Merchant Card Processing Agreement (V4.2)
Thank you for selecting Qualpay, Inc. ("Processor"). This Agreement is between Qualpay, Synovus Bank ("Bank") and you, the merchant. These terms and conditions, along with the attached Addenda, if any, and your Merchant Application, will govern the legal relationship under which the Bank and Processor will provide the payment processing services described in this Agreement.
1. Definitions
“ACH” or “ACH Payments” means Automated Clearing House payments which transfer money from one bank account to another without using paper checks, credit card networks, wire transfers, or cash.
"Acquirer" means Processor or Bank, or both. Both Processor and Bank have the authority to exercise rights belonging to the "Acquirer".
"Addendum" (and the plural, "Addenda") means each Addendum attached to this Agreement, if any, or any other Addendum otherwise executed or agreed to between the parties.
"Affiliate" means an entity of which a party is the majority owner, which is the majority owner of a party, or which is majority owned by the same entity as a party.
"Agreement" means this agreement, all terms and conditions available at
www.qualpay.com/legal, along with any Addenda and the Merchant Application.
"American Express" means American Express Travel Related Services Company, Inc. or its successors or assigns.
"Applicable Law" means all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance.
"Bank" means Synovus Bank, or other acquiring bank(s) who provide sponsorship with the Payment Networks, as well as any successors and assigns of such acquiring bank(s).
"Card" means an account, or evidence of an account, authorized and established between a Cardholder and a Payment Network, or representatives or members of a Payment Network, that you accept from Cardholders as payment for a good or service.
"Card Information" means all information related to a Cardholder or Card obtained by you in connection with a Transaction, including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, or account balances.
"Cardholder" means the person or entity to whom a Card is issued or who is authorized to use a Card.
"Chargeback" means the reversal of any Transaction pursuant to the Operating Rules for any reason.
"Data Compromise Event" means any event that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction information or Card Information.
"Discover" means Discover Financial Services, LLC or its successors or assigns.
"Guarantor" means each individual or entity who signed on the Guarantor signature line (including by electronic signature or otherwise electronically indicating acceptance of the terms) of the Merchant Application.
"Identifier" means the names, logos, trademarks, service marks, and other similar identifying marks, and advertising and promotional materials of the Payment Networks or Acquirer.
"Independent Referral Organization" means the Independent Sales Organization ("ISO") or referral partner referring you to Processor.
"Mastercard" means Mastercard International Incorporated or its successors or assigns.
"You" or "you" means the legal entity identified in the Merchant Application.
"Merchant Application" means the application, including all schedules, exhibits, attachments, and addenda, that you completed and signed (including by electronic signature or otherwise electronically indicating acceptance of the terms) and which is subsequently accepted by Acquirer, whether evidenced by their execution of this Agreement or by the processing of presented Transactions.
"Payment Network" means each of Visa, Mastercard, American Express, Discover, and any card network issuing credit or debit cards, and, for purposes of this Agreement, includes the Payment Card Industry Security Standards Council.
"PCI DSS" means the Payment Card Industry Data Security Standards.
"Processing Fees" means the fees and charges set forth on the pricing fee schedule that is part of the Merchant Application and this Agreement or any Addenda, as modified or amended from time to time, whether by the Payment Networks or by Acquirer pursuant to this Agreement, including, without limitation, by messages included on any processing statement or merchant portal.
"Reserve Fund" means funds placed in a non-segregated and non-interest bearing account established by the Acquirer to ensure payment of all obligations or anticipated obligations in accordance with this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks.
"Security Standards" means all rules, regulations, or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, PCI DSS, Visa's Cardholder Information Security Program and Payment Application Best Practices, Mastercard's Site Data Protection Program and POS Terminal Security Program, American Express's Data Security Operating Policy, Discover's Information Security & Compliance Program, and any successor rules, regulations or standards, in each case, as any of the same may be amended from time to time.
"Services" means those services provided by Acquirer, whether directly through its agents, Affiliates, Independent Referral Organizations, designated representatives, or third-party vendors, necessary and required to facilitate the authorization, processing, and settling of Transactions.
"Settlement Account" means the account maintained by you at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks.
"Transaction" means any interaction between the Cardholder and you, where a Cardholder uses a Card to purchase your goods or services and which results in activity on the Cardholder's account.
"Visa" means Visa Inc. or its successors or assigns.
2. Services
Subject to Applicable Law and the Operating Rules, Acquirer, whether directly or through its agents, Affiliates, Independent Referral Organizations, designated representatives, or third-party vendors, will provide the Services to you pursuant to the terms of this Agreement. You agree to abide by, and to use the Services in strict compliance with, Applicable Law, the Security Standards, and the Operating Rules.
Upon request, Processor may elect to provide Automated Clearing House ("ACH") processing services to you at the rates specified in the Merchant Application and under the terms set forth in this Agreement. To the extent you use ACH processing services, you agree to abide by the National Automated Clearing House Association ("NACHA") rules and regulations.
3. Your Representations and Responsibilities
At the time of signing the Merchant Application, and each time you submit a Transaction, you agree, represent, and warrant that:
The person signing the Merchant Application has full legal power and authority to enter into this Agreement;
Each statement made by you on the Merchant Application is true, except for changes previously disclosed to Acquirer in writing;
The Transaction is legal and genuine and arises from a bona fide sale of goods or services by you and is not a Transaction type which is prohibited by the Operating Rules;
You have shipped or delivered the goods, or performed the services, for the Transaction except as otherwise permitted by the Operating Rules, and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose;
The Transaction is not one that you know or should have known is fraudulent, unauthorized, the product of collusion between the Cardholder and you, or that is otherwise unlawful or impermissible under this Agreement, Applicable Law or the Operating Rules;
All information and data provided by you in connection with the Transaction is true, correct, and accurate;
You have taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder;
The Transaction is not subject to liens, encumbrances, disputes, set-off, or counterclaim;
The Transaction has not been previously submitted for processing (except as the same may be permitted under the Operating Rules);
You have not disbursed or advanced any cash to the Cardholder in connection with the Transaction (except as the same may be permitted under the Operating Rules);
The Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible;
The Transaction does not arise from the dishonor of a Cardholder's personal check;
You have the legal right to sell the goods and services purchased by Cardholder via the Transaction;
You have made no representation or agreement for the issuance of refunds except as stated in your refund policy; and
Any Transaction submitted to Processor to credit a Cardholder's account represents a refund for a Transaction previously submitted to Processor.
Acquirer reserves the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
Subject to Applicable Law, you agree to accept all categories of Visa and Mastercard Cards unless you have notified Processor on the Merchant Application, or otherwise notified Processor in writing of your election to limit such acceptance. Any limitations on acceptance must comply with Applicable Law and the Operating Rules. You must not engage in any practice that discriminates against or discourages the use of any Card in favor of another Card.
Except to the extent permitted by both Applicable Law and the Operating Rules and as authorized in writing by Processor, you must not (i) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a "surcharge" or "convenience fee"); or (ii) set minimum or maximum transaction amounts.
