Merchant Category Codas (MCC): 5966, 5957, and 7841', than Li Same as Location en
registration is required with Visa and/or MasterCard within 30 days from when your account becomes
active. An Annual Registration Fee of WD may apply for Visa and /or MasterCard (total registration
fees could be 51,0(10.00). Failure to register could resuft In fines in excess of sio,e00.00 for violating First /Last Name: Joseph Kloiber
Visa and/or MasterCard regulations=.
'Registration for MCC 7941 Is only required for non - face- to-face adult content Street Address: 590 40th Ave NE
9ntormation herein, including applicable MCCs, Is subject to change
LOCA'fIONICONTACT iNFORMA7ION City: Columbia Heights State: MN rip; r5a421
Frst/Last Name:
Joseph Kloiber Country: USA
Street Address: 5225 University Ave NE Business Phone: (763) 7063632 Fax #.-
City. Columbia Heights State; MN zip; 55421 Mobile #:
Pager #:
Country: USA i Organization Type: ❑ Association O Individual /Sole Proprietor
Business Phone: (763) 706.3819 Gust. Svr- Phone: (763) 706-3819 ❑ Estate /Trust 0 International LLC /Corp. (LLP /LLC)
Fax Type: Fax #: 13 Public Corporation ❑ Private Corporation
Mobile #• Pager #: O Government ❑ Tax Exempt
E.Maj(- jkloiber @columbiaheightsmn.gov X Other: Municipal
SALES INFORNIAT7ON State Incorporated: MN
Visa/MasterCard Volume Percent: Swiped 95 % Keyed 5% Date Business Acquired:
Discover* - PayPal Volume Percent: Swiped 95 % Keyed 5% SS #:
American Express OptBlue* Volume Percent: Swiped 95% Keyed 5 % # of Employees: 10
Bankcard Sales %: Hand Keyed
5% Face to Face % ppS
95 =/,
Mall/Phone
% Internet % Tradeshow
Total Cash /Credit: $ 1,300,000
Average
MC /Visa Ticket: $
30.00 .
Total Annual
Average Discover
MC /Visa Volume: $ 500.000
- PayPal Ticket:
Total Annual Discovel'm
Average American
- PayPal Volume; $ 30.000
Express OptBluee Ticket:
Total Annual American
Express OptBlue* Vol.: $ 30.000
Highest Ticket: S_
750.00
First/Middle-fl-ast Nam
Title:
SSN:
Phone #:
Mobile #:
Street Address:
City:
PRIMARY OWNER
Date of Birth:
RESIDENCE INFORMATION
Fax #:
Pager #: _
State: -
NOTE: Failure to provide accurate information may result in a withholding of
Client funding per iRS regulations
(See Part N, A.4. of your Program Guide for further Information.)
Name (as it appears on your incoraa tax ratom)
City of Columbia Heights
X Federal Tax ID #: (as k appears on your income tax rewm)
41- 6005069
O 1 certify that I am a foreign entity /nonresident alien.
(Ifchacked, please arrach M Form W -E,)
First/Middle /Last Name:
Title:
% Ownership: SSN:
Phone;•
Mobile #:
Street Address:
— Zip: City:
BANKINd INFORMATION
SECONDARY OWNER
Date of Birth:
RESIDENCE INFORMATION
Fax #:
Pager #-
% Ownership,
State. 71p:
Contact Name: Account Services Rep Phone*. (612) 378 -8811
Institution Name: Northeast Bank Account Type. Checking
ABA #: 091000132 DDA #: 5390174
FDSIS019M(1a) Page 1 Df 3 FDSH12002fiia)
TOTAL SALES
I
QTY IP
Equipment Type
(i.e., TerminabVAR /Internet)
LANDLORD
Business to Business 5% Business to Consumer
95 h
❑ Own ❑ Rent
Renting Since: Lease expires:
BANKCARD SALES
x
Contact Name:
Re MOTO /I L S C QSR P
Business to Business ___J.% Business to Consumer
95
Phone #:
C L 'P
ORDER DELIVERY
❑
ORDER FULFILLMENT VENDOR
0 -7 days ___100% B -14 days / 15 -30 days
o 30+ days /6
` Company Name:
C L `P
MasterCard /Visa /Discover- PayPaVAmeiican Express OptBlue* Sales deposited:
Contact Name:
R Re MOTO /l L S C QSR P
(Date of Order Cl Date of Delivery ❑ Other
$
Phone #:
City: State: 21 _
Explanation: Liquor Store ENCLOSURES
Who fulfills orders: Direct ❑ Financial Statements ❑ Brochure /Directory ❑ Government Form
Govt Contract)
Description: Liquor Store ❑Web Page or ❑ URL (required If
Use third party to store, process, transmit Cardholder data? ❑ Yes ❑ No
MORE OF ADVERTISING Name:
❑ Catalog ❑ Phone ❑ TV /Radio ❑ Internet ❑ Brochure /Directory Address:
XNewspaper /Magazine ❑ Other: Software Used:
TRADE REFERENCES
Company Name -Higher Standards Street Address: 10531 165th St. W
Phone #: (952) 736 -1700 City_ Lakeville ate: MN Zipb5044
Product/Services: Merchant Services
MAIL CARD STATEMENTS / DOCIJiII Eky_ 1S
Statement Recap Information: (check one) ❑ 01 = Outlet XI 02 = Stmt to Bill To /No Recap ❑ 07 = Suppress Stmt (No Stmt) ❑ 08 = Produce Recap, No Stmt
09 = Bill to Address /Stmt and Recap ❑ 10 = Recap to Bill To /Stmt to Outlet
Statement Type: (check one) ❑ Detail X Summary Statement Delivery Method: (checkone) ❑ E -Mail ❑ Online X Print and Mail
Statement E -Mail Address:
Head Office /Bill To Name: First /Last Contact Name:
Address: City: State: Zip: Phone:
ON YOUR BUSINESS ACCOUNT CHECKING STATEMENT ROLLUP: (check one)
❑ O = Each Transfer X1 = Debit/Credit Grouped (By Category) ❑ 2 = Net Transfer Amount Only ❑ 3 = Net Transfer EOM Fee Combined
SITE SURVEY RETURN POLICY y
Visit Performed? XYes ❑ No
Commercial ❑Exchange Only Refund Cardholder ❑None
Zone: Location:
Location Description: Retail Store PREVibbS PROCESSOR
Seasonal Merchant? ❑ YesXNo Start Month: End Month:
Previous Processor:
# Floors in Building, 1 Floor(s) Occupied:
Who occupies Other Floor? Previous Merchant #:
Y4 Fire Safety Act
Reason for Leaving:
Advertising Name Displayed: XStore Front ❑ Door 12 Window
Approximate Sq. Footage: 2000+ # of Registers: Other:
X Proper License Displayed
ENTITLEMENTS
AMC /Visa /Discover Network -Pay Pal Full Processing (Discover Network systems and rules will process and govern JCB, Diners Club International, and SC Card Transactions.)
• Voyager Fleet` or Existing Voyager Acct #: Annual Voyager Vol.: §
• MC Fleet ❑ Wright Express or Existing WEX Acct #:
'Tax exempt Voyager Cards accepted: ❑ Yes ❑ No
• WEX Full Acquiring Annual WEX Volume S
• American Express OptBluee ❑ Amex Pass Through (existing) SE # _ _ _ _ _ _ _ _ _ — IATA /ARC: _ _ _ _ _ ! _ _ (MCC 4722)
Check one for Pass Through: ❑ Split Dial ❑ EDC
❑ Debit Pkg:_— _ - - - -- ❑EST SNAP / FNS #(XREF): _______ Non Uc . JOB (EDO) Existing SE# :__________
DESCRIBE EQUIPMENT DETAILS
Network: ❑ (206) CARDnet' ❑ Nashville ❑ Buypass ❑ Other: Soecifv Security Code: ( )
Customer -Owned
Lease . Purchase`
(check one)
I
QTY IP
Equipment Type
(i.e., TerminabVAR /Internet)
I Retail • Restaurant • MOTO /Internet
I Lodging - Supermarket , Car Rental
! Quick service Restaurant • Petr
-
Model Code and Name
Clover Unit
- Price
w/o Tax
For Customer -Owned
Equipment
Track/Wrslon/Serial #
X L •p
x
Microsoft RMS
Re MOTO /I L S C QSR P
§
C L 'P
❑
R Re MOTOR L S C QSR P
S
C L `P
101
R Re MOTO /l L S C QSR P
$
*Clover Equipment Purchase Gnly4 This is for information purposes only. Please refer to your equipment purchase agreement with TASO Technology, Inc. or your equipment lease agreement with Fast Data
Global Leasing for information and pricing and fees for your equipment or hardware. You are not purchasing or teasing equipment from Processor and you acknowledge and agree that Processor will have no
obiigation or fiabi fly relating to such purchase or lease of equipment. Your purchase or lease of equipment is subject to separate terms and conditions between you and the equipment seller or lessor.
NOTE: Any Special Instructions must be included on About Merchant's Business Page.
FDSIS01905(ia) Page 2 of 3 FDSH12002(ia)
DESCRIBE EQUIPMENT DETAILS (coat d)
Installation/Training: ❑ MAG /MIG to Train (receive training via phone, dial 1 -800 -558 -7101 Opt. #1, M -F 8:00 am - 10:00 pm EST & Sat 10:00 am - 7:00 pm ES7)
❑ Sales Rep. to Train ❑ No Merchant Training ❑ In -House ❑ PACT (Check Training via phone 1- 800 - 366 -1054 7:00 am - 6:30 pm CTJ
First /Last Contact Name:
Imprinter
Contact Phone #: Best Time To Call: ❑ am ❑ pm
Purchase: ❑ Yes ❑ No If Yes $ x 0ty: = $ (w /o 'rax) Wireless Provider: :1 GPRS Cingular or ❑ Other.
Cheek one: 0 Gateway Solutions ❑ Dial Solutions ❑ Payeezy Gateway ❑ VSAT"" ❑ Frame ❑ Other: ❑ IC Verify Serial #
VAR /Internet/Software: Name: (Nashville Only: Product ID # Vendor ID #
NOTE: *— Requires separate agreement between VSAT Provider prior to implementation of this telecommunications protocol.
F.DGL LEASINNG. .
LEASE COMPANY: (04) First Data Global Leasing Annual Tax Handling Fee:
❑ AL, AR, CA, CT, GA, IN, KY, IA, MS, MO, NE, NV, NM, ❑ All other
Lease Term: Mos. NC, OK, OR, RI, SO, TN, TX, VT, VA, WA, WV, WI, Wy 30.20 States 10.20
Total Monthly Lease Charge for This Location: $ Total Cost to Lease (without tax): $
(w /o taxes, late fees or other charges that may apply. See Lease Agreement for details. This is a NON-CANCELABLE lease for the full term indicated.)
Option to purchase: If you wish to buyout the equipment, please contact 1- 877 - 257 -2094 to obtain the cost.
SIGNATURES
Client certifies that all information set forth in this completed Merchant Processing Application and Agreement (MPA) is true. Client acknowledges having received the copy of the MPA, the
Program Guide (which Includes terms and conditions for each of the services, the Your Payments Acceptance Guide, Third Party Agreement(s) and a Confirmation Page (version FDSIS01905(ia))
and agrees to be bound by ail provisions as printed therein as modified from time to time. Client acknowledges and agrees that we, our Affiliates and our third party subcontractors and/or agents
may use automatic telephone dialing systems to contact Client at the telephone number(s) Client has provided in this MPA and /or may leave a detailed voice message in the event that Client is
unable to be reached, even if the number provided is a cellular or wireless number or If Client has previously registered on a Do Not Call list or requested not to be contacted Client for solicitation
purposes. Client hereby consents to receiving commercial electronic mail messages from us or our Affiliates from time to time. Client further agrees that Client will not accept more than 20% of
its card transactions via mail, telephone or Internet order. However, if your MPA is approved based upon contrary information stated in the Sales Information Section above, you are authorized
to accept transactions in accordance with the percentages indicated in that section. This signature page also serves as a signature page to the Third Party Agreement(s) appearing in the Third
Party Section of the Program Guide.
By signing below, each of the undersigned authorizes us, our Affiliates and our third party subcontractors and /or agents to verify the information contained in this MPA and to request and obtain
from any consumer reporting agency and other sources, including bank references, personal and business consumer reports and other information and to disclose such information amongst
each other for any purpose permitted by law. If the MPA is approved, each of the undersigned also authorizes us, our Affiliates and our third party subcontractors and /or agents to obtain
subsequent consumer reports and other information from other sources, Including bank references, in connection with the review, maintenance, updating, renewal or extension of the Agreement
or for any other purpose permitted by law and disclose such information amongst each other.
Each of the undersigned furthermore agrees that all references, including banks and consumer reporting agencies, may release any and all personal and business credit financial information to
us, our Affiliates and our third party subcontractors and /or agents. Each of the undersigned authorizes us, our Affiliates and our third party subcontractors and/or agents to provide amongst
each other the information contained in this Merchant Processing Application and Agreement and any information received subsequent thereto from all references, Including banks and consumer
reporting agencies for any purpose permitted by law. It is our policy to obtain certain information in order to verify your identity while processing your account application.
You further acknowledge and agree that you will not use your merchant account and /or the Services for Illegal transactions, for example, those prohibited by the Unlawful Internet Gambling
Enforcement Act, 31 US.C. Section 5361 et seq, as may be amended from time to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq.
and other laws enforced by the Office of Foreign Assets Control (OFAC).
Client certifies, under penalties of perjury, that the federal taxpayer identification number and corresponding filing name provided herein are correct.
Client agrees to all the terms of this Merchant Processing Application and Agreement. This Merchant Processing Application and Agreement shall not take effect
until Client has been approved a d th' A e en s been accepted by First Data Merchant Services LLC and Bank.
Client's Business Principal /Off er
Signature x (Servicers): For First Data Merchant: 'Services: LLC and
Wells Fargo Bank, N.A., (a member of Visa USA, Inc,
Print Name of Signer Joseph Kloiber and MasterCard International, Inc.)
Title Finance Director Date 3/6/2017
Signature is
Print Name of Signer
Title Date
X Signature
Personal Guarantee; In exchangeforMw Data Merchant Services LLC and Wells Fargo Bank, N.A., (a member of Visa USA, Inc, and asterCard International, Inc.), (the Guaranteed Parties)
acceptance of, as applicable, the Agreement, a or the applicable Third Party Agreement(s), the undersigned unconditionally and " guarantees the full payment and performance of
Client's obligations under the foregoing agreements, applicable, as they now exist or as modified from time to time whether ore or after termination or expiration of such agreements and
whether or not the undersigned has received notice of an endment of such agreements. The undersigned waives notice default by Cent and agrees to indemnify the Guaranteed Parties
for any and all amounts due from Client under the foregoing a;—tmg nis. The Guaranteed Parties shall not be required to rst proceed against Client to enforce any remedy before proceeding
against the undersigned. This is a continuing personal guaranty and sha be discharged or affected for any reason. The undersigned understands that this is a Personal Guaranty of payment
and not of collection and that the Guaranteed Parties are relying upon this Pers Guaranty in entering into the fo oing agreements, as applicable.
Personal Guarantee
Signature A Date
Personal Guarantee
Signature
FDSIS01905(ia)
Print Name:
Page 3 of 3
- .r. __. . __ ... _ . -. .1. -
Date
FDSH12002(ia)
s 00: :0 • r
PROCESSOR Name: FDS Holdings, Inc.
INFORMATION: Address: 1307 Watt Whitman Road, Melville, NY 11747
Customer Service#: 1-800-366 -1841
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and(or Processor or the contents of your
Agreement with TeleCheck.The following information summarizes portions of yourAgreement in order to assist you in answering some of the
questions we are most commonly asked.
I. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Sen-ices Agreement.
d. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears
for Card Processing or within 30 days of the date of a TeleCheck
transaction.
5. TheAgreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 283. 31.3, and 33.10 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
b. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Services Agreement in Sections 1. 1, 1.3.2, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obfigatio_1s to
us and our Affiliates are satisfied.
a. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A3 under "Additional Fee Information° and Section 1 of the TeleCheck
Services Agreement.
9. If you lease equipment from Processor, it is important that you review
Section 1 in Third Party Agreements. Bank is not a party to this Agreement.
THIS IS A NON- CANCELABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information:Wells Fargo Bank N.A.
The Bank's mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746 -4143.
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules -with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Print Client's Business Legal Name: City of Columbia Heights
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download "Visa Regulations" from Visa's website at:
htto: / /usa.vi,-a.rom / merchants /merchant- support/international-
operating - regulations_ p
g) You may download "MasterCard Regulations" from MasterCard's website at:
http:// www_ mastercarcl .com/us/merchant/supoort/rules hun
h) You may download "American Express Merchant Operating Guide" from
American Express' website at: www-americanf .Uress.com/merchantopguide
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
FDSISOOB 1805(ia)] consisting of 52 pages [including this Confirmation Page and the applicable Third Party Agreement(s)], Interchange
Qualification Matrix and American Express Program Pricing (version IQM.MVD.S I S.I or ),and Interchange Schedule.
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Client's Application will be processed.
NOALTERATIONS OR STRIKE -OUTS TO THE PROGRAM TERMS AND CONDITIONSWiLL BE ACCEPTED,
Client's Business Princi al,
Signature (Please sign belo
X Finance Director 03106117
Joseph Kloiber Side Date
Please Print Name of Signer
FDSISOOB1805(ia)
Schedule `A' to Merchant Application and Agreement
Pricing Plan: Interchange Pass Through Discount Frequency: Settlement (Monthly)
Debit Network Interchange Pass - Through: Yes (add FSC 590) Pricing Method: Net
Targeted Interchange Qualification: VISA: 23 CPS Retail All Other MC: 9 Domestic Merit 111 DISC: 10 PSL - Retail CR
Card Type
Discount Rate Trans
Fee Auth Fee
MasterCard Credit
.08% (800, 801)
_(001,002)
.07 (030, 031, 032, 033, 034,03V)
MasterCard Check Card
.08% (850, 851)
(i3o, 131)
MC NABU Fee
Visa Credit
.08% (804, 805)
(005, 006)
.07 (040, 041, 042, 043, 044,04V)
Visa Check Card
.08% (854, 855)
(134, 135)
MC CNP AVS Fee
Discover Credit
-08% (170, 171)
(015, 016)
.07 (070, 071, 072, 073, 074,07V)
Discover Check Card
.08% (964, 965)
(787.788)
MC Acquirer AVS Billing
PayPal Credit
.08% (175)
(13A)
Annual Membership
American Express OptBluem
.80% (164)
(Oiu" ".014)
.07 ❑ (10P -Q &K Platforms 0 (060.061,062.063,064,06V) -Sys S
P1NIeSS
(27P)
OSO)
(19E)
Voyager Fleet Card
(844, 845)
(DOW, 00x)
.10 (ODC, ODI, ODV, 000, oD1, OD3)
Wright Express Fleet Card
P
(00u)
(0130, 061, OD4, 013V, ODX, ODY, OOZ)
PIN -based Debit
P
.30 (o18)
MC LLS Acct Status Inquiry Service
Intrrregional Fee
Electronic Benefits Transfer (EBT)
P
.30 (o29)
(18E)
Discover Assessment
P
.13 (6Ac)
MC Processing Integrity Fee
MasterCard Assessment Fee<$1 K IPT /Flat Rate
P
.13 (242)
Cross Border Fee — US
Visa Assessment (Credit) IPT /Flat Rate
P
.13 (27K)
MC Merchant Annual Location Fee
Visa Assessment (Debit) IPT /Flat Rate
P
.13 (244)
Discover Data Usage Fee
MC Assessment Tran. Amt x $1 K
p
.02 (26c)
MC Merchant Monthly Location Fee
MasterCard, Visa & Discover Interchange Fee
M
0 (550, 560, 529)
Discover Intl Processing Fee
PINLess Interchange Fee
P
0 (50c)
MC License Per Item Fee
American Express OptBluea Program Pricing
P
0 (576)
Discover Int'l Service Fee
American Express OptBlue® Network Fee of .15% (286) (American Express OptBlue- has Program Pricing and not Interchange and are subject to change)
The discount rate and trans fee for Check Cards will be billed at the same amounts as Credit Cards unless a different amount is listed.
Service
Fee
Frew*
Service
a F-rea"
Account Set -Up
1
(339)
MC NABU Fee
.0195
P
(60K OB4)
ACH Reject Fee
20.00
P
(4o1)
MC CNP AVS Fee
.0075
P
(1oz)
Program Cost Fee — AX
P
(3AL)
MC Acquirer AVS Billing
.005
P
(OFB)
Annual Membership
49.00
A
(294)
MC LLS Acct Status Inquiry Service
Batch Settlement
,25
p
(227)
Interregional Fee
.03
P
(11G)
Chargeback Processing
20.00
P
(205, 725, 20L)
MC LLS Acct Status Inquiry Service
Intrrregional Fee
.025
P
(1i H)
Cross Border Fee — Non -USD
.80
P
(606)
MC Processing Integrity Fee
.055
P
(04F)
Cross Border Fee — US
.50
P
(605)
MC Merchant Annual Location Fee
P
(YO6)
Discover Data Usage Fee
.0195
p
(22E)
MC Merchant Monthly Location Fee
1.25
M
(YO7)
Discover Intl Processing Fee
-50
P
(22G)
MC License Per Item Fee
P
(01c)
Discover Int'l Service Fee
.80
P
(22H)
MC License Volume Fee
.0076%
P
(818)
PayPal Assessment Fee
.13%
P
(451)
MC CVC 2 Fee
.0025
P
(11m)
Discover Network Auth Fee
P
psc)
MC Digital Enablement Fee
P
(24E)
PayPal Network Auth Fee
.0195
P
(ODD)
MC Global Wholesale Travel B2B Fee
P
(22ND)
Global Gateway Wazzu Gateway Fee
M
(455)
MC Secure Code Trans. Fee
P
(03E)
Help Desk Fee
M
(388)
Visa APF Fee
.0195
P
(04H)
Minimum Monthly Discount
25.00
M
(954, 202)
Visa Misuse Fee
.045
P
(o4G)
Monthly Maintenance Fee
M
(354)
Internet Service Fee
M
(394)
Monthly Report Fee
M
(391)
Internet Setup Fee
1
(30R)
Monthly Service /Support
0.00
M
(329)
Zero Limit Fee
.10
P
(041)
POS Equipment Billing
M
(382)
Acquirer Processing Fee Debit
.0155
P
(oar)
Statement
10.00
M
(323)
Visa Processing Integrity Fee
.10
P
(2m)
Retrieval
20.00
P
(262)
Visa Network Fee CP
Pass Thru
P
(NF1)
Frequency: 1 = One Time Charge A = Annual Charge
M = Monthly
Charge P = Per Occurrence Charge
FDSIS01905(ia)
ScheduleAIPT2002ia)
Schedule `A' to Merchant Application and Agreement (cunt'd)
Service
•
Service
-r
Monthly Fee
5.00 M
(30L)
Service
Fee
Frea*
Service
.l=ee
Frgg*
Visa Network Fee CNP
Pass Thru
P
(NF2)
Monthly Access Fee (Datawire- Apriva)
(12E)
Payeezy Auth Fee
P
Visa International Service Fee BASE
.50
P
(22A)
(P /TID x City = Mo. Fee)
20.00
M
(hod)
Visa International Service Fee ENH
(12H)
P
(22z)
WEX Chargeback Fee
TransArmor Solution Monthly Fee
P
(29H)
Visa International Cash Advance
P
(22B)
Regulatory Prod. Fee
5.95
M
(350
Visa Zero AMT & AVS Fee
.025
P
(lox)
TIN /TFN Blank or Invalid Fee
24.95
P
(isi)
Visa Zero AMT Fee
•025
P
(joy)
(2D9)
TransArmor Essentials Solution
(For the Payeezy Webstore Solution, you will be provided with registration instructions and will
for Clover Fee
M
(Yot)
Data File Manager Setup Fee
i
(27A)
Visa Partial Auth Fee
.10
P
(12D)
(206)
TransArmor Solution Bundle w/o
TransArmor Data Protection
M
(3CM)
Visa New BASE II System File Fee
and will be asked to
P
(47N)
Data File Manager Monthly Fee
electronically agree to Parka Inc.'s terms and conditions.)
M
(2713)
V1 Base 11 CR Voucher Fee DB /PP
P
(470)
Run Now File Over 8 GB -DFM
(>_s1)
M
(27C)
VI Base 11 CR Voucher Fee CR
P
(47P)
Statement SpendTrend Fee
= 39.95 M
M
(271)
Wireless Access Fee
(89
Mobile Payments (Clover Go)
NYCE File Fee
Visa GEP Service Fee
P
(130)
(P /TID x Qty = Fee)
1
P
(399)
M
NONE
Service
Fee
Service
Fee
Early Termination Fee
.10 (03R, 04R, 061, 071)
1
.10
Wireless Monthly Services /Support
20.00
M
(472)
(03Z)
Other: PCI Annual Fee
99.00
t38A )
Apriva Activation Fee
(PMD x Qty = Fee)
85.00
P
(601)
Other: PCI Non - Receipt of PCVMo
24.95
(60L )
WEX
FULL
ACQUIRING
Seryic0
Fee
Fes*
Service
WEX Auth Fee
P
(004)
WEX Chargeback Reversal
P
(643)
WEX Sales Discount
P
(840)
WEX Chargeback Fee
P
(29H)
WEX Refund Discount
P
(841)
WEX Retrieval Fee
P
(291)
WEX Chargeback Discount
P
(842)
Service
Fee Frea*
Service
Fee F—
Monthly Fee
5.00 M
(30L)
Mobile Payments (Clover Go) Monthly
TransArmor Minimum Monthly Fee
M
(959)
Fee (P /MID x Qty = Mo. Fee)
6.00 M
(32Y)
TransArmor Token & Encryption
P
(12E)
Payeezy Auth Fee
P
(0FC)
TransArmor Token Only
P
(12G)
Payeezy Monthly Fee
M
(40A)
TransArmor Token Registration
P
(12H)
Payeezy Setup Fee
1
(40B)
TransArmor Solution Monthly Fee
M
(3cm)
Payeezy Webstore Solution Fee
Monthly per WebStore �tS
Total
TransArmor Essentials Solution
Non- Clover Fee
M
(Yo1)
$ x
M
(2D9)
TransArmor Essentials Solution
(For the Payeezy Webstore Solution, you will be provided with registration instructions and will
for Clover Fee
M
(Yot)
be asked to electronically agree to terms and conditions.)
Perka Solutions Fee
M
(206)
TransArmor Solution Bundle w/o
TransArmor Data Protection
M
(3CM)
(For the Parka Solution, you will be provided with registration instructions
and will be asked to
electronically agree to Parka Inc.'s terms and conditions.)
Clover Services Fee
Access One
M
(>_s1)
Monthly per Station Qty.
Total
S 39.95 x 1
= 39.95 M
(2sr)
C GEP Service Fee
M'
P
(89
Mobile Payments (Clover Go)
Visa GEP Service Fee
P
(898)
Set Up Fee
1
(62S)
Insightics Solution (p /MID)
M
(491)
Service
Fee
Service
Fee
Internet Authorizations
.10 (03R, 04R, 061, 071)
Wireless Auth /Trans Fee
.10
(434)
Voice /VRU
.75 (035, 036, 037, 0.:5, 046, 047,
Connectivity Fee
(03Z)
065, 066, 067, 075, 076, 077)
Voice Ruth Issuer Referral 2.50 (03Y, 04Y, 06Y, 07Y)
Electronic AVS .05 (405, 406, 407, 408, 435)
Voice AVS 2.50 (039, 0492 069, 079)
Add1 Comments /Special Instructions:
Merchant DBA Name:
Merchant Signature: -
FDSIS01905(ia)
Other:
Other:
oseph Kloiber, Finance Director Date: 3-6 -2017
Schedu leAl PT2002(ia)
Higher Standards
Payment Solutions with Integrity.
PERFORMANCE AGREEMENT
Higher Standards is committed to partnering with you and your business to
become more efficient and profitable. As our name suggests we are managing our
business with integrity to a Higher Standard.
This Performance Agreement is our commitment to you:
• There are no Terminations Fees or Contract Term Lengths
o The application you signed is an industry standard one, and as such section 24.2 is "null
and void ", and not applicable to Higher Standards customers.
• Equipment Warranty
o All new equipment maintains a One Year Manufacturers' Warranty.
• PCI Compliance
o We will keep your Sales Executives aware of any PCI Compliance issues for the Terminals
you are currently using. You, as the Merchant, will be responsible for the compliance of
any point of sale, middleware, software or document storage.
Date: 03/01/2017
Merchant: City of Columbia Heights, dba Top Valu
Joseph Kloiber, Finance Director
(Print)
(Signature)
Higher Standards Representative: Chris Hauble 3,-1-1.7
Higher Standards, Inc. is a registered ISO with First Data and is the acquirer
Higher Standards
Payment Solutions with Integrity.
PERFORMANCE AGREEMENT
Higher Standards is committed to partnering with you and your business to
become more efficient and profitable. As our name suggests we are managing our
business with integrity to a Higher Standard.
This Performance Agreement is our commitment to you:
• There are no Terminations Fees or Contract Term Lengths
o The application you signed is an industry standard one, and as such section 24.2 is "null
and void ", and not applicable to Higher Standards customers.
• Equipment Warranty
o All new equipment maintains a One Year Manufacturers' Warranty.
• PCI Compliance
o We will keep your Sales Executives aware of any PCI Compliance issues for the Terminals
you are currently using. You, as the Merchant, will be responsible for the compliance of
any point of sale, middleware, software or document storage.
Date: 03/01/2017
Merchant: City of Columbia Heights, dba Top Valu II
Joseph Kloiber, Finance Director
(Print) (Signature)
Higher Standards Representative: Chris Hauble J "/ - 17
Higher Standards, Inc. is a registered ISO with First Data and is the acquirer
Higher Standards
Payment Solutions with Integrity.
PERFORMANCE AGREEMENT
Higher Standards is committed to partnering with you and your business to
become more efficient and profitable. As our name suggests we are managing our
business with integrity to a Higher Standard.
This Performance Agreement is our commitment to you:
• There are no Terminations Fees or Contract Term Lengths
o The application you signed is an industry standard one, and as such section 24.2 is "null
and void ", and not applicable to Higher Standards customers.
• Equipment Warranty
o All new equipment maintains a One Year Manufacturers' Warranty.
• PCI Compliance
o We will keep your Sales Executives aware of any PCI Compliance issues for the Terminals
you are currently using. You, as the Merchant, will be responsible for the compliance of
any point of sale, middleware, software or document storage.
Date: 03/01/2017
Merchant: City of Columbia Heights, dba Heights Liquor
Joseph Kloiber, Finance Director
(Print) (Signature)
Higher Standards Representative: Chris Hauble �3'j" 7
Higher Standards, Inc. is a registered ISO with First Data and is the acquirer
Merchant
Services
Program
Terms and
Conditions
(Program Guide)
Thank you for selecting us for your payment processing needs. Accepting numerous payment options provides a convenience to your
customers, increases your customers' ability to make purchases at your establishment, and helps speed payment to your account.
Your Merchant Processing Application will indicate the types of payments and Services you have elected to accept. These Program Terms
and Conditions ( "the Program Guide ") presents terms governing the acceptance of Visa,® MasterCard® and Discover' Network Credit
Card and Non -PIN Debit Card payments and American Expresso Card transactions and applicable to Non -Bank Services.
This Program Guide, your Merchant Processing Application and the schedules thereto (collectively, the "Agreement "), including,
without limitation, the Interchange Qualification Matrix and American Express Program Pricing and one of the Interchange
Schedules, as applicable to your pricing method as set forth in the Merchant Processing Application, contains the terms and
conditions under which Processor and/or Bank and/or other third parties, will provide services . We will not accept any
alterations or strike -outs to the Agreement and, if made, any such alterations or strike -outs shall not apply. Please read this
Program Guide completely.
You acknowledge that certain Services referenced in the Agreement may not be available to you.
IMPORTANT INFORMATION ABOUT BANK'S RESPONSIBILITIES:
Discover Network Card Transactions, American Express Card Transactions and other Non -Bank Services are not provided to
you by Bank, but are provided by Processor and/or third parties.
The provisions of this Agreement regarding Discover Network Card Transactions, American Express Card Transactions and
other Non -Bank Services constitute an agreement solely between you and Processor and/or third parties. Bank is not a party
to this Agreement insofar as it relates to Discover Network Card Transactions, American Express Card Transactions and other
Non -Bank Services, and Bank is not responsible, and shall have no liability, to you in any way with respect to Discover
Network Card Transactions, American Express Card Transactions and Non -Bank Services.
OTHER IMPORTANT INFORMATION:
Cards present risks of loss and non- payment that are different than those with other payment systems. In deciding to accept Cards,
you should be aware that you are also accepting these risks.
Visa U.S.A., Inc. ( "Visa ") MasterCard Worldwide ( "MasterCard "), DFS Services LLC ( "Discover Network "), and American Express
Company, Inc. ( "American Express ") are payment card networks that electronically exchange Sales Drafts and Chargebacks for Card
sales and Credits. Sales Drafts are electronically transferred from banks (in the case of MasterCard and Visa transactions) or network
acquirers (in the case of Discover Network transactions) that acquire them from merchants such as yourself through the appropriate
Card Organization, to the Issuers. These Issuers then bill their Cardholders for the transactions. The Card Organizations charge the
Acquirers interchange fees, pricing and/or assessments for submitting transactions into their systems. A substantial portion of the
Discount Rate or Transaction Fees that you pay will go toward these interchange fees, pricing and assessments.
In order to speed up the payment process, the Issuer transfers the funds back through the Card Organization to the Acquirer at
approximately the same time that the Issuer receives the electronic Sales Drafts. Even though the payments under this system are
made simultaneously, all payments made through the Card Organizations are conditional and subject to reversals and adjustments.
Each Card Organization has developed Card Organization Rules that govern their Acquirers and Issuers and the procedures,
responsibilities and allocation of risk for this process. Merchants are also bound by Card Organization Rules and applicable laws and
regulations. The Card Organization Rules and applicable laws and regulations give Cardholders and Issuers certain rights to dispute
transactions, long after payment has been made to the merchant, including Chargeback rights.
We do not decide what transactions are charged back and we do not control the ultimate resolution of the Chargeback. While we can
attempt to reverse a Chargeback to the Issuer, we can only do so if the Issuer agrees to accept it or the Card Organization requires the
Issuer to do so after a formal appeal process. Sometimes, your customer may be able to successfully charge back a Card transaction
even though you have provided your goods or services and are otherwise legally entitled to payment from your customer. While you
may still be able to pursue claims directly against that customer, neither we nor the Issuer will be responsible for such transactions.
You will be responsible for all Chargebacks and adjustments associated with the transactions that you submit for processing.
Please refer to the Glossary for certain capitalized terms used in the Agreement, including this Preface (if not defined above)
Capitalized terms not otherwise defined in the Agreement may be found in the Card Organization Rules.
FDSISOOB1805(ia)
FDSISOOB1805(ia) PART 1: C O'N F I R M AT I O N PAGE
PROCESSOR N
INFORMATION:
Address: 1307 Walt Whitman
FDS Holdinas. Inc.
U RL:
Melville, NY 11747
Customer Service #: 1-800-366 -1841
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and /or Processor or the contents of your
Agreement with TeleCheck.The following information summarizes portions of your Agreement in order to assist you in answering some of the
questions we are most commonly asked.
I. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears
for Card Processing or within 30 days of the date of a TeleCheck
transaction.
S. The Agreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7, 31.3, and 33.10 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Services Agreement in Sections 1.1, 1.3.2, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obligations to
us and our Affiliates are satisfied.
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A3 under "Additional Fee Information" and Section 1 of the TeleCheck
Services Agreement.
9. If you lease equipment from Processor, it is important that you review
Section 1 in Third Party Agreements. Bank is not a party to this Agreement.
THIS IS A NON - CANCELABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information:Wells Fargo Bank N.A.
The Bank's mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746 -4143.
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Print Client's Business Legal Name:
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements.
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download "Visa Regulations" from Visa's website at:
http / /usa visa coin/ merchants / merchant- support/international-
op erating -regu lations.'s�p
g) You may download "MasterCard Regulations" from MasterCard's website at:
httl2://www.mastercard.coin/us/mercliant/supl2ort/rules.html
h) You may download "American Express Merchant Operating Guide" from
American Express' website at: wwwamericanexpress com /merchanLoopguide
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
FDSISOOB I805(ia)] consisting of 52 pages [including this Confirmation Page and the applicable Third Party Agreement(s)], Interchange
Qualification Matrix and American Express Program Pricing (version IQM.MVD.S I S. I or ),and Interchange Schedule.
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Client's Application will be processed.
NO ALTERATIONS OR STRIKE -OUTS TO THE PROGRAM TERMS AND CONDITIONS WILL BE ACCEPTED.
Client's Business Principal:
Signature (Please sign below):
X
Title
Please Print Name of Signer
FDSISOOB1805(ia)
Date
FDSISOOB1805(ia) DUPLICATE CONFIRMATION PAGE
PROCESSOR Name:
INFORMATION:
Address: 1307 Walt Whitman
FDS Holdinas. Inc.
URL:
Melville, NY 11747
Customer Service #: 1-800- 366 -1841
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and/or Processor or the contents of your
Agreement with TeleCheck.The following information summarizes portions of your Agreement in order to assist you in answering some of the
questions we are most commonly asked.
I. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears
for Card Processing or within 30 days of the date of a TeleCheck
transaction.
5. The Agreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7, 31.3, and 33.10 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to eau (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Services Agreement in Sections 1.1. 1.3.2, 1.3.9, 1.6), under
certain circumstances
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and ,guarantors of the Agieement until all your obligations to
us and our Affiliates ate satisfied
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A 3 under "Additional Fee Information" and Section 1 of the TeleCheck
Services Agreement.
9. If you lease equipment from Processor, it is important that you review
Section 1 in Third Party Agreements. Bank is not a party to this Agreement.
THIS IS A NON -CAN( ELABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information:Wells Fargo Bank N.A.
The Bank's mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746 -4143.
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agieement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules with which merchants must comply but this
information may be provided to you by Processor.
d) The Bank is responsible for and must piovide. settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with an, such problems)
Print Client's Business Legal
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements.
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
c) Retain a signed copy of this Disclosure Page.
F) You may download "Visa Regulations" from Visa's website at:
http / /usa visa coin/mei-chantslMerchant-support/international-
ouerating- regulations.isn
g) You may download "MasterCard Regulations" from MasterCard's website at:
http://ww-w.mastercard.com/us/mercliant/supl2ort.'rules.html
h) You may download "American Express Merchant Operating Guide" from
American Express' website at: wwAramericanexpress.com/merchantopZiLide
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
FDSISOOB I805(ia)] consisting of 52 pages [including this Confirmation Page and the applicable Third Party Agreement(s)], Interchange
Qualification Matrix and American Express Program Pricing (version IQM.MVD.S 15. I or ),and Interchange Schedule.
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Client's Application will be processed.
NO ALTERATIONS OR STRIKE -OUTS TO THE PROGRAM TERMS AND CONDITIONS WILL BE ACCEPTED.
Client's Business Principal:
Signature (Please sign below):
X
Title
Please Print Name of Signer
FDSISOOB1805(ia)
Date
PART 1: Confirmation Page
Duplicate Confirmation Page
PART II: Card Services
A. Operating Procedures
20
1. MasterCard,
Visa, Discover Network and American Express
14.5 American Express Transaction Data ............................
Card Acceptance ............... ...............................
7
1.1.
Card Descript ions ......... ...............................
7
1.2.
Effective/Expiration Dates .. ...............................
8
1.3.
Valid Signature ........... ...............................
8
1.4.
Users Other Than Cardholders ..............................
8
1.5.
Special Terms ............ ...............................
8
1.6.
Delayed Delivery or Deposit Balance .........................
8
1.7.
Recurring Transaction and Preauthorized Order Regulations ......
9
1.8.
Certain Rules and Requirements ............................
9
1.9.
Card Acceptance ............ .............................10
22
1.10.
Deposits of Principals ...... ...............................
10
1.11.
Merchants in the Lodging Industry ..........................
10
1.12.
Customer Activated Terminals and Self- Service Terminals ........
10
1.13.
Displays and Advertising ... ...............................
10
1.14.
Cash Payments by and Cash Disbursements to Cardholders.......
11
1.15.
Discover Network Cash Over Transactions ....................
11
1.16.
Telecommunication Transact ions ............................
11
2. Suspect Transactions ............ ...............................
11
3. Completion
of Sales Drafts and Credit Drafts .......................
11
3.1.
Information Required ........ .............................11
3.2.
Mail/TelephoneAnternet (Ecommerce) and Other
Card Not Present Sales ..... ...............................
12
3.3.
Customer Service Telephone Numbers for Cards Other Than
MasterCard, Visa and Discover Network ......................
13
4. Data
Security .................. ...............................
13
4.1.
Payment Card Industry Data Security Standards (PCI DSS) .......
13
4.2.
Data Security Requirements . ...............................
13
4.3.
Compliance Audits ........ ...............................
14
4.4.
Immediate Notice Required . ...............................
14
4.5.
Investigation ............. ...............................
14
4.6.
Required Information for Discover Network Security Breaches.....
14
4.7.
Merchant Providers ....... ...............................
14
4.8.
Noncompliance Fees ...... ...............................
14
4.9.
Costs ..................... .............................14
5. Authorizations .................. .............................14
5.1.
Card Not Present Transactions ..............................
15
5.2.
Authorization via Telephone
(Other Than Terminal/Electronic Device Users) ................
15
5.3.
Authorization via Electronic Devices .........................
15
5.4.
Third Party Authorization System ...........................
15
5.5.
Automated Dispensing Machines ............................
15
5.6.
Pre - Authorization for T &E (Travel & Entertainment) and
Restaurant Merchants ...... ...............................
15
5.7.
Discover Network Procedure for Request for Cancellation
of Authorization ............ .............................16
5.8.
Partial Authorization and Authorization Reversal ...............
16
6. Submission/Deposit
of Sales Drafts and Credit Drafts .................
16
6.1.
Submission of Sales for Merchants Other Than Your Business .....
16
6.2.
Timeliness ................. .............................16
6.3.
Electronic Merchants: Daily Batching Requirements &
Media Submission ......... ...............................
16
7. Settl ement.._ ................... .............................16
8. Refunds/Exchangcs
(Credits) ..... ...............................
16
8.1.
Refunds. ..................................... .........
16
8.2.
Exchanges ................. .............................17
9. Retention
of Records for Retrievals and Chargebacks .................
17
9.1.
Retain Legible Copies ...... ...............................
17
9.2.
Provide Sales and Credit Drafts .............................
17
10. Chargebacks, Retrievals and Other Debits ..........................
17
10.1.
Chargebacks ............... .............................17
10.2.
Summary (Deposit) Adjusunems/Electronic Rejects .............
19
10.3.
Disputing Other Debits and Summary Adjustments .............
19
11. Account Maintenance ............. .............................19
11.1.
Change of Settlement Account Number. . .....................
19
11.2.
Change in Your Legal Name or Structure ......................
19
11.3.
Change in Company DBA Name, Address or
Telephone/Facsimile Number ...............................
19
11.4.
Other Changes in Merchant Profile ..........................
19
11.5.
Charges for Changes to Account Maintenance .................
19
12. Card Organization Monitoring .... ...............................
19
13. Supplies
......................... .............................19
14. Special Provisions
for American Express ..............................
20
14.1 Card Acceptance ...........................................
20
FDSISOOB1805(ia)
14.2 Arbitration Agreement for Claims Involving American Express....... 20
14.3 Treatment of the American Express Brand .......................
20
14.4 Prohibited Uses of the American Express Card ....................
20
14.5 American Express Transaction Data ............................
21
14.6 Treatment of American Express Cardholder Information ............
21
14.7 Disclosure and Use of Data Collected Under Agreement ............
21
14.7.1 Consent for American Express to Contact You by Phone,
24
entail, Text or Facsimile ....... ...............................
21
14.8 Conversion to a Direct Relationship with American Express .........
21
14.9 No Assignment of Payments ... ...............................
21
14.10 Third Party Beneficiary Rights .. ...............................
21
14.11 Your Right to Opt Out of American Express Card Acceptance ........
21
14.12 Collections from American Express Cardholder ...................
21
14.13 Completing a Transaction at the Point of Sale .....................
21
14.14 In Person Charges ........... ...............................
21
14.15 Electronic Charges or Key Entered Charges ......................
21
14.16 Magnetic Stripe Card Charges .. ...............................
21
14.17 American Express Mobile Contactless Charges ....................
22
14.18 American Express Contact Chip Charges ........................
22
14.19 American Express Contactless Chip Charges .....................
22
14.20 American Express Key- Entered Charges .........................
22
14.21 Keyed No Imprint for American Express Charges .................
22
14.22 Merchant Website Information Display Guidelines ................
22
14.23 Aggregated Charges .......... ...............................
22
14.24 American Express Prepaid Card Security Features .................
22
14.25 American Express Processing Prepaid Cards ......................
22
14.26 American Express Policies and Procedures for Specific Industries .....
22
14.27. American Express Excessive Disputes ..........................
24
14.28 American Express Right to Modify or Terminate Agreement .........
24
B. Card General Terms
15. Services ...................... ...............................
24
16. Operating Procedures; Card Organization Rules and Compliance........
24
17. Settlement of Card Transactions ... ...............................
24
18. Exclusivity ..................... .............................24
19. Fees; Adjustments; Collection of Amounts Due ......................
24
20. Chargebacks .................. ...............................
25
21. Representations; Warranties; Covenants; Limitations on Liability;
Exclusion of Consequential Damages .............................
25
22. Confidentiality ................ ...............................
26
23. Assignments .................. ...............................
26
24. Term; Events of Default ......... ...............................
27
25. Reserve Account; Security Interest . ...............................
27
26. Financial and Other Information .. ...............................
28
27. Indemnification ............... ...............................
28
28. Special Provisions Regarding Non -Bank Cards ......................
28
29. Special Provisions for Debit Card .. ...............................
29
30. Special Provisions Regarding EBT Transactions ......................
30
31. Special Provisions Regarding Wireless Services ......................
31
32. Special Provisions Regarding TransArmor Solution ...................
32
33. Special Provisions Regarding Payeezy >r-+ Gateway Services ..............
34
34. Special Provisions Regarding Global ePricing Services ................
36
35. Special Provisions Regarding Insightics Services .....................
37
36. Special Provisions Regarding Clover Services .......................
39
37. Choice of Law; Venue; Waiver of Jury Trial .........................
41
38. Other Terms .................... .............................41
39. Glossary ....................... .............................41
PART III: Third Party Agreements
Equipment Lease Agreement ........... .............................44
TeleCheck Services Agreement ...... ............................... 46
• Terms Applicable Only to TeleCheck ECA Warranty Service .............. 46
• Terms Applicable Only to TeleCheck Paper Warranty Service .............. 47
• General Terms Applicable to All TeleCheck Services ..................... 48
Addenda to TeleCheck Services Agreement
• Mail Order Warranty Service Addendum .............................. 50
• C.O.D. Warranty Service Addendum .. ............................... 51
• Hold Check Warranty Service Addendum ............................. 51
PART IV: Additional Important Information Page For Card Processing
A.1. Electronic Funding Authorization . ............................... 52
A.2. Funding Acknowledgement ....... .............................52
A3. Additional Fees, Fee Related Information and Early Termination ....... 52
A.4. 605OW of the Internal Revenue Code ............................. 52
A.5. Addresses For Notices .......... ............................... 52
This part of the Program Guide (through Section 14) describes the procedures and
methods for submitting Credit Card transactions for payment, obtaining authori-
zations, responding to Chargebacks and Media Retrieval Requests, and other aspects of the
operations of our services.
Processor is a full - service financial transaction processor dedicated, among other processing
services, to facilitating the passage of your Sales Drafts back to the thousands of institutions
who issue the MasterCard," Visa' and Discover' Network Cards carried by your customers,
as well as to the independent Issuers of American Express'. The Operating Procedures
contained in this part seek to provide you with the principles for a sound Card program;
however, you should consult the Card Organization Rules for complete inform -ation and
to ensure full compliance with them. They are designed to help you decrease your
Chargeback liability and train your employees. (In the event we provide authorization,
processing or settlement of transactions involving Cards other than MasterCard, Visa,
Discover Network and American Express, you should also consult those independent
Issuers' proprietary rules and regulations.)
The requirements set forth in these Operating Procedures will apply unless prohibited by
law. You are responsible for following any additional or conflicting requirements imposed
by your state or local jurisdiction.
1.1. Card Descriptions. At the point of sale, the Card must be carefully examined to
determine whether it is a legitimate and valid Card and not visibly altered or mutilated.
The name of the Card (e.g., Visa, MasterCard, Discover Network or American Express)
should appear in bold letters on the Card. For all MasterCard and Visa Cards and for some
Discover Network Cards, the Issuer (e.g., XYZ Bank, etc.) should also appear in bold letters
on the Card. The following is a description of the authorized Visa, MasterCard, Discover
Network and American Express Card designs:
Visa: The Visa Brand Mark must appear in blue and gold on a white background in either
the bottom right, top left, or top right comer. Embossed/Unembossed or Printed Account
Number on valid cards begins with "4." All digits must be even, straight, and the same
size. The Four to Six Digit Bank Identification Number (BIN) must be printed directly
below the account number. This number must snatch exactly with the first four digits of
the account number. The Expiration or "Good Thru" date should appear below the
account number. The Mini -Dove Design Hologram may appear on the back of the card.
The three - dimensional dove hologram should appear to move as you tilt the card. The
Magnetic- Stripe is encoded with the card's identifying information. The Card Verification
Value 2 (CVV2) is a three -digit code that appears either in a white box to the right of the
signature panel, or directly on the signature panel. Portions of the account number may
also be present on the signature panel. CVV2 is used primarily in card - absent
transactions to verify that customer is in possession of a valid Visa card at the time of the
sale. The Signature Panel must appear on the back of the card and contain an ultraviolet
element that repeats the word "Visa's'." It may vary in length. The words "Authorized
Signature" and "Not Valid Unless Signed" must appear above, below, or beside the
signature panel. If someone tried to erase the signature panel; the word `VOID" will be
displayed. Chip cards contain a small embedded microchip that is virtually impossible
to copy or counterfeit. Chip Antenna for contactless cards, the interface can be an
antenna embedded into the back of the card and connected to the chip. A contactless
transaction works at terminals through the radio frequency wave between the card and
the terminal. You are required to familiarize yourself with the new design by consulting
the document entitled "Card Acceptance Guidelines for Visa Merchants and Chargeback
Management Guidelines for Visa Merchants ". You may download the document from
Visa's website at httl2: / /H,,Aryvvisa.coin /merchant or order a hardcopy to be mailed to you
for a nominal charge by telephoning Visa Fulfillment at 800 -VISA -311.
MasterCard: The MasterCard symbol appears on the front or back of the Card. The global
hologram is three dimensional with a repeat "MasterCard" printed in the background. In
addition, the words Classic, Preferred, Gold or Business may appear. When rotated, the
hologram will reflect light and appear to move. MasterCard account numbers are sixteen
(16) digits, and the first digit is always a five (5). The first four digits of the account must
be printed directly below the embossed number. The signature panel is tamper evident with
the word "MasterCard" printed in multiple colors at a 45' angle. For magnetic swiped
transactions, remember to compare the signature on the back of the card with the
cardholders signature on the receipt. The 4 digits printed of the signature panel must match
the last 4 digits of the account number, followed by the 3 digit indent printed CVC2
number. A Chip may be present on the card. The cardholder will be prompted to enter a
unique personal identification number or PIN when the card is inserted into a chip capable
payment terminal. PayPassO+ contactless payment technology may be present on card. A
signature is not required for PayPass® "tapped" transactions below a specified limit. You
are required to familiarize yourself with the new design by consulting a document
"MasterCard Card Identification Features." You may download the document from
MasterCard's website at w- wwmastercard.us/merchants.
Discover Network: The Discover Network includes Discover, Diners Club htternational,
domestic JCB, UnionPay, BCcard, and Dinacard. Valid standard, rectangular plastic Cards
bearing a Discover' Acceptance Mark include the following common characteristics and
distinctive features:
FDSIS00B1805(ia) 7
• The Discover Acceptance Mark may appear on the lower right corner of the front, back,
or both sides of the Card.
• Cards display either a three - dimensional hologram on the front or back of the Card OR
a three - dimensional holographic magnetic stripe on the back of the Card. Valid Cards do
not display holograms on both front and back.
• Card Numbers may be embossed or unembossed and will appear on either the front or
back of a Card. Card Numbers begin with the number "6" and are composed of 16 digits
that should be clear and uniform in size and spacing.
• The Cardholder name, and if applicable, business name, may be embossed or unembossed
and will appear on either the front or back of the Card.
• The "Valid Thru" date may be embossed or unembossed and will appear on either the
front or back of a Card in mm/yy format that indicates the last month in which the Card
is valid.
• The words "DISCOVER" or "DISCOVER NETWORK" appears on the front of the Card
under an ultraviolet light.
• The signature panel displays the words "DISCOVER" or "DISCOVER NETWORK" and
may vary in size. Cards may contain a panel that includes an ultraviolet image of the
word "DISCOVER." An underprint of "void" on the signature panel becomes visible if
erasure of the signature is attempted.
• The last four digits of the Card Number may be displayed on the back of the Card and
are commonly printed in reverse indent printing on the signature panel.
• On embossed Cards, a security character, displayed as an embossed stylized "D" may
appear on the front of the Card.
• The 3 -digit CID is printed on the back of the Card in a separate box to the right of the
signature panel.
NOTE: Valid Cards may not always be rectangular in shape (e.g., Discover 2GO Cards).
Certain valid unembossed Cards or Contactless Payment Devices approved by us for use in
accessing Card Accounts (e.g., contactless stickers, key fobs, and Mobile Commerce
Devices) and to conduct Contactless Card Transactions may not display the same features
described above. Card expiration date and other features listed above are not displayed on
such Contactless Payment Devices.
NOTE: For unembossed Cards used to conduct a Card Present Card Sales, Merchants
must obtain an Authorization Response electronically using a POS Device. A Card Sale
involving an unembossed Card may be subject to Dispute if the Merchant "key enters" Card
information into a POS Device and does not use the electronic Authorization procedures.
The features indicated below are found on valid Contactless Chip Payment Devices
approved for use in accessing Card Accounts and to conduct Contactless Card Transactions:
• Standard, plastic rectangular Cards that are also Contactless Chip Payment Devices bear
the security features described above.
• Contactless Chip Payment Devices other than Mobile Payment Devices bear the
Contactless Indicator.
• Contactless Magnetic Stripe Payment Devices bear the Discover Zip Indicator
• Other Acceptance Mark as described below for Diners Club International, JCB, and
UnionPay.
Diners Club International:
• A Diners Club International Acceptance Mark in upper left corner.
• Two- character alphanumeric code printed in the lower right corner
• Embossed 14 — digit Account Number (begins with 36)
• Embossed 16 — digit Account Number (begins with 30)
• Embossed digits on the card must be clear and uniform in size and spacing within
groupings.
• Embossed expiration data appears in mm/vy format and indicates the last month in which
the Card is valid.
NOTE: Some valid Cards bearing a Diners Club International Acceptance Mark display a
printed, unembossed Card number. If a Card sale involving a Diners Club International
Card with an unembossed Card number cannot be completed by swiping the card through
the POS Device, the card should not be accepted. If submitted, such card sale may be subject
to Dispute.
UnionPav:
• A 16 — digit Card number starting with "622," "624," "625," " 626," o "628" is embossed
on the front of the Card.
• Embossed digits on the Card should be clear and uniforms in size and spacing.
• The embossed expiration date appears in mtm/y y format and indicates the last month in
which the Card is valid.
• The Card contains a magnetic stripe.
• A three - dimensional hologram image of Heaven Temple in the foreground with Chinese
characters in the background appears on the front of all such Cards. The hologram reflects
light as it is rotated.
• "Valid Thru" and the Cardholder name (which may not be in English) are embossed on
the front of the Card.
• The CID appears on the upper right corner of the signature panel.
NOTE: Text on Cards bearing a UnionPay Acceptance Mark may not be printed in English.
.L:
• Card Numbers are made up of 16 digits, starting with "35" embossed or printed on the
front of the Card.
• Embossed digits on the Card should be clear and uniform in size and spacing within
groupings.
• The Cardholder name and, if applicable, business name embossed on the front of the
Card.
• A JCB Acceptance Mark appears on the front of the Card.
• A three - dimensional hologram image of rising sun, rainbow, and "JCB" in micro lettering
appears on either the front or the back of the Card. The hologram reflects light as it is
rotated.
• The embossed expiration date appears in mm/yy or min/dd/yy format on the front of the
Card and indicates the last month in which the Card is valid.
• The Card contains a magnetic stripe on the back of the Card.
• The name "JCB" appears in ultraviolet ink on the left bottom of the front of the Card
when held under an ultraviolet light.
• The first four digits of the Card number match the 4 -digit number pre - printed just below
the embossed Card number of the front of the Card.
• The first four digits of the Card number displayed on the signature panel on the back of the
Card match the last four digits of the Card number that appears on the front of the Card.
• The last four digits of the Card number on the back of the Card followed by the 3 -digit CID.
• An overprint on the signature panel reads `JCB" in two colors, blue and green.
• Some Cards have an embedded integrated circuit chip on the front of the Card.
• The words "Good Thru," "Valid Dates," "Valid Thru," or "Expiration Date" must be
printed near the expiration date. The corresponding words in the language of the country
where the JCB Card is issued may also be printed. The words " Month/year" or the
corresponding words in the language of the country where the JCB Card is issued may be
printed above or below the expiration date.
