Updated May 24, 2021
THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THE ACCOMPANIED MERCHANT APPLICATION DOCUMENT (“Merchant Application” or “Application”), AND THE TERMS AND CONDITIONS HEREIN, TOGETHER WITH THE MERCHANT APPLICATION, COLLECTIVELY CONSTITUTE THE MERCHANT PROCESSING AGREEMENT (“Merchant Agreement” or “Agreement” or “MPA”).
This Merchant Agreement is between Tidal Commerce, Inc., whose principal place of business is 2625 Butterfield Rd, Suite 213W, Oak Brook, IL 60523 (“ISO”), Merchant and WestAmerica Bank, whose principal place of business is 3750 Westwind Blvd, Suite 210, Santa Rosa, CA, 95403 (“Bank”) for the limited purposes described expressly set forth herein below, and Bank is not otherwise a part of (nor liable for) any of ISO’s obligations hereunder. For purposes of Part One of this Agreement and solely for convenience purposes, Bank and ISO may be collectively referred to hereinafter as the “Service Provider”. Subject to the requirements of applicable Card Brand rules, ISO and Bank may allocate their respective duties and obligations between themselves as they deem appropriate at their sole discretion, and ISO or Bank may jointly or individually assert or exercise the rights or remedies provided to the Service Provider hereunder. This Merchant Agreement contains the terms and conditions under which Service Provider and/or other third parties will provide services to the Merchant and includes the Application Form signed by Merchant. To the extent ISO or any third party fails to perform any of its or their duties hereunder, Bank has the right, but not the obligation, to perform the services for Merchant
Merchant desires to accept Credit Cards, Debit Cards and/or Other Cards, as indicated on the Merchant Application, validly issued by members under license of Discover® Network (“Discover Network”), MasterCard® International, Inc. (“MasterCard”), and Visa® U.S.A., Inc. (“Visa”) and the Debit Networks (“Debit Networks”). Service Provider desires to provide Card Processing services to Merchant. Therefore Service Provider and Merchant agree as follows:
ARTICLE I – DEFINITIONS
1.1 “Account” means a bank account maintained by Merchant as set forth in Article III, Section 3.01 for the crediting of collected funds and the debiting of fees and charges pursuant to the terms of this Agreement.
1.2 “ACH” means the Automated Clearing House paperless entry system operated by the Federal Reserve.
1.3 “Agreement” means these Terms & Conditions, the Merchant Application, the ACH Authorization, the schedule of fees and any supplementary documents indicated herein, as amended from time to time.
1.4 “Authorization” means a computerized function or a direct phone call to a designated number to examine individual Transactions to obtain credit approval from the Card Issuer.
1.5 “AVS” (Address Verification System) allows verification of the cardholder’s Zip code and billing address while requesting authorizations for transactions or during a request for address verification only.
1.6 “Card” means (i) a valid card in the form issued under license from Visa U.S.A., Inc., Visa International, Inc., or MasterCard International, Inc. (“Bank Card” or “Bankcard”) or (ii) any other valid card accepted by Merchant by agreement with Bank, such as those issued by, or under license of, Discover Financial Services, Inc. or (iii) any valid card issued under license of a regional or national Debit Network.
1.7 “Card Association” means Visa, MasterCard, Discover or any other Company that regulates and manages their respective brands of Cards that are accepted by Merchant by agreement with Service Provider.
1.8 “Cardholder” means the person whose name is embossed upon the face of the Card presented to Merchant
1.9 “Card Issuer” means the Financial Institution or Company which has provided a Card to a Cardholder.
1.10 “Chargeback” means the procedure by which, and the value of, a Sales Draft (or disputed portion thereof) is returned to Service Provider by a Card Issuer.
1.11 “Credit Card” means a plastic card that allows payments to be offset against a special-purpose account associated with a revolving line of credit and requiring some form of installment–based payment.
1.12 “Credit Voucher” means a document executed by a Merchant evidencing any refund or price adjustment credited to a Cardholder account.
1.13 “Debit Card” means a plastic card linked to a checking or savings account.
1.14 “Debit Network” means a network upon which transactions linked to checking or savings accounts are routed.
1.15 “Discover” means Discover Network or Discover Financial Services.
1.16 “Imprint” means (i) an impression on a Sales Draft manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal and electronically printing a Sales Draft.
1.17 “MasterCard” means MasterCard International, Inc. or MasterCard Worldwide, Inc.
1.18 “MCC” means Merchant Category Code and indicates the Merchant’s category classification by Visa and MasterCard describing specifically the type of business the Merchant operates.
1.19 “Retrieval” means a Card Issuer’s or Cardholder’s request of the Transaction receipt.
1.20 “Rules” means the rules and regulations of any Card Association or Debit Network, as amended from time to time.
1.21 “Sales Draft” means the paper form, approved in advance by Service Provider, whether such form is electronically or manually imprinted, evidencing a sale Transaction.
1.22 “Transaction” means any sale of goods and services, or credit for such, from Merchant for which the customer makes payment through the use of any
Card and which is presented to Service Provider for collection.
1.23 “Visa” means Visa U.S.A., Inc. or Visa International, Inc.
1.24 “Voice Authorization” means a direct phone call to a designated number to obtain credit approval on a Transaction.
2.1 HONORING CARDS
A. Without Discrimination. Merchant will accept without discrimination, all valid
Cards as indicated by Merchant on the Merchant Application when properly
presented by Cardholders for payment for goods or services within the Merchant’s
Category (MCC) of acceptance. Merchant may not discriminate between payment
Cards within a payment Card network on the basis of the Issuer that issued the
presented payment Card.
B. Acceptance. Merchant will elect on the Merchant Application to accept (full
acceptance) or not accept (limited acceptance) credit and/or debit cards for
payment. A full acceptance Merchant will accept all valid Cards unless Merchant
provides 30 days written notice to Service Provider requesting limited acceptance
and stating Merchant’s election of Card types. Limited acceptance is not applicable
to non-US issued Cards.
C. Advertised Price. Merchant agrees to accept Cards for payment of goods or
services without charging any amount over the advertised price as a condition of
Card acceptance, unless local law requires Merchant be permitted to engage in
such practice.
D. Minimums and Maximums. (a) Merchant shall not establish minimum or
maximum transaction dollar value for Signature-Debit or PIN-Debit Card sales as a
condition for accepting such Debit Cards. (b) Merchant may set a minimum
transaction dollar value for the acceptance of a Credit Card, only to the extent that:
(i) such minimum dollar value does not exceed $10; and (ii) such minimum dollar
value is the same for all Issuers or payment card networks. (c) If Merchant is a
federal agency or institution of higher education, Merchant may set a maximum
dollar value for the acceptance of Credit Cards, to the extent that such maximum
dollar value is the same for all Issuers or payment card networks.
E. Surcharges. If Merchant chooses to impose a surcharge on Card payments,
Merchant may do so only after meeting specific considerations, limitations and
requirements as defined by the Card Associations. Requirements and limitations
include: (i) Merchant may only impose a surcharge if permitted by, and compliant
with, state and local law; (ii) Merchant shall notify Service Provider and Card
Associations no less than 30 days in advance of imposing any surcharge; (iii)
Merchant shall publicly disclose its surcharge practices to customers at the store
entry point and point of sale; and (iv) Any surcharge imposed by Merchant shall
not exceed 4% of the underlying transaction amount. For information on, and
further links to, surcharge considerations, requirements, limitations and Card
Association surcharge registration pages, visit
www.mastercard.us/merchants/support/surcharge-rules.html and
www.visa.com/merchantsurcharging.
F. Discounts. Merchant may offer a discount or in-kind incentive as an
inducement for a Cardholder to use a means of payment that the Merchant
prefers, provided that the discount: (i) is clearly disclosed as a discount from the
standard price; (ii) is non-discriminatory, by providing the same discount for all
Cards accepted; (iii) does not differentiate on the basis of the Issuer or the Card
Association; and (iv) is in accordance with the law and the Rules.
G. Disputes with Cardholder. (a) All disputes between Merchant and any
Cardholder relating to any Card Transaction will be settled between Merchant and
the Cardholder. The Service Provider bears no responsibility for such transactions.
(b) Merchant must not require a Cardholder, as a condition for honoring a Card,
to sign a statement that waives the Cardholder's right to dispute the Transaction
with the Card Issuer.
H. Cardholder Identification. Merchant will identify the Cardholder and check the
expiration date and signature on each Card. Merchant will not honor any Card if: (i)
the Card has expired; (ii) the signature on the sales draft does not correspond with
the signature on the Card; (iii) the account number embossed on the Card does
not match the account number on the Card’s magnetic stripe (as printed in
electronic form); (iv) the Card was declined as a result of an Authorization attempt.
Merchant may not require a Cardholder to provide personal information, such as a
home or business telephone number, a home or business address; or a driver
license number as a condition for honoring a Card unless permitted by law and the
Card Association Rules.
I. Non-presentment. Merchant shall not accept a Card as payment (other than for mail order, Internet sale, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the person seeking to use the Card does not present the Card to permit Merchant to examine it and obtain an imprint or otherwise use the physical Card to complete the Transaction.
J. Card Recovery. Merchant will use reasonable, best efforts and peaceful means
to recover any Card if: (i) Merchant is advised by Service Provider, the issuer of
the Card or the designated voice authorization center to retain it; or (ii) if Merchant
has reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or
not authorized by the Cardholder. NOTE: The obligation of Merchant imposed by
this section to retain or recover a Card does not authorize a breach of the peace or
any injury to persons or property and Merchant will hold Service Provider harmless
from any claim arising from any injury to person or property, or other breach of
the peace in connection with the retention or recovery of a Card.
K. Location. Merchant may honor Cards only at location(s) approved by
Service Provider. Additional locations may be added, subject to Service
Provider’s approval. Either Merchant or Service Provider may delete location(s)
by providing notice as provided in this Agreement.
2.2 AUTHORIZATIONS
A. Required on all Transactions. Merchant will obtain prior Authorization for the
total amount of a transaction via electronic terminal, gateway or other compliant
and certified device before completing any transaction, and Merchant will not
process any transaction that has not been authorized. Merchant will follow
all instructions received during the Authorization process. Upon receipt of an
Authorization approval Merchant may consummate only the transaction
authorized and must note on the Sales Draft the Authorization number. Where
Authorization is obtained, Merchant will be deemed to warrant the true and
matching identity of the customer as the Cardholder.
B. No Guarantees. Authorizations are not a guarantee of acceptance or payment
of the Sales Draft. Authorizations do not waive any provisions of this Agreement or
otherwise validate a fraudulent transaction or a transaction involving the use of an
expired or otherwise invalid Card.
C. Unreadable Magnetic Stripes. When presenting Card transactions for
Authorization electronically, and Merchant’s terminal is unable to read the
magnetic stripe on the card, Merchant must obtain a Phone Authorization (either
via Voice or Automated Response Service, both carry additional fees) and
Merchant must obtain an imprint of the Card and also obtain the Cardholder’s
signature on the imprinted Sales Draft before presenting the Sales Draft to Service
Provider for processing. Failure to perform these additional actions may result in
the assessment of transaction surcharges or a rejected transaction.
D. Fees. Unless otherwise approved in writing by Service Provider, Merchant
agrees to pay $0.75 for each Voice Authorization and $1.00 for each Voice
Authorization for AVS.
2.3 PRESENTMENT OF SALES DRAFTS
A. Sales Draft Administration. Unless the Sales Draft is electronically generated
from a swiped transaction or is the result of an Internet, mail, phone or
preauthorized sales order, Merchant must use a Sales Draft or other form
approved by Service Provider to document each Card transaction. Each Sales
Draft will be legibly imprinted with: (i) Merchant’s name, location and account
number; (ii) the information embossed on the Card presented by the Cardholder
(either electronically or manually, and truncated if electronic); (iii) the date of the
transaction; (iv) a brief description of the goods or services involved; (v) the
transaction authorization number; (vi) the total amount of the sale including any
applicable taxes, or credit transaction; and (vii) adjacent to the signature line, a
notation that all sales are final, if applicable.
B. Signatures. Sales Drafts must be signed by the Cardholder unless the Card
transaction is a valid mail/telephone/Internet order Card transaction, or PIN-based
Debit Card transaction, which fully complies with the requirements set forth in this
Agreement. Merchant may not require the Cardholder to sign the Sales Draft
before Merchant enters the final transaction amount in the Sales Draft.
C. Delivery and Retention of Sales Drafts. Merchant will deliver a complete copy
of the Sales Draft or credit voucher to the Cardholder at the time of the transaction.