You must prominently display and disclose to Cardholders at all times (i) your Merchant name; and (iii) your physical address.
You must maintain a written refund policy and disclose it to Processor and all of your customers (including customers making purchases online by displaying such policy on the website). The refund policy and its disclosure must be consistent with Applicable Law and the Operating Rules. The amount of any refund must not exceed the original Transaction except to the extent you agree to reimburse a Cardholder for return shipping.
Subject to Applicable Law, the Operating Rules, and the Security Standards, you agree to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following each Transaction and to provide such records to Acquirer upon request.
4. Term; Termination
The term of this Agreement will be three (3) years (the “Initial Term”), commencing on the date this Agreement is accepted by Acquirer whether by signature or by the processing of presented Transactions. If you present, and Acquirer elects to process, Transactions beyond the conclusion of the Initial Term, then the terms of this Agreement will continue to govern the processing activity. After the Initial Term, this Agreement will continue unless terminated by either party upon sixty (60) days written notice.
In addition to any other termination rights, Acquirer may terminate this Agreement or any Addendum immediately, or may suspend Services or decline to process particular Transactions, with or without notice, if (a) you fail to strictly comply with any term of this Agreement; (b) Acquirer, in its sole discretion, determines that you or any affiliated entity or individual is violating the Operating Rules or Applicable Law or is engaging in fraudulent or deceptive conduct or other conduct creating a risk of harm or loss to Acquirer, its Affiliates, or the Payment Networks; (c) you, any guarantor, or any affiliated entity or individual becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings; (d) Acquirer deems you to be financially insecure; (e) you materially alter your business; (f) there is a material change in your processing activity, either from historical processing activity or the activity projected in the Merchant Application; (g) Acquirer receives direction from any Payment Network to terminate this Agreement; or (h) Acquirer, in its discretion, determines that circumstances otherwise warrant immediate termination or suspension. Acquirer may terminate this Agreement at any time upon fifteen (15) days' written notice.
In addition to any other termination rights, you may terminate this Agreement if Acquirer has failed to perform a material obligation in this Agreement and such failure has not been cured for thirty (30) days after you notify Acquirer in writing of such failure.
Except as expressly provided elsewhere in this Agreement, if this Agreement is terminated prior to the expiration of the then-current term, you must pay Processor a liquidated damages amount (the "Early Termination Fee"). The Early Termination Fee is the greater of $150, or an amount equal to the product of (a) the average monthly amount of fees and charges paid to Processor pursuant to this Agreement (excluding any fees or charges of the Payment Networks or other third parties passed through to you pursuant to this Agreement) over the six-month period immediately preceding the termination, your discontinuance of the use of the Services, or your breach of Section 5, whichever is earliest; multiplied by (b) the number of months remaining in the then-current term except to the extent prohibited by law (does not apply if you are located in Maryland; Early Termination Fee for Arkansas merchants is $50). You acknowledge and agree that the Early Termination Fee is not a penalty, but rather is a reasonable estimate of the damages caused by such early termination, which amount would otherwise be difficult to calculate with precision. The Early Termination Fee is in addition to, and not in lieu of, any other damages or sums to which Acquirer may be entitled unrelated to the early termination of this Agreement.
All your obligations with respect to Transactions processed under this Agreement will survive any termination, including, without limitation, the obligation to pay refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks.
5. Exclusivity
During the Initial Term or any Renewal Term, you must not receive services, or enter into an agreement to receive services, from any other entity similar to those Services that you have elected to receive from Processor without Processor's express written approval and consent.
6. Procedures for Transactions
You must submit authorized Transaction information to Processor for processing as soon as reasonably practical after receipt. You understand that failure to submit Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and you agree to pay any fees if assessed; and (b) compromise your ability to be paid for the Transaction(s).
You must not submit for processing: (a) any Transaction that does not involve you, or that does not originate from an interaction between you and a Cardholder intending to make a purchase from you; (b) any Transaction for which you do not receive an authorization code from Processor; (c) any transaction not authorized by a Cardholder, or any Transaction you do not reasonably believe to be authorized by a Cardholder; and (d) any Transaction that results in a transaction outside of your normal course of business as reflected on the Merchant Application. Acquirer reserves the right to refuse to process any Transaction if there is reason to believe that it has been submitted in violation of this subsection.
Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for you that aligns with your sales volume, as indicated on the Merchant Application.
7. Settlement
Bank is solely responsible for providing settlement funds directly to you for Transactions involving Cards except Cards issued by American Express. Services related to Transactions involving Cards issued by American Express are provided by American Express or Processor, without the involvement of Bank. Accordingly, Bank is not responsible for, and has no liability with respect to, American Express Transactions.
Except as elsewhere provided in this Agreement, after receiving funds for approved Transactions from any Payment Network, Bank will provisionally fund your Settlement Account, minus (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks; and (b) any amounts authorized to be retained under Sections 21 or 22 of this Agreement. Failure to subtract such amounts does not relieve you of liability or responsibility for the same, and you agree to pay all such amounts to Acquirer immediately upon receipt of invoice and without deduction or offset.
You must maintain a Settlement Account at a bank or depository institution acceptable to Acquirer for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks. You authorize Acquirer to initiate debit and credit entries to the Settlement Account through the ACH settlement process and agree that Acquirer may debit the Settlement Account for any amounts owed or to which Acquirer may otherwise be entitled for any reason. Such authorization must remain in place until the later of termination of this Agreement or your satisfaction of all obligations to Acquirer under this Agreement. You may change the Settlement Account only as provided in Section 20 of this Agreement. You must maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds, and you will be solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
You acknowledge and agree that Acquirer has no liability or responsibility for delays in the transmission of funds or your failure to receive funds where that delay or failure is in any way attributable to you or any third party, including third-party banks, depository institutions, or the Payment Networks.
Processor reserves the right to refuse to process any Transaction if Processor, in its sole discretion, believes that the Transaction may be uncollectible from the Cardholder, is likely to result in a Chargeback, or was presented in violation of the terms of this Agreement, Applicable Law, or the Operating Rules.
You acknowledge that all payments and credits provided to you are provisional and subject to suspension, revocation, Chargebacks, or other adjustments in accordance with this Agreement and the Operating Rules.
You acknowledge that interchange and other fees, charges, and assessments imposed by the Payment Networks are determined by the Payment Networks. Acquirer cannot guarantee any interchange rate and has no obligation to minimize or secure the lowest interchange rate, fees, charges, or assessments for any Transaction. You assume full liability for the difference between any applied interchange rate and the interchange rate projected or assumed by Processor at the time of any Transaction.
You may offer non-guaranteed foreign currency processing in which goods or services are priced in a foreign currency (typically the currency where the transaction is initiated) and settled in United States Dollars at a non-guaranteed exchange rate. The resulting rate of exchange may be volatile depending on foreign exchange rates and fees.