NOTE: Some valid Cards bearing the JCB Acceptance Mark will have a printed,
unembossed Card number on the Card. If a Card sale involving a valid, JCB Card with an
unembossed Card number cannot be completed by swiping the Card through the POS
Device, the Card should not be accepted. If you accept a Card that displays a printed, rather
than embossed, Card number, you are required to obtain a Card imprint, the Card sale may
be subject to dispute.
American Express:
• All American Express Card Numbers start with "37' or "34." The Card number appears
embossed on the front of the Card. Embossing must be clear, and uniform in sizing and
spacing. Some Cards also have the Card Number printed on the back of the Card in the
signature panel. These numbers, plus the last four digits printed on the Sales Draft, must
match.
• Pre - printed Card Identification (CID) Numbers must always appear above the Card
Number on either the right or left edge of the Card.
• Only the person whose name appears on an American Express Card is entitled to use it.
Cards are not transferable.
• Some Cards contain a holographic image on the front or back of the plastic to determine
authenticity. Not all American Express Cards have a holographic image.
• Some Cards have a chip on which data is stored and used to conduct a charge.
The signature on the back of the Card must match the Cardholder's signature on the Credit
Draft, and must be the same name that appears on the front of the Card. The signature
panel must not be taped over, mutilated, erased or painted over. Some Cards also have a
three -digit Card Security Code (CSC) number printed on the signature panel.
1.2. Effective /Expiration Dates. At the point of sale, the Card should be carefully exam-
ined for the effective (valid from) (if present) and expiration (valid thru) dates which are located
on the face of the Card. The sale date must fall on or between these dates. When an
expiration date is expressed in a month/year format, MasterCard transactions are valid
through and including the last day of the month and year. When the valid date is expressed
in a month/year format, MasterCard transactions that occur before the first day of the month
and year are invalid. Do not accept a Card prior to the effective date or after the expiration
date. If the Card has expired, you cannot accept it for a Card sale unless you have verified
through your Authorization Center that the Card is in good standing, otherwise, you are
subject to a Chargeback and could be debited for the transaction.
When a MasterCard PayPass enabled keyfob or mobile phone is presented for payment,
verifying a valid expiration date is not required.
1.3. Valid Signature. Check the back of the Card. Make sure that the signature panel
has not been disfigured or tampered with in any fashion (an altered signature panel may
appear discolored, glued or painted, or show erasure marks on the surface). The signature
on the back of the Card must compare favorably with the signature on the Sales Draft.
However, comparing the signature on the Card with the signature on the transaction receipt
is not applicable when an alternate Card form (MasterCard PayPass keyfob or mobile
phone) is presented. The Sales Draft must be signed by the Card presenter in the presence
of your authorized representative (unless a Card Not Present Sale) and in the same format
as the signature panel on the Card; e.g., Harry E. Jones should not be signed H.E. Jones. The
signature panels of Visa, MasterCard and Discover Network Cards have a 3 -digit number
(CVV2/CVC2/CID) printed on the panel known as the Card Validation Code.
Visa, MasterCard. Discover Network and American Express: If the signature panel on the
Card is blank, in addition to requesting an Authorization, you must do all the following:
FDSISOOB1805(ia)
• Review positive identification bearing the Cardholder's signature (such as a passport or
driver's license that has not expired) to validate the Cardholder's identity
• Indicate the positive identification, including any serial number and expiration date, on
the Credit Draft or Sales Draft; provided that you must effect PAN Truncation, and must
not include the expiration date on the copy of the Sales Draft or Credit Draft that you
provide to the Cardholder, or as required by applicable law, the Sales Draft or Credit Draft
you retain.
• Require the Cardholder to sign the signature panel of the Card prior to completing the
Transaction.
• When a MasterCard PayPass enabled keyfob or mobile phone is presented for payment,
validating the customer's signature is not required.
1.4. Users Other Than Cardholders. A Cardholder may not authorize another
individual to use his/her Card for purchases. Be sure the signature on the Card matches
with the one on the Sales Draft. Furthermore, any Card having two signatures on the back
panel is invalid and any sale made with this Card can result in a Chargeback. For Cards
bearing a photograph of the Cardholder, ensure that the Cardholder appears to be the
person depicted in the picture which appears on the Card. If you have any questions, call
the Voice Authorization Center and request to speak to a Code 10 operator.
I.S. SpeeialTerms. If you limit refunds or exchanges or impose other specific conditions
for Card sales, you must provide proper disclosure to the Cardholder at the time of
transaction in accordance with applicable law If applicable, the words "No Exchange, No
Refund," etc. must be clearly printed (in 1/4" letters) on the Sales Draft near or above the
Cardholder's signature. The Cardholder's copy of the Sales Draft, as well as your copy, must
clearly display this information near or above the Cardholder's signature. Applicable
disclosures may vary by transaction type.
During a liquidation and/or closure of any of your outlets, locations and/or businesses, you
must post signs clearly visible to customers stating that "All Sales Are Final," and stamp the
Sales Draft with a notice that "All Sales Are Final."
Generally, do not give cash, check or in -store Credit refunds for Card sales. Visa allows for
the following exclusions: A cash refund to the Cardholder for a Visa Easy Payment Service
Transaction, a cash refund, Credit, or other appropriate form of Credit to the recipient of a
gift purchased as a Mail/Phone Order transaction, or a cash refund or in -store Credit for a
Visa prepaid card transaction if the Cardholder states that the Visa prepaid card has been
discarded.
NOTE: A disclosure does not eliminate your liability for a Chargeback. Consumer
protection laws and Card Organization Rules frequently allow the Cardholder to dispute
these items notwithstanding such disclosures.
1.6. Delayed Delivery or Deposit Balance, In a delayed delivery transaction where a
Cardholder makes a deposit toward the full amount of the sale, you should execute two
separate Sales Drafts (each completed fully as described in Section 3.1), the first for a
deposit and the second for payment of the balance upon delivery of the merchandise or the
performance of the services.
Visa: You must obtain an authorization for each Sales Draft on each transaction date. You
must assign the separate authorization numbers to each Sales Draft, respectively. You must
note on such Sales Drafts the words "delayed delivery," "deposit" or "balance," as
appropriate, and the authorization dates and approval codes.
MasterCard: For MasterCard transactions, you must obtain an Authorization for each Sales
Draft on each Transaction date. You must note on both Sales Drafts the words "delayed
delivery" "deposit" or "balance," as appropriate, and the authorization date and approval code.
Discover Network: For Discover Network transactions, you must label one Sales Draft
"deposit" and the other "balance," as appropriate.
You shall submit Authorization requests you receive and ay. ait receipt of the Authorization
Response prior to completing the Card sale. A positive Authorization Response will remain
valid for thirty (30) calendar days from the date of the Authorization response for Card
sales in the car rental industry, airline and passenger railway industries, the lodging industry
and other travel MCCs including passenger transport and all International Card sales.
A positive Authorization response will remain valid for ten (10) calendar days from the
date of the Authorization response for Card sales in all other industries and MCCs.
In addition, you must complete Address Verification at the time of the "balance" author-
ization, and you must obtain proof of delivery upon delivery of the services /merchandise
purchased. You may not submit sales data relating to the "balance" to us for processing
until the merchandise /service purchased has been completely delivered.
American Express: For American Express Card transactions. you must clearly disclose your
intent and obtain written consent from the Cardholder to perform a delayed delivery
transaction before you request an Authorization. You must obtain a separate Authorization
Approval for each delayed delivery transaction on their respective Charge dates and clearly
indicate on each record that the Charge is either for the deposit or for the balance of the
transaction. You must submit the delayed delivery transaction record for the balance of the
purchase only after the items have been shipped, provided or services rendered. For
deposits, submission must be on the date the Cardholder agreed to pay for the deposit for
the purchase. For balances, submission must be on the date the items are shipped, provided
or services rendered. You must submit and Authorize each delayed delivery transaction
under the same Merchant Account Number and treat deposits on the Card no differently
than you treat deposits on all other payment products.
Advance Payment Charges for American Express Transactions.
An advance payment Charge is a Charge for which full payment is made in advance of you
providing the goods and /or rending services to the Cardholder and such Charges carry
higher risk. American Express may withhold settlement for part or all of such Charges until
it is determined that the risk has diminished.
You trust follow the procedures below if you offer Cardholders the option or require them
to make advance payment Charges for the following types of goods and/or services:
• Custom - orders (e.g., orders for goods to be manufactured to a customer's specifications)
• Entertainment / ticketing (e.g., sporting events, concerts, season tickets).
• Tuition, room and board, and other mandatory fees (e.g., library fees) of higher
educational institutions.
• Airline tickets, vehicle rentals, rail tickets, cruise line tickets, lodging, travel - related
services (e.g., tours, guided expeditions).
For an advance payment Charge, you must:
State your full cancellation and refund policies, clearly disclose your intent and obtain
written consent from the Cardholder to bill the Card for an advance payment Charge before
you request an Authorization. The Cardholder's consent must include his or her agreement
to all the terms of the sale (including price and any cancellation and refund policies), and
a detailed description and the expected delivery date of the goods and/or services to be
provided (including, if applicable, expected arrival and departure dates).
• Complete a Sales Draft. If the advance payment Charge is a Card Not Present Charge,
you must also: ensure that the Sales Draft contains the words "Advance Payment;" and
within twenty -four (24) hours of the Charge being incurred, provide the Cardholder
written confirmation (e.g., email or facsimile) of the advance payment Charge, the
amount, the confirmation number (if applicable), a detailed description and expected
delivery date of the goods and/or services to be provided (including expected arrival and
departure dates, if applicable) and details of your cancellation/ refund policy.
If you cannot deliver goods and/or services (e.g., because custom- ordered merchandise
cannot be fulfilled), and if alternate arrangements cannot be made, you must immediately
issue a Credit for the full amount of the advance payment Charge which cannot be fulfilled.
In addition to other Chargeback rights, a Chargeback may be exercised for any disputed
advance payment Charge or portion thereof if the dispute cannot be resolved in your favor
based upon unambiguous terms contained in the terms of sale to which you obtained the
Cardholder's written consent.
1.7. Recurring Transaction and Preauthorized Order Regulations. If you process
recurring transactions and charge a Cardholder's account periodically for recurring goods
or services (e.g., monthly insurance premiums, yearly subscriptions, annual membership
fees, etc.), the Cardholder shall complete and deliver to you a Cardholder approval for such
goods or services to be charged to his account. The approval must at least specify the Card-
holder's name, address, account number and expiration date, the transaction amounts, the
timing or frequency of recurring Charges and the duration of time for which the Card-
holder's permission is granted. For Discover Network transactions, the approval must also
include the total amount of recurring Charges to be billed to the Cardholder's account,
including taxes and tips and your Merchant Account Number.
If the recurring transaction is renewed, the Cardholder must complete and deliver to you
a subsequent written request for the continuation of such goods or services to be charged
to the Cardholder's account. You may not complete a recurring transaction after receiving
a cancellation notice from the Cardholder or Issuer or after a request for authorization has
been denied.
If we or you have terminated this Agreement, you may not submit authorization requests
or sales data for recurring transactions that are due after the termination date of this
Agreement, and you must inform Cardholders for which you have submitted the recurring
transactions that you no longer accept the Card.
You must obtain an Authorization for each transaction and write "Recurring Transaction"
(or, "P.O." for MasterCard transactions/ "Signature on File" for American Express trans-
actions) on the Sales Draft in lieu of the Cardholder's signature. A positive authorization
response for one recurring transaction Card Sale is not a guarantee that any future recurring
transaction authorization request will be approved or paid.
For all Discover recurring transactions, you should submit the 3 -digit CID with the first
authorization request, but not subsequent authorization requests. Discover Network Card
Organization Rules specifically require that you follow this CID procedure for Discover
Network recurring transactions.
Also, for Discover Network recurring transactions, the Sales Draft must include a general
description of the transaction, your merchant name and a toll -free customer service number
that the Cardholder may call to obtain customer assistance from you or to cancel the written
approval for the recurring transaction.
For American Express recurring transactions, you should periodically verify with
Cardholders that their information (e.g., Card Number, expiration date, billing address) is
still accurate. This will improve the likelihood of obtaining an approval to an Authorization
request.
The method to secure consent for recurring Charges must contain a disclosure that you
may receive updated Card account information from the Issuer. You must retain evidence
of consent to receive updated Card account information from the issuer for twenty -four
(24) months from the date you submit the last recurring billing Charge. If you offer
Cardholders the option to make recurring billing Charges, you must:
• Ensure that your process for cancellation of recurring billing is simple and expeditious;
• Clearly and conspicuously disclose all material terms of the option, including, if
applicable, the fact that recurring billing will continue until the option is cancelled by the
Cardholder;
• Offer their American Express customers the option to receive written notification for the
recurring transaction(s) at least (10) ten days prior to submitting, or any time the Charge
FDSIS00B1805(ia) 9
amount exceeds a maximum amount that has been set by the Cardholder;
• Within twenty -four (24) hours of incurring the first recurring billing Charge, provide the
Cardholder written confirmation (e.g., email or facsimile) of such Charge, including all
material terms of the option and details of your cancellation/refund policy; and
• Where the material terms of the option change after submission of the first recurring
billing Charge, promptly notify the Cardholder in writing of such change and obtain the
Cardholder's express written consent to the new terms prior to submitting another
recurring billing Charge.
The cancellation of an American Express Card constitutes immediate cancellation of that
Cardholder's consent for recurring Charges. American Express will not have any liability
from such cancellation. If an American Express Card is cancelled or a Cardholder withdraws
consent to recurring Charges, you are responsible for arranging another form of payment
with the Cardholder.
All recurring transactions or preauthorized orders may not include partial payments for
goods or services purchased in a single transaction.
You may not impose a finance charge in connection with a Recurring Transaction or
Preauthorized Order.
If you process recurring payment transactions, the Recurring Payment Indicator must be
included in each authorization request, and as applicable, each Batch submission entry.
Penalties can be assessed by the Card Organizations for failure to use the Recurring Payment
Indicator.
1.8. Certain Rules and Requirements. The following rules are requirements strictly
enforced by Visa, MasterCard and Discover Network:
• Your minimum Credit Card acceptance amount cannot exceed $10.00. Such minimum
amount must be established to all Credit Cards regardless of Card issuer or Card brands.
Unless you are a federal government entity or institution of higher learning, you may not
establish a maximum amount as a condition for accepting a Card, except that for Discover
transactions, you may limit the maximum amount a Discover Network Cardholder may
spend if, and only if, you have not received a positive authorization response from the
Issuer. Setting a minimum transaction amount limit for Debit Cards (Pin Debit or Non -
PIN Debit) is prohibited.
• You cannot impose a surcharge or fee for accepting a Debit Card.
• You cannot establish any special conditions for accepting a Card.
• You cannot require the Cardholder to supply any personal information (e.g., home or
business phone number; home or business address including zip code; or driver's license
number) unless instructed by the Authorization Center. The exception to this is for mail/
telephone /Internet order or delivery- required transactions, or as otherwise permitted by
applicable law. Any information that is supplied by the Cardholder must not be in plain
view when mailed.
• Any tax required to be collected must be included in the total transaction amount and not
collected in cash.
• You cannot submit any transaction representing the refinance or transfer of an existing
Cardholder obligation deemed uncollectible.
• You cannot accept a Visa Consumer Credit Card or Commercial Visa Product, issued by
a U.S. Issuer, to collect or refinance an existing debt.
NOTE: Visa Consumer debit and Visa Business debit Card products including prepaid card
type can be accepted to collect or refinance an existing debt.
• You cannot submit a transaction or sale that has been previously charged back.
• You must create a Sales Draft or Credit Draft for each Card transaction and deliver at least
one copy of the Sales Draft or Credit Draft to the Cardholder.
•
You cannot submit a transaction or sale to cover a dishonored check.
• If you accept Card checks, your Card check acceptance policy must treat the acceptance
of checks from all payment card brands that you accept equally (e.g., if you accept
MasterCard, Visa and Discover Network, your check acceptance policy must treat checks
for all three payment card brands equally). You should handle these Card checks like any
other personal check drawn upon a bank in the United States.
• Failure to comply with any of the Card Organization Rules may result in fines or penalties.
U.S. Merchants may engage in any of the following:
• You may direct customers to a particular brand or type of general purpose card or a
particular form of payment. U.S. merchants may also encourage customers who initially
present a Visa Card to use a payment card with a different network brand, a different type
of payment card or a different form of payment.
• You may provide a discount/incentive for a consumer to pay with cash, check, Credit
Card, Debit Card, etc., however, you must clearly and conspicuously disclose the discount
to consumers. Also, you must offer the discount to all consumers and you cannot
discriminate based upon Card brand or Card Issuer. However, you may choose not to
accept either U.S. issued Debit Cards or U.S. issued Credit Cards under the terms
described in Section 1.9.
• You may offer a discount or rebate, including an immediate discount or rebate at the point
of sale;
• You may offer a free or discounted product, service or enhanced service
• You may offer an incentive, encouragement, or benefit;
• You may express a preference for the use of a particular brand or type of general purpose
card or a particular form of payment;
• You may communicate to a customer the reasonably estimated or actual costs incurred by
the merchant when a customer uses a particular brand or type of general purpose card or
a particular form of payment or the relative costs of using different brands or types of
general purpose cards or different forms of payment.
NOTE: Visa Consumer Debit and Visa Business Debit Card products including prepaid
Card type can be accepted to collect or refinance an existing debt; or
You may engage in any other practices substantially equivalent to the above.
• You will inform the Cardholder that you are responsible for the Card transaction including
your goods and services and for related customer service, dispute resolution and
performance of the terms and conditions of the transaction.
1.9. Card Acceptance. If you have indicated either in the Merchant Processing Appl-
ication or by registering with us at least thirty (30) days in advance that, as between Non -
PIN Debit Card transactions and Credit Card transactions, you will limit your acceptance
to either (i) only accept Non -PIN Debit transactions; or (ii) only accept Credit Card
transactions, then the following terms in this Section 1.9 will apply:
1.9.1. You will be authorized to refuse to accept for payment either Non -PIN Debit Cards
or Credit Cards that are issued within the United States. You will, however, continue to be
obligated to accept all foreign issued Credit Card or Debit Cards issued by MasterCard,
Visa or Discover Network so long as you accept any type of MasterCard, Visa or Discover
Network branded Card.
1.9.2. While many Debit Cards include markings indicating debit (such as "Visa
Checkcard, Visa Buxx, Gift Card, DEBIT, or Mastermoney), many Debit Cards may not
include any such markings. It will be your responsibility to determine at the point of sale
whether a Card is of a type that you have indicated that you will accept. You agree to
institute appropriate systems and controls to limit your acceptance to the Card types
indicated. You may purchase a table of ranges of numbers currently associated with Debit
Card transactions upon execution of confidentiality /non - disclosure agreements required
by the Card Organizations. You will be responsible for updating your systems to utilize
such tables and to obtain updated tables. You must safeguard BIN information provided by
us. If you share our provided BIN information with a third party to use on your behalf, you
mast require they safeguard it also and use it only for card type identification at the POS.
1.9.3. To the extent that you inadvertently or unintentionally accept a transaction that you
are not registered to accept, such transaction will downgrade and you will be charged the
Non Qualified Rate or, if you are utilizing the Enhanced Recovery Reduced Discount option,
you will be charged the Enhanced Recovery Reduced Rate on the volume of said transaction
that Client was not registered to accept, in addition to the difference between the
MasterCard/ Visa/Discover Network Qualified Rate agreed to in Section 9 of the Service
Fee Schedule and the actual interchange rate assessed to the downgraded transaction.
1.9.4. Based upon your choice to accept only the Card types indicated in the Application,
)von must remove from your premises any existing signage indicating that you accept all
Visa, MasterCard or Discover Network Cards and use approved specific signage reflecting
your policy of accepting only Non -PIN Debit or Credit Cards.
1.9.5. Even if you elect not to accept Non -PIN Debit Card transactions as provided above,
you may still accept PIN Debit Card transactions if you have signed up for PIN Debit Card
Services.
1.9.6. If a MasterCard Card is presented, you must use your best efforts, by reasonable and
peaceful means, to retain the card while making an authorization request. In a face -to -face
environment, you must give a MasterCard Cardholder the option of a signature based
transaction. Unless the Cardholder uses a PIN, the Cardholder must sign the transaction
receipt.
1.9.7. MasterCard revised standards related to the use of Mobile POS (MPOS) terminals.
Merchants with less than $100,000 in annual MasterCard transaction volume may use Chip -
only MPOS terminals:
• That do not support magnetic stripe capture and cannot print a paper Transaction receipt
• Have a contact chip reader and magnetic stripe - reading capability but does not support
PIN as a Cardholder Verification Method (CVM) for Contact Chip Transactions
• Chip -only MPOS Terminal
Merchants with less than $100,000 in annual MasterCard transaction volume may use
MPOS terminals or Chip -only MPOS solutions that do not support electronic signature
capture to complete a transaction without obtaining a CVM.
PLEASE NOTE: Merchants with more than $100,000 in annual transactions may use
MPOS terminals if the MPOS terminal complies with MasterCard's requirements for POS
terminals or hybrid POS terminals (if chip cards are accepted).
1.10. Deposits of Principals. Owners, partners, officers and employees of your business
establishment, and the guarantors who signed the Application, are prohibited from sub-
mitting Sales Drafts or Credit Drafts transacted on their own personal Cards, other than
transactions arising from bona fide purchases of goods or services in the ordinary course
of your business. Such use in violation of this Section 1.10 is deemed a cash advance, and
cash advances are prohibited.
I.1 1. Merchants in the Lodging Industry.
1.1 I.1. Generally, There are additional rules and requirements that apply to merchants
in the lodging industry for practices including, but not limited to, Guaranteed Reservations
and Charges for no shows, advance deposits, overbookings, and priority checkout. If you
are a merchant in the lodging industry, you must contact us for these additional rules and
requirements. Failure to do so could result in additional charges or termination of this
Agreement.
1.1 1.2. Lodging Service Programs. In the event you are a lodging merchant and wish
to participate in Visa's and/or MasterCard's lodging services programs, please contact your
FDSISOOB1805(ia) 10
sales representative or relationship manager for details and the appropriate MasterCard and
Visa requirements.
1.1 1.3. Written Confirmation of Guaranteed Reservations. You must provide the
Cardholder with written confirmation of a guaranteed reservation. The confirmation must
contain:
• Cardholder's name as it appears on the Card, if present.
• Card Number, truncated where required by applicable law to you or us and Card
expiration date if present, unless prohibited by applicable law to you or us.
• Reservation confirmation number.
• Anticipated arrival date and length of stay.
• The cancellation policy in its entirety, inclusive of the date and time the cancellation
privileges expire.
• Any other pertinent details related to the reserved accommodations.
I.1 1.4. Cancellation of Guaranteed Reservations If a Cardholder requests a cancell-
ation in accordance with Merchant's cancellation policy and specified time frames, Merchant
must provide the Cardholder with a cancellation number and instructions to retain a record
of it. If a Cardholder requests a written confirmation of the cancellation, Merchant must
forward this confirmation within three (3) Business Days of the Cardholder's request. The
cancellation confirmation must contain: Cardholder's reference that Charges were placed on
the Card, if applicable, or a guarantee that a "no- show" Charge will not be placed on the
Card.
• Cardholder's name as it appears on the Card, if present.
• Card Number, truncated as required by applicable law to you or us.
• Card expiration date, if present, unless prohibited by applicable law to you or us.
• Reservation cancellation number.
• Date of cancellation.
• The name of the Merchant's employee that processed the cancellation.
• Any other pertinent information related to the reserved accommodations.
1.12. Customer Activated Terminals and Self- Service Terminals. Prior to
conducting Customer Activated Terminal ( "CAT ") transactions or Self - Service Terminal
transactions for MasterCard, Visa, or Discover you must contact us for approval and
further instructions, rules and requirements that apply to CAT and Self- Service
Terminal transactions. Failure to do so could result in additional charges or
termination of this Agreement.
Activated Terminals for American Express Transactions
Charges for purchases at your Customer Activated Terminals (CATS) must meet the
requirements for Sales Draft as detailed below:
You must include:
• Full Magnetic Stripe data stream or chip Card data in all Authorization requests, and;
• CAT indicator on all Authorization requests and Submissions.
American Express will not be liable for actual or alleged fraudulent Charges occurring
through Customer Activated Terminals (CAT) and will have the right to Chargeback for
those Charges.
1.13. Displays and Advertising. You must prominently display appropriate Visa,
MasterCard, Discover Network, and, if applicable, other Card Organization decals and
program Marks at each of your locations, in catalogs, on websites and on other promotional
materials as required by Card Organization Rules, if you elected to accept such Card
payments on your Application. You may not indicate that Visa, MasterCard, and Discover
Network, or any other Card Organization endorses your goods or services.
Your right to use the program Marks of the Card Organizations terminates upon the earlier
of (i) if and when your right to accept the Cards of the respective Card Organization
terminates (e.g., if your right to accept Discover Network Cards terminates, you are no
longer permitted to use Discover Network Program Marks), (ii) delivery of notice by us or
the respective Card Organization to you of the termination of the right to use the Mark(s)
for that Card Organization, or (iii) termination of the license to use the program Marks by
the respective Card Organization to us.
American Express: If you elected to accept the American Express Card on your
Application, whenever payment methods are communicated to customers, or when
customers ask what payments are accepted, you must indicate your acceptance of the
American Express Card and display the American Express Marks (including any Card
application forms provided to you) as prominently and in the same manner as you do
for any other Card or payment products. You must not use the American Express Marks
in any way that injures or diminishes the goodwill associated with the American
Express Marks, nor (without prior written consent from us) indicate that American
Express endorse your goods or services. You shall only use the American Express Marks
as permitted by the Agreement and shall cease using the American Express Marks upon
termination of the Agreement.
1.13.1. Discover Network Sublicense to Use Discover Network Program Marks.
You are prohibited from using the Discover Network Program Marks, as defined below,
other than as expressly authorized in writing by us. "Discover Network Program Marks"
means the brands, emblems, trademarks and/or logos that identify Discover Network Cards,
including, without limitation, Diners Club International Cards, JCB, UmonPay, BCcard,
and Dinacard. Additionally, you shall not use the Discover Network Program Marks other
than as a part of the display of decals, signage, advertising and other farms depicting the
Discover Network Program Marks that are provided to you by us or otherwise approved in
advance in writing by us.
You may use the Discover Network Program Marks only to promote the services covered
by the Discover Network Program Marks by using them on decals, indoor and outdoor
signs, advertising materials and marketing materials; provided that all such uses by you
must be approved in advance by us in writing.
You shall not use the Discover Network Program Marks in such a way that customers could
believe that the products or services offered by you are sponsored or guaranteed by the
owners of the Discover Network Program Marks. You recognize that you have no ownership
rights in the Discover Network Program Marks. You shall not assign to any Person any of
the rights to use the Program Marks.
1. 13.2. American Express sublicense to Use American Express Marks. You shall
only use the American Express Marks as reasonably necessary to perform your obligations
under the Agreement. The guidelines listed below apply to the Merchant's use of the
American Express "Blue Box" logo.
• The "B1ueBox" logo must always be shown in the pre- approved "American Express Blue"
or, in one- or two -color communications or black.
• The space around the "Blue Box" must equal at least 1/3 the size of the box.
• The "Blue Box" logo minimum size is 3/8" and 1/2" is the preferred size.
• A minimum distance of 1 -1/2 times the size of the "Blue Box" must be allowed between
the "Blue Box" logo and another Mark.
• For additional guidelines on the use of the American Express Marks, you can visit the
American Express website at www. americanexpress.com /decals.
• You must remove American Express Marks from your website and wherever else they are
displayed upon termination of the Agreement or if do not elect to accept or are not
authorized to accept American Express Cards.
1.14. Cash Payments by and Cash Disbursements to Cardholders. You must not
accept any direct payments from Cardholders for Charges of merchandise or services which
have been included on a Sales Draft; it is the right of the Issuer to receive such payments.
You may not make any cash disbursements or cash advances to a Cardholder as part of a
Card transaction unless you are a financial institution with express authorization in writing
in advance from Servicers. For Discover, cash advances in authorized jurisdictions other
than the United States may be conducted in an originating currency provided that cash
advances may be subject to dispute and/or Acquirer fees.
1.15. Discover Network Cash Over Transactions. Cash Over transactions are not
available for MasterCard or Visa transactions. You may issue Cash Over in connection with
a Discover Network Card sale, provided that you comply with the provisions of this
Agreement, including the following requirements:
• You must deliver to us a single authorization request for the aggregate total of the goods/
services purchase amount and the Cash Over amount of the Card sale. You may not
submit separate authorization requests for the purchase amount and the Cash Over
amount.
• The Sales Draft must include both the purchase amount and the Cash Over amount, and
you may not use separate Sales Drafts for the purchase amount and Cash Over amount.
• Cash Over may only be offered with a Card Present Card Sale that includes a purchase of
goods or services by the Cardholder. You must not issue Cash Over as a stand -alone
transaction. Merchants that offer Cash Over may require the total amount of a Card Sale
with a Credit product, including Cash Over, to meet a minimum transaction amount of
up to $10.00.
• You shall not assess or charge fees of any type or amount, including any surcharges, on
Cash Over transactions. None of the fees or charges applicable to Cash Advances shall be
applied to Cash Over transactions.
• Cash Over may not be dispensed in connection with Credits, Cash Advances, or any Card
Sale for which you are unable to electronically capture Track Data using the POS Device.
• The maximum amount of cash that you may issue as Cash Over is $100.00.
(Cash Over may not be available its certain markets. Contact us for further information).
1.16. Telecommunication Transactions. Telecommunication Card Sales occur when a
telephone service provider is paid directly using a Card for individual local or long- distance
telephone calls. (NOTE: Pre -paid telephone service cards are not and do not give rise to
Telecommunication Card Sales). Prior to conducting Telecommunication transactions you
must contact us for approval and further instructions, rules and requirements. Failure to do
so could result in additional charges or termination of this Agreement.
2. Suspect Transactions
If the appearance of the Card being presented or the behavior of the person presenting the
Card is suspicious in nature, you must immediately call the Voice Authorization Center
and ask to speak to a Code 10 operator. Answer all their questions and follow their
instructions. While not proof that a transaction is fraudulent, the following are some
suggestions to assist you in preventing fraudulent transactions that could result in a
Chargeback:
Ask yourself, does the Customer:
• appear nervous/agitated/hurried?
• appear to be making indiscriminate purchases (e.g., does not care how much an item
costs, the size, etc.)?
• make purchases substantially greater than your usual customer (e.g., your average
transaction is $60, but this transaction is for $360)?
• insist on taking the merchandise immediately (e.g., no matter how difficult it is to handle,
is not interested in free delivery, alterations, etc.)?
FDSIS00B1805(ia)
• appear to be purchasing an unusual amount of expensive items or the same items?
• take an unusual amount of time to sign the Sales Draft, or look at the back of the Card as
he signs?
• talk fast or carry on a conversation to distract you from checking the signature?
• take the Card from a pocket instead of a wallet?
• repeatedly come back, in a short amount of time or right before closing time, to make
additional purchases?
• cause an unusual, sudden increase in the number and average sales transactions over a
one -to three -day period?
• tell you he has been having some problems with his Issuer and request that you call a
number (that he provides) for a "special" handling or authorization?
• have a previous history of disputed Charges?
• place orders to be shipped to an address other than the billing address, or use anonymous/
free email domains?
• place orders sent to zip codes or countries where you show a history of fraudulent claims?
• frequently make purchases and then return goods for cash?
• use a prepaid Card to purchase other prepaid Cards?
• use a large numbers of prepaid Cards to make purchases?
Does the Card:
• have characters the same size, height, style and all within alignment?
• appear to be re- embossed (the original numbers or letters may be detected on the back
of the Card)?
• have a damaged hologram?
• have a Magnetic Stripe on the back on the Card?
• have an altered Magnetic Stripe?
• have an altered signature panel (e.g., appear discolored, glued or painted, or show erasure
marks on the surface)?
• have "valid from" (effective) and "valid thru" (expiration) dates consistent with the sale
date?
If you use an electronic terminal and swipe the Card, make sure the account number
displayed on the terminal and/or the Sales Draft matches the number on the Card. If you
cannot or do not verify the account number and accept the sale, you are subject to a
Chargeback and could be debited for the amount of the transaction. IF THE NUMBERS
DO NOT MATCH, DO NOT ACCEPT THE CARD AS A FORM OF PAYMENT, EVEN
THOUGH AN AUTHORIZATION CODE FOR THE MAGNETICALLY SWIPED CARD
NUMBER MAY BE RECEIVED.
Fraud -Prone Merchandise Tips:
• Gift Cards, jewelry, video, stereo, computer and camera equipment, shoes, and men's
clothing are typically fraud -prone because they can easily be resold.
• Be suspicious of high dollar amounts and transactions with more than one fraud -prone
item, e.g., two VCRs, three gold chains, etc.
If you suspect fraud:
• Call the Voice Authorization Center and ask to speak to a Code 10 operator.
• If the terminal does not display the Card number, call the POS Help Desk for terminal
assistance.
REMEMBER: AN AUTHORIZATION CODE ONLY INDICATES THE AVAILABILITY
OF A CARDHOLDER'S CREDIT AT THE TIME OF THE TRANSACTION. IT DOES
NOT WARRANT THAT THE PERSON PRESENTING THE CARD IS THE RIGHTFUL
CARDHOLDER. IF PROPER PROCEDURES ARE NOT FOLLOWED AT THE TIME OF
THE TRANSACTION, YOU ARE SUBJECT TO A CHARGEBACK AND YOUR
ACCOUNT MAY BE DEBITED FOR THE AMOUNT OF THE TRANSACTION.
You must prepare a Sales Draft or Credit Draft, as applicable, for each Card transaction and
provide a copy of it or a transaction receipt or copy of the Draft to the Cardholder at the
time the Card transaction is completed.
3.1. Information Required. All of the following information must be contained on a
single page document constituting a Sales Draft:
• Cardholder's account number must appear on the Credit Draft or Sales Draft in the
manner required by applicable law and Card Organization Rules,
NOTE: The copy of the Sales Draft or Credit Draft you provide to a Cardholder must not
include the Cardholder's Card expiration date or any more than the last four digits of the
Cardholder's Card number. Some states have similar requirements that also apply to the
Sales Drafts or Credit Drafts you retain. MasterCard requires that Card expiration dates be
excluded from the Sales Drafts or Credit Drafts your business retains. You are solely
responsible to determine the Card account number truncation requirements and Card
expiration date exclusion requirements for your state/jurisdiction;
• Clear imprint of the Card. Whenever the term "imprint" is used it refers to the process
of using a manual imprinting machine to make an impression of the Card on the same side
of a signed Sales Draft; it does not include the printout from a printer attached to an
electronic device. If you use a device (e.g., authorization/draft capture terminal, cash
register, POS Device, etc.) to electronically capture the card information (magnetic swipe,
chip or contactless data), you do not have to imprint the Card. HOWEVER, IF THE
ATTENDED POS DEVICE FAILS TO READ THE MAGNETIC STRIPE OR IF YOU ARE
REQUIRED TO OBTAIN A VOICE AUTHORIZATION, THEN YOU MUST IMPRINT
THE CARD. IN ADDITION, THE SALES DRAFT MUST HAVE THE CARDHOLDER'S
SIGNATURE. FAILURE TO FOLLOW THESE PROCEDURES WILL PREVENT YOU
FROM DEFENDING A TRANSACTION IN THE EVENT THAT IT 1S CHARGED BACK
UNDER A CLAIM THAT THE RIGHTFUL CARDHOLDER DID NOT AUTHORIZE THE
PURCHASE. ENTERING INFORMATION INTO A TERMINAL MANUALLY WILL NOT
PREVENT THIS TYPE OF CHARGEBACK. FOR MAIL, TELEPHONE, INTERNET AND
OTHER CARD NOT PRESENT ORDERS SEE SECTION 3.2; IF THE PHYSICAL CARD
IS NOT PRESENT ANOTHER FORM OF PAYMENT MUST BE REQUESTED;
• Cardholder's signature. However, eligible merchants participating in MasterCard's Quick
Payment Service Program, Visa's No Signature Required Program, American Express No
Signature Program, and Discover Network's No Signature Program, and/or certain
Discover Network transactions (see note below) are not required to obtain the
Cardholder's signature under certain conditions set forth by each program;
• Date of the transaction;
• Amount of the transaction (including the approved currency of the sale);
• Description of the goods and/or services involved in the transaction (if there are too many
items, combine them into one description; e.g., "clothing" instead of 'one pair of pants,
one shirt "). Do not carry information onto a second Sales Draft;
• Description of your merchandise return and Credit/refund policy;
• A valid authorization code; and
• Merchant's Doing Business As ( "D/B /A ") name and location (city and state required) and
Merchant Account Number.
When imprinting Sales Drafts, do not alter the Cardholder account number, circle or
underline any information on the Sales Draft or alter a Sales Draft in any way after the
transaction has been completed and signed. Stray marks and other alterations on a Sales
Draft may render it electronically unscannable, unreadable or illegible. This may result in
a Chargeback or Summary Adjustment to your account.
For Discover Network sales using a paper Sales Draft (as opposed to Electronic Draft
Capture), the paper Sales Draft must also contain the initials of your representative or
employee that conducted the transaction. For Discover Network Credits, the Credit Draft
must contain the signature of your authorized representative or employee that conducted
the transaction.
Discover Card Sales in an amount more than $50.00 including sales taxes, tip, surcharge
and/or Cash Over amount are not eligible for treatment as No Signature Card Sales and you
may lose a dispute of such a Card Sale if the Merchant fails to obtain the Cardholder's
Signature on the Sales Draft.
Eligible merchants participating in Visa Easy Payment Service ( "VEPS ") (Visa's No Signature
Required Program), Quick Payment Service and/or Small Ticket are only required to provide
the Cardholder with the completed Sales Draft when requested by the Cardholder.
NOTE: For Visa, MasterCard and Discover Network transactions, if you are a merchant
operating under certain merchant category codes ( "MCC ") approved by Visa, MasterCard
and Discover Network, you are not required to obtain the Cardholder's signature so long
as the full track data is transmitted in the authorization request and the sale amount is
below the applicable program floor limit (MasterCard/Discover /American Express is $50 or
less. Visa's program limit remains at $25 or less excluding U.S. grocery stores (MCC 5411)
and discount stores (MCC 5310) where the limit has been raised to $50.
For MasterCard, if you are operating vending machines under MCC 5499 (Miscellaneous
Food Stores - Convenience Stores, Markets, Specialty Stores), you need not provide a receipt
at the time a transaction is conducted. If a vending machine cannot provide a printed
receipt, you must disclose and post instructions advising customers how a receipt may be
obtained.
Sales Drafts forAmerican Express Transactions.
You must create a Sales Draft for every Charge. For each Charge submitted electronically,
you must create an electronically reproducible Sales Draft. The Sales Draft (and a copy of
the customer's receipt) must disclose your return and/or cancellation policies.
If the Cardholder wants to use different Cards for payment of a purchase, you may create
a separate Sales Draft for each Card used. However, if the Cardholder is using a single Card
for payment of a purchase, you shall not divide the purchase into more than one Charge,
nor shall you create more than one Sales Draft.
• Submit the Charge to American Express directly, or through your Processor, for payment.
• Retain the original Sales Draft (as applicable) and all documents evidencing the Charge,
or reproducible records thereof, for the timeframe listed in our country- specific policies.
• Provide a copy of the Sales Draft to the Cardholder.
You may be able to create more than one Sales Draft if the purchase qualifies for a delayed
delivery Charge. The retention time frame for Sales Drafts is twenty -four (24) months from
the date you submitted the corresponding Charge to us. Pursuant to applicable law, truncate
the Card number and do not print the Card's expiration date on the copies of Sales Drafts
delivered to Cardholders. Truncated Card number digits must be masked with replacement
characters such as "x," " *" or " #," and not blank spaces or numbers.
If you submit Charges on paper, you trust create a Sales Draft containing all of the following
required data:
• Full Card number and expiration date (pursuant to applicable law), and if available,
Cardholder name.
• The date the Charge was incurred.
• The amount of the Charge, which must be the total price for the purchase of goods and
services (plus applicable taxes and gratuities) purchased on the Card.
FDSISOOB1805(ia) 12
• A clear description of the goods or services purchased by the Cardholder.
• An imprint or other descriptor of you name, address, Merchant Account Number and, if
applicable, store number.
• The words "no refunds' if you have a no refund policy, and you return and/or cancellation
policies.
American Express No Signature.
You may participate in the American Express No Signature Program. This No Signature
Program allows establishments not to request a signature from Cardholders on the Sales
Draft. To qualify for the No Signature Program, both the establishment and each Charge
must meet the following criteria:
Establishment Criteria.
If your establishment is classified in an industry that accepts in- person Charges, then the
establishment may participate in the No Signature Program with the exception of the
following categories:
• Merchants who do not conduct in- person Charges (i.e., internet, mail order or telephone
order).
• Prohibited transactions as set forth in Section 14.4 or illegal transactions or activity, as
described in Section 38.2.
• High Risk Merchants (e.g., establishments whose business type has had historically high
occurrences of fraud and disputed charges with American Express or as compared to
other similarly situated merchants (or both); examples include internet electronic
services or nightclubs/lounges) as determined by American Express in its sole discretion.
• Merchants placed in our Fraud Full Recourse Program.
Charge Criteria:
• The amount or Charge must meet the threshold established in American Express' country
specific policy.
• The Charge Submission must include the appropriate indicator to reflect that the Card
and the Cardholder were present at the point of sale.
• The Charge Submission must include a valid approval.
Under the No Signature Program, Chargebacks will not be exercised for such Charges based
solely on the establishment's failure to obtain the Cardholder's signature at the point of sale.
If a disproportionate amount or a number of disputed Charges under the No Signature
Program occur, you must cooperate to reduce the amount or number of disputed Charges.
If such efforts fail, ),on may be placed in American Express Chargeback programs (see
American Express Card Organization Rules regarding "chargeback programs "), or your
establishment's participation in the No Signature Program may be modified or terminated.
The established threshold for charges to qualify under the No Signature Program is $50.00
or less.
3.2. Mail / Telephone / Internet (Ecommerce) Orders and Other Card Not
Present Sales. You may only engage in maiUtelephone /Internet orders provided they do
not exceed the percentage of your total payment Card volume reflected on your Application.
Failure to adhere to this requirement may result in cancellation of your Agreement.
Merchants conducting Internet transactions using MasterCard or Visa Cards must have
special codes (an "Electronic Commerce Indicator ") added to their authorization and
settlement records. Discover Network does not use an Electronic Commerce Indicator.
Failure to register as a merchant conducting Internet transactions can result in fines
imposed by the Card Organizations.
Mail, Telephone, Internet and other Card Not Present transactions have a substantially
higher risk of Chargehack. Since you will not have an imprinted or magnetically swiped
transaction and you will not have the Cardholder's signature on the Sales Draft as you would
in a face -to -face transaction, you will assume all risk associated with accepting a
mail/telephone/ Internet or other Card Not Present transaction. The following procedures,
while they will not eliminate Chargebacks, are useful in reducing them and should be
followed by you:
• Obtain the expiration date of Card.
• On the Sales Draft, clearly print the Cardholder's account number; effective and expiration
dates; date of transaction; description of the goods and services; amount of the transaction
(including shipping, handling, insurance, etc.); Cardholder's name, billing address and
shipping address; authorization code; and merchant's name and address (city and state
required); provided, that you must effect PAN Truncation, and must not include the
expiration date, on the copy of the Sales Daft or Credit Draft that you provide to the
Cardholder, or as required by applicable law, the Sales Draft or Credit Draft you retain.
• For mail orders, write "MO "; for telephone orders, write "TO" on the Cardholder's
signature line.
• If feasible, obtain and keep a copy of the Cardholder's signature on file on a form
authorizing you to submit telephone and mail order transactions.
• You should utilize the Address Verification Service for all Card Not Present Transactions
(see note below). Address Verification is specifically required for all Discover Network
Card Not Present Transactions. If you do not receive a positive match through AVS,
you may not process the Discover Network Card Not Present Transaction. if you do
not have AVS, contact us immediately.
• You should obtain the 3- or 4 digit Card Validation Code number and include it with
each authorization request. Discover Network Card Organization Rules specifically
require that you submit the Card Validation Code with the authorization request for all
Discover Network Card Not Present Transactions.
• For telephone orders, it is recommended that written verification of the sale be requested
from the Cardholder (sent by mail or fax).
• You may not submit a transaction for processing until after the merchandise has been
shipped or the service has been provided to the customer. (The Card Organizations will
permit the immediate billing of merchandise manufactured to the customer's
specifications [i.e., special/custom orders] provided the Cardholder has been advised of
the billing details.)
• You should provide a copy of the Sales Draft to the Cardholder at the time of delivery You
must also obtain proof of delivery of the goods or services to the address designated by
the Cardholder (i.e., by getting a signature of the Cardholder or person designated by the
Cardholder through the delivery carrier). If the Cardholder visits one of your locations
to receive the goods or services purchased, obtain an imprint of the card and the
Cardholder's signature.
• Notify the Cardholder of delivery time frames and special handling and/or cancellation
policies. Merchandise shipping dates must be within seven (7) days of the date
authorization was obtained. If, after the order has been taken, additional delays will be
incurred (e.g., out of stock), notify the Cardholder. If you have not shipped the product
by the seventh day, you must reverse the original authorization then reauthorize the
transaction.
• You may not require a Cardholder to complete a postcard or other document that displays
the Cardholder's account number in clear view when mailed.
• If you accept orders via the Internet, your web site must include the following information
in a prominent manner:
— Complete description of the goods or services offered;
—Description of your merchandise return and Credit/refund policy;
— Customer service contact, including email address and/or telephone number;
— Transaction currency (U.S. dollars, unless permission is otherwise received from
Servicers);
— Any applicable export or legal restrictions;
— Delivery policy;
— Consumer data privacy policy;
— A description of the transaction security used on your website;
— The sale or disclosure of databases containing Cardholder account numbers, personal
information, or other Card transaction information to third parties is prohibited;
— Your identity at all points of interaction with the Cardholder;
— Address of merchant including country;
— Cancellation policy; and
— Date any free trial period ends.
• You may not accept Card Account Numbers through Electronic Mail over the Internet.
NOTE: AVS (and other fraud mitigation tools such as Verified by Visa, MasterCard Secure
Code, CVN'2, CVC2 and CID verification) does not guarantee against Chargebacks, but
used properly, it assists you in reducing the risk of fraud by confirming whether certain
elements of the billing address provided by your customer match the billing address
maintained by the Issuer. AVS also may help you avoid incurring additional interchange
expenses. AVS is a separate process from obtaining an Authorization and will provide a
separate response. A transaction may not match addresses when submitted for AVS and
still receive an Authorization. It is your responsibility to monitor the AVS responses and use
the information provided to avoid high -risk transactions.
American Express Internet Charges.
Processing a Card Not Present Charge for American Express Transactions
you must:
• Submit the Charge to American Express;
For Card Not Present Charges, you must create a Sales Draft and ask the Cardholder to
provide:
• Card number;
• Card expiration date;
In addition, it is recommended that you ask for:
• Name as it appears on the Card,
• Cardholder's billing address, and
• Ship -to address, if different from the billing address.
American Express will not Chargeback for such charges based solely upon a Card - member
claim that he or she did not receive the disputed goods if you have:
• Verified the address to which the goods were shipped was the Cardholder's full billing
address.
• Provided proof of delivery signed by the Cardholder or an authorized signer of the Card
indicating the delivery of the goods or services to the Card- member's full billing address.
American Express will not be liable for actual or alleged fraudulent transactions over the
internet and will have the right to Chargeback for those charges.
For Internet Orders, you must:
• Use any separate merchant numbers (seller ID) established for your internet orders in all
of your requests for Authorization and Submission of charges.
• Provide us with at least one (1) month's prior written notice of any change in your internet
address.
• Comply with any additional requirements that American Express provides from time to
FDSIS0081805(ia) 13
time. Additionally, if a disputed Charge arises involving a Card Not Present Charge that
is an internet electronic delivery Charge, American Express may exercise Chargeback for
the full amount of the Charge and place you in any of its Chargeback programs.
3.2.1. Discover Network Protocol for InternetTransactions. Each Internet Discover
Network Card transaction accepted by you and submitted to us shall comply with Discover
Network standards, including, without limitation, Discover Network standards governing
the formatting, transmission and encryption of data, referred to as the "designated
protocol." You shall accept only those Internet Discover Network Card transactions that are
encrypted in accordance with the designated protocol. As of the date of these Operating
Procedures, the designated protocol for the encryption of data is Secure Socket Layer (SSL).
We may, at our discretion, withhold Settlement until security standards can be verified.
However, the designated protocol, including any specifications with respect to data
encryption, may change at any time upon thirty (30) days adn ance written notice. You shall
not accept any Internet Discover Network Card transaction unless the transaction is sent
by means of a browser which supports the designated protocol.
3.3. Customer Service Telephone Numbers for Card types which are funded by
individual non -bank Card Organizations include:
American Express /ESA or Direct 1 -800- 528 -5200
American Express See Part IV, SectionA.S — Cust. Service #
JCB, International 1 -800- 366 -4522
(ForYEN and CAD currency only)
TeleCheck 1- 800.366 -1054
Voyager 1.800- 987 -6591
WEX 1- 800 - 492 -0669 (24 hours)
4. Data Security
THE FOLLOWING IS IMPORTANT INFORMATION REGARDING THE PROTECTION
OF CARDHOLDER DATA. PLEASE REVIEW CAREFULLY AS FAILURE TO COMPLY
CAN RESULT IN SUBSTANTIAL FINES AND LIABILITIES FOR UNAUTHORIZED
DISCLOSURE AND TERMINATION OF THIS AGREEMENT.
4.1. Payment Card Industry Data Security Standards (PCI DSS). Visa, MasterCard,
Discover Network, JCB and American Express aligned data security requirements to create
a global standard for the protection of Cardholder data. The resulting Payment Card
Industry Data Security Standards (PCI DSS) defines the requirements with which all entities
that store, process, or transmit payment card data must comply. PCI DSS is the name used
to identify those common data security requirements. The Cardholder Information Security
Program (CISP) is Visa USA's data security program, the Site Data Protection (SDP) program
is MasterCard's data security program, Discover Network Information Security and
Compliance (DISC) is Discover Network's data security program, and the Data Security
Operating Policy (DSOP) is American Express' data security program, each based on the
PCI DSS and industry aligned validation requirements. PCI DSS compliance validation is
focused on Merchant Equipment (as defined below) where Cardholder data is processed,
stored or transmitted, including:
• All external connections into your network (i.e., employee remote access, third party
access for processing, and maintenance);
• All connections to and from the authorization and settlement environment (i.e.,
connections for employee access or for devices such as firewalls, and routers); and
• Any data repository outside of the authorization and settlement environment.
For the purposes of this Section 4, "Merchant Equipment" means any and all equipment you
use in connection with Card authorization, clearing, completing, settling, transmitting or
other related processing, including, without limitation, all telecommunication lines and
wireless connections and software, systems, point -of -sale terminals, card readers,
merchandise and card scanners, printers, PIN pad devices and other hardware, whether
owned by you, Merchant Providers or other Persons used by you.
The Card Organizations or we may impose fines or penalties, or restrict you from accepting
Cards if it is determined that you are not compliant with the applicable data security
requirements. We may in our sole discretion, suspend or terminate Services under this
Agreement for any actual or suspected data security compromise. You agree that you will
not request any Authorizations, submit any Sales Drafts or Credit Drafts until you have
read and understood the PCI DSS, CISP, SDP and DISC for which you acknowledge we
have provided you sufficient information to obtain, and you will be deemed to have done
so upon our receipt of your request or submission of any Authorizations, Sales Drafts or
Credit Drafts.
You must comply with the data security requirements described in this Section 4.1,
including, without limitation, PCI DSS, SDP, CISP, DSOP and DISC, and any additional
Card Organization requirements applicable to payment applications and PIN transactions.
Detailed information about PCI DSS can be found at the PCI DSS Council's website:
wvw.pcisecuritystandards org
Detailed information about Visa's CISP program can be found at Visa's CISP website:
www-visa.com/cisp.
Detailed information about MasterCard's SDP program can be found at the MasterCard SDP
website: wwwmastercard.com/sdn.
Detailed information about DISC can be found at Discover Network's DISC website:
http: /hvww.discovernetwork con /merchants /data - security /disc html.
Detailed information about DSOP can be found at American Express' DSOP website:
www.ainericanexl?ress.coin/datasecuriM.
4.2. Data Security Requirements. You must comply with the data security require-
nrents shown below:
• You must install and maintain a secure network firewall to protect data across public
networks.
• You must protect stored data and data sent across networks, using methods indicated in
the PCI DSS.
• You must use and regularly update anti -virus software and keep security patches up -to-
date.
• You must restrict access to data by business "need to know," assign a unique ID to each
person with computer access to data and track access to data by unique ID.
• You must not use vendor - supplied defaults for system passwords and other security
parameters.
• You must regularly test security systems and processes.
• You must maintain a policy that addresses information security for employees and
contractors.
• You must restrict physical access to Cardholder information.
• You may not transmit Cardholder account numbers to Cardholders for Internet
transactions.
• You cannot store or retain Card Validation Codes (three -digit values printed in the
signature panel of most Cards, and a four -digit code printed on the front of an American
Express Card) after final transaction authorization.
• You cannot store or retain Magnetic Stripe data, PIN data, chip data or AVS data. Only
Cardholder account number; Cardholder Name and Cardholder expiration date can be
retained subsequent to transaction authorization.
• You must destroy or purge all Media containing obsolete transaction data with Cardholder
information.
• You must keep all systems and Media containing Card account, Cardholder, or transaction
information (whether physical or electronic) in a secure manner so as to prevent access
by, or disclosure to any unauthorized party.
• For Internet transactions, copies of the transaction records may be delivered to
Cardholders in either electronic or paper format.
• You must use only services and Merchant Equipment that have been certified as PCI -DSS
compliant by the Card Organizations.
4.3. Compliance Audits. You may be subject to ongoing validation of your compliance
with PCI DSS standards. Furthermore, we retain the right to conduct an audit at your
expense, performed by us or a Person designated by us to verify your compliance, or that
of your agents or Merchant Providers, with security procedures and these Operating
Procedures.
4.4. Immediate Notice Required. In the event that transaction data is known or
suspected of having been accessed or retrieved by any unauthorized Person, you must
contact us immediately, and in no event more than 24 hours after becoming aware of such
activity.
4.5. Investigation. You must, at your own expense (i) perform or cause to be performed
an independent investigation, including a forensics analysis performed by a certified
forensic vendor acceptable to us and the Card Organizations in accordance with Card
Organization standards, of any data security breach of Card or transaction data, (ii) provide
a copy of the certified forensic vendor's final report regarding the incident to us and the
Card Organizations, (iii) perform or cause to be performed any remedial actions
recommended by any such investigation, and (iv) cooperate with us in the investigation and
resolution of any security breach. Notwithstanding the foregoing, if required by a Card
Organization, we will engage a forensic vendor approved by a Card Organization at your
expense. You must cooperate with the forensic vendor so that it may immediately conduct
an examination of Merchant Equipment, and your and Merchant Providers' procedures and
records and issue a written report of its findings.
4.6. Required Information for Discover Network Security Breaches. For security
breaches involving Discover Network transactions and/or track data, you must provide us
and/or Discover Network with the following information: (i) the date of breach; (ii) details
concerning the data compromised (e.g., account numbers and expiration dates, Cardholder
names and addresses, etc.); (iii) the method of such breach; (iv) your security personnel
contacts; (v) the name of any person (including law enforcement) assisting you with you
investigation of such breach; and (vi) any other information which we reasonably request
from you concerning such breach, including forensics reports. You shall provide such
information as soon as practicable, and the items listed in (i) -(v) shall be provided to us in
any event within 48 hours of your initial notification to us of the breach.
4.7. Merchant Providers. The data security standards set forth in this Section 4 also
apply to Merchant Providers. Before you engage any Merchant Provider, you must provide
to us in writing (a) the Merchant Provider's legal name, (b) contact information, and (c)
intended function. You acknowledge and agree that you will not use, or provide Cardholder
data access to, any Merchant Provider until you receive our approval and, if required,
confirmation of our registration of that Merchant Provider with applicable Card Organ-
izations. YOU must ensure that you and Merchant Providers: (i) comply with the registration
process which can involve site inspections, background investigations, provision of financial
statements, and any other information required by a Card Organization; (ii) comply with
the periodic and other reporting required by a Card Organization; and (iii) comply with all
applicable Card Organization Rules, including without limitation, those requiring security
of Cardholder data. You may allow Merchant Providers access to Cardholder data only for
purposes authorized under and in conformance with the Card Organization Rules. You are
FDSISOOB1805(ia) 14
responsible for all our costs and expenses associated with our review, approval, certification
(and recertification as may be required by us or the Card Organization Rules) and
registration of any Merchant Providers.
Your use of the Services, equipment, software, systems, materials, supplies or resources of
third parties regarding your Card transactions processing, including, without limitation,
Merchant Providers and any third party lessors or licensors, will not affect your obligations
under this Agreement to us which will apply to the same extent as if you had not used
them. We have no liability or responsibility to you or others regarding these third parties,
even if we referred them to you. These third parties are your agents, and you are solely
responsible for (i) determining whether they can meet your needs and standards, (ii) their
actions, inactions and compliance with the terms of this Agreement and the Card
Organization Rules and (iii) any and all fees, costs, expenses and other obligations owed to
them by you or owed by them to us or to Card Organizations.