In addition to any records routinely furnished to Service Provider under this
Agreement, Merchant shall preserve a paper or microfilm copy of all actual paper
Sales Drafts and Credit Vouchers and if a mail, phone order or preauthorized order
is involved, the Cardholder’s signed Authorization for the Transaction for at least
eighteen (18) months (or longer if required by law or Rules) after the date Merchant
presents the Transaction and Merchant must preserve records in accordance
with Article III, Section 3.04 of the Agreement.
D. Electronic Transmission. If Merchant utilizes electronic authorization and/or
data capture equipment and/or services; Merchant will enter the data related to a
Sales or Return transaction into a computer terminal or magnetic stripe reading
terminal and transmit daily transactions to the Service Provider (or its duly
assigned processor) no later than the close of business on the date the
transactions are completed (unless otherwise permitted by the Rules). Failure to do
so may result in the assessment of transaction penalties.
E. Compliance. If Merchant provides or uses their own electronic terminal,
gateway or similar transaction device to capture transactions and generate Sales
Drafts, such devices must meet Service Provider, Card Associations, PCI Security
Standards Council (pursuant to Article III, Section 3.04 of this Agreement) and
Government requirements for processing transactions.
F. Inspection. If Service Provider requests a copy of a Sales Draft, credit voucher
or other transaction evidence, Merchant will provide it within 24 hours following the
request.
G. Multiple Transaction Records. Merchant shall not prepare more than one
Sales Draft for a single sale or for a single item and shall include all items or goods
and services purchased in a single Transaction in the total amount on a single
Sales Draft except: (i) for purchases in separate departments of a multiple
department store; (ii) for installment payments; or (iii) for delayed or amended
charges governed by the Rules for travel and entertainment merchants and
transactions.
H. Forms. Merchant shall only use forms or modes of transmission of Sales Drafts
and Credit Vouchers as provided or approved by Service Provider. Merchant
shall not use forms provided by Service Provider other than in connection with
Card Transactions without Service Provider’s prior written consent.
I. Endorsement. The presentment of Sales Drafts to Service Provider for
collection and payment is Merchant’s agreement to sell and assign its right, title
and interest in each Sales Draft completed in conformity with Service Provider’s
acceptance procedures and shall constitute an endorsement by Merchant to
Service Provider of such Sales Drafts. Merchant hereby authorizes Service
Provider to supply such endorsement on Merchant’s behalf. Merchant agrees
that this Agreement is a contract of financial accommodation within the meaning
of Bankruptcy Code (11 U.S.C. § 365) as amended from time to time. Merchant
acknowledges that its obligation to Service Provider for all amounts owed under this
Agreement arise out of the same transaction as Service Provider’s obligation to
deposit funds to the Account.
2.4 DEPOSIT OF SALES DRAFTS AND FUNDS DUE MERCHANT
A. Presentment and Acceptance. Service Provider shall accept from Merchant all
valid Sales Drafts presented by Merchant under the terms of this Agreement and
shall present the same to the appropriate Card issuers for collection against
Cardholder accounts. All presentment and assignment of Sales Drafts, collection
therefore and re-assignment or rejection of such Sales Drafts are subject to this
Agreement and the Rules. Service Provider shall be the only entity that will
provisionally credit the value of collected Sales Drafts to Merchant’s Account and
reserves the right to adjust amounts collected to reflect the value of Chargebacks,
fees, fines and penalties, late submission charges and items for which Service
Provider did not receive final payment. Service Provider may refuse to accept or
withhold payment of any Sales Draft without notice until the expiration of any
chargeback period, or revoke its prior acceptance of a Sales Draft, in the following
circumstances: (i) Service Provider reasonably suspects that the Sales Draft was
not made in compliance with this Agreement, Rules or applicable law; (ii) the
Cardholder disputes its liability to Service Provider for any reason, including but
not limited to Cardholder chargeback rights enumerated in the Rules; (iii) the
transaction giving rise to the Sales Draft was not directly between Merchant and
Cardholder; (iv) the transaction is outside the parameters indicated on the
Merchant Application; (v) if Service Provider determines, at its sole and reasonable
discretion, that a transaction or batch of transactions poses a risk of loss; (vi)
Service Provider may impose a cap on the volume and/or ticket amount of Sales
Drafts that Service Provider will process for Merchant, as indicated on Merchant
Application or imposed otherwise by Service Provider. This limit may be modified
by Service Provider upon written notice to Merchant. If Merchant exceeds the limit
established by this Agreement, Service Provider may suspend processing, charge
over limit fees, hold deposits over the cap, and/or return all Sales Drafts
evidencing funds over the cap to Merchant or terminate this Agreement. Merchant
will pay Service Provider, as appropriate, any amount previously credited to
Merchant for a Sales Draft not accepted or later revoked by Service Provider.
Merchant agrees that Service Provider has no liability for any delay in funding and
that Service Provider is not responsible for any losses Merchant may incur, including
but not limited to NSF fees, due to delayed deposit of funds.
B. Returns and Adjustments: Credit Vouchers. Merchant agrees that it will
conduct business in regards to returns as follows: (a) Merchant’s policy for the
exchange or return of goods sold and the adjustment for services rendered shall be
established and posted in accordance with the Rules. Merchant agrees to disclose
to a Cardholder before a Card sale is made, that if merchandise is returned: (i)
no refund, or less than a full refund, will be given; (ii) returned merchandise
will only be exchanged for similar merchandise of comparable value;
(iii) only a credit toward purchases will be given; or (iv) special conditions or
circumstances apply to the sale (e.g., late delivery, charges, or other noncredit
terms). (b) Disclosures must be made on all copies of Sales Drafts in letters
approximately 1/4” high in close proximity to the space provided for the
Cardholder’s signature on the Sales Draft and issued at the time of sale. (c) If
Merchant does not make these disclosures and Cardholder requests a refund, a
full refund in the form of a credit to the Cardholder’s Card account must be given.
Merchant shall not refund cash to a Cardholder who originally paid for the item by
Card. (d) Credits must be made to the same Card account number on which the
original sale Transaction was processed. (e) If Merchant accepts any goods for
return, any services are terminated or canceled in conjunction with each such
transaction. Merchant shall have sufficient funds in its account available to Service
Provider to cover the amount of the transaction and any related fees. (f) Merchant
warrants that any Credit Voucher it issues represents a bona fide refund or
adjustment on a Card sale by Merchant with respect to which a Sales Draft has
been accepted. (g) Under no circumstance will Service Provider be responsible
for processing credits or adjustments related to Sales Drafts not originally
processed by processor and Service Provider.
C. Chargebacks. Merchant and Guarantor(s) are fully liable for all transactions
returned for whatever reason, otherwise known as “Chargebacks.” Merchant will
pay upon presentation the value of all Chargebacks. Authorization is granted by
Merchant to Service Provider to offset from incoming transactions and to debit the
Designated Account, the Reserve Account or any other account held at Bank or at
any other financial institution the amount of all Chargebacks. Merchant will fully
cooperate in complying with the Rules regarding chargebacks. Merchant agrees that:
(a) failure to pay a Chargeback upon such presentation shall be considered a
material breach of this Agreement and Merchant, in addition to any other remedies
which may be exercised by Service Provider, shall be charged a late fee of (i) the
maximum allowed by law; or (ii) one and one half percent (1.5%) per month or portion
thereof on all unpaid Chargebacks, whichever is greater; (b) Merchant agrees to
accept for Chargeback any sale for which the Cardholder disputes the validity of
the sale according to the Rules, or Service Provider determines that Merchant has in
any way failed to comply with the Rules or Service Provider procedures, including
but not limited to the following: (i) Sales Draft is illegible, not signed by the Cardholder
or has not been or cannot be presented to Service Provider within the required time
frame(s); (ii) Sales Draft does not contain the Imprint of a valid unexpired Card; (iii) an
Authorization has not been obtained and/or a valid Authorization number has not
been correctly and legibly recorded on the Sales Draft; (iv) Sales Draft is a
duplicate of a prior Transaction or is the result of two or more Transactions
generated on one Card for a single sale; (v) Cardholder alleges that he or she did
not participate in the sale, authorize the use of the Card, receive goods or
services purchased, or receive a required credit adjustment, or disputes the
quality of the goods or services purchased; (vi) price of goods or services on the
Sales Draft differs from the amount which Merchant presents for payment; (vii)
Transaction results from an Internet, mail, phone or preauthorized order and the
Cardholder disputes entering into or authorizing the Transaction or the
Transaction has been made on an expired or non-existing account number; (viii)
Service Provider reasonably believes, within its sole discretion, that Merchant has
violated any provision of this Agreement; (ix) Service Provider reasonably
determines that the transaction record is fraudulent or that the Transaction is not
bona fide or is subject to any claim of illegality, cancellation, rescission,
avoidance, or offset for any reason whatsoever, including without limitation,
negligence, fraud, or dishonesty on the part of Merchant or Merchant’s agents or
employees; (a) for whatever reason pertaining to not complying with the Rules. (b)
Notwithstanding any authorization or request from a Cardholder Merchant shall
not initiate a sale Transaction in an attempt to collect a Chargeback. (c)
Guarantors are personally liable for all Chargebacks. In the event Merchant sells
its business and a new owner incurs Chargebacks, the original Merchant and
all Guarantors will be held personally liable for the Chargebacks and any other
liabilities of the new owner(s). (d) In the event the Account is closed or is otherwise
unavailable to Service Provider for ACH debit, Merchant and/or Guarantors consent
to Service Provider locating additional deposit accounts or assets by using any
means available. In this event Merchant and/or Guarantors waive all rights to their
privacy in favor of Service Provider until such time as all unpaid chargebacks and
fees owed to Service Provider have been paid in full. (e) Merchant agrees to pay
Chargeback fees as indicated on the Merchant Application for Chargebacks
received by Service Provider regardless of outcome of a Merchant dispute of
such Chargeback. (f) Merchant has the right to follow procedures outlined by the
Rules to dispute a Chargeback, but such Merchant dispute procedure does not
guarantee to relieve Merchant from the responsibilities in respect to Chargebacks
outlined in this Section.
D. Excessive Activity. Merchant’s presentation to Service Provider of Excessive
Activity will be a breach of this Agreement and cause for immediate termination
of this Agreement. “Excessive Activity” means, during any monthly period for any
one of Merchant’s terminal identification numbers or merchant identification
numbers: (i) the dollar amount and/or number of chargebacks and/or retrieval
requests in excess of 1% of the average monthly dollar amount and or number
of Card transactions; (ii) sales activity that exceeds by 25% of the dollar volume
indicated on the Application; or (iii) the dollar amount of returns equals 3% of the
average monthly dollar amount of your Card transactions. Merchant authorize,
upon the occurrence of Excessive Activity, Service Provider to take any action
deemed necessary including but not limited to, suspension or termination of
processing privileges or creation or maintenance of a Reserve Account in
accordance with this Agreement.
E. Fees. Unless otherwise approved in writing by Service Provider, Merchant
agrees to pay $15 for each Retrieval request.
2.5 OTHER TYPES OF TRANSACTIONS
A. Recurring Transactions. For recurring transactions, Merchant must be
approved by Service Provider to accept recurring transactions and obtain a written
request from the Cardholder for the goods and services to be charged to the
Cardholders account, the frequency of the recurring charge, and the duration of
time during which such charges may be made. Merchant will not complete
any recurring transaction after receiving: (i) a cancellation notice from the
Cardholder; (ii) notice from Service Provider, or (iii) a response that the Card is
not to be honored. Merchant must print legibly on the Sales Draft the words
“Recurring Transaction”.
B. Multiple Sales Drafts. (a) Merchant will include a description and total amount
of goods and services purchased in a single transaction on a single Sales Draft or
Transaction record, unless (i) partial payment is entered on the Sales Draft or
transaction record and the balance of the transaction amount is paid in cash or by
check at the time of transaction, or (ii) a Sales Draft represents an advance
deposit in a Card transaction completed in accordance with this Agreement and
the Rules. (b) Merchant shall not submit duplicate Transactions. Merchant shall be
debited for any duplicate Transactions and shall be liable for any Chargebacks
resulting from duplicate Transactions.
