Merchant Processing
Agreement
This Merchant
Processing Agreement (“Agreement”) is entered into on the Effective Date
defined in Section 13.A, below, between the business indicated on the Merchant
Application (“Merchant” or “you”), Cynergy Data, LLC (“CD” or “Processor”), and
Harris, N.A. (“Bank”).
Recitals
Merchant desires to
accept Debit Cards and/or Other Cards, as indicated on the Merchant
Application, validly issued by members of Discover® Network, Visa U.S.A., Inc.
(“Visa”) and MasterCard International, Incorporated (“MasterCard”). “Debit
Card” means all Discover Network Visa or MasterCard cards issued by a non-U.S.
bank, a Discover Network, Visa or MasterCard card that accesses a consumer’s
asset account within 14 days after purchase, including but not limited to
Discover Network, Visa or MasterCard issued stored value, prepaid, payroll,
EBT, gift, and consumer check cards, and debit cards validly issued by the
debit card networks indicated in Section 4.G below (“Debit Networks”), such as
on-line (PIN-based) cards. “Other Cards” means all cards issued by a non-U.S.
bank and all Discover Network, Visa or MasterCard cards other than Debit Cards,
including but not limited to business and consumer credit cards and business
debit cards. The category of card acceptance you have indicated on the Merchant
Application will collectively be referred to as “Cards”. Bank and Processor
desire to provide Card processing services to Merchant. Therefore, Merchant,
Processor and Bank agree as follows:
Terms and Conditions
1. Honoring Cards.
A. Without
Discrimination. You will honor, without discrimination, any Debit Card and/or
Other Card, as indicated by you on the Merchant Application, properly tendered
by a Cardholder. “Cardholder” means a person presenting a Card and purporting
to be the person in whose name the Card is issued. If you elect to accept only
one of the card acceptance categories but later submit a transaction from a
card in a different category, you agree that Processor and Bank may process the
transaction and assess the appropriate fee, and that all terms of this
Agreement will apply to that transaction. You will not establish a minimum or
maximum transaction amount as a condition for honoring a Card. Cardholders will
be entitled to the same services and return privileges you extend to cash
customers, and you will not impose any special conditions (unless permitted by
the Card Associations) in connection with the acceptance of a Card. “Card
Association” means Visa, MasterCard, Discover Network, American Express,
Japanese Credit Bureau, and/or a Debit Network, as applicable.
B. Cardholder
Identification. You will identify the Cardholder and check the expiration date
and signature on each Card. You 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 strip (as printed in electronic
form) or the account number is listed on a current Electronic Warning Bulletin
file. You may not require a Cardholder to provide personal information, such as
a home or business telephone number, a home or business address; or a drivers license number as a condition for honoring a Card unless
permitted under the Laws and Rules (defined in Section 14, below). You may not
require a Cardholder to complete a postcard or similar device that includes the
Cardholder’s account number, Card expiration date, signature, or any other Card
account data in plain view when mailed.
C. Card Recovery. You
will use your reasonable, best efforts to recover any Card: (i) on Visa Cards
if the printed four digits above the embossed account number do not match the
first four digits of the embossed account number; (ii) if you are advised by
Processor or Bank (or a designee) the issuer of the Card or the designated
voice authorization center to retain it; (iii) if you have reasonable grounds
to believe the Card is counterfeit, fraudulent or stolen, or not authorized by
the Cardholder; or (iv) for MasterCard Cards, the embossed account number,
indent printed account number and or encoded account number do not agree or the
Card does not have a MasterCard hologram on the lower right corner of the Card
face.
D. Surcharge. You will
not add any amount to the posted price of goods or services you offer as a
condition of paying with a Card, except as permitted by the Rules. This
paragraph does not prohibit you from offering a discount from the standard
price to induce a person to pay by cash, check or similar means rather than by
using a Card.
E. Return Policy. You
will properly disclose to the Cardholder at the time of the Card transaction
and in accordance with the Rules, any limitation you have on accepting returned
merchandise.
F. No Claim Against Cardholder. You will not have any claim against or
right to receive payment from a Cardholder unless Processor and Bank refuses to
accept the Sales Draft (as defined in Section 3) or revokes a prior acceptance
of the Sales Draft after receipt or a chargeback or otherwise. You will not
accept any payments from a Cardholder relating to previous charges for
merchandise or services included in a Sales Draft, and if you receive any such
payments you promptly will remit them to Processor and Bank.
G. Disputes With Cardholder. All disputes between you and any Cardholder
relating to any Card transaction will be settled between you and the
Cardholder. Neither Processor or Bank bear any
responsibility for such transactions.
2. Authorization.
A. Required on all
Transactions. You will obtain a prior authorization for the total amount of a
transaction via electronic terminal or device before completing any
transaction, and you will not process any transaction that has not been
authorized. You will follow any instructions received during the authorization
process. Upon receipt of authorization you may consummate only the transaction
authorized and must note on the Sales Draft the authorization number. Where
authorization is obtained, you will be deemed to warrant the true identity of
the customer as the Cardholder.
B. Effect.
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 Card.
C. Unreadable Magnetic
Stripes. When you present Card transactions for authorization electronically,
and if your terminal is unable to read the magnetic stripe on the card, you will
obtain an imprint of the card and the Cardholder’s signature on the imprinted
draft before presenting the Sales Draft to Processor and Bank for processing.
Failure to do so may result in the assessment of a transaction surcharge on
non-qualifying transactions.
3. Presentment of Sales
Drafts.
A. Forms. You will use
a Sales Draft (“Sales Draft”) or other form approved by Processor and Bank 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 applicable); (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 order Card transaction, or PIN-based Debit Card transaction,
which fully complies with the requirements set forth in this Agreement. You may
not require the Cardholder to sign the Sales Draft before you enter the final
transaction amount in the Sales Draft.