4.8. Noncompliance Fees. If we have not received receipt of your validation of comp-
liance with your PCI DSS standards within the first 90 days of the date of the Agreement,
you will be charged a monthly non - receipt of PCI Validation fee as set forth in the App-
lication or as otherwise communicated to you, for the period beginning upon expiration of
the 90 day period, until such time as you are compliant or this Agreement is terminated,
whichever comes first. This monthly non - receipt of PCI Validation fee is in addition to any
and all other fees for which you are responsible related to your failure to be compliant as
required hereunder.
4.9. Costs. If you or a Merchant Provider (or other Person used by you) are determined
by any Card Organization, regardless of any forensic analysis or report, to be the likely
source of any loss, disclosure, theft or compromise of Cardholder data or Card transaction
information, or caused Cardholder data to be put at risk (together, "Compromised Data
Events ") and regardless of your belief that you have complied with the Card Organization
Rules or any other security precautions and are not responsible for the Compromised Data
Event, you must promptly pay us for all related expenses, claims, assessments, fines, losses,
costs, and penalties and Issuer reimbursements imposed by the Card Organizations against
us (together, "Data Compromise Losses "). In addition to the foregoing, you must also pay
us promptly for all expenses and claims made by Issuers against us alleging your
responsibility for the Compromised Data Event, apart fronn any claim procedures
administered by the Card Organizations.
S. Authorizations
Each authorization request you submit to us must fully comply with the applicable
provisions of this Agreement. Submission of an authorization request that does not fully
comply may result in assessment of additional fees to you, a declined authorization response
or a Chargeback to you.
An Authorization Approval Code only indicates the availability of Credit on an account at
the time the Authorization is requested. It does not guarantee or warrant that the person
presenting the Card is the rightful Cardholder, the Charge is in fact valid or bona fide, nor
is it a promise or guarantee that you will be paid for the Charge and not be subject to a
Chargeback.
You must obtain an Authorization Approval Code from us (or as authorized, pursuant to
Section 5.4) for all transactions. A positive authorization response for MasterCard remains
valid for seven (7) days for electronic processed transactions. A positive authorization
response for Visa will remain valid for thirty (30) calendar days from the date the Issuer
provides the Authorization response for Card Sales in the car rental Industry, airline and
passenger railway industries, the lodging industry, and other travel MCCs including
passenger transport and ten (10) days from the date of the Authorization response for Card
Sales by Merchants in all other industries and MCCs. A positive Authorization response
for Discover Network transactions remains valid for ten (10) days for Non T &E transactions
and thirty (30) days for T &E transactions. A positive Authorization response for American
Express Non T &E transactions are good for seven (7) days, American Express T&E
transactions are good for thirty (30) days. Failure to obtain an Authorization Approval
Code for a sales transaction may result in a Chargeback and/or the termination of your
Agreement. Authorization Approval Codes can be obtained through your POS Terminal or
a Voice Response Unit ( "VRIJ ). Any fees related to authorizations will be charged per each
request for an Authorization Approval Code, whether or not the transaction is approved.
Do not attempt to obtain an Authorization Approval Code provided by someone other than
us except as described in Section 5.4. If a Cardholder or another service provider provides
you with either an authorization number or with a telephone number for obtaining
authorizations, the Authorization Approval Code you receive may not be valid. Even if the
transaction is initially processed and funded, it may be charged back at a later date. Also,
if you receive a purported Authorization Approval Code from someone other than us, we
will not have the supporting records and will be unable to verify that you received the
authorization if that is later questioned in a Chargeback.
If you obtain Address Verification, you must review the AVS response separately from the
authorization response and make your own decision about whether to accept the
transaction. A transaction can receive an Authorization Approval Code from the Issuer even
if AVS is unavailable or reflects that the address provided to you does not match the billing
address on file at the Issuer. If the authorized Cardholder disputes such a transaction, you
will be responsible for the resulting Chargeback.
If you receive a Referral response to an attempted authorization, you may not submit the
transaction without calling for and receiving a voice authorization. After receiving a Referral
response you may not attempt another authorization on the same Card through your POS
Terminal..
If you fail to obtain an Authorization Approval Code or if you submit a Card transaction
after receiving a decline (even if a subsequent authorization attempt results in an
Authorization Approval Code), your transaction may result in a Chargeback and may be
assessed fines or fees by the Card Organizations for which you will be responsible. These
currently range from $25 to $150 per transaction. To avoid these costs and related
Chargebacks, always obtain an Authorization Approval Code directly from your terminal
before submitting a transaction for settlement.
You may not attempt to obtain multiple authorizations for a single transaction. If a sale is
declined, do not take alternative measures with the same Card to obtain an approval of the
sale from other authorization sources. Instead, request another form of payment. If you
accept and process a transaction that was declined, or attempt multi - transactions and/or
multi- authorizations, you are subject to a Chargeback, Card Organization fines and/or
cancellation of your Agreement. Do not discuss reason for decline with a Cardholder rather
refer them to the customer service number on the back of the Card.
For Visa, MasterCard and Discover transactions, automated fuel dispensers must ensure
that completion messages are submitted for such Card transactions within 60 minutes of
the Authorization.
For Discover transactions, Merchants operating in the petroleum industry that conduct
Card Sales at Automated Fuel Dispensers (AFDs), may submit an Authorization Request for
$1.00 to verify the validity of the Card presented. Under such circumstances, you must
submit an Authorization Advice Message for the actual amount of the Card Sale within
sixty (60) minutes of completion of fuel delivery regardless of whether you previously
received a Partial Authorization Response or a positive Authorization Response for any
other amount. If you do not complete the Card Sale following receipt of an approved
Authorization Response for an), amount, a request to cancel the Authorization Request
must be submitted within sixty (60) minutes of the completion of fuel delivery.
5.1. Card Not PresentTransactions. You must obtain the 3- or 4 digit Card Validation
Code (CVV2, CVC2, CID) and submit this Code with all authorization requests with
respect to transactions where the Card is not present (e.g,, telephone, mail or internet sales).
However, for recurring transaction authorizations you should submit the Card Validation
Code with the first authorization request only, and not with subsequent recurring
transaction authorization requests. (See Section 1.7). NOTE: For each Card Not Present
Discover Network transaction, you must also verify the name and billing address of the
Discover Network Cardholder using the Address Verification System (AVS), and if you do
not receive a positive match, do not process the Discover Network Card Not Present
transaction.
5.2. Authorization viaTelephone (OtherThanTerminal /Electronic Device Users).
• Call your designated voice authorization toll free number and enter the authorization
information into the VRU using a touch tone phone or hold for an authorization
representative.
• If advised to pickup a Card, use reasonable and peaceful means to do so, and do not take
any action that will alarm or embarrass the Card presenter. You will bear all responsibility
for claims, liabilities, costs and expenses as a result of any action by you, your employees,
vendors or agents, that attempt to retain a Card without the Issuer's direct request or
failure to use reasonable, lawful means in retaining or attempting to retain the Card.
Forward the Card to: Attn: Rewards Department, P.O. Box 5019, Hagerstown, MD 21740.
You may be paid a reward for the return of the Card.
• On occasion, the Authorization Center will ask you to obtain identification from the
Cardholder before issuing an approval code. If you are instructed to do so, clearly write
the appropriate identification source and numbers in the space provided on the Sales
Draft unless otherwise prohibited by law.
• If the sale is declined, please remember that our operators are only relaying a message
from the Issuer. The fact that a sale has been declined should not be interpreted as a
reflection of the Cardholder's creditworthiness. The Cardholder should be instructed to
call the Issuer.
5.3. Authorization via Electronic Devices.
• If you use an electronic terminal to obtain an Authorization Approval Code, all sales
should be authorized through this equipment. Authorizations through other methods
will result in additional charges to you.
• If your terminal malfunctions, refer to your Quick Reference Guide, if necessary, or call
the POS Help Desk. The problem will either be corrected promptly or may require
terminal programming or replacement. During the period in which your terminal is not
functioning, remember to check it periodically since most terminal problems are
temporary in nature and are quickly corrected.
• If a terminal is moved or if wires are disconnected, causing malfunction, call the POS
Help Desk immediately and follow their instructions. You may be responsible for any
service charges incurred for reactivation of the terminal.
• Until the terminal becomes operable, you must call your designated voice authorization
toll free number and enter authorization information into the VRU using a touchtone
phone. During this time, each transaction must be imprinted using a manual Imprinter
machine. Failure to obtain an Authorization Approval Code and to imprint these
transactions could result in a Chargeback to your account.
5.4. Third Party Authorization System. If you have contracted with another author-
ization network to obtain Credit Card authorization, i.e., your terminal can Split Dial,
liability resulting from discrepancies with that network must be resolved between you and
that network. We will not research Chargebacks resulting from Authorization Approval
Codes obtained from another authorization service organization. Such Chargebacks will
be passed through to you for resolution. If an authorization provided by a third party
authorization system is challenged in a Chargeback, you must obtain proof (e.g., third party
authorization loizs) from the authorization source and submit it to us within the time frame
FDSISOOB1805(ia) Is
specified on the Chargeback documentation.
IF YOU CONTRACTED TO USE ONE OF OUR AUTHORIZATION SERVICES, DO NOT
USE ANOTHER THIRD PARTY SYSTEM WITHOUT NOTIFYING CUSTOMER SERVICE.
OTHERWISE, WE WILL BE UNABLE TO SUCCESSFULLY RESEARCH AND DEFEND
ANY AUTHORIZATION RELATED CHARGEBACKS ON YOUR BEHALF. THIS DELAY
WILL SIGNIFICANTLY DECREASE YOUR TIME TO RESEARCH AND PROVIDE PROOF
OF AUTHORIZATION, THUS REDUCING YOUR OPPORTUNITY TO REVERSE A
CHARGEBACK.
If you utilize another authorization network, you will be responsible for the downgrade of
any transactions to a higher cost interchange that result from a mismatch of information to
our systems and those of third party authorization networks (see Section 19.1).
If you use a third party authorization network, you must also comply with Section 4.7.
Call the following for other Card types:
American Express /ESA or Direct 1 -800- 528 -5200
JCB, International 1- 800 -522 -9345
(ForYEN and CAD currency only)
TeleCheck 1 -800- 366 -50 I 0
Voyager 1 -800- 987 -6589
WEX 1- 800 -842 -0071
Available 24 hours /day; 7 days /week.
All approved sales authorized in this manner must be entered manually as "post
authorization" transactions into the terminal, once the terminal becomes operational. All
Credit transactions must be entered into the terminal for data capture. You may be subject
to a Chargeback if you receive a Referral and subsequently receive an approval. To reduce
the risk of such a Chargeback, the Card should be imprinted using a manual Imprinter
machine. (For specific procedures on Electronic Data Capture, refer to the Terminal
Operating Instructions/Users Guide.) If the terminal malfunctions for more than twenty-
four (24) hours, contact Customer Service for further instructions on processing your
transactions.
5.5. Automated Dispensing Machines. Records must be produced for all transactions
whose origin and data capture are automated dispensing machines or Limited Amount
Terminals. Records should include the Cardholder account number, merchant's name,
terminal location, transaction date and amount.
5.6. Pre - Authorization forT &E (Travel & Entertainment) and Restaurant Merch-
ants. If you are a business engaged in providing travel and/or entertainment services (e.g.,
car rentals, hotels, motels, etc.) or a restaurant business, and engage in the practice of "pre -
Authorization" you must comply with the following general procedures:
• A hotel, motel, or car rental merchant may obtain an estimated Visa, MasterCard or
Discover Network authorization at the time of check -in or reservation.
• Restaurants must not add an estimated tip amount to the authorization request beyond
the value of the goods provided, or services rendered, plus any applicable tax.
• You must notify the Cardholder of the dollar amount you intend to "Pre- Authorize."
• if the customer decides to use another form of payment (e.g., cash, check, etc.) you must
promptly call the Voice Authorization Response Unit to delete the authorization hold.
Provide the Cardholder's account number, original dollar amount and date of the trans-
action, and the authorization code. If a new transaction takes place, a new imprinted and
signed Sales Draft for the exact amount and a new authorization code for that amount
must be obtained.
• VEHICLE RENTAL PROVIDERS MAY NOT INCLUDE POTENTIAL VEHICLE DAMAGE
OR INSURANCE DEDUCTIBLES IN ANY PREAUTHORIZATIONS.
• If you receive a decline on a transaction, you must wait twenty -four (24) hours before
attempting to reauthorize. If you reauthorize prior to this time frame and receive an
approval, you may be subject to a Chargeback and a fine imposed by the Card
Organizations.
• Hotels, motels, and car rental merchants are allowed up to a 15% variance above the
amount authorized. If the final amount charged to the Cardholder exceeds the original
estimate by more than 150k, above the preauthorization, you must authorize any additional
amounts, and all incremental authorization codes must be written in the authorization
area along with the date of authorization and the amount authorized.
• Pre - Authorization for certain establishments, are allowed up to a 20 %, (instead of 15 %)
variance above the amount authorized. If the final amount exceeds the amount
"preauthorized" by more than 204 %, you must authorize the additional amount.
Estimating the Authorization amount to include a tip is prohibited. The authorization
request should include only the amount associated with the bill presented to the
consumer.
• You should obtain an authorization for the initial estimated charges and then monitor
the charges to ensure that the actual charges made do not exceed the estimated charges.
If the actual charges exceed the amount of the initial estimated authorization (and any
subsequent estimated authorizations), then you must secure a positive authorization for
the additional amount.
NOTE: Subsequent authorizations should only be for the additional amount of total
charges and not include amounts already authorized.
• The estimated amount of an), pre- authorization for lodging accommodations must be
based on (i) the intended length of stay; (ii) the room rate; (iii) applicable taxes and
service charges; and (iv) other miscellaneous charges as dictated by experience.
• If an authorization request is declined, no charges occurring after that date will be
accented for that Cardholder.
• You do not need to obtain a final authorization if the total sum of charges (the final
amount) does not exceed 20% of the previously authorized charges. You must record the
dates, authorized amounts, and their respective Authorization Approval Codes on the
Sales Draft(s).
5.7. Discover Network Procedure for Request for Cancellation of Authorization.
If a Discover Network Card sale is cancelled or the amount of the transaction changes
following your receipt of authorization for the sale, you must call your Authorization Center
directly and request a cancellation of the authorization. An authorization may be cancelled
at any time within ten (10) days of your receipt of the authorization, but must be cancelled
before the sales data relating to the transaction is submitted to us, after which the
authorization cannot be changed. For an authorization cancellation, you must provide us
with the following information, in this order:
• The Discover Network Merchant Account Number used in the authorization;
• The Card number;
• The original amount of the authorization being cancelled;
• The new amount of the total transaction (if any);
• The original authorization code for the authorization being cancelled;
• The expiration date of the Card; and
• A brief reason for the authorization cancellation.
5.8. Partial Authorization and Authorization Reversal. Partial authorization provides
an alternative to a declined transaction by permitting an Issuer to return an authorization
approval for a partial amount, an amount less than the transaction amount requested by the
merchant when the available card balance is not sufficient to approve the transaction in
full. The Cardholder is able to use up the remaining funds on the card and select another
form of payment (i.e., another payment card, cash, check) for the remaining balance of the
transaction. For MasterCard transactions, partial authorization is optional for batch auth-
orized e- commerce transactions, mail order, telephone order transactions and recurring
payment transactions. For Discover transactions, partial Authorization support is optional
for Card Not Present transactions. if you support partial authorizations, a partial auth-
orization indicator must be included in each authorization request. it is a requirement for
all U.S. and U.S. Territory merchants that provide cash -back at Point of Sale to support Visa
Partial Authorization.
An authorization reversal must he submitted if the authorization is no longer needed, a
partial amount of the total authorized is submitted for the settled transaction, or the
Cardholder elects not to complete the purchase. The transaction sent for settlement must
he no more than the amount approved in the partial authorization response. In the event
that you wish to support the partial authorization functionality, you trust contact Processor
for additional rules and requirements. An authorization reversal may only be submitted if
the transaction has not settled. Once the transaction has settled, only a Credit or refund can
occur.
6. Submission/Deposit of Sales Drafts and Credit Drafts
6.1. Submission of Sales for Merchants OtherThanYour Business. You maypresent
for payment only valid charges that arise from a transaction between a bona fide Cardholder
and your establishment. If you deposit or attempt to deposit transactions that arise from
sales between Cardholders and a different business than the one approved by us in our
Agreement with you, then the transaction may be charged back, we may suspend or debit
funds associated with all such transactions, and we may immediately terminate your
account and the Agreement.
6.1.1. Factoring. Factoring is considered merchant fraud and strictly prohibited.
Factoring is the submission of authorization requests and/or Sales Drafts by a merchant for
Card transactions transacted by another business. If ),on submit Sales Drafts on behalf of
another person, you will suffer any losses associated with the disputes of any such Sales
Draft and/or transaction. Also if any fraud is involved, you could face criminal prosecution.
6.2. Timeliness. In order to qualify for the lowest interchange Discount Rate, all Sales
and Credit Drafts must be properly completed and submitted daily if you have not received
payment for submitted Sales Drafts after one (1) week from your normal payment date,
contact Customer Service. Late Submission of Sales or Credit Drafts may result in increased
interchange rates or fees or in a Chargeback to you.
6.3. Electronic Merchants: Daily Batching Requirements & Media Submission. Batches
must be transmitted to us by the time indicated in Section A.2. of Part IV, of this Agreement)
in order to be processed on the date of transmission. Additionally, if you deposit via
magnetic tape, electronic transmissions, or Electronic Data Capture terminal, and have
contracted to send the actual Sales Drafts and Credit Drafts to us for imaging and retrieval,
the Media must be batched daily by register /terminal following the procedures below.
Failure to do so ilia), result in a processing fee and/or a Chargeback due to our inability to
retrieve the Media as requested by the issuer.
• A register /terminal Batch header form must be filled out for each Batch of Media.
• The Batch header must be imprinted with your Merchant Identification Card, and all
areas completed properly (i.e., Batch number, date, amount, number of items, etc.).
• The Batch/deposit total must match to the settled/reconciled amount displayed on the
terminal upon closing the Batch.
• Any discrepancies between the actual Media and electronic display must be reconciled and
corrected before storing the Media (for merchants who contract to hold their Media) or
before sending us the copies of the deposit. Otherwise, transactions may appear to be a
new Submission and may be manually keyed (causing duplicate billing to Cardholders
and resulting in Chargebacks) or we may not be able to retrieve an item when requested
by the Issuer.
FDSISOOB1805(ia) 16
• It is your responsibility to ensure that the actual Media is batched correctly and,
depending on the terms of your Agreement, either stored at your location or sent to
Processor. (In some cases, the actual Media is sent daily to your head office, and forwarded
to Processor for imaging.)
• You must confirm that your equipment has transmitted your Batches to us at least once
daily Even if your equipment is designed or programmed to close and submit Batches
without your intervention, it is ultimately your responsibility to confirm that the Batches
have been transmitted to us for processing.
NOTE: A batch is defined as: Sales Drafts and Credit Drafts received per day, per
transaction date, per location. (maximum 500 documents per batch)
Except as otherwise set forth in this Program Guide, Your funds for MasterCard/Visa/
Discover Network and American Express transactions will ordinarily be processed and
transferred to your financial institution within two (2) Business Days from the time a Batch
is received by Processor if your financial institution is the Bank. If your financial institution
is not the Bank, your MasterCard/Visa/Discover transactions will ordinarily be processed via
the Federal Reserve within two (2) Business Days from the time a Batch is received by
Processor. The Federal Reserve will transfer such amounts to your financial institution.
If you have been classified by Discover Network as having a Discover Direct Strategic
Relationship with Discover Network, we will not acquire your Discover Network
transactions and they will be subject to your agreement with Discover Network.
You acknowledge and agree that if we have not agreed to or do not acquire transactions for
any Card type (i) we have no liability or responsibility whatsoever for the settlement of or
disputes regarding those transactions and (ii) you will pursue directly with the related Card
Organization all claims and disputes regarding those transactions. You agree to pay us for
per item processing, authorization and other fees in the Application for any non- acquired
transaction services you receive from us. For the avoidance of doubt, with respect to the
payments you have elected to accept on your Merchant Processing Application, you
authorize us to submit Card transactions to, and receive settlement for such transactions
from, the applicable Card Organizations on your behalf.
8. Refunds/Exchanges (Credits)
8.1. Refunds.
• You must promptly complete and submit a Credit Draft for the total amount of the Credit,
which must include the following information:
— The account number and expiration date;
— The Cardholder's name;
— Your name, city, state and Merchant Account Number;
— A description of the goods or services;
— The transaction date of the Credit;
— The total amount of the Credit; and
— For Discover Network transactions, the approved currency used and the signature of
your authorized representative or employee.
• You cannot process a Credit transaction that does not correspond to a previous transaction
on the original Sales Draft.
• Full refunds must be for the exact dollar amount of the original transaction including
tax, handling charges, etc. (You must identify the shipping and handling charges
incurred.) The refund amount may not be for more than the original Card sale amount.
• All dollar amounts and other handwritten information must be clearly written. (Stray
marks on the Credit Draft will render it unscannable /illegible.)
• Do not circle or underline any information on the Credit Draft.
• Imprint the Credit Draft with the same Card used by the Cardholder to make the original
purchase when applicable. You should not credit an account that differs from the account
used for the original transaction.
• Never give cash or check Credit refunds for Card sales.
• Have the Cardholder sign the Credit Draft, give the Cardholder the appropriate copy, and
deposit the Credit Draft immediately. Failure to process a Credit within five (5) calendar
days may result in a Chargeback.
• Authorization is not required for Credits.
• You cannot intentionally submit a sale and an offsetting Credit at a later date solely for
the purpose of debiting and crediting your own or a customer's account.
• You are responsible for paying all refunds submitted to us on your merchant account. We
assume no responsibility for verifying any Credits or refunds.
• Do not process a Credit transaction once a Chargeback is received. Credits issued after a
Chargeback has been received may not be recoverable and the merchant would be
financially responsible for the credit as well as the Chargeback.
• YOU ARE RESPONSIBLE TO SECURE YOUR TERMINALS AND TO INSTITUTE
APPROPRIATE CONTROLS TO PREVENT EMPLOYEES OR OTHERS FROM
SUBMITTING CREDITS THAT DO NOT REFLECT BONA FIDE RETURNS OR
REIMBURSEMENTS OF PRIOR TRANSACTIONS.
8.1.1 Processing a Credit for American Express Transactions.
These are additional requirements for a Credit for purchases or payments made on an
American Express Card.
To issue a Credit, you must:
1. Compare the last four digits on the Sales Draft against the Card presented (when
applicable).
2. Have the Cardholder sign the Credit Draft (when applicable).
3. Provide a copy of the Credit Draft to the Cardholder.
You must not issue a Credit when there is no corresponding Charge, nor issue a Credit in
exchange for cash or other consideration from a Cardholder. You must submit all Credits
under the establishment where the Credit originated. A Credit must be issued in the
currency in which the original Charge was submitted to us. You must issue Credits to the
Card used to make the original purchase; however, if the Credit is for the return of a gift by
someone other than the Cardholder who made the original purchase, apply your usual
refund policy.
If the Cardholder indicates that the Card on which the purchase was originally made is no
longer active or available, do the following:
• For all Cards except Prepaid Cards, advise the Cardholder that you must issue the Credit
to that Card. If the Cardholder has questions, advise him or her to call the customer
service number on the back of the Card in question.
+ If the inactive or unavailable Card is a Prepaid Card, apply your usual refund policy for
returns.
If you issue a Credit, American Express will not refund the discount or any other fees or
assessments previously applied on the corresponding Charge. The discount on Chargebacks
will not be refunded.
Your return and cancellation policies must be fair and clearly disclosed at the time of sale
in compliance with applicable law. Your policies must be conveyed to the Cardholder prior
to completion of the Charge and printed on a copy of a receipt or Sales Draft. Your refund
policy for purchases on the American Express Card must be at least as favorable as your
refund policy for purchases made with other payment products or other payment methods.
Return Policy recommendations.
Provide clear return instructions for your customers, including the following information:
• Customer service telephone number.
• Reference number for the return.
• Expected processing time for the Credit.
• Return address, preferably on a pre - formatted shipping label (if applicable).
You must submit all Credits to us within seven (7) days of determining that a Credit is due.
Cancellation Policy Recommendations.
-Provide document cancellation policy and terms and conditions on the contract the
Cardholder signs, or on your website, as applicable.
-Provide Cardholder with a cancellation number that can be tracked in your records.
American Express Return Policy For Prepaid Products.
If your return policy for the purchase of prepaid products is different from your standard
return policy, you must ensure that such prepaid product- specific return policy is clearly
disclosed to the Cardholder at the time of purchase in accordance with applicable law and
also coded to print on all receipts and copies of Sales Drafts you provide to Cardholders.
8.2. Exchanges.
• No additional paperwork is necessary for an even exchange. Just follow your standard
company policy.
• For an uneven exchange, complete a Credit Draft (follow the procedures outlined in
Section 8.1) for the total amount of only the merchandise returned. The Cardholder's
account will be credited for that amount. Then, complete a new Sales Draft for the total
amount of any new merchandise purchased.
9.1. Retain Legible Copies.
For Visa: You must securely retain legible copies of all Sales Drafts and Credit Drafts or
any other transaction records for a period of thirteen (13) months from the date of each
transaction and a period of five (5) years for the retention of healthcare Sales Drafts and
Credit Drafts. The Sales Drafts you retain must comply with all requirements (see Section
3.1).
For MasterCard: You must securely retain legible copies of all Sales Drafts and Credit Drafts
or any other transaction records for a period of thirteen (13) months from the date of each
transaction and a period of five (5) years for the retention of healthcare Sales Drafts and
Credit Drafts. The Sales Drafts you retain must comply with all requirements (sec Section
3.1).
For Discover Network: You must securely retain legible copies of all Sales Drafts and Credit
Drafts or any other transaction records for the longer of (i) 365 days or (ii) the resolution
of any pending or threatened disputes, claims, disagreements or litigation involving the
Card transaction. You must also keep images or other copies of Sales Drafts for no less than
three (3) years from the date of the Discover Network transaction.
For American Express: You must submit the Credit to American Express directly, or
through your Processor, for payment. You must securely retain legible copies of all Sales
Drafts and Credit Drafts or any other transaction records for 24 months from the date you
submitted the corresponding Credit to us. You must also provide a copy of the Credit Draft
to the Cardholder or as required by applicable law, truncate the Card Number and do not
print the Card's expiration date on copies of Credit Drafts delivered to the Cardholder.
9.2. Provide Sales and Credit Drafts. You must provide all Sales Drafts and Credit
Drafts or other transaction records requested by us within the shortest time limits
FDSISOOB1805(ia) 17
established by Card Organization Rules. You are responsible for any deficiencies in Card
transaction data transmitted or otherwise delivered to us.
t Other
10.1. Chargebacks.
10.1.1. Generally. Both the Cardholder and the Issuer have the right to question or
dispute a transaction. If such questions or disputes are not resolved, a Chargeback may
occur. As a result, we will debit your Settlement Account or settlement funds for the amount
of each Chargeback. It is strongly recommended that, whenever possible, you contact the
Cardholder directly to resolve a disputed transaction or Chargeback, unless the dispute
involves a Discover Network Cardholder, in which case Discover Network rules and
regulations expressly prohibit you from contacting the Discover Network Cardholder
regarding the dispute. You are responsible for all Chargebacks, our Chargeback fees, and
related costs arising from your transactions.
10.1.2. Transaction Documentation Requests. In some cases, before a Chargeback is
initiated, the Issuer will request a copy of the Sales Draft, via a request for transaction
documentation. We will forward the request to you. You must respond to the request within
the time frame and manner set forth in the request. We will then forward your response to
the Issuer. If you fail to timely respond, we will so notify the Issuer and a Chargeback may
result. Upon receipt of a transaction documentation request, immediately retrieve the
requested Sales Draft(s) using the following guidelines:
• Make a legible copy, centered on 8 -1/2 x 11 -inch paper (only one (1) Sales Draft per
page).
• Write the `case number' from the request for transaction documentation on each
copy /page.
• If applicable, make copies of a hotel folio, car rental agreement, mail/phone/internet order
form, or other form of receipt.
• If a Credit transaction has been processed, a copy of the Credit Draft is also required.
• Letters are not acceptable substitutes for Sales Drafts.
• Fax or mail legible copies of the Sales Draft(s) and Credit Drafts, if applicable, to the fax
number or snail address provided on the request form.
• If you fax your response, please set your fax machine to print your fax number and name
on the documents that you send. We can use this information to help determine where
the documentation received originated from should additional research be required.
• Additionally, please set the scan resolution on your fax machine to the highest setting. The
higher resolution setting improves the clarity of characters and graphics on the
documentation transmitted and helps reduce the number of illegible fulfillments and/or
Chargebacks.
If we do not receive a clear, legible and complete copy of the transaction documentation
within the timeframe specified on the request, you may be subject to a Chargeback for
which there may be no recourse.
A handling fee may be charged by the Issuer and will be debited from your Settlement
Account or settlement funds if, a transaction documentation request results from a
difference in the following information on the Sales Draft and the transmitted record:
Merchant name or an incorrect city, state, foreign country and/or transaction date.
10.1.3. Chargeback Process. Regardless of whether ),on respond to a transaction doc-
umentation request, a Chargeback may be debited to your Settlement Account for numerous
reasons (see below). If the Issuer submits a Chargeback, we will send you a Chargeback
notification, which may also include a request for transaction documentation. Due to the
short time requirements imposed by MasterCard, Visa, Discover Network and
American Express, it is extremely important that you respond to a Chargeback
notification and transaction documentation request within the time frame set forth
in the notification. Do not process a Credit transaction once a Chargeback is received; the
Issuer will credit the Cardholder's account. Credits issued after a Chargeback has been
received may not be recoverable and you may be financially responsible for the Credit as
well as the Chargeback. If the information you provide is both timely and, in our sole
discretion, sufficient to warrant a representment of the transaction and /or reversal of the
Chargeback, we will do so on your behalf. However, represenument and/or reversal is /are
Ultimately contingent upon the Issuer and/or Cardholder accepting the transaction under
applicable Card Organization guidelines. Representment or reversal is not a guarantee that
the Chargeback has been resolved in your favor.
For Visa Chargebacks: If we reverse the Chargeback and represent the transaction to the
Issuer, the Issuer, at its sole discretion, may elect to submit the matter for arbitration before
Visa. Visa currently charges a $250 filing fee and a $250 review fee. You will be responsible
for all such fees and charges nvhether or not a decision is made in your favor, and any other
applicable fees and charges imposed by Visa, as they may change from time to time. Such
fees and charges will be debited from your Settlement Account or settlement funds, in
addition to the Chargeback.
For MasterCard Chargebacks: If we reverse the Chargeback and represent the transaction
to the Issuer, the Issuer, at its sole discretion, may elect to resubmit the Chargeback. In
such event, at the discretion of Processor, we will debit your Settlement Account or
settlement funds for the Chargeback. However, if you feel strongly that it is an invalid
Chargeback, we may, on your behalf and at your request, submit the matter for arbitration
before MasterCard. MasterCard currently charges a $150 filing fee and a 5250 review fee.
You will be responsible for all such fees and charges whether or not a decision is made in
your favor and any other applicable fees and charges imposed by MasterCard as the), may
change from time to time. Such fees and charges will be debited from your Settlement
Account or settlement funds, in addition to the Chargeback.
For Discover Network Chargebacks: if Discover Network rejects our representment request
and you feel strongly that the Chargeback is invalid, we may, at the discretion of Processor
and on your behalf and at your request, submit the matter for dispute arbitration before
Discover Network. Discover Network charges fees for representment requests and an
arbitration fee as published in their fee schedule.
For American Express Chargebacks: You may request a Chargeback reversal if the Charge-
back was applied in error. In order for us to consider your request, you must have responded
to the original inquiry within the specified timefiame set forth in your dispute notification,
and provide all supporting documentation to substantiate the error.
If the Chargeback is not disputed within the applicable time limits set forth by MasterCard,
Visa, Discover Network and American Express rules and regulations, reversal rights are
forfeited. Our only alternative, for Visa and MasterCard non -fraud Chargeback reason codes,
is to attempt a "good faith collection" from the Issuer on your behalf. This process can take
up to six (6) months and must meet the Issuer's criteria (e.g., at or above a set dollar amount).
Good faith collection attempts are not a guarantee that any funds will be collected on your
behalf. Issuers normally charge good faith collection fees, which are deducted from the
transaction amount if accepted in addition to any processing fees that are charged by us.
NOTE: Discover Network and American Express do not offer good faith collection for
Acquirers.
MasterCard and Visa Card Organization Rules require that a merchant make a good faith
attempt and be willing and able to resolve any disputes directly with the Cardholder.
Discover Network rules and regulations, however, prohibit you and/or us from contacting
the Cardholder directly regarding dispute(s) or any other matter, except as required for
acceptance of Discover Network transactions, and require you and/or us to submit any
responses to dispute notices directly to Discover Network.
Due to Card Organization Rules, you may not re -bill a Cardholder after a Chargeback is
received for that transaction, even with Cardholder authorization.
We strongly recommend that you include a detailed rebuttal letter along with all pertinent
documents when responding to a transaction request or a Chargeback notification (e.g.,
rental agreement, imprinted portion of the invoice or Sales Draft; the portion signed by the
Cardholder; and the area where the authorization codes, with amounts and dates, are
located).
Due to the short time frames and the supporting documentation necessary to successfully
(and permanently) reverse a Chargeback in your favor, we strongly recommend the
following:
• Avoid Chargebacks by adhering to the guidelines and procedures outlined in these
Operating Procedures.
• If you do receive a Chargeback, investigate, and if you dispute the Chargeback, submit the
appropriate documentation within the required time frame.
• Whenever possible, contact the Cardholder directly to resolve the dispute, unless the
dispute relates to a Discover Network Cardholder, in which case direct contact with the
Discover Network Cardholder regarding the dispute is prohibited by Discover Network
Card Organization Rules.
• If you have any questions, call Customer Service,
10.1.4. Chargeback Reasons. This section outlines the most common types of Charge-
backs. This list is not exhaustive. For ease of understanding, we have combined like
Chargebacks into six groupings. We have included recommendations on how to reduce the
risk of Chargebacks within each group. These are recommendations only, and do not
guarantee that you will be able to prevent Chargebacks.
1. Authorization Issues: Proper Authorization procedures were not followed and valid
Authorization was not obtained.
The following scenarios could cause an Authorization Related Chargeback to occur:
• Authorization not obtained.
• Authorization was declined.
• Transaction processed with an expired card and Authorization ttias not obtained.
• Transaction was processed with an invalid account number and Authorization was not
obtained.
• Card Recovery Bulletin (CRB) or Exception File was not checked (transactions below
floor limit).
To reduce your risk of receiving an Authorization Related Chargeback:
• Obtain valid Authorization on the day of the transaction.
— Card Present Transactions - Authorization must be obtained on the transaction date for
the amount settled.
— Card Not Present Transact ions - Authorization must be obtained on the transaction date
for the amount.settled. However, if merchandise is being shipped, Authorization must
be obtained within seven calendar days of the transaction ship date.
• If a declined response is received, then request another form of payment from the
Cardholder.
• If a Referral response is received, then follow proper voice procedures to obtain a valid
Authorization and obtain an imprint of the card.
• "Pick -up" response indicates that the Issuer is requesting for the card to be retained and
returned back to them. The Card should not be accepted for payment. Additionally, you
can choose to retain the Credit Card and return it to the Acquirer.
• Merchants should not exceed any predetermined thresholds for specific terminal types as
specified by each Card Organization.
FDSISOOB1805(ia) 18
2. Cancellations and Returns: Credit was not processed properly or the Cardholder has
cancelled and/or returned items.
The following scenarios could cause a Cancellation and Return Related Chargeback
to occur:
• Cardholder received damaged or defective merchandise.
• Cardholder continued to be billed for cancelled recurring transaction.
• Credit transaction was not processed.
To reduce your risk of receiving a Cancellation and Return Related Chargeback:
• Issue Credit to the Cardholder for the same account as the purchase in a timely manner.
— Do not issue Credit to the Cardholder in the form of cash, check or in- store/
merchandise Credit as we may not be able to recoup your funds in the event the
transaction is charged back.
• Ensure customers are fully aware of the conditions for recurring transactions. Cancel
recurring billings as soon as notification is received from the Cardholder or as a
Chargeback, and Issue the appropriate Credit as needed to the Cardholder in a timely
manner.
• Pre - notify the Cardholder of billings within 10 days (Domestic) and 15 (International)
prior to billing, allowing the Cardholder time to cancel the transaction.
• Provide proper disclosure of your refund policy for returned/cancelled merchandise, or
services to the Cardholder at the time of transaction in accordance with applicable law.
— Card present, Cardholder signed the Sales Draft containing disclosure.
• If applicable, the words "NO EXCHANGE, NO REFUND," etc. must be clearly printed
in 1/4 -inch lettering on the Sales Draft near or above the Cardholder signature.
— Ecommerce, provide disclosure our website on same page as check out requiring
Cardholder to click to accept prior to completion.
— Card Not Present, provide cancellation policy at the time of the transaction.
— Provide cancellation numbers to Cardholder's when lodging services are cancelled.
• Ensure deliver)- of the merchandise or services ordered to the Cardholder.
3. Fraud: Transactions that the Cardholder claims are unauthorized; the account number
is no longer in use or is fictitious, or the merchant was identified as "high risk."
The following scenarios could cause a Fraud Related Chargeback to occur:
• Multiple transactions were completed with a single card without the Cardholder's
permission.
• Counterfeit card was utilized and proper acceptance procedures were not followed.
• Authorization was obtained; however, full track data was not transmitted.
• Cardholder states that they did not authorize or participate in the transaction.
NOTE: Visa Fraud Chargebacks: Chargeback representment rights do not exist if you
failed to fulfill a key entered retrieval request and /or provide a sales slip that contains all
required data elements. To preserve Chargeback representment rights, respond to all
retrieval requests with a clear legible copy of the transaction document that contains all
required data elements within the required timeframe that is specified by the retrieval
request.
To reduce your risk of receiving a Fraud Related Chargeback:
Card Present Transactions:
• Pre - notify the Cardholder of billings within ten (10) days
• American Express customers have the option to receive written notification of the
recurring transaction at least (10) days prior to submitting, or any time the Charge
amount exceeds a maximum amount that has been set by the cardholder.
• Obtain an Authorization for all transactions.
• If you are utilizing an electronic device to capture card information, swipe, dip or wave
all Card transactions through your electronic authorization device to capture Cardholder
information. When applicable ensure the displayed Cardholder number matches the
number on the Card.
• If you are unable to electronically capture the Card or if a Referral response is received,
imprint the Card using a valid imprinting device that will capture the embossed Card
and merchant information. Do not alter the imprint on the draft in any way Manually
entering the information into the terminal does not protect you from this type of
Chargeback. All pertinent information relating to the transaction must be written on the
manually imprinted draft (transaction date, dollar amount, authorization code and
merchandise description) along with the Cardholder signature.
NOTE: Do not imprint on the back of a signed Sales Draft. The imprint must be on the
transaction document that contains all transaction elements to prove the Card was present
at the time of the transaction.
• Obtain the Cardholder signature for all transactions; ensure the signature on the Sales
Draft matches the signature on the back of the Card.
• Process all transaction one time and do not Batch out transactions multiple times.
• Educate staff on procedures to eliminate point of sale (POS) fraud.
Card Not Present Transactions:
• Participation in recommended fraud mitigation tools:
— Verified by Visa Program
— MasterCard SecureCode
— Address Verification Services
— CVV2, CVC2 and CID Verification
NOTE: While transactions utilizing these tools may still be disputed, the service may assist
you with your decision to accept the Card for the transaction.
• Ensure you ship to the AVS confirmed address (bill to and ship to should match).
• Obtain Authorization for all transactions.
• Ensure merchant descriptor matches the name of the business and is displayed correctly
on the Cardholder statement.
• Ensure descriptor includes correct business address and a valid customer service number.
American Express offers fraud mitigation tools for both Card Present and Card Not Present
transactions to help verify that a Charge is valid. These tools help you mitigate the risk of
fraud at the point of sale, but are not a guarantee that a Charge is in fact valid or bona fide,
or that you wall not be subject to a Chargeback. For optimal use of the tools, please visit
American Express' Fraud Prevention Information at: wwwamericanexnress .com/fraudinfo.
4. Cardholder Disputes: Merchandise or services not received by the Cardholder,
Merchandise defective or not as described.
The following scenarios could cause a Cardholder Dispute Chargeback to occur:
• Services were not provided or merchandise was not received by the Cardholder.
• The Cardholder was charged prior to merchandise being shipped or merchandise was not
received by agreed upon delivery date or location.
• Cardholder received merchandise that was defective, damaged, or unsuited for the
purpose sold, or did not match the description on the transaction documentation/verbal
description presented at the time of purchase.
• Cardholder paid with an alternate means and their Card was also billed for the same
transaction.
• Cardholder cancelled service or merchandise and their Card was billed.
• Cardholder billed for a transaction that was not part of the original transaction document.
• The Cardholder claims to have been sold counterfeit goods.
• The Cardholder claims the terms of sale were misrepresented by the merchant.
To reduce your risk of receiving a Cardholder Dispute Related Chargeback:
• Provide Services or Merchandise as agreed upon and described to the Cardholder; clearly
indicate the expected delivery date on the sales receipt or invoice.
• Contact the Cardholder in writing if the merchandise or service cannot be provided or is
delayed, and offer the Cardholder the option to cancel if your internal policies allow.
• In the event that the Cardholder received defective merchandise or the merchandise
received was not as described; resolve the issue with the Cardholder at first contact.
• If the merchandise is being picked up by the Cardholder, have them sign for the
merchandise after inspection that it was received in good condition.
• Do not Charge the Cardholder until the merchandise has been shipped, ship according
to the agreed upon terms and obtain signed Proof of Delivery from the Cardholder.
• If unable to provide services or merchandise, issue a Credit to Cardholder in a timely
manner.
• Accept only one form of payment per transaction and ensure the Cardholder is only billed
once per transaction.
• Do not bill Cardholder for loss, theft or damages unless authorized by the Cardholder.
Ensure that a description of the service or merchandise provided is clearly defined.
S. Processing Errors: Error was made when transaction was processed or it was billed
incorrectly.
The following scenarios could cause a Processing Error Chargeback to occur:
• Transaction was not deposited within the Card Organization specified timeframe.
• Cardholder was issue a Credit Draft; however, the transaction was processed as a sale.
• Transaction was to be processed in a currency other than the currency used to settle the
transaction.
• The account number or transaction amount utilized in the transaction was incorrectly
entered.
• A single transaction was processed more than once to the Cardholder's account.
• Cardholder initially presented Card as payment for the transaction; however Cardholder
decided to use an alternate form of payment.
• Limited amount or self - service terminal transaction was processed for an amount which
is over the pre - determined limit.
To reduce your risk of receiving a Processing Error Related Chargeback:
• Process all transactions within the Card Organization specified timeframes.
• Ensure all transactions are processed accurately and only one time.
NOTE: In the event that a transaction was processed more than once; immediately issue
voids, transaction reversals or Credits.
• Ensure that credit transaction receipts are processed as Credits and sale transaction
receipts are processed as sales.
• Ensure all transactions received a valid Authorization Approval Code prior to processing
the transaction and obtain a legible magnetic swipe or imprinted Sales Draft that is signed.
• Do not alter transaction documentation or make an), adjustments unless the Cardholder
has been contacted and agrees to an), modifications of the transaction amount.
• Ensure limited amount, self - service and automated fuel dispenser terminals are set
properly to conform to the pre - determined limits.
FDSIS00B1805(ia) 19
10.2. Summary (Deposit) Adjustments /Electronic Rejects. Occasionally, it is nec-
essary to adjust the dollar amount of your surnmaries /Submissions (deposits) and credit or
debit your Settlement Account or settlement funds accordingly. The following is a list of the
most frequent reasons for Summary (Deposit) Adjustments/Electronic Rejects:
• Your summary reflected an arithmetic error.
• Submitted sales not included in your Agreement (e.g., American Express).
• The dollar amount is unreadable/illegible.
• The Cardholder's account number is unreadable /illegible.
• Duplicate Sales Draft submitted.
• Card number is incorrect /incomplete.
• Summary indicated credits, but no credits were submitted.
10.3. Disputing Other Debits and Summary Adjustments. In order to quickly
resolve disputed debits and Summary Adjustments, it is extremely important that the items
listed in this section be faxed or sent to the address listed on the notification.
If the Summary Adjustment is for an unreadable or incorrect Cardholder account number,
resubmit the corrected Sales Draft with your next deposit. Also, if the transaction is over
thirty (30) calendar days old, you must reauthorize and obtain a valid Authorization
Approval Code.
A clear and legible copy of the Sales Draft containing the following should be obtained from
your files:
• Date of sale /Credit;
• Cardholder's account number, name and signature;
• Total amount of the sale and description of goods and services; and
• Date and Authorization Approval Code.
Include a dated cover letter detailing the reasons for requesting a review of the debit or
Summary Adjustment and documentation to support your dispute. (You should retain a
copy of the correspondence and all documentation for your files.) If the inquiry is related
to prior correspondence, be sure to include the control number we previously used.
Immediately fax or mail the Sales Draft or Credit Drafts to the fax number or address
provided on your notification letter.
If you have any questions, please call the Customer Service number provided on the last
page of this Program Guide. If a Customer Service Representative informs you that add-
itional documentation is required in order to fully review the item, please immediately
submit your rebuttal and transaction documentation to the fax number or address listed on
the debit notification.
1 I.I. Change of Settlement Account Number. If you change the Settlement Account
in which you receive the proceeds of your transactions, you must call Customer Service or
your Relationship Manager immediately. If you accept payment types other than Visa,
MasterCard and Discover Network (such as the American Express Card and TeleCheck
Services), you are also responsible for contacting the Card Organizations or companies
governing those Cards to notify them of this change.
11.2. Change in Your Legal Name or Structure. You must call Customer Service or
your Relationship Manager and request a new Agreement.
11.3. Change in Company DBA Name,Address orTelephone /Facsimile Number.
To change your company or location DBA name, address (or a -mail address), or telephone/
facsimile number, you must send the request in writing to the address on your statement.
11.4. Other Change(s) in Merchant Profile. You must immediately notify us of any
change to the information on file with us in your merchant profile, including: (i) any new
lines or types of business; (ii) change in ownership; (iii) the opening, closing or liquidation
of business or any location; (iv) change in Card processing method (i.e., paper Sales Drafts
to POS Device); (v) voluntary or involuntary party to a bankruptcy case; (vi) entry into a
loan or other agreement with a Person that seeks to affect this Agreement; and/or (vii)
change from a business that exclusively conducts Card- present retail sales to one that
accepts Card sales by mail, telephone or Internet transactions. We retain the right to
terminate this Agreement if you fail to notify us of any change to the information in your
merchant profile.
I.S. Charges for Changes to Account Maintenance. You may be charged for any
changes referenced in this section or any other changes requested by you or otherwise
necessary related to account maintenance.
12. Card 0rganization Monitoring
MasterCard, Visa, Discover Network and American Express have established guidelines,
merchant monitoring programs and reports to track merchant activity such as, but not
limited to excessive Credit, reported fraud and Chargebacks, and increased deposit activity.
In the event you exceed the guidelines or engage in practices that could circumvent such
monitoring programs or submit suspicious transactions as identified by a Card Organization
or any related program or reports, you may be subject to: (i) operating procedure
requirement modifications; (ii) Chargebacks and/or increased fees; (iii) settlement delay
or withholding; (iv) termination of your Agreement; or (v) audit and imposition of fines.
13. Supplies
Placing Orders.
• To order additional supplies, call Customer Service when you have two months' inventory
left. We will ship you an adequate amount of supplies. The amount of supplies (based on
usage) on hand should not exceed a three- to six -month supply.
• In an EMERGENCY, please contact Customer Service using the number provided on the
last page of this Program Guide. If supplies are sent via an express delivery service, the
delivery charges will be debited to your account.
• You are responsible for unauthorized use of sales/Credit and summary Media. We
recommend that you store all supplies in a safe location.
• You may be charged for supplies and applicable shipping and handling charges.
14. Special Provisions for American Express
The provisions in this Section 14 apply to American Express Card acceptance and
Transactions.
14.1. Card Acceptance. If you elect to accept American Express Cards under the
Agreement, You must accept the American Express Card as payment for goods and services
sold (other than those goods or services identified under "Prohibited Uses of the American
Express Card" below), or (if applicable) for charitable contributions made, at all of your
establishments, except as expressly permitted by applicable law. You are jointly and severally
liable for the obligations of your establishments under the Agreement.
14.2. Arbitration Agreement for Claims Involving American Express. In the event
that you or we are not able to resolve a Claim this Section 14.2 explains how Claims may
be resolved through arbitration. You or we or American Express may elect to resolve any
Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator.
If arbitration is elected by any party to resolve a Claim, the parties understand and agree that
neither you nor we nor American Express will have the right to litigate or have a jury trial
on that Claim in court. Further, you, we, and American Express understand and agree that
the parties will not have the right to participate in a class action or in a representative
capacity or in a group of persons alleged to be similarly situated pertaining to any Claim
subject to arbitration under this Agreement. Arbitrator's decisions are final and binding,
with very limited review by a court, and once confirmed by a court of competent
jurisdiction, an arbitrator's final decision on a Claim is generally enforceable as a court
order. Other rights you, we, or American Express would have in court may also not be
available in arbitration
i. Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected
by the party electing arbitration. Claims will be resolved pursuant to this Section 14.2 and
the selected arbitration organization's Hiles in effect when the Claim is filed, except where
those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or
for other information. Claims may be referred to another arbitration organization if all
parties agree in writing, if jAmerican Express or we, on one hand, selects the organization
and you, on the other hand,] select the other within 30 days thereafter or if an arbitrator is
appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. H 1 -16 (FAA).
Any arbitration hearing will take place in New York, NY.
ii. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that
Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or
purported representative basis or on behalf of the general public or other persons allegedly
similarly situated. The arbitrator's authority is limited to Claims between you, us, and
American Express. An arbitration award and any judgment confirming it will apply only to
the specific case brought by you, us or American Express and cannot be used in any other
case except to enforce the award as between you, us and American Express. This prohibition
is intended to, and does, preclude you from participating in any action by any trade
association or other organization against American Express. Notwithstanding any other
provision in this Section 14.2, if any portion of these Limitations on Arbitration set forth
in this Section 14.2 (ii) is found invalid or unenforceable, then the entire Section 14.2 (other
than this sentence) will not apply, except that you, we, and American Express do not waive
the right to appeal that decision.
iii. Previously Filed Claims /No Waiver. You, we, or American Express may elect to
arbitrate any Claim that has been filed in court at any time before trial has begun or final
judgment has been entered on the Claim. You, we, or American Express ilia), choose to
delay enforcing or to not exercise rights under this Section 14.2, including the right to elect
to arbitrate a claim, without waiving the right to exercise or enforce those rights on any
other occasion. For the avoidance of any confusion, and not to limit its scope, this Section
14.2 applies to any class- action lawsuit relating to the "Honor All Cards," "non-
discrimination," or "no steering" provisions of the American Express Merchant Regulations,
or any similar provisions of any prior American Express Card acceptance agreement, that
was filed against American Express prior to the effective date of the Agreement to the extent
that such claims arc not already subject to arbitration pursuant to a prior agreement between
Merchant and American Express.
iv. Arbitrator's Authority. The arbitrator will have the power and authority to award
any relief that would have been available in court and that is authorized under this
Agreement. The arbitrator has no power or authority to alter the Agreement or any of its
separate provisions, including this Section 14.2.
v. Split Proceedings for Equitable Relief. You, we, or American Express may seek
equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve
the status quo pending completion of the arbitration. This Section 14.2 shall be enforced
by any court of competent jurisdiction.
vi. Small Claims. American Express will not elect arbitration for any Claim you properly
file in a small claims court so long as the Claim seeks individual relief only and is pending
only in that court.
vii. Governing Law /Arbitration Procedures /Entry of Judgment. This Section 14.2 is
made pursuant to a transaction involving interstate commerce and is governed by the FAA.
The arbitrator shall apply New York law and applicable statutes of limitations and honor
FDSISOOB1805(ia) 20
claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration
organization selected, as applicable to matters relating to evidence and discovery, not federal
or any state rules of procedure or evidence, provided that any party may ask the arbitrator
to expand discovery by making a written request, to which the other parties will have 15
days to respond before the arbitrator rules on the request. If your Claim is for $10,000 or
less, you may choose whether the arbitration will be conducted solely based on documents
submitted to the arbitrator, through a telephonic hearing, or by an in- person hearing under
the rules of the selected arbitration organization. At the timely request of a party, the
arbitrator will provide a written opinion explaining his/her award. The arbitrator's decision
will be final and binding, except for any rights of appeal provided by the FAA. Judgment
on an award rendered by the arbitrator may be entered in any state or federal court in the
federal judicial district where your headquarters or your assets are located.
viii. Confidentiality. The arbitration proceeding and all information submitted, relating
to or presented in connection with or during the proceeding, shall be deemed confidential
information not to be disclosed to any person not a party to the arbitration. All
communications, whether written or oral, made in the course of or in connection with the
Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator,
including any arbitration award or judgment related thereto, arc confidential and
inadmissible for any purpose, including impeachment or estoppel, in any other litigation
or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-
discoverable solely as a result of its use in the arbitration.
ix. Costs of Arbitration Proceedings. You will be responsible for paying your share of
any arbitration fees (including filing, administrative, hearing or other fees), but only up to
the amount of the filing fees you would have incurred if you had brought a claim in court.
American Express will be responsible for any additional arbitration fees. At your written
request, American Express will consider in good faith making a temporary advance of your
share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the
arbitrator for good cause.
x. Additional Arbitration Awards. If the arbitrator rules in your favor against American
Express for an amount greater than any final settlement offer American Express made before
arbitration, the arbitrator's award will include: (1) any money to which you are entitled as
determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable
attorneys' fees, costs and expert and other witness fees incurred by you.
A Definitions. For purposes of this Section 14.2 only, (i) "American Express' includes
its Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any
receivables, and all agents, directors, and representatives of any of the foregoing, (ih) "You"
includes your Affiliates, licensees, predecessors, successors, or assigns, any purchasers of
any receivables and all agents, directors, and representatives of any of the foregoing, and (iii)
"Claim" means any allegation of an entitlement to relief, whether damages, injunctive or
any other form of relief, against American Express or any other entity (including you or us)
that American Express has the right to join, including any allegation involving a transaction
using an American Express product or network or regarding an American Express policy
or procedure.
14.3. Treatment of the American Express Brand. Except as expressly permitted by
applicable late, you must not:
• indicate or imply that you prefer, directly or indirectly, any other payment products over
the Card,
• try to dissuade Cardholders from using the Card,
• criticize or mischaracterize the Card or any of American Express' services or programs,
• try to persuade or prompt Cardholders to use any other payment products or any other
method of payment (e.g., payment by check),
• impose any restrictions, conditions, disadvantages or fees when the Card is accepted that
are not imposed equally on all other payment products, except for electronic funds
transfer, or cash and check,
• suggest or require Cardholders to waive their right to dispute any transaction,
• engage in activities that harm the American Express business or the American Express
Brand (or both),
• promote any other payment products (except your own private label card that you issues
for use solehv at your establishments) more actively than you promote the Card, or
• convert the currency of the original sale transaction to another currency when requesting
Authorization or submitting transactions (or both).
You may offer discounts or in -kind incentives from your regular prices for payments in
cash, ACH funds transfer, check, Debit Card or Credit Card, provided that (to the extent
required by applicable law): (i) you clearly and conspicuously disclose the terns of the
discount or in -kind incentive to your customers, (ii) the discount or in -kind incentive is
offered to all of your prospective customers, and (iii) the discount or in -kind incentive does
not differentiate on the basis of the issuer or, except as expressly permitted by applicable
law and Card Organization (e.g., Visa, MasterCard, Discover, JCB, American Express). The
offering of discounts or in -kind incentives in compliance with the terms of this section will
not Constitute a violation of the provisions set forth in the above section "Treatment of the
American Express Brand."
14.4. Prohibited Uses of theAmerican Express Card. You must not accept the Card
for any of the following:
• adult digital content sold via internet electronic delivery,
• amounts that do not represent bona fide sales of goods or services (or, if applicable,
amounts that do not represent bona fide charitable contributions made) at your
establishments. For example, purchases at your establishments by your owners (or their account.
family members) or employees contrived for cash flow purposes, or payments that you 14.8. C
have accepted in order to advance cash to Cardholders in connection with the transaction, acknowl
• amounts that do not represent bona fide, direct sales by your establishment to
Cardholders made in the ordinary course of your business,
• cash or cash equivalent (e.g., gold, silver, platinum, and palladium bullion and/or bars).
Collectible coins and jewelry are not prohibited,
• charges that the Cardholder has not specifically approved,
• costs or fees over the normal price of the goods or services (plus applicable taxes) that
the Cardholder has not specifically approved,
• damages, losses, penalties, or fines of any kind,
• gambling services (including online gambling), gambling chips, gambling credits, or
lottery tickets,
• unlawful /illegal activities, fraudulent business transactions or when providing the
goods or services is unlawful/illegal (e.g. unlawful/illegal online internet sales of
prescription medications or controlled substances; sales of any goods that infringe the
rights of a rights- holder under laws applicable to us, you, or the Cardholder; online
child pornography),
• overdue amounts or amounts covering returned, previously dishonored or stop - payment
checks (e.g., where the Card is used as a payment of last resort),
• amounts that represent repayment of a cash advance including, but not limited to, payday
loans, pawn loans or payday advances
• sales made by third parties or entities conducting business in industries other than yours.