The debit network used to process debit Transactions will depend upon a number of factors, including Processor's business considerations and the availability of a particular network, and may not be the lowest cost network available.
8. Marks and Intellectual Property
You must display and use the Identifiers in accordance with the Operating Rules and any use or display guidelines of the Payment Networks. You must cease using any Identifier upon request from Acquirer or Payment Network. Processor may provide you with materials that include Processor's Identifiers. You must only use such materials as expressly permitted by Processor and must return materials to Processor upon the earlier of termination of this Agreement or upon Processor's request. You must use Identifiers as outlined in the materials, and must not alter, modify, relocate, remove, or individually use or display such Identifiers. Upon request of Processor or Payment Network, you must promptly provide samples of your use or display of the Identifiers. Any goodwill associated with the use or display of any Identifier by you inures to the benefit of such Identifier's owner.
You must not alter, modify, or create any derivatives of any Identifier at any time for any purpose. In addition, you must not use any Identifier in a manner that would result in the disparagement of, damage to, dilution (including quality or strength) of, tarnishment of, adverse reflection of, injury to, or otherwise adverse effect on, in any way, the Identifier, the goodwill associated with it or its use, or the reputation or goodwill of or associated with the Identifier or its owner. You must not at any time, represent, directly or by implication, that its goods or services are endorsed, sponsored, or guaranteed by Acquirer, or any Payment Network, including by the use or display of any of its Identifiers.
Acquirer owns and will continue to own, all computer programs, know-how, confidential information, and other technology and proprietary information and materials, and intellectual property rights (including Identifiers, patents, copyrights, trade secrets, and any other intellectual or industry property or proprietary rights) in, to, or related to the Services, including any refinements, modifications, derivative works of, improvements, or enhancements of any of the foregoing (whether or not made by or at the request of the you), and any of its other technology and proprietary information and materials, and intellectual property rights. Except as provided herein, this Agreement provides no other rights (including any ownership) in or to any technology and proprietary information or materials or intellectual property rights of any person or entity, including the Acquirer or the Payment Networks.
9. Data Security
You acknowledge your responsibility to abide, and agree to abide, by all Security Standards, including PCI DSS. You must provide proof of compliance to Acquirer, or any Payment Networks, as required or upon request, including, without limitation, by attestation or an examination of your systems to validate such compliance. The costs of any such attestation or examination are your sole responsibility.
Without in any way limiting the obligations imposed by the preceding paragraph, you must secure and keep confidential Cardholder information and Card Information in strict compliance with the Security Standards and Applicable Law, and must not use, disclose, or distribute such information for any purpose prohibited by the Security Standards or Applicable Law.
To the extent you use any third party to process, store, receive, transmit, or otherwise have access to Card Information, you assume full responsibility and liability for such third-party's compliance with this Agreement, the Security Standards, and Applicable Law. Acquirer has no liability for the acts or omissions of such third parties. You agree to notify Processor of the identity of all third parties and to ensure third parties are properly registered, if required, with the Payment Networks. Acquirer reserves the right to require third parties to undergo testing, approval, and certification by Acquirer, and to terminate third parties' access to or ability to integrate with Acquirer's systems at any time.
If you discover, or at any time have reason to suspect, that a Data Compromise Event has occurred, you must immediately notify Processor and fully cooperate, at its expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network, Processor, or Bank. If you are undergoing a forensic investigation at the time you sign the Merchant Application, you must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Rules is your exclusive responsibility.
You acknowledge that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on your systems or those of any third party referenced in Section 9.3 may result in liability assessments (sometimes referred to as "penalties" or "fines") by the Payment Networks, legal liability, and expenses (including consultant, examiner, and attorney fees). Without limiting your liabilities under any other provision of this Agreement, you agree to fully indemnify Processor and Bank, along with each of their officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, or any third parties associated with your actual or alleged failure to comply with the Security Standards or the occurrence of any Data Compromise Event.
In the event you operate a website capable of accepting Cards, you agree to maintain, display, and abide by a Cardholder data privacy policy.
Acquirer confirms that it will comply with all PCI DSS requirements to the extent that Acquirer handles, has access to, or otherwise stores, processes or transmits cardholder data or sensitive authentication data, or manages your cardholder data environment on your behalf.
10. Authorized Users
You are responsible for (i) ensuring that only authorized users may access Processor systems or portals; (ii) keeping all logins, user names, and passwords confidential; (iii) promptly notifying Processor of any unauthorized access of such logins, user names, or passwords; and (iv) all actions taken by anyone using such access, logins, user names, or passwords, even if you did not authorize those actions.
You are responsible for the acts and omissions of your employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Services.
11. Pricing and Payment
You agree to pay Processing Fees in the amounts specified in the fee schedule attached to the Merchant Application or Agreement, including any and all amendments to this Agreement.
You are responsible for payment of refunds, Chargebacks, Processing Fees, indemnified losses, and all other amounts payable to Acquirer, its Affiliates, or the Payment Networks related to or associated with your use of the Services, your Transactions, and your processing activity. Acquirer at any time, with or without notice, may collect such amounts (i) pursuant to Section 7 of this Agreement; (ii) by demanding immediate payment; (iii) by debiting the Settlement Account or the Reserve Fund; or (iv) by subtracting such amounts from future settlements.
The Processing Fees appearing on the Merchant Application are based upon assumptions regarding your anticipated volume, average transaction size, and method of doing business. If these assumptions prove materially inaccurate, Acquirer may adjust your Processing Fees without prior notice. Any such adjustments will be in addition to, and not in lieu of, any other remedies available to Acquirer under this Agreement.
Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or other third parties.
Acquirer may amend, revise, change, or supplement the Processing Fees by giving you fifteen (15) days' notice of any such amendment, revision, change, or supplementation; provided, however, that you may terminate this Agreement, without penalty or any obligation to pay the Early Termination Fee specified in Section 4.4, in response to such amendment, revision, change, or supplementation (not attributable to the Payment Networks or other third parties) by providing Processor with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation.
You are solely responsible for all communication expenses associated with your processing activity.
If you do not pay refunds, Chargebacks, Processing Fees, indemnified losses, or other amounts payable to Acquirer, its Affiliates, or the Payment Networks when due, such amounts will accrue interest at the lesser of 1.5% per month or the highest amount permitted by applicable law.
12. Taxes
You are solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of your goods or services. Unless you are otherwise exempt (and can prove such exemption to Acquirer's satisfaction), you agree to pay all taxes imposed on the services, equipment, or other property provided to you pursuant to this Agreement.
13. Chargebacks
You have full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with its Transactions.
If you have reason to dispute or respond to a Chargeback, then you must do so by the date provided on the applicable Chargeback notice. Acquirer has no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback.
If Acquirer, in its sole discretion, determines that you are experiencing excessive Chargebacks, then Acquirer may (i) with notice, increase the Processing Fees; (ii) without notice, establish or increase the Reserve Fund; (iii) without notice, suspend the Services; or (iv) without notice, terminate this Agreement.