C. Mail Orders “MO”, Telephone Orders “TO” and Internet Orders “IO.” (a)
Unless Merchant has been implicitly approved by Service Provider to accept
mail orders, telephone orders, or Internet orders, Merchant warrants that it is a
walk-in trade business, located in a retail business place conducting face-to-face
Transactions. If Merchant is found to be submitting Card Transactions for mail
orders, telephone orders, or Internet orders without Service Provider approval,
this Agreement may be terminated and the value of all Sales Drafts collected from
the first day of processing may be charged back to Merchant and all funds thereof
may be held pursuant to Article IV of this Agreement. (b) If Merchant is authorized
by Service Provider to accept payment by mail order, telephone order, or Internet
order, the Sales Draft may be completed without the Cardholder’s signature or
an imprint, but in such case Merchant shall create a Sales Draft containing
Cardholder account number, expiration date, transaction date, an authorization
number, the sale amount and the letters “MO”, “TO”, or “IO” as appropriate. In
addition, the Merchant’s business name, city and state must be included. Receiving
an Authorization shall not relieve the Merchant of liability for Chargeback on any
MO, TO or IO Transaction. (c) For Approved MO, TO, and IO Merchants, performing
AVS (Address Verification System) is required. AVS is not a guarantee for
payment, and the use of AVS will not waive any provision of this Agreement or
otherwise validate a fraudulent transaction. (d) In the event the Merchant is
approved to conduct MO, TO, or IO Transactions, Merchant is cautioned to apply
fraud protection measures (as described on the Visa and MasterCard web sites)
and Merchant understand that there is a higher risk of customer disputes and/or
fraud associated with these types of Transactions. (e) If Merchant’s Retail/Mail
Order/Telephone Order, Internet mix changes from the percentages represented
to Service Provider in the Merchant Application, Service Provider may cease
accepting mail/telephone order transactions, or limit its acceptance of such
transactions, or increase their fees, or terminate this Agreement, or impose a
Reserve Account, unless prior written approval has been obtained from Service
Provider. (g) Merchant may not deposit a MO, TO, or IO Sales Draft before the
product is shipped.
D. Lodging and Vehicle Rental Transactions. (a) Merchant must estimate and
obtain Authorization for the amount of the Transaction based upon the
Cardholder’s intended length of stay or rental and the Cardholder must be informed
of the dollar amount Merchant intends to pre-authorize. Additional Authorization(s)
must be obtained and recorded for charges actually incurred in excess of the
estimated amount. (b) Regardless of the terms and conditions of any written
preauthorization form, the Sales Draft amount for any lodging or vehicle rental
Transaction shall include only that portion of the sale, including any applicable
taxes, evidencing a bona fide rental of personal property by Merchant to the
Cardholder and shall not include any consequential charges. Nothing contained
herein is intended to restrict Merchant from enforcing the terms and conditions
of its preauthorization form through means other than a Card Transaction. (c) It
is the responsibility of the Merchant to comply with the Rules inherent to the
Lodging and Vehicle Rental MCCs in order to qualify for special Interchange
pricing incentives for Lodging and Vehicle Rental merchants. Card Association
Rules may be obtained and each Card Association’s respective web site.
E. Future Delivery. (a) Merchant will not present for processing, whether by
electronic means or otherwise, any Sales Draft, or other memorandum, to Service
Provider representing a payment, partial payment or deposit for goods or services
to be delivered in the future, without the prior written consent of Service Provider.
Such consent will be subject to Service Provider’s final approval. (b) The
acceptance of a Card for payment or partial payment of goods or services to be
delivered in the future without prior consent will be deemed a breach of this
Agreement and cause for immediate termination in addition to any other remedies
available under the law or Rules. (c) If Service Provider has given such consent,
Merchant represents and warrant to Service Provider that Merchant will not rely
on any proceeds or credit resulting from such transactions to purchase or furnish
goods or services. Merchant will maintain sufficient working capital to provide for
the delivery of goods or services at the agreed upon future date, independent of
any credit or proceeds resulting from sales drafts or other memoranda taken in
connection with future delivery transactions. (d) If Merchant has obtained prior
written consent, Merchant will complete such Card transactions in accordance with
the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must
execute one Sales Draft when making a deposit with a Card and a second Sales
Draft when paying the balance. Merchant will note upon the Sales Draft the words
“deposit” or “balance” as appropriate. Merchant will not deposit the Sales Draft
labeled “balance” until the goods have been delivered to Cardholder or Merchant
has fully performed the services.
2.6 DEBIT CARD PROCESSING
If Merchant indicated on Merchant Application to become a sponsored participant
in the Debit Networks in order to accept Debit Network transaction, Merchant is
bound under the terms and conditions set forth in this Section (in addition to the
other sections of this Agreement), as follows:
A. Debit Networks. “Debit Networks” refers to those regional and national Debit
Card networks accepted by Service Provider, including but not limited to the
following organizations and their successors: Star, NYCE, Pulse, Interlink, AFFN,
Alaska, Jeanie, Accel, Maestro and Money Station. This Section (2.06) pertains
only to transactions authorized, captured and settled through such Debit Network.
B. Participation. Merchant agrees to become a participant in each Debit Network
Service Provider is able to facilitate.
C. Compliance. Merchant agrees to comply with all Debit Network rules,
regulations, procedures, fees, assessments, penalties, and other membership
duties, obligations, and costs of each such Debit Network, which are applicable to
Merchant during the term of this Agreement. Merchant shall complete only those
POS transactions that comply in all respects with the Rules and which have been
authorized. Merchant shall comply with the Graphics Standards Manual, the
Security Manual, all federal, state, and local laws applicable to its participation in
the system, including without limitation statutes, regulations, and judicial decisions
relating to POS transactions, POS Terminals sharing, consumer credit, consumer
protection, electronic funds transfers, antitrust, franchise, and other trade
regulation matters, and shall indemnify and hold Service Provider and Debit Network
harmless against any and all liability or expenses related thereto.
C. Honoring Cards. Merchant shall honor all valid cards when presented for
payment of Debit transaction when such transactions can be initiated and
completed electronically. If a technical malfunction prevents electronic initiation
and completion of a transaction, Merchant is not obligated to complete such Debit
transaction. Merchant shall treat transactions by any Debit Network cardholders in
the same manner as transactions by any other cardholders as permitted by the
Rules and law. Merchant may not require or request the cardholder's signature or
any other means of verifying the cardholder's identity.
D. Authorizations. Service Provider will provide a transaction authorization service,
which will enable the Merchant to offer its Cardholders a method of payment using
PIN-Debit Cards. Merchant will be permitted to accept certain PIN-Debit Cards
and access Service Provider's contracted data center facilities to perform
authorization requests.
E. Funds. Bank will facilitate the transfer of funds received from the Debit
Networks as a result of Merchant's transaction activity. Funds will be transferred to
Merchant's Designated Account using the Automated Clearing House (ACH) of the
Federal Reserve Bank, on a two-three (2-3) day delayed basis contingent upon
receipt of funds by the Service Provider and method of Merchant statement
reconciliation.
F. Access. Upon receipt of written instructions from any Debit Network to which
Service Provider is providing access hereunder, Service Provider may immediately
cease to provide to Merchant and its Cardholders, access to such Debit
Network. Service Provider shall use reasonable efforts to promptly notify
Merchant of such interruption in network access. Merchant shall indemnify and
hold Service Provider harmless from any claims, liabilities, or losses, including
costs and attorney's fees, resulting from Service Provider's compliance with the
written instructions of any Debit Network.
G. No Discrimination. Merchant shall treat transactions by any Debit Network
Cardholders in the same manner as transactions by any other cardholders, unless
otherwise stipulated under law and the Rules.
H. Equipment. (a) Merchant shall, at its own expense, obtain and install POS
Terminals, together with PIN-Pads and other facilities necessary to support the
Debit Network transactions at Merchant location(s). Merchant shall provide
Service Provider and the Debit Network with a list of all Merchant locations
currently with compliant POS Terminals capable of accepting cards and shall
provide a list as applicable. All POS Terminals shall accept cards. Merchant at
all times shall maintain and operate the POS Terminals in accordance with the
Operating Rules. (b) Merchant shall take all reasonable steps necessary to
ensure that all POS Terminals and PIN-Pads operated at Merchant locations
shall: (i) be available for use by cardholders of all provided Debit Networks for
POS transactions; and (ii) function with a minimum of error and in a reliable
manner and meet all applicable standards contained in the Technical
Specifications and the Security Manual for Debit Network. (c) Merchant shall
have at, or in proximity to, any POS Terminal where a card is accepted, an
operating Track 2 magnetic stripe reader and PIN-Pad that meets the standards
contained in Article III, Section 3.04. The requirements of this paragraph shall not
apply to POS transactions not involving the transfer of funds such as balance
inquiries. Merchant shall be responsible for connecting the POS terminals at
each Merchant location.
I. Receipts. At the time of any POS transaction involving a transfer of funds,
Merchant shall make available to each cardholder a written receipt that complies
fully with all applicable state and federal laws and regulation, including, but not
limited to, Regulation E (12 C.F.R. § 205), and includes, but is not limited to, the
following information: (i) the amount of the POS transaction; (ii) the transaction
date; (iii) the type of POS transaction and, if more than one type of account may be
accessed at the POS Terminal by the cardholder, the type of account (checking,
savings, etc.) and, if more than one account of the same type may be accessed at
the POS Terminal by the cardholder the specific account accessed must be
uniquely identified; (iv) a number or code that uniquely identifies the cardholder
initiating the POS transaction, or the cardholder's account, or the card used to
initiate the POS transaction; (v) location of the POS terminal at which the POS
transaction was initiated; (vi) the name of the Merchant providing the goods,
services or money to the cardholder; and the trace number.
J. Dispute Resolution. Merchant will attempt to settle in good faith any dispute
with a Cardholder involving a transaction. Merchant will establish a fair, consistent
policy for the exchange and return of merchandise and for the adjustment of
amounts due on Debit Card sales. Except as the Debit Networks may permit,
Merchant will not make any cash refunds or payments for returns or adjustments
on Debit Card transactions but will instead complete an adjustment form provided
or approved by Service Provider. The Debit Card Sales Draft for which no refund or
return will be accepted by Merchant must be clearly and conspicuously marked
(including on the Cardholder’s copy) as “final sale” or “no return” and must
comply with the Rules. Merchant will refer Debit Card Cardholders with questions
or problems to the institution that issued the Debit Card. Merchant will cooperate
with Processor and with each applicable Debit Network and its other members
to resolve any alleged errors relating to transactions. Merchant will permit and will
pay all expenses of periodic examination and audit of functions related to each
Debit Network, at such frequency as the applicable Debit Network deems
appropriate. Audits will meet Debit Network standards, and the results will be made
available to the Debit Network.
K. Personal Identification Numbers. (a) For each PIN-based Debit Card sale,
Cardholder must enter a Personal Identification Number (“PIN”) through a PIN-pad
located at the point of sale. (b) PIN-pad(s) must be situated to permit Cardholders
to input PINs without a chance of revealing it to another individual, including
Merchant or its employee(s). (c) Merchant will instruct employees not to ask any
Cardholder to disclose a PIN and in the event Merchant or employee(s)
nevertheless becomes aware of any Cardholder’s PIN, Merchant or employee(s)
will not use such PIN or create or maintain any record of such PIN, and will not
disclose such PIN to any other person. (d) Merchant must ensure the PIN message
is encrypted, using a compliant encryption method, from the PIN-pad to the POS
Terminal, and from the POS Terminal to the Debit Network and back (end-to-
end). (e) The PIN encryption method considered compliant is the method
mandated by the Card Associations, the Debit Networks and the PCI-SSC. (f)
Merchant may only use a PIN entry device certified by Service Provider and listed
as compliant by the PCI-SSC (including PTS and PCI-PED) for submitting PIN-
Debit Transactions. Merchant will comply with any other requirements relating
to PIN security as required by Service Provider or by any Debit Network, inclusive
of PIN encryption method.
L. Inquiries. Balance inquiries may be performed only at cardholder-operated
terminals and shall at all times require entry of the cardholder's PIN and use of the
magnetic stripe reader.
M. Confidentiality. Merchant shall not disclose to third parties, other than; (a) the
Debit Network or Service Provider or (b) otherwise specifically required by law,
any information related to POS transactions (including, but not limited to,
cardholder account information) without the prior written consent of the cardholder
and the card issuing bank.
N. Cashback. (a) Cashback transactions shall be limited to the maximum of $200
per Cardholder on any transaction date. If Merchant allows Cardholders to initiate
cashback transactions, Merchant must transmit to the Debit Network for each
cashback transaction initiated at Merchant’s location, the following information in
its transaction message: (i) the amount of cashback given to the Cardholder
pursuant to the POS transaction; and (ii) Whether the POS transactions involved
the issuance of scrip to the cardholder. For purposes of cashback reporting
required under this paragraph, the full amount debited from Cardholder's account
during a Debit transaction initiated at terminal that issues scrip shall be reported as
the cashback amount, regardless of the amount used by the Cardholder to
purchase goods or services at the Merchant’s location. (b) If Merchant receives, in
response to a request for authorization for a cashback transaction involving the
purchase of goods and services, a denial code indicating that a cashback transaction
has been denied solely because the cashback portion of the Debit transaction
would cause the Cardholder to exceed a limit on cash withdrawals imposed on
the Cardholder by the Card issuing bank, Merchant shall inform Cardholder that
the transaction was denied because it would cause the Cardholder to exceed such
limit on cash withdrawals, but that a new Debit transaction in the amount of the
purchase alone may be approved.
