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all Merchant establishments, including in payment for purchases of goods and services and
<br />for charitable contributions when properly presented for payment by a Cardholder. Subject
<br />to this section, a Merchant must create a Transaction Receipt for each PayPai Card
<br />Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder.
<br />dB American Express. If Merchant has chosen to accept American Express@ Cards in
<br />the Merchant Application, Merchant must accept American Express Cards as payment for
<br />goods and services (other than those goods and services prohibited under Section 7 of the
<br />Operating Guide) sold, or (if applicable) for charitable contributions made, at all of its
<br />establishments, except as expressly permitted by state statute. Merchant is jointly and
<br />severally liable for the obligations of Merchant's establishments under the Merchant
<br />Agreement to the event Merchant's American Express annual charge volume exceeds
<br />&1,000,000 in is rolling twelve month period or is greater than $100,000 in any three
<br />consecutive months, Merchant will be considered a High CV Merchant by American
<br />Express and will be required to enter into a direct merchant card acceptance agreement
<br />with American Express, Upon any conversion to a direct agreement with American
<br />Express, Merchant will be bound by American Express' then current Card Acceptance
<br />Agreement and to any pricing and fees set by American Express. Merchant hits the right to
<br />opt -out of acceptance of American Express Cards at any time without affecting Merchant's
<br />rights to accept other card types, If Merchant elects to receive messages from American
<br />Express regarding products, services and resources available to it, as indicated on the
<br />Merchant Application, Merchant agrees messages maybe sent by American Express to the
<br />phone numbers, fax numbers or email addresses provided by Merchant, if a wireless
<br />number is provided, Merchant agrees communications may be sent. via SMS or text in
<br />addition to automated calls. Merchant may opt out of receiving messages by contacting
<br />Processor,
<br />3.2 Operating Procedures for Transactions. In accepting Cards for the purchase of
<br />Merchant's goods and services, Merchant shall comply with the requirements of this
<br />Merchant Agreement, including but not limited to the Operating Rules and the Operating
<br />Guide, as the same are revised train time to time.
<br />33 Submission of valid Transactions.
<br />(a) Merchant will submit to Batik a Transaction only if tire Transaction is made
<br />or approved by the Cardholder who is issued the Card used for die T'mnsactinn. Merchant
<br />will not submit directly or indirectly (i) any Transaction that Merchant knows or should
<br />have known to be fraudulent or not authorized by the Cardholder, (ii) any Transaction that
<br />results from a transaction outside of Merchant's normal course of business, as described on
<br />the Merchant Application; or (iii) any Transaction containing the account of a Card issued
<br />to Merchant or any account numbers issued to Merchant's business owners, family
<br />members and principals for Transactions that do not represent a purchase of goods or
<br />services from Merchant or a related credit.
<br />(b) If at any time the volume of Transactions in the Card - Absent Environment
<br />substantially exceeds the projected annual volume stated on the Application, or if at any
<br />time Bank suspects fraud, money laundering or violations of the Operating Rules, Bank
<br />may, in its sole and absolute discretion and in addition to other remedies that the Bank may
<br />have: (i) refuse to process the excessive or suspect Transactions; (it) process the
<br />Transactions and retain the funds received from processing until such time as the excess or
<br />suspect Transactions are found to be valid or invalid and processed in accordance with the
<br />Operating Rules; (in) suspend processing Card - Absent Environment Transactions and/or
<br />terminate the Agreement; or lie) amend the Agreement to protect the interests of Bank
<br />34 Payments to Merchant for Valid Transactions.
<br />(a) Bank will provide provisional credit to Merchant for each valid Transaction
<br />which Merchant submits to Bank by crediting Merchant's Settlement Account, provided
<br />Bank has received settlement for the valid Transaction through the Interchange procedures
<br />specified by the Card Association applicable to the Card used for the Transaction (Bank
<br />does not provide payment for all Card types for which Authorization services are
<br />provided). Bank is not obligated to provide provisional credit to Merchant for Transactions
<br />submitted that are not valid Transactions, and may suspend or discontinue any provisional
<br />credit in Merchant Bank's anct Processor's sole and absolute discretion, including for
<br />any reason that would justify, termination of this Merchant Agreement. Each provisional
<br />credit from Bank to Merchant wilt he subject to adjustment, including revocation, upon
<br />Bank's further review and verification Provisional Credit to Merchant for a Transaction
<br />disputed by a Cardholder for any reason is net final.
<br />(b) Bank may deduct front any payment to Merchant the amount of any Credit
<br />Transaction Receipt processed for Merchant, any Chmgeback to Merchant, any amount to
<br />be deposited in the Reserve Account and any Processing Fees and amounts suffcuvrd to
<br />reimburse Bank for the amount of any Card Association fates or charges due from
<br />Merchant. Merchant must immediately pay Bank the amount by which a Credit
<br />Transaction Receipt processed on any clay exceeds valid Transactions submitted on that
<br />day. Without (uniting Bank's remedies, Bank may obtain the amount due by deducting it
<br />from the Settlement Account, Reserve Account or other accounts of or funds due
<br />Merchant.