You must not impose as a condition of Card acceptance any requirement that a Cardholder waive a right to dispute a transaction.
Acquirer may debit the amount of a Chargeback from the Settlement Account or Reserve Account. If the Chargeback remains unpaid due to unavailable funds or any other reason, Acquirer may debit any of your accounts or any other property held by Bank. You irrevocably authorize Acquirer to attach and initiate withdrawals of funds from your accounts at other financial institutions through any means available to pay Acquirer for unpaid Chargebacks.
14. Indemnification
You must indemnify, defend, and hold Processor and Bank, along with their respective agents, officers, directors, employees, and Affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys' fees) suffered or incurred by any of them arising out of or relating to: (i) your acts or omissions, or those of your employees, consultants, contractors, agents, officers, and directors, whether or not those acts or omissions were authorized by you; (ii) your Transactions or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (iii) your breach of this Agreement or violation of Applicable Law or Operating Rules; (iv) the state or configuration of your equipment, including, without limitation, your failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; (v) your use of third-party services or service providers, including gateways, value added resellers, and independent software vendors; (vi) any proceeding, litigation, or arbitration commenced by a third party arising out of or relating to any actual or alleged act or omission by you; or (vii) any demands, investigations, or subpoenas (or similar process) received related to you or your Transactions, whether initiated by regulators, law enforcement, civil litigants, or lienholders under the Uniform Commercial Code. Acquirer has the right to select and retain counsel of their choosing to represent them in connection with any of the foregoing events, and nothing in this Section entitles you to select counsel or assume the defense of any such matter.
15. Obligation to Report Statement Discrepancies
Processor will provide online processing statements to you through the merchant portal. Statements are deemed received the first day they are available online. You must notify Processor in writing, within thirty (30) days of receipt of a statement, of any problems, irregularities, underpayments or discrepancies of any kind found within that statement.
YOU ACKNOWLEDGE AND AGREE THAT PROCESSOR AND BANK IS NOT LIABLE OR OTHERWISE RESPONSIBLE TO YOU, AND HAS NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO PROCESSOR IN WRITING WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
You acknowledge and agree that you must reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct these amounts by ACH debit or other means from your Settlement Account or the Reserve Fund.
16. Limitation of Liability and Disclaimer of Warranties
UNDER NO CIRCUMSTANCES WILL THE AGGREGATE FINANCIAL RESPONSIBILITY OF PROCESSOR, BANK, OR THEIR AFFILIATES FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO PROCESSOR BY YOU FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION.
IN ANY EVENT, PROCESSOR, BANK, AND THEIR AFFILIATES' LIABILITY WILL NOT EXCEED THE LESSER OF $10,000, OR THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO PROCESSOR PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
FOR PURPOSES OF THIS SECTION 16, FEES OR CHARGES OF THE PAYMENT NETWORKS OR OTHER THIRD PARTIES PASSED THROUGH TO CUSTOMER PURSUANT TO THIS AGREEMENT WILL NOT BE INCLUDED IN THE CALCULATION OF FEES AND CHARGES PAID TO PROCESSOR.
IN NO EVENT WILL PROCESSOR OR BANK, OR THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY YOU OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, NEITHER PROCESSOR NOR BANK WILL BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
ACQUIRER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, TECHNOLOGY OR PROPRIETARY INFORMATION AND MATERIALS, OR THE IDENTIFIERS OR ASSOCIATED RIGHTS, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE.
ACQUIRER DOES NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; OR (C) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS.
17. Underwriting, Monitoring, and Auditing Rights
You, your principals and beneficial owners, acknowledge and agree that Acquirer may request and obtain external reports, including credit reports from credit reporting agencies, or conduct other screening under applicable laws including the USA PATRIOT ACT in connection with the consideration of the Merchant Application or at any time. You acknowledge that your Merchant Application may be rejected by Acquirer and Acquirer is not liable for that rejection.
You agree to promptly furnish Acquirer with documents reasonably necessary to evaluate your financial condition and business practices upon request. With notice and during your normal business hours, Acquirer's representatives may visit your business premises to examine your operations, activities, or books and records to the extent necessary to evaluate your compliance with this Agreement.
You agree to provide Processor advance written notice of any actual or anticipated (i) material change in your products or services, business practices, or the manner in which you accept Cards; (ii) change to your legal name, trade name, or mailing address; or (iii) changes to anticipated Transaction amounts or volume.
18. Reporting
You acknowledge that, under the Operating Rules of the Payment Networks, certain merchant activity and terminations of merchant processing agreements may result in Acquirer reporting merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the "MATCH" list). You, on behalf of yourself and your principals, consent to this reporting and waive any claim related to the same, even in instances where you or your principals believe that reporting to have been improper or in error.
19. Relationship of the Parties
You designate Acquirer as its agent to receive payments for Transactions processed pursuant to this Agreement. Neither Processor nor Bank, however, will be considered a partner or fiduciary to you, and nothing in this Agreement or the rendition of Services related to this Agreement is intended to create a joint venture, partnership, or fiduciary relationship between or among the parties. Rather, the relationship among the parties to this Agreement is an arm's length commercial relationship.
20. Updates to Settlement Account
If you intend to change your Settlement Account, you must give no fewer than thirty (30) days' prior written notice to Processor and execute any forms required by Processor in connection with the change. Failure to provide the notice or the applicable executed forms required in this Section may result in the inability of Acquirer to settle Transaction proceeds to you and may result in the misdirection or loss of the same. You will bear sole responsibility for any loss and will have no right of recovery against Acquirer associated with any such misdirection or loss.
21. Reserve Account and Security Interest
Acquirer may at any time, whether at the inception of this Agreement or any time after its execution (including at the time of termination of this Agreement), require the establishment of a Reserve Fund to satisfy your current or anticipated obligations, including, without limitation, your obligations with respect to refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks. At any time during the term of this Agreement or at its termination, Acquirer may increase the amount of the Reserve Fund. All decisions relating to whether to establish, set the amount of, or increase the Reserve Fund will be at the sole discretion of Acquirer.
The Reserve Fund may be funded by (i) debiting the amount of Transactions that would otherwise be payable to you under this Agreement; (ii) demanding funds from you; or (iii) debiting the Settlement Account. You must transfer funds within one (1) business day of the receipt of Acquirer's demand for funds under this section.
The Reserve Fund may be used at any time to satisfy your obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer, its Affiliates, or the Payment Networks.
Acquirer may continue to hold the Reserve Fund until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on your account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determine is necessary to satisfy your current or anticipated obligations under this Agreement, the Operating Rules, or Applicable Law.
Until the expiration of the period referenced in the preceding subsection, you will have no ownership interest in or right to the Reserve Fund. Rather, the Reserve Fund will be the exclusive property of Acquirer. You will have no right to receive interest on any funds maintained in the Reserve Fund, which will be the exclusive property of Acquirer.
