|
acknowledges and understands that POS Equipment may be supplied to Merchant that is
<br />the property of Processor and is being provided to Merchant for free use subject to the
<br />following conditions and requirements:
<br />(i) Merchant shall be liable for a $495 fee for non -return of Processor
<br />supplied POS Equipment if Meacham terminates or ceases processing under the terms of this
<br />Agreement before the expiration of the initial or renewal term of this Merchant Agreement
<br />and fails to return the POS Equipment within ten days of termination or of ceasing
<br />processing.
<br />(if) Merchant shall be liable for a $450 fee for non -return of Encryption
<br />Exchange POS Equipment if applicable;
<br />(iii) Merchant will be liable for any damages to the POS Equipment from
<br />the misuse or negligent use or handling of the POS Equipment;
<br />(iv) Merchant will be liable for any reasonable monthly fee as determined
<br />by Processor for paper or other supplies provided by Processor for use with the POS
<br />Equipment; and
<br />(v) Processor, at its absolute and sole discretion, may allow for one
<br />terminal exchange at no charge, but may charge additional fees for subsequent exchanges.
<br />(c) All Processor and third party POS Equipment and services provided or
<br />procured by Processor under this Merchant Agreement are provided "AS -IS," Processor
<br />makes no warranty as to this POS Equipment's fitness for any particular purpose (or any
<br />other Warranty) and disclaims any liability maturing fiem the POS Equipment or Merchant's
<br />use of the POS Equipment.
<br />(d) Merchant acknowledges that Processor or a third parry is supplying the POS
<br />Equipment and that Member Bank shall have no responsibility or liability for the POS
<br />Equipment supplied to. Merchant.
<br />(e) Merchant will use only the forms for Transactions and electronic processing
<br />formats provided or approved In advance by Processor. Processor may change the forms
<br />from time to time, and, upon notification, Merchant will comply with any changes. Merchant
<br />will use Transaction forms or materials provided by Processor only for Transactions which
<br />Merchant submits to Processor.
<br />(f) Merchant may not (i) indicate or imply that the Card Associations, Processor
<br />or Member Bank endorses any Merchant goods or services, (it) refer to a Card Association,
<br />Processor or Member Bankin stating eligibility for Merchant's products, services or
<br />membership, or (iii) use any marks, symbols or logos owned by any Card Association,
<br />Processor or Member Bank for any purpose other than those permitted in the Operating
<br />Rules, provided that any use of Processor's or Member Bank's marks, symbols or logos shall
<br />be in accordance with and subject to any bonding guidelines provided by Processor and
<br />Member Bank. Merchant acknowledges that Member Bank and Processor shall remain the
<br />sole and exclusive owners of their respective intellectual property and Confidential
<br />Information (defined below). Except to the extent expressly provided herein, no rights to
<br />Processor's or Member Bank's intellectual property or Confidential Information are granted
<br />hereunder, and all rights therein are expressly reserved.
<br />3.7 Eurupay/Mastorcur iNhal (4EMVf1) Chip Card Compliance. Merchant agrees that
<br />if Merchant does not use POS Equipment that has been certified EMV chip card compliant
<br />and enabled or when a lost or stolen chip and PIN card is used at an EMV enabled terminal
<br />capable of processing chip and signature only, Merchant may be liable for payment of any
<br />transactions submitted for chargeback by the applicable EMV chip card issum(s).
<br />4. MERCHANT'S WARRANTIES. Upon signing the Merchant Application, and each
<br />time Merchant submits a Transaction, Merchant represents and warrants that:
<br />4.1 Merchant has abided by the Merchant Agreement, and all applicable laws , the
<br />Operating Rules;
<br />4,2 Each statement made on the Merchant Application was true as of the date Merchant
<br />signed the Merchant Application agreeing to be bound by the Merchant Agreement;
<br />4.3 There have been no materially adverse changes in information provided in the
<br />Merchant Application or in Merchant's financial condition, or management
<br />4.4 Merchant does not do business under a trade name or style not previously disclosed
<br />in writing, and there has been no change in the Hahne of Merchant's business or the product
<br />linos that Merchant sells not previously disclosed;
<br />4.5 The Transaction is genuine and arises from a bona fide sale of merchandise or
<br />services by Merchant, represents a valid obligation for the amount shown on the Transaction
<br />Receipt and does not involve the use of the Card for any other purpose;
<br />4.6 Merchant has title to the Transaction and Transacdon Receipt, there are no liens or
<br />other encumbrances on it, and Merchant has the authority to convey the Transaction for
<br />processing;
<br />4.7 The Transaction is not subject to any dispute, seboff or counterclaim;
<br />4.8 The Transaction has not been previously presented for processing unless allowed
<br />by the Operating Rules;
<br />4.9 Each statement on the Transaction Receipt is true, and Merchant has no knowledge
<br />of facts that would impair the validity or colleclability of the amount of the Transaction;
<br />4.10 The person who executes the Merchant Application on behalf of Merchant has the
<br />full power and authority to execute the Merchant Application and to enter into the Merchant
<br />Agreement;
<br />4.11 The Merchant Agreement is the legal, valid, and binding obligation of Merchant
<br />enforceable against Merchant in accordance with its terms;
<br />4.12 Merchant shall submit Transactions only in accordance with the information
<br />contained in the Merchant Application and the Merchant Agreement;
<br />4.13 Merchant has the power and authority to authorize the automatic funds transfer
<br />provided for in the Merchant Agreement
<br />4.14 The Settlement Account is owned and controlled by Merchant and is a valid
<br />account for processing debit and credit transactions under the Merchant Agreement;
<br />4.15 Merchant is not (i) a Sanctioned Person, (it) located in or operating under a license
<br />issued by a jurisdiction whose government has been identified by the U.S. Department of
<br />Stale as a sponsor of international terrorism under22 U.S.C. 2371 or 50 U.S.C. App. 24050),
<br />(iii) located in or operating under a license issued by a jurisdiction that has been designated
<br />as non -cooperative with international anti -money laundering principles or procedures by an
<br />intergovernmental group or organization of which the U.& is a member, or (iv) located in or
<br />operating under a license issued by a jurisdiction that has been designated by the U.S.