C. Reproduction of
Information. If the following information embossed on the Card and the
Merchant’s name is not legibly imprinted on the Sales Draft, you will legibly
reproduce on the Sales Draft before submitting it to Processor and Bank: (i)
the Cardholder’s name; (ii) account number (truncated, if applicable); (iii)
expiration date and (iv) the Merchant’s name and place
of business. Additionally, for MasterCard transactions you will legibly
reproduce the name of the Bank issuing the Card as it appears on the face of
the Card.
D. Delivery and
Retention of Sales Drafts. You will deliver a complete copy of the Sales Draft
or credit voucher to the Cardholder at the time of the transaction. You will
retain the “merchant copy” of the Sales Draft or credit memorandum for at least
3 years following the date of completion of the Card transaction (or such
longer period as the Rules require).
E. Electronic
Transmission. In using electronic authorization and/or data capture services,
you will enter the data related to a sales or credit transaction into a
computer terminal or magnetic stripe reading terminal no later than the close
of business on the date the transaction is completed (unless otherwise
permitted by the Rules). Failure to do so may result in the assessment of a
transaction surcharge on non-qualifying transactions. If you provide your own
electronic terminal or similar device, such terminals must meet Processor’s and
Bank’s requirements for processing transactions. Information regarding a sales
or credit transaction transmitted with a computer or magnetic stripe reading
terminal will be transmitted by you to Processor and Bank or their agent in the
form Processor and Bank from time to time specifies or as required under the
Rules. If Processor or Bank requests a copy of a Sales Draft, credit voucher or
other transaction evidence, you will provide it within 24 hours following the
request.
4. Deposit of Sales
Drafts and Funds Due Merchant.
A. Deposit of Funds.
i. Deposits. You agree
that this Agreement is a contract of financial accommodation within the meaning
of the Bankruptcy Code, 11 U.S.C § 365 as amended from time to time. Subject to
this Section, Bank will deposit to the Designated Account (defined in Section 6
below) funds evidenced by Sales Drafts (whether evidenced in writing or by
electronic means) complying with the terms of this Agreement and the Rules and
will provide you provisional credit for such funds (less recoupment of any
credit(s), adjustments, fines, chargebacks, or fees). You understand and agree
that Bank may withhold deposit and payment to you without notice until the
expiration of any chargeback period for: a) mail order, telephone order, or Internet
transactions on Cards issued by non-U.S. financial institutions, and b) if
Processor or Bank determine, in their sole and reasonable discretion, that a
transaction or batch of transactions poses a risk of loss. Neither Processor
nor Bank are responsible for any losses you may incur, including but not
limited to NSF fees, due to such delayed deposit of funds. You acknowledge that
your obligation to Processor and Bank for all amounts owed under this Agreement
arise out of the same transaction as Processor and Bank’s obligation to deposit
funds to the Designated Account.
ii. Provisional Credit.
Not withstanding the previous sentences, under no circumstance will Processor
or Bank be responsible for processing credits or adjustments related to Sales
Drafts not originally processed by Processor and Bank. All Sales Drafts and
deposits are subject to audit and final checking by Processor and Bank and may
be adjusted for inaccuracies. You acknowledge that all credits provided to you
are provisional and subject to chargebacks and adjustments: (i) in accordance
with the Rules; (ii) for any of your obligations to Processor and Bank; and
(iii) in any other situation constituting suspected fraud or a breach of this
Agreement, whether or not a transaction is charged back by the Card issuer.
Processor and Bank may elect to grant conditional credit for individual or
groups of any funds evidenced by Sales Drafts. Final credit
for those conditional funds will be granted within Processor and Bank’s sole
discretion.
iii. Processing Limits.
Processor and Bank may impose a cap on the volume and ticket amount of Sales
Drafts that they will process for you, as indicated to you by Processor and
Bank. This limit may be changed by Processor and Bank upon written notice to
you.
B. Chargebacks. You are
fully liable for all transactions returned for whatever reason, otherwise known
as “chargebacks”. You will pay on demand the value of all chargebacks.
Authorization is granted to offset from incoming transactions and to debit the
Designated Account, the Reserve Account (defined in Section 7, below) or any
other account held at Bank or at any other financial institution the amount of
all chargebacks. You will fully cooperate in complying with the Rules regarding
chargebacks.
C. Excessive Activity.
Your presentation to Processor and Bank 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: (i) the dollar amount of
chargebacks and/or retrieval requests in excess of 1% of the average monthly
dollar amount of your 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 20% of the average monthly dollar amount of your Card
transactions. You authorize, upon the occurrence of Excessive Activity,
Processor and Bank to take any action they deem 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..
D. Credit.
i. Credit Memoranda.
You will issue a credit memorandum in any approved form, instead of making a
cash advance, a disbursement or a refund on any Card transaction. Bank will
debit the Designated Account for the total face amount of each credit
memorandum submitted to Bank. You will not submit a credit relating to any
Sales Draft not originally submitted to Bank, nor will you submit a credit that
exceeds the amount of the original Sales Draft. You will within the time period
specified by the Rules, provide a credit memorandum or credit statement for
every return of goods of forgiveness of debt for services which were the
subject of a Card transaction.
ii. Revocation of
Credit. Processor or Bank may refuse to accept any Sales Draft, and Processor
and Bank may revoke prior acceptance of a Sales Draft in the following
circumstances: (a) the transaction giving rise to the Sales Draft was not made
in compliance with this Agreement, the Laws or the Rules; (b) the Cardholder
disputes his liability to Processor and Bank for any reason, including but not
limited to a contention that the Cardholder did not receive the goods or
services, that the goods or services provided were not as ordered or pursuant
to those chargeback rights enumerated in the Rules; or (c) the transaction
giving rise to the Sales Draft was not directly between you and the Cardholder.
You will pay Processor and Bank any amount previously credited to you for a Sales
Draft not accepted by Processor and Bank or where accepted, is revoked by
Processor and Bank.