• other items of which either we or American Express notifies you of,
• You must not use the Card to verify a customer's age.
14.S, American Express Transaction Data. The transaction data you collect to
facilitate the Charge must be or have been provided directly to you by the Cardholder. You
must not accept or have accepted transaction data from, nor shall you provide or have
provided transaction data to, any third parties other than your covered parties (as defined
in the Data Security Operating Policy (DSOP)). If you fail to comply with this requirement,
in addition to other rights and remedies regarding "monitoring. ", you may be charged a fee
as indicated on the Merchant Processing Application, we may suspend Card acceptance
privileges at your establishments, or terminate the Agreement. Where Cardholders pay you
using payment or "e- wallet" accounts (which Cardholders may have created by providing
Card- member information when the account was established), the transaction data
collected to facilitate the Card Not Present Charge has already been provided directly by the
Cardholder. You are not required to have the Cardholder re -enter the transaction data. All
information required by American Express evidencing one or more transactions, including
information obtained at the point of sale, information obtained or generated during
Authorization and Submission, and any Chargeback.
14.6. Treatment ofAmerican Express Cardholder Information. You acknowledge
that any and all American Express Cardholder information is confidential and the sole
property of the Issuer, American Express or any of its Affiliates. Except as otherwise
specified in the Agreement, you must not disclose Cardholder information, nor use nor
store it, other than to facilitate transactions at your establishments in accordance with the
Agreement.
14.7. Disclosure and Use of Data Collected UnderAgreement. We may disclose to
American Express data and information that you provide on your Application and that we
collect as part of performing American Express payment processing services or transaction
related services including information about you. American Express may use the
information that you provide in the Application at the time of setup to screen and /or
monitor you in connection with Card marketing and administrative purposes. American
Express also may use such information to perform its responsibilities in connection with
American Express Card acceptance, promote the American Express Network, perform
analytics and create reports, and for an)' other lawful business purposes, including
marketing purposes. American Express may otherwise use and share your information for
business purposes and as permitted by Applicable Law. American Express uses reasonable
administrative, technical and physical security- measures to protect Program Merchant
information consistent with the sensitivity of the information.
14.7.1. Consent for American Express to Contact You by Phone, eMail,Text or
Facsimile. American Express may use the information you provide in the Application (as
such information may be updated) to call you or send you communications or materials via
email, SMS, text or facsimile regarding American Express products, services and resources
available to you. You consent and agree to receive autodialed, automated and/or prerecorded
calls and communications (which may include SMS or text messages) at the telephone
number(s) you have provided. If you provide a fax number, you consent and agree to
receiving fax communications from American Express. In connection with the foregoing,
),on understand that the calls made or communications sent to you by American Express
may be subject to charges or fees by your telecommunications or other applicable service
provider that are your responsibility to pay. You understand that your consent under this
Section 14.7.1 is not a condition of purchasing or receiving any product or service or
entering into this Agreement.
Opt -Out: You may opt -out of receiving marketing related communications and materials
from American Express by calling Processor at the Customer Service Number stated in Part
IV, Section A.5 of the Program Guide. If you have opted -out, you may still receive messages
or communications from American Express related to important information about your
FDSISOOB1805(ia) 2
onversion to a Direct Relationship with American Express. You
edge and agree that upon written notice from us, you will be converted to a direct
American Express Card acceptance relationship with American Express if and when the
annual American Express Card charges that you submit under this Agreement are greater
than $1,000,000. You agree that , upon conversion, (i) you will be bound by American
Express' then - current Card Acceptance Agreement with respect to American Express
Transactions; (ii) American Express will set pricing and other fees payable by you for
American Express Card acceptance; and (iii) you will no longer be able to submit American
Express Card transactions under this Agreement, but this Agreement will continue in full
force and effect with respect to other payments and services you elected to receive on your
Application.
14.9. No Assignment of Payments. You acknowledge and agree that you shall not
assign to any third party any payments due to you under this Agreement as the result of
American Express Card transactions, and all indebtedness arising from American Express
Card charges will be for bona fide sales of goods and services (or both) at your
establishments and free of liens, claims, and encumbrances other than ordinary sales taxes;
provided, however, that you may sell and assign future transaction receivables to us, our
Affiliates and/or any other funding source that partners with us or our Affiliates.
14.10. Third Party Beneficiary Rights. American Express is a direct and intended third -
part), beneficiary of this Agreement, and may enforce any terms of this Agreement that
apply to American Express, including American Express Card acceptance and transaction
processing, directly against you.
14.11. Your Right to Opt Out of American Express Card Acceptance. You may
opt out of accepting American Express Cards at any time without directly or indirectly
affecting your rights to accept any other payment products. In order to opt out you must
complete the Limited Acceptance Form. To obtain a copy of this form you must call
Processor at the Customer Service Number stated in Part IV, Section A.5 of the Program
Guide.
14.12. Collections from American Express Cardholder. You may not bill or collect
from any American Express Cardholder for any purchase or payment on the American
Express Card unless a Chargeback has been exercised, you have fully paid for such Charge,
and you otherwise have the right to do so.
14.13. Completing a Transaction at the Point of Sale. All valid transactions begin
with a Cardholder's purchase at the point of sale. Whether the physical Card is used to
facilitate a Card present Charge, or the Cardholder provides his or her Cardholder
Information over the phone, via mail order, or the internet, the transaction must not be
completed without the Card and /or information provided by the Cardholder. To accept the
Card for charges at your establishments, at the point of sale, you must:
• Clearly and conspicuously, disclose all material terms of sale prior to obtaining an
Authorization, and
• Clearly and conspicuous]), inform Cardholders at all points of interaction (e.g., sales
conducted in person, over the internet, mobile or via mail or telephone order) what Entity
is making the sales offer, so that the Cardholder can clearly distinguish you from any
other party involved in the interaction (e.g., a vendor of goods or provider of services
you may engage, or another merchant seeking to conduct business with the Cardholder).
The transaction data you collect to facilitate the Charge must be or have been provided
directly to you by the Cardholder. You trust not accept or have accepted transaction data
from, nor shall you provide or have provided transaction data to, any third parties other
than your covered parties (as defined in the Data Security Operating Policy (DSOP)). If
you fail to comply with this requirement, you may be charged non - compliance or other
fees as indicated on the Merchant Processing Application and/or have your Card acceptance
privileges at required your establishments suspended or disentitled.
14.14. In Person Charges.
in- person charges refer to charges in which the Card and Cardholder are present at the
point of sale. An example of this is when a Cardholder presents a Card to the merchant at
a retail store. For all in- person charges, the Card must be presented. There are several ways
in which you can conduct the in- person Charge. The steps you take vary according to how
you go about conducting in- person charges: (electronic or kcy- entered charges).
14. IS. Electronic charges.
Electronic Point of Sale Systems automatically capture required information from the Card
so it can be used to request Authorization for the Charge. Electronic charges can be
conducted in a variety of ways depending on the type of Card presented.
• Magnetic Stripe Cards — contain Card Member and Card account information on the
stripe on the back of the Card, or in a contactless Chip embedded in the Card.
• Chip Cards — contain a Chip on which data is stored (including Card Member and Card
account information), which the Point of Sale System can read in order to guide the
processing of the Transaction.
Some Magnetic Stripe and Chip Cards may be read over the contactless interface of the
Point of Sale System. The Charge Record is then created from the information captured
during the electronic Charge.
14.16. Magnetic Stripe Card Charges
When presented with a Card at the point of sale you must:
• Verify that the Card is not visibly altered or mutilated
• Verify that the customer is the Cardholder (Cards are not transferable).
• Obtain an Authorization Approval
• Capture Magnetic Stripe data by swiping the Card (unless the Charge was already initiated
by waving the contactless chip Card in close proximity to the point of sale system).
• Match the Card number and the expiration date on the Card to the same information on
the Sales Draft.
• Ensure the name that prints on the Sales Draft matches the name on the front of the Card
except when the Cardholder name is not captured on the Sales Draft or for prepaid Cards
that do not show a name out their face.
• Validate the Card's presence by taking an imprint of the Card (the imprint is for your
records). Failure to validate the Card's presence by taking an imprint of the Card can
render merchant liable for Chargebacks if the Card- member disputes the Charge, except
when the Cardholder name is not captured on the Sales Draft or for prepaid Cards that
do not show a name on their face.
14.17. American Express Mobile Contactless Charges.
When presented with a contactless- enabled mobile phone, in addition to the "Magnetic
Stripe Card Charges" requirements, you must:
• Capture Magnetic Stripe or chip Card data by waving the contactless - enabled mobile
phone in close proximity to the contactless reader.
• Compare the signature (when obtained) on the Sales Draft with the signature on the
companion physical Card or a valid form of formal identification (e.g. driver's license).
You must not record or store the information from such formal identification in any way.
If a mobile contactless transaction cannot be processed for any reason, you should require
that the Cardholder provide the companion physical Card to complete the transaction.
14.18. American Express Contact Chip Charges.
When presented with a chip Card to be inserted into a chip Card reader, in addition to the
"Magnetic Stripe Card Charges" requirements, you must:
• Capture chirp Card data by inserting the Card into the chip Card reader, The point of sale
system will advise Cardholders to enter their PIN (a chip and PIN Charge) or sign for the
Charge (a chip and signature Charge).
• Chip and PIN Charges. Cardholders will enter their PIN into the point of sale system
using the keypad. If the chip and PIN Charge are unable to be completed due to a
technical problem, the point of sale system will show an error message.
• Chip and signature Charge. Failure to obtain a signature, when required, can render you
liable for Chargebacks if the Cardholder disputes the Charge. Obtaining a signature may
not be required if merchant's establishment and the Charge qualify for the No Signature
Program.
14.19. American Express Contactless Chip Charges.
When presented with a chip Card to be read via a contactless reader and the Charge qualifies
for the No Signature Program, in addition to the "Magnetic Stripe Card Charges"
requirements, you must:,
• Capture Magnetic Stripe or chip Card data using the contactless reader.
For charges that do not qualify under the No Signature Program, follow the relevant Card
acceptance procedures outlined in either:
• "Magnetic Stripe Card Charges," or
• "Contact Chip Card Charges."
14.20. American Express Key- Entered Charges.
If a Card cannot be read electronically, in addition to the "Magnetic Stripe Card Charges"
requirements, you must:
• Key enter Are data.
14.21. Keyed No Imprint for American Express Transactions.
• Your establishments may be eligible to participate in the American Express "Keyed No
Imprint Program." The "Keyed No Imprint Program" allows you to submit in- person
charges without taking an imprint of the Card if you meet the following Charge criteria:
• All Cards qualify for the "Keyed No Imprint Program."
• The Charge must be key - entered.
• The Charge Submission must include the appropriate indicator to reflect that the Card
and the Cardholder were present at the point of sale.
• The Charge Submission must include a valid approval, and;
• The CID Number must be confirmed as a positive match. Under the "Keyed No Imprint
Program," Chargebacks will not be exercised for such charges based solely on the estab-
lishment's failure to obtain an imprint of the Card. If a disproportionate amount or
number of disputed charges under the "Keyed No Imprint Program" occurs, you must
cooperate to reduce the number of disputed charges. If such efforts fail, you may be placed
in any of American Express' Chargeback programs or your participation in the "Keyed No
Imprint Program" may be modified or terminated.
14.22. Merchant Website Information Display Guidelines.
• An accurate description of the goods /services offered, including the currency type for the
transaction (e.g., U.S. Dollars). Transaction currency must be in U.S. Dollars.
• Your physical address in the U.S.
• An email address and a telephone number for customer service disputes.
FDSISOOB1805(ia) 22
• Return/refund policy.
• A description of your delivery policy (e.g., No COD, No over night).
• A description of your security practices (e.g., information highlighting security practices
you use to secure transactions conducted on the internet).
• A statement of known export restrictions, tariffs, and any other regulations.
• A privacy statement regarding the type of personal information collected and how the
information is used. Additionally, you must provide to customers the option to decline
being included in marketing campaigns or having their personal information included on
lists sold to third parties.
14.23. Aggregated Charges.
if you are classified as an internet industry, you may process aggregated charges, provided
the following criteria are met:
• Clearly disclose your intent and obtain written consent from the Card- member that their
purchases or refunds (or both) on the Card may be aggregated and combined with other
purchases or refunds (or both) before you request an Authorization.
• Each individual purchase or refund (or both) that comprises the aggregated Charge must
be incurred under the same merchant number and on the same Card.
• Obtain a pre - Authorization of no more than $15. 00
• Create a Sales Draft for the full amount of the aggregated Charge.
• The amount of the aggregated Charge must not exceed $15 or the amount for which you
obtained pre- Authorization.
• Submit each Sales Draft within our submission timeframe.
• Provide the Cardholder with an email containing the date, amount, and description of
each individual purchase or refund (or both) that comprises the aggregated Charge, and
the date and the amount of the aggregated Charge.
14.24. American Express Prepaid Card Security Features.
Although there are a number of unique prepaid Cards, all prepaid Cards share similar
features, except that Prepaid Cards may or may not be embossed, and the following features
may appear on the front or back of the Card (or a combination of both):
• The American Express logo generally appears in the bottom right corner.
• The words PREPAID or INCENTIVE will generally be shown above the American Express
logo.
• Cards pre - loaded with funds may show the dollar amount or the total points (reloadable
Cards generally will not show a number).
• The CID Number will appear usually above the Card number or above the logo.
• The Card number appears on the Card.
-The valid date or expiration date appears on the Card.
• The recipient's name or company name may appear on the Card.
14.25. American Express Processing Prepaid Cards
Prepaid Cards are available for a variety of uses: gifting, travel, incentive, etc. All American
Express prepaid Cards show the American Express "Blue Box" logo either on the face or
back of the prepaid Card. Prepaid Cards may or may not be embossed. Most prepaid Cards
can be used for both in -store and online purchases. Prepaid Cards are valid through the
date on the Card. Simply swipe the Card at the point of sale just like any other Card. A
prepaid Card must be tendered for an amount that is no greater than the funds available on
the Card.
• Instruct Cardholders that, before making a purchase, they must check their remaining
funds by calling the twenty -Four (24) hour, toll -free number on the back of the Card,
checking online or using the mobile app offered by their Issuer, where available.
• Because prepaid Cards are pre - funded, if you receive a decline when seeking Author-
ization, ask the customer to call the toll -free number on the back of the Card to confirm
that the purchase price does not exceed the available funds on the prepaid Card.
• If the prepaid Card does not have enough funds to cover the purchase price, process a split
tender transaction or request an alternative form of payment.
• You must create a Sales Draft for a prepaid Card as you would any other Card.
• Be on the lookout for Suspect Transactions.
14.26. American Express Policies and Procedures for Specific Industries. This
Section 14.26 states additional American Express policies and procedures applicable to
merchants classified in specific industries. All other provisions and requirements of this
Agreement apply to these merchants as well. To the extent possible, the provisions of this
Section 14.26 and the other provisions of the Agreement applicable to American Express
transactions shall be interpreted to give each their full effect. However, if a conflict is
deemed to exist between them, then the provisions of this Section 14.26 shall govern.
14.26.1. Auto dealers: This section applies to merchants classified in an auto dealer
industry.
The following requirements will apply to charges for the down payment or the entire
purchase price of new and used motorvehicles. You may accept the Card for down payment
of a motor vehicle, subject to the following provisions:
• You must not submit a Charge for the down payment price of a used motor vehicle unless
and until you have a written agreement/bill of sale signed by the Cardholder setting forth
the terms of the sale, including down payment price, and your cancellation policy.
• In addition to its other Chargeback rights, American Express also has Chargeback rights
for any portion of the Charge for the down payment price of a used motor vehicle which
is disputed by the Cardholder, if such disputed charge cannot be resolved in your favor
based upon unambiguous language contained in the written agreement/bill of sale.
• Should a Cardholder exercise his or her right to rescind the written agreement/bill of sale
during any rescission period set forth in the Cardholder's agreement with you or at law,
you shall submit a Credit to us promptly.
• If American Express has classified you as an auto dealer of used motor vehicles
exclusively, the down payment must not exceed 50% of the full purchase price of the
motor vehicle.
• If the Cardholder denies making or authorizing the Charge, American Express will have
Chargeback rights for such Charge in addition to our other Chargeback rights
• You may also accept the Card for the entire purchase price of a new or used motor vehicle,
subject to the following provisions:
• You are classified as an auto dealer of new or new and used motor vehicles (i.e. Your
dealership sells new motor vehicles exclusively or both new and used motor vehicles).
• The amount of the Charge does not exceed the total price of the motor vehicle after
deduction of applicable discounts, taxes, rebates, cash down payments, and trade -in
values.
• You must not submit a Charge for the entire purchase price of a new or used motor vehicle
unless and until you have a written agreement/bill of sale signed by the Cardholder setting
forth the terms of the sale, including purchase price, delivery date and your cancellation
policy.
• In addition to other Chargeback rights, American Express also has Chargeback rights for
any portion of the Charge for the entire purchase price of a new or used motor vehicle
which is disputed by the Cardholder, if such disputed Charge cannot be resolved in your
favor based upon unambiguous language contained in the written agreement/bill of sale.
• Should a Cardholder exercise his or her right to rescind the written agreement/bill of sale
during any rescission period set forth in the Cardholder's agreement with you or at law,
you shall submit a Credit to us promptly.
• If the Cardholder denies making or authorizing the Charge and you have not transferred
title or physical possession of the motor vehicle to the Cardholder; American Express
will have Chargeback rights for such Charge in addition to its other Chargeback rights.
14.26.2. Business -to- Business (B2B) /Wholesale Distribution
If you are classified in the business -to- business (13213) or wholesale distribution industries,
and American Express determines that you are not in the telecommunications industry,
then notwithstanding the prohibition in Section 14.4, "Prohibited Uses of the Card ", you
may accept the Card for overdue amounts to the extent that acceptance of overdue amounts
is a common practice in your industry and does not constitute an attempt to obtain payment
from the Cardholder whose prior methods of payment have, in American Express' rea-
sonable judgment, been difficult to collect or uncollectible. An indicator of such difficulty,
for example, may be the fact that you have sent a customer account to collections.
To minimize your risk of a Chargeback with B2B Charges, always:
• Obtain a signature for all in- person charges. For Card Not Present Charges, obtain Proof
of Delivery, and
• Maintain clear and accurate records of orders and returns.
Notwithstanding the restriction in Section 6, you must not submit any Charge until the
goods have been shipped or services have been provided to the Cardholder. To the extent
that you have clearly disclosed your intentions to the Cardmember and the Cardholder
agrees, then you may submit the following types of Charges to us before you ship the goods
to the Card - member:
• Charges representing deposits on custom and special orders (so long as you comply with
applicable law) or goods not in inventory at the time the order is placed.
• Charges representing advance, partial, or full payment for goods that the Cardholder
requests you to ship at a later date.
14.26.3. Insurance
This section contains provisions specific to establishments that are classified in the
insurance industry If any of your goods or services are sold or billed by independent
agencies, then you must provide to American Express a list of such independent agencies
and notify us of any subsequent changes in the list. American Express may use this list to
conduct mailings that encourage such independent agencies to accept the Card.
American Express may mention your name in such mailings, and you must provide us with
a letter of endorsement or assistance as American Express may require.
You must use your best efforts to encourage independent agencies to accept the Card.
American Express acknowledges that you have no control over such independent agencies.
From time to time, and subject to prohibited uses of the Card, American Express may
establish joint marketing campaigns that promote Card acceptance specifically at your
establishments or, generally, at insurance companies. A necessary purpose for which you
submit Cardholder Information that is responsive to such joint marketing campaigns
includes American Express' use of that information to perform back -end analyses to
determine the success of such joint marketing campaigns.
American Express undertakes no responsibility on your behalf for the collection or timely
FDSISOOB1805(ia) 23
remittance of premiums. American Express will not be subject to any liability, under any
circumstances, for any claim arising from, or related to, any insurance policy issued by you
or your agencies..
If the Card is accepted as payment for fixed rate cash value life insurance policies or fixed
rate annuities under the Agreement, you represent and warrant to Processor that the fixed
rate cash value life insurance policies and fixed rate annuities for which the Card will be
accepted for premium payments are not securities requiring registration under the Securities
Act of 1933.
14.26.4.Oil /Petroleum
If you are classified in the oil and petroleum industry, American Express may place you in
the Fraud Full Recourse Program if you accept charges originating at a Customer Activated
Terminal (CAT) gas pump. American Express will not exercise Chargeback up to a certain
dollar amount for charges that qualify under the Oil Fraud Protection Program described
below.
Oil /Petroleum Requirements
If you are classified in the oil and petroleum industry, you must:
• Obtain a unique Merchant Account Number for your CAT gas pump sales. If you conduct
any other business at your establishment (e.g., convenience store sales, car washing
services), you must obtain a unique Merchant Account Number for those lines of
business.
• Submit dealer location data along with each Authorization request and each Submission
file. Dealer location data consists of your business':
• dealer number (store number)
• name
• street address
• city
• postal code
Oil /Petroleum Recommendations
American Express has implemented several policies and fraud prevention tools to assist in
combating fraud at the gasoline pump.
American Express recommends that you:
• Set a pre - Authorization request of $100 at your CAT gas pumps.
• For higher charges such as diesel, adjust the pre- Authorization amount to accommodate
the higher charges.
• Set your CAT gas pumps to shut off when they reach the pre - Authorization amount.
• Request a separate Authorization for purchases that exceed the original pre - Authorization
amount.
Oil Fraud Protection Program
The Oil Fraud Protection Program addresses counterfeit fraud Chargebacks at fuel pump
CATS. Under this program, American Express will not exercise Chargeback for the amount
of the Charge up to $100 provided that both the establishment and each Charge meet the
following criteria:
• The Authorization request meets the data requirements listed under CATS.
• The Authorization request must include the correct merchant category code (MCC) for
"automated fuel dispensers" (5542),
• The Issuer determines that the Card used to initiate the Charge was counterfeit, and,
• The establishment qualified for Chargeback protection under the program at the time of
the Charge, as follows:
For an establishment to qualify under the Oil Fraud Protection Program, it (i) must
authorize and submit Transactions under the unique Merchant Account Number (Seller
iD) assigned to the establishment, and (ii) must have, in a given month, a counterfeit fraud
to Charge volume ratio below 1 %. An establishment whose counterfeit fraud to Charge
volume ratio rises to or exceeds 1% in a given month will not qualify under the Oil Fraud
Protection Program until the ratio falls below 1% for three (3) consecutive months.
Notwithstanding the foregoing, the Oil Fraud Protection Program does not apply to
merchants that submit one Merchant Account Number (Seller ID) consolidated charges
from multiple establishments (i.e., central submitters) or to the establishments that those
merchants submit on behalf of. American Express offers a variety of fraud prevention tools
which may enable merchants to reduce fraud in order to qualify and retain eligibility for the
program.
14.26.5. Restaurants
If you are classified in the restaurant or bar industry, then the following Authorization
procedures apply if the final restaurant or bar Charge is no greater than the amount for
which you obtained Authorization plus 20% of that amount, no further Authorization is
necessary. If the final restaurant or bar Charge is greater than the amount for which you
obtained Authorization by more than 20 %, you must obtain Authorization for any
additional amount of the Charge that is greater than the original Authorization. When
submitting the Charge, only include the initial approval.
14.26.6. Telecommunications
If American Express classifies you in the Telecommunications industry, notwithstanding
anything to the contrary in the Agreement, American Express may place you in one or more
of the following Chargeback programs:
Partial Immediate Chargeback Program for an amount of $50 or less; or Fraud Full Recourse
Program
• American Express may establish audit procedures determined in American Express'
discretion to ensure that no charges except for recurring billing charges are submitted
under the Merchant Account Number designated for recurring billing charges.
• We may request that you provide us with a list of Affiliates and the list you provide must
include any agency in the geographic area where you offer any telecommunications
services.
14.26.7. Government/Utilities /Education
This section applies to merchants classified in the government, utilities, or certain education
industries (i.e. higher education, private school - kindergarten to grade 12). Industry MCCs
4900 — Public Utility, 8211 — Elementary and Secondary Schools, 8220 — Colleges and
Universities, 8244 — Business Schools, 8249 — Trade Schools, 9211 — Court Costs, 9222 —
Fines, 9311 — Tax Payments, 9399 — Government Services.
Customers should feel free to use all forms of payment that you accept without being
penalized for choosing a particular form of payment. To promote consumer choice, you are
generally prohibited from imposing any restrictions, conditions, or disadvantages when the
Card is accepted that are not imposed equally on all other payment products. See
"Treatment of the American Express Brand ".
Merchants in these specific industries may assess convenience fees on charges, provided that
they comply with the other requirements of this section, as follows:
• Merchants must not impose a higher convenience fee on charges than it imposes on other
payment products, except for Automated Clearing House funds transfers, cash, and
checks.
• Merchants classified as government Entities, including government utilities, and privately
owned utilities may assess convenience fees on all Charges.
• Merchants classified as educational institutions may assess convenience fees only on
charges for tuition, room and board, school lunch payments or other mandatory fees.
• You must clearly disclose the amount of convenience fees to the customer and give the
customer the opportunity to cancel the Charge if the customer does not want to pay the
convenience fee.
Any explanation, verbal or written, describing why the convenience fee is being assessed,
or how it is calculated, must characterize the convenience fee as an assessment to cover your
administrative costs and not as an assessment to cover your cost of accepting the Card.
You must obtain separate Authorizations and Approval codes for each of the principal
charges and the convenience fee. Furthermore, the descriptor on the convenience fee must
clearly state that it is a convenience fee (e.g., Official Payments — City of X (principal
payment) and Official Payments Convenience Fee (convenience fee)).
Your third- party service provider can only assess a convenience fee when it accepts the
Card for the foregoing charges in compliance with the requirements of this section.
14.26.8. Internet/Online Pharmacies
If it is determined that you are an internet/online pharmacy merchant that accepts the Card
for sales of prescription medications (as defined by applicable law) in the Card Not Present
environment:
• You must be certified by the Verified Internet Pharmacy Practice Sites program of the
National Association of Boards of Pharmacy (wwwnabp.net), or,
• You or your authorized representative must attest that you comply with the licensing and
inspection requirements of (i) U.S. federal law and the state in which you are located and
(ff) each state to which you dispense pharmaceuticals.
Upon request, you must promptly provide documentation that you fulfill the foregoing
requirements. Failure to provide this documentation promptly may result in suspension or
disentitlement of Card acceptance privileges. Specific procedures exist for transaction
processing by interneUonline merchants.
Online /mail order tobacco retail
If you are classified or it is otherwise determined that you are an online or mail order (or
both) tobacco or e- cigarette merchant, then you must provide the website address of the
online store from which you sell your tobacco products. If you website facilitates tobacco
sales, you will be required on request to provide an executed and notarized Affidavit of
Compliance with Laws - Online/Mail Order Tobacco. If you fail to complete the Affidavit,
Card acceptance privileges may be suspended. American Express may monitor your
website.
14.27. American Express- Excessive Disputes. You may be subject to various fees and
assessments as set forth on the Application, including fees for excessive disputes. Some
fees and assessments are for special products or services, while others may be applied based
upon non - compliance of American Express policies and procedures. Many non - compliance
fees and assessments can be avoided by correcting the actions that are causing such non-
compliance.
14.28. American Express Right to Modify or Terminate Agreement. American
Express has the right to modify the Agreement with respect to American Express Card
transactions or to terminate your acceptance of American Express Card transactions and to
require Processor to investigate your activities with respect to American Express Card
transactions.
FDSISOOB1805(ia) 24
B. CARD GENERAL TERMS
In addition to the preceding Operating Procedures, our Agreement with you includes the
following General Terms. If you fail to follow any of the provisions of the Operating
Procedures or General Terms, you may incur certain liabilities and we may terminate our
Agreement.
Subject to Card Organization Rules, Services may be performed by us, our Affiliates, our
agents, or other third parties we may designate from time to time in connection with this
Agreement.
Operating Card
Organization You agree to follow all requirements of this Agreement in connection with each Card
transaction and to comply with all applicable Card Organization Rules, including without
limitation, the data security requirements described in Section 4. From time to time, we may
amend the Operating Procedures, by providing you with at least 20 days' prior written
notice, and those provisions will be deemed incorporated into this Agreement. However, for
changes in the Card Organization Rules or for security reasons, certain changes in Card
procedures may become effective on shorter notice. If there are any inconsistencies between
the General Terms and the Operating Procedures, the General Terms will govern. You are
responsible for staying apprised of all applicable changes to the Card Organization Rules
and maintaining compliance with the Card Organization Rules. Card Organization Rules
may be available on web sites such as
http• / /usa visa con/ merchants / merchant- supl2ort/international-ol2erating regulations jsp
and http://www.mastercard.com/us/merchant/supl2ort/rules.hLMI.
These links may change from time to time.
17. Settlement of Card Transactions
17.1. We wiil only be required to settle Card transactions for Card types specified in your
Application. Promptly after presentment of Sales Drafts pursuant to the Operating
Procedures, we will initiate a transfer of the applicable settlement funds to you.
17.2. Unless otherwise agreed to in writing to the contrary, all discount fees are deducted
daily. All settlements for Visa, MasterCard, Discover Network and American Express Card
transactions will be net of Credits, Summary Adjustments, applicable discount fees when
due, Chargebacks and any other amounts then due from you. We may also set off from any
payments otherwise due, any amounts owed to any of our respective Affiliates, whether or
not arising out of or related to this Agreement.
17.3. All credits to your Settlement Account or other payments to you are provisional and
are subject to, among other things, our right to deduct our fees, our final audit, Chargebacks
(including our related losses), and fees, fines and any other charge imposed on us by the
Card Organizations as a result of your acts or omissions. You agree that we may debit or
credit your Settlement Account for any deficiencies, overages, fees, pending Chargebacks
and any other amounts owed to us or any of our respective Affiliates, or we may deduct such
amounts from settlement funds or other amounts due to you from us, or our respective
Affiliates. You further agree we can offset an)' amounts owed to us or our Affiliates related
to activity in other accounts maintained in the name of or guaranteed by you, any of your
principals, guarantors or authorized signors. Alternatively, we may elect to invoice you for
any such amounts, net due 30 days after the invoice date or on such earlier date as may be
specified.
17.4. We will not be liable for any delays in receipt of funds or errors in debit and credit
entries caused by you or any Person.
17.5. In addition to any other remedies available to us under this Agreement, you agree that
should any Event of Default (see Section 24.4) occur, we may, with or without notice,
change processing or payment terms and/or suspend credits or other payments of any and
all funds, money and amounts now due or hereafter to become due to you pursuant to the
terms of this Agreement, until we have had reasonable opportunity to investigate such
event.
17.6. You acknowledge and agree that transfers to and from the Settlement Account shall
be based on the account number and routing number supplied by you. We are not
responsible for detecting errors in any Settlement Account information you provide,
including the account numbers and routing numbers, even if any of those numbers do not
correspond to the actual account or financial institution identified by name.
17.7. This Agreement is a contract whereby we arc extending financial accommodations
to you within the meaning of Section 365(c) of the U.S. bankruptcy code. Your right to
receive any amounts due or to become due from us is expressly subject and subordinate to
Chargeback, setoff, lien, security interest and our rights to withhold settlement funds under
this Agreement, without regard to whether such Chargeback, setoff, lien, security interest
and the withholding of settlement funds rights are being applied to claims that arc
liquidated, unliquidated, fixed, contingent, matured or unrnatured.
18. Exclusivity
During the term of this Agreement, you shall use us as your exclusive provider of all Services.
19. Fees; Adjustments; Collection of Amounts Due
19.1. In consideration of the Services provided by us, you shall be charged, and hereby
agree to pay us any and all fees set forth in this Agreement (for the purposes of clarity, this
includes the Application and any additional pricing supplements or subsequent
communications), all of which shall be calculated and payable pursuant to the terms of
this Agreement and any additional pricing supplements or subsequent communications.
If a transaction fails to qualify for your anticipated interchange levels or you inadvertently
or intentionally accept a transaction other than the type anticipated for your account
(including a different Card type), then, as applicable to your pricing method, you will be
charged a higher interchange, Discount Rate or Non - Qualified Interchange Fee, as well any
applicable surcharge for that transaction, all as further described in Section A.3 of Part IV
of this Agreement and in the Application. With respect to inadvertent or intentional
acceptance of a transaction other than the type anticipated for your account (including a
different Card type), you will also be subject to payment to us of our then- current
transaction fee(s) with respect to such Card and/or transaction and be liable, obligated and
responsible under this Agreement for any such transaction to the same extent as you would
be if it was of a Card type elected and approved.
For more information on Visa's and MasterCard's interchange rates, please go to
www.visa.com and www.mastercard.com.
19.2. All authorization fees will be charged for each transaction that you attempt to
authorize. All capture fees will be charged for each transaction that you transmit to us for
settlement. If you are being billed a combined fee for both the authorization and capture of
a transaction, the authorization and capture must be submitted as a single transaction,
otherwise the authorization and the capture will each be charged separately. You are
responsible for utilizing software or services that will correctly submit these transactions to
achieve the combined billing.
19.3. The fees for Services set forth in this Agreement are based upon assumptions
associated with the anticipated annual volume and average transaction size for all Services
as set forth in this Agreement and your method of doing business. If the actual volume or
average transaction size are not as expected or if you significantly alter your method of
doing business, we may adjust your discount fee and transaction fees without prior notice.
19.4. The fees for Services set forth in this Agreement may be adjusted to reflect increases,
or new fees imposed by Card Organizations, including without limitation, interchange,
assessments and other Card Organization fees, or to pass through increases or new fees
charged to us by other Persons related to the Services. All such adjustments shall be your
responsibility to pay and shall become effective upon the date any such change or addition
is implemented by the applicable Card Organization or other Person as specified in our
notice to you.
9.S. Subject to Section 24.3, we may also increase our fees or add new fees for Services
for any reason at any time, by notifying you thirty (30) days' prior to the effective date of
any such change or addition.
19.6. If you receive settlement funds by wire transfer, we may charge a wire transfer fee per
wire.
19.7. To the extent the Automated Clearing House ( "ACH ") settlement process is used to
effect debits or credits to your Settlement Account, you agree to be bound by the terms of
the operating rules of the National Automated Clearing House Association, as in effect from
time to time. You hereby authorize us to initiate credit and debit entries and adjustments
to your account through the ACH network and/or through direct instructions to the
financial institution where your Settlement Account is maintained for amounts due under
this Agreement and under any agreements with us or our respective Affiliates for any
products or services, as well as for any credit entries in error. You hereby authorize the
financial institution where your Settlement Account is maintained to effect all such debits
and credits to your account. This authority will remain in full force and effect until we have
given written notice to the financial institution where your Settlement Account is
maintained that all monies due under this Agreement and under any other agreements with
us or our respective Affiliates for any products or services have been paid in full. You are
solely responsible to inform us in writing if you want any fees or other adjustments to be
debited from an account other than your Settlement Account.
19.8. You agree to pay any fines imposed on us by any Card Organization resulting from
Chargebacks and all fees, fines and other charges imposed on us by a Card Organization
With respect to your acts or omissions. You are also responsible for all fees, fines, and other
charges imposed on us as a result of acts or omissions by your agents or third parties.
19.9. If your Chargeback percentage for any line of business exceeds the estimated industry
Chargeback percentage, you shall, in addition to the Chargeback fees and any applicable
Chargeback handling fees or fines, pay us an excessive Chargeback fee for all Chargebacks
occurring in such month in such line(s) of business. Each estimated industry Chargeback
percentage is subject to change from time to time by us in order to reflect changes in the
industry Chargeback percentages reported by Visa, MasterCard, American Express or
Discover New ork. Your Chargeback Percentage will be calculated as the larger of (a) the
total Visa, MasterCard, American Express and Discover Network Chargeback items in any
line of business in any calendar month divided by the number of Visa, MasterCard,
American Express and Discover Network transactions in that line of business submitted
that month, or (b) the total dollar amount of Visa, MasterCard, American Express and
Discover Network Chargebacks in any line of business received in any calendar month
divided by the total dollar amount of your Visa, MasterCard, American Express and
Discover Network transactions in that line of business submitted in that month.
19.10. You agree to promptly and carefully review your merchants statements or other
documents provided or made available to you (physically, electronically or otherwise
provided by Us or others) reflecting Card transaction activity, including, activity in your
Settlement Account. If you believe any adjustments should be made with respect to your
Settlement Account, you must notify us in writing within sixty (60) days after any debit or
credit is or should have been effected or such shorter period as provided in the terms and
conditions that govern such account. If you notify us after sixty (60) days, we shall have
no obligation to investigate or effect any adjustments. Any voluntary efforts by us to assist
you in investigating such matters shall not create any obligation to continue such
investigation or an), future investigation.
FDSISOOB1805(ia) 25
19.11. If you do not pay us all fees and any other amounts due under this Agreement
within thirty (30) days of the date of our merchant statement or other statement setting
forth the amount due, then we may, in our sole discretion, charge you interest, for such
time that the amount and all accrued interest retrain outstanding at the lesser of (i) 12%
APR, or (if) the maximum rate permitted by applicable law.
19.12. Other Debits. We may also debit your Settlement Account or your settlement funds
in the event we are required to pay Card Organization fees, charges, fines, penalties or other
assessments as a consequence of your sales activities. Such debits shall not be subject to any
limitations of time specified elsewhere in the Agreement, including, without limitation the
following, which we may add to or delete from this list as changes occur in the Card
Organization Rules or our Operating Procedures pursuant to Section 16:
• Card Organization fees, charges, fines, penalties, registration fees, or other assessments
including any fees levied against us or any amount for which you are obligated to
indemnify us.
• Currency conversion was incorrectly calculated.
NOTE: For Discover Network transactions, you are not permitted to convert from your
local Discover Network approved currency into another currency, nor may you quote the
price of a transaction in U.S. Dollars if completed in another approved currency
• Discount Rate not previously charged.
• Reversal of deposit posted to your account in error.
• Debit for Summary Adjustment not previously posted.
• Reversal of Credit for deposit previously posted.
• Debit for Chargeback never posted to your account.
• Debit for EDC Batch error fee.
• Card Organization Merchant Chargeback/fraud monitoring fees — excessive Chargeback
handling fees.
• Failure of transaction to meet Member Controller Authorization Service ( "MCAS ") —
Cardholder account number on exception file.
• Original transaction currency (foreign) not provided.
• Travel Voucher exceeds maximum value.
• Debit and/or fee for investigation and/or Chargeback costs related to this Agreement, or
for costs related to our collection activities in an amount no less than $100.00.
• Costs arising from replacement or damage to equipment rented.
• Payment of current or past due amounts for any equipment purchase, rental or lease.
• Incorrect merchant descriptor (name and/or city, state) submitted.
• Incorrect transaction date submitted.
• Shipping and handling fees.
• Costs or expenses associated with responding to any subpoena, garnishment, levy or
other legal process associated with your account in an amount no less than $150.00.
20. Chargebacks
20. I. You shall be responsible for reimbursing us for all transactions you submit that are
charged back. See the Operating Procedures for additional information regarding
Chargebacks and Chargeback procedures.
20.2. You shall reimburse us for any Chargebacks, return items, or other losses resulting
from your failure to produce a Card transaction record requested by us within the applicable
time limits.
21.1. Without limiting any other warranties hereunder, you represent, warrant to and
covenant with, us, and with the submission of each Sales Draft reaffirm, the following
representations, warranties and/or covenants:
21.1.1. each Card transaction is genuine and arises from a bona fide transaction permissible
under the Card Organization Rules by the Cardholder directly with you, represents a valid
obligation for the amount shown on the Sales Draft, preauthorized order, or Credit Draft,
and does not involve the use of a Card for any other purpose;
21.1.2. each Card transaction represents an obligation of the related Cardholder for the
amount of the Card transaction;
21.1.3. the amount charged for each Card transaction is not subject to any dispute, setoff
or counterclaim;
21.1.4. each Card transaction amount is only for respective merchandise or services
(including taxes, but without any surcharge) sold, leased or rented by you pursuant to your
business as indicated on the application and, except for any delayed delivery or advance
deposit Card transactions expressly authorized by this Agreement, that merchandise or
service was actually delivered to or performed for the Cardholder entering into that Card
transaction simultaneously upon your accepting and submitting that Card transaction for
processing;
21.1.5. with respect to each Card transaction, you have no knowledge or notice of any
fact, circumstance or defense which would indicate that such Card transaction is fraudulent
or not authorized by the related Cardholder or which would otherwise impair the validity
or collectability of that Cardholder's obligation arising from that Card transaction or relieve
that Cardholder from liability with respect thereto;
21.1.6. each Card transaction is made in accordance with these General Terms, Card
Organization Rules and the Operating Procedures;
21.1.7. each Sales Draft is free of any alternation not authorized by the related Cardholder;
21.1.8. you have completed one Card transaction per sale; or one Card transaction per
shipment of goods for which the Cardholder has agreed to partial shipments;
21.1.9. you are validly existing, in good standing and free to enter into this Agreement;
21.1.10. each statement made on the Application or other information provided to us in
support of this Agreement is true and correct;
21.1.1 I. you are not doing business under a name or style not previously disclosed to us;
21.1.12. you have not changed the nature of your business, Card acceptance practices,
delivery methods, return policies, or types of products or services sold requiring a different
MCC under Card Organization Rules, in a way not previously disclosed to us;
21.1.13. you will use the Services only for your own proper business purposes and will not
resell, directly or indirectly, any part of the Services to any Person; (NOTE: Factoring is
prohibited.)
21.1.14. you have not filed a bankruptcy petition not previously disclosed to us;
21.1.15. you own and control the Settlement Account, and no third party security interest
or lien of any type exists regarding the Settlement Account or any Card transaction.
21.1.16. you will not at any time during the term of this Agreement, or until all amounts
due under this Agreement have been paid in full, grant or pledge any security interest or
lien in the Reserve Account, Settlement Account or transaction proceeds to any Person
without our consent;
21.2. THIS AGREEMENT IS A SERVICE AGREEMENT. WE DISCLAIM ALL REPRE-
SENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER
PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUAL-
ITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON -
INFRINGEMENT OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED
INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, ANY SERVICES OR ANY GOODS PROVIDED BY A THIRD PARTY.
21.3. IN NO EVENT SHALL WE OR OUR AFFILIATES OR ANY OF OUR OR THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS,
BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS
OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES
THAT PAYMENT OF ANY EARLY TERMINATION FEE OR LIQUIDATED DAMAGES AS
PROVIDED ELSEWHERE IN THIS AGREEMENT SHALL NOT BE PROHIBITED BY THIS
PARAGRAPH.
21.4. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
(INCLUDING BUT NOT LIMITED TO SECTIONS 27 or 22.5), OUR CUMULATIVE
LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR
DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), REGARDLESS OF
THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED, (1) $50,000; OR (II)
THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THIS AGREEMENT FOR
SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING 12 MONTHS,
WHICHEVER 1S LESS.
21.5. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
(INCLUDING BUT NOT LIMITED TO SECTION 24), OUR LIABILITY FOR ANY DELAY
IN FUNDING TRANSACTIONS TO YOU FOR ANY REASON, OTHER THAN FOR ANY
REASON DESCRIBED IN SECTIONS 17.4 AND 17.6, WILL BE LIMITED TO INTEREST
COMPUTED FROM THE DATE THAT YOU SUBMIT THE TRANSACTION TO THE DATE
THAT WE FUND THE TRANSACTION AT THE RATE OF THE FEDERAL FUNDS AS SET
BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW YORK, FROM TIME TO TIME,
LESS ONE PERCENT (I"').
21.6. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
BANK IS NOT RESPONSIBLE, AND SHALL HAVE NO LIABILITY, TO YOU IN ANY WAY
WITH RESPECT TO NON -BANK SERVICES.
22. Confidentiality
22.1. Unless you obtain written consents from us and each applicable Card Organization,
Issuer and Cardholder, you must not use, disclose, store, sell or disseminate any Cardholder
information obtained in connection with a Card transaction (including the names, addresses
and Card account numbers of Cardholders) except for purposes of authorizing, completing
and settling Card transactions and resolving any Chargebacks, Retrieval Requests or similar
issues involving Card transactions, other than pursuant to a court or governmental agency
request, subpoena or order. You shall use proper controls for and limit access to, and render
unreadable prior to discarding, all records containing Cardholder account numbers and
Card imprints. You may not retain or store Magnetic Stripe data or Card Validation Codes
after a transaction has been authorized. If you store any electronically captured signature
of a Cardholder; you may not reproduce such signature except upon our specific request.
such information, may not be sold or disclosed to a Person as an asset upon a bankruptcy,
insolvency or failure of Client's business. Upon a bankruptcy, insolvency or failure of Client's
business, all Card transaction information must he returned to Servicers or acceptable proof
of the destruction of all Card transaction information must be provided to Servicers.
22.3. You will treat this Agreement, the Card Organization Rules and any information
supplied or otherwise made accessible by us or our agents as confidential, including without
limitation, (i) information about the products, services, operations, procedures, customers,
suppliers, sales, pricing, business plans and marketing strategies of Servicers, their
respective Affiliates and the customers, clients and suppliers of any of them; (ii) any
scientific or technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its confidentiality affords Servicers
a competitive advantage over its competitors; and (iii) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know -how, show -how and trade secrets,
whether or not patentable or copyrightable and will not disclose the same to any third
parties, provided, however, that these restrictions do not apply to information: (a) rightfully
obtained on a non - confidential basis from a Person and your agents and representatives,
which Person was not subject to a duty of confidentiality, (b) rightfully and independently
known by you on a non - confidential basis prior to its disclosure or (c) generally available
to the public other than through any disclosure by or fault of you, your agents or
representatives.
22.3.1. Our confidential information shall be used by you only to exercise your rights and
to perform your obligations hereunder. Client shall receive our confidential information in
confidence and not disclose the confidential information to any third party, except as may
be agreed upon in writing by us. Client shall safeguard all of our confidential information
using a reasonable degree of care, but not less than that degree of care used by it in
safeguarding its own similar information or material. Upon request by us or upon
termination of this Agreement, Client shall return to us or destroy all of our confidential
information in its possession or control.
22.3.2. The obligations of confidentiality and restrictions on use in this Section shall not
apply to any confidential information that: (i) was in the public domain prior to the date
of the Agreement or subsequently came into the public domain through no fault of Client;
(ii) was received from a third party free of any obligation of confidence of Client to the
third party and which third party, to Client's knowledge, was not under an obligation to keep
the information confidential; (iii) was already in Client's possession prior to receipt from
us; (iv) is required to be disclosed by law; regulation or court order after giving us as much
advance notice as practical of the possibility of disclosure; or (v) is subsequently and
independently developed by Client's employees, consultants or agents without use of or
reference to our confidential information.
22.3.3. Except as specifically provided for herein, this Section does not confer any right,
license, interest or title in, to or under our confidential information to Client. Except as
specifically provided for herein, no license is hereby granted to Client under any patent,
trademark, copyright, trade secret or other proprietary rights of ours.
22.3.4. Client acknowledges that breach of the restrictions on use or disclosure of any our
confidential information would result in immediate and irreparable harm to us, and money
damages would be inadequate to compensate for that harm. We shall be entitled to equitable
relief, in addition to all other available remedies, to redress any breach.
22.4. We may use data collected as part of performing payment processing or other
transaction- related services for you ( "Transaction Data ") for the purpose of providing
additional products and services to you, other merchants, or third parties. This includes
collecting, using, and de- identifying cardholder information, dates, amounts, and other
Transaction Data to provide you with analytic products and services as well as collecting and
using Transaction Data anonymized and aggregated with other merchants' transaction data
to provide you, other merchants, and third parties with analytic products and services.
22.5. You shall not assign to any Person, the rights to use the Marks of Servicers, our agents
or the Card Organizations.
22.6. All rights, title, and interest in and to all intellectual property related to the Services
(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 the Agreement, or employed by us 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, our exclusive
property.
22.7. Client agrees that we may obtain relevant information from an)' applicable
telecommunications provider utilized by Client, as necessary to investigate any allegation
of fraud, suspected fraud or other actual or alleged wrongful act by Client in connection
with the Services.
23. Assignments
23. I. Any transfer or assignment of this Agreement by you, without our prior written
consent, by operation of law or otherwise, is voidable by us. Any transfer of voting control
of you or your parent shall be considered an assignment or transfer of this Agreement.
Furthermore, you shall indemnify and hold us harmless from all liabilities, Chargebacks,
expenses, costs, fees and fines arising from such transferee's or assignee's Submission of
Card transactions to us for processing. For purposes of this Section 23, any transfer of
voting control shall be considered an assignment or transfer of this Agreement.
22.2. You acknowledge that you will not obtain ownership rights in any information 23.2. The payment Services provided by us require access to a single bank account in which
relating to and derived from Card transactions. Cardholder account numbers, personal we may initiate both credits and debits. You may not enter into an), agreement that would
information and other Card transaction information, including any databases containing require, in any circumstance or event, the transfer of any payments or proceeds from Card
FDSIS00B1805(ia) 26
transactions covered by this Agreement to the custody or control of an), Person. You may
not assign any rights, including the right of payment under this Agreement, to any other
person. In the event that you snake an assignment (or provide a security interest) of
receivables covered by this Agreement, then we may, at our option, elect to (a) refuse to
acknowledge such assignment unless accompanied by an Authorization to both initiate
debits or credits to the bank account of the assignee, (b) terminate this Agreement
immediately, or (c) charge for any transfers that we are called upon to make manually to
fulfill such an assignment at the rate of $100 per transfer.
23.3. Another Visa and MasterCard member may be substituted for Bank under whose
sponsorship this Agreement is performed with respect to Visa and MasterCard transactions.
Upon substitution, such other Visa and MasterCard member shall be responsible for all
obligations required of Bank for Visa and MasterCard transactions, including without
limitation, full responsibility for its Card program and such other obligations as may be
expressly required by applicable Card Organization Rules.
Subject to Card Organization Rules, we may assign or transfer this Agreement and our
rights, duties and obligations hereunder and/or may delegate or subcontract our rights,
duties and obligations hereunder, in whole or in part, to any Person, whether in connection
with a change in sponsorship, as set forth in the preceding paragraph, or otherwise, without
notice to you or your consent.
23.4. Except as set forth elsewhere in this Section and as provided in the following
sentence, this Agreement shall be binding upon successors and assigns and shall inure to
the benefit of the parties and their respective permitted successors and assigns. No assignee
for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession,
or other person charged with taking custody of a party's assets or business, shall have any
right to continue, assume or assign this Agreement.
24. Term; Events of Default 24.1. This Agreement shall become effective upon the date this Agreement is approved by
our Credit Department. You acknowledge that our Credit Department maintains a list of
business types that are unqualified for our Services. We reserve the right to immediately
terminate your account if it has been inadvertently boarded notwithstanding such Credit
policies.
24.2. The initial term of this Agreement shall commence and shall continue in force for
three years after it becomes effective. Thereafter, it shall continue until we or you terminate
this Agreement upon written notice to the other, or as otherwise authorized by this
Agreement. Should you fail to notify us in writing of your request to terminate you
acknowledge and agree you will continue to be charged fees pursuant to this Agreement
notwithstanding non- use of your account. If you have an equipment lease, termination of
this Agreement does not terminate that equipment lease.
24.3. Notwithstanding the above or any other provisions of this Agreement, we may
terminate this Agreement at any time and for any reason by providing 30 days' advance
notice to you. We may terminate this Agreement immediately or with shorter notice upon
an Event of Default as provided under Section 24.4 of this Agreement. In the event we
provide notice to you of any new fees or increases in existing fees for Services, pursuant to
Section 19.5, you may terminate this Agreement without further cause or penalty by
notifying us that you are terminating this Agreement prior to the effective date of such new
fees or increases. However, maintaining your merchant account, or your continued use of
the Services after the effective date of any such fee changes shall be deemed your acceptance
of such fee changes for the Services, throughout the term of this Agreement.
24.4. If any of the following events shall occur (each an "Event of Default "):
24.4.1. a material adverse change in your business, financial condition, or business
prospects; or
24.4.2. any assignment or transfer of voting control of you or your parent; or
24.4.3. a sale of all or a substantial portion of your assets; or
24.4.4. irregular Card sales by you, excessive Chargebacks, noncompliance with any
applicable data security standards, as determined by Servicers, or any Card Organization,
or any other Person, or an actual or suspected data security breach, or any other
circumstances which, in our sole discretion, may increase our exposure for your
Chargebacks or otherwise present a financial or security risk to us; or
24.4.5. any of your representations, warranties or covenants in this Agreement are
breached in any respect; or
24.4.6. you default in any material respect in the performance or observance of any tei in,
condition or agreement contained in this Agreement, including, without limitation, the
establishment or maintenance of funds in a Reserve Account, as detailed in Section 25; or
24.4.7. you default in any material respect in the performance or observance of any tern,
covenant or condition contained in any agreement with any of our respective Affiliates; or
24.4.8. you default in the payment when due, of any material indebtedness for borrowed
money; or
24.4.9. you file a petition or have a petition filed by another party under the U.S.
bankruptcy code or any other laws relating to bankruptcy, insolvency or similar
arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate
manner any petition filed against you in an involuntary case under such laws; apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of you or of a substantial
part of your property; or make a general assignment for the benefit of creditors; or take any
action for the purpose of authorizing any of the foregoing; or
24.4.10. your independent certified accountants shall refuse to deliver an unqualified
FDSISOOB1805(ia) 27
opinion with respect to your annual financial statements and your consolidated subsidiaries;
or
24.4.11. a violation by you of any applicable law or Card Organization Rule or our
reasonable belief that terrfnation of this Agreement or suspension of Services is necessary
to comply with any law including without limitation the rules and regulations promulgated
by the Office of Foreign Assets Control of the U.S. Department of the Treasury or your
breach, as determined by Servicers, of Section 38.2 ( "Compliance with Laws "), then, upon
the occurrence of (1) an Event of Default specified in subsections 24.4.4, 24.4.9 or 24.4.11,
we may consider this Agreement to be terminated immediately, without notice, and all
amounts payable hereunder shall be immediately due and payable in full without demand
or other notice of any kind, all of which are expressly waived by you, and (2) any other
Event of Default, this Agreement may be terminated by us giving not less than 10 days'
notice to you, and upon such notice all amounts payable hereunder shall be due and payable
on demand.
24.5. Neither the expiration nor termination of this Agreement shall terminate the
obligations and rights of the parties pursuant to provisions of this Agreement which by
their terms are intended to survive or be perpetual or irrevocable. Such provisions shall
survive the expiration or termination of this Agreement. All obligations by ),on to pay or
reimburse us for any obligations associated with transactions you have submitted to us will
survive termination of this Agreement until finally and irrevocably paid in full and settled.
24.6. If any Event of Default occurs, regardless of whether such Event of Default has been
cured, we may, in our sole discretion, exercise all of our rights and remedies under
applicable law, and this Agreement including, without limitation, exercising our rights
under Section 25.
24.7. In the event you file for protection under the U.S. bankruptcy code or any other laws
relating to bankruptcy, insolvency, assignment for the benefit of creditors or similar laws,
and you continue to use our Services, it is your responsibility to open new accounts to
distinguish pre and post filing obligations. You acknowledge that as long as you utilize the
accounts you established prior to such filing, we will not be able to systematically segregate
your post- filing transactions or prevent set -off of the pre - existing obligations. Iia that event,
you will be responsible for submitting an accounting supporting any adjustments that you
may claim.
24.8. The Card Organizations often maintain merchant lists such as the Member Alert To
Control High -risk (Merchants) ( "MATCH ") who have had their merchant agreements or
Card Acceptance rights terminated for cause. If this Agreement is terminated for cause, you
acknowledge that we may be required to report your business name and the names and
other information regarding its principals to the Card Organizations for inclusion on such
list(s). You expressly agree and consent to such reporting if you are terminated as a result
of the occurrence of an Event of Default or for any reason specified as cause by Visa,
MasterCard, Discover Network or American Express. Furthermore, you agree to waive and
hold us harmless from and against any and all claims which you may have as a result of such
reporting.
24.9. After termination of this Agreement for any reason whatsoever, you shall continue
to bear total responsibility for all Chargebacks, fees, Card Organization fines imposed on
us as a result of your acts or omissions, Credits and adjustments resulting from Card
transactions processed pursuant to this Agreement and all other amounts then due or which
thereafter may become due under this Agreement.
25.1. You expressly authorize us to establish a Reserve Account pursuant to the terms and
conditions set forth in this Section 25. The amount of such Reserve Account shall be set by
us, in our sole discretion, based upon your processing history and the potential risk of loss
to us as we may determine from time to time.
25.2. The Reserve Account shall be fully funded upon three (3) days' notice to you, or in
instances of fraud or suspected fraud or an Event of Default, Reserve Account funding may
be immediate. Such Reserve Account may be funded by all or any combination of the
following: (i) one or more debits to your Settlement Account or any other accounts held by
Bank or any of its Affiliates, at any financial institution maintained in the name of Client,
any of its principals, or any of its guarantors, or if any of same are authorized signers on
such account; (ii) any payments otherwise due to you, including any amount due from
TeleCheck; (iii) your delivery to us of a letter of credit; or (iv) if we so agree, your pledge
to us of a freely transferable and negotiable certificate of deposit. Any such letter of credit
or certificate of deposit shall be issued or established by a financial institution acceptable
to us and shall be in a form satisfactory to us. In the event of termination of this Agreement
by any party, an immediate Reserve Account may be established without notice in the
manner provided above. Any Reserve Account will be held by us for the greater of ten (10)
months after termination of this Agreement or for such longer period of time as is consistent
with our liability for your Card transactions and Chargebacks in accordance with Card
Organization Rules. We will hold funds pursuant to this Section 25 in master accounts)
with your funds allocated to separate sub accounts. Unless specifically required by law, you
shall not be entitled to interest on any funds held by us in a Reserve Account.