O. Indemnity. Merchant shall be responsible for and shall indemnify and hold
Debit Network and Service Provider harmless against any and all liability or expense
relating to the payment of federal, state, and local sales, use, and other taxes
(other than such taxes based in whole or in part on income attributed to fees for
services), when due or deemed to be due, as well as all other expenses, fees and
charges imposed by a government, arising out of or incidental to its participation
in the system.
P. Insurance. Merchant is responsible for obtaining all insurance that may be
required by reasonable prudent business practices.
Q. Inspection. Merchant agrees that, upon request, it will promptly provide to
Debit Network or Service Provider any information reasonably requested by it to
aid in determining whether Merchant is in compliance with the Operating Rules
and the Graphics Standards Manual, the Security Manual and this agreement
between Merchant and Service Provider, or Debit Network.
R. Reimbursements. Merchant shall promptly reimburse within three (3) business
days of the event giving rise to any loss for the amount of all losses resulting from
any of the following actions, including without limitation reasonable attorney’s fees
and court costs, in the event that Merchant or any of its agents or employees or
any of the operators of its POS Terminals at Merchant locations or the employees
or agents of any such operators: (i) knowingly permits anyone other than the
Cardholder, or a person expressly authorized by the cardholder, to use the Card
and to initiate any POS transaction; (ii) permits the amount debited in a POS
transaction by use of a Card to exceed the actual amount of goods or services and
cashback, if any, provided to such Cardholder at the time in respect to such
transaction; (iii) circumvents the limit imposed by a Merchant on POS transactions
by dual submissions for the same POS transaction; (iv) otherwise permits the use
of any Card in any manner in violation of the Operating rules or the Security
Manual; (v) completes any declined POS transactions; or (vi) otherwise
participates in any fraud resulting in loss.
S. Records. Merchant shall retain records for each POS transaction for at least
seven (7) years or for such longer period as is required by applicable federal or
state law or regulation and/or in accordance with Network Operating Rules and in
a accordance with Article III, Section 3.04 of the Agreement.
T. Investigation. Merchant is responsible for investigation of any complaints
regarding POS transactions in accordance with the requirements of the Operating
Rules.
U. Security. Debit Networks, Service Provider or its designated agent, on behalf
of itself or others, shall have the right to inspect Merchant security systems and
procedures from time to time after reasonable notice to Merchant.
2.7 PROHIBITED AND HIGH RISK TRANSACTIONS
IMPORTANT: FAILURE TO COMPLY IN FULL W ITH THIS SECTION OF THE
AGREEMENT MAY RESULT IN THE TERMINATION OF THIS AGREEMENT,
AND MERCHANT ACCOUNT PREVILEDGES AND MERCHANT MAY BE
ADDED TO THE CONSOLIDATED TERMINATED MERCHANT FILE (MATCH).
A. Fraud Transactions. Merchant will not, under any circumstances, present for
processing of Sale or Credit, directly or indirectly, any Transaction or any
Transaction Merchant knows or should know to be fraudulent or not authorized by
the Cardholder. Merchant must not request or use a Card Account Number for any
purpose other than as payment for goods and services.
B. Factoring. Merchant will not, under any circumstances, present for processing
of Sale or Credit, directly or indirectly, any Transaction not originated as a result of
a bona-fide Card transaction directly between Merchant and Cardholder. Merchant
will not present any Sales Drafts on behalf of another company, person, source or
entity.
C. Lawful Purposes. Merchant will not, under any circumstance, engage in any
Transaction, or use Card Acceptance and Transaction capabilities for selling
goods and/or providing services prohibited by local, hyper-local, state, federal,
international and other applicable laws included, but not limited to, the USA
PATRIOT Act, Bank Secrecy Act, Consumer Protection Laws and the U.S. Tax
Code. Merchant will not submit any Transactions prohibited by the Rules.
Perpetrators of fraud or fraudulent Transactions will be referred to state and/or
federal law enforcement agencies.
D. Cash Payments. Merchant will not, under any circumstances accept cash,
checks or other negotiable items from any Cardholder and forward a Credit
Transaction, as a purported payment or deposit to an account maintained by the
Cardholder.
E. Cash Advances. Merchant will not submit, deposit or process any transaction
for the purpose of obtaining or providing a cash advance. Merchant will not submit
any transaction that involves a Card owned or controlled by Merchant for the
purpose of obtaining a cash advance or deposit of funds into Merchant’s own
Designated Account. Merchant agrees that any such deposit or transaction shall
be grounds for immediate termination.
F. Refinancing Existing Debt. Merchant will not accept a Card to collect or
refinance an existing debt that: (i) has been deemed uncollectible by the Merchant
providing the associated goods or services; (ii) represents any other pre-existing
indebtedness by Cardholder, including collection of delinquent accounts on behalf
of other parties; (iii) represents the collection of a dishonored check. Further,
Merchant must not accept Cardholder payments for previous Card charges.
G. Merchant Category. Merchant may not accept Card payments for products
and/or services delivered to Cardholder that are not directly applicable to the
Merchant Category Code (MCC) entered on the Merchant Application, for which
Merchant was approved. Should Merchant’s MCC change after execution of this
Agreement, Merchant shall not submit, deposit or process any Transactions until
receiving Service Provider’s written approval of MCC change. Merchant
understands that accepting payments for goods and/or services not directly
relating to the approved MCC will result in termination of this Agreement.
H. Card Association Rules. Merchant shall comply with the Card Association
Rules, as amended from time to time. Merchant is required to review the latest
versions of Card Association Rules, as applicable to Merchant’s obligations under
this Agreement, available online at each Card Association’s respective web site.
I. Cooperation. Merchant will fully cooperate with Service Provider and each
Card Association in the event that Service Provider or any Card Association
determines that there is a substantial risk of fraud arising from Merchant’s access
to Card processing networks. Merchant will take whatever action(s) Service
Provider or Card Associations reasonably deem necessary in order to protect
Service Provider, Card Associations, its members and Cardholders. Neither the
Service Provider nor the Card Associations and any of their respective personnel
will have any liability to Merchant for any action taken in good faith.
J. Prohibited Transactions. Merchant will not submit any telemarketing (inbound
or outbound) sales Transactions or any other Transactions that Service Provider
or Card Associations deem to be High Risk unless Merchant obtains Service
Provider’s prior written consent. Such consent will be subject to Service Provider’s
final approval and may be revoked by Service Provider without prior notice.
Merchant may be subject to Card Association registration and reporting
requirements. If Merchant processes any such Transactions without Service
Provider’s prior approval, Merchant may be terminated immediately and Service
Provider may suspend funds and/or require Merchant to establish a Reserve
Account.
ARTICLE III – MUTUAL OBLIGATIONS
3.1 DESIGNATED ACCOUNT
A. Establishment and Authority. Merchant will establish and maintain a demand
deposit account at an ACH receiving depository institution approved by Service
Provider (“Designated Account”). Merchant will maintain sufficient funds in the
Designated Account to satisfy all obligations to Service Provider, including fees,
contemplated by this Agreement. Merchant irrevocably authorizes Service Provider
to debit the Designated Account for chargebacks, fees and any other penalties or
amounts owed under this Agreement. This authority will remain in effect for at
least two (2) years after termination of this Agreement whether or not Merchant
has notified Processor and Service Provider of a change to the Designated
Account. Merchant must obtain prior written consent from Service Provider or
processor to change the Designated Account. If Merchant does not obtain that
consent, processor and Service Provider may immediately terminate the
Agreement and may take other action necessary, as determined by them within
their sole discretion.
B. Deposit. Service Provider will initiate a deposit in an amount represented on
Sales Drafts to the Designated Account subject to Article IV of this Agreement
upon receipt of funds from Visa, MasterCard, Discover or a Debit Network.
Typically, the deposit will be initiated three (3) business days following Service
Provider’s receipt of the Sales Draft, except for mail order/telephone order and
electronic commerce transactions, which may be initiated five (5) business days
following receipt of the Sales Draft. “Business Day” means Monday through Friday,
excluding holidays observed by the Federal Reserve Bank of New York. Bank will
be the only entity to deposit Sales Drafts to the Account subject to Article II, Section
2.04 of this Agreement. Merchant authorizes Service Provider to initiate reversal
or adjustment entries and initiate or suspend such entries as may be necessary to
grant Merchant conditional credit for any entry. Service Provider, in its sole
discretion, may grant Merchant provisional credit for transaction amounts in the
process of collection, subject to receipt of final payment by Service Provider and
subject to all chargebacks.
C. Asserted Errors. Merchant must promptly examine all statements relating to
the Designated Account, and immediately notify Service Provider in writing of any
asserted errors. Merchant’s written notice must include: (i) Merchant name and
account number; (ii) the dollar amount of the asserted error, (iii) a description
of the asserted error; and (iv) an explanation of why Merchant believes an error
exists and the cause of it, if known. That written notice must be received by Service
Provider within 30 calendar days after Merchant receives the periodic statement
containing the asserted error. Merchant’s failure to notify Service Provider of any
error within thirty (30) days constitutes a waiver of any claim relating to that error.
Merchant may not make any claim against Service Provider relating to any asserted
error for 60 calendar days immediately following Service Provider’s receipt of
Merchant’s written notice. During that 60 day period, Service Provider will be
entitled to investigate the asserted error.
D. Indemnity. Merchant will indemnify and hold Processor and Service Provider
harmless for any action they take against the Designated Account, the Reserve
Account, or any other account pursuant to this Agreement.
E. ACH Authorization. Merchant authorizes Service Provider to initiate debit/credit
entries to the Designated Account, the Reserve Account, or any other account
maintained by Merchant at any institution, all in accordance with this Agreement.
This authorization will remain in effect beyond termination of this Agreement. In
the event Merchant changes the Designated Account, this authorization will apply
to the new account.
F. Fees. Unless otherwise approved in writing by Service Provider, Merchant agrees
to pay $25 for each debit or credit rejected or returned from the Designated Account
and $20 for each DDA change submitted to Service Provider during the term of this
Agreement.
3.2 MERCHANT OBLIGATIONS
A. Notification of Business Changes. Merchant shall provide Service
Provider with immediate notice if Merchant intents to: (i) transfer, sell or liquidate
any substantial part of its total assets and/or equity; (ii) change the basic nature
of its business affecting Merchant’s MCC; (iii) change ownership or transfer
control of its business; (iv) enter into any joint venture, partnership or similar
business arrangement whereby any person or entity not a party to this Agreement
assumes any interest in Merchant’s business; or (v) modify Merchant’s monthly
processing volume and/or average ticket size as approved by Service Provider,
collectively known as Business Changes. Notice to Service Provider should be
made to in accordance with Article VII, Section 7.02. Failure or neglect to provide
notice of Business Changes may be grounds for termination of this Agreement. In
event of Business Changes, Service Provider may at its sole discretion act to
terminate this Agreement or, if deemed acceptable by Service Provider, Service
Provider may opt to initiate a new Agreement with Merchant. In the event Service
Provider suffers a monetary loss caused by neglect to comply with this Section,
Service Provider has the right to recover such losses by means of exercising its
Security Interests per Article IV, Section 4.01 of the Agreement.
B. Financial Condition. (a) Merchant will notify Service Provider, within one
business day, in event of bankruptcy, receivership, insolvency, or similar condition
or action initiated by or against Merchant or any of its principals; hereafter
collectively referred to as a “Financial Condition Change.” (b) Merchant will include
Service Provider as a creditor in Merchant’s bankruptcy proceedings if Merchant
has funds due to Service Provider for any reason including fees, chargebacks
or ACH rejects. (c) In event of Financial Condition Change, or if Merchant is
aware of future or imminent Financial Condition Change, Merchant will cease all
Card acceptance at once and will no longer accept and submit Card Transactions
until Service Provider has given Merchant permission to do so after receiving notice
of Financial Condition Change. (d) In the event of Financial Condition Change,
Merchant will not sell, transfer, or disclose any Cardholder information, inclusive
of Card account numbers or personal information to agent, vendors or any other
parties.
C. Separate Notification. Separate notification regarding changes to account
information, including those to Account, must be made to outside services used by
Merchant including but not limited to American Express and any leasing company.
D. Equipment. In the event where Merchant enters into a Lease agreement to
obtain POS equipment from Service Provider: (a) Merchant is required to verify
the terms of the Lease agreement by way of a telephone conference call between
Merchant, Service Provider, and the leasing company. For each Lease agreement
Merchant will have a scheduled appointment date and time to complete this
verification. If Merchant does not verify Lease on the scheduled appointment
date and time, a Service Provider representative will make two (2) additional
attempts to contact Merchant and complete the verification. If the Lease cannot
be successfully verified after these additional attempts, an ACH debit will be
made to the Merchant’s Account to recover cost of equipment, shipping and
handling. Merchant may contact Service Provider to reschedule the appointment
prior to the initial appointment date and time. The rescheduled appointment
cannot be set more than five (5) business days from the original appointment date.