<br />Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to
<br />money laundering concerns; and
<br />4.16 Merchant will immediately notify Member Bank and Processor in writing of any
<br />material changes to any information provided herein including but not limited to a change in
<br />Merchant's legal entity, location, business type, or the types of goods and services offered
<br />for sale by Merchant.
<br />5. CONEIDENTIALITY;DATASECURITY,
<br />5.1 Confidentiality. Merchant will treat as confidential: (I) the terms of the Merchant
<br />Agreement; (if) all information or data, of whatever nature, relating to Processor (including
<br />its operations, policies, procedures, accounts and personnel) accessed or used by or disclosed
<br />to Merchant in connection with the Merchant Agreement; (iii) Processor's IRS W-9 form;
<br />and (iv) all information or data that is proprietary to a third party (including Processor's
<br />customers and contractors) and that Processor is obligated to heat as confidential, accessed
<br />or used by or disclosed to Merchant in connection with the Merchant Agreement
<br />(individually and collectively, "Confidential Information"). Merchant shall not use or
<br />disclose Confidential Information without Processor's prior written consent. Merchant may
<br />only disclose Confidential Information to Merchant employees who have a need to know
<br />such information in connection with Merchant's performance hereunder and who are bound
<br />to confidentiality restrictions no less restrictive than those herein. Merchant shall exercise
<br />at least the same degree of care to maintain the confidentiality of Confidential Information
<br />that it uses for its own similar information, but in no event less than a reasonable degree of
<br />care. The foregoing obligations shall not apply to any information that (x) is received from
<br />any third party source that is properly authorized to disclose it without restriction, (y) is or
<br />becomes generally known to the public by publication or some other means other than a
<br />breach by Merchant or its employees of any agreement or confidentiality obligations, or (z)
<br />is required by law to be divulged, provided that the request is proper and the disclosure does
<br />not exceed that which is required, In the case of (z), Merchant will provide prior notice
<br />thereof and cooperate with Processor to limit disclosure. Upon Processor's request, and upon
<br />termination or expiration of the Merchant Agreement, Merchant shall return or, only if
<br />requested by Processor, destroy all Confidential Information in its possession or control.
<br />Merchant acknowledges that a breach of this Section 5 may cause Processor irreparable
<br />injury and that Processor may have no adequate remedy at law. Accordingly, Processor may
<br />seek provisional or injunctive relief in addition to any other rights or remedies.
<br />5.2 Transaction Receipts. Merchant will retain in a secure and confidential manner
<br />original or complete and legible copies of each Transaction Receipt, and each Credit
<br />Transaction Receipt required to be provided to Cardholders, for such period as required by
<br />law or the Operating Rules. Merchant shall render all materials containing Cardholder
<br />Account Numbers unreadable prior to discarding. Merchant is responsible for ascertaining
<br />whether applicable law requires copies murned by Merchant to truncate card numbers and
<br />suppress expiration dates, and for complying with all such laws.
<br />5.3 Storage. Merchant will store Transaction Receipts and Credit Transaction
<br />Receipts in an area limited to selected and authorized personnel, and when record -retention
<br />requirements have been met, Merchant will destroy the records so that the same are rendered
<br />unreadable,
<br />5.4 Merchant Servicers and Agents. Merchant must notify Processor and receive
<br />Processor's approval prior to engaging any Merchant Scrvicer or Agent in connection with
<br />Merchant's acceptance of Cards or the submission of Transactions to Processor. Merchant
<br />shall provide Member Bank and Processor at least sixty days advance written notice of
<br />Merchant's election to use a Merchant Servicer or Agent. Member Bank and/or Processor
<br />may individually approve or deny the use of a Merchant Sea vicer or Agent in their sole and
<br />absolute discretion and at any time. If a Merchant Servicer or Agent is required to codify,
<br />register, or act in any fashion pursuant to the Operating Rules, Merchant shall cause such
<br />Merchant Servicer or Agent to cooperate with Processor in completing any steps required
<br />for registration and/or certification and/or action. Merchant is solely responsible for any and
<br />all applicable fees, costs, expenses and liabilities associated with Such registration and/or
<br />certification and/or action. Processor and Member Bank shall in no event be liable to
<br />Merchant or any third party for any actions or inactions of any Merchant Servicer or Agent
<br />used by Merchant, and Merchant hereby expressly assumes all such liability.
<br />Merchant will immediately notify Processor if Merchant decides to use electronic
<br />authorization or data capture terminals provided by any entity other than Processor or its
<br />authorized designee ("Third Party Terminals") to process Transactions, including leasing a
<br />terminal from a third party. if Merchant elects to use Third Party Terminals: (a) the third
<br />party providing the terminals will be Merchant's Merchant Servicer in the delivery of
<br />Transactions to Processor; and (b) Merchant assumes lull responsibility and liability for any
<br />failure of that third party to comply with the Operating Rules, applicable laws, rules or
<br />regulations ortheMerchant Agreement. Processor and Member Bank will not be responsible
<br />for any losses or additional fees incurred by Merchant as a result orally error by a third party
<br />agent or a malfunction in a Third Party Terminal.
<br />Page 3 of 10 UNIVMERAGMT d22.0421
<br />
|