E. Reprocessing. Not
withstanding any authorization or request from a Cardholder, you will not
re-enter or reprocess any transaction which has been charged back.
F. Miscellaneous. You
will not present for processing or credit, directly or indirectly, any
transaction not originated as a result of a Card transaction directly between
you and a Cardholder or any transaction you know or should know to be fraudulent
or not authorized by the Cardholder. You will not sell or disclose to third
parties Card account information other than in the course of performing your
obligations under this Agreement.
G. Debit Card
Processing.
i. “Debit Networks”
means those debit card networks accepted by Processor, including but not
limited to the following organizations and their successors: Star, NYCE, Pulse,
Interlink, AFFN, Alaska, Jeanie, Accel, and Money Station.
ii. Credit Refunds. You
will attempt to settle in good faith any dispute between you and a Cardholder
involving a transaction. You will establish a fair, consistent policy for the
exchange and return of merchandise and for the adjustment of amounts due on
Debit Card sales. You will promptly initiate a refund to the customer (which
may be made in cash, by an adjustment draft or with a check or cashier’s check,
as permitted by the Rules) whenever you determine that a Debit Card transaction
should be canceled or reversed.
iii. Adjustments.
Except as the Debit Networks may permit, you 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 Processor. The Debit Card
Sales Draft for which no refund or return will be accepted by you must be
clearly and conspicuously marked (including on the Cardholder’s copy) as “final
sale” or “no return” and must comply with the Rules.
iv. Error Resolution.
You will refer Debit Card Cardholders with questions or problems to the institution
that issued the Debit Card. You will cooperate with Processor and with each
applicable Debit Network and its other members to resolve any alleged errors
relating to transactions. You 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.
5. Other Types of
Transactions.
A. Mail/Telephone
Order. Processor and Bank caution against mail orders or telephone orders or
any transaction in which the Cardholder and Card are not present
(“mail/telephone orders”) due to the high incidence of customer disputes. You
will perform AVS and obtain the expiration date of the Card for a
mail/telephone order and submit the expiration date when obtaining
authorization of the Card transaction. For mail/ telephone order transactions,
you will type or print legibly on the signature line the following as
applicable: telephone order or “TO” or mail order or “MO” You must promptly
notify Processor and Bank if your retail/mail order/telephone order mix changes
from the percentages represented to Processor and Bank in the Merchant
Application. Processor and Bank 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 (defined in
Section 7.A), if this mix changes. You may not deposit a mail/telephone order
Sales Draft before the product is shipped.
B. Recurring
Transactions. For recurring transactions, you must 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. You will not complete any recurring transaction
after receiving: (i) a cancellation notice from the Cardholder (ii) notice from
Processor or Bank, or (iii) a response that the Card is not to be honored. You
must print legibly on the Sales Draft the words “Recurring Transaction”.
C. Multiple Sales
Drafts. You 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.
D. Partial Completion.
i. Prior Consent. You
will not accept for payment by Card any amount representing a deposit or
partial payment for goods or services to be delivered in the future without the
prior written consent of Processor or Bank. Such consent will be subject to
Bank’s final approval. 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 Laws or Rules.
ii. Acceptance. If you
have obtained prior written consent, then you 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. You will
note upon the Sales Draft the words “deposit” or “balance” as appropriate. You
will not deposit the Sales Draft labeled “balance” until the goods have been
delivered to Cardholder or you have fully performed the services.
E. Future Delivery. You
will not present any Sales Draft or other memorandum to Bank for processing
(whether by electronic means or otherwise) which relates to the sale of goods
or services for future delivery without Processor or Bank’s prior written
authorization. Such consent will be subject to Bank’s final approval. If
Processor or Bank have given such consent, you
represent and warrant to Processor and Bank that you will not rely on any
proceeds or credit resulting from such transactions to purchase or furnish
goods or services. You 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.
F. Electronic Commerce.
You may process electronic commerce (“EC”) transactions only if you have so
indicated on the Application, and only if you have obtained CD’s consent. If
you submit EC transactions without such consent, Processor may immediately
terminate this Agreement. If you have indicated on the Application that you
will be submitting EC transactions, you acknowledge that you have received a
copy of the Visa Cardholder Information Security Program (“CISP”) manual. If
you present EC transactions, such transactions must comply with the CISP
requirements and all other applicable Rules and Law. You understand that
transactions processed via EC are high risk and subject to a higher incidence
of chargebacks. You are liable for all chargebacks and losses related to EC transactions,
whether or not: i) EC transactions have been encrypted; and ii) you have
obtained consent to engage in such transactions. Encryption is not a guarantee
of payment and will not waive any provision of this Agreement or otherwise
validate a fraudulent transaction. You must offer Cardholders a secure
transaction method, such as Secure Sockets Layer (SSL) or 3-D Secure. All
communication costs related to EC transactions are your responsibility. You
understand that Processor will not manage the EC telecommunications link and
that it is your responsibility to manage that link. All EC transactions will be
settled by Bank into a depository institution of the United States in U.S.
currency.
i. Requirements. For
goods to be shipped on EC transactions, you may obtain authorization up to 7
calendar days prior to the shipment date. You need not to obtain a second
authorization if the Sales Draft amount is within 15% of the authorized amount,
provided that the additional amount represents shipping costs. Further, your
web site must contain all of the following information: a) complete description
of the goods or services offered, b) returned merchandise and refund policy, c)
customer service contact, including electronic mail address and/or telephone
number, d) transaction currency (such as U.S. or Canadian dollars), e) export
or legal restrictions, if known, f) delivery policy, consumer data privacy
policy, g) your security method for transmission of payment data, and h) the
Visa flag symbol in full color. If you store cardholder account numbers,
expiration dates, and other personal cardholder data in a database, you must
follow Discover Network, Visa and MasterCard guidelines on securing such data.