(c) Merchant cannot return equipment after 30 days from receipt. Merchant
agrees that any and all equipment returns are assessed a twenty percent (20%)
restocking fee.
E. Request for Copy. Within three (3) calendar days of receipt of any written or
verbal request by Service Provider, Merchant shall provide either the actual paper
Sales Draft or a legible copy thereof, in size comparable to the actual Sales Draft,
and any other documentary evidence available to Merchant and reasonably
requested by Service Provider to meet Service Provider’s obligations under law
(including its obligations under the Fair Credit Billing Act, 15 U.S.C. § 1601 et seq.)
or otherwise to respond to questions concerning Cardholder accounts. Unless
otherwise approved by Service Provider, Merchant will be assessed a $15 fee for
each request for copy.
3.3 CREDIT INQUIRIES FINANCIAL EXAMINATION AND INSPECTIONS.
A. Credit Inquiries. Merchant authorizes Service Provider to make credit inquiries
considered necessary in order to review the acceptance and continuation of this
Agreement. This authority is granted to Service Provider at any time during
which Merchant owes any obligation to Service Provider and may survive the term
of the Agreement. Such inquiries shall include, but are not limited to, a credit check
of the business including its proprietor, principal owners or officers. If requested
to do so by Service Provider, Merchant shall provide written consent of any
individual for which an inquiry has been or is to be made if such individual did not
execute this Agreement.
B. OFAC. Merchant, its principal owner(s) and guarantor(s) acknowledge that
Bank is required by federal law (Section 326, USA PATRIOT Act of 2001) to
inquire with the Office of Foreign Asset Control (OFAC) of the U.S. Treasury
Department if Merchant, its principal owner(s), proprietor(s), officer(s) or
Guarantor(s) are present on any lists maintained by OFAC prior to accepting
Merchant.
C. Inspections. Merchant agrees to permit Service Provider to occasionally inspect
locations to confirm that Merchant has or is adhering to the terms of this Agreement
and is maintaining the proper facilities, equipment, inventory, records and
license or permit(s) (where necessary) to conduct its business. However,
nothing in this paragraph shall be interpreted as a waiver of Merchant’s obligation
to comply in all respects with the terms of this Agreement.
D. Audits and Reviews. Merchant authorizes Service Provider to audit Merchant’s
records, systems, processes or procedures to confirm compliance with this
Agreement, as amended from time to time. Merchants processing dollar volumes
in excess of $100,000 per month will cooperate with Service Provider in performing
annual financial reviews by presenting up-to-date financial statements, tax returns
and bank statements in order to assure Service Provider that Merchant maintains
a favorable capital position, liquidity, stability, business practices and general
financial condition to fulfill the responsibilities tied to high volume Card processing.
3.4 SAFEGUARDING PAYMENT CARD INFORMATION
A. Release of Payment Card Information. Merchant will not, under any
circumstance, disclose, copy, distribute, release, make public or transmit payment
card information including account number, expiration date, CVV2/CVC2 or other
Card security codes, or any data element relating to the payment card to any third
party, person, company, recipient or entity other than Service Provider or its
authorized processing agent.
B. Storing Card Data. If Merchant is inclined to retain paper or electronic Sales
Drafts or Credit Vouchers, Merchant may only do so if (i) Sales Drafts or Credit
Vouchers contain only Cardholder account information permitted to be retained by
Merchant as mandated by the Rules; (ii) any type of electronic storage is
maintained in strict accordance with the PCI-DSS on a PA-DSS certified system;
(iii) Sales Drafts or Credit Vouchers which no longer bear an importance are
properly destroyed in a manner which renders the data unreadable and
unrecoverable.
C. Prohibited Data Storage. Neither Merchant nor any type of software system
used by Merchant, shall store, save or retain, in whole or in part, either
electronically, on paper or any other type of media, payment card magnetic stripe
information, track data, or Card security codes (e.g. CVV, CVC, CID, CVV2 or
CVC2) appearing or stored on the payment Card.
D. Payment Applications. Merchant may be using special services, hardware or
software provided by a third party (“Third Party Payment System”) to assist
Merchant in processing transactions, including authorizations, batch settlement or
accounting functions. In the event Merchant uses a Third Party Payment System
including, but not limited to, a POS terminal, POS system, POS software, payment
software, payment gateway, virtual terminal, cardholder activated terminal or
automated fuel dispenser, Merchant is responsible for assuring third party system
is PA-DSS certified and complies with the PABP (Payment Application Best
Practices) as set forth by the Payment Card Industry Security Standards Council
(PCI-SSC) and the Card Associations. Merchant must ensure that any software or
system updates of Third Party Payment System(s) satisfies all security standards
required under the Rules (including PABP, PA-DSS and PCI-DSS). All electronic
commerce Merchants must provide Cardholders with a secure and encrypted
transaction method, utilizing a valid Secure Sockets Layer (SSL) certificate or 3D
Secure. Service Provider has no responsibility for any transaction until that point in
time Service Provider receives data about the transaction. Merchant must notify
Service Provider of its use of any Third Party Payment System that will have
access to and/or stores Cardholder or Payment Card information.
E. Electronic Terminals. If Merchant provides its own Point-of-Sale electronic
terminal or similar device (“POS Terminal”), such POS Terminals must comply
with, and meet all requirements set forth by, Service Provider, any applicable
processor, and directives set forth by the PCI-SSC as amended from time to
time, in order to submit Transactions. Information regarding a sales or credit
Transaction transmitted with a POS Terminal will be transmitted by Merchant
to Service Provider or applicable Processing Host in the format Service Provider
from time to time specifies or is required under the Rules. If Service Provider
requests a copy of a Sales Draft, credit voucher or other Transaction evidence,
Merchant will provide it within three (3) business days following the request. The
means of transmission indicated in the Merchant Application shall be the exclusive
means utilized by Merchant until Merchant has provided Service Provider with at
least thirty (30) days prior written notice of Merchant’s intention to change the
means of such delivery or otherwise to alter in any material respect Merchant’s
medium of transmission of data to Service Provider or Processing Host.
F. PCI-DSS Compliance. Merchant shall be in full compliance with rules,
regulations, guidelines and procedures adopted by any Card Association or
Payment Network relating to the privacy and security of Cardholder and Card
transaction data, including without limitation the most up-to-date version of the
Payment Card Industry Data Security Standard (PCI-DSS), as amended from time
to time by the Payment Card Industry Security Standards Council. Detailed
information pertaining to aforementioned requirements may be found at
https://www.pcisecuritystandards.org. Additional information regarding security
requirements may be found on the Card Association’s respective web sites.
G. Merchant Responsibility. (a) MERCHANT SHALL BE LIABLE FOR ALL
FINES, CHARGES AND PENALTIES THAT MAY BE ASSESSED BY ANY CARD
ASSOCIATION OR PAYMENT NETW ORK AS A RESULT OF TRANSACTIONS
MADE BY MERCHANT OR MERCHANT’S NONCOMPLIANCE W ITH THE
PRECEDING REQUIREMENTS. (b) Merchant acknowledges that it may be
prohibited from participating in payment network programs if it is determined that
Merchant is non-compliant. (c) Merchant acknowledges that Service Provider
may cause Merchant to subject to an audit to verify Merchant’s compliance with
the foregoing security requirements. (d) Merchant must notify Service Provider
within twenty-four (24) hours after becoming aware of: (i) any suspected or actual
data security breach; or (ii) any noncompliance by Merchant with the security
requirements set forth herein. (e) Merchant shall, at its own expense: (i) perform
or cause to be performed an independent investigation of any data security
breach of Card or Transaction data by an authorized assessor acceptable to
Service Provider; (ii) take all such remedial actions recommended by such
investigation, Service Provider or Card Association; and (iii) cooperate with Service
Provider in the investigation and resolution of any security breach.
H. Truncation. Merchant must comply and adhere to the security provisions set
forth in the Fair and Accurate Credit Transactions Act of 2003 (FACTA) which
mandate that card receipts given to the Cardholder may not contain: (i) more than
the last five digits of the credit card account number; and (ii) that the Card receipt
may not contain the expiration date.
I. Privacy Policy. If Merchant sells goods or services on the Internet, Merchant’s
web site must contain Merchant’s consumer privacy policy and a description of
Merchant’s method of safeguarding consumer transaction data.
J. Passwords. In the event where Merchant receives a password from Service
Provider to access a transaction system or gateway, Merchant shall: (i) keep
password confidential; (ii) not allow any other entity or individual to use password
or gain access to Service Provider’s systems; (iii) be liable for all action taken
by any user of the password; and (iv) promptly notify Service Provider if Merchant
believes the confidentiality of Service Provider’s system or Merchant’s information
has been compromised by use of such password.
3.5 FEES AND OTHER AMOUNTS OWED SERVICE PROVIDER
A. Fees and Taxes. Merchant will pay Service Provider fees for services, forms and
equipment in accordance with the fees and rates set forth on the Application. Such
fees will be calculated and debited from the Designated Account once each
business day or month for the previous business day or month’s activity, or will be
deducted from funds due Merchant attributable to Sales Drafts presented to Service
Provider. Service Provider reserves the right to adjust the fees set forth on the
Application, including adding fees for additional services utilized by Merchant,
provided that Service Provider must approve, and notify Merchant in advance of,
any fee to or obligation of Merchant arising from or related to performance of this
Agreement. Merchant is obligated to pay all taxes, and other charges imposed by
any governmental authority on the services provided under this Agreement. Service
Provider may not assign or otherwise transfer an obligation to pay or reimburse
Merchant arising from, or related to, performance of this Agreement.
B. Other Amounts Owed. Merchant will immediately pay processor and Service
Provider any amount incurred by Service Provider attributable to this Agreement
including but not limited to chargebacks, fines imposed by Card Associations non-
sufficient funds fees, and ACH debits that overdraw the Designated Account,
Reserve Account or are otherwise dishonored. Merchant authorizes Service
Provider to initiate a debit via ACH the Designated Account, Reserve Account, or
any other account Merchant has at Bank or at any other affiliate or subsidiary of
Bank or other financial institution for any amount Merchant owes Service Provider
under this Agreement or under any other contract, note, guaranty, instrument
or dealing of any kind now existing or later entered into between Merchant and
Service Provider, whether Merchant obligation is direct, indirect, primary,
secondary, fixed, contingent, joint or several. In the event Service Provider demand
funds due or such ACH does not fully reimburse Processor and Service Provider
for the amount owed, Merchant will immediately pay Service Provider such
amount. Merchant acknowledges and agrees that Service Provider will impose an
18% per annum interest rate charged to Merchant on the balance of any overdue
funds due to Service Provider, or the greatest amount allowed by law, whichever
is greater.
C. Pass-Through Fees. Each card organization (Visa, MasterCard and Discover
Network) assess fees to merchants in connection with transactions that are outside
the control of Service Provider, such as, dues & assessments, fixed acquirer
network fees, international/cross-border transaction fees, network access and data
usage charges. Because these fees are frequently modified by the card
organizations, a detailed list of these fees has been posted online at
www.tidalpay.com where these fees are kept up to date. Pass-through fees are
charged at cost to Merchant.
ARTICLE IV – SECURITY INTERESTS, RESERVE ACCOUNT, RECOUPMENT
AND SET-OFF
4.1 SECURITY INTERESTS
A. Security Agreement. This Agreement is a security agreement under the
Uniform Commercial Code. Merchant grants to Service Provider a security interest
in and lien upon: (i) all funds at any time in the Designated Account, regardless of
the source of such funds; (ii) all funds at any time in the Reserve Account,
regardless of the source of such funds; (iii) present and future Sales Drafts; (iv)
Merchant’s electronic terminal, printer, imprinter and imprinter plate; (v) all
accounts, regardless of source, wherever found, standing in the name of
Merchant and/or Guarantor(s), including any affiliated companies of Merchant
and/or Guarantor(s), whether established or designated and maintained pursuant
to this Agreement or not; and (vi) any and all amounts which may be due to
Merchant under this Agreement including, without limitation, all rights to receive
any payments or credits under this Agreement (collectively. the “Secured Assets”).
Merchant agrees to provide other collateral or security to Service Provider to secure
your obligations under this Agreement upon Service Provider’s request. These
security interests and liens will secure all Merchant obligations under this
Agreement and any other agreements now existing or later entered into between
Merchant and Service Provider. This security interest may be exercised by
Service Provider without notice or demand of any kind by making an immediate
withdrawal or freezing the Secured Assets.
B. Perfection. Upon request of Service Provider, Merchant will execute one or more
financing statements or other documents to evidence this security interest.
