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MERCHANT CARD PROCESSING AGREEMEti r
<br />This Merchant Card Processing Agreement ( "MPA ") is for merchant card payment
<br />processing services among the Merchant that signed the Application for Merchant Card
<br />Processing ( "Merchant Application'), the Merchant Bank, and the Processor The
<br />Merchant Application and the MPA are hereinafter collectively referred to as the
<br />"Merchant Agreement." The Processor and the Merchant Bank are hereinafter collectively
<br />referred to as the "Bank". Subject to the requirements of the Operating Rules, Processor
<br />and Merchant Bank reserve the right to allocate Bank's duties and obligations amongst
<br />themselves as they deem appropriate in their sole discretion, and Merchant Bank or
<br />Prceessor may jointly or individually assert or exercise any rights or remedies provided to
<br />Bank hereunder.
<br />If elected by Merchant on the Merchant Application, Processor will settle American
<br />ExpressO Card and DiscoverTP Network transactions in accordance with the terms set tomb
<br />in the Merchant Application and in doing so, Processor does not represent or indicate in
<br />any way that Merchant frank sponsors Processor into the American Express Network and
<br />Discover Network. Merchant Bank does not sponsor Processor into the American Express
<br />Network and Discover Network, is not providing or agreeing to provide Merchant any
<br />services hereunder with respect to American Express Card and Discover Network. Card
<br />transactions, does not determine or approve or agree upon any fees, charges, pricing, or any
<br />other terms and conditions, relating to American Express Card and Discover Network Card
<br />transactions, and has no responsibility or liability to Merchant for American Express Card
<br />and Discover Network Card transactions. Nor does Merchant Bank provide or agree to
<br />provide Merchant any services hereunder or have any responsibility or liability to Merchant
<br />with respect to any PIN -based debit or stored valneor electronic benefit transfer
<br />transactions (except only to the extent, if any, required under Visa's or
<br />MaslerCards Operating Rules or mandatory provisions of applicable law), or any JCB,
<br />Carte Blanche, or other Card type transactions (ether than Visa and MasterCard Credit
<br />and non -PIN based debit /stored value /electronic benefit transactions, including any such
<br />transactions made with Diner's international Cards which also carry the MasterCard Mark
<br />and am processed as MasterCard transactions), any CrmsCheck or other Check Services
<br />transactions, merchant gift or loyalty card transactions, or any other services specified in
<br />the Merchant Application as covered in whole or in part by this Agreement but as not being
<br />provided by Merchant Bank, To the extent applicable to American Express Card or
<br />American Express Network transactions and Discover Network Cards or Discover Network
<br />Card transactions, or to any of the other types of Cards, transactions or services referred to
<br />above or in the Merchant Application as not being provided by Merchant Bank, any
<br />reference herein or in any of the other doctuments constituting part of the "Merchant
<br />Agreement" (as defined below) to the forms "Bank" or "Merchant Bank" (except only to
<br />the extant the reference constitutes a complete disclaimer of responsibility or liability on
<br />the part of Bank or Merchant Bonk, or constitutes an obligation on the part of Merchant to
<br />indemnify, defend or hold. harmless Bank or Merchant Bank from or against any
<br />responsibility or liability) means Processor only.
<br />'The appendices, addenda, schedules, Operating Guide and Fee Schedule that accompany
<br />this Merchant Card Processing Agreement, as amended from time 'to time as provided
<br />herein, are part of the terms and conditions of ibis Merchant Agreement, as are the
<br />Merchant Application and the Operating Rules, and are hereinafter individually and
<br />collectively referred to as the "Merchant Agreement"
<br />Capitalized terms used is this Merchant Agreement which are not defined herein
<br />shall have the meaning given to them in the Operating Guide, which can be fond at
<br />bent:// www .transfirst.mm /dncumenls.html, and which is incorporated by reference
<br />into this Agreement and may he amended from time to time try Dank upon notice to
<br />Merchant.