You shall immediately notify Processor of any suspected or confirmed loss or
theft of any transaction information. In addition, you must provide reasonable
access to Discover Network, Visa, MasterCard, a Debit Network or independent
third party to verify your ability to prevent future security breaches in a
manner consistent with the requirements of any Rule.
ii. Cardholder
Information Security. You agree that you are, and will remain, fully compliant
with the Payment Card Industry Data Security Standard required by Discover
Network and the Card Associations, including but not limited to undertaking the
required annual or quarterly self-assessments and Web infrastructure scans, as
appropriate. If you accept EC transactions, you must: install and maintain a
working network firewall to protect data accessible via the Internet; keep
security patches up-to-date; encrypt stored data and data sent over open
networks; use and update antivirus software; restrict access to data by
business “need-to-know”; assign a unique ID to each person with computer access
to data; not use vendor-supplied defaults for system passwords and other
security parameters; track access to data by unique ID; regularly test security
systems and processes; maintain a policy that addresses information security
for employees and contractors; and restrict physical access to cardholder
information. When outsourcing administration of information assets, networks,
or data you must retain legal control of proprietary information and use
limited “need-to-know” access to such assets, networks or data. Further, you must
reference the protection of cardholder information and compliance with the Visa
CISP Rules in contracts with other service providers. You agree to indemnify
and reimburse Processor and Bank immediately for any loss, liability,
assessment or fine incurred due to your breach of this Section.
G.
American Express, and Diners Club Transaction.
Upon your request, Processor and Bank will provide authorization and/or data
capture service, for Diners Club and American Express transactions. By signing
this Merchant Agreement, Merchant agrees to abide by the terms and conditions
of Diners Club and American Express. I understand that the Diners Club
Agreement will be sent to the business entity indicated on this application. By
accepting the Diners Club card for goods and/or services Merchant agrees to be
bound by the terms and conditions of the Agreement. Processor and Bank are not
responsible for funding such transactions. Initial setup fees may apply.
H. Cash Advances. You
will not deposit any transaction for purpose of obtaining or providing a cash
advance. You agree that any such deposit shall be grounds for immediate
termination.
I. Prohibited
Transactions. You will not accept or deposit any fraudulent transaction and you
may not, under any circumstances, present for deposit directly or indirectly, a
transaction which originated with any other merchant or any other source. You
will not, under any circumstance, engage in any transaction prohibited by the
Rules or deposit telemarketing transactions unless you obtain Bank or
Processor’s prior written consent. Such consent will be subject to Bank’s final
approval. If you process any such transactions, you may be immediately
terminated and Bank may hold funds and/or require you to establish a Reserve
Account. Further, you may be subject to Discover Network or the Card
Association reporting requirements. You will not: accept cash, checks or other
negotiable items from any Cardholder and forward a credit through Discover
Network or any Card Association or Debit Network (i.e., as a purported payment
or deposit to an account maintained by the Cardholder); forward any transaction
or initiate any reversal of a transaction that did not originate between you
and the Cardholder; complete any transaction that you know or should have known
to be fraudulent or not authorized by the Cardholder; accept any Debit Card in
payment for any legal services or for expenses related to the defense of any
crime (other than a traffic violation), or any domestic relations matter where
services or expenses are furnished a person whose name is not embossed on the
Debit Card or any bankruptcy, insolvency, or other proceeding affecting the
creditors of any Cardholder; present for processing a transaction that does not
represent a sale of goods or service directly between Cardholder and you. You
will fully cooperate with Processor, Discover Network and with each Card
Association in the event that Processor, Discover Network or any Card
Association determines that there is a substantial risk of fraud arising from
your access to Discover Network and the Card
Association. You will take whatever actions Processor, Discover Network or Card
Associations reasonably deem necessary in order to protect Discover Network,
such Card Association, its members, and its Cardholders. Neither
Discover Network, the Card Associations, Processor, nor any of their respective
personnel will have any liability to you for any action taken in good
faith.
J. Debit Card
Transactions.
i. For each PIN-based
Debit Card sale, the Cardholder must enter his Personal Identification Number
(“PIN”) through a PIN pad located at the point of sale.
ii.
Each PIN pad will be situated to permit Cardholders to input their PINs without
revealing them to other persons, including your personnel.
iii. You will instruct
personnel that they may not ask any Cardholder to disclose the PIN and that in
the event that any of your personnel nevertheless becomes aware of any
Cardholder’s PIN, such personnel will not use such PIN or create or maintain
any record of such PIN, and will not disclose such PIN to any other person.
iv. The PIN message
must be encrypted from the PIN pad to the point of sale device connected to a
Debit Network used to initiate transactions (“Terminal”) and from the Terminal
to the Debit Network and back so that the PIN message will not be in the clear
at any point in the transaction.
v. You will comply with
any other requirements relating to PIN security as required by Bank or by any
Debit Network.
vi. A transaction
receipt in conformity with Regulation E and the Rules will be made available to
the Cardholder.
vii. You may not
establish a minimum or maximum transaction amount as a condition for use of a
Debit Card.
viii. You may not
charge any Cardholder for the use of any Debit Card unless the Rules so permit.
ix. You may not collect
tax as a separate cash transaction.
K. Debit Card
Terminals. Debit Card terminals, including hardware and software, must be
certified for use by Bank and by all of the Debit Networks. Terminals must
include encrypted PIN pads which allow entry of up to sixteen character PINs,
printers and a keyboard lock function. You are responsible for compliance with
all Rules regarding the use of Terminals, regardless of whether such Terminals
are obtained through CD or through a third party
A. Establishment and
Authority. Merchant will establish and maintain an account at an ACH receiving
depository institution approved by Bank (“Designated Account”). Merchant will
maintain sufficient funds in the designated Account to satisfy all obligations,
including fees, contemplated by this Agreement. Merchant irrevocably authorizes
Bank 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 2 years after termination of this Agreement whether or not
you have notified Processor and Bank of a change to the Designated Account. Merchant must obtain prior written consent from Bank or Processor
to change the Designated Account. If Merchant does not get that consent,
Processor and Bank may immediately terminate the Agreement and may take other
action necessary, as determined by them within their sole discretion.