Merchant will represent and warrant that no other person or entity has a security
interest in the Secured Assets. Further, with respect to such security interests
and liens, Service Provider will have all rights afforded under the Uniform
Commercial Code, any other applicable law and in equity. Merchant will obtain
from Service Provider written consent prior to granting a security interest of any
kind in the Secured Assets to a third party. Merchant agrees that this is a contract
of recoupment and Service Provider are not required to file a motion for relief from
a bankruptcy action automatic stay for Service Provider to realize on any of its
collateral (including any Reserve Account). Nevertheless Merchant agrees not to
contest or object to any motion for relief from the automatic stay filed by Service
Provider. Merchant authorizes Service Provider to appoint Service Provider as
Merchant’s attorney-in-fact to sign Merchant’s name to any financing statement
used for the perfection of any security interest or lien granted hereunder.
C. Guaranty. As a primary inducement to Service Provider to enter into this
Agreement with Merchant, the undersigned Guarantor(s), whether by signing the
Merchant Application or by acknowledging consent by electronic means, joint and
several, unconditionally and irrevocably, guarantees the continuing full and
faithful performance and payment by Merchant of each of its duties and
obligations to Service Provider pursuant to this agreement, as it now exists or is
amended from time to time, with or without notice. Guarantor(s) understands
further that Service Provider may proceed directly against Guarantor(s) without first
exhausting its remedies against any other individual or entity responsible therefore
to it or any security held by Service Provider or Merchant. This guarantee will
not be discharged or affected by the death of the undersigned, will bind all
heirs, administrators, representatives and assigns of Merchant and may be
enforced by or for the benefit of any successor of Service Provider.
Guarantor(s) understand that the inducement to Service Provider to enter into this
Agreement is consideration for this Guaranty, and that this Guaranty remains in
full force and effect even if Guarantor(s) receives no additional benefit from the
Guaranty.
4.2 RESERVE ACCOUNT
A. Establishment. Merchant will establish and maintain a non-interest bearing
deposit account (“Reserve Account”) at Bank initially or at any time in the future as
requested by Service Provider, with sums sufficient to satisfy Merchant’s current
and future obligations as determined by Service Provider. Merchant authorizes
Service Provider to initiate a debit to the Designated Account or any other
account Merchant has at Bank or any other financial institution to establish or
maintain funds in the Reserve Account. Bank may deposit into the Reserve
Account funds it would otherwise be obligated to pay Merchant, for the purpose
of establishing, maintaining or increasing the Reserve Account in accordance
with this Section, if Service Provider determines such action is reasonably
necessary to protect Service Provider’s interests.
B. Use of Reserve Account. Bank may, without notice to Merchant, apply
deposits in the Reserve Account against any outstanding amounts Merchant owes
under this Agreement or any other agreement between Merchant and Service
Provider. Further, Service Provider may exercise its right under this Agreement
against the Reserve Account to collect any amounts due to Service Provider
including, without limitation, rights of set-off and recoupment. Service Provider’s
right to outstanding amounts owed it by Merchant pursuant to this Agreement shall
in no way be limited to the balance or existence of the Reserve Account. Rights
granted to Service Provider with respect to the Reserve Account, as well as
the security interest under this Agreement, shall survive the termination of this
Agreement
C. Funds. Funds in the Reserve Account will remain in the Reserve Account until
270 calendar days following the later of termination of this Agreement, or
Merchant’s last transmission of Sales Drafts or Credit Voucher to Service Provider,
or Chargeback submitted by Cardholder, provided, however, that Merchant will
remain liable to Service Provider, for all liabilities occurring beyond such 270-day
period. After the expiration of such 270-day period Merchant must provide
Service Provider with written notification indicating Merchant’s desire of a release
of any funds remaining in the Reserve Account in order to receive such funds.
Merchant agrees that Merchant will not use these funds in the Reserve Account
for any purpose, including but not limited to paying chargebacks, fees, fines or
other amounts Merchant owe Service Provider under this Agreement. Bank will
have sole control of the funds in Reserve Account..
D. Assurance. In the event of a Bankruptcy proceeding, Service Provider does not
consent to assumption of this Agreement. Nevertheless, in the event of a
bankruptcy proceeding and the determination by the court that this Agreement is
assumable under the Bankruptcy Code (11 U.S.C. § 365), as amended from
time to time, Merchant must establish or maintain a Reserve Account in an amount
satisfactory to Service Provider. Assumption will be made under terms and
conditions that are acceptable to Service Provider and comply with the applicable
federal or state laws governing such assumption.
E. Recoupment and Set Off. Service Provider has the right of recoupment
and set-off. Specifically, Service Provider may offset or recoup any
outstanding/uncollected amounts owed by Merchant from: (i) any amounts Service
Provider would otherwise be obligated to deposit into the Designated Account;
(ii) any other amounts Service Provider may owe Merchant under this Agreement
or any other agreement; and (iii) any funds in the Designated Account or Reserve
Account. Merchant acknowledges that in the event of a bankruptcy proceeding,
in order for Merchant to provide adequate protection under the Bankruptcy Code
to Service Provider, Merchant must create or maintain the Reserve Account as
required by Service Provider, and Service Provider must have the right to offset
against the Reserve Account for any and all obligations which Merchant may
owe to Service Provider, without regard to whether the obligations relate to Sales
Drafts initiated or created before or after the filing of the bankruptcy petition.
F. Recoupment of Chargebacks. In the event of Merchant’s default in payment of
chargebacks, Merchant and Guarantor(s) agree: (i) that all personal Bank
accounts standing in their names shall be subject to this Agreement and ACH
debits; (ii) all ACH debits, whether made against Merchant’s Account or a
Guarantor’s personal account shall bear a commercial account code designation
(CCD) for purposes of electronic collection via the ACH system; and (iii) Merchant
and/or Guarantor(s) irrevocably consent to Service Provider utilizing any means
available to locate such deposit accounts until such time when all amounts due
have been satisfied. Service Provider may enforce this security interest as
applicable by: (a) making an immediate debit/charge via the ACH system (code
CCD) to any deposit account standing in the name or names of Merchant and/or
Guarantor(s), without notice or demand of any kind; and/or interrupting the
electronic transmission of funds to any account through the ACH system; (b)
freezing the Designated Account and Reserve Account, without notice or demand
of any kind; (c) taking possession of any or all of Merchant’s Sales Drafts; (d)
taking possession of any and/or all of Merchant’s electronic terminals, printers,
imprinters, and imprinter plates; (e) by placing a receiver within Merchant’s place
of business without notice or bond to intercept and collect all income derived from
Merchant’s operations until such time as any indebtedness owed to Service
Provider arising under this Agreement has been satisfied in full; (f) by obtaining
either a writ of attachment or a writ of possession without bond pertaining to
Merchant and/or Guarantor(s)’s personal property upon a showing of a
presumption that Merchant has committed an act of fraud or is about to
misappropriate funds to which it is not entitled. Merchant shall provide any statement
or notice that Service Provider determines to be necessary in order to preserve and
protect this security interest. The granting of this security interest by Merchant
and/or Guarantor(s) in no way limits Merchant’s liabilities to Service Provider
under this Agreement.
G. Account Monitoring. (a) Merchant acknowledges that Service Provider will
monitor Merchant’s daily deposit activity. The deposit activity must remain consistent
to the monthly volume and average ticket amount implicitly approved or adjusted
by Service Provider (“Risk Parameters”). If Merchant should exceed Risk
Parameters, Merchant agrees to provide documentation as set forth by Service
Provider if so required. Merchant agrees that Service Provider may not deposit
total Sales Draft dollar volume in excess of the implicitly approved monthly
volume, and that Merchant may be subject to a 5% fee on all funds processed
over the approved monthly volume limit. Merchant agrees that Service
Provider may, at its sole discretion, suspend Merchant’s transaction deposits
for any reasonable period of time required to investigate suspicious or
unusual transaction activity. Service Provider shall make a good faith effort
to notify Merchant immediately. Merchant agrees to pay
$25.00 for each release of funds suspended by Service Provider. Service
Provider shall have no liability for any losses, direct or indirect, which Merchant
may attribute to any suspension of funds disbursement. (b) In the event of
suspension of transaction deposits by Service Provider, Merchant agrees to
a Security Processing Fee not to exceed 110% of the transaction activity
may be assessed. (c) If a batch is suspended by Service Provider, Merchant
acknowledges that the consumer’s product or service must be delivered just as if
the Merchant has been paid. Further, if a batch or a transaction is suspended,
Merchant acknowledges that fees, including security fees, will be assessed by
Service Provider. (d) At sole discretion of Service Provider, if Merchant’s type of
business is deemed a compliance risk to Service Provider, Service Provider may
enroll Merchant in third-party risk monitoring service (“Monitoring Service”) at the
sole expense of Merchant. Merchant will either be notified in advance of
underwriting approval of enrollment in Monitoring Service and related expenses, or
notified no less than 30 days in advance if Merchant has an open merchant
account with Service Provider. Refusal of Merchant‘s enrollment in Monitoring
Service when mandated by Service Provider, may be cause for termination of this
Agreement.
ARTICLE V – TERM AND TERMINATION EVENTS
5.1 TERM AND TERMINATION
A. Term. The Agreement will become effective on the date Service Provider
executes this Agreement (“Effective Date”), provided, however that if Merchant
submits a transaction prior to the Effective Date, Merchant will be bound by all
terms of this Agreement. The Agreement will remain in effect for a period of
two (2) years (“Initial Term”) and will renew for successive one (1) year terms
(“Renewal Term”) unless terminated as set forth below.
B. Termination. The Agreement may be terminated by Service Provider or
Merchant to be effective at the end of the Initial Term or any Renewal Term by giving
written notice of an intention not to renew at least 90 calendar days before the end
of the current term. Further, this Agreement may be terminated at any time with or
without notice and with or without cause by Service Provider. All rights and
obligations of the parties existing hereunder as of the effective time of termination
shall survive the termination of this Agreement.
C. Debit Termination. Processing under a particular Debit Network may be
suspended or terminated (without terminating this entire Agreement) if: (i) the
Debit Network determines to suspend or terminate processing; or (ii) automatically,
upon termination or expiration of Service Provider’s or Merchant’s access to
such Debit Network whether caused by termination or expiration of Service
Provider’s agreement with such Debit Network or otherwise. In addition, in the
event that Service Provider’s participation in such Debit Network is suspended for
any reason, processing through such Debit Network by Merchant will be suspended
for the period of time of such suspension and Service Provider will notify Merchant
of that event. Neither Service Provider nor any Debit Network will have any liability
to Merchant as a result of any such suspension or termination.
D. Terminated Merchant File. Merchant acknowledges that MATCH (formerly
known as the Combined Terminated Merchant Files or “CTMF”) is a file
maintained by MasterCard and accessed by Card Associations and Service
Providers containing the business names and the identification of principals of
Merchant, which have been terminated for one or more reasons specified in
the Rules. Merchant acknowledges that Service Provider is required to report
the business name of Merchant and the names and identification of its
principals to MATCH when Merchant is terminated for such reasons. Merchant
consents to such reporting to the Card Associations by Service Provider. Further,
Merchant waives and will hold harmless Service Provider from any claims, which
Merchant may raise as a result of such reporting.
E. Designated Account. All Merchant obligations regarding accepted Sales Drafts
will survive termination. Merchant must maintain in the Designated Account and
the Reserve Account enough funds to cover all chargebacks, deposit charges,
refunds and fees incurred by Merchant for a reasonable time, but in any event not
less than the time specified in this agreement. Merchant authorizes Service Provider
to charge those accounts, or any other account maintained under this Agreement,
for all such amounts. If the amount in the Designated Account or Reserve Account
is not adequate, Merchant will pay Service Provider the amount owed to Service
Provider upon demand, together with all costs and expenses incurred to collect
that amount, including reasonable attorneys’ fees.
F. Reason to Terminate: Service Provider may terminate this Agreement
immediately without prior notice if (i) Service Provider reasonably believes that
fraudulent Card Transactions or other activity prohibited by this Agreement is
occurring at any Merchant location;
(ii) Service Provider is required to take action to prevent loss to Bank or Card
Issuers, (iii) in the event of any significant circumstances that do or could create
harm or loss of goodwill to any Card Association; (iv) Merchant appears on any
Card Association's security or termination reporting, or (v) Merchant Acceptance
Criteria of Service Provider or laws in respect to Merchant’s business changes.
G. Bankruptcy. If any case or proceeding is commenced by or against Merchant
under any federal or state law dealing with insolvency, bankruptcy, receivership or
other debt relief, this Agreement shall simultaneously therewith automatically
terminate, and any amounts due to Service Provider shall accelerate and become
immediately due and payable, without the necessity of any notice, declaration
or other act whatsoever by Service Provider.