25.3. If your funds in the Reserve Account are not sufficient to cover the Chargebacks,
adjustments, fees and other charges and amounts due from you, or if the funds in the
Reserve Account have been released, you agree to promptly pay us such sums upon request.
25.4.1. To secure your obligations to us and our respective Affiliates under this Agreement
and an), other agreement for the provision of equipment, products or services (including
any obligations for which payments on account of such obligations are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under any bankruptcy act, state or federal law, common
law or equitable cause), you grant to us a first priority lien and security interest in and to
(i) the Reserve Account and (ii) any of your funds pertaining to the Card transactions
contemplated by this Agreement now or hereafter in our possession, whether now or
hereafter due or to become due to you from us. Any such funds, money or amounts now
or hereafter in our possession may be commingled with other funds of ours, or, in the case
of any funds held pursuant to the foregoing paragraphs, with any other funds of other
customers of ours. In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, we are hereby authorized by you at any time
and from time to time, without notice or demand to you or to any other Person (any such
notice and demand being hereby expressly waived), to set off, recoup and to appropriate and
to apply any and all such funds against and on account of your obligations to us and our
respective Affiliates under this Agreement and any other agreement with us our respective
Affiliates for any related equipment or related services (including any check services),
whether such obligations are liquidated, unliquidated, fixed, contingent, matured or
unmatured. You agree to duly execute and deliver to us such instruments and documents
as we may reasonably request to perfect and confirm the lien, security interest, right of set
off, recoupment and subordination set forth in this Agreement.
25.4.2. For sake of clarification and notwithstanding anything in the Agreement to the
contrary, in the event Servicers deduct, holdback, suspend, off set or set off any settlement
monies or amounts otherwise due you pursuant to the terms of this Agreement (collectively
"Set Off Funds "), you acknowledge that such Set Off Funds will be held in a commingled
Reserve Account(s) of Servicers.
25.4.3. If in replacement of or in addition to the first priority lien and security interest in
the Reserve Account, you grant to Servicers a first priority lien and security interest in and
to one or more certificates of deposit, the certificates of deposit shall be uncertificated and
shall be subject to an Acknowledgement of Pledge of Certificate of Deposit and Control
Agreement (the "Certificate of Deposit Control Agreement ") by, between and among
Customers, Servicers and the financial institution that has established and issued the
certificate of deposit. The form of the Certificate of Deposit Control Agreement and the
financial institution that will establish and issue the certificate of deposit shall be satisfactory
and acceptable to Servicers.
•
26.1. Upon request, you will provide us and our Affiliates, quarterly financial statements
within 45 days after the end of each fiscal quarter and annual audited financial statements
within 90 days after the end of each fiscal year. Such financial statements shall be prepared
in accordance with generally accepted accounting principles. You will also provide such
other financial statements and other information concerning your business and your
compliance with the terms and provisions of this Agreement as we may reasonably request.
You authorize us and our Affiliates to obtain from third parties financial and credit
information relating to you in connection with our determination whether to accept this
Agreement and our continuing evaluation of your financial and credit status. We may also
access and use information which you have provided to Bank for any other reason. Upon
request, you shall provide, and/or cause to be provided, to us and our Affiliates, or our
representatives or regulators (as well as those of the Card Organizations) reasonable access
to your or your providers' facilities and records for the purpose of performing an)' inspection
and/or copying of books and/or records deemed appropriate. In such event, you shall pay
the costs incurred by us or our Affiliates for such inspection, including, but not limited to,
costs incurred for airfare and hotel accommodations.
26.2. You will provide us with written notice of any judgment, writ, warrant of attachment,
execution or levy against any substantial part (25% or more in value) of your total assets
not later than three (3) days after you become aware of same.
27. Indemnification
27.1. You agree to indemnify and hold us and the Card Organizations harmless from and
against all losses, liabilities, damages and expenses: (a) resulting from the inaccuracy or
untruthfulness of any representation or warranty, breach of any covenant or agreement or
an)' misrepresentation by you under this Agreement; (b) arising out of your or your
employees' or your agents' negligence or willful misconduct, in connection with Card
transactions or otherwise arising from your provision of goods and services to Cardholders;
(c) arising out of your use of the Services; or (d) arising out of any third party
indemnifications we are obligated to make as a result of your actions (including
indemnification of any Card Organization or Issuer).
27.2. Subject to the limitations set forth in Section 21.4, we agree to indemnify and hold
you harmless from and against all losses, liabilities, damages and expenses resulting from
any breach of any warranty covenant or agreement or any misrepresentation by us under
this Agreement or arising out of our or our employees' gross negligence or willful
misconduct in connection with this Agreement provided that this indemnity obligation
shall not apply to Bank with respect to Non -Bank Services.
28. Special Provisions Regarding Non-Bank Cards
28. I. Non -Bank Card transactions are provided to you by Processor and not by Bank and
include transactions made using Discover Network, American Express, Voyager and WEX
Card types. The Services provided, transactions processed and other matters contemplated
under this Section 28 are subject to the rest of this Agreement, as applicable, except to the
extent the terms of this Section 28 directly conflict with another provision of this
Agreement, in which case the terms of this Section 28 will control; provided, however, that
W Bank is not a party to this Agreement insofar as it relates to Non -Bank Card services, and
Bank is no liable to you in any way with respect to such Services and (ii) you agree to pay
Processor any per item processing, authorization and other fees described in the Application
for any non - acquired transaction services you receive from Processor. For the purposes of
this section, the words "we," "our" and "us" refer only to the Processor and not to the Bank.
You authorize us to share information from your Application with American Express,
Discover Network and any otter Non -Bank Card Organization.
FDSISOOB1805(ia)
28
28.2. If you accept American Express, you understand that if, based upon your
anticipated Card transaction volume you do not qualify for our full service program but
have otherwise been approved for accepting American Express transactions, your
authorizations will be obtained from and funded by American Express. American Express
will provide you with its own agreement that governs those transactions. You understand
and agree that we are not responsible and assume absolutely no liability with regard to any
such transactions, including but not limited to the funding and settlement of American
Express transactions, and that American Express will charge additional fees for the services
they provide.
28.3. If you accept JCB, Diners Club International, UnionPay, BCcard, and Dinacard, you
agree to be bound by the Discover Network provisions of this Agreement. You also
acknowledge and agree that JCB, Diners Club International, UnionPay, BCcard, and
Dinacard transactions will be processed under and subject to Discover Network Card
Organization Rules.
28.4. If you accept Voyager and/or WEX Cards, you agree to be bound by the WEX and/or
Voyager rules. You also agree to be bound by all other provisions of this Agreement which
are applicable to WEX and/or Voyager.
28.5. If you execute a separate WEX Merchant Agreement (WEX Non Full Service
Program), you understand that we will provide such agreement to WEX, but that neither
we nor WEX shall have any obligation whatsoever to you with respect to processing WEX
Cards unless and until WEX executes your WEX Merchant Agreement. If WEX executes
your WEX Merchant Agreement and you accept WEX Cards, you understand that WEX
transactions are processed, authorized and funded by WEX. You understand that WEX is
solely responsible for all agreements that govern WEX transactions and that we are not
responsible and assume absolutely no liability with regard to any such agreements or WEX
transactions, including but not limited to the funding and settlement of WEX transactions.
You understand that WEX will charge additional fees for the services that it provides.
28.6. If you elect to participate in the WEX Full Service Program, the following terms and
conditions shall apply:
a) You shall provide, at your own expense, all equipment necessary to permit the electronic
acceptance of the WEX Cards, including the operation and maintenance of the
equipment, telecommunication link, and provision of all networking services;
b) All authorization request data for WEX Card sales must include WEX Cardholder
account number, vehicle number, Card expiration date, driver identification number;
and the amount of the transaction, date and time of the transaction, quantity of goods
sold, unit price, and product code (the "Authorization Request Data "). All manual WEX
Card sales (i.e., sales facilitated by a card imprinter) must include an Authorization
number or other approval code from WEX along with the aforementioned Author-
ization Request Data. The type of goods sold, quantity of goods sold, unit price /price
per gallon (if applicable), taxes, and any coupons presented within the product detail
of a transaction must be accurate. Product detail presented roust also equal the total
amount of the sale when calculated (i.e., Product qty x unit price must equal product
amount. Sum of all product amounts including taxes minus any coupons must equal
total transaction amount.);
c) You shall not submit a WEX Card sale for processing when a WEX Card is not presented
at the time of the WEX Card sale;
d) You shall complete a WEX Card sale only upon the receipt of an Authorization approval
message and not accept a WEX Card when an expired Card/decline message is received;
e) You shall not submit a WEX Card sale for processing until the goods have been
delivered or services performed;
f) You shall not accept a WEX Card where the WEX Card appears to be invalid or expired
or there is reasonable belief that the WEX Card is counterfeit or stolen;
g) You shall provide a copy of the receipt for a WEX Card sale, upon the request of the
Cardholder, to the extent permitted by applicable law, which shall not include the full
account number or driver identification number;
h) You shall require the Cardholder to sign a receipt when a WEX Card sale is not
completed by an island Card reader;
i) You shall take all commercially reasonable efforts to protect manual WEX Card sales
data from fraud or misuse;
j) You shall not divide the price of goods and services purchased in a single WEX Card sale
among two or more sales receipts or permit a WEX Card sale when only partial payment
is made by use of the WEX Card and the balance is made with another bank Card;
k) Client acknowledges that fuel tax removal at the point of sale is not permitted. For all
payment system product codes that are taxable, transaction dollar amount and price
per gallon (PPG) must contain the stun of the fuel cost and PPG inclusive of all
applicable Federal, State, County, Local and other fuel taxes.
1) You shall securely maintain a record of all WEX Card sales, including the Authorization
Request Data, for a period of one year and produce such records upon the reasonable
request of WEX;
m) You shall notify Processor of any errors contained within a settlement report within
forty -five (45) days of receipt of such report. Processor will not accept reprocessing
requests for WEX transactions older than 90 days;
n) You shall allow WEX to audit records, upon reasonable advance notice, related to the
WEX Full Service; and
o) You shall retransmit WEX Card sales data when reasonably requested to do so.
p) Client acknowledges and agrees that its sole remedies with respect to the WEX Full
Acquiring services shall be against Processor for the WEX Full Acquiring Services and
not WEX, except to the extent that WEX knows of any fraud related to the WEX Cards
and fails to provide notice of such fraud or WEX commits fraud in respect to the WEX
Full Acquiring Services.
28.7. If you accept Voyager Cards:
• In addition to the information stated in Section 1 (MasterCard, Visa, Discover Network,
and American Express Acceptance) of the Operating Procedures, you should check Fleet
Cards for any printed restrictions at the point of sale.
• in addition to the information provided under Section 1.5 (Special Terms) of the
Operating Procedures, you shall establish a fair policy for the exchange and return of
merchandise. You shall promptly submit credits to us for any returns that are to be
credited to a Voyager Cardholder's account. Unless required by law, you shall not give
any cash refunds to any Voyager Card holder in connection with a sale.
• In addition to the information required under Section 3.1 (Information Required) of the
Operating Procedures, the following information must be contained on the single page
document constituting the Sales Draft for Voyager transactions:
• All authorization request data for Voyager Card sales must include Voyager Cardholder
account number, Card expiration date, driver identification number; and the amount of
the transaction, date and time of the transaction, quantity of goods sold, unit price, and
product code (the "Authorization Request Data "). All manual Voyager Card sales (i.e.,
sales facilitated by a card imprinter) must include an Authorization number or other
approval code from Voyager along with the aforementioned Authorization Request Data.
The type of goods sold, quantity of goods sold, unit price/price per gallon (if applicable),
taxes, and any coupons presented within the product detail of a transaction must be
accurate. Product detail presented must also equal the total amount of the sale when
calculated (i.e., Product qty x unit price must equal product amount. Sum of all product
amounts including taxes minus any coupons must equal total transaction amount.)
• Client acknowledges that fuel tax removal at the point of sale is not permitted. For all
payment system product codes that are taxable, transaction dollar amount and price per
gallon (PPG) must contain the sum of the fuel cost and PPG inclusive of all applicable
Federal, State, County, Local and other fuel taxes
• If an increase in the number of Voyager transaction authorization calls from you not due
to our or Voyager system outages in excess of 15% for a given month as compared to the
previous month occurs, we may, in our discretion, deduct telephone charges, not to
exceed $.25 (25 cents) per call, for the increased calls, from your settlement of your
Voyager transactions.
• In addition to the information provided under Section 7 (Settlement) of the Operating
Procedures, settlement of Voyager transactions will generally occur by the fourth banking
day after we process the applicable card transactions. We shall reimburse you for the
dollar amount of sales submitted for a given day by you, reduced by the amount of
Chargebacks, tax exemptions, discounts, credits, and the fees set forth in the Application.
Notify processor of any errors contained with the Settlement Reports within thirty (30)
calendar days of receipt of such report. Neither we nor Voyager shall be required to
reimburse you for sales submitted more than sixty (60) calendar days from the date of
purchase.
• For daily transmission of sales data, you shall securely maintain true and complete records
in connection with the information required to be provided under this paragraph for a
period of not less than thirty -six (36) months from the date of the generation of the data.
You may store records on electronic media, if secure. You are responsible for the expense
of retaining sales data records and Sales Drafts.
• In addition to the scenarios identified in Section 10. 1.4 of this Program Guide that could
cause an authorization related Chargeback to occur, with respect to Voyager transactions,
Chargebacks shall be made in accordance with any other Voyager rules. Notwithstanding
termination or expiration of this paragraph or the Agreement, you shall remain liable for
all outstanding Chargebacks on Voyager transactions.
• In addition to the information provided under Section 21 (Representations; Warranties;
Covenants; Limitations of Liability; Exclusion of Consequential Damages) of the General
Terms, in no event shall our cumulative liability to you for losses, claims, suits,
controversies, breaches or damages for any cause whatsoever in connection with Voyager
transactions exceed the lesser of 510,000.00 or the Voyager transaction fees paid by you
to us for the two months prior to the action giving arise to the claim.
• Notwithstanding anything in this Agreement to the contrary our obligation to provide
services to you relating to any Fleet Card will terminate automatically without penalty to
us or the related Card Organization upon the earlier of (i) the termination or expiration
of our agreement with such Card Organization, (ii) at feast twenty (20) days prior written
notice by us to you; (iii) your failure to comply with material terms relating to such Fleet
Card transactions, or (iv) written notice, if a Card Organization discontinues its Card.
29, Special Provisions for Debit Card
The special provisions outlined in this Section 29 apply only to those Debit Card
transactions that are processed by a Cardholder entering a PIN unless the transaction is a
network supported PINless transaction. A PINless transaction is a Debit card transaction
that a merchant submits to us for settlement/funding transactions with neither a PIN nor
Signature. The Services provided, transactions processed and other matters contemplated
under this Section 29 are subject to the rest of this Agreement, as applicable, except to the
extent the terms of this Section 29 directly conflict with another provision of this
Agreement, in which case the terms of this Section 29 will control.
29.1. Debit Card Acceptance. Most, but not all, ATM Cards (Debit Cards) can be
FDSISOOB1805(ia) 29
accepted at the point of sale at participating locations. Examine the back of the Debit Card
to determine if the Card participates in a PIN Debit network that you are authorized to
accept. PiN Debit network Mark(s) are usually printed on the back of the Card. if the Debit
Card is valid and issued by a financial institution Issuer participating in a PIN Debit
network, you must comply with the following general requirements for all participating
PIN Debit networks, in addition to the specific requirements of that PIN Debit network:
• You must honor all valid Debit Cards when presented that bear authorized PIN Debit
network Marks.
• You must treat transactions by Cardholders from all Issuers in the same manner.
• You may not establish a minimum or maximum transaction amount for Debit Card
acceptance.
• You may not require additional information, besides the PIN, for the completion of the
transaction unless the circumstances appear suspicious. A signature is not required for
Debit Card transactions.
• You shall not disclose transaction related information to any party other than your agent,
a PIN Debit network, or Issuer and then only for the purpose of settlement or error
resolution.
• You may not process a Credit Card transaction in order to provide a refund on a Debit
Card transaction.
29.2. Transaction Processing. The following general requirements apply to all Debit
Card transactions:
• All Debit Card transactions must be authorized and processed electronically. There is no
Voice Authorization or Imprinter procedure for Debit Card transactions.
• You may not complete a Debit Card transaction that has not been authorized. If you
cannot obtain an Authorization at the time of sale, you should request another form of
payment from the Cardholder or process the transaction as a Store and Forward or
Resubmission, in which case you assume the risk that the transaction fails to authorize
or otherwise declines. The Cardholder should be instructed to contact the Issuer to find
out why a transaction has been declined.
• Unless the transaction is a network supported PINless transaction, you may not complete
a Debit Card transaction without entry of the PIN by the Cardholder. The PIN must be
entered into the PIN pad only by the Cardholder. You cannot accept the PIN from the
Cardholder verbally or in written form.
• The PIN Debit network used to process your transaction will depend upon, among other
things, our own business considerations, the availability of the PIN Debit network at the
time of the transaction and whether a particular Debit Card is enabled for a particular PIN
Debit network. The PiN Debit network utilized to route your transaction may or may
not be the lowest cost network available. We may, in our sole discretion (i) utilize any PIN
Debit network available to us for a given transaction (including a PiN Debit network
affiliated with Processor) and (ii) add and/or remove PIN Debit networks available to you
based on a variety of factors including availability, features, functionality and our own
business considerations.
• You must issue a receipt to the Cardholder upon successful completion of a transaction
and effect PAN Truncation on it.
• You may not manually enter the account number. The account number must be read
electronically from the Magnetic Stripe. If the Magnetic Stripe is unreadable, you must
request another form of payment from the Cardholder.
• Any applicable tax must be included in the total transaction amount for which
Authorization is requested. Tax may not be collected separately in cash.
• YOU ARE RESPONSIBLE TO SECURE YOUR TERMINALS AND TO INSTITUTE
APPROPRIATE CONTROLS TO PREVENT EMPLOYEES OR OTHERS FROM
SUBMITTING CREDITS AND VOIDS THAT DO NOT REFLECT BONA FIDE RETURNS
OR REIMBURSEMENTS OF PRIOR TRANSACTIONS.
29.3. Cash Back From Purchase. You have the option of offering cash back to your
customers when they make a PIN Debit Card purchase. YOU may set a minimum and
maximum amount of cash back that you will allow. If you are not now offering this service,
your terminal may require additional programming to begin offering cash back as long as
it is supported by the PIN Debit Network.
29.4. Settlement. Within one Business Day of the original transaction, you must balance
each location to our system for each Business Day that each location is open.
29.5. Adjustments. An adjustment is a transaction that is initiated to correct a Debit Card
transaction that has been processed in error. You will be responsible for all applicable
adjustment fees that may be charged by a Debit Card network. Some PIN Debit networks
may have established minimum amounts for adjustments.
There are several reasons for adjustments being initiated:
• The Cardholder was charged an incorrect amount, either too little or too much.
• The Cardholder was charged more than once for the same transaction.
• A processing error may have occurred that caused the Cardholder to be charged even
though the transaction did not complete normally at the point of sale.
All parties involved in processing adjustments are regulated by time frames that are specified
in the operating rules of the applicable PiN Debit network, The Electronic Funds Transfer
Act, Regulation E, and other applicable law.
If you elect to accept EBT Cards and engage in EBT transactions, the terms and conditions
of this Section 30 shall apply.
EBT transactions are provided to you by Processor and not by Bank. The Services provided,
transactions processed and other matters contemplated under this Section 30 are subject to
the rest of this Agreement, as applicable, except to the extent the terms of this Section 30
directly conflict with another section of this Agreement, in which case the terms of this
Section 30 will control; provided, however, that Bank is not a party to this Agreement insofar
as it relates to EBT transactions, and Bank is not liable to you in any way with respect to
such Services. For the purposes of this section, the words "we," "our" and "us' refer only
to the Processor and not to the Bank.
We offer electronic interfaces to EBT networks for the processing, settlement and switching
of EBT transactions initiated through the use of a state - issued EBT card ( "EBT Card ") at
your POS Terminal(s) for the provision of United States Department of Agriculture, Food
and Nutrition Service ( "FNS "), Supplemental Nutrition Assistance Program ( "SNAP ") and
Women, Infants and Children Benefits ( "WIC Benefits ") and/or government delivered Cash
Benefits (Cash Benefits, together with FNS, SNAP and WIC Benefits, collectively are referred
to as the "EBT benefits ") to EBT benefit recipients ( "EBT customers "), subject to the terms
below
30.1. Acceptance of EBT Benefits. You agree to accept EBT Cards and provide EBT
benefits to EBT customers through the use of a POS Terminals, PIN pad and printer or
other equipment that meet standards set forth in the EBT Rules ( "Authorized Terminal ")
applicable to such EBT benefits during your normal business hours, in a manner consistent
with your normal business practices and in accordance with the EBT Rules.
The "EBT Rules" means (i) all procedures that we establish and provide to you from time -
to -time regarding your acceptance of EBT Cards and provision of EBT benefits to EBT
customers; (ii) the Quest Rules, as amended from time -to -time, issued by the National
Automated Clearing House Association and as approved by the Financial Management
Service of the U.S. Treasury Department, as necessary (and any rules that succeed or replace
the Quest Rules); and (iii) other such laws, rules, regulations and procedures that are
applicable to the acceptance of EBT Cards and the provision of EBT benefits by you under
this Section 30, including without limitation, laws pertaining to delivery of services to EBT
customers and EBT customer confidentiality, the federal Civil Rights Act of 1964,
Rehabilitation Act of 1973, Americans with Disabilities Act of 1990, Clean Air Act, Clean
Water Act, Energy Policy and Conservation Act, Immigration Reform and Control Act of
1986, regulations issued by the Department of Agriculture pertaining to Food Stamp
Program, and, any additional procedures specified by the state regarding lost EBT Cards,
forgotten PINS, discrepancies in benefits authorized and similar matters by providing EBT
customers with information such as telephone numbers and addresses of the state or other
appropriate agencies. The "Food Stamp Program" is the government benefits program
operated under the authority of the Food Stamp Act of 1964.
You will provide EBT benefits to EBT customers, in accordance with the procedures set
forth in the EBT Rules, in the amount authorized through your Authorized Terminal upon
presentation by an EBT customer of an EBT Card and such EBT customer's envy of a valid
PIN. If the Authorized Terminal fails to print EBT benefit issuance information as approved
and validated as a legitimate transaction, you will comply with the procedures set forth in
the EBT Rules for authorization of EBT benefits in such instance. You are solely responsible
for your provision of EBT benefits other than in accordance with authorizations timely
received from EBT service provider. You will not resubmit any EBT Card transaction except
as specifically permitted by the EBT Rules and procedures applicable to such EBT Card
transaction. You must provide a receipt for each EBT transaction to the applicable EBT
customer.
You will not accept any EBT Card for any purpose other than providing EBT Benefits,
including without limitation accepting an EBT Card as security for repayment of any EBT
customer obligation to you. In the event of an), violation of this provision, you will be
obligated to reimburse the state or us for any EBT benefits unlawfully received by either you
or an EBT customer to the extent permitted by law. Cash should never be dispensed for
FNS, SNAP and WIC Benefits.
30.2. Manual EBTVouehers. In accordance with the procedures set forth in this Section
30 and the EBT Rules, you will manually accept EBT Cards during periods of time when
your Authorized Terminal is not working or the EBT system in not available; you will
manually provide EBT benefits in the amount authorized through the applicable EBT
service provider to the EBT customers at no cost to the EST customers upon presentation
by an EBT customer of his /her EBT Card. All manual voucher authorizations must be
cleared on your POS terminal for payment of voucher to be made to you. In addition to any
procedures set forth in the EBT Rules, the following limitations will apply to manual
issuance of FS Benefits by merchant:
i. An authorization number for the amount of the purchase must be received by you from
the applicable EBT service provider while the respective EBT customer is present and
before you provide such EBT customer with any FNS, SNAP and WIC Benefits, or Cash
Benefits, as applicable. You must not attempt to voice authorize a manual EBT
transaction if the EBT customer is not present to sign the voucher. The EBT customer
must sign the voucher. A cop)' of the voucher should be given to the EBT customer at
the time of authorization and you should retain one copy for your records.
ii. Specified EBT customer, clerk and sales information, including the telephone
authorization number, must be entered properly and legibly on the manual sales draft.
FDSISOOB1805(ia) 30
iii. All manual voucher authorizations must be cleared on your Authorized Terminal before
payment of voucher will be made to you. Vouchers must be cleared within 10 Business
Days after the date of applicable voice authorization. Vouchers cannot be cleared by
any manner except by your Authorized Terminal therefore you should never mail
vouchers requesting payment. If a voucher expires before it has been cleared by your
Authorized Terminal for payment, no further action can be taken to obtain payment
for the voucher.
iv. In the event that, due to EBT host failure, EBT benefit availability for an EBT customer
cannot be determined at the time you request authorization, the maximum authorized
manual transaction and benefit encumbrance will be 540.00 or such other state specific
floor limit as set forth in the most current version of the applicable EBT Rules.
v. Except as specifically provided in the applicable EBT Rules, you will not be reimbursed
and will be solely responsible for a manual transaction when you fail to obtain an
authorization number from the applicable EBT service provider as set forth in this
Section 30 or otherwise fail to process the manual transaction in accordance with the
EBT Rules.
vi. if you have not received an authorization number in accordance with paragraph 30.1
above, you may not "re- submit" a manual sales draft for payment for the same
transaction.
30.3. Acceptance of Cash Benefits. If you agree to accept EBT Cards and to provide
Cash Benefits, you agree to maintain adequate cash on hand to issue EBT service provider
authorized Cash Benefits and will issue such Cash Benefits to EBT customers in the same
manner and to the same extent cash is provided to your other customers. You may not
require, and may not in your advertising suggest, that any EBT customers must purchase
goods or services from you as a condition to receiving Cash Benefits, unless such condition
applies to other customers as well. You may not designate and direct EBT customers to
special checkout lanes restricted to use by EBT customers unless you also designate and
direct other customers to special checkout lanes for Debit Cards or Credit Cards and/or
other payment methods such as checks other than cash.
30.4. Interoperability. If you accept EBT Cards and provide EBT benefits (FNS, SNAP
and WIC Benefits and/or Cash Benefits), you must do so for EBT customers from all states.
30.5. Required Licenses. If you provide FNS, SNAP and WIC Benefits under this
Agreement, you represent and warrant to us that you are a FNS authorized merchant and
are not currently disqualified or withdrawn from redeeming food stamp coupons or
otherwise disqualified or withdrawn by FNS. You agree to secure and maintain at your own
expense all necessary licenses, permits, franchises, or other authorities required to lawfully
effect the issuance and distribution of EBT benefits under this Agreement, including without
limitation, any applicable franchise tax certificate and non - governmental contractor's
certificate, and covenant that you will not accept EBT Cards or provide EBT benefits at any
time during which you are not in compliance with the requirements of any EBT Rules.
30.6. Term and Termination. If you are disqualified or withdrawn from the Food Stamp
Program, your authority to issue benefits will be terminated concurrently therewith. Such
disqualification or withdrawal will be deemed a breach of this Agreement with respect to
your authority to issue Cash Benefits and, in the event of such disqualification, we have the
right to immediately terminate the provision of service under this Section 30 or the
Agreement in its entirety. With respect to the issuance of Cash Benefits only, your authority
to issue Cash Benefits may be suspended or terminated immediately at the sole discretion
of us, the state or its EBT service provider, effective upon delivery of a notice of suspension
or termination specifying the reasons for such suspension or termination if there will be (i)
any suspension, injunction, cessation, or termination of the EBT service provider's authority
to provide EBT services to the state; (ii) failure by you, upon not less than thirty (30) days'
prior written notice, to cure any breach by you of these terms and conditions, including
without limitation, your failure to support the issuance of EBT benefits during your normal
business hours consistent with your normal business practices, your failure to comply with
EBT benefit issuance procedures, your impermissible acceptance of an EBT Card, or your
disqualification or withdrahe al from the Food Stamp Program; or (iii) based on a state's or
its EBT service provider's investigation of the relevant facts, evidence that you or any of
your agents or employees are committing, participating in, or have knowledge of fraud or
theft in correction with the dispensing of EBT benefits. If you fail to cure any breach as set
forth above, you may appeal such suspension of termination to the applicable state for
determination in its sole discretion.
In the event that your authority to accept benefits is suspended or terminated by a state or
its EBT service provider, and you successfully appeal such suspension or termination to
the state or its EBT service provider, we shall be under no obligation to reinstate the services
previously provided under this Section 30 or the Agreement, as applicable.
The provision of services under this Section 30 shall terminate automatically if our
agreement or our service provider's- agreement with any applicable state's EBT service
provider terminates for any reason.
You will give prompt notice to us if you plan to stop accepting EBT Cards and providing
EBT benefits or if you are unable to comply with the terms of this Section 30.
30.7. Confidentiality of EBT System Information. All information related to EBT
customers and/or the issuance of EBT benefits shall be considered confidential information.
Individually identifiable information relating to an EBT customer or applicant for EBT
benefits will be held confidential and will not be disclosed by you or your directors, officers,
employees or agents, without prior written approval of the applicable state.
You will: (a) implement appropriate measures designed to: (1) ensure the security and
confidentiality of all non - public personal information or materials regarding customers
( "NPPI "); (2) protect against any anticipated threats or hazards to the security or integrity
of NPPI; (3) protect against unauthorized access to or use of NPPI that could result in
substantial harm or inconvenience to any customer and (4) ensure the proper disposal of
NPPI; and (b) take appropriate actions to address incidents of unauthorized access to NPPI,
including notification to us as soon as possible.
The use of information obtained by you in the performance of your duties under this
Section 30 will be limited to purposes directly connected with such duties.
30.8. EBT Service Marks. You will adequately display any applicable state's service
Marks or other licensed marks, including the Quest Marks, and other materials supplied by
us (collectively the "Protected Marks ") in accordance with the standards set by the
applicable state. You will use the Protected Marks only to indicate that EBT benefits are
issued at your location(s) and will not indicate that we, any state or its EBT service provider
endorse your goods or services. Your right to use such Protected Marks pursuant to this
Agreement will continue only so long as this Section 30 remains in effect or until you are
notified by us, any state or its EBT service provider to cease their use or display. You will
not use the Marks of any EBT service provider without prior written approval from such
EBT service provider.
30.9. Miscellaneous.
30.9.1. Errors. You will fully cooperate with us and any other participants in the EBT
system in the resolution of errors and disputes regarding EBT transactions processed
pursuant to this Section 30. You will promptly notify us of any such errors or disputes.
30.9.2. Issuance Records.
i. You agree to make available such informational materials as may be required by the
state, its EBT service provider or any applicable regulations pertaining to the issuance
of Benefits.
ii. You will retain all EBT - related records (including but not limited to manual sales drafts
or vouchers) in the manner required by the EBT Rules or otherwise reasonably
requested by us for three (3) years following the date of the applicable EBT transaction,
or for such additional period as may be required by the EBT Rules. Records involving
matters in litigation will be kept by you for a period of not less than three (3) years
following the termination of the applicable litigation. Copies of any documents in media
other than paper (e.g., microfilm, etc.) related to this Section 30 may be substituted for
the originals to the extent permitted under applicable EBT Rules and provided that
legible paper copies can be reproduced within a reasonable time after such records are
requested.
iii. You will make all EBT - related records available for audit upon request to representatives
of the state or its EBT service provider, or other authorized state or federal government
agency during normal business hours.
iv. To assure compliance with this Agreement, including without limitation this Section 30,
the state, its EBT service provider, or other authorized state or federal government
agency, will at all times, upon advance notice except in the case of suspected fraud or
other similar activity, have the right to enter, during normal business hours, your
premises to inspect or evaluate any work performed under this Agreement, or to obtain
an), other information required to be provided by you or otherwise related to this
Agreement.
30.9.3. Training. You will train and permit your employees to receive training regarding
the issuance of EBT benefits.
30.9.4. Amendments. Notwithstanding anything to the contrary in this Agreement, if
any of these terms and conditions are found to conflict with the EBT Rules or federal or state
policy, these terms and conditions are subject to reasonable amendment by us, a state or its
EBT service provider to address such conflict upon written notice to you and such
amendment shall become effective upon such notice.
30.9.5. StateAetion. Nothing contained herein shall preclude a state from commencing
appropriate administrative or legal action against you or for making any referral for such
action to any appropriate federal, state, or local agency.
30.9.6. Reference to State. Any references to state herein will mean the state in which you
accept EBT benefits pursuant to this Section 30. If you accept EBT benefit in more than one
state pursuant this Section 30, then the reference will mean each such state severally, not
jointly
30.9.7. Third Party Beneficiaries. These terms and conditions, do not create, and will
not be construed as creating, any rights enforceable by any person not having any rights
directly under this Agreement, except that the state and its issuer, as defined in the Quest
Rules, will be deemed third party, beneficiaries of the representations, warranties, covenants
and agreements made by you under the Agreement, including without limitation this
Section 30.
3 1 . Special Provisions Regarding Wireless Service
If you elect to purchase the Wireless Services from us as indicated on the Application, then
the following terms and conditions of this Section 31, referred to as the "Wireless Services
Terms," shall apply. THE WIRELESS SERVICES ARE BEING SOLD TO YOU FOR USE IN
BUSINESS AND ARE NOT BEING SOLD TO YOU FOR HOUSEHOLD OR PERSONAL
USE. Sale of Wireless Services is made by Processor and not the Bank. The Services
provided, transactions processed and other matters contemplated under this Section 31 are
subject to the rest of this Agreement, as applicable, except to the extent the terms of this
FDSISOOB1805(ia) 3
Section 31 directly conflict with another section of this Agreement, in which case the terms
of this Section 31 will control; provided, however, that Bank is not a party to this Agreement
insofar as it relates to Wireless Services, and Bank is not liable to you in any way with
respect to such services. For the purposes of this section, the words "we," "our" and "us"
refer only to the Processor and not to the Bank.
Through one or more third party vendors ( "Wireless Vendor(s)") selected by us in our sole
discretion, we have acquired the right to resell certain wireless data communication services
that use radio base stations and switching offered by certain cellular telephone and data
networks throughout the country (the "Wireless Networks ") in order to allow you to
capture and transmit to Processor and Bank certain wireless Card Authorization
transactions or to transmit other communications to our system ( "Wireless Services ").
If you elect to purchase voice and/or data services directly from a third party provider for
use with the Wireless Equipment as permitted by Processor, you acknowledge and agree
that this Agreement does not address or govern those voice and/or data services or your
relationship with that third party provider, and Servicers are in no way responsible for
providing, maintaining, servicing or supporting such third party voice and/or data services.
3 I.I . Purchase of Wireless Services. The prices that you will pay for the Wireless
Services are set forth on the Application. In connection with your purchase of Wireless
Services, you will receive access to a certain Wireless Network(s).
• Licenses. You agree to obtain any and all licenses, permits or other authorizations required
by the Federal Communications Commission ( "FCC ") or any other regulatory authority,
if any, for the lawful operation of Wireless Equipment used by you in connection with
your receipt of Wireless Services. You will promptly provide us with all such information
as we may reasonably request with respect to matters relating to the rules and regulations
of the FCC.
• Wireless Equipment. You agree that in order to access the Wireless Services, you must use
wireless POS Terminals and accessories approved for use with the Wireless Services by
Processor from time to time in its sole discretion (the "Wireless Equipment "). If Wireless
Equipment is purchased by you from us as indicated on the Application, then the terms
of this Agreement apply to your use of such Wireless Equipment.
• Improvements /General Administration. We and the Wireless Vendor(s) reserve the right
to make changes, from time to time, in the configuration of the Wireless Services, Wireless
Networks, Wireless Equipment, Wireless Software, rules of operation, accessibility
periods, identification procedures, type and location of equipment, allocation and
quantity of resources utilized, programming languages, administrative and operational
algorithms and designation of the control center serving you at the particular address. In
addition, we reserve the right to schedule, from time to time, interruptions of service for
maintenance activities.
• Suspension of Wireless Services. We or a Wireless Network may suspend the Wireless
Services to: (a) prevent damages to, or degradation of, our or a Wireless Network's
network integrity that may be caused by a third part}; (b) comply with any law, regulation,
court order or other governmental request which requires immediate action; or (c)
otherwise protect us or a Wireless Network from potential legal liability. To the extent
commercially reasonable, we shall give notice to you before suspending the Wireless
Services to you. If not commercially reasonable to give prior notice, we will give notice
to you as soon as commercially practicable thereafter. Availability of the Wireless Services
may vary due to events beyond the control of us or our Wireless Vendors. In the event of
a suspension of the Wireless Services, we or the applicable Wireless Vendor will promptly
restore the Wireless Services after the event giving rise to the suspension has been
resolved.
31.2. Software Licenses. Processor hereby grants to you a non - exclusive, non-
transferable, revocable limited sublicense to use any wireless software (including any
documentation relating to or describing the wireless software) downloaded by you or your
designee from Processor's systems onto the Wireless Equipment in connection with your
purchase and use of the Wireless Services in accordance with the terms of this Agreement,
including this Section 31. Anything in this Agreement to the contrary notwithstanding, we
or certain third parties retain all ownership and copyright interest in and to all Wireless
Software, related documentation, technology, know -how and processes embodied in or
provided in connection with the Wireless Software, and you shall have only a nonexclusive,
non - transferable license to use the Wireless Software in your operation of the Wireless
Equipment for the purposes set forth in this Agreement. Nothing in this Agreement confers
any title or ownership of any such Wireless Software to )von or shall be construed as a sale
of any rights in any such Wireless Software to you. You agree to accept, agree to and be
bound by all applicable terms and conditions of use and other license terms applicable to
such Wireless Software. You shall not reverse engineer, disassemble or decompile the
Wireless Software. You shall not give any Person access to the Wireless Software without our
prior written consent. Your obligations under this Section 31.2 shall survive the termination
of this Agreement. You acknowledge that the only right you obtain to the Wireless Software
is the right to use the Wireless Software in accordance with the terms in this Section.
31.3. Limitation on Liability. We shall have no liability for any warranties by any party
with respect to uninterrupted Wireless Services, as set forth in Section 31.10, or for any
Person's unauthorized access to Client's data transmitted through either the Wireless
Equipment or Wireless Services (including the Wireless Software), or Wireless Networks,
regardless of the form of action (whether in contract, tort (including negligence), strict
liability or otherwise). The foregoing notwithstanding, for any other liability arising out of
or in any way connected with these Wireless Services terms, including liability resulting
solely from loss or damage caused by partial or total failure, delay or nonperformance of the
Wireless Services or relating to or atising from your use of or inability to use the Wireless
Services, Processor's, Bank's, and Wireless Vendor(s)' liability shall be limited to your direct
damages, if any; and, in any event, shall not exceed the lesser of the amount paid by you
for the particular Wireless Services during any period of failure, delay, or nonperformance
of the Wireless Services or $50,000.00. In no event shall Servicers, Wireless Vendor(s) or
our respective Affiliates be liable for any indirect incidental, special, consequential or
punitive damages. The remedies available to you under these W ireless Services Terms will
be your sole and exclusive remedies with respect to the Wireless Services.
31.4. Indemnification. In addition to any other indemnifications as set forth in this
Agreement, you will indemnify and hold Servicers, Wireless Vendor(s) and our respective
officers, directors, employees, and Affiliates harmless from and against any and all losses,
claims, liabilities, damages, costs or expenses arising from or related to: (a) the purchase,
delivery, acceptance, rejection, ownership, possession, use condition, liens against, or return
of the Wireless Equipment or the Wireless Equipment (including the Wireless Software),
as applicable; (b) your negligent acts or omissions; (c) any breach by you of any of your
obligations under this Section 31; or (d) any Person's unauthorized access to Client's data
and/or unauthorized financial activity occurring on your Merchant Account Number
hereunder, except to the extent any losses, liabilities, damages or expenses result from our
gross negligence or willful misconduct.
3 I .S. Confidentiality. All information or materials which could reasonably be considered
confidential or competitively sensitive that you access from or relate to either Wireless
Vendor(s) or Servicers related to the subject matter of these Wireless Services Terms will be
considered confidential information. You will safeguard our confidential information with
at least the same degree of care and security that you use for your confidential information,
but not less than reasonable care.
31.6. Termination. In addition to any other provision in this Agreement, the Wireless
Services being provided under this Section 31 may terminate:
a) Immediately upon termination of the agreement between us (or our Affiliates) and
Wireless Vendor(s), provided that we will notify you promptly upon our notice or
knowledge of termination of such agreement, provided further that if Wireless
Vendor(s) loses its authority to operate less than all of the Wireless Services or if the
suspension of any authority or non - renewal of any license relates to less than all of the
Wireless Services, then these Wireless Services Terms will terminate only as to the
portion of the Wireless Services affected by such loss of authority, suspension or non -
renewal; or
b) Immediately if either we or our Affiliates or Wireless Vendor(s) are prevented from
providing the Wireless Services by any law, regulation, requirement, ruling or notice
issued in any form whatsoever by judicial or governmental authority (including without
limitation the FCC).
31.7. Effect ofTermination. Upon termination of these Wireless Services Terms for any
reason, you will immediately pay to us all fees due and owing to us hereunder. If these
Wireless Services terms terminate due to a termination of the agreement between us or our
Affiliates and Wireless Vendor(s), then we may, in our sole discretion, continue to provide
the Wireless Services through Wireless Vendor(s) to ),on for a period of time to be
determined as long as you continue to make timely payment of fees due under these
Wireless Services Terms.
31.8. Third Party Beneficiaries. Wireless Vendor(s) are third party beneficiaries of these
Wireless Services Terms and may enforce its provisions as if a part), hereto.
31.9. Other Applicable Provisions. You also agree to be bound by all other terms and
conditions of this Agreement.
3 1.10. Disclaimer. Wireless Services use radio transmissions, so Wireless Services can't
be provided unless your Wireless Equipment is in the range of one of the available Wireless
Networks' transmission sites and there is sufficient network capacity available at that
moment. There are places, particularly in remote areas, with no service at all. Weather,
topography, buildings, your Wireless Equipment, and other conditions we don't control
may also cause failed transmissions or other problems. PROCESSOR, BANK, AND
WIRELESS VENDOR(S) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES
RELATING TO WIRELESS SERVICES. WE CANNOT PROMISE UNINTERRUPTED OR
ERROR -FREE WIRELESS SERVICE AND DO NOT AUTHORIZE ANYONE- TO MAKE
ANY WARRANTIES ON OUR BEHALF.
This Section 32 and the benefits described shall apply on]), if you subscribe to the
TransArmor Solution and pay the applicable fees. If you subscribe only to TransArmor
Data Protection or TransArmor Solution PCI as set forth in the Application, you will not
receive other parts of TransArmor Solution including, without limitation, Liability Waiver.
32.1. Scanning Authority; Scanning Obligations. You represent and warrant that you
have full right, power, and authority to consent for TransArmor Solution to scan for
vulnerabilities in the IP address and/or URL and/or domain names identified to us by you
for scanning, whether electronically or by any other means, whether during initial
enrollment or thereafter. If applicable, you shall obtain all consents and authorizations from
any third parties necessary for us or our vendors to perform the TransArmor Solution
services, including, without limitation, third party data centers, co- locations and hosts. We
will not be required to execute agreements with any such third parties. You agree to defend,
indemnify and hold us and our vendors harmless from any third party claim that such
access was not authorized. You may use TransArmor Solution and portals only to scan IP
addresses, URLs and domain names owned by and registered to you. You understand that
FDSIS00131805(ia) 32
your failure to provide a complete list of and complete access to your IP addresses will
significantly impair the scanning services and may result in incomplete or inaccurate results.
You agree that the TransArmor Solution services hereunder, including without limitation
their functionality and contents, constitute confidential information, and your use and/or
access to the TransArmor Solution is subject to the terms of confidentiality set forth in this
Agreement.
32.2. Data Collection. In the course of providing the TransArmor Solution, we may
collect information relating to activities on your network (the "Data ") including, but not
limited to: network configuration, TCP /IP packet headers and contents, log files, malicious
codes, and Trojan horses. We retain the right to use the Data or aggregations thereof for any
reasonable purpose.
32.3. Data Protection; Responsibilities of Client. Data Protection applies only to card
transactions sent from you to us for authorization and settlement pursuant to the
Agreement, and specifically excludes electronic check transactions. You are responsible to
comply with the following regarding your use of Data Protection:
(a) Data Protection can only be used with a point of sale device, gateway and/or equipment
that is certified by us as Data Protection eligible. It is your responsibility to ensure that you
have eligible equipment in order to use Data Protection.
(b) You must demonstrate and maintain your current PCI DSS compliance certification.
Compliance must be validated either by a Qualified Security Assessor (QSA) with
corresponding Report on Compliance (ROC) or by successful completion of the applicable
PCI DSS Self- Assessment Questionnaire (SAQ) or Report on Compliance (ROC), as
applicable, and if applicable to your business, passing quarterly network scans performed
by an Approved Scan Vendor, all in accordance with card organization rules and PCI DSS.
Use of the Data Protection will not, on its own, cause you to be compliant or eliminate
your obligations to comply with PCI DSS or any other Card Organization Rule. You must
also ensure that all third parties and software that you use for payment processing comply
with PCI DSS.
(c) You must deploy Data Protection (including implementing any upgrades to such service
within a commercially reasonable period of time after receipt of such upgrades) throughout
your point of sale systems or any facility cohere you process and/or store transaction data
( "Merchant Systems ") including replacing existing Card numbers on your Merchant
Systems with Tokens. Full Card numbers must never be retained, whether in electronic
form or hard copy.
(c) You must use the Token in lieu of the Card number for ALL activities subsequent to
receipt of the authorization response associated with the transaction, including without
limitation, settlement processing, retrieval processing, chargeback and adjustment
processing and transaction reviews.
(e) if you send or receive batch files containing completed Card transaction information
to /from us, you must use the service provided by us to enable such files to contain only
Tokens or truncated information.
(f) You must use truncated report viewing and data extract creation within reporting tools
provided by us.
(g) You are required to follow rules or procedures we may provide to you from time to time
related to your use of Data Protection ( "Data Protection Rules and Procedures "). We will
provide you with advance written notice of any such rules or procedures or changes to such
rules or procedures.
(h) You will use only unaltered version(s) of Data Protection and will not use, operate or
combine Data Protection or any related software, materials or documentation, or any
derivative works thereof with other products, materials or services in a manner inconsistent
with the uses contemplated in this Agreement.
(i) You will promptly notify us of a breach of an), these terms.
32.4. Tokenization Limited Warranty. Subject to the terms of this Agreement, we (i)
warrant that each token returned to you through Data Protection cannot be used to initiate
a financial sale transaction by an unauthorized entity /person outside your point of sale
systems and facilities where you process and /or store transaction data (the "Limited
Warranty") and (ii) agree to indemnify and hold you harmless from direct damages,
including third party claims, resulting from our breach of the Limited Warranty. This
express remedy for our breach of the Limited Warranty constitutes our entire liability and
your sole and exclusive remedy for our breach of the Limited Warranty.
The Limited Warranty is void if (a) you use Data Protection in a manner not contemplated
b); or you are otherwise in violation of, this Agreement or any other agreement relating to
Cards eligible for Data Protection; (b) you are grossly negligent or engage in intentional
misconduct; or (c) you no longer have a processing relationship with us.
32.5. Disclaimer; TransArmor Solution Does Not Guarantee Compliance or Security.
32.5.1. USE OF TRANSARMOR SOLUTION, SOFTWARE OR ANY EQUIPMENT
(INCLUDING ANY SERVICES, SOFTWARE OR EQUIPMENT PROVIDED BY OR
THROUGH A THIRD PARTY) IS AT YOUR OWN RISK AND TO THE MAXIMUM
EXTENT PERMITTTED BY APPLICABLE LAW THE TRANSARMOR SOLUTION,
EQUIPMENT AND ANY SOFTWARE IS PROVIDED "AS IS" AND WE DISCLAIM ALL
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY
OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT
THE TRANSARMOR SOLUTION, EQUIPMENT OR ANY SOFTWARE WILL OPERATE
UNINTERRUPTED OR ERROR FREE OR THAT THE TRANSARMOR SOLUTION,
EQUIPMENT OR SOFTWARE ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS, OR DO NOT INFRINGE THE RIGHTS OF ANY PERSON.
32.5.2. USE OF THE TRANSARMOR SOLUTION DOES NOT (A) GUARANTEE
COMPLIANCE WITH ANY OF THE RULES OR SECURITY STANDARDS ESTABLISHED
BY THE CARD ORGANIZATIONS, INCLUDING PCI DSS; (B) ELIMINATE YOUR
OBLIGATION TO COMPLY WITH SUCH REQUIREMENTS, OR (C) GUARANTEE
SECURITY OR PREVENT A SECURITY BREACH OR COMPROMISE. WE MAKE NO
WARRANTIES; EITHER EXPRESSED OR IMPLIED THAT PARTICIPATION AND /OR USE
OF TRANSARMOR SOLUTION WILL DETECT EVERY VULNERABILITY ON YOUR
SYSTEM, IF ANY, OR THAT OUR VULNERABILITY ASSESSMENTS, SUGGESTED
SOLUTIONS OR ADVICE WILL BE ERROR -FREE OR COMPLETE. YOU AGREE THAT
WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY OR USEFULNESS
OF ANY INFORMATION PROVIDED BY US, OR FOR ANY USE OF SUCH INFORMATION.
32.5.3. You acknowledge and understand that accessing, retrieving, transmitting, and
scanning IP addresses and other data in the manner undertaken by the TransArmor Solution
involves inherent risks, including risks related to system or network performance and
availability, and data corruption. You assume full responsibility to backup and/or otherwise
protect your data against loss, damage or destruction, and to take appropriate measures to
respond to any potential adverse impact of the systems or disruption of service.
32.6. Intellectual Property Rights.
32.6.1. All right, title, and interest in and to all confidential information and intellectual
property related to the TransAnnor Solution (including the Marks, all Software, the content
of any materials, web screens, layouts, processing techniques, procedures, algorithms, and
methods and any updates, changes, alterations, or modifications to or derivative works
from such intellectual property), owned, developed or licensed by us prior to, during the
term of, or after this Agreement, or employed by us in connection with the TransArmor
Solution, shall be and remain, as among the Parties or our Affiliates', our vendors' or our
licensors' (as applicable) sole and exclusive property, and all right, title and interest
associated with the TransArmor Solution, Equipment and Software not expressly granted
by us in this Agreement are deemed withheld. You may not use our Marks in any manner,
including in any advertisements, displays, or press releases, without our prior written
consent.
32.6.2. You may not, nor may you permit any third party to do any of the following: (a)
decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover
by any means any source code, underlying ideas or algorithms of the TransArmor Solution,
Software or Equipment (or any part), except to the extent that such restriction is expressly
prohibited by law; (b) modify, translate, or alter in any manner, the TransArmor Solution,
Software or Equipment (or any part) or the Marks; (c) create derivative works of or based
on the TransArmor Solution (or any part), Software or the Marks; (d) except for backup
and archival purposes, directly or indirectly copy the TransArmor Solution or any Software
(or any part); (e) republish, upload, post, transmit, disclose, or distribute (in any format)
the TransArmor Solution or Software (or any part) except as permitted in this Agreement;
or (f) remove, relocate, or otherwise alter any proprietary rights notices from the
TransArmor Solution, Software or Documentation (or any part) or the Marks.
32.6.3. If we provide you with copies of or access to any Software or Documentation,
unless otherwise expressly stated in writing, that Software and Documentation is provided
on a personal, non - exclusive, non - transferable, non - assignable, revocable limited license for
the period of your subscription to the applicable TransArmor Solution service and solely
for you to access and use the Software and Documentation to receive the relevant
TransArmor Solution service for its intended purpose on systems owned or licensed by you.
Software can only be used with certain computer operating systems and it is your
responsibility to ensure that you have the appropriate hardware and software to use the
Software.
32.6.4. You shall not take any action inconsistent with the stated title and ownership in this
Section 31. You will not file any action, in any forum that challenges the ownership of any
part of the TransArmor Solution or any software, materials or Documentation. Failure to
comply with this provision will constitute a material breach of this Agreement. We have the
right to immediately terminate your access to and use of the TransArmor Solution in the
event of a challenge by you.
32.6.5 If you are acquiring any of the TransArmor Solution services on behalf of any part
of the United States Government (Government): any use, duplication, or disclosure by the
Government is subject to the restrictions set forth in subparagraphs (a) through (d) of the
Commercial Computer Software- Restricted Rights clause at FAR 52.227 -19 when
applicable, or in subparagraph (c)(1 )(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227 -7013, and in similar clauses in the NASA FAR
Supplement; (b) we are the contractor /manufacturer, with the address set forth in this
Agreement; and (c) any use, modification, reproduction, release, performance, display or
disclosure of TransArmor Solution and/or the accompanying documentation by the
Government or any of its agencies shall be governed solely by the terns of this Agreement
and shall be prohibited except to the extent expressly permitted by this Agreement.
32.7. Software Updates, Maintenance and Changes.
32.7.1. We may perform maintenance on Software or TransArmor Solution which may
result in service interruptions, delays, or errors. We will not be liable for any such
interruptions, delays, errors, or bugs. You agree that we may contact you in order to assist
you with the Software or Services and obtain information needed to identify and fix any
errors. We may, at our discretion, release enhancements, improvements or other updates to
any Software, or otherwise make any changes to the TransArmor Solution (or any part).
FDSISOO81805(ia) 33
32.7.2. You acknowledge and understand that certain Software can automatically install,
download, and/or deploy updated and/or new components, which may include a new
version of the Software itself. You shall not, in any event or in any manner, impede the
update process. You agree to assume full responsibility and indemnify us for all damages
and losses, of any nature, for all adverse results or third party claims arising from your
impeding the update process.
32.8. Accessing Services via the Internet or third parties. You agree that we shall not be
liable to you for any claims, damages, losses, obligations, costs or expenses or other liability
arising directly or indirectly from or otherwise concerning (a) any termination, suspension,
delay or disruption of service (including billing for a service) by the internet, any common
carrier or any third party service provider; (b) any failure, disruption or malfunction of the
TransArmor Solution, the Internet, or any communications network, facility or equipment
beyond our or a third party's reasonable control, whether or not attributable to one or more
common carriers; or (d) any failure to transmit, obtain or collect data or for human,
machine or software errors or faulty or erroneous input by you.
32.9. Access and Use of Services.
32.9.1. Unless we otherwise agree in writing, the TransArmor Solution shall be for your
internal business use in the United States and US territories or possessions only.
32.9.2. You shall not and shall not permit any third party to: (a) access or attempt to access
any of the TransArmor Solution service that is not intended to be available to you; (b) access
or use (in any format) the TransArmor Solution (or any part) through any time - sharing
service, service bureau, network, consortium, or other means; (c) without our advanced
written consent, use, ship or access TransArmor (or any part) outside or from outside of the
United States; (d) perform or attempt to perform any actions that would interfere with the
proper working of any part of the TransArmor Solution, prevent access to or use of any of
the TransArmor Solution by other users, or in our reasonable judgment, impose a large
load on our infrastructure, network capability or bandwidth; or (e) use the TransArmor
Solution (or any part) except as permitted in this Agreement.
32.9.3. We have the right to rely on user names, password and other sign on
credentials /access controls for the TransArmor Solution or any Software (including
Federated Single Sign -on credentials) provided or approved by us to authenticate access
to, and use of, the Services and any Software.
32.10. Indemnification. In addition to other indemnifications provided in this
Agreement, you agree to indemnify and hold us, our Affiliates and third party service
providers harmless from and against all losses, liabilities, damages and expenses arising
from (a) your use of the IransArmor Solution, including any Software or Equipment
provided under this Agreement; or (b) any other person's authorized or unauthorized access
and/or use of the TransArmor Solution (or any part), Software or Equipment, whether or
not using your unique usernarne, password, or other security features.
32.11. Liability Waiver.
32.1 1.1. Subject to your subscribing to the entire TransArmor Solution bundle and to the
terns of this Agreement, we agree to waive liability that you have to us under this
Agreement for Security Event Expenses resulting from a Data Security Event first discovered
by you or us while you are receiving and utilizing the TransArmor Solution (the "Liability
Waiver ").
32.1 1.2. The maximum amount of Liability Waiver for all Security Event Expenses arising
out of or relating to your Data Security Events first discovered during any TransArmor
Program Year regardless of the number of such Data Security Events is as follows:
a) $100,000.00 maximum per each MID you have; and
b) $500,000 aggregate maximum for all of your MID's.
32.1 1.3. In addition to Section 32.11.2., the maximum amount of Liability Waiver during
any TransArmor Program Year for EMV Upgrade Costs is further limited as follows:
a) $10,000 maximum per each MID you have; and
b) $25,000.00 aggregate maximum for all of your MID's.
32.1 1.4. All Security Event Expenses resulting from the same, continuous, related or
repeated event or facts will be deemed to arise out of one Data Security Event.