B. Deposit. Bank will
initiate a deposit in an amount represented on Sales Drafts to the Designated
Account subject to Section 4 of this Agreement upon receipt of funds from Visa,
MasterCard, or a Debit Network. Typically, the deposit will be initiated 3
business days following Processor’s receipt of the Sales Draft, except for mail
order/telephone order and electronic commerce transactions, which will be
initiated 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. Merchant authorizes Bank and Processor to initiate reversal
or adjustment entries and initiate or suspend such entries as may be necessary
to grant Merchant conditional credit for any entry. Bank, in its sole discretion,
may grant you provisional credit for transaction amounts in the process of
collection, subject to receipt of final payment by Bank and subject to all
chargebacks.
C. Asserted Errors. You
must promptly examine all statements relating to the Designated Account, and
immediately notify Processor and Bank in writing of any errors. Your 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 you believe an error exists and
the cause of it, if known. That written notice must be received by Processor
and Bank within 30 calendar days after you received the periodic statement
containing the asserted error. You may not make any loss or expense relating to
any asserted error for 60 calendar days immediately following Processor’s
receipt of your written notice. During that 60 day period, Processor and Bank
will be entitled to investigate the asserted error.
D. Indemnity. You will
indemnify and hold Processor and Bank harmless for any action they take against
the Designated Account, the Reserve Account, or any other account pursuant to
this Agreement.
E. ACH Authorization.
You authorize Processor and Bank to initiate debit/credit entries to the
Designated Account, the Reserve Account, or any other account maintained by you
at any institution, all in accordance with this Agreement. This authorization
will remain in effect beyond termination of this Agreement. In the event you
change the Designated Account, this authorization will apply to the new
account.
7. Security Interests,
Reserve Account, Recoupment and Set-Off.
A. Security Interests.
i. Security Agreement.
This Agreement is a security agreement under the Uniform Commercial Code. You
grant to Processor and Bank 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 Draft; and (iv) any and all amounts
which may be due to you under this Agreement including, without limitation, all
rights to receive any payments or credits under this Agreement (collectively.
the “Secured Assets”). You agree to provide other collateral or security to
Processor and Bank to secure your obligations under this Agreement upon
Processor or Bank’s request. These security interests and liens will secure all
of your obligations under this Agreement and any other agreements now existing
or later entered into between you and Processor and Bank. This security
interest may be exercised by Processor and Bank without notice or demand of any
kind by making an immediate withdrawal or freezing the secured assets.
ii. Perfection. Upon
request of Processor or Bank, you will execute one or more financing statements
or other documents to evidence this security interest. You 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, Processor
and Bank will have all rights afforded under the Uniform Commercial Code, any
other applicable law and in equity. You will obtain from Processor and Bank
written consent prior to granting a security interest of any kind in the
Secured Assets to a third party. You agree that this is a contract of
recoupment and Processor and Bank are not required to file a motion for relief
from a bankruptcy action automatic stay for Processor or Bank to realize on any
of its collateral (including any Reserve Account). Nevertheless you agree not
to contest or object to any motion for relief from the automatic stay filed by
Processor or Bank. You authorize Processor or Bank and appoint Processor or
Bank your attorney in fact to sign your name to any financing statement used
for the perfection of any security interest or lien granted hereunder.
B. Reserve Account.
i. Establishment. You
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
Processor and Bank, with sums sufficient to satisfy your current and future
obligations as determined by Processor and Bank. You authorize Bank to debit
the Designated Account or any other account you have 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 you, for the purpose of establishing, maintaining or increasing the
Reserve Account in accordance with this Section, if it determines such action
is reasonably necessary to protect its interests.
ii. Authorizations.
Bank may, without notice to you, apply deposits in the Reserve Account against
any outstanding amounts you owe under this Agreement or any other agreement
between you and Processor or Bank. Also, Processor and Bank may exercise their
rights under this Agreement against the Reserve Account to collect any amounts
due to Processor or Bank including, without limitation, rights of set-off and
recoupment.
iii. 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 your last transmission
of sales drafts to Processor or Bank, provided, however, that you will remain
liable to Processor and Bank, for all liabilities occurring beyond such 270 day
period. After the expiration of such 270 day period you must provide Processor
with written notification indicating you desire a release of any funds
remaining in the Reserve Account in order to receive such funds. You agree that
you will not use these funds in the Reserve Account for any purpose, including
but not limited to paying chargebacks, fees, fines or other amounts you owe
Processor and Bank under this Agreement. Bank (and not Merchant) shall have
sole control of the Reserve Account.
iv. Assurance. In the
event of a bankruptcy proceeding and the determination by the court that this
Agreement is assumable under Bankruptcy Code § 365, as amended from time to
time, you must establish or maintain a Reserve Account in an amount
satisfactory to Processor and Bank.
C. Recoupment and Set
Off. Processor and Bank have the right of recoupment and set-off. This means
that they may offset or recoup any outstanding/uncollected amounts owed by you
from: (i) any amounts they would otherwise be obligated to deposit into the
Designated Account; (ii) any other amounts Bank or Processor may owe you under
this Agreement or any other agreement; and (iii) any funds in the Designated
Account or Reserve Account. You acknowledge that in the event of a bankruptcy
proceeding, in order for you to provide adequate protection under Bankruptcy
Code § 362 to Processor and Bank, you must create or maintain the Reserve
Account as required by Processor and Bank, and Processor and Bank must have the
right to offset against the Reserve Account for any and all obligations which
you may owe to Processor and Bank, without regard to whether the obligations relate
to Sales Drafts initiated or created before or after the filing of the
bankruptcy petition.