5.2 ACTION TAKEN UPON TERMINATION
A. Discontinuation of Services. In the event of termination for any reason,
Merchant expressly authorizes Service Provider to withhold and discontinue the
disbursement for all Cards and other payment transactions of Merchant in the
process of being collected and deposited. Upon termination for any reason,
Merchant will immediately cease requesting Authorizations and will cease
transmitting Sales Drafts to Service Provider. In the event Merchant obtains any
Authorization after termination, Merchant expressly acknowledges and agrees
that the fact that any Authorization was requested or obtained shall not operate to
reinstate this Agreement.
B. Maintaining Reserves. Collected funds will be placed in a Reserve Account
until Merchant pays any equipment and processing cancellation fees and any
outstanding charges, losses or amounts for which Merchant is liable under this
Agreement. Further, Service Provider reserves the right to require Merchant to
deposit additional amounts based upon Merchant’s processing history and/or
anticipated risk of loss to Service Provider into the Reserve Account. The
Reserve Account shall be maintained for a minimum of 270 days after the
termination date and for a reasonable time thereafter during which Cardholder
disputes may remain valid under the Rules. The provisions of this Agreement
relating to the debiting and crediting of the Account shall be applied to the
Reserve Account and shall survive termination of this Agreement until Service
Provider terminates the Reserve Account. Any
remaining balance after Chargeback rights have expired and all other expenses,
losses, and damages have been paid will be disbursed to Merchant upon request.
C. Account Closure Fee. Account Closure Fee: If the Merchant terminates this
AGREEMENT during the INITIAL TERM or after the start of any RENEWAL TERM,
MERCHANT agrees to pay Service Provider the ACCOUNT CLOSURE FEE as set
forth in the Schedule of Fees (please reference Account Closure Fee Initial Term and
Renewal Term on the Merchant Processing Agreement). MERCHANT agrees that
this fee is not a penalty, but rather, a reasonable estimation of the actual damages
Service Provider would suffer if Service Provider were to fail to receive the processing
business for the then current term. Merchant may terminate the agreement 60 days
prior to any RENEWAL TERM and all such termination requests will be not be subject
to an ACCOUNT CLOSURE FEE. Other remedies Service Provider may have
under this Agreement still apply.
D. Records. Following termination, Merchant shall upon request provide Service
Provider with all original and microfilm copies of Sales Drafts and Credit Vouchers
to be retained as of the date of termination.
E. Return to Service Provider. All promotional materials, advertising displays,
signage, emblems, Sales Draft forms, credit memoranda and other forms supplied
to Merchant and not purchased by Merchant or consumed in use will remain
the property of Service Provider and will be immediately returned to Service Provider
upon termination of this Agreement. Merchant is fully liable for all loss, cost,
and expense suffered or incurred by Service Provider arising out of the failure
to return or destroy such materials following termination.
ARTICLE VI – INDEMNIFICATION, LIMITATION OF LIABILITY, WARRANTIES
6.1 LIMITATION OF LIABILITY
A. Limitation of Liability. Any liability of Service Provider under this
Agreement whether to Merchant or to any other party, whatever the basis
of liability, shall not exceed in the aggregate the difference between: (i) the
amount of fees paid by Merchant to Service Provider during the month in
which the transaction out of which the liability arose occurred; and (ii)
assessments, Chargebacks, and any offsets authorized under this
Agreement against such fees which arose during such month. In the
event more than one month was involved, the aggregate amount of Service
Provider’s liability shall not exceed the lowest amount determined in accord
with the foregoing calculation for any one-month involved. In no event will
Service Provider, nor its officers, agents, directors, or employees be liable
for any indirect, special, or consequential damages including loss profits,
revenues and business opportunities. IN NO EVENT SHALL SERVICE
PROVIDER, OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONSTRACTORS 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 CONSEQUETIAL DAMAGES, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORSEEABLE OR WHETHER ANY
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MERCHANT ACKNOWLEDGES AND AGREES THAT PAYMENT OF ANY
EARLY TERMINATION FEE AS PROVIDED IN ARTICLE V, SECTION 5.02.C
ABOVE SHALL NOT BE PROHIBITED BY THIS SECTION.
B. Indemnification. Merchant shall hold harmless and indemnify the Card
Associations, Service Provider, affiliates, officers, directors, agents, representatives
and their employees harmless from: (i) any claim relating to a dispute between
Merchant and a Cardholder; (ii) against all claims by third parties arising out of this
Agreement; (iii) any Sales Draft paid for by Service Provider as may be made by
anyone by way of defense, dispute, off-set, counterclaim or affirmative action,
or for any damages of, or losses that Service Provider may incur as a result of
Merchant’s breach of this Agreement; and (iv) for all attorney fees and other costs
and expenses paid or incurred by Service Provider in the enforcement of the
Agreement, including but not limited to those resulting from any breach by Merchant
of this Agreement and those related to any bankruptcy proceeding.
C. Service Agreement. THIS AGREEMENT IS A SERVICE AGREEMENT.
SERVICE PROVIDER DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER INDIVIDUAL,
INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING
QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT OR OTHERWISE OF ANY SERVICES OR
ANY GOODS PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY SERVICES OR ANY GOODS PROVIDED BY A THIRD PARTY.
6.2 REPRESENTATIONS AND WARRANTIES
A. Performance. Service Provider will perform all services in accordance with
this Agreement. Service Provider makes no other warranty, express or implied,
regarding the services, and nothing contained in the Agreement will constitute such
warranty. Service Provider disclaims all implied warranties, including those of
merchantability and fitness for a particular purpose. Service Provider will not be
liable to the other parties for any failure or delay in its performance of this Agreement
if such failure or delay arises out of causes beyond the control and without the fault
or negligence of Service Provider. Service Provider is not liable for the acts or
omissions of any third party.
B. Terminals not Provided by Service Provider. Merchant will notify Service
Provider immediately if Merchant decides to use electronic authorization or data
capture Terminals or Software provided by any entity other than Service Provider or
its authorized designee (“Third- Party Terminals”) to process transactions. If
Merchant elects to use Third-Party Terminal(s), Merchant agrees: (i) the third party
providing the terminals or software will be Merchant’s agent in the delivery of the
Transactions to Service Provider via a data processing system or network; and (ii)
to assume full responsibility and liability for any failure of that third party to comply
with the Rules of this Agreement and the provisions of Article III, Section 3.04 of
the Agreement. Service Provider will not be responsible for any losses or additional
fees incurred by Merchant as a result of any error by a third party agent or a
malfunction in a third party’s software or terminal.
C. Warranties of Merchant. Merchant represents and warrants to Service
Provider at the time of execution and during the term of this Agreement the
following: (a) All information contained in the Merchant Application or any other
documents delivered to Service Provider in connection herewith and therewith is
true and complete and properly reflects Merchant’s business, financial condition,
and principal partners, owners or officers. (b) Merchant is a Corporation,
Limited Liability Company, Partnership, Sole Proprietorship or other legitimate
and legally organized organization validly existing and organized in the United
States. (c) Merchant and individual signing this agreement have the power and
authority to execute, deliver, and perform this Agreement, and this Agreement is
duly authorized, and will not violate any provisions of law, or conflict with any other
agreement to which Merchant is subject. (c) Individuals signing this agreement
(“Signers”) are duly authorized by the legal entity represented by Signers in the
Merchant Application to bind Merchant into this Agreement on behalf of Merchant.
(d) Merchant has all licenses, if any, required to conduct its business and is
qualified to do business in every jurisdiction where it is required to do so. (e)
Merchant is not engaged or affiliated with any businesses, products or methods
of selling other than those set forth on the Merchant Application, unless Merchant
obtains the prior written consent of Service Provider. (f) There is no action, suit or
proceeding at law or in equity now pending or to Merchant’s knowledge, threatened
by or against or affecting Merchant which would substantially impair its right to
carry on its business as now conducted or adversely affect its financial condition
or operations. (g) Merchant has performed or will perform all of its obligations to
the Cardholder in connection with the Card Transaction evidenced thereby. (h)
Merchant has complied with Service Provider procedures accepting Cards, and
the Card Transaction itself shall not involve any element of credit for any other
purposes other than as set forth in this Agreement and shall not be subject to any
defense, dispute, offset or counter claim which may be raised by any Cardholder
under the rules, the Consumer Credit Protection Act (15 USC § 1601) or other
relevant state or federal statutes or regulations. (i) Merchant warrants that any
Credit Voucher, which it issues represent a bona fide refund or adjustment on
a Card sale by Merchant with respect to which a Sales Draft has been accepted.
(j) Unless Merchant notifies Service Provider in writing, either on Merchant
Application or otherwise, no other processing relationship exists between
Merchant and any other Bankcard processing institution, for this business, or
any other business managed or owned by Merchant. (k) All transactions are bona
fide. No transaction involves the use of a Card for any purpose other than the
purchase of goods or services from Merchant.
(l) Merchant and Guarantor(s) acknowledge that all documents submitted in
conjunction with this Agreement are being submitted in order to induce a federally
insured financial institution to extend them credit and that submission of any false
information herein may subject them to criminal prosecution, fine and/or
imprisonment. (m) Merchant has supplied its true and correct taxpayer identification
number on the Merchant Application.
D. Authorization of Agreement. Merchant represents and warrants that the
individual signing the Merchant Application and Agreement, physically or by
acknowledging consent by electronic means, is duly authorized to bind Merchant to
all provisions of this Agreement and that such individual is duly authorized to
execute any contract document on behalf of Merchant. Merchant will execute a
separate Entity Certification if requested to do so by Service Provider.
E. Signature. Merchant, by its signature, upon its first transmission of
Transactions, or first payment of fees, acknowledges receipt, acceptance and
comprehension of this Agreement. If Merchant has not entered into this Agreement
by executing this Agreement via counter signature or electronic means, Merchant
agrees that Merchant’s first transmission of a transaction or first payment of fees to
Service Provider constitutes Merchant’s acceptance of this Agreement.
F. Attorneys’ Fees. Merchant will be liable for and will indemnify and reimburse
Service Provider for all attorneys’ fees and other costs and expenses paid or
incurred by Service Provider or their agents in the enforcement of this Agreement,
or in collecting any amounts due from Merchant or resulting from any breach by
Merchant of this Agreement.
ARTICLE VII – MISCELLANEOUS
7.1 USE OF TRADEMARKS AND CONFIDENTIALITY
A. Card Signage. Merchants will prominently display Card signage provided by
Service Provider in its place(s) of business and the type of signage displayed
will be in accordance with the card brands accepted by Merchant and if
Merchant participates in full or limited acceptance.
B. Use of Trademarks. (a) Use of trade name, trademark, service mark or
logotype (“Marks”) associated with any of the Card Associations and their brands
shall be limited to informing the public that Card(s) will be accepted at Merchant’s
place(s) of business. Merchant’s use of promotional materials and Marks is subject
to the direction of Service Provider and must fully comply with the Rules. (b)
Merchant may use promotional materials and Marks during the term of this
Agreement and shall immediately cease their use and return any inventory to
Service Provider upon termination thereof. (c) Merchant shall not use any
promotional materials or Marks associated with the Card Associations and Debit
Networks in any way that implies that the Card Associations or Debit Networks
endorse any goods or services other than their own.
C. Confidentiality. Merchant acknowledges that Service Provider through the
expenditure of a significant amount of time, effort, cost, and research, developed
and secured the right to use various computer programs, forms, logos, manuals,
and related materials, including without limitation the Operating Rules, which
constitute property of great value and trade secrets, and that disclosure to
others of such materials may result in loss and/or irreparable damage.
Merchant further acknowledges that the system in its entirety constitutes a
trade secret which is revealed to Merchant in confidence. Accordingly, Merchant
agrees to hold and use any and all such property or information regarding the
system in confidence, and not to disclose, reveal, copy, sell, transfer, sub-
license, assign, or distribute any part of it, in any form, to any individual, firm,
corporation, or other entity, nor permit
any of its employees, agents, or representatives to do so, except as permitted by
the Operating Rules, or otherwise expressly permitted in writing by the Service
Provider. The Merchant further agrees that upon termination of this Agreement for
any reason, it will immediately return all such property to Service Provider.
7.2 GENERAL PROVISIONS
A. Entire Agreement. This Agreement, including the Merchant Application, the
Schedule of Fees, the Rules, and Exhibits to this Agreement expresses the entire
understanding of the parties with respect to its subject matter and except as
provided herein, all prior or other agreements or representations, written or oral,
are superseded. Reference to "this Agreement" also includes all documents
incorporated into this Agreement by reference. If copies of this Agreement or any
amendments are to be physically signed, this Agreement may be executed and
delivered in several counterparts and transmitted by facsimile, a copy of which will
constitute an original and all of which taken together will constitute a single
agreement.