32.1 I .S. The Liability Waiver shall not apply in relation to:
a) your failure to comply with the terms of this Agreement;
b) any Data Security Event occurring before )you started receiving the TransArmor Solution;
c) any fines or assessment levied against you that are not the direct result of a Data Security
Event;
d) any Data Security Event relating to you where )you have experienced a prior Data Security
Event, unless you were later certified as PCI compliant by a qualified security assessor;
e) any expenses incurred for, or as a result of, regularly scheduled, recurring or routine
security assessments, regulatory examinations, inquiries or compliance activities;
f) any Data Security Event if you: (i) are categorized by any Card Organization as "Level 1"
or (ii) processes more than six million (6,000,000) Card transactions during the twelve
month period prior to the date this Section became effective;
g) any expenses, other than Security Event Expenses, incurred by you arising out of or
resulting, directly or indirectly, from a Data Security Event, including expenses incurred to
bring you into compliance with the PCI Data Security Standard or any similar security
standard;
h) any Security Event Expenses arising out of or resulting, directly or indirectly, from an
event of force majeure, any dishonest, fraudulent, criminal or malicious act, error or
omission, or any violation of the law including any claim, suit, action or proceeding against
you that is brought by or on behalf of any federal, state or local government agency; or
i) any Data Security Event arising out of W any software not within your control; provided,
however, this exclusion shall not apply to a Data Security Event arising out of a virus, Trojan
horse or other software used by a third party to obtain fraudulent access to data to your
computer system or to collect data in transit to or from your computer system; (ii) a breach
in a computer system in which you and other merchants, with no legal relationship to one
another, have hosted accounts or share a common database, operating system or software
applications; or (iii) your allowing any party (other than its employees or us) to hold or
access Cardholder Information.
32.11.6. Notwithstanding the Liability Waiver: (a) you must continue to perform all
obligations under this Agreement, including your obligation to comply with data security
requirements; and (b) we waive no rights or remedies under this Agreement including our
right to terminate or suspend this Agreement if a Data Security Event occurs.
32.12. Export Compliance
32.12. I. You agree not to export or re- export any Software or Equipment or any underlying
information except in full compliance with all applicable laws and regulations.
32.12.2. None of the Software or Equipment or any underlying information may be
downloaded or otherwise exported or re- exported (a) to any country to which the United
States has embargoed goods (or any national or resident thereof); (b) to anyone on the
United States Treasury Department's list of Specially Designated Nationals or the United
States Commerce Department's Table of Deny Orders; or (c) in any manner not in full
compliance with the requirements of the United States Bureau of Industry and Security and
all applicable Export Administration Regulations.
32.12.3 If you have rightfully obtained Software or Equipment or any underlying
information outside of the United States, you agree not to re- export the same except as
permitted by the laws and regulations of the United States and the laws and regulations of
the jurisdiction in which you obtained it. You warrant that you are not located in, under the
control of, or a national or resident of any such country or on any such list.
32.13. Definitions:
(a) Card Organization Assessment means a monetary assessment, fee, fine or penalty
levied against you or us by a Card Organization as the result of (i) a Data Security Event or
(ii) a security assessment conducted as the result of a Data Security Event; provided, that
The Card Organization Assessment shall not exceed the maximum monetary assessment,
fee, fine or penalty permitted upon the occurrence of a Data Security Event by the applicable
rules or agreement in effect as of the inception date of this Agreement for such Card
Organization;
(b) Cardholder Information means the data contained on a Card, or otherwise provided
to Client, that is required by the Card Organization or its in order to process, approve and/or
settle a Card transaction;
(c) Card Replacement Expenses means the costs that the we or you are required to pay
by the Card Organization to replace compromised Cards as the result of (i) a Data Security
Event or (h) a security assessment conducted as the result of a Data Security Event;
(d) Data Protection is a TransArmor Solution service that provides encryption of
cardholder data at your payment environment and replaces the data with a token or
randomly generated number;
(e) Data Security Event means the actual or suspected unauthorized access to or use of
Cardholder Information, arising out of your possession of or access to such Cardholder
Information, which has been reported W to a Card Organization by you or us or (ii) to you
or us by a Card Organization. All Security Event Expenses and Post Event Services Expenses
resulting from the same, continuous, related or repeated event or which arise from the
same, related or common nexus of facts, will be deemed to arise out of one Data Security
Event;
(f) Documentation means any documents, instructions, web screen, layouts or any other
materials provided by us relating to the Software or the TransArmor Solution;
(g) Equipment means equipment rented to or purchased by you under this Agreement and
any documents setting out additional terns on which Equipment is rented to or purchased
by you;
(h) EMV Upgrade Costs means cost to upgrade payment acceptance and processing
hardware and software to enable you to accept and process EMV - enabled Card in a manner
compliant with PCI Data Security Standards;
(i) Forensic Audit Expenses means the costs of a security assessment conducted by a
qualified security assessor approved by a Card Organization or PCI Security Standards
Council to determine the cause and extent of a Data Security Event;
(j) Liability Waiver has the meaning as set forth in Section 32.11.1 above;
(k) Marks means the names, logos, emblems, brands, service marks, trademarks, trade
names, tag lines or other proprietary designations;
(1) Post Event Services Expenses means reasonable fees and expenses incurred by us or
you with our prior written consent, for any service specifically approved by us in writing,
including, without limitation, identity theft education and assistance and credit file
monitoring. Such services must be provided by or on behalf of us or you within one (1) year
FDSISOOB1805(ia) 34
following discovery of a Data Security Event to a Cardholder whose Cardholdcr
Information is the subject of that Data Security Event for the primary purpose of mitigating
the effects of such Data Security Event;
(m) Program Year means the period from November 1st through October 31st of each
year;
(n) Security Event Expenses means Card Organization Assessments, Forensic Audit
Expenses and Card Replacement Expenses. Security Event Expenses also includes EMV
Upgrade Costs you agree to incur in lieu of a Card Organization Assessment;
(o) Software means all software, computer programs, related documentation, technology,
know -how and processes embodied in the Equipment (i.e. firmware) or otherwise provided
to you under this Agreement. For the avoidance of doubt, the term Software shall not
include any third party software available as part of a service provided from someone other
than us or our vendors or which may be obtained by you separately from the TransAmor
Solution (e.g. any applications downloaded by you through an application marketplace);
(p)TransArmor PCI is a TransArmor Solution service that provides access to online PCI
DSS Self - Assessment Questionnaires (SAQ) to validate PCI data standards: and
(q) TransArmor Solution is the suite of security services provided by us and known as
TransArmor.
If you elect to utilize the Payeezy Gateway Services, the following additional terms and
conditions of this Section 33 shall apply.
The Payeezy Gateway Services are provided to you by Processor and not Bank. Bank is not
a party to this Agreement insofar as it applies to the Payeezy Gateway Services, and Bank
is not liable to you in any way with respect to such services. For the purposes of this Section
33, the words "we," "our" and "us" refer only to the Processor and not the Bank.
The Payeezy Gateway Services provided and other matters contemplated under this Section
33 are subject to the rest of this Agreement, as applicable, except to the extent the terms of
this Section 33 directly conflict with another provision of this Agreement, in which case the
terms of this Section 33 will control.
33.1. Definitions. Capitalized terms used in this Section 33 shall have the meaning given
as defined in this Section or as defined in the Glossary or elsewhere in this Agreement.
Claim means any arbitration award, assessment, charge, citation, claim, damage, demand,
directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice,
infringement or misappropriation of any Intellectual Property Right or violation of any law,
and any consequential, indirect, special, incidental or punitive damages and any attorney's
fees and expenses incurred in connection therewith. For purposes of the foregoing Claim
definition, a Claim shall be considered to exist even though it may be conditional,
contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated,
or unmatured.
Confidential Information means the Payeezy Gateway Services, Documentation, oper-
ational procedures, the terms and conditions of this Section 33 (including any schedule,
exhibit or addendum), pricing or other proprietary business information, and any other
information provided to you by us, whether or not such information is marked as
confidential; provided, however, that Confidential information will not include information
that: (a) is or becomes generally known to the public through no fault of yours; (b) was
lawfully obtained by you from a third party free of any obligation of confidentiality; (c) was
already in your lawful possession prior to receipt thereof, directly or indirectly, from the
disclosing part}; (d) is independently developed by you without the use of the Confidential
Information; (e) is disclosed with our express written permission; or (f) is disclosed
pursuant to a lawful court or governmental order, provided you provide us with prompt
prior written notice of any proceeding that may involve such an order, and an opportunity
to contest any disclosure at such proceeding.
Customer means your customer who would like to provide payment for your goods or
services.
Documentation means any and all manuals and other written materials in any form
provided for use with the Software, as amended by us from time to time, the terms of which
are incorporated in this Section 33 as if fully set forth herein.
Intellectual Property Rights means any and all patents, copyrights, trademarks, trade
secrets, service marks, and any other intellectual property rights, and any applications for
any of the foregoing, in all countries in the world.
Merchant Account shall mean an account set up for a merchant that requires a card
processor, bank, merchant ID, terminal ID, merchant account number, or otherwise named
unique merchant number. Multiple physical or virtual storefronts that process transactions
under the same unique merchant number shall be deemed as one (1) Merchant Account.
Payeezy Gateway Services or Services means the products or services offered through
the Platform including, but, not limited to payment processing services such as
authorization of transactions to the appropriate payment processing network or third party
service provider, transaction responses (approved, declined), and the detailed reporting of
those transactions, and all related and applicable Software.
Platform means our operated, or approved, electronic payment platform(s) and /or
gateway(s) (also referred to as the "Payeezy Gateway ") through which the payment Services
contemplated under this Section 33 are provided.
Software means all applications, protocols, software components and other interfaces and
software provided by us to you pursuant to this Section 33, and any and all Updates.
Updates means an embodiment of the Software that provides enhancements and/or
improvements.
Your Systems means any web site(s) or interfaces to the Services that are operated or
maintained by you or on your behalf through which transactions are submitted for
processing, and all your other associated systems.
33.2. Fees. Client shall pay Processor the fees for the Payeezy Gateway Services as set
forth on the Application. A separate account with us for Payeezy Gateway Services shall be
required for each separate Merchant Account held by you.
33.3. Term; Termination. The Payeezy Gateway Services shall commence as of the
effective date of this Agreement and shall remain in effect until terminated by either party
as provided herein. Either party may terminate these Services upon giving the other party
at least thirty (30) days prior written notice. We may suspend or terminate your access to
the Services without prior notice, with or without cause. Regardless of the reason for
termination, you shall be responsible for the payment of all fees due up to and including
the effective date of termination.
33.4. License Grant.
33.4.1. License. Subject to the terms and conditions of this Agreement (including
additional rights and licenses granted in the Documentation), we hereby grant you and you
hereby accept a nonsublicensable, royalty free, non - exclusive, nontransferable, revocable
limited license to use the Services, during the term of this Agreement, for the sole and
limited purpose of submitting payment transactions to us for processing, and otherwise
using our Services as set forth herein. For clarity, all references to Services in this Agreement
shall include the applicable Software.
33.4.2. Documentation License. Subject to the terms and conditions of this Agreement,
we hereby grant, and you hereby accept, a nonsublicensable, royalty free, non - exclusive,
non - transferable, revocable limited license to use the Documentation during the term of this
Agreement for the sole and limited purpose of supporting your use of the Services. You
shall strictly follow all Documentation provided to you, as it may be amended from time to
time by us, in our discretion. To the extent that there is any conflict between the
Documentation and the terms of Agreement, the terms of this Section 33 shall govern and
control.
33.4.3. Use Restrictions. You acknowledge that the Services and Documentation
constitute our intellectual property, therefore, ),on shall not, and shall not cause or permit
any third party to: (i) use the Services in any way, other than in accordance with this
Agreement or the Documentation or as otherwise instructed by us in writing; (ii) use the
Services or Documentation, either directly or indirectly, for benchmarking purposes or to
develop any product or service that competes with the products and services provided
under this Section 33; (iii) disassemble, decompile, decrypt, extract, reverse engineer or
modify the Services, or otherwise apply any procedure or process to the Services in order
to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source
listings for the Services or any algorithm, process, procedure or other information contained
in the Services, except as otherwise specifically authorized in accordance with this Section
33; (iv) provide the Services or Documentation to any third party, other than to your
authorized employees and contractors who are subject to a written confidentiality
agreement, the terms of which are no less restrictive than the confidentiality provisions of
the Agreement; (v) use, modify, adapt, reformat, copy or reproduce the Services or
Documentation or any portion thereof, except as is incidental to the purposes of this Section
33, or for archival purposes (any copies made hereunder shall contain all appropriate
proprietary notices); (vi) rent, lease, upload, assign, sublicense, transfer, distribute, allow
access to, or time share the Services or Documentation; (vii) circumvent or attempt to
circumvent any applicable security measures of the Services; (viii) attempt to access or
actually access portions of the Platform or Services not authorized for your use; and/or (ix)
use the Services in any unlawful manner or for any unlawful purpose.
33.4.4. Updates. From time to time we may, at our discretion, release Updates or modify
the Software. In the event we notify you of any such Update, you shall integrate and install
such Update into Your Systems within thirty (30) days of your receipt of such notice. You
acknowledge that failure to install Updates in a timely fashion may impair the functionality
of the Platform or any of our Services provided hereunder. We will have no liability for
your failure to properly install the most current version of the Software or any Update, and
we will have no obligation to provide support or Services for any outdated versions.
33.4.5. Licensors. The licenses granted hereunder may be subject to other licenses
currently held by us or our subcontractors. Should any license held by us to certain
technology or software be terminated or suspended, the corresponding license(s) granted
to you hereunder may also be terminated or suspended in our sole and absolute discretion.
You acknowledge and agree to such potential termination or suspension and hereby waive
any and all damages, whether actual, incidental or consequential resulting therefrom.
33.4.6. Export Compliance. You agree not to export or re- export the Software or any
underlying information or technology except in full compliance with all applicable laws
and regulations. In particular, but without limitation, none of the Software or underlying
information or technology may be downloaded or otherwise exported or re- exported (i) to
any country to which the United States has embargoed goods (or any national or resident
thereof); (ii) to anyone on the United States Treasury Department's list of Specially
Designated Nationals or the United States Commerce Department's Table of Deny Orders;
FDSIS00B1805(ia) 35
or (iii) in any manner not in full compliance with the requirements of the United States
Bureau of Industry and Security and all applicable Export Administration Regulations. If
you have rightfully obtained the Software outside of the United States, you agree not to re-
export the Software except as permitted by the laws and regulations of the United States and
the laws and regulations of the jurisdiction in which you obtained the Software. You warrant
that you are not located in, under the control of, or a national or resident of any such
country or on any such list.
33.4.7. Federal Acquisition Regulations. if you are acquiring the Software on behalf of
any part of the United States Government (the "Government "), the following provisions
apply: Any use, duplication, or disclosure by the Government is subject to the restrictions
set forth in subparagraphs (a) through (d) of the Commercial Computer Software - Restricted
Rights clause at FAR 52.227 -19 when applicable, or in subparagraph (c)(1)(ii) of the Rights
in Technical Data and Computer Software clause at DFARS 252.227 -7013, and in similar
clauses in the NASA FAR Supplement. We are the contractor /manufacturer, with the address
set forth below Any use, modification, reproduction, release, performance, display or
disclosure of the Software and/or the accompanying documentation by the Government or
any of its agencies shall be governed solely by the terms of this Agreement and shall be
prohibited except to the extent expressly permitted by the terms of this Section 33.
33.4.8. Return /Destruction. Upon termination or expiration of this Agreement, all
licenses granted hereunder shall immediately terminate, and within five (5) days thereof,
you shall either return to us or destroy the Software and the Documentation, and shall so
certify to us in writing.
33.4.9. No other Licenses. Except as expressly provided above, no license for any
patents, copyrights, trademarks, trade secrets or any other Intellectual Property Rights,
express or implied, are granted hereunder.
33.4.10. Use of Transaction Data. As permitted by applicable law and regulations, we
reserve the right to copy and distribute to third parties, any information associated with
your use of the Services or your activities on the Platform.
33.5. Platform Matters
33.5.1. Integration with Your Systems. While we provide Software to you, you
acknowledge that the Software itself is insufficient to allow Your Systems to function with
the Platform. Programming, development and maintenance of Your Systems and their
functionality are your sole responsibility You have the sole responsibility to select and
employ any competent programming agent(s) to accomplish the programming required to
make Your Systems function correctly with the Platform and the payment services
contemplated hereunder ( "Integration "). You shall be responsible for all technical support
for Your Systems and Integration related issues. You agree that you will use commercially
reasonable efforts to complete the Integration as soon as possible. You will be responsible
for all of your own development and implementation costs associated with such Integration.
Notwithstanding any other provision of this Section 33, you acknowledge that unless and
until you complete the Integration, no Services need be provided by us to you pursuant to
this Agreement, except as otherwise specifically provided in Section 33.5.2 below. In
addition, you acknowledge and agree that, even if you have completed Integration, if you
have not entered into a valid merchant processing agreement with an authorized bank card
processor, you cannot receive the Services through the Platform.
33.5.2. Set -Up Assistance Services. Subject to Section 33.5.1 above, upon your request
to us, and upon payment of any applicable Fees, we will provide you with set -up services
to assist with the Integration.
33.5.3. Shut Downs. We reserve the right, from time to time, without prior notice, to
shut dower and restart the Platform for maintenance and/or software upgrades for reasonable
time periods of one minute or more.
33.5.4. Orders by Customers. You are solely responsible for accepting, processing, and
filling any orders for purchases by your Customers, and for handling any inquiries arising
therefrom. You shall use the highest standards in the industry in responding to complaints
by Customers. We are not responsible or liable for any unauthorized access to your data or
Your Systems by any means or device.
33.5.5. Suspension of Access to the Platform and Services. We may suspend your
access to the Platform and Services, without prior notice, with cause. For purposes of this
Section 33 the term "cause ", in addition to cause as defined under the Agreement, shall
mean that significant activity by you has been detected (which excludes a high volume of
transactions) or the security or integrity of the Platform is materially compromised. We
will make commercially reasonable efforts to provide prior notification to you of any such
proposed suspension and provide you with a reasonable opportunity to cure, provided just
you (and no other user) are affected, and provided such cure is allowed by the applicable
law or the Card Organization Rules. If prior notification to you is not possible because such
significant activity or security issue would materially and adversely affect other users of
the Platform and Services, then we will provide notice of such suspension as promptly as
possible thereafter with detailed information regarding the suspected fraudulent activity or
security issue, as well as any other information that can assist you with identifying the root
cause of the problem responsible for such suspension. Upon a determination by us that
you are not responsible for the fraudulent activity or security issue resulting in the
suspension or any security threat as abated, the Services and your license to the Software
shall be promptly re- activated and the Services under this Section 33 shall recommence.
Regardless of the reason for such suspension, you shall be responsible for the payment of
all fees due up to and including the effective date of the suspension.
33.6. Security of Information. We will use commercially reasonable efforts to maintain
the security of the Services and the Platform. You will use commercially reasonable efforts
to maintain the security of Your Systems. Such steps by you will be taken at your sole cost
and expense, and shall include, without limitation: (i) creating firewalls to protect against
unauthorized access to Your Systems by your employees, contractors, Customers, or by
any other person; and (ii) implementing reasonable protective techniques suggested by us.
You further agree that you will be bound by and comply with all of our and all Card
Organization security rules and regulations as they now exist or as each may be amended
or supplemented from time to time. Notwithstanding the foregoing, the parties recognize
that there is no guarantee or absolute security of information that is communicated over the
internet.
33.7. Privacy. We have adopted online Privacy Statement(s) to inform individuals as to
our online collection and use of personal information. You agree that, during the term of
this Agreement, you will adequately communicate and comply with an appropriate privacy
policy explaining your online collection and use of the personal information of your
Customers. Unless required by law, Card Organization Rules, or done pursuant to this
Agreement, you shall not, under any circumstances, sell, purchase, provide, or otherwise
disclose any customer's account information, transaction information, or other personal
information to any third party. You shall store all data securely. We may advise potential
users of the services that we have a relationship with you.
33.8. Audit Rights. Upon notice to you, we may audit your usage, records and security
of the Services, your Customer's payment processing information, and the services provided
hereunder to ensure (i) that you are using the Services in full compliance with the
provisions of this Section 33; (ii) that all applicable fees have been paid; (iii) that you are
adhering to your privacy policy; and; (iv) that you are in full compliance with all applicable
laws, regulations and rules (including but not limited to Card Organization Rules). Any
such audit shall be conducted during regular business hours at your offices and shall not
interfere unreasonably with your business.
33.9. Indemnification. You shall indemnify, defend, and hold us, our subsidiaries and
affiliates and our and their officers, directors, employees, shareholders, agents and attorneys
from any Claim(s) arising from the conduct of your business, any Transactions submitted
through the Platform hereunder for payment processing, any false or inaccurate
representation made by you or the negligence, fraud, dishonesty or willful behavior of any
of your employees or agents, or from your failure to strictly comply, in whole or in part, with
any: (i) terms and conditions pursuant to this Agreement and any addenda hereto or
Documentation; or (ii) applicable law, regulations or rules. Upon written notice from us to
you, you shall immediately undertake the defense of such Claim by representatives of your
own choosing, subject to our reasonable approval.
33.10. Limitation of Liability.
33.10.1. Processor is not liable for the merit and legitimacy of the orders forwarded by
you. All liability for validity of orders remains with you. We are not responsible for any
data entry errors, Customer misrepresentations, or reporting errors resulting from your
actions. We shall not be liable to you or your Customer for the accuracy of the information
provided by the Platform or our Services.
33.10.2. in no event shall we be liable to you, or to any other person or entity, under this
Section 33, or otherwise, for any punitive, exemplary, special, incidental or consequential
damages, including, without limitation, any loss or injury to earnings, profits or goodwill.
33.10.3. Notwithstanding any provision in this Agreement to the contrary, in no event
shall our liability under this Section 33 for all Claims arising under, or related to, this
Section 33 exceed, in the aggregate (inclusive of any and all Claims made by you against
us, whether related or unrelated), the lesser of: (i) the total amount of fees paid by you for
the our Services during the 12 -month period immediately preceding the date the event
giving rise to such Clainn(s) occurred; or (ii) $50,000.00.
33.10.4. Notwithstanding provisions set forth herein, we will not be liable for any Claims
under this Agreement arising directly or indirectly from or otherwise concerning: (a) any
termination, suspension, delay or disruption of service (including billing for a service) by
the Internet, any common carrier or any third party service provider; (b) any failure,
disruption or malfunction of the Services provided hereunder or the Internet, or any
communications network, facility or equipment beyond our reasonable control, whether or
not attributable to one or more common carriers or third party service providers; (c) any
failed attempts by you or your Customers to access any Systems or to complete processing
transactions; or (d) any failure to transmit, obtain or collect data from Customers or for
human, machine or software errors or faulty or your or your Customer's erroneous input.
Except as expressly agreed to by us in writing with respect to any Separate Product, we are
not liable for any Excluded Products.
33.11. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE
THAT THE USE OF THE PAYEEZY GATEWAY SERVICES AND DOCUMENTATION ARE
AT YOUR SOLE RISK WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS SECTION,
PAYEEZY GATEWAY SERVICES, DOCUMENTATION, OUR PROCEDURES, OTHER
SERVICES PROVIDED OR PERFORMED BY US HEREUNDER, INCLUDING, WITHOUT
LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF NONINTERFERENCE OR NON -
INFRINGEMENT; OR (C) ANY WARRANTIES THAT ANY PRODUCT OR SERVICE
PROVIDED HEREUNDER (INCLUDING BUT NOT LIMITED TO THE SOFTWARE) WILL
(1) MEET YOUR REQUIREMENTS; (2) OPERATE ACCORDING TO YOUR EXPECTATIONS;
FDSIS00B1805(ia) 36
(3) PROVIDE ACCURATE DATA; OR (4) OPERATE UNINTERRUPTED OR ERROR FREE.
ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY US AND WAIVED
BY YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED. EXCEPT
AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE PAYEEZY GATEWAY
SERVICES, (INCLUDING WITHOUT LIMITATION THE PAYEEZY GATEWAY AND
SOFTWARE), DOCUMENTATION AND OTHER SERVICES PROVIDED HEREUNDER
ARE PROVIDED ON AN "AS -IS, WITH ALL FAULTS" BASIS. THIS DISCLAIMER OF
WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. All
decisions to reject any processing transaction or payment for your products or services are
solely your responsibility.
33.12. Notices. You agree to notify us of any change in your name, type of business, or
any other information required on your Merchant Processing Application at least thirty
(30) business days prior to the effective date of change. Any notice or other communication
required or permitted to be given hereunder shall be in writing, addressed or transmitted
to the party to be notified at such party's address or number at such party's last known
address or number, and shall be: (i) if sent by us, hand delivered or delivered by facsimile
transmission, overnight courier or certified, registered, regular mail or e-mail; or (ii) if sent
by you, certified or registered mail, postage prepaid return receipt requested to 3975 N.W.
120th Avenue, Coral Springs, FL 33065. Any notice delivered hereunder shall be deemed
effective, as applicable, upon delivery, if hand delivered or sent by overnight courier; upon
receipt as evidenced by the date of transmission indicated on the transmitted material, if by
facsimile transmission or e-mail; on the date of delivery indicated on the return receipt, if
mailed by certified or registered mail; or ten (10) days after mailing, if by regular mail (or
as otherwise required by applicable law). The parties' addresses may be changed by written
notice to the other party as provided herein.
33.13. Subcontractors. Processor may subcontract all or part of the Services using a
variety of providers globally, but, notwithstanding any such subcontract, Processor shall
remain fully responsible for performance of the Services, including ensuring the compliance
of subcontractors with the terms of this Agreement applicable to such subcontractors.
33.14. Survival. Upon termination or expiration of this Section 33 or the Agreement, a
party's obligations shall cease except for those remaining or required to be performed
following such termination. For the avoidance of doubt, the parties agree that those
provisions of this Section that logically should survive its termination or expiration in order
to accomplish its fundamental purposes will do so. All representations, warranties,
indemnities and covenants made herein shall survive the termination of this Section and
shall remain enforceable after such termination.
34. Special Provisions Regarding Global ePricing Services
If you elect to receive the Global ePricing Service, the terms and conditions of this Section
34 shall apply. The Global ePricing Service ( "GeP Service ") is provided to you by Processor
and Bank.
Capitalized terms used in this Section 34 and not otherwise defined herein shall have the
same meaning set forth in the Agreement.
34.1. Definitions.
Foreign Currency means the currency other than the Local Currency.
GeP Sales Transaction means a card not present transaction between Client and a
Cardholder in which the Client presents the Transaction Price in a card not present
environment and the Cardholder authorizes (i) the Transaction Price to be submitted to a
Card Organization for settlement, and (ii) that the Cardholder's account will be charged
for the Transaction Price.
GeP Service Provider has the meaning set forth in Section 34.2.2
GeP Services means the merchant pricing of goods and services in a Foreign Currency and
the activity undertaken by Servicers and/or a GeP Service Provider to authorize, process, and
settle GeP transactions initiated by Cardholders using a card type approved by Servicers for
use with GeP Sales Transactions in a card not present environment established and
maintained by a Client domiciled in the United States or United States territories, or other
counties permitted by Servicers. Merchant acknowledges that Dynamic Currency
Conversion as defined by Card Organization rules is not penmitted or provided under GeP
service.
GeP Sponsor Bank has the meaning set forth in Section 34.2.2
Local Currency means US Dollars (i.e., the currency associated with the domicile of the
Merchant utilizing the GeP Service).
Transaction Price means the price for a product or service sold by the Client in a card not
present environment as quoted by the Client to a Cardholder in a Foreign Currency.
Transaction Rate means the then - current Foreign Currency exchange rate used by the
Card Organizations or their designee from time to time to convert the net funding amount
into the Local Currency.
34.2. GeP Services.
34.2.1. We will provide GeP Services to you with respect to GeP transactions on the terms
and conditions set forth in this Section. The list of foreign currencies supported under the
GeP Services will be provided to you upon request and may be modified from time to time
by us. Card types that we have approved for GeP Sales Transactions are VISA and
Mastercard; we may modify the card types approved for GeP transactions from time to time
on notice to you.
34.2.2. Client acknowledges that Client is solely responsible for all aspects of a GeP
transaction (other than the performance of GeP Services hereunder), including without
limitation, obtaining the Cardholder's consent to execute a GeP transaction, and complying
with all Card Organization Rules applicable to merchants with respect to GeP transactions.
The Foreign Currencies that Merchant has elected to support will be initially identified.
Merchant shall notify us in writing of any additional Foreign Currencies that it wishes to
support; if we support such currencies, we will work with the Merchant to implement such
currencies for merchant within a commercially reasonable time frame.
34.2.3. Authorization and Settlement between Servicers and Client of GeP Sales
Transactions shall be made in the Foreign Currency on the basis of the Transaction Price
of the GeP Sales Transaction. The US Dollar amount funded for each such transaction will
be based on the applicable Local currency exchange rate provided by the applicable card
organization for use on the day such transaction is submitted by Merchant for entitlement.
Merchant shall be subject to any and all Foreign Currency exchange rate exposure and bear
all such exchange rate exposure risk in connection with each GeP Sale Transaction.
34.2.4. Refunds, Credits, returns and Chargebacks shall be treated as independent GeP
transactions and the Transaction Rate used for refund, Credit, return and Chargeback
transactions shall be determined by the applicable Card Organization. Merchant shall be
subject to any and all Foreign Currency exchange rate exposure and bear all such exchange
rate exposure in connection with refunds, credits, returns or Chargebacks.
34.2.5. For the avoidance of doubt, except as expressly provided in this Guide, the terms
and conditions of this Guide with respect to a card transaction (including the rights and
obligations of Servicers and Merchant with respect to such a transaction) shall apply to
GeP transactions.
34.2.6. Upon written request from Merchant, and subject to written approval from
American Express, we will support American Express multi - currency transactions on our
platforms that have been certified by American Express for such purposes. Our support of
American Express multi - currency transactions may be subject to additional fees.
34.2.7. Merchant acknowledges and agrees that all fees in the Agreement that apply to and
are payable by Merchant with respect to a Card transaction also apply to and are payable
by Merchant with respect to a GeP transaction or American Express multi- currency
transaction; in addition, GeP fees apply and are payable by the Merchant.
34.2.8. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LOW, THE GEP
SERVICES AND, IF APPLICABLE, SUPPORT OF AMERICAN EXPRESS MULTI -
CURRENCY TRANSACTIONS ARE PROVIDED TO MERCHANT "AS IS", WITHOUT
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WITHOUT
LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES, WARRANTIES OF NON -
INFRINGEMENTS, MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND ANY WARRANTIES THAT ANY SUCH SERVICES WILL BE COMPLETELY
ACCURATE, ERROR -FREE OR AVAILABLE WITHOUT INTERRUPTION.
34.5. Term; Suspension;Termination.
34.5.1. This GeP Service is co- terminous with the Agreement and may be terminated in
conjunction with or separate from the Agreement in accordance with the terms of this
Section. If this GeP Service terminates prior to the termination of the Agreement, such
termination shall not terminate the obligations or rights of the parties pursuant to
provisions of this Section which are to survive or be perpetual or irrevocable. Such
provisions (including payment or reimbursement obligations) shall survive termination of
this Section.
34.5.2. Client may terminate its participation in the GeP Services, and Servicers may cease
to offer the GeP Services to Client with respect to the Card Organizations: (i) without cause
upon not less than thirty (30) days' written notice to the other party; or (ii) immediately
upon written notice to the other party if Client or Servicers determine that continuing to
utilize the GcP Services as provided herein will violate any applicable law or any provision
of the Card Organization Rules. Termination of Client's participation in the GeP Services by
Client or Servicers shall terminate this Section.
34.5.3. If Servicers reasonably suspect that Client is not in compliance with Card
Organization Rules or the terms of this Section (including Section 34.2.4 above), Servicers,
in their sole discretion, may: (a) immediately cease processing Client's GeP Sales
Transactions until such time as the Client verifies compliance to Servicer's satisfaction,
and/or (b) terminate this Addendum immediately
34.5.4. Servicers may terminate this Service:
a) Immediately upon a breach by Client of its confidentiality obligations under this
Section;
b) For an), of the reasons set forth in the Agreement that permit Servicers to terminate the
Agreement if applicable to the GeP Services; or
c) As otherwise set forth in this Section.
34.5.5. Client may terminate this GcP Service for any of the reasons set forth in the
Agreement that permit Client to terminate the Agreement if applicable to the GeP Services,
or as otherwise set forth in this Section.
34.5.6. Termination of the Agreement shall effect a termination of this GeP Service.
34.6. Third Party Beneficiaries. Servicers are direct and intended third party beneficiaries
to the Global ePricing Service, and may enforce their rights under this Section directly
against Client.
34.7. Indemnification.
FDSISOOB1805(ia) 37
34.7.1. All limitations of liability and liability disclaimers set forth in the Agreement shall
apply to any liability of Servicers and the liability of Servicers shall be limited to the same
amount and to the same extent as Servicers' limitations set forth in the Agreement.
34.7.2. In addition to the indemnification obligations in the Agreement, Client agrees to
indemnify and hold harmless Servicers from and against all losses, liabilities, damages, and
expenses (including reasonable attorneys' fees and collection costs) resulting from third
party claims related to any acts or omissions of Client in connection with any GeP Sales
Transaction or other GeP transaction, including any alleged misrepresentation or deceptive
or unlawful trade practice, a violation of applicable law or the Card Organization Rules, or
a breach of any of Client's obligations under this Section. Any limitations on Client's liability
which may be specified in the Agreement shalt not be applicable to Client's indemnification
obligation set forth in the preceding sentence.
35. Special Provisions Regarding Insightics Services
If you elect to utilize the First Data Insightics`"' Solution ( "Insightics ") the terms and
condition in this Section 35 shall apply ( "Insighties Terms and Conditions "); and if you
were granted a First Data Insightics Temporary Demonstration License, an election for
Services under this Section 35 shall serve to supersede it. Insighties is provided to you by
Processor and not Bank. Bank is not liable to you in any way with respect to Insightics.
Insightics, transactions processed, and other matters contemplated under Section 35 are
subject to the terms and conditions of the Agreement, as applicable, except to the extent
the terms directly conflict with the Insightics Terms and Conditions, in which case the
Insightics Terms and Conditions will control.
35.1. Definitions. Capitalized terms used herein shall have the meanings given to such
terms as set forth in Section 35.1 or as defined elsewhere in this Section 35, or the
Agreement.
"Customer" means a Person who makes a purchase of goods or services from you, the
transaction detail of which is utilized in Insightics.
"Customer Information" means information about your Customers (e.g., name, mailing
address, card account number, e-mail address, telephone number) obtained in connection
with your use of the Services and may be utilized in Insightics.
"Data" means transaction data that may include processing data from First Data Merchant
Services Corporation's credit and debit information warehouse and other available sources
that First Data Merchant Services Corporation owns or has a contractual or other right to
use in Insightics.
"Device" means a tablet, computer, smartphone or other mobile device, or other device
that you use to access the Insightics website to receive or to which you receive
communications from Insightics.
"First Data" means First Data Corporation, which is the parent company of First Data
Merchant Services Corporation.
"First Data Insightics Marks" means the trademarks or service marks related to
Insightics'" and sub - licensed to you by Processor.
"First Data Insightics Solution" or "Insightics Solution" means the website or the
application associated with Insighticss"^, the object code version of the Insightics software
applications and communications you receive from the applications. Among other things,
Insightics allows merchants to track and visualize information regarding their own revenue,
ticket size, and Customers contained in the Data and other third party data sources.
Insightics may also permit a merchant to compare its performance to groups of similar
businesses within their industry and/or certain geographic areas using the Data and other
third party data sources, subject to certain limitations. The features and functionality of
Insightics may be modified from time to time by First Data or its third party provider(s).
For the avoidance of doubt, the term "software" in this definition does not include any
software that may be obtained by you separately from Insightics (e.g., any applications
downloaded by you). The First Data Insightics Solution is deemed part of the "Services,"
as defined in and provided under the Agreement.
"Insightics Solution Fees" means the fees charged for your use of the First Data Insightics
Solution, which includes additional fees for multiple locations.
"Third Party Services" are the services, products, promotions or applications provided
to you by or through someone other than Processor.
"User Documentation" means that documentation regarding the operation, guidelines
and features and functionality of Insightics that is made available to you from time to time
at the website, by intereet link or otherwise. User Documentation may be modified from
time to time by First Data or its third party provider(s).
35.2. License Grant. Subject to the Insightics Terms and Conditions in this Section 35,
Processor grants you a personal, limited, non - exclusive, revocable, non - transferable sub-
license, without the right to further stub- license or assign in any way, to electronically access
and use, solely in the United States, Insightics to manage your establishment(s) and analyze
associated point of sale activities within the United States. For purposes of this Section 35,
"United States" does not include U.S. Territories or possessions. Insightics is for your
internal business use only. This Section 35 does not grant you any rights to First Data
Insightics Marks. Except for the license expressly granted herein, all intellectual property
and proprietary rights in or related to Insightics and First Data Insightics Marks are and will
remain the sole and exclusive property of First Data or its affiliates, vendors, or third party
provider(s) (as applicable), and any and all right, title and interest associated with Insightics
not expressly granted in this Section 35 is deemed withheld.
35.3. Restrictions.
35.3.1. You may not, nor may you permit any third party, other than employees and agents
with a business need, to do any of the following: (a) access or attempt to access Insightics
(or any part) that is not expressly made available for public use; (b) decompile, disassemble,
reverse engineer, or otherwise attempt to reconstruct or discover by any means any source
code or any underlying data, ideas or algorithms of Insightics (or any part), except to the
extent that such restriction is expressly prohibited by law; (c) modify, translate, or alter in
any manner, Insightics (or any part), or First Data Insightics Marks; (d) create derivative
works of or based on Insightics (or an), part) or Insightics Marks; (e) except for backup and
archival purposes, directly or indirectly copy Insightics (or any part), except screen shots
may be copied and retained solely for internal business purposes; (f) republish, upload,
post, transmit, disclose, or distribute (in any format) Insightics (or any part) except as
expressly permitted herein; (g) access or use (in any format) Insightics (or any part)
through any time- sharing service, service bureau, network, consortium, or other means; (h)
rent, lease, sell, sublicense, assign, or otherwise transfer your license rights to any third
party, whether by operation of law or otherwise; (i) use or ship Insightics (or any part)
outside of the United Statcs, or access Insightics (or any part) from outside the United
States, without in any case obtaining our advance written consent; (j) remove, relocate, or
otherwise alter any proprietary rights notices from Insightics (or any part), or First Data
Insightics Marks; (k) perform or attempt to perform any actions that would interfere with
the proper working of Insightics, prevent access to or use of Insightics by other users, or
in our reasonable judgment impose an unreasonable or disproportionately large load on
Insightics' infrastructure, network capability or bandwidth; or (1) use Insightics (or any
part) except as permitted in Section 35.2.
35.3.2. You shall not take any action inconsistent with the stated title and ownership in
Section 35.2. You will not file any action in any forum that challenges the ownership of any
part of Insightics, any related software, materials or User Documentation. Failure to comply
with this provision will constitute a material breach of this Agreement and may restrict
Processor's ability to sublicense Insightics to you. Processor has the right to immediately
terminate Services under this this Section 35, and First Data has the right to immediately
terminate your access to and use of Insightics in the event of a challenge by you.
35.4. Insightics Limitations and Requirements.
35.4.1. You may access Insightics through your Device using a wired (ethernet) or wireless
(wifi or cellular) connection to the Internet. You are solely responsible for the payment of
any fees that may be imposed by your Internet/data provider. Your use of Insightics may be
subject to: (a) the terms of your agreements with your Internet/data provider; and (b) the
availability or uptime of the services provided by your Internet /data provider.
35.4.2. You may use Insightics to conduct analysis of the Data and third party data trade
available through Insightics application and/or other tools made available at the website or
in the application.
35.4.3. First Data may alter which Devices and browsers are approved as compatible with
Insightics in its discretion from time -to -time.
35.4.4. First Data may perform maintenance on Insightics from time to time which may
result in service interruptions, delays, or errors. Neither First Data nor its affiliates, vendors,
or third party provider(s), will be liable for any such interruptions, delays, errors, or bugs. You
agree that First Data or its affiliates, vendors, or third party provider(s) may contact you in
order to assist you with Insightics and obtain information needed to identify and fix any
errors.
35.4.5. You shall at all times comply with the User Documentation.
35.4.6. You shall comply with the following requirements in connection with your use of
Insightics:
35.4.6.1. In the event you are able to discern any information about a particular entity or
individual from the information available from Insightics, either alone or with other
information in your possession, you understand and acknowledge that the information
may be subject to certain privacy, marketing, insider trading, or other applicable laws and
you will limit your use thereof in accordance with all applicable laws.
35.4.6.2. With respect to each Customer who desires to receive marketing material or
other communications from you via text message or email, such Customer must check the
appropriate consent or the consent must be provided in writing; you are NOT permitted to
add or modify a Customer's consent indication on his behalf.
35.4.6.3. You (or your agents acting on your behalf) may only send marketing materials
or other communications to the Customer's provided phone number, street address, and/or
email address if the Customer has specifically consented in writing executed by the
Customer.
35.4.6.4. NOTWITHSTANDING THE CAPABILITY OF 1NSIGHTICS TO COLLECT AND
STORE CUSTOMER INFORMATION, SOME STATES MAY LIMIT YOUR USE OF SUCH
INFORMATION ONCE COLLECTED, EVEN iF THE CUSTOMER HAS PROVIDED ITS
CONSENT, AND /OR YOUR DISCLOSURE OF SUCH INFORMATION TO THIRD
PARTIES. YOU ACKNOWLEDGE AND AGREE THAT (1) YOUR USE OF CUSTOMER
INFORMATION OBTAINED IN CONNECTION WITH INSIGHTICS MAY BE SUBJECT
TO LOCAL, STATE, AND /OR FEDERAL LAWS, RULES, AND REGULATIONS, (11) YOU
ARE SOLELY RESPONSIBLE FOR KNOWING SL?CH LAWS, RULES, AND REGULA-
TIONS, AND (iII) YOU WILL AT ALL TIME STRICTLY COMPLY WITH ALL SUCH LAWS,
RULES, AND REGULATIONS.
35.4.7. You shall comply fully with the requirements of all applicable federal, state and
local laws and regulations related to your use of Insightics and provision and use of
Customer Information and point of sale data in connection with Insightics. Furthermore,
FDSISOOB 1805(ia) 38
you are solely responsible for monitoring legal developments applicable to Insightics and
the operation of your business, interpreting applicable laws and regulations, determining
the requirements for compliance with all applicable laws and regulations, and maintaining
an on -going compliance program.
35.4.8. In connection with Insightics, you shall receive a username and password to access
Insightics. You are responsible for securely storing and keeping the username and password
in accordance with this Section 35.10 below You will not permit anyone unauthorized by
YOU to use the username and password and you may only authorize your employees and
agents with a business need to use the username and password. At such time as multiple
usernames and passwords are available, you shall restrict the use of usernames and
passwords to single individuals and you shall monitor use of Insightics to ensure
compliance with this Section 35 by those to whom you have provided usernames and
passwords and you shall keep records regarding who has access to which usernames and
passwords at all times.
35.5. Equipment. You must obtain all equipment necessary for you to access and use the
Insightics website. No communication channel or device to access the website is included
within the provision of the First Data Insightics Solution, and you shall be responsible for
all such equipment and communication channels, including but not limited to all device or
channel compatibility.
35.6. Term and Termination. Insightics Terms and Conditions in this Section 35 shall
become effective upon execution hereof and shall end when terminated as set forth herein.
For the avoidance of doubt, except as set forth below, termination of Services under Section
35 will not terminate the underlying Agreement. You may terminate your First Data
Insightics Solution services at any time upon thirty (30) days' notice by calling the
Customer Service number on your statement. Notwithstanding the foregoing sentence,
upon as much advance notice as is commercially practicable, First Data may terminate your
access to, and use of Insightics if (i) it is determined that you are using Insightics for any
fraudulent, illegal, or unauthorized purpose, (ii) you violate the Insightics Terms and
Conditions or an Event of Default occurs under the Agreement, (iii) First Data terminates
its agreement with any third parties that are involved in providing Insightics, or (iv) First
Data otherwise decides to discontinue providing Insightics. You acknowledge and agree
that an occurrence of (i) or (ii) above may be deemed an Event of Default under the
Agreement, thereby affording Processor and Bank all rights and remedies as set forth in the
Agreement triggered by such an Event of Default, which may include immediate
termination of the Services under Section 35 without notice.
35.7. Third Party Services. Insightics may be used in connection with Third Party
Services that you obtain separately for your purposes (e.g., an accounting application on
your Device). If you decide to use Third Party Services, you will be responsible for reviewing
and understanding the terms and conditions associated with Third Party Services (including
obtaining and maintaining any required third party hardware and/or software that is
required for the Third Party Services to work with Insightics). Your access of any Third
Party Services is at your own risk. Third Party Services are not governed by the terms and
conditions of this Section 35 or the Agreement. ANY CONTENT DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF THIRD PARTY SERVICES (E.G.,
ACCOUNTING APPLICATION) IS DOWNLOADED AT YOUR OWN RISK. NEITHER
FIRST DATA NOR ITS AFFILIATES, VENDORS, OR THIRD PARTY PROVIDER(S),
WILLBE RESPONSIBLE FOR ANY ACTIONS OR ANY FAILURES TO ACT OF ANY
THIRD PARTY, AND SUCH LIABILITY RELATED TO ALL THIRD PARTY SERVICES IS
EXPRESSLY DISCLAIMED.
35.8. Account Registration. First Data may require you to register at Insightics website
or through the application. If and when prompted by the registration process, you agree to
(a) provide true, accurate, current and complete information about yourself and/or your
business, and (b) maintain and update this information to keep it true, accurate, current and
complete. If any information provided by you is untrue, inaccurate, not current or
incomplete, First Data has the right to terminate your First Data Insightics account
( "Account ") and refuse any and all current or future use of Insightics.
35.9. Privacy and Data Use. All data collected from you in connection with the Services
or in connection with your use of Insightics, including Customer Information and
information about your business and employees used with or stored in or by Insightics
(collectively, "Account Data "), is collected by First Data, its affiliates, vendors, and/or third
party provider(s) ; therefore, the use and sharing of such Account Data is controlled by the
applicable Privacy Policy displayed and available at or through a link on the Insightics
website. You acknowledge and agree that First Data, its affiliates, vendors, and/or third
party provider(s) may access your Account Data, and our use of your Account Data is
governed by the Insightics Terms and Conditions and the Agreement. You also agree that
First Data, its affiliates, vendors, and/or third party provider(s) may access and use Account
Data to provide or enhance Insightics or the Services.
35.10. ProteetingYour Information. You are solely responsible for ensuring that your
account numbers, passwords, security questions and answers, login details and any other
security or access information used by you to use or access Insightics are kept safe and
confidential. You must prevent unauthorized access to and use of any Account Data. You
are responsible for all electronic communications sent to First Data, its affiliates, vendors,
or third party provider(s) containing Account Data. When First Data receives
communications containing Account Data, it will assume you sent it to First Data. You
must immediately notify First Data if you become aware of any loss, theft or unauthorized
use of any Account Data (see Insightics support center contact information below). First
Data reserves the right to deny you access to Insightics, in whole or in part, if First Data
believes that any loss, theft or unauthorized use of any Account Data or access information
has occurred.
35.1 1. Accuracy of Information. You are solely responsible for ensuring the accuracy
of all information and data regarding your business that you provide to First Data, its
affiliates, vendors, and/or third party provider(s) in connection with Insightics (e.g.,
Customer Information). First Data, its affiliates, vendors, and/or third party provider(s)
disclaim any and all liability arising out of any inaccuracies as a result of use of such
information or data.
35.11. First Data Insightics Solution Disclaimer.
35.12.1. AS IS. USE OF INSIGHTICS IS AT YOUR OWN RISK. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, INSIGHTICS 1S PROVIDED "AS IS" AND
NEITHER FIRST DATA NOR ITS AFFILIATES, VENDORS, OR THIRD PARTY
PROVIDER(S) MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
(EXPRESS OR IMPLIED) WITH REGARD TO INSIGHTICS, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON - INFRINGEMENT, OR THAT INSIGHTICS WILL
FUNCTION UNINTERRUPTED OR ERROR -FREE, OR THAT INSIGHTICS i5 SECURE,
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ANY DEFECTS OR
ERRORS WILL BE CORRECTED.
35.12.2. Financial Advice. First Data Insightics Solution does not provide any business,
investment or financial advice and is not advocating any business decision or the sale or
purchase of any real property, stocks, bonds, or securities. First Data expressly states, and
you hereby acknowledge, that Insightics is provided solely for informational purposes and
are not to be used as a substitute for independent financial investment advice nor are they
intended to be relied upon by any person or entity, including you or your Customers for the
purposes of investment or other financial decisions. Insightics is not to be construed as
providing business or investment advice and should not be used or construed, in whole or
in part, as a basis or recommendation for an investment or business decision.
35.12.3. Accuracy. While First Data takes commercially reasonable measures to ensure
the accuracy of the information and content contained in Insightics, it snakes no
representation or warranty of any kind with respect to Insightics. You acknowledge and
agree that all use of Insightics by you and all other persons shall be: (i) based upon your
own determination and evaluation and (ii) at your sole risk. At times the Data may include
third party data that is appended to the Data and First Data has not investigated and does
not make any representation or warranty with respect to the accuracy of the third party
data.
3S.13. Indemnity. Without limiting your indemnification obligations in the Agreement,
you agree to indemnify and hold First Data, its affiliates, vendors, and third party
provider(s) harmless from and against all losses, liabilities, damages, and expenses
(including reasonable attorneys' fees) arising out of or relating to:
35.13.1. Your failure to comply with all terms and conditions in this Section 35, including
but not limited to User Documentation;
35.13.2. Your use (alone or in combination with any other information) of any Customer
Information, reports, information or analytics obtained in connection with your use of
Insightics;
35.13.3. The content or delivery of any marketing messages that you send or cause to be
sent to any Customer phone number or email address collected through the use of
Insightics; or
35.13.4. Any other party's access and/or use of Insightics with your unique username,
password, or other appropriate security code.
35.14. Notices. First Data, its affiliates, vendors, and/or third party provider(s) may
provide notices and other information regarding Insightics to you via the method(s)
described in the Agreement.
35.15. Amendment. First Data has the right to: (i) require changes or addition to the
Insightics Terms and Conditions in Section 35 at any time, and (ii) change, delete,
discontinue, or impose conditions on any feature or aspect of Insightics with notice
provided to you as set forth in the Notices section of the Section 35. Any use of Insightics
after the publication of any such changes shall constitute your acceptance of the Insightics
Terms and Conditions as modified.
35.16. Ideas. You may choose to, or First Data, its affiliates, vendors, or third party
provider(s) may invite you to, submit comments or ideas about Insightics, including, without
limitation, about how to improve Insightics ( "Ideas "). By submitting any Idea, you agree
that: (a) First Data expressly disclaims any confidentiality obligations or use restrictions,
express or implied, with respect to any Idea, (b) your submission will be non- confidential,
and (c) First Data is free to use and disclose any Idea on an unrestricted basis without
notifying or compensating you and without you claiming any rights therein. You release
First Data, its affiliates, vendors, or third party provider(s) from all liability and obligations
that may.arise from the receipt, review, use or disclosure of any portion of any Idea.
35.17. Third Party Beneficiaries. First Data, its affiliates, vendors, or third party
provider(s) used in providing Insightics are intended third party beneficiaries of this Section
35 as applicable, and each of them may enforce its provisions as if it was a party hereto.
Except as expressly provided in this Section 35, nothing in this Section 35 is intended to
confer upon any Persons any rights or remedies, and the parties do not intend for any
Persons to be third -party beneficiaries of this Section 35.
35.18. Limitation of Liability. The cumulative liability to you from First Data, its
affiliates, vendors, and third party provider(s) for any and all claims arising out of or
resulting from this Section 35 shall not exceed the total for the Insightics Solution Fees
you paid to the Processor in the twelve months immediately preceding any claim.
FDSISOOB1805(ia) 39
36. Special Provisions Regarding Clover Servi
If you elect to use the Clover Service, the following additional terms and conditions of this
Section 36 shall apply
The Clover Service is provided to you by Processor and not Bank. The Clover Service,
transactions processed, and other matters contemplated under this Section 36 are subject
to the terms and conditions of the Agreement, as applicable, except to the extent the terms
of this Section 36 directly conflict with another provision of the Agreement, in which case
the terms of this Section 36 will control; provided however, Bank is not a party to this
Agreement insofar as it applies to the Clover Service, and you acknowledge that Bank is not
liable to you in any way with respect to the Clover Service. For the purposes of this Section,
36, the words "we," "our" and "us" refer only to the Processor and not the Bank.
36.1. Definitions. Capitalized terms used herein shall have the meanings given to such
terms as set forth in this Section 36 or as defined in the Glossary or elsewhere in this
Agreement.
"Clover" means Clover Network, Inc.
"Clover Marks" means the trademarks or service marks of Clover, an affiliate of Processor.
"Clover Service" means the website associated with the Clover Service, the object code
version of Clover software applications (whether owned or licensed by Clover) resident on
a Device at the time we provide you with the Device and the object code version of the
software that enables the applications resident on a Device at the time of provisioning, and
any related updates (including software maintenance or bug fixes) that are designed to
assist with the management of your business and enable payment processing at the point
of sale, and any materials, documentation and derivative works released by Processor from
time to time. For the avoidance of doubt, the term software in the preceding sentence does
not include any software that may be obtained by you separately from the Clover Service
(e.g., any applications downloaded by you through an application marketplace). The Clover
Service is deemed part of the "Services," as defined in and provided under the Agreement.
"Customer" means a Person who makes a purchase of goods or services from you, the
transaction for which utilizes the Clover Service.
"Customer Information" means information about your Customers (e.g., name, mailing
address, e-mail address, telephone number) obtained in connection with your use of the
Clover Service.
"Device" means a tablet, smartphone, or other mobile or fixed forth factor identified by
Processor from time to time as compatible with and capable of supporting the Clover
Service.
"Third Party Services" are the services, products, promotions or applications provided by
someone other than Processor.
36.2. License Grant. During the term of the Agreement, Processor grants you a personal,
limited, non - exclusive, revocable, non - transferable license, without the right to sublicense
or assign in any way, to electronically access and use the Clover Service solely in the United
States to manage your establishment and conduct associated point of sale activities within
the United States in accordance with the terms of this Section 36. For purposes of this
Section 36, "United States" does not include U.S. Territories or possessions. The Clover
Service is for your internal business use only This Section 36 does not grant you any rights
to the Clover Marks. All intellectual property and proprietary rights in or related to the
Clover Service and the Clover Marks are and will remain our, our affiliates', our vendors',
or our licensors' (as applicable) sole and exclusive property, and any and all right, title and
interest associated with the Clover Service not expressly granted by Processor in this Section
36 are deemed withheld.
36.3. Restrictions. You may not, nor may you permit any third party to do any of the
following: (a) access or attempt to access the Clover Service (or any part) that is not
intended or made available for public use; (b) decompile, disassemble, reverse engineer, or
otherwise attempt to reconstruct or discover by any means any source code, underlying
ideas or algorithms of the Clover Service (or any part), except to the extent that such
restriction is expressly prohibited by law; (c) modify, translate, or alter in any manner, the
Clover Service (or any part) or the Clover Marks; (d) create derivative works of or based
on the Clover Service (or any part) or the Clover Marks, (e) except for backup and archival
purposes, directly or indirectly copy the Clover Service (or any part); (l) republish, upload,
post, transmit, disclose, or distribute (in any format) the Clover Service (or any part) except
as permitted herein; (g) access or use (in any format) the Clover Service (or any part)
through any time- sharing service, service bureau, network, consortium, or other means; (h)
rent, lease, sell, sublicense, assign, or otherwise transfer your license rights to any third
party, whether by operation of law or otherwise; (i) use or ship the Clover Service (or an),
part) outside of the United States, or access the Clover Service (or any part) from outside
the United States, without in any case obtaining our advance written consent; (j) remove,
relocate, or otherwise alter any proprietary rights notices from the Clover Service (or any
part) or the Clover Marks; (1c) perform or attempt to perform an), actions that would
interfere with the proper working of the Clover Service, prevent access to or use of the
Clover Service by other users, or in our reasonable judgment impose an unreasonable or
disproportionately large load on our infrastructure, network capability or bandwidth; or
(1) use the Clover Service (or any part) except as permitted in subsection 36.2 above.
You shall not take any action inconsistent with the stated title and ownership in subsection
36.2 above. You will not file any action, in any forum that challenges the ownership of any
part of the Clover Service, any related software, materials or documentation. Failure to
comply with this provision will constitute a material breach of this Agreement. We have the
right to immediately terminate your access to and use of the Clover Service in the event of
a challenge by you.
36.4. Clover Service Limitations and Requirements.
36.4.1. You may access the Clover Service through your Device using a wired (ethernet)
or wireless (wifi or cellular) connection to the Internet. You are solely responsible for the
payment of any fees that may be imposed by your Internet/data provider. Your use of the
Clover Service may be subject to: (a) the terms of your agreements with your Internet/data
provider; and (b) the availability or uptime of the services provided by your Internet/data
provider.
36.4.2. You may use the Clover Service to conduct point of sale activities offline;
transactions initiated offline will be queued and submitted for authorization when Internet
connectivity to the Clover System is restored. However, you assume all risk, responsibility
and liability associated with any transaction that you choose to conduct while the Clover
Service is used offline.
36.4.3. The Clover Service does not function with every mobile device. Processor may
alter which Devices are approved as compatible with the Clover Service in our discretion
from time -to -time.
36.4.4. We may perform maintenance on the Clover Service from time to time which may
result in service interruptions, delays, or errors. We will not be liable for any such
interruptions, delays, errors, or bugs. You agree that we may contact you in order to assist
you with the Clover Service and obtain information needed to identify and fix any errors.
36.4.5. You shall at all times comply with an), operating procedures, requirements, or
guidelines regarding your use of the Clover Service that are posted on the Clover website
or otherwise provided or made available to you (collectively, "Clover Ops Guide ").