<br />According to the processing services selected by Merchant on the Merchant Application
<br />and in accordance with the terms of dais Merchant Agreement and applicable Operating
<br />Rules, Merchant agrees to participate in the Bank's Card processing program by honoring
<br />Cards in accordance with this Merchant Agreement; and to submit Transaction Receipts,
<br />Credit Transaation Receipts and other electronic door to Bank for the Card Program
<br />services provided by Bank,
<br />With respect to Visa Transactions:
<br />Merchant Bank is responsible for providing settlement funds directly Yo Merchant, and
<br />Processor shall not have access to or hold settlement funds.
<br />With respect to MasterCard Transactions:
<br />a) For purposes of the Merchant Agreement and perl'omtance of the Merchant
<br />Agreement by Processor, (q Pmecasor is the exclusive agent of Merchant Bank; (ii)
<br />Merchant Bank is at all times and entirely responsible for, and in control of, Processor's
<br />performance; and (iii) Merchant Bank must approve, in advance, tiny fee to or obligation of
<br />lire Merchant arising from or related to performance of the Merchant Agreement.
<br />b) The Merchant Agreement is not effective and may not be modified in any respect
<br />without the express written consent of Merchant Bank.
<br />c) Processor may not have access, directly or indirectly, to any account for funds or
<br />funds due to a Merchant and/or funds withudd from a Merchant for Chargebacks arising
<br />from, or related to, performance of the Mcrchant Agreement Merchant Bank may not
<br />assign or otherwise transfer an obligation to pay or reimburse a Merchant arising from, or
<br />related to, performance of the Merchant Agreement to Processor.
<br />d) Processor may not subcontract, sublicense, assign, license, franchise, or in any
<br />manner extend or transfer to any third party, any right or obligation of Processor set fords
<br />in the Merchant Agreement.
<br />1. MERCHANT'S APPLICATION AND INFORMATION. By completing the
<br />Merchant Application, Merchant applies for the Card Program services covered by the
<br />Merchant Application and this Merchant Agreement. In their sole and absolute discretion,
<br />Processor and/or Merchant Bank may accept or reject Merchant's Merchant Application.
<br />Merchant may present Transactions to Bank only for the activities and in the volumes
<br />described on the Merchant Application, including the percentage of Mail/Plnone Order and
<br />Electronic Commerce Transactions. Presentation of the first Tmnsaction, including any
<br />test Transaction, by Merchant to Bank signifies Merchant's acceptance and agreement to
<br />be bound by this Merchant Agreement.
<br />2. MERCHANT'S GENERAL DUTIES.
<br />2.1 General. Merchant will comply with this Merchant Agreement (including the
<br />terms of the Operating Guide) for submitting and processing Transactions with Bank
<br />Bank is responsible to Merchant fur processing Transactions under the Operating Rules for
<br />the Cad Program services to which Merchant subscribes, which may vary among Card
<br />types.
<br />2.2 Merchant's Responsibility for Acts of Others. Merchant, and not Bank, is
<br />responsible for any advice from, amts of, as well as emissions, acts of fraud or acts of
<br />misconduct by Merchant's employees, processors, consultants, advisors, contractors,
<br />Merchant Servicers, Agents, officers and directors. Merchant, and not Bank, is responsible
<br />for the use, unauthorized use or misuse of Merchant's equipment, POS Equipment. or
<br />software.
<br />2.3 Electronic and Paperless Notices and Disclosures. Merchant consents to
<br />receiving electronically rather than in paper form all written notices, disclosures and other
<br />documents (" documents") which are to be provided by Bank to Merchant under this
<br />Merchant Agreement. Bank will notify Merchant that a Document is available at
<br />Processor's web site with a link to that specific page of the web site containing the
<br />Document. Merchant agrees that such notification may be sent to Merchant at the a -mail
<br />address provided as part of the Merchant Applicaion.
<br />By Merchant affirmatively checking the box to consent to receive paperless delivery of IRS
<br />Notices on the Merchant Application, Merchant acknowledges that it has reviewed and
<br />received the Consent to Paperless Delivery of IRS Notices, located at
<br />htto:/ twww .trmtsfirst.com /documents.html and that Merchant consents and agrees to
<br />receive IRS notifications by paperless delivery.