<br />(c) Merchant acknowledges that all payments and credits provided to Merchant
<br />are provisional and subject to suspension, to Chargebacks and to adjustments in accordance
<br />with this Merchant Agreement and the Operating Rules and the Operating Guide,
<br />15 Retrieval Requests. If Merchant deposits Transactions with Bank through
<br />magnetic tape, electronic transmission, or electronic data capture terminal, upon the request
<br />of a Card Association or Bank. Merchant shall respond to all Retrieval Requests within the
<br />time frames specified in the applicable Operating Rules If Merchant does not respond or
<br />responds late to a Retrieval Request, Merchant may be without recourse as Chargebacks for
<br />"non receipt of requested item" in most cases, cannot be reversed.
<br />3.6 Petuipntent; Supplies; I)isphnys.
<br />(a) At Merchant's request, Processor will supply Merchant with quint -of sale
<br />equipment ( "POS Equipment ") that Merchant may need to process and submit
<br />Transactions. Processor will use good faith efforts to program the POS Equipment to
<br />operate at the Merchant Outlets in compliance with the Operating Rules; however,
<br />Processor makes no representations or warranties that Processor's programming of the POS
<br />Equipment famished by Processor will operate in compliance with the Operating Rules. if
<br />Processor supplies Merchant with POS Equipment or other equipment, then Merchant must
<br />return such equipment upon termination of this Agreement. It is understood by the parties
<br />that if Processor has not provided free use equipment, sections 3.6(a) -(d) do not apply.
<br />(b) Merchant acknowledges and understands that POS equipment may be
<br />supplied to Merchant that is the property of the Processor and is being provided to the
<br />Merchant for true use subject M the following conditions and requirements:
<br />(i) Merchant shall be liable for a $495 Pee for non - retum of Processor
<br />supplied POS Equipment if the Merchant terminates or ceases processing under the terms
<br />of this Agreement before the expiration of the initial or renewal term of this Merchant
<br />Agreement and fails to return the POS Equipment within ten days of termination or of
<br />ceasing processing.
<br />(it) Merchant wit] be liable for any damages to the POS Equipment from
<br />the dense or negligent use of the POS Equipment;
<br />(iii) 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'
<br />(iv) 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 />and,
<br />(v) Ttie POS Equipment that is the property of Processor is provided
<br />"AS -IS" and that Processor makes no warranty as to this POS Equipment's fitness loosely
<br />particular purpose (or any other Warranty) and disclaims day liability resulting from the
<br />POS Equipment or Merchant's use of the POS Equipment.
<br />(e) All Processor and third party POS Equipment and services provided or
<br />procured by Processor under this Merchant Agreement are provided "A&IS," but
<br />Processor will, at Merchant's expense, use reasonable commercial efforts to assist
<br />Merchant in culturing any wanunty offered by the third party supplier of such POS
<br />Equipment or services.
<br />(d) Merchant acknowledges that Processor or a third party is supplying the POS
<br />Equipment and that the Merchant 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 />formals provided or approved in advance by Bank. Bank may change the farms from time
<br />to time, and, upon notification, Merchant will comply with any changes. Merchant will use
<br />Transaction forms or materials provided by Bank only for Transactions which Merchant
<br />submits to Bank.
<br />(f) Merchant may not (i) indicate or imply drat the Card Associations or Bank
<br />endorses any Merchant goods or services, (ii) refer to a Card Association or Bank in stating
<br />eligibility for Merchant's products, services or membership, or (iii) use any marks, symbols
<br />or logos owned by any Card Association or Bank for any purpose other than those
<br />permitted in the Operating Rules artful Operating Guide.
<br />4. NIERCHANTB WARRANTIES. Upon signing the Merchant Application, and each
<br />time Merchant submits a'I'continuum, Merchant represents and warrants that:
<br />4.1 Merchant has abided by this Merchant Agreement, and all applicable laws and
<br />Operating Rules;
<br />4.2 Each statement made on the Merchant Application was true as of the date
<br />Merchant signed the Merchant Application agreeing to be bound by this Merchant
<br />Agreement
<br />4.3 Thcre 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
<br />disclosed in writing, and there has been no change in the nature of Merchant's business or
<br />the product lines that Merchant sells not previously disclnse l;
<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
<br />Transaction Receipt and does not involve the use of ilia Card for any other purpose;
<br />4,6 Merchant has title to the Transaction and Transaction Receipt, there am no liens
<br />or other encumbrances on it, and Merchant has the authority to convey the Transaction for
<br />processing;
<br />43 'Fire Transaction is not subject to any dispute, set-off or counterclaim;
<br />4.8 'fit- Transaction has not been previously presented for processing unless allowed
<br />by the Operating Rules or the Operating Guide;
<br />4.9 Each statement on the Transaction Receipt is true, and Merchant has no
<br />knowledge of facts that would impair the validity or coilectabllity of the amount of the
<br />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 this
<br />Iclercham Agreement;
<br />411 This Merchant Agreement is the legal, valid, and binding obligation of the
<br />Merchant enforceable against the Merchant in accordance with its terms;
<br />412 Merchant shall submit Transactions only in accordance with the information
<br />contained in the Merchant Application and this Merchant Agreement;
<br />413 Merchant has die power and authority to authorize the automatic Ponds transfer
<br />provided for in this Merchant Agrccmcnl;
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