36.4.6. You shall comply with the following requirements in connection with your use of
the Clover Service:
a) With respect to each Customer who requests the delivery of transaction receipts via
text message or email, such Customer must enter his phone number or email address
in the appropriate space displayed on the Device himself; you are NOT permitted to add
or modify any Customer Information (including but not limited to phone number and
email address) on behalf of a Customer.
b) With respect to each Customer who desires to receive marketing material or other
communications from you via text message or email, such Customer must check the
appropriate consent check box displayed on the Device himself; you are NOT permitted
to add or modify a Customer's consent indication on his behalf.
c) You (or your agents acting on your behalf) may only send marketing materials or other
communications to the Customer's provided phone number, street address, and/or email
address if the Customer has specifically consented by checking (himself) the applicable
box displayed on the Device.
d) NOTWITHSTANDING THE CAPABILITY OF THE CLOVER SERN710E TO COLLECT
AND STORE CUSTOMER INFORMATION AND TO ALLOW YOUR CUSTOMERS TO
ELECT TO RECEIVE MARKETING MATERIALS FROM YOU, SOME STATES MAY
LIMIT YOUR USE OF SUCH INFORMATION ONCE COLLECTED, EVEN IF THE
CUSTOMER HAS PROVIDED HIS CONSENT, AND /OR YOUR DISCLOSURE OF
SUCH INFORMATION TO THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE
THAT (1) YOUR USE OF CUSTOMER INFORMATION OBTAINED IN CONNECTION
WiTH THE CLOVER SERVICE MAY BE SUBJECT TO LOCAL, STATE, AND /OR
FEDERAL LAWS, RULES, AND REGULATIONS, (I1) YOU ARE SOLELY
RESPONSIBLE FOR KNOWING SUCH LAWS, RULES, AND REGULATIONS, AND
(III) YOU WILL AT ALL TIME STRICTLY COMPLY WITH ALL SUCH LAWS, RULES,
AND REGULATIONS.
e) If TransArmor software is resident on your Device at the time we provide you with the
Device and therefore part of the Clover Service, it will be used to perform such
encryption and tokenization ( "TransArmor Service ") and the additional terms set forth
in Section 32 apply. However you will only receive the applicable TransArmor service
subscribed by you as set forth in the Application.
f)You are responsible to provide and obtain any disclosures and consents related to the E-
SiGN Act that may be required in connection with your communications and agreements
with your Customers.
36.5. Fees. You shall pay Processor the fees for Clover Service as set forth on the
Application.
36.6. Term and Termination. The Clover Service may be terminated at any time by
either party upon thirty (30) days' written notice to the other party. Notwithstanding the
foregoing sentence, upon as much advance notice as is commercially practicable, we may
suspend or terminate the Clover Service if (a) we determine that you are using Clover
Service for any fraudulent, illegal, or unauthorized purpose, (b) you violate the terns of this
Section 36 or an Event of Default occurs under the Agreement, (c) we terminate our
agreement with any third parties that are involved in providing the Clover Service, or (d)
Processor otherwise decides to discontinue providing the Clover Service. You acknowledge
and agree that an occurrence of (a) or (b) above may he deemed an Event of Default under
the Agreement, thereby affording Processor and Bank all rights and remedies as set forth in
the Agreement triggered by such an Event of Default, which may include immediate
termination of the Agreement without notice.
36.7. Third Party Services. The Clover Service may contain links to Third Party Services
(e.g., an application marketplace). If you decide to use Third Party Services, you will be
responsible for reviewing and understanding the terms and conditions associated with Third
Party Services (including obtaining and maintaining any required third party hardware
and/or software that is required for the Third Party Services to work with the Clover
Service). Your access of any Third Party Services is at your own risk. Third Party Services
are not governed by the terms and conditions of this Section 36 or the Agreement. ANY
FDSISOOB1805(ia) 40
CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF
THIRD PARTY SERVICES (E.G., APPLICATION MARKETPLACE AND ANY APPS
AVAILABLE AT SUCH APPLICATION MARKETPLACE) IS DOWNLOADED AT YOUR
OWN RISK. PROCESSOR WILL NOT BE RESPONSIBLE FOR ANY ACTIONS OR ANY
FAILURES TO ACT OF ANY THIRD PARTY, AND PROCESSOR EXPRESSLY DISCLAIMS
ANY LIABILITY RELATED TO ALL THIRD PARTY SERVICES, PROCESSOR DOES NOT
WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD
PARTY SERVICE OR PRODUCT ADVERTISED OR OFFERED THROUGH THE CLOVER
SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY
BANNER OR OTHER ADVERTISING, AND PROCESSOR WILL NOT BE A PARTY TO OR
IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF
THIRD PARTY SERVICES OR PRODUCTS,
36.8. Account Registration. We may require you to register and create a "Member" or
"Merchant" account to use the Clover Service. If and when prompted by our registration
process, you agree to (a) provide true, accurate, current and complete information about
yourself and/or your business, and (b) maintain and update this information to keep it true,
accurate, current and complete. if any information provided by you is untrue, inaccurate,
not current or incomplete, we have the right to terminate your Clover Service account
( "Account ") and refuse any and all current or future use of the Clover Service.
36.9. Privacy and Data Use. All data collected from you at www. clover. corn or in
connection with your use of the Clover Service, including Customer Information and
information about your business and employees used with or stored in or by the Clover
Services (collectively, "Account Data "), is collected by Clover and not Processor or Bank;
therefore, the use and sharing of such Account Data is controlled by the Clover Privacy
Policy (available at https: / /www.clover.com/privacy_ policy). You acknowledge and agree
that we may access your Account Data upon our request to Clover, and our use of your
Account Data is governed by the terms set forth in the Agreement.
36.10. ProteetingYour Information. You are solely responsible for ensuring that your
account numbers, passwords, security questions and answers, login details and any other
security or access information used by you to use or access the Clover Service are kept safe
and confidential. You must prevent unauthorized access to and use of any Account Data.
You are responsible for all electronic communications sent to us or to any third party
(including Clover) containing Account Data. When we receive communications containing
Account Data, we assume you sent it to us. You must immediately notify us if you become
aware of any loss, theft or unauthorized use of any Account Data. We reserve the right to
deny you access to the Clover Service, in whole or in part, if we believe that any loss, theft
or unauthorized use of any Account Data or access information has occurred.
36.11. Accuracy of Information. You are solely responsible for ensuring the accuracy
of all information and data regarding your business that you provide to us or our service
providers in connection with the Clover Service (e.g., menus loaded onto the Device). In
addition, you are solely responsible for verifying that all information and data loaded onto
a Device by us or our service providers at your request are accurate prior to your business
use of such Device. We and our service providers disclaim any and ail liability arising out
of any inaccuracies with respect to such information or data.
36.12. Clover Service Disclaimer. USE OF THE CLOVER SERVICE OR ANY
EQUIPMENT PROVIDED WITH THE CLOVER SERVICE IS AT YOUR OWN RISK. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLOVER SERVICE
IS PROVIDED "AS IS" AND PROCESSOR MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND (EXPRESS OR IMPLIED) WITH REGARD TO THE
CLOVER SERVICE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -
iNFRiNGEMENT, OR THAT THE CLOVER SERVICE WILL FUNCTION
UNINTERRUPTED OR ERROR -FREE, OR THAT THE CLOVER SERVICE IS SECURE,
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ANY DEFECTS OR
ERRORS WILL BE CORRECTED.
36.13. Indemnity. Without limiting your indemnification obligations in the Agreement,
you agree to indemnify and hold us harmless from and against all losses, liabilities, damages,
and expenses (including reasonable attorneys' fees) arising out of or relating to:
a) Your failure to comply with all terms and conditions in this Section 36, including but not
limited to the Clover Ops Guide;
b) Your use of any Customer information obtained in connection with your use of the
Clover Service;
c) The content or delivery of any marketing messages that you send or cause to be sent to
any Customer phone number or email address collected through the use of the Clover
Service; or
d) Any other party's access and/or use of the Clover Service with your unique username,
password, or other appropriate security code.
36.14. Notices. We may provide notices and other information regarding the Clover
Service to you via the method(s) described in the Agreement or in the E -Sign Consent
Agreement set forth below.
36.15. Amendment. We have the right to change or add to the terms of this Section 36
at any time, and to change, delete, discontinue, or impose conditions on any feature or
aspect of the Clover Service with notice provided to you as set forth in subsection 36.14
above. Any use of the Clover Service after our publication of any such changes shall
constitute your acceptance of this Agreement as modified.
36.16. Ideas. You may choose or we may invite you to submit comments or ideas about
the Clover Service, including, without limitation, about how to improve the Clover Service
( "Ideas "), By submitting any Idea, you agree that: (a) we expressly disclaim any
confidentiality obligations or use restrictions, express or implied, with respect to any Idea,
(b) your submission will be non - confidential, and (c) we are free to use and disclose any
Idea on an unrestricted basis without notifying or compensating you. You release us from
all liability and obligations that may arise from our receipt, review, use or disclosure of any
portion of any Idea.
36.17. Third Party Beneficiaries. Processor's Affiliates and any Persons Processor uses
in providing the Clover Service are intended third party beneficiaries of this Section 36,
and each of them may enforce its provisions as if it was a party hereto. Except as expressly
provided in this subsection 36.17, nothing in this Section 36 is intended to confer upon any
Persons any rights or remedies, and the parties do not intend for any Persons to be third -
party beneficiaries of this Section 36.
E -SIGN CONSENT AGREEMENT
1. Consent
By signing the Confirmation Page, you consent and agree that:
a. Processor can provide disclosures required by law and other information about your legal
rights and duties to you electronically
b. Where required or requested, your electronic signature (via "click- through" or other
method) on agreements and documents relating to the Clover Service has the same effect
as if you signed them in ink.
c. Processor can send all communications, billing statements, amendments to the Clover
Service, notices, and other disclosures or information regarding the Clover Service or
your use of the Clover Service or the Services as defined in the Agreement (collectively
defined as "Disclosures ") to you electronically (1) via e -mail, (2) by access to a web site
that we designate in an e-mail notice we send to you at the time the information is
available, or (3) to the extent permissible by law, by access to a website that we will
generally designate in advance for such purpose.
d. If you want a paper copy, you can print a copy of the Disclosure or download the
information for your records.
e. This consent applies to all future Disclosures sent to you in connection with the Clover
Service, the Agreement, or your use of the Clover Service or the Services as defined in the
Agreement.
2. Legal Effect
By consenting, you agree that electronic Disclosures have the same meaning and effect as
if Processor provided paper Disclosures to you. When Processor sends you an email or
other electronic notification alerting you that the Disclosure is available electronically and
makes it available online, that shall have the same meaning and effect as if Processor
provided a paper Disclosure to you, whether or not you choose to view or print or download
the Disclosure.
I __ - of Law;Venue; Waiver of jury Trial
37. Choice
37.1. Choice of Law. Choice of Law. Our Agreement shall be governed by and construed
in accordance with the laws of the State of New fork (without regard to its choice of law
provisions).
37.2. Venue. We have substantial facilities in the State of New York and marry of the
services provided tinder this Agreement are provided from these facilities. The exclusive
venue for any actions or claims arising under or related to this Agreement shall be in the
appropriate state or federal court located in Suffolk County, New York.
37.3. Waiver of Jury Trial. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.
38.1. Force Maieure. No party shall be liable for any default or delay in the performance
of its obligations under this Agreement if and to the extent such default or delay is caused,
directly or indirectly, by (i) fire, flood, earthquake, elements of nature or other acts of God;
(ft) any terrorist attacks or outbreak or escalation of hostilities, war, riots or civil disorders
in any country; (iii) any act or omission of the other part' or an)' government authority; Gv)
any labor disputes (whether or not employees' demands are reasonable or within the party's
power to satisfy); or (v) the nonperformance by a Person for any similar cause beyond the
reasonable control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In an), such event, the non - performing party shall
be excused from any further performance and observance of the obligations so affected
only for as long as such circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as practicable.
Notwithstanding anything to the contrary in this paragraph, your failure to receive payment
or funds from a Person shall not excuse the performance of your obligations to us under
this Agreement.
38.2. Compliance with Laws. In performing its obligations under this Agreement, each
party agrees to comply with all laws and regulations applicable to it. You further agree to
cooperate and provide information requested by Servicers, as Servicers determine necessary,
to facilitate Servicers compliance with any applicable law including without limitation the
rules and regulations promulgated by the Office of Foreign Assets Control of the US
Department of the Treasury. You further acknowledge and agree that you will not use your
merchant account and/or the Services for illegal transactions, for example, those prohibited
by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may
be amended from time to time, or those involving any Person listed on the U.S. Department
of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked
Persons List (available at www.treas.gov /ofac) or the U.S. Department of State's Terrorist
FDSIS00B1805(ia) 4
Exclusion List (available at wwwstate.gov), or for the processing and acceptance of
transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other laws
enforced by the Office of Foreign Assets Control ( "OFAC ") or in connection with illegal
activity of any kind.
38.3. Notices. Except as otherwise specifically provided, all notices and other commun-
ications required or permitted hereunder (other than those involving normal operational
matters relating to the processing of Card transactions) shall be in writing, if to you at your
address appearing in the Application or by any electronic means, including but not limited
to the e -mail address you have provided on the Application. If to us at our address appearing
in Section A.5 of Part IV of this Agreement, with a copy to Attention: General Counsel's
Office, 3975 N.W. 120th Avenue, Coral Springs, FL 33065, and Notices shall be deemed to
have been given (i) if sent by mail or courier, upon the earlier of five (5) days after mailing
or when actually received or, in the case of courier, when delivered, and (ii) if sent by
facsimile machine, when the courier confirmation copy is actually received. Notice given
in any other manner shall be effective when actually received. Notices sent to the your last
known address (including e-mail address), as indicated in our records, shall constitute
effective notice to the Merchant under this Agreement. If you change your address
(including your e-mail address), you must notify us at least 30 days prior of the effective
date of any such change. Failure to provide us with a valid address (including e -mail
address) may result in the termination of the Agreement. Notwithstanding the above, all
bankruptcy or collection related notices must be sent to the following address Merchant
Services Department, 5251 Westheimer Road, Fourth Floor, Houston, Texas 77056, Attn:
Bankruptcy and Collection Notifications. All such notices must include the related
merchant name and merchant number. Failure to provide Notice to this address or include
this pertinent merchant information will be deemed ineffective. All notices must include
your merchant name(s) and merchant number(s). Failure to provide notice in the manner
described in this Section will be deemed ineffective.
38.4. Headings. The headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or construction of any provision
of this Agreement.
38.S. Severability. The parties intend every provision of this Agreement to be severable.
If any part of this Agreement is not enforceable, the remaining provisions shall remain valid
and enforceable.
38.6. Entire Agreement; Waiver. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter thereof, and supersedes any previous
agreements and understandings. A party's waiver of a breach of any term or condition of this
Agreement shall not be deemed a waiver of any subsequent breach of the same or another
term or condition.
38.7. Amendment. We may modify any provision of this Agreement by providing
written notice to you. You may choose not to accept the requirements of any such change
by terminating the Agreement within twenty (20) days of receiving notice. If you choose
to do so, notify us that you are terminating for this reason so that we may waive any early
termination fee that [night otherwise apply, For purposes of this section, an electronic or
"click- wrap" notice intended to modify or amend this Agreement and which you check "I
Accept" or "I Agree' or otherwise accept through an electronic process, shall constitute in
writing as required herein. This Section 38.7 does not apply to fee changes, which are
governed by Sections 19.4 and 19.5.
38.8. Third Party Beneficiaries. Our respective Affiliates and any Persons we use in
providing the Services are third party beneficiaries of this Agreement and each of them may
enforce its provisions as it was a party hereto. Except as expressly provided in this
Agreement, nothing in this Agreement is intended to confer upon any Person any rights or
remedies, and the parties do not intend for any Persons to be third -party beneficiaries of this
Agreement.
38.9. Card Organization Rules. The parties acknowledge that the Visa, MasterCard and
Discover Network Card Organization Rules give Visa, MasterCard and Discover Network
certain rights to require termination or modification of this Agreement with respect to
transactions involving Visa, MasterCard and Discover Network Cards and the Visa,
MasterCard, and Discover Network Card systems and to investigate you. The parties also
acknowledge that issuers of other Cards, for which we perform services on your behalf,
may have similar rights under their applicable Card Organization Rules with respect to this
Agreement's applicability to transactions involving such other Cards.
38.10. Publicity. Client may not use the logo, name, trademark, or service mark of
Processor and/or Bank in any manner, including without limitation, in any advertisements,
displays, or press releases, without the prior written consent of Processor and Bank.
As used in this Agreement, the following terms mean as follows:
Acquirer: Bank in the case of MasterCard, Visa and certain debit transactions or Processor
in the case of Discover Network transactions that acquire Card sale transactions from
merchants such as yourself.
Address Verification Service ( "AVS "): A service provided through which the merchant
verifies the Cardholder's address, in whole or in part. Primarily used by Mail/Telephone/
Internet order merchants, Address verification is intended to deter fraudulent transactions,
however, an AVS Match does not guarantee that a transaction is valid. An AVS request
should generally be submitted with an authorization request. The AVS response, if available,
however will not impact whether any associated authorization request is approved or
denied. You may be charged an AVS fee for any AVS request you submit even if we are not
able to provide a response to the request.
Affiliate: "Affiliate" of a Person means another Person that, directly or indirectly, (i) owns
or controls such Person or (it) is under common ownership or control with such Person.
Agreement: The Agreements among Client, Processor, and Bank, contained in the
Application, the Program Guide and the Schedules thereto and documents incorporated
therein, each as amended from time to time, which collectively constitute the Agreement
among the parties.
Application: See Merchant Processing Application
Authorization: Approval by, or on behalf of, the issuer to validate a transaction. An
Authorization indicates only the availability of the Cardholder's Credit Limit or funds at the
time the Authorization is requested. An Authorization Fee (see Fee Schedule) can be
charged for each Authorization, whether approved or declined.
Authorization Approval Code: A number issued to a participating merchant by the
Authorization Center which confirms the Authorization for a sale or service.
Authorization and Capture: Refers to the communication of instructions from your
POS device or other systems to our computer systems, whether the communications are for
authorization requests or any other capture of information. If your Service fee Schedule
reflects and authorization and capture fee it may be applied to each communication you
transmit to us.
Authorization Center: A department that electronically communicates a merchant's
request for Authorization on Credit Card transactions to the Cardholder's bank and
transmits such Authorization to the merchant via electronic equipment or by voice
Authorization.
Bank: The bank identified on the Application signed by you.
Bankruptcy Code: Title 11 of the United States Code, as amended from time to time.
Batch: A single Submission to us of a group of transactions (sales and Credits) for
settlement. A Batch usually represents a day's worth of transactions.
Business Day: Monday through Friday, excluding Bank holidays.
Card: See either Credit Card or Debit Card.
Cardholder: Means the Person whose name is embossed on a Card and any authorized
user of such Card, including the Person that has entered into an agreement establishing a
Card account with an Issuer.
Card Not Present Sale/Transaction: A transaction that occurs when the Card is not
present at the point -of -sale, including Internet, mail -miler and telephone -order Card sales.
Card Organization: Any entity formed to administer and promote Cards, including
without limitation MasterCard Worldwide ( "MasterCard "), Visa U.S.A., Inc. ("Visa"), DFS
Services LLC ( "Discover Network "), American Express Company, Inc. ( "American
Express ") and any applicable debit networks.
Card Organization Rules: The rules, regulations, releases, interpretations and other
requirements (whether contractual or otherwise) imposed or adopted by an), Card
Organization and related authorities, including without limitation, those of the PCI Security
Standards Council, LLC and the National Automated Clearing House Association
(including, with respect to EBTs, the Quest Operating Rules).
Card Validation Codes: A three -digit value printed in the signature panel of most Cards
and a four -digit value printed on the front of an American Express Card. Visa's Card
Validation Code is known as CVV2; MasterCard's Card Validation Code is known as CVC2;
the Card Validation Codes for Discover Network and American Express are known as a
Card Identification Numbers (CID). Card Validation Codes are used to deter fraudulent
use of an account number in a non - face -to -face environment, (e.g., mail orders, telephone
orders and Internet orders).
Card Verification Value (CVV) /Card Validation Code (CVC) /Card Identification
Data (CID): A unique value encoded on the Magnetic Snipe of a Card used to validate
Card information during the Authorization process.
Cardholder Verification Method (CVM): A method used to confirm the identity of a
Cardholder and to signify Cardholder acceptance of a transaction, such as signature, Offline
PIN, and Online PIN.
Cash Benefits: An EBT account maintained by an Issuer that represents pre - funded or
day -of -draw benefits, or both, administered by one or more government entities, and for
which the Issuer has agreed to provide access under the EBT program. Multiple benefits may
be combined in a single cash benefit account.
Cash Over Transaction: Dispensing of cash by a merchant in connection with a Card
sale, other than a PIN Debit Card transaction, for the purchase of goods or services.
Charge or Charges: The total price, including all applicable taxes and gratuities, for the
purchase of goods or services at a merchant for which a Cardholder has signed a Sales Draft
or otherwise indicated intent to pay with a Card.
Chargeback: A Card transaction (or disputed portion) that is returned to us by the Issuer.
Client is responsible for payment to us for all Chargebacks.
Chip: An integrated microchip embedded on a Card containing cardholder and account
information.
Chip Card: A Card with an embedded EMV - compliant chip containing memory and
interactive capabilities used to identify and store additional data about a Cardholder, an
Account, or both.
Claim: Means any claim (including initial claims, counterclaims, cross - claims, and third
party claims), dispute, or controversy between you and us arising from or relating to the
Agreement or prior Card acceptance agreements, or the relationship resulting therefrom,
whether based in contract, tort (including negligence, strict liability, fraud, or otherwise),
statutes, regulations, or any other theory, including any question relating to the existence,
FDSISOOB1805(ia) 42
validity, performance, construction, interpretation, enforcement, or termination of the
Agreement or prior Card acceptance agreements or the relationship resulting therefrom.
Contaetless Payment: Payment performed in a Card - Present Environment with a
Contaetless card or Payment Device (e.g., Mobile phone) at the Point -of- Transaction.
Client: The party identified as "Client" on the Application. The words "Subscriber," "you"
and "your" refer to Client. Also, sometimes referred to as "Merchant."
Credit: A refund or price adjustment given for a previous purchase transaction.
Credit Card: A device bearing a valid Organization Mark of Visa, MasterCard, Discover
Network or American Express and authorizing the Cardholder to buy goods or services on
credit and, to the extent the Schedules so provide, a valid device authorizing the Cardholder
to buy goods or services on credit and issued by any other Card Organization specified on
such Schedules.
Credit Draft: A document evidencing the return of merchandise by a Cardholder to a
Client, or other refund or price adjustment made by the Client to the Cardholder, whether
electronic, paper or some other form, all of which must conform to Card Organization
Rules and applicable law.
Credit Limit: The credit line set by the Issuer for the Cardholder's Credit Card account.
Customer Activated Terminal (CAT): A magnetic stripe terminal or chip- reading
device (such as an automatic dispensing machine, Limited Amount Terminal, or Self- Sendce
Terminal) that is not an ATM.
Data Usage Charge: Charged to you for our processing of Sales Data sent to us.
Debit Card: See either PIN Debit Card or Non -PIN Debit Card.
Dial -Up Terminal: An Authorization device which, like a telephone, dials an
Authorization Center for validation of transactions.
Discount Rate: A percentage rate and/or amount charged to a merchant for processing its
qualifying daily Credit Card and Non -PIN Debit Card transactions, as set forth in the
Application. Transactions that fail to meet applicable interchange requirements will be
charged additional amounts as set forth in Section 19.1.
Discover International Service Fee: A fee assessed by Discover on the amount of Card
Sales (excluding Cash Over) conducted at a Client location in the United States where the
domicile of the Issuer of the Card used in the Card Sale is a country other than the United
States. This fee is not applicable to Card Sales with JCB and China Union Pay cards.
Electronic Benefit Transfer (EBT): An Electronic Benefits Transfer system used to
deliver certain government delivered benefits, including without limitation Cash Benefits
and FNS, SNAP and WIC Benefits, to EBT customers.
Electronic Draft Capture (EDC): A process which allows a merchant's Dial -Up Terminal
to receive Authorization and capture transactions, and electronically transmit them to the
Processor. This eliminates the need to submit paper for processing.
EMV: Developed by Europa); MasterCard, and Visa. It is the global standard for chip based
payments.
Entity: Means a corporation, partnership, sole proprietorship, trust, association, or any
other legally recognized entity or organization.
Factoring: The submission of authorization requests and/or Sales Drafts by a merchant for
Card sales or cash advances transacted by another business. Factoring is prohibited.
Fixed Acquirer Network Fee (FANF): Fee that applies to the acceptance of all Visa
branded products and is based on both the size and the number of merchant locations. The
fee will be assessed per merchant Taxpayer ID, based on the number of merchant locations,
Merchant Category Code (MCC), and monthly Total Gross merchant Sales Volume
associated with each Taxpayer ID.
Fraud Full Recourse: One of American Express's Chargeback programs
General Terms: Section of the Program Guide, including any amendments or
modifications.
Gross: When referred to in connection with transaction amounts or fees, refers to the total
amount of Card sales, without set -off for any refunds or Credits.
Imprinter: A manual or electric machine used to physically imprint the merchant's name
and ID number as well as the Cardholder's name and Card number on Sales Drafts.
Issuer: The financial institution or Card Organization (or other Entity- authorized by a
Card Organization) which has issued a Card to a Person.
Limited Amount Terminal: A Customer Activated Terminal that has data capture only
capability, and accepts payment for items such as parking garage fees, road tolls, motion
picture theater entrance, or magnetic-stripe telephones.
Magnetic Stripe: A stripe of magnetic information affixed to the back of a plastic Credit
or Debit Card. The Magnetic Stripe contains essential Cardholder and account information.
Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines
or other proprietary designations.
MasterCard Account Status Inquiry Service Fee: Zero dollar Account Status Inquiry
Service requests (including AVS, CVC2 or both).
MasterCard CVC2 Fee: A fee assessed for transactions acquired in the U.S. Region with
the CVC2 (Three digit code on the back of the MasterCard issued card) included in the
transaction for authorization and where the CVC2 response value equals `M' (Match) or `N'
(Invalid/did not match). The fee will not be applied to Account Status Inquiry (ASI)
requests.
MasterCard Digital Enablement Fee: A fee assessed by MasterCard on select Card Not
Present transactions.
MasterCard Processing Integrity Fee: The MasterCard Processing Integrity Fee is
assessed in the event MasterCard cannot snatch an approved authorization to a settled
transaction (within 120 days from the date the authorization was granted) or a reversal
request (within a specific time frame). The Processing Integrity Fee can be avoided by
settling transactions only with an approved authorization. If an authorization approval is
no longer needed, it must be electronically reversed within 24 hours for a card - present
transaction or within 72 hours for card not present transaction.
MC Cross Border Fee (USD): Assessed on any MasterCardt settled sale processed in
USD Currency in which the country code of the merchant differs from the country code of
the Cardholder (i.e., U.S. Merchant, Non U.S. Issued Card).
Media: The documentation of monetary transactions (i.e., Sales Drafts, Credit Drafts,
computer printouts, etc.)
Merchant Account Number: A number that numerically identifies each merchant
location, outlet, or line of business to the Processor for accounting and billing purposes.
Merchant Identification Card: A plastic embossed card supplied to each merchant to be
used for imprinting information to be submitted with each Batch of paper Sales Drafts.
Embossed data includes Merchant Account Number, name and sometimes merchant ID
code and terminal number.
Merchant Processing Application: The Merchant Processing Application and
Agreement executed by Client, which is one of the documents comprising the Agreement.
Merchant Provider: Any Person engaged by you to provide services to you involving or
relating to (i) access to Cardholder data, transaction data or information related to either
Cardholder data or transaction data or (ii) PIN encryption, including without limitation,
Encryption Service Organizations (ESOs).
Non -Bank Services: Products and/or Services for which Bank is not responsible or a
party to including American Express, PIN Debit Card, and Electronic Benefits Transfer
Transactions, TeleCheck Check Services, and Transactions Involving Cards from other Non -
Bank Card Organizations, such as Voyager Fleet Systems, Inc., Wright Express Corporation
and Wright Express Financial Services Corporation, Discover, Leasing, TransArmor,
Wireless, Payeezy Gateway Services, Global ePricing Services and other items as may be
indicated in this Program Guide.
Non -PIN Debit Card: A device with a Visa, MasterCard or Discover Network Mark that
is tied to a Cardholder's bank account or a prepaid account and which is processed without
the use of a PIN.
Non - Qualified Interchange Fee: The difference between the interchange fee associated
with the Anticipated Interchange Level and the interchange fee associated with the more
costly interchange level at which the transaction actually processed.
Non - Qualified Surcharge: A surcharge applied to an), transaction that fails to qualify
for the Anticipated interchange Level and is therefore downgraded to a more costly
interchange level. The Non - Qualified Surcharge (the amount of which is set forth on the
Service Fee Schedule) is in addition to the Non - Qualified Interchange Fee, which is also
your responsibility (see above, Section 19.1)
Operating Procedures: The information prepared by Processor, containing operational
procedures, instructions and other directives relating to Card transactions. The current
Operating Procedures are set forth in Part A of the Program Guide.
PAN Truncation: A procedure by which a Cardholder's copy of a Sales Draft or Credit
Draft, or as required by applicable law, the Sales Draft or Credit Draft you retain, will only
reflect the last four digits of the Card account number.
Person: A third party individual or Entity, other than the Client, Processor or Bank.
PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit
Card transaction.
PIN Debit Card: A device bearing the Marks of ATM networks (such as NYCE or Star)
used at a merchant location by means of a Cardholder- entered PIN in the merchant PIN Pad.
PIN Debit Sponsor Bank: The PIN Debit Sponsor Bank(s) identified on the Application
signed by you that is /are the sponsoring or acquiring bank(s) for certain PIN Debit
networks.
Point of Sale (POS) Terminal: A device placed in a merchant location which is
connected to the Processor's system via telephone lines and is designed to authorize, record
and transmit settlement data by electronic means for all sales transactions with Processor.
Processor: The entity identified on the Application (other than the Bank) which provides
certain services under the Agreement.
Program Guide (also known as the Merchant Services Program Terms and
Conditions): The booklet which contains Operating Procedures, General Terns, Third
Party Agreements and Confirmation Page, which together with the Application and the
Schedules thereto and documents incorporated therein, constitute your Agreement with
Processor and Bank.
Recurring Payment Indicator: A value used to identify transactions for which a
Cardholder provides permission to a merchant to bill the Cardholder's Card account at
either a predetermined interval or as agreed by the Cardholder for recurring goods or
services.
Referral: A message received from an Issuer when an attempt for Authorization requires
a call to the Voice Authorization Center or Voice Response Unit (VRU).
Reserve Account: An account established and funded at our request or on your behalf,
pursuant to Section 25 of the Agreement.
Resubmission: A transaction that the Client originally processed as a Store and Forward
' MasterCard Credit or Debit Card, Cirrus Card, or Maestro Card.
FDSIS00B1805(la) 43
transaction but received a soft denial from the respective debit network or Card
Organization. The resubmission transaction allows the merchant to attempt to obtain an
approval for the soft denial, in which case Client assumes the risk that the transaction fails.
Retrieval Request/Transaction Documentation Request: A request for docu-
mentation related to a Card transaction such as a copy of a Sales Draft or other transaction
source documents.
Sales /Credit Summary: The identifying form used by a paper Submission merchant to
indicate a Batch of Sales Drafts and Credit Drafts (usually one day's work). Not a Batch
header, which is used by electronic merchants.
Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder
from, and other payments to, Client using a Card, including preauthorized orders and
recurring transactions (unless the context requires otherwise); regardless of whether the
form of such evidence is in paper or electronic form or otherwise, all of which must conform
to Card Organization Rules and applicable law.
Schedules: The attachments, addenda and other documents, including revisions thereto,
which may be incorporated into and made part of this Agreement concurrently with or
after the date of this Agreement.
Self - Service Terminal: A Customer Activated Terminal that accepts payment of goods
or services such as prepaid cards or video rental, has electronic capability, and does not
accept PINs.
Servieers: Bank and Processor collectively The words "we," "us" and "our" refer to
Servieers, unless otherwise indicated in this Program Guide.
Services: The activities undertaken by Processor and/or Bank, as applicable, to authorize,
process and settle all United States Dollar denominated Visa, MasterCard, Discover Network
and American Express transactions undertaken by Cardholders at Client's location(s) in
the United States, and all other activities necessary for Processor to perform the functions
required by this Agreement for all other Cards covered by this Agreement.
Settlement Account: An account or account(s) at a financial institution designated by Client
as the account to be debited and credited by Processor or Bank for Card transactions, fees,
Chargebacks and other amounts due under the Agreement or in connection with the
Agreement.
Split Dial: A process which allows the Authorization terminal to dial directly to different
Card processors (e.g., American Express) for Authorization. In this instance, the merchant
cannot be both EDC and Split Dial. Split Dial is also utilized for Check Guarantee
companies.
Split Dial /Capture: Process which allows the Authorization terminal to dial directly to
different Card processors (e.g., American Express) for Authorization and Electronic Draft
Capture.
Store and Forward: A transaction that has been authorized by a merchant when the
merchant cannot obtain an Authorization while the customer is present, typically due to a
communications failure. The merchant will store the transaction electronically in their host
System and retransmit the transaction when communications have been restored.
Submission: The process of sending Batch deposits to Processor for processing. This may
be done electronically or by mail.
Summary Adjustment: An adjustment to your Submission and/or Settlement Accounts
in order to correct errors. (See Sections 103 and 10.4).
Telecommunication Card Sale: Individual local or long - distance telephone calls, for
which the telephone service provider is paid directly by use of a Card. These do not include,
however, calls paid for with pre -paid telephone service cards. Telecommunication Card
Sales are considered Card Not Present Sales.
Transaction Fees: Service costs charged to a merchant on a per transaction basis.
Transaction Integrity Fee: Fee assessed on Visa Debit Card and prepaid Card purchase
transactions that either fail or do not request CPS qualification.
Us, We and Our: See Servieers.
Visa International Service Fee: Assessed on any Visa settled sale where the merchant
is located in the U.S. and the Card is issued outside of the U.S. (i.e., U.S. Merchant, Non
U.S. Issued Card).
Visa Misuse ofAuth: Charged to Visa authorized transactions that arc not followed by a
matching Visa settled transaction (or in the case of a canceled transaction, not properly
reversed). The fee can be avoided by settling your transactions within 10 days for Non
Travel and Entertainment (T&E) Merchants Segments and 20 days for T&rE merchants. if
an authorization is not needed, the authorization must be electronically reversed within
24 hours for face to face authorizations and reversed within 72 hours for Card Absent
authorizations.
Visa Zero $ Verification: Charged for Visa Card verification requests (without an actual
dollar authorization). This fee can be avoided by obtaining an authorization request for the
amount of the sale. If the authorization is not needed, the authorization request must be
electronically reversed within 24 hours for face to face authorizations and reversed within
72 hours for Card Absent authorizations (to avoid the Visa Misuse of Authorization System
fee).
Visa Zero Floor Limit: Charged when a Visa sale is settled without the required
authorization (transaction ID is used to match the authorization to settled sale). All
transactions above zero dollars require an authorization approval. This fee can be avoided
by only settling transactions that have been approved. If an authorization is declined, the
merchant must request another form of payment.
You,Your: See Client.
PART III: THIRD PARTY AGREEMENTS
The following Agreements are Third Party Agreements entered into between Client and the Third Parties identified in the Third Party Agreements.
If Client desires to receive the products and/or services offered under a Third Party Agreement, Client must check the appropriate box or otherwise indicate
such desire in the Merchant Processing Application, in which case the terms and conditions of the Third Party Agreement shall be binding upon Client. The
Signature page in the Merchant Processing Application or any Schedule thereto shall also serve as a signature page to the Third Party Agreements.
Client acknowledges that the Third Parties are relying upon the information contained on the Merchant Processing Application and the Schedules thereto,
all of which are incorporated by reference into the Third Party Agreements.
Equipment Lease Agreement
This Equipment Lease Agreement ( "Lease Agreement ") is being entered into by and b) The monthly lease charge is due and payable on the same day of each successive month
between FDS Holdings, Inc. (through its business unit First Data Global Leasing), and the thereafter of the Lease Term for each piece of leased Equipment. You agree to pay all
Lessee identified on the signature panel of this Merchant Processing Application ( "MPA "). assessed costs for delivery and installation of Equipment.
In this Lease Agreement, the words "we," "our' and "us" refer to FDS Holdings, Inc. and c) In addition to the monthly lease charge, you shall pay, or reimburse us for, amounts
its successors and assigns and the words "you" and "your" refer to Lessee and its permitted equal to any taxes or assessments on or arising out of this Agreement or the Equipment,
successors and assigns. and related supplies or any services, use or activities hereunder, including without
Lessee hereby authorizes us or our designees, successors or assigns (hereinafter "Lessor')
to withdraw any amounts including any and all sales taxes now due or hereinafter imposed,
owed by Lessee in conjunction with this Lease Agreement by initiating debit entries to the
bank account designated by Lessee on the MPA (the "Settlement Account "). In the event
of default of Lessee's obligation hereunder, Lessee authorizes debit of its account for the full
amount due under this Lease Agreement. Further, Lessee authorizes its financial institution
to accept and to charge any debit entries initiated by Lessor to Lessee's account. In the event
that Lessor withdraws funds erroneously from Lessee's account, Lessee authorizes Lessor
to credit Lessee's account for an amount not to exceed the original amount of the debit. This
authorization is to remain in full force and effect until Lessor has received written notice
from Lessee of its termination in such time and in such manner as to afford Lessor a
reasonable opportunity to act. Lessee also authorizes Lessor from time to time to obtain
investigative credit reports from a credit bureau or a credit agency concerning Lessee.
1.1. Equipment. We agree to lease to you and you agree to lease from us the equipment
identified on the MPA or such other comparable equipment we provide you (the
"Equipment "), according to the terms and conditions of this Lease Agreement. We are
providing the Equipment to you "as is" and make no representations or warranties of any
kind as to the suitability of the Equipment for any particular purpose. The term Equipment
includes the Equipment initially deployed under the Lease Agreement and/or any additions,
replacements, substitutions, or additions thereto.
1.2. Effective Date,Term and Interim Rent.
a) This Lease Agreement becomes effective on the earlier of the date we deliver any piece
of Equipment to you (the "Delivery Date ") or acceptance by us. This Lease Agreement
remains in effect until all of your obligations and all of our obligations under it have
been satisfied. We will deliver the Equipment to the site designated by you.
b) The term of this Lease Agreement begins on a date designated by us after receipt of all
required documentation and acceptance by us (the "Commencement Date "), and
continues for the number of months indicated on the MPA. THIS IS A NON -
CANCELABLE LEASE FOR THE TERM INDICATED.
c) You agree to pay an Interim Lease Payment in the amount of one- thirtieth (1 /30th) of
the monthly lease charge for each day from and including the Delivery Date until the
date preceding the Commencement Date.
d) YOU ACKNOWLEDGE THAT THE EQUIPMENT AND /OR SOFTWARE YOU LEASE
UNDER THIS LEASE AGREEMENT MAY NOT BE COMPATIBLE WITH ANOTHER
PROCESSOR'S SYSTEMS AND THAT WE DO NOT HAVE ANY OBLIGATION TO
MAKE SUCH SOFTWARE AND /OR EQUIPMENT COMPATIBLE IN THE EVENT
THAT YOU ELECT TO USE ANOTHER SERVICE PROVIDER, UPON TERMINATION
OF YOUR MERCHANT PROCESSING AGREEMENT, YOU ACKNOWLEDGE THAT
YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND /OR SOFTWARE LEASED
UNDER THIS LEASE AGREEMENT WITH SAID SERVICE PROVIDER.
1.3. Site Preparation. You will prepare the installation site(s) for the Equipment,
including but not limited to the power supply circuits and phone lines, in conformance
with the manufacturer's and our specifications and will make the site(s) available to us by
the confirmed shipping date.
1.4. Payment ofAmounts Due.
a)
SCHEDULE OF FEES
Default Fees Amount Administrative Fees Amount
NSF Fee
$10
Upgrade Fee
$50
Collection Fee
$25
Assumption Fee
$150
Late Fee (10% of Total Due)
min $5
Lease Copy Fee
$7
Collection Invoicing Fee
$7
Equipment Service Program **
$4.95
Improper Return Fee*
$100
FDSISOOB1805(ia) 44
limitation, state and local sales, use, property, privilege and excise tax, exclusive,
however, of taxes based on our net income. Reimbursement of property tax calculation
is based on an average tax rate.
d) Your lease payments will be due despite dissatisfaction for any reason with the
Equipment or related processing services.
e) Whenever any payment is not made by you in full when due, you shall pay us as a late
charge, an amount equal to ten percent of the amount due but no less than $5.00 for
each month during which it remains unpaid (prorated for any partial month), but in no
event more than the maximum amount permitted by law. You shall also pay to us an
administrative charge of $10.00 for any debit we attempt to make against your bank
account that is rejected, but in no event more than the maximum amount permitted by
law.
f) In the event your account is placed into collections for past due lease amounts, you
agree that we can recover a collection expense fee of $25 for each aggregate payment
requiring a collection effort, but in no event more than the maximum amount permitted
by law.
g) * See paragraph 1.5(g) for details regarding this fee.
h) `* See paragraph 1.5(i) for details regarding this fee.
I.S. Use and Return of Equipment; Insurance.
a) You shall cause the Equipment to be operated by competent and qualified personnel in
accordance with any operating instructions furnished by us or the manufacturer. You
shall maintain the Equipment in good operating condition and protect it from
deterioration, normal wear and tear excepted.
b) You shall not permit any physical alteration or modification of the Equipment, or
change the installation site of the Equipment, without our prior written consent.
c) You shall not create, incur, assume or allow to exist any consensually or judicially
imposed liens or encumbrances on, or part with possession of, or sublease the
Equipment without our prior written consent.
d) You shall comply with all governmental laws, rules and regulations relating to the use
of the Equipment. You are also responsible for obtaining all permits required to operate
the Equipment at your facility.
e) We or our representatives may, at any time, enter your premises for purposes of
inspecting, examining or repairing the Equipment.
f) The Equipment shall remain our personal property and shall not under any
circumstances be considered to be a fixture affixed to your real estate. You shall permit
US to affix suitable labels or stencils to the Equipment evidencing our ownership.
g) You agree that all Equipment returns shall be to First Data Merchant Services
Corporation, 1307 Walt Whitman Road, Melville, New York 11747, Attn: Equipment
Returns, be done in a manner that can be tracked, and shall have the Lease number
referenced on the return packaging. You understand and agree that your failure to return
the Equipment in the manner noted in the preceding sentence will delay our receipt of
the return and possibly result in you being charged $100. If returned Equipment shows
excessive wear and tear or is not in good operating condition (in each case, as
determined by us in our reasonable discretion), you will be charged our cost to restore
such Equipment to normal or good operating condition, as applicable.
h) You shall keep the Equipment adequately insured against loss by fire, theft, and all other
hazards.
i) You shall provide proof of insurance as evidenced by a certificate naming First Data
Merchant Services Corporation as a loss payee under your insurance policy The loss,
destruction, theft, or damage of or to the Equipment shall not relieve you from your
obligation to pay the full purchase price or total monthly leases charges hereunder.
j) You may choose not to insure the Equipment and participate in the Equipment Service
Program. The Equipment Service Program provides a replacement of the Equipment
for as long as you participate in the Program during the Lease Term, The Equipment
Service Program includes (i) free comparable replacement terminal (new or refurbished)
in the event of a defect or malfunction (terminal defects or malfunctions caused by acts
of God are not covered by this Program), (ii) free shipping and handling on both the
replacement terminal and return of defective terminal, (iii) free overnight shipping and
handling on replacement terminal if requested by 3:00 pm ET (Monday - Thursday). If
you don't return your damaged equipment, you will be charged the full purchase price
of the replacement equipment sent to you. The monthly fee of 84.95 for the optional
Equipment Service Program is a per terminal fee. You can choose to insure the
Equipment and terminate your participation in the program at any time by calling our
Customer Service department.
1.6. Title to Equipment. The Equipment is, and shall at all times be and remain, our sole
and exclusive property, and you shall have no right, title or interest in or to the Equipment
except as expressly set forth in this Lease Agreement or otherwise agreed in writing. Except
as expressly provided in Section 8, no transference of intellectual property rights is intended
by or conferred in this Lease Agreement. You agree to execute and deliver to us any
statement or instrument that we may request to confirm or evidence our ownership of the
Equipment, and you irrevocably appoint us as your attorney -in -fact to execute and file the
same in your name and on your behalf. if a court determines that the leasing transaction
contemplated by this Lease Agreement does not constitute a financing and is not a lease of
the Equipment, then we shall be deemed to have a first lien security interest on the
Equipment as of the date of this Lease Agreement, and you will execute such documentation
as we may request to evidence such security interest. If this Lease Agreement is deemed a
loan despite the intention of the parties, then in no contingency or event whatsoever shall
interest deemed charged hereunder, however such interest may be characterized or
computed, exceed the highest rate permissible under any law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto.
1.7. Return or Purchase of Equipment at End of Lease Period.
Upon the completion of your Lease Term the Agreement shall continue on a month -to-
month basis. There is no obligation to continue the lease after the Lease Term ends. At the
end of your Lease Term, you will have the option to:
(a) return the Equipment to us;
(b) purchase the Equipment from us for the lesser of fair market value at the time (as
determined in good faith by us), or an amount equal to ten - percent (10 %) of the total
lease payments under this Lease Agreement with respect to each item of Equipment; or
(c) as noted, rent the Equipment on a month -to -month basis at the existing monthly lease
payment. In the absence of an affirmative election by you to return or purchase the
Equipment, (c) will apply and this Agreement will continue on a month -to -month basis
at the existing monthly lease payment. After the end of the Lease Tel-in, if you do not
want to continue to rent the Equipment on a month -to -month basis, then you will be
obligated to provide Lessor with notice of that choice prior to the end of the Lease Term
and advise whether you will return the Equipment to Lessor or purchase the
Equipment, which price Lessor shall provide to you upon receipt of the notification. If
you fail to provide such notice at least 30 days prior to the end of the Lease Term, you
acknowledge that Lessor may not have time to suspend billing due for the next month's
lease charge. if we terminate this Agreement pursuant to paragraph 3 due to a default
by you, then you shall immediately return the Equipment to us at the address set forth
in paragraph 11 no later than the tenth Business Day after termination, or remit to us
the fair market value of the Equipment which amount we shall provide after good faith
determination. We may collect an), amounts due to us under this paragraph 4 by
debiting your Settlement Account, and to the extent we are unable to obtain full
satisfaction in this manner, you agree to pay the amounts owed to us promptly upon our
request.
1.8. Software License. We retain all ownership and copyright interest in and to all
computer software, related documentation, technology, know -how and processes embodied
in or provided in connection with the Equipment other than those owned or licensed by
the manufacturer of the Equipment (collectively "Software "), and you shall have only a
nonexclusive license to use the Software in your operation of the Equipment.
1.9. Limitation on Liability. We are not liable for any loss, damage or expense of any
kind or nature caused directly or indirectly by the Equipment, including any damage or
injury to persons or property caused by the Equipment. We are not liable for the use or
maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any
interruption of service or loss of use of the Equipment or resulting loss of business. Our
liability arising out of or in any way connected with this Lease Agreement shall not exceed
the aggregate lease amount paid to us for the particular Equipment involved. In no event
shall we be liable for any indirect, incidental, special or consequential damages. The
remedies available to you under this Lease Agreement are your sole and exclusive remedies.
1.10. Warranties.
a) Leased equipment is warranted against material defects for the life of the lease. This
warranty does not include damage to the equipment resulting from accident or misuse
or any other breach of the Lease Agreement. if the equipment should become defective
within the warranty period, First Data Merchant Services Corporation will replace it
free of charge (except that appropriate shipping charges may apply).
b) All warranties, express or implied, made to you or any other person are hereby
disclaimed, including without limitation, any warranties regarding quality, suitability,
FDSISOOB1805(ia) 45
merchantability, fitness for a particular purpose, quiet enjoyment, or non- infringement.
c) You warrant that you will only use the Equipment for commercial purposes and will not
use the Equipment for any household or personal purposes.
1.1 I. Indemnification. You shall indemnify and hold us harmless from and against any
and all losses, liabilities, damages and expenses resulting from (a) the operation, use,
condition, liens against, or return of the Equipment or (b) any breach by you of any of your
obligations hereunder, except to the extent any losses, liabilities, damages or expenses result
from our gross negligence or willful misconduct.
1.12. Default; Remedies.
a) If any debit of your Settlement Account initiated by us is rejected when due, or if you
otherwise fail to pay us any amounts due hereunder when due, or if you default in any
material respect in the performance or observance of any obligation or provision of this
Lease Agreement or any agreement with any of our affiliates orjoint ventures, any such
event shall be a default hereunder. Without limiting the foregoing, any default by you
under a processing agreement with us or with an affiliate or joint venture to which we
arc a party will be treated as a default under this Lease Agreement. Such a default would
include a default resulting from early termination of the MPA.
b) Upon the occurrence of any default, we may at our option, effective immediately
without notice, either (i) terminate this lease and our future obligations under this
Lease Agreement, repossess the Equipment and proceed in any lawful manner against
you for collection of all charges that have accrued and are due and payable, or (ii)
accelerate and declare immediately due and payable all monthly lease charges for the
remainder of the applicable lease period together with the fair market value of the
Equipment (as determined by us), not as a penalty but as liquidated damages for our
loss of the bargain. Upon any such termination for default, we may proceed in any
lawful manner to obtain satisfaction of the amounts owed to us and, if applicable, our
recovery of the Equipment, including entering onto your premises to recover the
Equipment. In any case, you shall also be responsible for our costs of collection, court
costs, as well as applicable shipping, repair and refurbishing costs of recovered
Equipment. You agree that we shall be entitled to recover any amounts due to us under
this Lease Agreement by charging your Settlement Account or any other funds of yours
that come into our possession or control, or within the possession or control of our
affiliates or joint ventures, or by setting off amounts that you owe to us against any
amounts we may owe to you, in any case without notifying you prior to doing so.
Without limiting the foregoing-, you agree that we are entitled to recover amounts owed
to us under this Lease Agreement by obtaining directly from an affiliate or joint venture
to which we are a party and with which you have entered into an MPA any funds held
or available as security for payment under the terns of the MPA, including funds
available under the "Reserve Account; Security Interest" section of the MPA, if
applicable.
1.13. Assignment. You may not assign or transfer this Lease Agreement, by operation of
law or otherwise, without our prior written consent. For purposes of this Lease Agreement,
any transfer of voting control of you or your parent shall be considered an assignment or
transfer of this Lease Agreement. We may assign or transfer this Lease Agreement and our
rights and obligations hereunder, in whole or in part, to any third party without the
necessity of obtaining your consent.
1.14. Lease Guaranty. No guarantor shall have any right of subrogation to any of our
rights in the Equipment or this Lease Agreement or against you, and any such right of
subrogation is hereby waived and released. All indebtedness that exists now or arises after
the execution of this Lease Agreement between you and any guarantor is hereby
subordinated to all of your present and future obligations, and those of your guarantor, to
us, and no payment shall be made or accepted on such indebtedness due to you from a
guarantor until the obligations due to us are paid and satisfied in full.
1.15. Governing Law;Venue; Miscellaneous. This Lease Agreement shall be governed
by and will be construed in accordance with the laws of the State of New York (without
applying its conflicts of laws principles). The exclusive venue for any actions or claims
arising under or related to this Lease Agreement shall be in the appropriate state of federal
court located in Suffolk County, New York. If any part of this Lease Agreement is not
enforceable, the remaining provisions will remain valid and enforceable.
1.16. Notices. All notices must be in writing, and shall be given (a) if sent by mail, when
received, and (b) if sent by courier, when delivered; if to you at the address appearing on
the MPA, and if to us at 4000 Coral Ridge Drive, Coral Springs, Florida 33065. Ann: Lease
Department. Customer Service toll free number 1 -877- 257 -2094.
1.17. Entire Agreement. This Lease Agreement constitutes the entire Agreement
between the parties with respect to the Equipment, supersedes any previous agreements
and understandings and can be changed only by a written agreement signed by all parties.
This Lease Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed counterpart of a signature page of this Lease Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this Lease Agreement.
This TeleCheck Services Terms and Conditions (the "Agreement ") is entered by and
between TeleCheck Services, Inc. ( "TeleCheck ") and Subscriber ( "Subscriber ") as
indicated on the Merchant Processing Application and Agreement. TeleCheck will provide
one of the following services ( "TeleCheck Services ") as selected on the Merchant
Processing Application and Agreement. TeleCheck Electronic Check Acceptance' ("ECA")
warranty service ( "ECA Warranty Service ") or paper warranty service ( "Paper Warranty
Service "). Upon processing Subscriber's first check through any of the TeleCheck"" services
or from the date Subscriber is entered into the TeleCheck system as a subscriber, whichever
is earlier (the "Effective Date "), the terms and conditions of this Agreement, including
payment and the Minimum Monthly Fee, shall apply from that point forward. Any of the
TeleCheck services, including, without limitation, funds settlement, billing and customer
service, may be performed by one or more of TeleCheck's affiliates.
I. Term,Termination and Amendment. This Agreement shall be effective for an initial
term of 12 months, from the Effective Date; provided, however, that Subscriber may
terminate this Agreement if Subscriber gives and TeleCheck receives written notice of
termination within the first 30 days of the Agreement. Thereafter, this Agreement shall
automatically continue until terminated as provided for herein. Subscriber may terminate
this Agreement at the end of the initial term or thereafter upon at least 30 days' prior written
notice to TeleCheck. TeleCheck reserves the right to amend, at its discretion, this
Agreement, including, without limitation, any rates, fees, addenda and/or the TeleCheck
Operational Procedures, by providing Subscriber notice and such amendments shall be
effective 30 days from the date notice is mailed to Subscriber. In the event TeleCheck
changes the rates, fees or warranty limits hereunder, Subscriber may terminate this
Agreement upon written notice received by TeleCheck within such 30 day period.
TeleCheck may terminate this Agreement at any time upon notice to Subscriber. Subscriber
may terminate this Agreement at anytime upon written notice if TeleCheck has failed to cure
a material breach of this Agreement within 30 days following written notice of that breach
given by Subscriber.
2. Definitions. As used in this Agreement, the following definitions apply: "ACH
Network" means the Automated Clearing House Network, a processing and delivery system
that provides for the distribution and settlement of electronic credits and debits.
"Authorization Receipt" means the written authorization receipt, in the form approved by
TeleCheck, signed by Consumer for each ECA Warranty Transaction or ECA Verification
Transaction, as applicable. "Batch" means a collection of saved transactions transmitted to
TeleCheck for settlement processing. "Claim" means any claim, demand, directive, suit or
other proceeding, notice, damage, expense (including reasonable attorney's fees),
assessment, fine or liability of any kind. "Consumer" means a person or entity that
authorizes an Item. "Consumer Authorization Format" means the required format
(including, without limitation, all verbiage for payment authorization, return item fees,
check approvals and declines, etc.), provided by TeleCheck to Subscriber, as amended from
time to time, for processing Consumer payments to Subscriber by an Electronic Item. "ECA
Warranty Transaction" means a transaction processed by TeleCheck under the ECA
Warranty Service, as an electronic funds transfer, a remotely created check or a paper check
for the contemporaneous purchase of goods or service by a Consumer at Subscriber's
physical location. "Electronic Item Warranty Transaction" means a payment transaction
which is processed as an Electronic Item under the warranty service, for the purchase of
goods or services by a Consumer. "Item" means an outstanding financial obligation
pursuant to a paper check, electronic funds transfer or remotely created check processed
under this Agreement. " NACHA Rules" means the National Automated Clearing House
Association Operating Rules and Guidelines, as amended from time to time, that govern the
ACH Network. "Paper Warranty Transaction" means a transaction for the
contemporaneous purchase of goods or services pursuant to TeleCheck's Paper Warranty
Service program. "Return Item Fee" means any fee or exemplary damages allowed by law
that may be assessed on a Return Item. "Return Items" mean any items that are dishonored,
returned, reversed, charged back or otherwise unpaid by a Consumer's financial institution
upon presentment for payment, regardless of the reason or timing. "Returned Payment"
means any financial obligation pursuant to this Agreement not paid by Subscriber's financial
institution. "Subscriber's Account" means Subscriber's financial institution account.
"TeleCheck Approval Code" means that TeleCheck has authorized an Item for warranty
coverage under this Agreement. "TeleCheck Operational Procedures" means TeleCheck's
published policies and procedures contained in various documents provided to Subscriber
concerning the services, equipment and maintenance provided pursuant to this Agreement.
"TeleCheck Parties" means TeleCheck, its affiliates, officers, directors, employees,
shareholders, agents and attorneys. "Warranty Maximum" (a) for an Item processed as an
ECA Warranty Transaction means the lower of (f) the face amount of the Item, (ii) the
amount set forth on the TeleCheck Service Application; or (iii) $25,000.00; (b) for air Item
processed as a Paper Warranty Transaction means the lower of (i) the face amount of the
Item; (b) the amount set forth on the TeleCheck Service Application; or (iii) $99,999.99.
TERMS APPLICABLE ONLY TO
TELECHECK ECA WARRANTY SERVICE
3. ECA Warranty Service.
3.1. Description. The TeleCheck ECA Warranty Service provides Subscriber with: (a)
coded information to assist Subscriber in deciding whether or not to accept an Item; (b)
processing services; and (c) warrant), services for ECA Warranty Transactions that comply
with the warranty requirements of Section 3.3, all in accordance with this Agreement.