<br />Merchant understands and acknowledges that access to the Internet and e-mail are required
<br />lot Merchant to access Documents electronically or by paperless delivery and Merchant
<br />confirms that Merchant has such access- Merchant understands that there are costs related
<br />to accessing Documents electronically or by paperless delivery and Merchant agrees that
<br />Merchant is responsible for these related access costs.
<br />At any time, and without giving Merchant advance notice, Merchant Bank and/or Processor
<br />may elect not to send a Document electronically or by paperless delivery, in which case a
<br />paper copy of the Document will be sent to Merchant at the Merchant's last known address,
<br />as provided by Merchant, or such Document shall otherwise be provided as provided for
<br />herein
<br />3, PROCEDURES FOR CARDTRANSACTIONS.
<br />3.1 Honoring Cards.
<br />(a) Limited Acceptance. If appropriately indicated herein, Merchant shall be a
<br />Limited Acceptance Merchant, which means that Merchant has elected to accept only
<br />certain Visa and MasterCard card types as indicated on the Merchant Application, or via
<br />later notification The Visa or MasterCard Credit acceptance option on the Merchant
<br />Application refers to Visa Credit and Business transactions, and is what MasterCard refers
<br />to as "Other Card" transactions. Notwithstanding anything to the contrary in tare
<br />Application, Merchant can elect (i) to accept only Visa or MasterCard non -PIN based
<br />debalstored value/eleetronic benefit transactions (sometimes referred to as "signature
<br />debit' transactions, whether or not an actual signature is required), or (it) to accept only
<br />Visa or MasterCard Credit transactions, or (iii) to accept all Visa or MasterCard Credit and
<br />signature debit transactions; provided, however, that a Merchant who accepts any Visa or
<br />MasterCard Card types must accept all valid Visa or MasterCard Card types issued by a
<br />non -U.S. issuer Merchant is not required to accept Card brands other than Visa or
<br />MasterCard in order to accept Visa or MasterCard Cards (except that transactions using
<br />Diner's International Cards which also carry the MasterCard Mark must be accepted if
<br />Merchant accepts MasterCard Card transactions of the same type). Bank has no obligation
<br />Other than those expressly provided under the Operating Rules and applicable law as they
<br />may relate to Limited Acceptance. Bank's obligations do not include policing card types at
<br />the point of sale. Merchant will be solely responsible for the implementation of its decision
<br />for limited acceptance including but no[ limited to policing the card type($) of transactions
<br />at the point of sale submitted for processing by Bank. Should Merchant submit a
<br />transaction for processing for a card type it has indicated it does not wish to accept, Bank
<br />may process that transaction and Merchant will pay the applicable fees, charges, and
<br />assessments associated with that transaction. Merchant will comply with any applicable
<br />laws and Operating Rides for the card type processed
<br />(b) Discover. If Merchant has chosen to accept Discover Card Transactions in
<br />the Merchant Application, Merchant must accept Discover Cards at all Merchant
<br />establishments, including in payment for purchases of goods and services, for charitable
<br />contributions and for Cash Over fraasactions (subject to the terms of the Operating Guide),
<br />when properly presented for payment by a Cardholder. Subject to this section, a Merchant
<br />must create a Transaction Receipt for each Discover Card Transaction and deliver at least
<br />one copy of the Transaction Receipt to the Cardholder A. Merchant may issue a Cash Over
<br />(subject to the terns of the Operating Guide) in connection with a Discover Card
<br />Transaction The Merchant must deliver a single Authorization Request for the aggregate
<br />total of the goods/services purchase amount and the Cash Over amount. In addition, the
<br />Transaction Receipt must include both the purchase amount and the Cash Over amount.
<br />(e) PayPalrsr. If Merchant ties chosen to accept PayPal Payment Cud
<br />Transactions in the Merchant Application, Merchant must accept Paylsai Payment Cards at
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