21.6
Without in any way limiting the foregoing, and merely as an additional form of security, you hereby grant Acquirer a security interest in (a) the Reserve Fund; and (b) the proceeds associated with any Transaction. Acquirer may enforce its security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until you satisfy all your obligations to Acquirer. You agree to execute and deliver to Acquirer such instruments and documents as Acquirer may reasonably request to confirm and perfect the security interest(s) granted by this Agreement.
21.7
You agree that your signature on the Merchant Application will be considered an agreement to any control agreement as defined in Article 9 of the Uniform Commercial Code among you and Acquirer.
22. Holdback Rights
Acquirer may without notice, hold funds otherwise payable to you for any period that Acquirer, in its commercially reasonable discretion, determines is necessary to provide security against liability or costs as a result of your unusual, suspicious, or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, or excessive Chargebacks. To the extent (i) the investigation conducted by Acquirer with respect to the unusual, suspicious, or risk-exposing activity determines that such activity is reasonably likely to result in amounts being due from you to Acquirer, and (ii) Acquirer requires the establishment, replenishment, or increase of a Reserve Fund, then the funds held pursuant to this Section 22 may be used to fund the Reserve Fund.
23. Equipment
Acquirer makes no representations or warranties regarding the compatibility of third-party products and services with their respective systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer's systems, you understand that a separate agreement may be required with the third-party provider in order to obtain software, services, or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
You are responsible for any fines, penalties, claims, demands, or new or increased fees (including interchange) that result from your (a) use of value added reseller, independent software vendor, gateway, point of sale systems, or any other software, hardware, or service not provided by Acquirer; (b) failure to maintain the most current version of software that has been certified by Acquirer as being compatible with the their respective systems; or (c) misuse of software that has been certified as compatible with the Acquirer's systems.
To the extent that you elect to purchase, lease, or use processing equipment from Acquirer, its Affiliates, or Independent Referral Organizations, you agree to pay Acquirer the stated purchase price or lease amounts, along with all applicable taxes and shipping costs, and agrees that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to your Settlement Account.
23.4
Equipment provided by Acquirer, its Affiliates, or Independent Referral Organizations may only be used for purposes of this Agreement and the receipt of Services pursuant to this Agreement.
24. Confidentiality and Use of Data
You must use Card Information for the sole purpose of receiving Services under this Agreement. Under no circumstances will you sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
Except in response to a validly served subpoena, you must not provide Card Information to anyone except Acquirer, Payment Networks, or your agents that have been approved by Acquirer and are properly registered with Payment Networks for purposes of assisting you in completing Transactions. Should you receive a subpoena that encompasses Card Information, you must notify Processor in writing of your receipt of such a subpoena as soon as practicable.
You agree to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information; or (d) any other non-public information regarding any aspect of Acquirer's business made available to you under the auspices of this Agreement ("Acquirer Confidential Information"). Acquirer Confidential Information includes, but is not limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing or business development plans, technical information, personnel information, and trade secrets.
Should you receive any Acquirer Confidential Information belonging to Acquirer, you agree to protect such confidential information equally to your own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. You agree to return to Acquirer any confidential information respectively belonging to those entities either upon the termination of this Agreement for any reason, or upon earlier request from Acquirer.
You must keep confidential your merchant identification ("MID"), which is assigned to facilitate the provisions of Services to you under this Agreement. As a security measure, you may be requested to identify yourself by your MID when contacting Processor. Any person correctly identifying your MID will be presumed by Processor to have authority to make changes to your account. You will be solely liable for any damages you sustain as a result of the disclosure of your MID to any unauthorized persons.
To the extent permitted by Applicable Law and the Operating Rules, you authorize Acquirer to disclose information regarding you to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. You authorize Acquirer to disclose Card Information, Transaction information, and your information to the Payment Networks. You authorize Acquirer to provide information about you in response to requests for such information from any government body or regulatory authority.
Notwithstanding anything else in this Agreement, and without otherwise limiting Acquirer's use of such information, all Card Information, information related to Transactions or Cardholders, and information related to you, may be used by the Payment Networks, Acquirer and its Affiliates and designees: (i) to provide Services; (ii) for administrative and monitoring purposes; (iii) to enhance or improve Acquirer's products or services; (iv) in the course of any sale or reorganization of Acquirer's business; (v) to comply with Applicable Laws; and (vi) for disclosure to credit reporting agencies and other financial institutions.
25. Amendments and Waiver
Acquirer may amend, revise, change, or supplement this Agreement by giving you fifteen (15) days' notice of any such amendment, revision, change, or supplementation; provided, however, that you may terminate this Agreement, without penalty or any obligation to pay the Early Termination Fee specified in Section 4.4, in response to such amendment, revision, change, or supplementation (not attributable to changes to the Operating Rules or Applicable Law) by providing Processor with written notice between the date of receiving notice of the amendment, revision, change, or supplementation and the effective date of such amendment, revision, change, or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Rules or Applicable Law may be made on less than fifteen (15) days' notice and is not ground for termination of this Agreement.
Acquirer will not be deemed to have waived any provision of this Agreement by failing to promptly enforce the same, and no waiver of any provision of this Agreement on one occasion constitutes a waiver of any other provision of this Agreement or the same provision on any other occasion.
26. Notices; Electronic Notice
Unless otherwise specified in this Agreement, all notices under this Agreement to either Bank or Processor must be in writing and delivered via hand delivery, a carrier that provides a tracking number and/or other proof of delivery, or by electronic mail if an electronic mail address is designated. Notices to the Bank or the Processor must be sent to the addresses respectively designated on this Agreement for those entities and is effective upon receipt. Bank or Processor may provide you with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Merchant Application (or such other address as you may provide), including by statement messages appearing on any processing statement; (b) electronically, through the you portal, through electronically available processing statement(s), or through any other means of electronic communication maintained by Bank or Processor which you may access; or (c) electronically, via any email address designated by you. You expressly consent to receive documents and notices electronically and agree to maintain access to the Internet for so long as this Agreement is in effect.
For notice to Processor, you may contact Qualpay in writing by notice to:
legal@qualpay.comFor notice to Bank, you may contact Synovus Bank in writing by notice to: Synovus Bank, 1125 First Avenue, Columbus, GA 31901
27. Choice of Law and Venue; Time and Procedure for Assertion of Claims
All disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation, or enforceability of the choice of law and venue provisions of this Agreement is governed by and construed in accordance with the laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Georgia.
Without in any way limiting Section 29 (Arbitration), with respect to any action arising out of, relating to, or in connection with this Agreement, you and all individuals executing this Agreement in any capacity consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in Atlanta, Georgia or Fulton County, Georgia.
Each party agrees to provide the other prompt notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties agree to engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, upon either party's election, the parties will participate in non-binding mediation before a mutually agreed mediator. Any controversy, claim, or dispute that is not resolved through the procedures set forth above within sixty (60) days following the initial notice (or such longer period as the parties may agree) will be resolved pursuant to arbitration pursuant to Section 29 of this Agreement.Neither party may bring a claim more than three (3) years after the underlying cause of action first accrues.