D. Remedies Cumulative.
The rights and remedies conferred upon Processor and Bank in this Agreement, at
law or in equity, are not intended to be exclusive of each other. Rather, each
and every right of Processor and Bank under this Agreement, at law or in
equity, will be cumulative and concurrent and in addition to every other right.
8. Fees and Other
Amounts Owed Bank.
A. Fees and Taxes. You
will pay Processor and Bank fees for services, forms and equipment in
accordance with the 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’s or month’s activity. or
will be netted out from the funds due you attributable to Sales Drafts
presented to Processor and Bank. Processor and Bank reserve the right to adjust
the fees set forth on the Application and in this Section, in accordance with
Section 16.I, below, provided that Bank must approve, in advance, any fee to or
obligation of Merchant arising from or related to performance of this
Agreement. You are also obligated to pay all taxes, and other charges imposed
by any governmental authority on the services provided under this Agreement.
Bank may not assign or otherwise transfer an obligation to pay or reimburse
Merchant arising from, or related to, performance of this Agreement to
Processor.
B. Other Amounts Owed.
You will immediately pay Processor and Bank any amount incurred by Processor
and Bank attributable to this Agreement including but not limited to
chargebacks, fines imposed by Visa or MasterCard, non-sufficient fund fees, and
ACH debits that overdraw the Designated Account, Reserve Account or are otherwise
dishonored. You authorize Bank to debit via ACH the Designated Account,
Merchant Account, or any other account you have at Bank or at any other
financial institution for any amount you owe Processor or Bank under this
Agreement or under any other contract, note, guaranty, instrument or dealing of
any kind now existing or later entered into between you and Processor or Bank,
whether your obligation is direct, indirect, primary, secondary, fixed,
contingent, joint or several. ln the event Processor or
Bank demand sums due or such ACH does not fully reimburse Processor and Bank
for the amount owed, you will immediately pay Processor and Bank such amount.
C. Merchant Maintenance
Supply/Replacement Program (“MMP”). You are responsible for purchasing all
supplies required to properly process Card transactions (sales slips, printer
rolls, etc.). If you elect to participate in the MMP, you understand that
supply quantities provided by CD will be based on your monthly transaction
count. Enrollment in MMP also entitles merchant to free refurbished replacement
equipment after at least one statement cycle on/with CD. Equipment is under
warranty for the life of merchant’s enrollment in MMP. Terminal/Peripheral
replacement will only apply to those terminals/peripherals that have submitted
or settled batch/transactions. A monthly fee is required for each
terminal/peripheral you have. If your terminal/peripheral type is unavailable,
CD will substitute the terminal/peripheral at its discretion. CD may choose to
cancel the merchant’s MMP at any time without notice. This program does not
cover (i) terminals/peripherals that have been subject to: water damage; and
(ii) Products that have been damaged due to alteration or modification (iii)
Non-Payment Card Industry Data Security Standards (”PCI DSS”) compliant
terminals/peripherals. In these instances, the merchant will be charged the
full purchase price of the refurbished replacement equipment. This program is
non-transferable without written consent.
9. Application, Indemnification,
Limitation of Liability.
A. Application. You
represent and warrant to Processor and Bank that all information in the
Application is correct and complete. You must notify Processor in writing of
any changes to the information in the Application, including but not limited
to: any additional location or new business, (the identity of principals and/or
owners, the form of business organization (i.e., sole, proprietorship
partnership, etc.), type of goods and services provided and how sales, are
completed (i.e. by telephone, mail, or in person at your place of business).
The notice must be received by Processor within 10 business days of the change.
You will provide updated information to Processor within a reasonable time upon
request. You are liable to Processor for all losses and expenses incurred by
Processor arising out of your failure to report changes to it. Bank and
Processor may immediately terminate this Agreement upon notification by you of
a change to the information in the Application.
B. Indemnification. You
will hold harmless and indemnify the Card Associations, Processor and Bank,
their employees and agents (i) against all claims by third parties arising out
of this Agreement, and (ii) for all attorneys’ fees and other costs and expenses
paid or incurred by Processor or Bank in the enforcement of the Agreement,
including but not limited to those resulting from any breach by you of this
Agreement and those related to any bankruptcy proceeding.
C. Limitation of
Liability. Any liability of Processor or Bank under this Agreement, whether to
you or any other party, whatever the basis of the liability, shall not exceed
in the aggregate the difference between (i) the amount of fees paid by you to
Processor and Bank during the month in which the transaction out of which the
liability arose occurred, and (ii) assessments, chargebacks, and offsets
against such fees which arose during such month. In the event more than one
month is involved, the aggregate amount of Processor’s and Bank’s liability
shall not exceed the lowest amount determined in accord with the foregoing
calculation for any one month involved. Neither Processor
Bank nor their agents, officers, directors, or employees shall be liable
for indirect, special, or consequential damages.
D. Performance.
Processor and Bank will perform all services in accordance with this Agreement.
Processor and Bank make no warranty, express or implied, regarding the
services, and nothing contained in the Agreement will constitute such a
warranty. Processor and Bank disclaim all implied warranties, including those
of merchantability and fitness for a particular purpose. No party will be
liable to the others 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 such party. Neither Processor nor Bank
shall be liable for the acts or omissions of any third party. For purposes of
this Agreement, Processor is the exclusive agent of Bank and Bank is at all
times entirely responsible for, and in control of Processor’s performance.
10. Representations and
Warranties. You represent and warrant to Processor and Bank at the time of
execution and during the term of this Agreement the following:
A. Information. You are
a corporation, limited liability company, partnership or sole proprietorship
validly existing and organized in the United States. All information contained
on the Application or any other document submitted to Processor or Bank is true
and complete and properly reflects the business, financial condition, and
principal partners, owners, or officers of Merchant. You are not engaged or
affiliated with any businesses, products or methods of selling other than those
set forth on the Application, unless you obtain the prior written consent of
Processor and Bank.