B. Governing Law and Venue. Service Provider, Merchant and Guarantor(s)
agree that all performances and transactions under this Agreement will be
deemed to have occurred in California and that Merchant's entry into and
performance of this Agreement will be deemed to be the transaction of business
within the State of California. This Agreement will be governed by California law,
without regard to its conflicts-of-law principles, and applicable federal law. Service
Provider, Merchant and Guarantor(s) hereby consent to the exclusive jurisdiction
and venue for any action relating to the subject matter of this Agreement in
Sonoma County, California and/or California Superior Court in Sonoma County,
California and/or United States District Court for the Northern District of California.
The parties consent to the jurisdiction of such courts and agree that process may
be served in the manner allowed by the laws of the State of California or United
States federal law.
C. Exclusivity. During the Initial and any Renewal Term of this Agreement,
Merchant shall not enter into an agreement with any other entity that provides Card
processing services similar to those provided by Service Provider as
contemplated by this Agreement without Service Provider’s written consent.
D. Construction. The typographical headings used in this Agreement are inserted
for reading convenience only and will not affect the interpretation of any provision.
The language used will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied against
any party. Any alteration or strikeover in the text of this pre-printed Agreement will
have no binding effect, and will not be deemed to amend this Agreement. This
Agreement may be executed by facsimile, and facsimile copies of signatures to
this Agreement shall be deemed to be originals and may be relied on to the same
extent as the originals.
E. Assignability. This Agreement may not be assigned by Merchant directly or by
operation of law, without the prior written consent of Service Provider. If
Merchant nevertheless assigns this Agreement without such consent of Service
Provider, Merchant shall remain liable and the Agreement also shall be binding
upon the assignee. Original Merchant and Guarantor(s) shall be held personally
liable in the event such assignee incurs chargebacks, retrievals, ACH rejects,
losses, fines or any other liabilities under this Agreement. This Agreement shall
be binding upon and inure to the benefit of the parties’ respective heirs,
personal representatives, successors, and assigns. Service Provider may assign
this Agreement.
F. Amendment. This Agreement is subject to amendment in order to conform and
comply with any amendments or modifications of the Rules or law. From time to
time Service Provider may amend any provision of this Agreement, including,
without limitation, those relating to discount rates or other fees and charges
payable by Merchant by mailing written notice to Merchant of the amendment, and
the amendment shall become effective and enforceable unless Service Provider
receives Merchant’s notice of termination of this Agreement within seven (7) days.
Amendments due to changes in either Card Association’s fees, interchange,
assessments, Rules or any law or judicial decision may become effective on such
shorter period of time as Service Provider may specify if necessary to comply
with the applicable Rule, law, or decision.
G. Notices; Consent to Electronic Communications. By applying for services and
confirming that it has read the Merchant Agreement, Merchant is confirming to Service
Provider that it has the means to access the Internet through its own service provider
and download or print electronic communications. Merchant agrees to the receipt of
electronic communications by email or by the posting of such information by
Service Provider at one or more of Service Provider’s sponsored websites, such as
www.tidalpay.com . Such communications may pertain to the services delivered by
Service Provider, the use of information Merchant may submit to Service Provider,
changes in laws or Rules impacting the service or other reasons, such as
amendment of the Merchant Agreement. In addition, all notices and other
communications required or permitted under this Agreement by Service Provider to
Merchant may also be delivered by Service Provider to Merchant either by fax,
overnight carrier or first class mail, postage or other charges prepaid, addressed
and transmitted as set forth below. All notices and other communications required or
permitted under this Agreement by Merchant to Service Provider shall be delivered
by Merchant to Service Provider by overnight carrier or certified mail, postage or
other charges prepaid, addressed and transmitted as set forth below. Notice by
fax or e-mail shall be deemed delivered when transmitted. Notice by mail or
overnight carrier shall be deemed delivered on the first business day after mailing or
delivery to the carrier. Following are the addresses for the purposes of notices and
other communications hereunder, which may be changed by written notice in
accordance with this section: (a) if to ISO, addressed and transmitted as follows:
Tidal Commerce, 2625 Butterfield Rd., Suite 213W, Oak Brook, IL 60523 (b) If to
Bank, addressed and transmitted as follows: Westamerica Bank, 3750 Westwind
Blvd, Suite 210, Santa Rosa, CA 95403, Fax: (707) 578-7055; (c) If to Merchant,
at the address provided as the billing address, or the fax number or e-mail address
and to the contact listed on the Merchant Application.
H. Force Majeure. Any delay in or failure of performance by Service Provider
under this Agreement will not be considered a breach of this Agreement and will
be excused to the extent caused by any occurrence beyond their reasonable control,
including, but not limited to, acts of God, power outages, failures of the Internet,
failures of banking, ACH or payment networks not under direct control of Service
Provider.
I. Amendments. Service Provider may amend this Agreement at any time upon
notice to Merchant. With regard to increases in existing fees, or imposition of
new fees, Service Provider will provide Merchant with a thirty (30) day notice to the
extent it has received such prior notification of new fees.
J. Severability and Waiver. If any provision of this Agreement is illegal, the
invalidity of that provision will not affect any of the remaining provisions and this
Agreement will be construed as if the illegal provision is not contained in the
Agreement. Neither the failure nor delay by Service Provider to exercise, or partial
exercise of, any right under this Agreement will operate as a waiver or estoppel of
such right, nor shall it amend this Agreement. All waivers must be signed by the
waiving party.
K. Remedies Cumulative. All rights and remedies conferred upon Service
Provider in this Agreement, at law or in equity, are not intended to be exclusive
of one another. Rather, each and every right of Service Provider under this
Agreement, at law or in equity, will be cumulative and concurrent and in addition to
every other right.
L. Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of final jurisdiction, it is the intent of the parties that all other provisions
of this Agreement be construed to remain fully valid, enforceable, and binding on
the parties.
M. Relationship of Parties. The parties are independent contractors and nothing
in this Agreement shall make them joint ventures, partners, employees, agents or
other representatives of the other party.
N. Employee Actions. Merchant is responsible for its employee’s actions while in
its employ.
O. Survival. All Sections of this Agreement that by their nature should survive
termination or expiration will survive, including, without limitation, accrued rights to
payment, indemnification obligations, confidentiality obligations, warranty
disclaimers, limitations of liability, Sections 2.04.C, 2.07, 3.01, 3.04, 3.05, and
Articles 4, 5, 6 and 7.01.C.
P. Further Assurances. At any time or from time to time, upon the request of
Service Provider, Merchant will execute and deliver further documents as Service
Provider may reasonably request in order to effectuate fully the purposes of this
Agreement.
Q. IRS Withholding Regulations. Pursuant to Section 6050W 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, Merchant will receive a Form
1099-K reporting its gross transaction amounts for each calendar year. The
Merchant’s gross transaction amount refers to the gross dollar amount of the card
transactions processed through its merchant account with Service Provider. In
addition, amounts reportable under Section 6050W are subject to backup
withholding requirements. Payors 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 Merchant provide Service Provider with the correct name and TIN
that it uses when filing your tax return that includes the transactions for its business.
ARTICLE VIII - TERMS BELOW ARE ADDITIONALLY APPLICABLE TO ONLY
THOSE MERCHANTS WITH AMERICAN EXPRESS CARD ACCEPTANCE
A8.01 Merchant shall be bound by the American Express Merchant
Operating Guide: www.americanexpress.com/merchantopguide.
A8.02 With respect to participation in an American Express acceptance
program, in the event of a conflict between the terms below and other terms of this
Agreement, the terms below shall control.
A8.03 General Terms. Merchant authorizes ISO and/or its affiliates to submit
American Express Transactions to, and receive settlement on such Transactions
from, American Express or Service Provider on behalf of Merchant.
A8.04 Marketing Message Opt-Out. Merchant may opt-out of receiving future
commercial marketing communications from American Express by contacting
ISO. Note that Merchant may continue to receive marketing communications
while American Express updates its records to reflect this choice. Opting out of
commercial marketing communications will not preclude Merchant from receiving
important transactional or relationship messages from American Express.
A8.05 Conversion to American Express Direct Merchant. Merchant
acknowledges that it may be converted from American Express Card OptBlue
program to a direct relationship with American Express if and when its Transaction
volumes exceed the eligibility thresholds for the OptBlue program. If this occurs,
upon such conversion, (i) Merchant will be bound by American Express’ then-
current Card Acceptance Agreement; and (ii) American Express will set pricing
and other fees payable by Merchant.
A8.06 American Express as Third Party Beneficiary. Notwithstanding
anything in the Agreement to the contrary, American Express shall have third-
party beneficiary rights, but not obligations, to the terms of this Agreement
applicable to American Express Card acceptance to enforce such terms against
Merchant.
A8.07 American Express Opt-Out. Merchant may opt out of accepting
American Express at any time without directly or indirectly affecting its rights to
accept Cards bearing Marks of other Card Brands.
A8.08 Refund Policies. Merchant’s refund policies for American Express
purchases must be at least as favorable as its refund policy for purchase on any
other Card Brand, and the refund policy must be disclosed to Cardholders at the
time of purchase and in compliance with Law. Merchant may not bill or attempt to
collect from any Cardholder for any American Express Transaction unless a
Chargeback has been exercised, Merchant has fully paid for such Chargeback,
and it otherwise has the right to do so.
A8.09 Establishment Closing. If Merchant closes any of its Establishments,
Merchant must follow these guidelines: (i) notify ISO immediately; (ii) policies must
be conveyed to the Cardholder prior to completion of the Transaction and printed
on the copy of a receipt or Transaction record the Cardholder signs; (iii) if not
providing refunds or exchanges, post notices indicating that all sales are final (e.g.,
at the front doors, by the cash registers, on the Transaction record and on websites
and catalogs); (iv) return and cancellation policies must be clearly disclosed at the
time of sale; and (v) for Advance Payment Charges or Delayed Delivery Charges,
Merchant must either deliver the goods or services for which Merchant has already
charged the Cardholder or issue Credit for any portion of the Transaction for which
Merchant has not delivered the goods or services.
ARTICLE IX – BANK IS NOT A PARTY TO THE BELOW TERMS. APPLICABLE
TO ONLY THOSE MERCHANTS WITH THE TERMINAL PLACEMENT
PROGRAM.
9.1 Terminal Placement Program
A. Parties and Property. Merchant and Tidal agree and acknowledge that Bank
is not a party to the following terms. Furthermore, Merchant agrees that the
“Terminal” or “Equipment” is property of Tidal Commerce., Inc. Tidal has agreed
to provide Merchant with a Terminal to operate with their Merchant Account per
the terms and conditions outlined in this Agreement.
B. Program Fees. Merchant agrees to pay the $75 annual terminal
maintenance fee and the $35 terminal deployment fee identified on the Merchant
Application and according to the terms and conditions of this Agreement.
C. Merchant agrees to protect the terminal from abuse, misuse or other damages
while terminal is in Merchant’s care.
D. Limit. Limit of one terminal issued under the Terminal Placement Program per
physical location or per Merchant Account.
E. Merchant Liability. Merchant agrees to be responsible, up to the retail value
of the equipment, for any damage to the equipment as a result of misuse or
neglect. In the event the terminal is returned damaged, Merchant agrees to pay
the Retail Value of the Terminal provided. Merchant will be charged the value of
the terminal. In the event Merchant damages the terminal through obvious abuse
or neglect and requires a replacement unit during an active term of this
Agreement, the Merchant agrees to a pay a $150 swap fee. In signing this
Agreement, Merchant has agreed to allow Tidal to debit any fees due, including
swap fees, directly from the Merchant’s Bank Account on file.
F. Default & Terms. In the event the Merchant has defaulted or terminated their
Merchant Transaction Processing Agreement, the Merchant is obligated to return
equipment to Tidal. Terminal must be received by Tidal within 30 days of Tidal
receiving Merchant’s notice of cancellation or Merchant being notified of default
of the Agreement. If equipment is not received within 30 days, Merchant will be
responsible for reimbursing Tidal the retail value of the terminal.
F.1. .Obtaining a secondary merchant account with a provider other than Tidal for
merchant account or related services and use of the terminal subject to this
Agreement for transaction processing with a merchant account provider other
than Tidal will be considered a default under this Agreement.
F.2. Notification of termination for default under this Agreement will be provided
to Merchant immediately upon termination. If Merchant is billed in error after
notification of termination; merchant shall be entitled to request from Tidal a
refund limited only to amount billed after notification of termination and shall not be
entitled to request from Tidal any reimbursement for perceived or actual damages.
G. Terminal Replacement. If the terminal provided to Merchant is proven to be
defective or stops working properly as a result of “normal wear” (as determined by
Tidal) and terminal is no longer functioning in the same manner as when initially
deployed, Merchant will be provided a replacement unit. Merchant will be required
to pay a $35 terminal deployment fee.