Neither party may bring a claim more than three (3) years after the underlying cause of action first accrues.
28. Attorneys' Fees
You agree to reimburse Acquirer for all attorneys' fees or other costs incurred by Acquirer in enforcing any provision of this Agreement against you, or in obtaining any sums due under this Agreement from you, regardless of whether Acquirer incurred those fees in connection with a court proceeding, private dispute resolution, or outside a formal dispute resolution proceeding.
29. Arbitration
ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. Nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief. This Section 29, and the obligation to arbitrate, will not apply to claims for misuse or infringement of a party's intellectual property or confidential information.
The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in Atlanta, Georgia (although, for the convenience of the you or guarantor (as applicable), any party or its counsel may participate telephonically); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties' desire to keep proceedings cost-effective and efficient; and (iii) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided that for claims equal to or less than $25,000, you and guarantor (if applicable) will not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the Superior Court of Fulton County, Georgia at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) will have no authority to award non-monetary or equitable relief or to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement, nor will he, she, or they have authority to award sanctions of any type. The arbitrator(s) will not issue a reasoned opinion for any award unless such award is greater than $250,000. Any decision rendered in such arbitration proceedings will be final and binding on each of the parties to the arbitration and judgment may be entered in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with applicable law. If any part of this Section 29 is found invalid or unenforceable, the other parts of this Section 29 will still apply.
YOU AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE RESOLVED ON AN INDIVIDUAL BASIS AND WILL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. YOU AND GUARANTOR (IF APPLICABLE) AGREE TO WAIVE, AND ARE WAVING, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE BASIS.
30. Continuing Guaranty
As a key inducement for Acquirer to enter into this Agreement, the Guarantor(s) agree to be bound by all the terms and provisions of this Agreement the same as you. Guarantor understands that this Agreement may be renewed, extended, or modified from time to time (including with regard to fees and to your payment obligations) without notice to Guarantor, even if the modifications and/or extensions increase Guarantor(s)' obligations under this Agreement. Guarantor(s), individually and severally, also unconditionally and personally guarantee your full performance of your obligations under this Agreement. Guarantor(s) understand and agree that the Acquirer may proceed directly against Guarantor(s) without first exhausting remedies available against you. Moreover, in the event Guarantor(s) is or are natural person(s), this guaranty is continuing and will survive the death of Guarantor(s) and be binding on Guarantor(s)' heirs and estate, without any diminution of the rights of Acquirer with respect to the guaranty. To the fullest extent permitted by law, Guarantor(s) waive all rights and defenses available to Guarantor(s) respecting the Bank or Processor's enforcement of this guaranty. Without limiting any of the foregoing, each Guarantor agrees that his or her liability under this guaranty will not be limited or canceled because: (i) the Agreement cannot be enforced against you; (ii) Acquirer makes or agrees to changes or modifications to the Agreement; (iii) Acquirer releases any other Guarantor you from any obligation under the Agreement; (iv) a law regulation or order of any public authority affects the rights of Acquirer under the Agreement; or (v) anything else happens that may affect the rights of Acquirer against you or any other Guarantor. Each Guarantor agrees that: (vi) Acquirer may delay enforcing any of its rights under this guaranty without losing such rights; (vii) Acquirer can demand payment from such Guarantor without first seeking payment from you or any other Guarantor; and (viii) such Guarantor will pay all court costs, attorney's fees, and collection costs incurred by Acquirer in connection with the enforcement of any terms of the Agreement or this guaranty, whether or not there is a lawsuit, and such additional fees and costs as may be directed by a court.
31. Remedies Cumulative
The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative.
32. Assignment; Successor Responsibility
The Bank may assign this Agreement without your consent. Processor may assign this Agreement to another transaction processor approved by Bank. You may not assign this Agreement without the express written consent of Bank and Processor, nor may you assign any right to payments to which you may be entitled under this Agreement. For purposes of this Agreement, it will be deemed an assignment by you of this Agreement to effectuate any sale or transfer of the equity interests of your business such that the equity holders listed in the Merchant Application collectively hold less than 50% of the equity interests after such sale or transfer. This Agreement is binding on each party's successor(s) and permitted assigns.
33. No Third-Party Beneficiaries
The Payment Networks, Affiliates and Independent Referral Organizations of Acquirer are third-party beneficiaries to this Agreement, meaning that, while they have no obligations under this Agreement, they have the right, within their discretion, to enforce of the terms of this Agreement (including, without limitation, with respect to the Operating Rules) directly against you. Except as specified in the preceding sentence, there are no third-party beneficiaries to this Agreement, which is solely for the benefit of you and Acquirer.
34. Force Majeure
Acquirer is not liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, pandemics, governmental actions, strikes, telecommunications failures, equipment failures, network failures, or other causes beyond Acquirer's reasonable control.
35. Entire Agreement; Severability
This Agreement constitutes the complete and final agreement between the parties and supersedes all prior oral or written agreements. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by you and Processor. If any provision of this Agreement is deemed unlawful or unenforceable, then it will be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of the Agreement, which will continue in full force and effect.
36. Survival
Termination of this Agreement will not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive or be perpetual or irrevocable. Such provisions, include, without limitation, Sections 2, 3.6, 4.4, 4.5, 7.4, 7.6, 8 through 10, 11.2, 11.7, 12 through 16, 18 through 31, and 33 through 36, will survive the expiration or termination of this Agreement.
37. Electronic Signature
This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. A signature or other indication of acceptance received electronically will be legally binding for all purposes and equally effective as a wet ink signature.
38. Special Provisions Related to American Express
In addition to the remaining terms of this Agreement, you agree to the following terms and conditions in connection with your participation in the American Express Card Acceptance (“Program”) (capitalized terms below not defined elsewhere in the Agreement have the meanings assigned by American Express).
Terms. With respect to participation in the Program, in the event of a conflict between the terms below and other terms of this Agreement, the terms below control with respect to the Program:
You acknowledge that any request to accept American Express Cards is subject to approval by American Express. If approved, you authorize Processor to submit American Express Transactions to, and receive settlement from, American Express on your behalf.
You agree to have a refund policy for purchases on American Express Cards that is at least as favorable as your refund policy for purchases on any other Payment Products. Refund policies must be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.
You may opt out of accepting American Express Cards at any time without penalty and without directly or indirectly affecting your rights to accept other Payment Products.
Upon termination of this Agreement or your participation in the Program, you agree to cease all use of, and remove American Express Licensed Marks from your website and wherever else they are displayed.
You agree that American Express may use information obtained in the Merchant Application to screen and/or monitor you in connection with American Express Card marketing and administrative purposes.
You agree that Processor may collect and disclose Transaction Data, Merchant Data, and other information about you with American Express; and American Express may use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes, and important transactional or relationship communications from American Express.