3.2. Processing Services. For each ECA Warranty Transaction that TeleCheck issues a
TeleCheck Approval Code that is processed by TeleCheck as an electronic funds transfer or
FDSISOOB1805(ia) 46
remotely created check, TeleCheck shall, via an electronic funds transfer, effect a credit to
Subscriber's Account for the amount of such transaction as part of a batch credit. Such credit
shall typically occur within 2 banking days following Subscriber's regular close -out of the
point of sale terminal and transmission of the saved ECA Warranty Transactions to TeleCheck
for settlement processing, provided that the Batch is closed and received by TeleCheck by
9:00 p.m. Central Time. Subscriber authorizes TeleCheck on its behalf to initiate debits to
the Consumers' accounts for each such ECA V, arranty Transaction. TeleCheck may reduce
such credit, or initiate a debit, by the amount of any necessary adjustments for ECA Warranty
Transactions, including, without limitation, chargebacks or partial adjustments, to Subscriber's
Account. TeleCheck reserves the right to decline to process any transaction as an ECA
Warranty Transaction. As required by the NACHA Rules, TeleCheck's Originating Depository
Financial Institution (as defined by the NACHA Rules) shall have the right to audit
Subscriber's compliance with this Agreement and the NACHA Rules.
TeleCheck shall not be liable for any delays in receipt of funds or errors in debit and credit
entries caused by third parties, including, without limitation, any ACH Network participant
or Subscriber's financial institution. Notwithstanding anything contained herein to the
contrary, TeleCheck shall be entitled without notice to place a hold on or suspend payment
of any amounts now due or hereafter to become due ( "Funds Hold ") should any
questionable activity occur as determined by TeleCheck is its sole discretion including,
without limitation, an excessive amount of Return Items or a breach of the NACHA Rules,
or as otherwise required by the Originating Financial Depositary Institution or by law. In
addition to the right to place a Funds Hold with respect to any payment, TeleCheck is also
entitled without notice to freeze or terminate all processing activities. In addition to any
other remedies available to TeleCheck under this Agreement, Subscriber agrees that, if
Subscriber breaches or fails to comply with this Agreement, TeleCheck may, with notice to
be provided within 3 business days following such action, change processing or payment
terms, suspend settlement or other payments of any amounts now due, or hereafter to
become due, until TeleCheck has had reasonable opportunity to investigate such event.
Continuance of service and payment processing during any period of delinquency shall not
constitute a waiver of TeleCheck's rights of suspension or termination. In the event
TeleCheck makes a partial adjustment to an Item or a credit to a Consumer's account at the
request of Subscriber or as a result of a Subscriber error, and the Item becomes a Return
Item, TeleCheck may recover all such amounts from Subscriber. TeleCheck may also recover
from Subscriber the amount of any fees paid by a Consumer to Consumer's financial
institution which resulted from a Subscriber error.
3.3. Warranty Requirements. TeleCheck warrants the accuracy of its information
provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to
purchase from Subscriber one Item per ECA Warranty Transaction for which a TeleCheck
Approval Code was inaccurate; provided, however, that TeleCheck's liability shall be limited
by the Warranty Maximum and warranty requirements, and shall not exceed the amount
of the Item. Subscriber's sole and exclusive remedy for breach of warranty shall be the right
to require TeleCheck to purchase such Item subject to the terms and conditions contained
in this Agreement. Subscriber represents and warrants with respect to each ECA Warranty
Transaction submitted to TeleCheck for processing under this Agreement that:
a) The check is a first party check drawn on Consumer's deposit account at a United States
financial institution, completely and properly filled out and made payable to Subscriber.
The name of the Consumer is imprinted or typed on the check by the check
manufacturer;
b) Subscriber made an inquiry to TeleCheck in strict accordance with TeleCheck
Operational Procedures and obtained a single TeleCheck Approval Code. The
transaction was not performed in an attempt to avoid the warranty requirements or
Warranty Maximum (as more fully described in 3.6(f)), including through split sales;
c) The transaction represents an obligation of Consumer at the point of sale (no phone,
mail or internet orders) for goods sold or rented or services rendered for the price of
such goods or services, and the transaction is not for credit, cash or payment on an
account, debt or check already due Subscriber;
d) The signature of Consumer on the Authorization Receipt is not substantially different
from the name imprinted on the check;
e) The date of the check and the ECA Warranty Transaction accurately coincides within
1 calendar day of 0) the date of the inquiry call to TeleCheck, and (ii) the date the
transaction actually occurred. (Checks may not pre -date or post -date by more than 1
calendar day the date of the inquiry call and the transaction date);
Q Subscriber has no reason to question or have notice of any fact, circumstance or defense
which would impair the validity or collectability of Consumer's obligation or relieve
Consumer from liability;
g) The transaction is not subject to any stop payment, dispute or set -off;
h) Subscriber has complied with and shall comply with all applicable laws, rules,
regulations, and NACHA Rules including, without limitation, its obligations as an
Originator under the NACHA Rules, posting notice to authorize the ECA Warranty
Transaction and the Return Item Fee in a prominent and conspicuous location, and
providing a cop)' of the notice to the Consumer, all in accordance with Regulation E (12
C.F.R. Part 205);
i) Consumer authorized the debiting of Consumer's account and the debit entry is in an
amount agreed to by Consumer. Subscriber received a separate signed and completed
Authorization Receipt from Consumer for each ECA Warranty Transaction;
j) The paper check to which the ECA Warranty Transaction relates: (i) has not been used
in any other transaction, (ii) is voided on the front by Consumer or Subscriber, and
(iii) is returned to Consumer;
k) The amount entered into the TeleCheck system and on the Authorization Receipt match
exactly and does not exceed the Warranty Maximum; and
1) If the ECA Warranty Transaction is approved as a paper check not eligible for processing
as an electronic funds transfer, each representation and warranty set forth in Section 4.2
shall be applicable to such ECA Warranty Transaction.
3.4. Authorization Receipts. Subscriber shall (a) maintain the signed Authorization
Receipt for a minimum period of 2 years from the date of the transaction or for the period
specified by the NACHA Rules, whichever is longer, (b) physically deliver either the original
or a legible copy of the signed Authorization Receipt to TeleCheck within 7 days of
TeleCheck's request, and (c) permit TeleCheck to audit Subscriber (upon reasonable notice
and during normal business hours) for compliance with this requirement.
3.S. Assignment of EGA Warranty Transactions. By electing to subscribe to the
TeleCheck ECA Warranty Service, Subscriber ASSIGNS, TRANSFERS AND CONVEYS to
TeleCheck all of Subscriber's rights, title and interest in any ECA Warranty Transaction
submitted by Subscriber to TeleCheck under this Agreement. Subscriber shall, at
TeleCheck's request, endorse such check and take any action reasonably deemed necessary
by TeleCheck to aid in the enforcement of TeleCheck's rights hereunder.
3.6. Chargebaek and Reassignment. TeleCheck may chargeback to Subscriber any ECA
Warranty Transaction processed by TeleCheck, or reassign to Subscriber any ECA Warranty
Transaction which has been approved as a paper check and purchased by TeleCheck, in
any of the following circumstances:
a) The goods or services, in whole or in part, for which the ECA Warranty Transaction was
submitted, have been returned to Subscriber, have not been delivered by Subscriber,
are claimed by Consumer to have been unsatisfactory, or are subject to any stop
payment, dispute or set -off;
b) Subscriber has received full or partial payment or security in any form to secure
payment of the Item, or the goods or services for which the Item was issued or
authorized were initially delivered on credit or under a lease;
c) The transaction is for any reason illegal, void or invalid; or purchase by or transfer to
TeleCheck of the Item is not permitted by applicable law; or a court of law determines
that the Item is, in whole or in part, not due and payable by Consumer, unless such
determination results from Consumer's bankruptcy proceeding;
d) Any of the representations made by Subscriber as set forth in Section 3.3 are or become
false or inaccurate;
e) Subscriber failed to comply with this Agreement;
f) Subscriber, or any of Subscriber's owners, agents or employees: (i) materially altered
either the check or the Authorization Receipt; or (ii) processed the transaction with
reason to know that the Item was likely to be dishonored (including failure to receive
a TeleCheck Approval Code) or that the identification used was forged, altered or did
not belong to Consumer; or (iii) processed the transaction in a manner which was an
attempt to avoid the warranty requirements or Warranty Maximum. "Knowledge" shall
be presumed in the presence of facts or circumstances which, if known, would cause a
non - subscribing merchant, using commercially reasonable judgment, to independently
refuse to accept a check. "Knowledge" is also presumed where there is evidence of
Subscriber's attempt to avoid warranty limitations through manipulation of transactions,
including, but not limited to the splitting of a single transaction into smaller
components or resubmission of a previously denied transaction;
g) The Authorization Receipt was incomplete or unsigned, or a legible copy of the
Authorization Receipt was not received by TeleCheck within 7 days of a request by
TeleCheck;
h) A duplicate ECA Warranty Transaction relating to the same transaction was received
and processed, or the original paper check was deposited, thereby creating a duplicate
entry against Consumer's financial institution account;
i) Consumer disputes authorizing the ECA Warranty Transaction or the validity- or
accuracy of the transaction;
j) Subscriber received notice that Consumer filed bankruptcy and Subscriber failed to
notify TeleCheck of the bankruptcy within 3 business days of Subscriber's receipt of
such notice; or
k) The closeout of the Batch and transmission of the ECA Warranty Transaction to
TeleCheck for settlement processing did not occur within 7 days from the date the
TeleCheck Approval Code was issued for the transaction.
Subscriber shall immediately notify TeleCheck upon the happening of any of the above
circumstances. If the Item is charged back or reassigned as provided herein, (a) TeleCheck
may debit Subscriber's Account in the amount paid by TeleCheck for the Item, (b)
TeleCheck may deduct or offset such Item against any amounts to be paid to Subscriber for
ECA Warranty Transactions, or (c) upon request, Subscriber shall remit the amount of the
Item to TeleCheck. TeleCheck may also chargeback to Subscriber any amount over the
Warranty Maximum on any ECA Warranty Transaction where TeleCheck has not received
payment for such transaction within 60 days of the date of the ECA Warranty Transaction.
Upon charging back or reassigning an Item, TeleCheck shall have no further liability to
Subscriber on such Item. Following termination of this Agreement, Subscriber shall
continue to bear total responsibility for any reassignments, chargebacks and adjustments
trade under this Section.
FDSISOOB1805(ia) 47
3.7. Account Reconciliation. Payments processed by TeleCheck will be reflected on
settlement reports made available to Subscriber by TeleCheck. Subscriber agrees to notify
TeleCheck promptly of any discrepancy between Subscriber's records and the information
provided in the reports, or of any funding failures or errors. In the event any ECA Warranty
Transaction is not funded or otherwise paid by TeleCheck in accordance with Section 3.2,
Subscriber is required to notify TeleCheck in writing within 30 days from the date of such
transaction. If Subscriber fails to notify TeleCheck within such 30 day period of the
discrepancy, funding failure or error, TeleCheck shall have no liability and Subscriber is
precluded from asserting any claims, damages or losses arising from such discrepancy,
funding failure or error.
3.8. "Goodwill" of a Non - Compliance Item. TeleCheck, in its sole discretion, may
voluntarily elect not to chargeback or reassign to Subscriber a specific non - compliance Item
which fails to comply with the warranty requirements set forth in Section 3.3. Such
discretionary election by TeleCheck shall not (a) constitute a course of dealing or a waiver
of TeleCheck's right to chargeback or reassign any other Return Item, or (b) relate to any
other past or subsequent Return Item, or (c) act as a waiver of TeleCheck's right to decline
to pay any other Return Item.
3.9. Reserve Account Establishment and Funding. Subscriber expressly authorizes
TeleCheck to establish a reserve account for ECA Warranty Transactions. The amount of the
reserve account shall be set by TeleCheck, in its sole discretion, based upon Subscriber's
processing history and the anticipated risk of loss to TeleCheck. The reserve account shall
be fully funded upon 3 days' notice to Subscriber or in instances of fraud or breach of this
Agreement, the reserve account may be funded immediately at TeleCheck's election. The
reserve account may be funded by all or any combination of the following: (a) one or more
debits to Subscriber's Account (and TeleCheck is hereby authorized to make such debits);
(b) one or more deductions or offsets to any payments otherwise due to Subscriber from
TeleCheck or any of its affiliates; or (c) Subscriber's delivery to TeleCheck of a letter of
credit issued or established by a financial institution acceptable to, and in a form satisfactory
to, TeleCheck. In the event of termination of this Agreement by either TeleCheck or
Subscriber, an immediate reserve account may be established without notice in the manner
provided above. Any reserve account will be held by TeleCheck for 10 months after
termination of this Agreement. Subscriber's funds may be held in a commingled reserve
account for the reserve funds of TeleCheck's subscribers without involvement by an
independent escrow agent, and shall not accrue interest. If Subscriber's funds in the reserve
account are not sufficient to cover the delinquent fees, chargebacks or rejected and
reassigned warranty Items, or any other fees and charges due from Subscriber to TeleCheck
or its affiliates, or if the funds in the reserve account have been released, Subscriber shall
immediately pay TeleCheck such sums upon request. In the event of a failure by Subscriber
to fund the reserve account, TeleCheck may fund such reserve account in the manner set
forth above.
3.10. Fees and Rates. Subscriber shall pay TeleCheck the fees and rates set forth on the
TeleCheck Service Application and addenda, if any, or in this Agreement, as changed from
time to time by TeleCheck, plus all applicable taxes. The "Inquiry Rate" is the percentage
rate which shall apply to the face amount of each Item (up to the Warranty Maximum), for
which an authorization inquiry is made to TeleCheck by telephone, electronically or
otherwise, whether or not a TeleCheck Approval Code is issued. The "Transaction Fee" is
the additional per transaction charge for each ECA Warranty Transaction inquiry, whether
or not a TeleCheck Approval Code is issued. The "Monthly Minimum Fee" is the minimum
aggregate amount of Inquiry Rate fees that Subscriber shall pay on a monthly basis. If the
total Inquiry Rate fees for Subscriber's inquiries for any month are less than the Monthly
Minimum Fee, then the Monthly Minimum Fee shall apply. The "CROC" or "Customer
Requested Operator Call Fee" is an additional fee of $2.50 per operator or Interactive Voice
Response (IVR)- assisted call not requested by TeleCheck. The "December Risk Surcharge"
is an additional percentage charge added to the Inquiry Rate for each authorization inquiry
in December. The "Monthly Statement/Processing Fee" is a monthly fee for handling
Subscriber's account.
The following additional fees may be also be charged by TeleCheck: The "Funding Report
Fee" is a $15.00 monthly fee to receive daily funding reports or $10.00 monthly fee to
receive weekly funding reports. The "Chargebaek Fee" is a $5.00 handling fee for each
chargeback of an ECA Warranty Transaction. The "Correction Fee" is a $5.00 fee payable
on each Item that must be corrected due to Subscriber's error or at Subscriber's request.
The "Recovery Processing Fee" is a 55.00 fee for each Item that fails to meet warranty
requirements for which TeleCheck elects, in its discretion, to reimburse Subscriber as a
"Goodwill Item" for a specific Return Item. A "Terminal Application Update Fee" of $25.00
per terminal shall be charged for each occasion that a terminal application update is made
available for additional features, different information or regulatory compliance. Any
additional requests or other services not included in this Agreement may be subject to
additional fees. Fees for these items may be obtained by contacting TeleCheck. The above
fees are in addition to any fees charged by TeleCheck to Subscriber under any other
agreement.
TERMS APPLICABLE ONLY TO
TELECHECK PAPER WARRANTY SERVICE
4. Paper Warranty Service.
4.1. Description. The TeleCheck Paper Warranty Service provide Subscriber with: (a)
coded information to assist Subscriber in deciding whether or not to accept a check; and
(b) warranty services for checks that meet the warranty requirements of Section 4.2, all in
accordance with this Agreement.
4.2. Warranty Requirements. TeleCheck warrants the accuracy of its information
provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to
purchase from Subscriber one check per Paper Warranty Transaction for which a TeleCheck
Approval Code was inaccurate; provided, however, that TeleCheck's liability shall be limited
by the Warranty Maximum and warranty requirements, and shall not exceed the amount
of the check. Subscriber's sole and exclusive remedy for breach of warranty shall be the
right to require TeleCheck to purchase such check subject to the terms and conditions
contained in this Agreement. Subscriber represents and warrants with respect to each Paper
Warranty Transaction submitted to TeleCheck for processing under this Agreement that:
a) The check is a first party check drawn on Consumer's deposit account at a United States
or Canadian financial institution, completely and properly filled out, and made payable
to Subscriber. The name of the Consumer is imprinted or typed on the check by the
check manufacturer. If a P.O. Box is used or an address is not imprinted by the check
manufacturer, a physical address description is written on the check according to
TeleCheck Operational Procedures;
b) Subscriber made an inquiry to TeleCheck in strict accordance with TeleCheck Oper-
ational Procedures and obtained a single TeleCheck Approval Code. The transaction
was not performed in an attempt to avoid the warranty requirements or Warranty
Maximum (as more fully described in Section 4.4(I)), including through split sales;
c) The transaction represents an obligation of Consumer at the point of sale (no phone,
mail or internet orders) for goods sold or rented or services rendered for the price of
such goods or services, and the transaction is not for credit, cash or payment on an
account, debt or check already due Subscriber;
d) The signature in the signature block on the check is not substantially different from
the name imprinted on the check;
e) The date of the check accurately coincides within 1 calendar day of (i) the date of the
inquiry call to TeleCheck, and (ii) the date the transaction actually occurred. (Checks
may not pre -date or post -date by more than 1 calendar day the date of the inquiry call
and the transaction date);
f) Subscriber has no reason to question or have notice of an), fact, circumstance or defense
which would impair the validity or collectability of Consumer's obligation or relieve
Consumer from liability;
g) The TeleCheck Subscriber Number, Consumer's telephone number (including area
code), identification type and number and TeleCheck Approval Code are printed or
written on the check;
h) The amount shown in words and figures on the check is (i) less than or equal to the
amount entered into the TeleCheck system, or (ii) no more than $1.00 over the amount
entered into the TeleCheck system;
i) The check is deposited in Subscriber's Account and received by TeleCheck for purchase
within 30 days of the date of the check. Such check has been sent directly from
Subscriber's financial institution after being presented for payment only once (no
representments shall be allowed, whether paper or electronic); and
j) The transaction is not subject to any stop payment, dispute or set -off.
4.3. Assignment of Checks. By electing to subscribe to the Paper Warrant)- Service,
Subscriber ASSIGNS, TRANSFERS AND CONVEYS to TeleCheck all of Subscriber's rights,
title and interest in any check submitted to TeleCheck for coverage under this Agreement.
Subscriber shall, at TeleCheck's request, endorse such check and take any action reasonably
deemed necessary by TeleCheck to aid in the enforcement of TeleCheck's rights hereunder.
4.4. Reassignment. TeleCheck may reassign to Subscriber any check purchased by
TeleCheck pursuant to the Paper Warranty Service provisions of this Agreement, in any of
the following circumstances:
a) The goods or Service, in whole or in part, for which the check was issued have been
returned to Subscriber, have not been delivered by Subscriber, claimed by Consumer to
have been unsatisfactory, or are subject to any stop payment, dispute or set -off;
b) Subscriber has received full or partial payment or security in any form to secure
payment of the check, or the goods or services for which the check was issued were
initially delivered on credit or wader a lease;
c) The transaction is for any reason illegal, void or invalid; or purchase by or transfer to
TeleCheck of the check is not permitted by applicable law; or a court of law determines
that the check is, in whole or in part, not due and payable by Consumer, unless such
determination results from Consumer's bankruptcy proceeding;
d) Any of the representations made by Subscriber as set forth in Section 4.2 are or become
false or inaccurate;
e) Subscriber failed to comply with this Agreement;
f) Subscriber, or any of Subscribers owners, agents or employees: 0) materially altered
the check; or (ii) accepted the check with reason to know that it was likely to be
dishonored (including failure to receive a TeleCheck Approval Code) or that the
identification used was forged, altered or did not belong to Consumer; or (iii) processed
the transaction in a manner which was an attempt to avoid the warranty requirements
or Warranty Maximum. "Knowledge" shall be presumed in the presence of facts or
circumstances which, if known, would cause a non- subscribing merchant, using
commercially reasonable judgment, to independently refuse to accept a check.
"Knowledge" is also presumed where there is evidence of Subscriber's attempt to avoid
warranty limitations through manipulation of transactions, including, but not limited
to the splitting of a single transaction into smaller components or resubmission of a
previously denied transaction; or
FDSISOOB1805(ia) 48
g) Subscriber received notice that Consumer filed bankruptcy and Subscriber failed to
notify TeleCheck of the bankruptcy within 3 business days of Subscriber's receipt of
such notice.
Subscriber shall immediately notify TeleCheck upon the happening of any of the above
circumstances. If the check is reassigned as provided herein, TeleCheck may debit
Subscriber's Account in the amount paid by TeleCheck for the check, or upon request,
Subscriber shall remit the amount of the check to TeleCheck. Upon reassignment of a check,
TeleCheck shall have no further liability to Subscriber on such check. Following
termination of this Agreement, Subscriber shall continue to bear total responsibility for any
reassignments, chargebacks and adjustments made under this Section.
4.5. "Goodwill" of a Non - Compliance Item. TeleCheck, in its sole discretion, may
voluntarily elect not to reassign to Subscriber a specific non - compliance Item which fails
to comply with the warranty requirements set forth in Section 4.2. Such discretionary
election by TeleCheck shall not (a) constitute a course of dealing or a waiver of TeleCheck's
right to reassign any other Return Item, or (b) relate to any other past or subsequent Return
Item, or (c) act as a waiver of TeleCheck's right to decline to pay any other Return Item.
4.6. Fees and Rates. Subscriber shall pay TeleCheck the fees and rates set forth on the
TeleCheck Service Application and addenda, if any, or in this Agreement, as changed from
time to time by TeleCheck, plus all applicable taxes. The "Inquiry Rate" is the percentage
rate which shall apply to the face amount of each Item (up to the Warranty Maximum), for
which an authorization inquiry is made to TeleCheck by telephone, electronically or
otherwise, whether or not a TeleCheck Approval Code is issued. The "Transaction Fee" is
the additional per transaction charge for each transaction inquiry, whether or not a
TeleCheck Approval Code is issued. The "Monthly Minimum Fee" is the minimum
aggregate amount of Inquiry Rate fees that Subscriber shall pay on a monthly basis. If the
total Inquiry Rate fees for Subscriber's inquiries for any month are less than the Monthly
Minimum Fee, then the Monthly Minimum Fee shall apply. The "CROC" or "Customer
Requested Operator Call Fee" is an additional fee per operator or Interactive Voice
Response (IVR)- assisted call not requested by TeleCheck. The "December Risk Surcharge"
is an additional percentage charge added to the Inquiry Rate for each authorization inquiry
in December. The "Monthly Statement/Processing Fee" is a monthly fee for handling
Subscriber's account.
The following additional fees may be also be charged by TeleCheck: The "Recovery
Processing Fee" is a $5.00 fee for each Item that fails to meet warranty requirements for
which TeleCheck elects, in its discretion, to reimburse Subscriber as a "Goodwill Item" for
a specific Return Item. A "Terminal Application Update Fee" of $25.00 per terminal shall
be charged for each occasion that a terminal application update is made available for
additional features, different information or regulatory compliance. Any additional requests
or other services not included in this Agreement may be subject to additional fees. Fees for
these items may be obtained by contacting TeleCheck. The above fees are in addition to
any fees charged by TeleCheck to Subscriber under any other agreement.
GENERAL TERMS APPLICABLE TO
ALL TELECHECK SERVICES
13. Payment. All fees and charges are due upon receipt of invoice. Subscriber authorizes
TeleCheck to debit from Subscriber's Account, all payments and other amounts owed
(including, without limitation, all Return items, Returned Payments, chargebacks, adjust-
ments, fees and charges, and delinquency charges) under this Agreement or any other
agreement between Subscriber and TeleCheck or its affiliates, and to credit all amounts
owing to Subscriber under this Agreement to Subscriber's Account. If there are insufficient
funds in Subscriber's Account to pay amounts owed to TeleCheck or its affiliates, or if debits
to Subscriber's account are rejected due to ACH debit blocks, or if there are any amounts
otherwise not paid by Subscriber when due, including, without limitation, delinquency
charges, chargebacks or rejected and reassigned warranty Items, Subscriber shall
immediately reimburse TeleCheck or its affiliates upon demand, or at TeleCheck's option,
TeleCheck may offset or recoup such amounts against any amounts due Subscriber under
this Agreement or any other agreement between Subscriber and TeleCheck or its affiliates.
A delinquency charge of 1- 1/2`15 per month or the highest amount permitted by law,
whichever is lower, shall be added to the outstanding balance of any account over 15 days
delinquent. TeleCheck shall have the right to suspend all services and obligations to
Subscriber, including the payment of all warranties due and all transactions previously
authorized, during any period in which Subscriber's account is delinquent. Subscriber agrees
to pay to TeleCheck a fee of $25.00 or the highest amount permitted by law, whichever is
lower, for any Returned Payment. Subscriber shall also be responsible for paying for all of
the point of sale supplies related to the TeleCheck services (i.e., paper and ink for terminals,
rubber stamps, if applicable).
14. Security Interest. To secure Subscriber's obligations to TeleCheck and its affiliates
under this Agreement and any other agreement (including any check or credit card
processing services), Subscriber grants to TeleCheck a lien and security interest in and to
any of Subscribers funds pertaining to the transactions contemplated by this Agreement
now or hereafter in the possession of TeleCheck or its affiliates, whether now or hereafter
due or to become due to Subscriber from TeleCheck. Any such funds may be commingled
with other funds of TeleCheck, or, in the case of any funds held in a reserve account, with
any other funds of other subscribers of TeleCheck. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights, TeleCheck is
hereby authorized by Subscriber at any time and from time to time, without notice or
demand to Subscriber or to any other person (any such notice and demand being hereby
expressly waived), to set off, recoup and to appropriate and to apply any and all such funds
against and on account of Subscriber's obligations to TeleCheck and its affiliates under this
Agreement and any other agreement, including, without limitation, fees for any other
services (including any check or credit card processing services), whether such obligations
are liquidated, unliquidated, fixed, contingent, matured or unrnatured. Subscriber agrees to
duly execute and deliver to TeleCheck such instruments and documents as TeleCheck may
reasonably request to perfect and confirm the lien, security interest, right of set off,
recoupment and subordination set forth in this Agreement.
S. Point of Sale Notices; Return Item Fees. Subscriber agrees to follow procedures
and post and provide at TeleCheck's direction any notices (including any updates to such
notices) which in TeleCheck's opinion may be required for TeleCheck to process the Item
and/or the Return Item Fee, as an electronic funds transfer, draft or otherwise. Subscriber
also agrees to assess a Return Item Fee on all Return Items, and that TeleClreck shall be
entitled to collect and retain the Return Item Fee from Consumer.
16. TeleCheck Approval Code. Subscriber acknowledges that TeleCheck will use its
internal and proprietary risk management systems to evaluate the risk associated with any
particular Item and to assist in its decision whether or not to issue a TeleCheck Approval
Code. The decision to issue a TeleCheck Approval Code shall be within the discretion of
TeleCheck.
17. Credit Law Compliance. Subscriber certifies that: (a) Subscriber has a legitimate
business need, in connection with a business transaction initiated by Consumer, for the
information provided by TeleCheck under this Agreement regarding such Consumer; and
(b) the information provided by TeleCheck shall only be used for permissible purposes as
defined in the Fair Credit Reporting Act, and applicable state and federal laws, with the
exception that the information shall not be used for employment purposes, and shall not
be used by Subscriber for any purpose other than a single business transaction between
Consumer and Subscriber occurring on the date of the inquiry call to TeleCheck. Neither
Subscriber, nor Subscriber's agents or employees, shall disclose the results of any inquiry
made to TeleCheck except to Consumer about whom such inquiry is made and in no case
to any other person outside Subscriber's organization. if Subscriber decides to reject any
transaction, in whole or in part, because of information obtained from TeleCheck,
Subscriber agrees to provide Consumer with all information required by law and TeleCheck.
18. Use of TeleCheck Materials and Marks. Pursuant to authorization granted to
TeleCheck by TeleCheck International, Inc., the owner of the trademarks referenced in this
section, TeleCheck grants to Subscriber, and Subscriber accepts, a nonexclusive,
nonassignable and nontransferable limited license, uncoupled with any right or interest, to
use the TELECHECK and the TELECHECK logo service marks, and for those Subscribers
who are receiving ECA Warranty Service or ECA Verification Service, the TELECHECK
ELECTRONIC CHECK ACCEPTANCE and ECA Service marks (collectively, the
"TeleCheck Marks ") as follows. Subscriber may use and display decals, identification data
and other materials provided by TeleCheck during the term of this Agreement at Subscriber's
location solely in connection with the offering of TeleCheck services as authorized under
this Agreement. Subscriber shall not permit any persons other than its own officers or
employees at Subscriber's locations to use the TeleCheck Subscriber number assigned by
TeleCheck. Subscriber agrees that upon termination of this Agreement it will, at its own
expense, either return or destroy all TeleCheck materials (including the prompt removal of
any TeleCheck decals, electronic files, logos or other materials or references to TeleCheck
that are displayed to the public, including those affixed to equipment, doors or windows).
The monthly fees payable by Subscriber will apply for all months or fractions of a month
that any materials or TeleCheck -owned equipment remain in use. Subscriber shall not create
any print, electronic or Internet -based materials including but not limited to any advertising
or promotional materials using any TeleCheck Marks without the prior written consent of
TeleCheck. Subscriber acknowledges TeleCheck International, Inc.'s ownership of the
TeleCheck Marks and will not contest the validity of the marks or the ownership thereof.
Subscriber further agrees to refrain from performing any acts that might discredit, disparage,
dilute, infringe or negatively affect the value of the TeleCheck Marks or constitute unfair
competition to TeleCheck or TeleCheck International, Inc. Subscriber agrees promptly to
bring to TeleCheck's attention any unauthorized use of the TeleCheck Marks by third parties
of which Subscriber becomes aware. Subscriber shall use the TeleCheck Marks pursuant to
any guidelines provided by TeleCheck, as may be amended from time to time. The following
shall appear at least once on every piece of advertising or promotional material created by
Subscriber which uses the TeleCheck Marks and has received prior written approval from
TeleCheck: "The [ "Applicable Mark "] trademark is owned by TeleCheck International, Inc.
and is licensed for use by [ "Subscriber Nanre "]."
19. Use of Information. Subscriber agrees that (a) any data and other information
relating to an Item or Consumer obtained by TeleCheck in connection with any service
provided hereunder (including any electronic or other image of all or any portion of any
check or driver's license or other identification) shall be owned by TeleCheck, with all right,
title, and interest thereto; (b) TeleCheck may use any credit information provided to a
TeleCheck affiliate for TeIeCheck's credit review; and (c) TeleCheck may provide or receive
any experiential information regarding Subscriber or Subscriber's customers to or from any
TeleCheck affiliate.
20. TeleCheck Operational Procedures. Subscriber shall strictly follow all TeleCheck
Operational Procedures provided to Subscriber, as may be amended from time to time by
TeleCheck, in its discretion.
21. Equipment.
21.1. General. Subscriber may purchase point =of- -sale equipment or Subscriber may rent
equipment from TeleCheck as indicated on the TeleCheck Service Application. Title to all
rental or loaned equipment, if any, is retained by TeleCheck. Monthly rental fees will apply
to all months or fractions of a month any equipment remains in use by or in the actual or
constructive possession of Subscriber. Upon termination of this Agreement, Subscriber, at
Subscriber's expense, shall return all equipment to TeleCheck in good repair, ordinary wear
FDSISOOB1805(ia) 49
and tear excepted. TeleCheck will replace or repair terminal equipment rented or purchased
from TeleCheck; provided, however that a swap fee of $129.00 shall be charged per POS
terminal replaced. Subscriber bears the entire risk of loss, theft or damage of or to
equipment, whether or not owned by Subscriber. If TeleCheck provides replacement
equipment to Subscriber via mail or other delivery service, Subscriber must return replaced
equipment to TeleCheck within thirty (30) business days or Subscriber will be deemed to
have purchased the equipment and will be billed for it. Subscriber will not permit anyone
other than authorized representatives of TeleCheck to adjust, maintain, program or repair
equipment. A reprogramming fee of $25.00 rate will be charged for each occasion that a
piece of equipment is reprogrammed for additional features or different information.
Subscriber will install all product updates to the equipment, its software or firmware, within
thirty (30) days of receiving the updates from TeleCheck. There is a 30 -day manufacturer's
warranty on purchased equipment. A fee for the shipping and handling of equipment and
parts will be charged to the Subscriber.
21.2. Equipment Software, Firmware License. TeleCheck grants to Subscriber, and
Subscriber accepts, a nonexclusive, non - assignable and nontransferable limited license to
use the software and firmware provided with the equipment; provided, Subscriber will not:
(i) export the equipment, software or firmware outside the US; (ii) copy or use the software,
firmware or documentation provided by TeleCheck with the equipment; (iii) sublicense or
otherwise transfer any portion of such software, firmware, documentation or the equipment;
(iv) alter, change, reverse engineer, decornpile, disassemble, modify or otherwise create
derivative works of such software, firmware, documentation or the equipment; or (v)
remove or alter any intellectual property or proprietary notices, markings, legends, symbols,
or labels appearing on, in or displayed by such software, firmware, documentation or the
equipment.
22. Limitation of Liability. In no event shall either TeleCheck or Subscriber be liable to
the other party, or to any other person or entity, under this Agreement, or otherwise, for any
punitive, exemplary, special, incidental, indirect or consequential damages, including,
without limitation, any loss or injury to earnings, profits or goodwill, regardless of whether
such damages were foreseeable or whether such party has been advised of the possibility
of such damages. Notwithstanding anything to the contrary contained in this Agreement,
in no event shall TeleCheck's liability under this Agreement for all Claims arising under, or
related to, this Agreement exceed, in the aggregate (inclusive of any and all Claims made
by Subscriber against TeleCheck, whether related or unrelated), the lesser of: (a) the total
amount of fees paid to TeleCheck by Subscriber pursuant to this Agreement during the 12
month period immediately preceding the date the event giving rise to such Claims occurred;
or (b) $75,000.00.
23, Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TELECHECK MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT
LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT OR FROM PERFORMANCE
BY TELECHECK, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCH-
ANTABILITY OR FITNESS FOR A PARTICULAR USE, ALL OF WHICH ARE EXPRESSLY
WAIVED BY SUBSCRIBER. All decisions to reject any Item, driver's license or other form
of identification or payment for Subscriber's products or services are solely Subscriber's
responsibility
24. Changes in Law or NACHA Rules. Notwithstanding anything to the contrary in
this Agreement, if the continued performance of all or any portion of the obligations of
TeleCheck becomes impossible or illegal due to changes in applicable federal, state or local
laws or regulations, or by NACHA Rules, as determined by TeleCheck in its reasonable
discretion, TeleCheck may, upon 30 days written notice to Subscriber, modify or discontinue
TeleCheck's performance of its obligations to the extent necessary to avoid a violation of law
or NACHA Rules or, if TeleCheck chooses in its sole discretion to incur additional expenses
to comply, increase its fees to cover the additional cost of compliance. Additionally, if any
fees or charges to TeleCheck increase for processing transactions through the ACH
Network, TeleCheck may increase its fees by providing Subscriber 30 days written notice.
Any notice under this section to increase fees or modify obligations will be effective 30
days front the date notice is mailed to Subscriber, and in such event Subscriber may
terminate this Agreement upon written notice received by TeleCheck within such 30 day
period.
25. Data Security. Subscriber shall implement commercially reasonable and prudent
policies and procedures, including administrative, physical and technical safeguards which
are designed to meet the following objectives: (a) ensure the security and confidentiality of
Customer Information, (b) protect against any reasonably anticipated threats or hazards to
the security or integrity of such Customer information, and (c) protect against unauthorized
access to or use of Customer Information that could result in substantial harm or
inconvenience to Subscriber's customer. "Customer Information" means all Subscriber
customer information received by Subscriber in connection with any transaction
contemplated by this Agreement. Subscriber agrees to comply with all provisions of
applicable federal and state laws and regulations and NACHA Rules, as amended from time
to time, related to the protection of Customer Information.
26. Updating Information. With regard to any Return Items submitted to TeleCheck,
Subscriber shall promptly notify TeleCheck if: (a) a Consumer makes any payment to
Subscriber; (b) there is a return of goods or services, in whole or in part; or (c) there is a
dispute of any amount, notice of bankruptcy or any other matter.
27. Confidentiality. Subscriber shall maintain the confidentiality of this Agreement and
any information provided to Subscriber by either TeleCheck, including, without limitation,
TeleCheck Operational Procedures, pricing or other proprietary business information,
whether or not such information is marked confidential. Stich information shall not be
used except as required in connection with the performance of this Agreement or disclosed
to third parties.
28. No Resale, Assignment of Agreement. This Agreement is solely between
TeleClreck and Subscriber. Subscriber shall not provide or resell directly or indirectly, the
services provided by TeleCheck to any other third party This Agreement may be assigned
by Subscriber only with the prior written consent of TeleCheck. TeleCheck may freely assign
this Agreement, its rights, benefits or duties hereunder. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the successors and assigns of
TeleCheck and Subscriber's heirs, executors, administrators, successors and assigns.
29. Indemnification. In the event Subscriber (a) fails to strictly comply, in whole or in
part, with any: (i) terms and conditions of this Agreement and any addenda hereto or
TeleClreck Operational Procedures; or (ff) applicable law, rules, regulations and NACHA
Rules, or (b) makes any false or inaccurate representation, Subscriber shall indemnify,
defend and hold harmless the TeleCheck Parties from and against any and all Claims arising
therefrom, including payment of all costs and reasonable attorneys' fees for actions taken
by TeleCheck, whether by suit or otherwise, to defend the TeleCheck Parties from any Claim
related thereto or to preserve or enforce TeleCheck's rights under this Agreement. In the
event of any legal action with third parties or regulatory agencies concerning any transaction
or event arising under this Agreement, Subscriber shall: (a) promptly notify TeleCheck of
the Claims or legal action; (b) reasonably cooperate with TeleCheck in the making of any
Claims or defenses; and (c) provide information, assist in the resolution of the Claims and
make available at least one employee or agent who can testify regarding such Claims or
defenses. Upon written notice from TeleCheck to Subscriber, Subscriber shall immediately
undertake the defense of such Claim by representatives of its own choosing, subject to
TeleCheck's reasonable approval; provided, however, that TeleCheck shall have the right to
control and undertake such defense by representatives of its own choosing, but at
Subscriber's cost and expense, if the Claim arises out of patent, trademark, or other
intellectual property rights or laws.
30. Notices. Any notice or other communication required or permitted to be given
hereunder in writing if to Subscriber at Subscriber's address appearing in the Merchant
Processing Application and Agreement or by any electronic means including not limited to
the email address you have provided on the Merchant Processing Application and
Agreement or if to TeleCheck, at TeleCheck Merchant Services, Mail Stop A -12, 7301 Pacific
Street, Omaha, NE 68114, with a copy to General Counsel's Office, 3975 N.W 120th
Avenue, Coral Springs, FL 33065, and shall be deemed to have been properly given (a)
upon receipt if by facsimile transmission, as evidenced by the date of transmission indicated
on the transmitted material, (b) upon receipt if deposited on a prepaid basis with a
nationally recognized overnight courier for next business day delivery, or (c) on the date
of deliver), indicated on the return receipt, if mailed by certified or registered mail. Notices
sent to Subscriber's last known address (including email address) as indicated in our
records, shall constitute effective notice to the Subscriber under this Agreement. TeleCheck
shall also be permitted to provide notice by regular mail and such notice shall be deemed
effective 10 days after mailing, unless otherwise provided in this Agreement. The parties'
addresses may be changed by written notice to the other party as provided herein.
31. Force Majeure. TeleCheck shall not be held responsible for any delays in or failure
or suspension of service caused by mechanical or poN%er failure, computer malfunctions
(including, without limitation, software, hardware and firmware malfunctions),
transmission link failures, communication failures, failure, delay or error in clearing or
processing a transaction through the ACH Network or Federal Reserve system, failure,
delay or error by any third party or any other third party system, strikes, labor difficulties,
fire, inability to operate or obtain service for its equipment, unusual delays in
transportation, act of God or other causes reasonably beyond the control of TeleCheck.
32. Compliance with Laws, Governing Law, Integration and Waiver of jury Trial.
Subscriber agrees to comply with all federal and state laws, regulations and rules, including
NACHA Rules, each as amended, relating to the services provided hereunder. Subscriber
further acknowledges and agrees that it will not use Subscriber's Account and/or TeleCheck
Services for illegal transactions, for example, those prohibited by the Unlawful Internet
Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq., as may be amended from time
to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31
CFR Part 500 et seq. and other laws enforced by the Office of Foreign Assets Control
(OFAC). Subscriber certifies that it has not been suspended by NACHA or any credit card
association, or cancelled by an ODFI or Third Party Sender (as defined in the NACHA
Rules). This Agreement, plus any addenda attached hereto, constitutes the entire Agreement
between the parties concerning subject matter hereof and supersedes all prior and
contemporaneous understandings, representations and agreements in relation to its subject
matter. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF.
ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING
TO OR ARISING UNDER THIS AGREEMENT.
33. Severability and Interpretation,Third Party Beneficiaries. If airy provision, in
whole or in part, of this Agreement is held invalid or unenforceable for any reason, the
invalidity shall not affect the validity of the remaining provisions of this Agreement, and the
parties shall substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision. Neither this
Agreement, nor any addenda or TeleCheck Operational Procedures, shall be interpreted in
favor or against any party because such party or its counsel drafted such document. No
FDSISOOB 1805(ia) so
course of dealing, usage, custom of trade or communication between the parties shall
modify or alter any of the rights or obligations of the parties under this Agreement. This
Agreement is solely for the benefit of TeleCheck (and its affiliates) and Subscriber and no
other person or entity shall have any right, interest or claim under this Agreement.
34. Amendment and Waiver. No modification, amendment or waiver of any of the
terms and conditions of this Agreement shall be binding upon TeleCheck unless made in
writing and approved and signed by TeleCheck. No waiver of any rights hereunder shall be
deemed effective unless in writing executed by the waiving party. No waiver by any party
of a breach or any provision of this Agreement shall constitute a waiver of any prior or
subsequent breach of the same or any other provision of this Agreement. The parties agree
that no failure or delay in exercising any right hereunder shall operate as a waiver of any
such right. All of TeleCheck's rights are cumulative, and no single or partial exercise of any
right hereunder shall preclude further exercise of such right or any other right.
35. Damages. Upon Subscriber's breach of this Agreement, including any unauthorized
termination, TeleCheck shall be entitled to recover from Subscriber liquidated damages in
an amount equal to ninety percent (90 %) of the aggregate Monthly Minimum Fees and
Monthly Statement/ Processing Fees payable for the unexpired portion of the then current
term of this Agreement. TeleCheck and Subscriber hereby acknowledge and agree that, after
giving due consideration to the costs TeleCheck may incur by reason of Subscriber's breach
of this Agreement, to the possibility that TeleCheck will not be able to mitigate its damages,
and to the expense savings that TeleCheck may obtain by not having to provide services or
maintenance, the liquidated damages specified herein constitute a realistic pre- estimate of
the loss to TeleCheck in the event of such breach.
36. Financial and Other Information
36.1. Upon request, you will provide us and our affiliates, quarterly financial statements
within 45 days after the end of each fiscal quarter and annual audited financial statements
within 90 days after the end of each fiscal year. Such financial statements shall be prepared
in accordance with generally accepted accounting principles. You will also provide such
other financial statements and other information concerning your business and your
compliance with the terms and provisions of this Agreement as we may reasonably request.
You authorize us and our affiliates to obtain from third parties financial and credit
information relating to you in connection with our determination whether to accept this
Agreement and our continuing evaluation of your financial and credit status. Upon request,
you shall provide, and/or cause to be provided, to us and our affiliates, or our representatives
or regulators reasonable access to your or your service provider's facilities and records for
the purpose of performing any inspection and/or copying of books and/or records deemed
appropriate. In such event, you shall pay the costs incurred by us or our affiliates for such
inspection, including, but not limited to, costs incurred or airfare and hotel
accommodations.
36.2. Subscriber will provide TeleCheck written notice of any judgment, writ, warrant, or
attachment, execution or levy against any substantial part (25% or more in value) of your
total assets not later than three (3) days after you become aware of the same.
37. Survivability All representations, warranties, indemnities, limitations of liability and
covenants made herein shall survive the termination of this Agreement and shall remain
enforceable after such termination.
38. IRS Reporting. Pursuant to Section 605OW of the Internal Revenue Code, merchant
acquiring entities and third party settlement organizations are required to file an
information return for each calendar year beginning January 1, 2011 reporting all payment
card transactions and third part)' network transactions with payees occurring in that
calendar year. Accordingly, you will receive a Form 1099 reporting your gross transaction
amounts for each calendar year beginning with transactions processed in calendar year
2011. In addition, amounts reportable under Section 605OW are subject to backup
withholding requirements. Payers are required to perform backup with holding by
deducting and withholding income tax from reportable transactions if (a) the payee fails to
provide the payee's taxpayer identification number (TiN) to the payer, or (b) if the IRS
notifies the payer that the TIN (when matched with the name) provided by the payee is
incorrect. Accordingly, to avoid backup withholding, it is very important that you provide
us with the correct name and TIN that you use when filing your tax return that includes
the transactions for your business.
41. MAIL ORDER WARRANTY SERVICE ADDENDUM
If you elect to subscribe to the Mail Order Warranty Service, the terms and conditions of
this Section shall apply, and the Agreement is amended to include the Mail Order Warranty
Service for the warranty of paper checks issued in mail order transactions. TeleCheck and
Subscriber agree as follows:
41.1. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in Section 4.2 of the Agreement shall apply to the Mail Order Warranty Service
except for the additions and modifications to the requirements as follows:
a) The date of the check and the date of the inquiry call to TeleCheck are no later than the
date of the deposit of the check;
b) The goods purchased through mail order are not mailed to a P.O. Box address unless the
order is mailed to a post office box located in Alaska;
c) The date of the inquiry is written on the check; and
d) The check is received by TeleCheck for purchase within 45 days from the date of the
inquiry call. A copy of the invoice must accompany each warranty request.
41.2. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleCheck's management.
Except as expressly modified by this Mail Order Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCbeck Paper
Warranty Services shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
42. C.O.D.WARRANTYSERVICEADDENDUM
If you elect to subscribe to the C.O.D. Warranty Service, the terms and conditions of this
Section shall apply, and the Agreement is amended include the C.O.D. Warranty Service for
the warranty of paper checks issued in a C.O.D. transaction that meet the warranty
requirements. TeleCheck and Subscriber agree as follows:
42.1. Check Approval Amount. To obtain an authorization, Subscriber may need to
estimate the amount of the check to include freight and handling charges. TeleCheck will
honor the warranty on the check in accordance with the warranty requirements up to the
Warranty Maximum if the amount of the check differs from the check approval amount by
no more than 10%.
42.2. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in Section 4.2 of the Agreement shall apply to the C.O.D. Warranty Service
except for the additions and modifications to the requirements as follows:
a) The date of the inquiry call to TeleCheck is no later than 10 days of the date of the
check;
b) The date of inquiry call and TeleCheck Approval Code are written on the check; and
c) The check is received by TeleCheck for purchase within 45 days from the date of the
inquiry call. A copy of the invoice must accompany each warranty request.
42.3. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleCheck's management.
Except as expressly modified by this C.O.D. Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCheck Paper
Warranty Service shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
43. HOLD CHECKWARRANTY SERVICE ADDENDUM
If you elect to subscribe to the Hold Check Warranty Service, the terms and conditions of
this Section shall apply, and the Agreement is amended to include the Hold Check Warranty
Service for the warranty of paper checks issued for the down payment of a vehicle purchase
which meet the paper warranty requirements. TeleCheck and Subscriber agree as follows:
43.1. Definition. The following definition shall be applicable to the Hold Check Warranty
Service: "Hold Check" means any check written towards the purchase of a vehicle which
is held prior to deposit in Subscriber's Account. "Single Hold Check" means the Hold Check
services as selected on the TeleCheck Service Application for the warranty of one Hold
Check. "Multiple Hold Check" means the Hold Check services as selected on the TeleCheck
Service Application for the warranty of up to four (4) Hold Checks.
43.2. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in 4.2 of the Agreement shall apply to the Hold Warranty Service except for the
additions and modifications to the requirements as follows:
a) If Single Hold Check, Subscriber may accept a maximum of one (1) Hold Check for
each vehicle purchase transaction.
b) If Multiple Hold Check, Subscriber may accept a maximum of four (4) Hold Checks for
each vehicle purchase transaction. The first such Hold Check must be deposited within
two business days of the purchase.
c) The aggregate dollar amount of TeleCheck's warranty for the Hold Checks and the
aggregate dollar amount of Hold Checks accepted by the Subscriber shall be the lesser
of (i) the amount of the Hold Checks accepted by Subscriber for the purchase, (ii) the
Warranty Maximum noted on the TeleCheck Service Application or (iii) 25 of the
total purchase price of the vehicle.
d) The Hold Checks must be dated the same date as the purchase agreement and coincide
with the date of inquiry to TeleCheck. The inquiry to TeleCheck must be made using
Subscriber's "Hold Check" subscriber number.
e) The check writer must be (i) the purchaser of the vehicle, (ii) the person whose name
is to be on the title of the vehicle, and (iii) if the vehicle is being financed, the person
listed on the finance papers.
For California Subscribers only: A Check Writer Hold Check Agreement, as provided by
TeleCheck, outlining the Hold Check amounts and deposit dates (i) must be completed
and agreed upon by Subscriber and the check writer, (ii) shall not be executed by Subscriber
and the check writer, (iii) shall have the following or substantially similar provision printed
or written on the agreement: "Incorporated by Reference into Sales Contract;' and (iv) shall
be stapled to the sales contract for the vehicle. In addition, the sales contract for the
purchase of the vehicle shall (i) include total amount of the Hold Checks, and (ii) have the
following or substantially similar provision printed or written on the contract: "See attached
Check Writer Hold Check Agreement incorporated by this reference.—
FDSISOOB1805(ia) 5
Q A Check Writer Hold Check Agreement, as provided by TeleCheck, outlining the Hold
Check amounts and deposit dates must be completed and agreed upon by Subscriber
and the check writer.
g) Warranty requests must reach TeleCheck within 45 days from the date of the Hold
Check and must be accompanied by (i) a copy of the purchase agreement, (ii) a copy
of the Check Writer Hold Check Agreement described above, (iii) a copy of the credit
application, (iv) proof of purchaser insurance and (v) a TeleCheck Warranty Request
form.
h) In addition to all other terms and conditions to the TeleCheck Paper Warranty Service
program, the parties agree that the warranty shall not be applicable if any of the
following has occurred: (t) the vehicle has not left Subscriber's possession, (ii) the
vehicle has been returned to Subscriber's possession, (iii) an attempt has been made to
return the vehicle to Subscriber, but Subscriber has not accepted the return of the
vehicle, or (iv) the purchaser has attempted to rescind the purchase.
43.3. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleCheck's management.
Except as expressly modified by this Hold Check Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCheck Paper
Warranty Service shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
PART IV: ADDITIONAL IMPORTANT INFORMATION FOR CARDS
A. 1. Electronic Funding Authorization
All payments to Client shall be through the Automated Clearing House ("ACH")
and shall normally be electronically transmitted directly to the Settlement Account
you have designated or any successor account designated to receive provisional
funding of Client's Card sales pursuant to the Agreement. Client agrees that any
Settlement Account designated pursuant to the preceding sentence will be an
account primarily used for business purposes. Neither Wells Fargo Bank, N.A. nor
FDS Holdings, Inc. can guarantee the time frame in which payment may be
credited by Client's financial institution where the Settlement Account is
maintained.
Client hereby authorizes Wells Fargo Bank, N.A. and its authorized representative,
including FDS Holdings, Inc., to access information from the Settlement Account
and to initiate credit and/or debit entries by bankwire or ACH transfer and to
authorize your financial institution to block or to initiate, if necessary, reversing
entries and adjustments for any original entries made to the Settlement Account
and to authorize your financial institution to provide such access and to credit
and/or debit or to block the same to such account. This authorization is without
respect to the source of any funds in the Settlement Account, is irrevocable and
coupled with an interest. This authority extends to any equipment rental or
purchase agreements which may exist with Client as well as to any fees, fines and
assessments and Chargeback amounts of whatever kind or nature due to FDS
Holdings, Inc. or Wells Fargo Bank, N.A. under terms of this Agreement whether
arising during or after termination of the Agreement. This authority is to remain
in full force and effect at all times unless and until FDS Holdings, Inc. and Wells
Fargo Bank, N.A. have consented to its termination at such time and in such a
manner as to afford them a reasonable opportunity to act on it. In addition, Client
shall be charged twenty -five dollars ($25.00) for each ACH which cannot be
processed, and all subsequent funding may be suspended until Client either (i)
notifies FDS Holdings, Inc. that ACH's can be processed or (ii) a new electronic
funding agreement is signed by Client. Client's Settlement Account must be able
to process or accept electronic transfers via ACH.
A.2. Funding Acknowledgement
Automated Clearing House (ACH). Your funds for MasterCard, Visa,
Discover Network and American Express transactions will ordinarily be processed
and transferred to your financial institution within two (2) Business Days from the
time a batch is received by Processor if your financial institution is the Bank. If
your financial institution is not the Bank, your MasterCard, Visa, Discover
Network and American Express transactions will ordinarily be processed via the
Federal Reserve within two (2) Business Days from the time a batch is received
by Processor. The Federal Reserve will transfer such amounts to your financial
institution.
A.3. Additional Fees and Early Termination
If Client's MasterCard, Visa and Discover Network transaction(s) fail to qualify for
the discount level contemplated in the rates set forth in the Application, Client
will be billed the fee indicated in the Mid - Qualified Discount field or Non -
Qualified Discount field. If you are utilizing the Enhanced Billback Discount
option, the Client will be charged the Enhanced Billback Rate on the volume of
said transaction that failed to qualify, in addition to the difference between the
MasterCard/ Visa/Discover Network Qualified Rate agreed to on the Service Fee
Schedule and the actual interchange rate assessed to the downgraded transaction.
a. Any increases or decreases in the interchange and/or assessment portion of
the fees;
b. The appropriate interchange level as is consistent with the qualifying criteria
of each transaction submitted by Client;
e. Increases in any applicable sales or telecommunications charges or taxes levied
by any state, federal or local authority related to the delivery of the services
provided by FDS Holdings, Inc. when such costs are included in the Service
or other fixed fees.
The discount fees shown on the Service Fee Schedule shall be calculated based on
FDSISOOB1805(ia) 52
the gross sales volume of all Visa, MasterCard and Discover volume.
A Monthly Minimum Processing Fee will be assessed immediately after the date
Clients Application is approved. (Refer to Service Fee Schedule, if applicable.)
In addition to the PIN Debit Card transaction fees set forth on the Application,
Client shall be responsible for the amount of any fees imposed upon a transaction
by the applicable debit network.
The parties further agree and acknowledge that, in addition to any remedies
contained herein or otherwise available under applicable law and, if (a) Client
breaches this Agreement by improperly terminating it prior to the expiration of
the initial term of the Agreement, or (b) this Agreement is terminated prior to the
expiration of the initial term of the Agreement due to an Event of Default, then
Servicers will suffer a substantial injury that is difficult or impossible to accurately
estimate. Accordingly, the parties have agreed that the amount described below is
a reasonable pre - estimate of Servicers' probable loss.
In the event that Client terminates this Agreement within three (3) years from
the date of approval by FDS Holdings, Inc. and Wells Fargo Bank, N.A. or this
Agreement is terminated by Servicers within 3 years from the date of approval
due to an Event of Default, Client will be charged a fee for such early termination,
if so indicated on the Application on the Service Fee Schedule.
Client's obligation with respect to the Monthly Minimum Processing Fee will end
simultaneously with FDS Holdings, Inc.'s receipt of Termination Fee.
A.4.605OW of the Internal Revenue Code
Pursuant to Section 605OW of the Internal Revenue Code, merchant acquiring
entities and third party settlement organizations are required to file an information
return for each calendar year reporting all payment card transactions and third
party network transactions with payees occurring in that calendar year.
Accordingly, you will receive a Form 1099 -K reporting your gross transaction
amounts for each calendar year. Your gross transaction amount refers to the gross
dollar amount of the card transactions processed through your merchant account
with us. In addition, amounts reportable under Section 60501A7 are subject to
backup withholding requirements. Payers will be required to perform backup
withholding by deducting and withholding income tax from reportable
transactions if (a) the payee fails to provide the payee's taxpayer identification
number- (TIN) to the payor, or (b) if the IRS notifies the payor that the TIN (when
matched with the name) provided by the payee is incorrect. Accordingly, to avoid
backup withholding, it is very important that you provide us with the correct
name and TIN that you use when filing your tax return that includes the
transactions for your business.
PROCESSOR: Important Phone Numbers:
FDS Holdings Inc.: (see also Sections 3.3 and 5.4)
1307 Walt Whitman Road Customer Service
Melville, NY 11747 1 -800- 366 -1841
Attn: Merchant Services
BANK:
Wells Fargo Bank N.A.:
1200 Montego
Walnut Creek, CA 94598
Attn: Merchant Services
(925) 746 -4143