B. Entity Power.
Merchant and the person signing this Agreement have the authority to execute
and perform this Agreement. This Agreement will not violate any law, or
conflict with any other agreement to which you are subject.
C. No Litigation or
Termination. There is no action, suit or proceeding pending or to your
knowledge threatened which if decided adversely would impair your ability to
carry on your business substantially as now conducted or which would adversely
affect your financial condition or operations. You have never entered into an
agreement with a third party to perform credit or debit card processing which
has been terminated by that third party.
D. Transactions. 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 you nor does it
involve a Cardholder obtaining cash from you unless
allowed by the Rules and agreed in writing with Processor and Bank.
E. Rule compliance. You
will comply with the Laws and Rules.
11. Audit and financial
information.
A. Audit. You authorize
Processor or Bank to audit your records, systems, processes or procedures to
confirm compliance with this Agreement, as amended from time to time. You will
obtain, and will submit a copy of, an audit of your business when requested by
Processor or Bank.
B. Financial
Information.
i. Authorizations. You
authorize Processor or Bank to make any business or personal credit inquiries
they consider necessary to review the acceptance and continuation of this
Agreement. You also authorize any person or credit reporting agency to compile
information to answer those credit inquiries and to furnish that information to
Processor and Bank.
ii. Documents. You will
provide Processor or Bank personal and business financial statements and other
financial information as requested from time to time. If requested, you will
furnish within 120 calendar days after the end of each fiscal year to Processor
and Bank a financial statement of profit and loss for the fiscal year and a
balance sheet as of the end of the fiscal year.
12. Third Parties.
A. Services. You may be
using special services or software provided by a third party to assist you in processing
transactions, including authorizations and settlements, or accounting
functions. You are responsible for ensuring compliance with the requirements of
any third party in using their products. This includes making sure you have and
comply with any software updates. Processor and Bank have no responsibility for
any transaction until that point in time Processor or Bank receive
data about the transaction.
B. Use of Terminals
Provided by Others. You will notify Processor and Bank immediately if you decide
to use electronic authorization or data capture terminals or software provided
by any entity other than Processor and Bank or its authorize designee (“Third
Party Terminals”) to process transactions. If you elect to use Third Party
Terminals you agree (i) the third party providing the terminals will be your
agent in the delivery of Card transactions to Processor and Bank; and (ii) to
assume full responsibility and liability for any failure of that third party to
comply with the Rules or this Agreement. Neither Processor
nor Bank will be responsible for any losses or additional fees incurred
by you as a result of any error by a third party agent or a malfunction in a
Third Party Terminal.
C. Debit Network
Requirements. In order to inform Cardholders that Debit Cards may be accepted
at your locations, you will prominently display the trademark of each Debit
Network at each location and will display signage of each Debit Network at the
entrance, near all Terminals and on the window of such location. All uses by
you of any Debit Network trademark will comply with the Rules. You acknowledge
and agree that in displaying any such trademark, you
will be subject to approval by the applicable Debit Network. You will under no
circumstances be deemed to be a licensee or sublicensee of any trademark of any
Debit Network, nor will you otherwise be deemed to have or to acquire any
right, title or interest in such trademarks.
13. Term and
Termination
A. Term. The Agreement
will become effective on the date Bank executes this Agreement (“Effective
Date”), provided, however that if you submit a transaction prior to the
Effective Date, you will be bound by all terms of this Agreement. The Agreement
will remain in effect for a period of 3 years (“Initial Term”) and will renew
for successive 1 year terms (“Renewal Term”) unless terminated as set forth
below.
B. Termination. The
Agreement may be terminated by Bank 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 Processor and Bank. 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
Processor’s or your access to such Debit Network whether caused by termination
or expiration of Processor’s agreement with such Debit Network or otherwise. In
addition, in the event that Processor’s participation in such Debit Network is
suspended for any reason, processing through such Debit Network by you will be
suspended for the period of time of such suspension and Bank or Processor will
immediately notify you of that event. Neither Processor,
Bank, nor any Debit Network will have any liability to you as a result
of any such suspension or termination.
C. Action upon
Termination.
i. Terminated Merchant
File. You acknowledge that Bank is required to report your business name and
the name of Merchant’s principals to Discover Network, Visa and MasterCard when
Merchant is terminated due to the reasons listed in the Rules.
ii. Designated Account.
All your obligations regarding accepted Sales Drafts will survive termination.
You must maintain in the Designated Account and the Reserve Account enough
funds to cover all chargebacks, deposit charges, refunds and fees incurred by
you for a reasonable time, but in any event not less than the time specified in
this agreement. You authorize Bank 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, you will pay
Processor and Bank the amount you owe it upon demand, together with all costs
and expenses incurred to collect that amount, including reasonable attorneys’
fees.
iii. Equipment. Within
14 business days of the date of termination, you must return all equipment
owned by Processor and immediately pay Processor and Bank any amounts you owe
them for equipment costs.
iv. Early Termination.
If you terminate this Agreement before the end of the Initial Term, you will
immediately pay Bank, as deconversion costs, an early termination fee equal to
$495. You agree that the early termination fee is not a penalty, but rather is
reasonable in light of the financial harm caused by your early termination. Other
remedies Bank or Processor may have under this Agreement still apply.
14. Compliance With Laws And Rules. You agree to comply with all rules and
operating regulations issued from time to time by a Debit Network, Diners’
Club, Discover Network, MasterCard, and Visa and any policies and procedures
provided by Processor or Bank, including those set forth in the Merchant
Operating Manual (“Rules”). The Rules are incorporated into this Agreement by
reference as if they were fully set forth in this Agreement. You further agree
to comply with all applicable state, federal and local laws, rules and
regulations (“Laws”), as amended from time to time. You will assist Processor
and Bank in complying with all Laws and Rules now or hereafter applicable to
any Card transaction or this Agreement. You will execute and deliver to
Processor and Bank all instruments it may from time to time reasonably deem
necessary.