You acknowledge and agree that you may be converted from the Program to a direct American Express Card acceptance relationship with American Express if and when you becomes a “High CV Merchant,” i.e., a merchant with either (i) greater than $1 million in American Express Card Transaction volume (including volume from all your locations) in a rolling twelve (12) month period or (ii) greater than $100,000 in American Express Card Transaction volume (including all volume from all your locations) in any three (3) consecutive months. Upon such conversion, you acknowledge and agree that (i) you are bound by American Express’s then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by you for American Express Card acceptance.
You acknowledge and agree that you must comply with the American Express Merchant Operating Guide, which is incorporated herein by reference and may be amended from time to time: www.americanexpress.com/merchantopguide.
You may opt-out of receiving future commercial marketing communications from American Express by contacting Processor. Note that you 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 you from receiving important transactional or relationship messages from American Express.
You may not assign to any third party any payments due to you under this Agreement, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at your Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, you may sell and assign future Transaction receivables to Processor, its affiliated entities and/or any other cash advance funding source that partners with Processor or its affiliated entities, without consent of American Express.
You agree that American Express has the rights, but not the obligation, to this Agreement to enforce the terms of this Agreement against you in regard to the Program.
Processor may terminate your right to accept American Express Cards if you breach any provision of this Agreement or the American Express Merchant Operating Guide. Processor may immediately terminate your participation in the Program for cause or other activity or upon request from American Express.
You are prohibited against billing or collecting from any Cardholder for any purchase or payment on the Card unless a Chargeback has been exercised, you have fully paid for such Charge, and you otherwise have the right to do so.
You must comply with all Applicable Laws, rules, and regulations related to the conduct of your business.
You must comply with the American Express Data Security Requirement (“DSR”) and Payment Card Industry Data Security Standard.
You must report all instances of a Data Compromise Event immediately to Processor after discovery of such.
You must ensure data quality and that Transaction Data and customer information is processed promptly, accurately and completely, and complies with the American Express Technical Specifications.
You are responsible for being aware of and adhering to privacy and data protection laws and providing specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.
Definitions. Capitalized terms used in these American Express Terms and not defined in this Section 2 or in the Merchant Card Processing Agreement have the meanings ascribed to them by American Express.
“American Express Card” means any card, account access device, or payment device bearing American Express Marks or its Affiliates’ Marks, including any card or other account access device issued by a third party.
“American Express Merchant Operating Guide” means the then-current merchant operating guide published by American Express, which is currently available at
www.americanexpress.com/merchantopguide.
“American Express Technical Specifications” means the set of mandatory, conditional, and optional requirements related to connectivity to the network and electronic Transaction processing, including authorization and submission of Transactions (sometimes called “specifications” in American Express materials), which American Express may update from time to time.
“Charge” means a payment or purchase made on the American Express Card.
ACH Services Addendum
Terms and Conditions
This ACH Services Addendum govern your access to and use of the ACH processing services and other ancillary services outlined in this Addendum (the “ACH Processing Services”).
General. If you choose to accept ACH payments, and Processor approves your application to do so, Processor will provide the ACH Processing Services to you to enable you to originate Entries and accept payments through the ACH network. Processor agrees to send transactions through an ODFI of its choice in accordance with the ACH Processing Services Terms, the NACHA Rules, and Applicable Law governing ACH transactions.
WEB Entry. You agree to comply with the NACHA Rules applicable to WEB Entries, including the requirement to: (a) authenticating your Customer before accessing your website for purposes of initiating the WEB transaction, and (b) displaying the appropriate authorization language and enabling the ability to print out a receipt documenting all aspects of the WEB Entry to properly inform Customers that the Customer is initiating an electronic debit from the Customer’s bank account to credit your bank account. Upon Processor’s request, you will provide copies of screenshots of your website documenting compliance with this section. You agree to make changes to your website when requested by Processor as necessary to comply with NACHA Rules and Applicable Law.
TEL Entry. You agree to comply with the NACHA Rules applicable to TEL Entries, including the authorization requirements (a) for single or one-time TEL Entries by either recording the telephone conversation with the Customer or by sending a confirmation letter to its customer; and (b) for recurring TEL Entries by recording the telephone conversation with the customer and by sending a confirmation letter to the Customer.
PPD Entry. You agree to comply with the NACHA Rules applicable to PPD Entries, including by requiring your Customers to execute a written agreement that includes the authorization language required under the NACHA Rules.
Merchant Obligations.
Obtaining Authorizations. You will obtain a proper form of authorization for each Customer prior to originating any ACH debit Entry for goods or services or if you intend to charge the state’s allowable NSF processing fees.
Security Safeguards. You agree that you will employ and use commercially available protective software programs to safeguard your computer systems from attack or misuse via malicious software, viruses, bugs, spyware, adware, key loggers, and the like. You agree that you will utilize and maintain such programs on all of its computer hardware to which any check scanners are attached, or from which the ACH Processing Services are accessed.
Submitting Entries. During the term of the ACH Processing Services Terms you are authorized to use Processor’s systems to process or transmit Entries to Processor. The use of any of such systems is solely at your own risk.
Restricted Entries. You will not use the ACH Processing Services to initiate intra-merchant or merchant-to-related-merchant funds transfers. Such activity may result in immediate suspension or termination of the ACH Processing Services. Processor may modify, supplement, or replace any restrictions applicable to the initiation of Entries through the ACH Processing Services.
Transaction Processing Limits. You must comply with any transaction processing limits imposed by Processor. If you fail to comply with those limits, Processor may invalidate or refuse to process any Entries that exceed the transaction processing limitations and will provide you with notice of any such invalidated or unprocessed Entries.
Audit and Compliance. You will implement and maintain policies and procedures to enable its compliance with the ACH Processing Services Terms, the NACHA Rules, and Applicable Law. You will comply with Processor’s record retention and signature authorization requirements. Processor has the right to audit you to verify your compliance with this section at your expense.
NACHA Fines. You understand that a violation of any NACHA Rules may result in fines and you will be solely responsible for the payment of those fines.
Information Provided to Processor. You are responsible and liable for the accuracy, completeness, authenticity, and validity of all bank account numbers and other information you provide in connection with the ACH Processing Services and you agree that Processor may rely on all such information and data without further inquiry into the accuracy, completeness, authenticity, or validity of such information or data.
Processor Responsibilities.
Debit Authorization. You authorize Processor to initiate debit and/or credit Entries to your bank account in accordance with the ACH Processing Services Terms for settlement of Entries you originate. Processor’s authority to initiate debits or credits for Entries will remain in full force and effect until all your obligations to Processor have been paid in full, including any outstanding liabilities related to Entries. You understand and agree that you bear full liability to reimburse Processor for any fraudulent transactions processed by or returned to Processor on your behalf.