15. Use of Trademarks
and Confidentiality.
A. Use of Trademarks.
Your use of Discover Network, Visa and MasterCard trademarks must fully comply
with the Rules. Your use of Discover Network, Visa, MasterCard or other cards’
promotional materials will not indicate directly or indirectly that Discover
Network, Visa or MasterCard endorse any goods or services other than their own
and you may not refer to Discover Network, Visa or MasterCard in stating
eligibility for your products or services. If you have requested signage for
the purpose of indicating acceptance of Debit Cards, you must display such
signage for a minimum of 3 months. All point of sale displays or websites must
include either appropriate Discover Network or Visa-owned marks to indicate
acceptance of Debit and Other Cards or Visa approved signage to indicate
acceptance of the limited acceptance category you have selected.
B. Confidentiality.
i. Cardholder
Information. You will not disclose to any third party Cardholders’ account
information or other personal information except to an agent of yours assisting
in completing a Card transaction, a Card Association, or as required by law.
You must keep all systems and media containing account, Cardholder, or
transaction information (physical or electronic, including but not limited to
account numbers, card imprints, and TIDs) in a secure manner, to prevent access
by or disclosure to anyone other than your authorized personnel. You must
destroy all material containing Cardholders’ account numbers, Card Imprints,
Sales Drafts, Credit Vouchers (except for Sales Drafts maintained in accordance
with this Agreement, Laws, and the Rules). Further, you must take all steps
reasonably necessary to ensure Cardholder information is not disclosed or
otherwise misused. You may not retain or store magnetic stripe, Discover
Network CID or CVV2 data after authorization.
ii. Prohibitions. You
will not use for your own purposes, will not disclose to any third party, and
will retain in strictest confidence all information and data belonging to or
relating to the business of Processor and Bank (including without limitation the
terms of this Agreement), and will safeguard such information and data by using
the same degree of care that you use to protect your own confidential
information. If you have requested BIN information, you must only use this BIN
information for product identification purposes at the point of sale, and not
disclose this proprietary and confidential Visa BIN information to any third
party without prior written permission from Visa.
iii. Disclosure. You
authorize Processor and Bank to disclose your name and address to any third
party who requests such information or otherwise has a reason to know such
information.
C. Return to Bank. All
promotional materials, advertising displays, emblems, Sales Drafts, credit
memoranda and other forms supplied to you and not purchased by you or consumed
in use will remain the property of Processor and Bank and will be immediately
returned to Processor upon termination of this Agreement. You will be fully
liable for all loss, cost, and expense suffered or incurred by Processor and
Bank arising out of the failure to return or destroy such materials following
termination.
16. General Provisions.
A. Entire Agreement.
This Agreement as amended from time to time, including the Rules, the Merchant
Operating Manual, and the completed Merchant Application, all of which are
incorporated into this Agreement, constitute the entire agreement between the
parties, and all prior or other agreements or representations, written or oral,
are superseded. This Agreement may be signed in one or more counterparts, all
of which, taken together, will constitute one agreement.
B. Governing Law. This
Agreement will be governed by the laws of the State of New York. Proper venue
for any dispute arising from this agreement shall be in any state or federal
court of competent jurisdiction in New York County, New York. Merchant and
Guarantor(s) agree to submit to the personal jurisdiction of courts located in
New York County, New York.
C. Exclusivity. During
the Initial and any Renewal Term of this Agreement, you will not enter into an
agreement with any other entity that provides Card processing services similar
to those provided by Processor and Bank as contemplated by this Agreement
without Processor and Bank’s written consent.
D. Construction. The headings
used in this Agreement are inserted for 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 Processor. If Merchant nevertheless
assigns this Agreement without the consent of Processor, the Agreement shall be
binding upon the assignee. Bank will be informed of any such assignment.
F. Notices. Any written
notice under this Agreement will be deemed received upon the earlier of: (i)
actual receipt or (ii) five calendar days after being deposited in the United
States mail, and addressed to the last address shown on the records of the
sender.
G. Bankruptcy. If your
business fails, including bankruptcy, insolvency, or other suspension of
business operations, you must not sell, transfer, or disclose any materials
that contain Cardholder account numbers, personal information, or other Visa
transaction information to third parties. You must either return this
information to Processor or provide acceptable proof of destruction of this
information. You will immediately notify Processor and Bank of any bankruptcy,
receivership, insolvency or similar action or proceeding initiated by or
against Merchant or any of its principals. You will include Processor and Bank
on the list and matrix of creditors as filed with the Bankruptcy Court, whether
or not a claim may exist at the time of filing. Failure to
comply with either of these requirements will be cause for immediate
termination or any other action available to Processor and Bank under
applicable Rules or Laws.
H. Attorneys’ Fees.
Merchant will be liable for and will indemnify and reimburse Processor and Bank
for all attorneys’ fees and other costs and expenses paid or incurred by
Processor and Bank 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.
I. Amendments. Bank and
Processor may amend this Agreement at any time upon notice to you. With regard
to increases in existing fees, or imposition of new fees, except for any fee
increases imposed by Discover Network, Visa, MasterCard, or a Debit Network,
you may cancel the Agreement if you object to the fee changes in writing within
30 days. If you do not object, and continue to process for 30 days after
receiving notice of the fee change, you will be deemed to assent to the 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 Processor or Bank 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. Independent
Contractors. Processor, Bank and Merchant will be deemed independent
contractors and will not be considered agent, joint venture or partner of the
other.
L. Employee Actions.
You are responsible for your employees’ actions while in your employment.
M. Survival. Sections
4.A,4.B.6,7,8,9, 13.C,15,16.B, and 16.H will survive
termination of this Agreement.
N. Bank Contact. You
may contact Bank at the following address and telephone number:
Harris, N.A.
150 N. Martingale, Suite 900
Schaumburg, Illinois 60173