Submitting Entries. You acknowledge and agree that the standard ACH clearing times will apply to Entries initiated in connection with the ACH Processing Services. Processor and/or the ODFI may update clearing times from time to time. You acknowledge and agree that Processor and the ODFI do not have any control over the actions or omissions of other financial institutions or third parties that could delay the ACH Processing Services, and neither Processor nor the ODFI will be responsible or liable for any assessments, fines, penalties, costs, and expenses arising out of or relating to any additional time needed to effectuate Entries in connection with the ACH Processing Services, including in the event that time is needed to verify identities or required to meet or satisfy requirements of Applicable Law or NACHA Rules. Without limiting the foregoing, neither Processor nor any ODFI makes any warranty or guarantee that a requested Entry will occur within any given time and Processor hereby expressly disclaims any such warranty or guarantee.
Accepting Transactions. Processor is responsible for accepting and processing only those Entries that have been received in a proper format and on a timely basis.
Rejected Entries. You agree that Processor and the ODFI will have no obligation to accept Entries and, therefore, may reject any Entry for any reason permitted or required under the NACHA Rules. You also understand that an Entry may be rejected by Processor or delayed if Processor reasonably believes the Entry would cause Processor to violate the NACHA Rules or Applicable Law. Neither Processor nor the ODFI will have any responsibility or liability to you for any rejection of any Entry and will not be responsible or liable to you for any amounts, including any interest, in connection with the rejection of any Entry. At Merchant’s request, Processor will make reasonable efforts to reverse or delete an Entry, but Processor will have no responsibility for the failure of Processor or any other person or entity to comply with your request.
Returned Entries and Notification of Change. Processor will apply returned Entries to your account within the time period required by the NACHA Rules. Returns will be processed and made available through Processor’s website or by other means agreed by the parties. Processor will make NOC information from the ACH system available to you, and you agree to incorporate such information into its systems for any future transaction processing. You acknowledge that you are subject to specific responsibilities, standards, and other requirements in connection with returned Entries, return rates, and return rate levels, including requirements for reporting, complying with return rate levels, and taking action to lower return rates within and for certain periods of time, and you agree to comply with all such specific responsibilities, standards, and other requirements, to enable Processor’s compliance with the NACHA Rules with respect to such responsibilities, standards, and other requirements, and to otherwise fully cooperate with Processor in taking such other action as may be reasonably required or requested by Processor.
Settlement and Finality. Processor will settle all Entries after the pre-established hold period normally five (5) business days from the date the Entries are initially transmitted to the ACH network and Processor’s ODFI or on a schedule otherwise agreed to by the parties. Return Entries not honored by Customer’s bank will be debited from your Settlement Account. In the event there are not sufficient funds in the Settlement Account to cover your obligations under this Agreement, you agree to pay Processor the amount of the deficiency on demand in immediately available funds. Processor may, as a last resort, hold or net settle any then-current Entries and/or debit any account maintained by Merchant to recover returned Entries. Any Credit Entries that you create will be debited from your Settlement Account in accordance with the hold period prior to the credit being distributed to Merchant payee’s accounts. In the event the Debit Entry is returned for any reason, the Credit Entries will be canceled due to the unavailability of funds. Your Settlement Account will be credited after an agreed to hold period, which provides sufficient time for as many returns to be received by Processor as possible before settlement. Processor may delay, change, amend the hold period on the settlement of funds to you, as it deems in is best interest.
Reports. You agree to provide detailed reporting of all funds transfers collected as a result of any Entries. Monthly transaction reports will be provided to you through Processor’s merchant portal.
Representations and Warranties. With respect to each Entry initiated by Merchant, Merchant hereby represents and warrants to Processor that:
The Entry is permitted under this Agreement.
The Entry complies with Applicable Law and the NACHA Rules.
You have not revoked its authorization for the Entry, has not terminated the origination agreements applicable to the Entry, and the Receiver’s authorization has not been revoked and, to the best of your knowledge, the agreement between the Receiving Depository Financial Institution and the Customer applicable to the Entry has not been terminated.
At the time the Entry is processed by the Receiving Depository Financial Institution, the authorization for the Entry has not been terminated, in whole or in part, by operation of law.
All banking information for the Entry is transmitted in compliance with the requirements of the NACHA Rules.
The payment of the Entry by the Receiving Depository Financial Institution to the Receiver will be provisional until receipt by the Receiving Depository Financial Institution of final settlement for the Entry.
Any and all non-public personal information provided by you in connection with the Entry will be secure and will not be disclosed to any unauthorized person. You will not disclose a Receiver’s account or routing number to any third party for such third party’s use, directly or indirectly, in initiating a separate debit Entry.
The Entry contains the Customer’s correct account number and all other information necessary to enable the Receiving Depository Financial Institution to comply with the applicable provisions of the NACHA Rules with respect to the Entry, except for information within the purview of the Receiving Depository Financial Institutions’ relationship with the Customer, and all information transmitted with the Entry is related to the payment represented by the Entry.
The Entry is for an amount agreed to by the Customer.
7.10
Each Customer has authorized the collection of any NSF fees, if applicable.
7.11
Each credit Entry is timely.
7.12
Each debit Entry is (a) for an amount that will be due and owing to you from the Customer on the settlement date of such Entry, (b) for a sum specified by the Receiver to be paid to you, (iii) to correct a previous credit Entry that was an erroneous Entry, or (iv) to reclaim from the Receiving Depository Financial Institution an amount received by a recipient following the death or legal incapacity of the recipient or the death of a beneficiary; and your access to and use of the ACH Processing Services has not been suspended.
Modifications. Subject to Applicable Law and the NACHA Rules, Processor may modify, supplement, or replace all or any part of the ACH Processing Services Terms from time to time upon notice to you, and your continued access to and use of the ACH Processing Services following the effective date of such modification, supplement, or replacement will constitute your acceptance of ACH Processing Services Terms as the same has been modified, supplemented, or replaced by Processor.
Survival. Sections 6.6, 7.4, 7.5, 7.6 and 8 of the ACH Processing Services Terms will survive termination or expiration of this Agreement.
Definitions. Capitalized terms used in the ACH Processing Services Terms and not defined in this Section have the meanings set forth in the Merchant Processing Agreement.
“Customer” means Receiver as set forth in the NACHA Rules.
“Entry” has the meaning set forth in the NACHA Rules.
“NACHA Rules” means the rules and regulations adopted by NACHA applicable to processing ACH transactions, as such rules and regulations are amended from time to time in accordance with the terms thereof.
“Notification of Change” or “NOC” has the meaning set forth in the NACHA Rules.
“NSF” means insufficient funds.
“Customer” means Rece“Originating Depository Financial Institution” or “ODFI” has the meaning set forth in the NACHA Rules.iver as set forth in the NACHA Rules.
“Originator” has the meaning set forth in the NACHA Rules.
“POP Entry” has the meaning set forth in the NACHA Rules.
“PPD Entry” has the meaning set forth in the NACHA Rules.
“Receiver” has the meaning set forth in the NACHA Rules.
“Receiving Depository Financial Institution” or “RDFI” has the meaning set forth in the NACHA Rules.
“TEL Entry” has the meaning set forth in the NACHA Rules.
“WEB Entry” has the meaning set forth in the NACHA Rules.
