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all Merchant establishments, including in payment for purchases of goods and services and
<br />for charitable contributions when property presented for payment by a Cardholder. Subject
<br />to this section, a Merchant must create a Transaction Receipt for each ProPal Card
<br />Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder.
<br />(d) American Express. IF Merchant has chosen to accept American Expressdi Cards in
<br />the Merchant Application, Merchant must accept American Express Cards as payment for
<br />goods and services (Differ 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. In the event Merchant's American Express annual charge volume exceeds
<br />SIp00,000 in a 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 sot by American Express. Merchant has the right to
<br />opt -out ofaveciol ice of Arrrcrivan Express Cards at any rime without affecting Merehmt'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 die
<br />Merchant Applicalon, Merchant agrees messages maybe sent by American Express to the
<br />phone numbers, fax numbers or email addresses provided by Merchant. If o wireless
<br />number is provided, Merchant agrees communications may be seat 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 tilts
<br />Merchant Agreement, including but tint limited to the Operating Rides and die Operating
<br />Guide, as the some are revised from time to time.
<br />3.1 Submission ofvnlid Transactions_
<br />(a) Merchant will submit to Bank a Transaction only if the Transaction is made
<br />or approved by the Cardholder who is issued the Card used for the' Transaction. Merchant
<br />will not submit directly or indirectly (i) any Transaction drat Merchant knows or should
<br />have known to be frnrdulent or not authorized by the Cmdmlder, (ii) ally Transaction that
<br />results from a transaction outside ofMerchant's normal course of business, as described on
<br />the Merchant Application; m (iii) any Transaction containing the ace unl 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 audit.
<br />(b) If at any time the volume of Iraninctions in the Card - Absent Environment
<br />substaarally exceeds the projected annual volume stated on the Application, or if art any
<br />inane 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: (1) refuse to process the excessive or suspect Transactions; (ii) process the
<br />Transactions and retain the funds received from processing until such trine as the excess or
<br />suspect Transactions are found to be valid or invalid and processed in accordance with the
<br />Operating Rules; fill) suspend processing Card - Absent Environment Transactions andoor
<br />terminate the Agreement; or (iv) amend the Agreement to protect the interests of Bank.
<br />3.4 Payments to Merchant for Valid Transactions.
<br />(a) Batik will provide provisional credit to Merchant Far each valid Transaction
<br />which Merchant submits to Bonk 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 tread for the Transaction (Bank
<br />does not provide payment for all Card types for which Authorization services are
<br />provided). Barak is not obligated to provide provisional credit to Merchant for Transactions
<br />submitted drat are not valid Transactions, and may suspend or discontinue any provisional
<br />credit in Merchant Bank's andim Processor's sole and absolute discretion, owning for
<br />any reason that would funny termination of this Merchant Agreement . Each provisional
<br />credit floor Bank to Merchant will be subject to adjustinent, including revocation, Opal
<br />Bank's further review and verification. Provisional credit to Merchant for a I immilactiou
<br />disputed by a C'afdholder for any reason is not final.
<br />(b) Bank may deduct from any payment to Merchant the amount of any Credit
<br />Transaction Receipt processed for Merchant, any Chargeback to Merchant, any amount to
<br />be deposited fn the Reserve Account and any Processing Pees and amounts sufficient to
<br />reimburse Bank for the amount of any Card Association fuses or charges due from
<br />Merchant. Merchant must immediately pay Bank the amount by which a Credit
<br />Transaction Receipt processed on any day exceeds valid 'Transactions submitted on that
<br />day. Without limiang Bank's remedies, Bank may obtain the ammmt due by deducting it
<br />from tine Settlement Account, Reserve Account or other accounts of or funds due
<br />Merchant.
<br />(e) 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 mid the Operating Guide.
<br />3.5 Retrieval Requests. If Merchant deposits Transactions with Batik through
<br />magnetic tape, electronic transmission, or electronic data capture terminal, upon the rogaest
<br />of Card Association or Bank, Merchant shall respond to all Retrieval Requests within the
<br />time formes specified in die applicable Operating Rules IT Merchant does not respond or
<br />responds late to a Retrieval Request, Merehant may be wit out recourse ns Chargebacks For
<br />"non receipt of requested item" in most cases, cannot be reversed.
<br />3.b Equipnenq Supplies; Misplays. -
<br />is) Al Merchant's request, Processor will supply Merchant with point-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 furnished by Processor will operate in compliance whit the Operating Rule_ 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 free use subject to the following conditions and requirements_
<br />(1) Merchant shall be liable for a $495 fee for mmocmm of Processor
<br />supplied POS Equipment if the Merchant tcro iustes or ceases processing under the terns
<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 terns mation or of
<br />ceasing processing.
<br />(ii) Merchant will be liable for any damages to the POS Equipment from
<br />the misuse or negligent use of the POS Equipment;
<br />(iii) Merchant will be liable for any reasonable monthly fee us determined
<br />by Processor for paper or other supplies provided by Processor for use with the pOS
<br />Equipment;
<br />(let 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) The POS Equipment that is the property of Processor is provided
<br />"AS4S" and that Processor makes no warranty as to this POS Equipment's tinaess for any
<br />Inflator purpose (or any ether Warranty) and disclaims any liability resulting from the
<br />POS Equipment or Merchants 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 AS4S,' but
<br />Processor will, it Merchant's expense, use reasonable commercial efforts to assist
<br />Merchant in enforcing any warranty 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 />formats provided or approved in advance by Batik. Bank may change fire forms Grim 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 far Tansac chin which Merchant
<br />submits to Bank.
<br />(t) Merchant may not it) indicate or imply that 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 or the Operating Guide.
<br />4. MERCRAN7 "S WARRANTIES. Upon signing the Merchant Application, and each
<br />time Merchant submits a I c nsuctioa, Merchant represents and wananls [flat.
<br />4.1 Merchant has abided by this Merchant Agreement, and all applicable laws and
<br />Operating Rules;
<br />42 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 />43 There have been no materially adverse changes in information provided in the
<br />Merchant Application or in Merchant's financial condition, or management,
<br />44 Merchant does not do business under u trade none 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 titles that Merchant sells not previously disclosed;
<br />4.5 The Transaction is genuine and arises from a bona fide safe of merchandise or
<br />services by Merchant, represents a valid obligation for the amount shown on the
<br />Tnmsection Receipt and does not involve the use of the Card for any other purpose;
<br />46 Merchant has title to the Trasacdon and Transaction Receipt, there are no liens
<br />or 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, set -off or counterclaim;
<br />4.8 Tire Transaction has not been previously presented for processing unless allowed
<br />by the Operating Rules or the Operating Guide;
<br />49 Each statement on the Transaction Receipt is true, and Merchant has no
<br />knowledge of facts that would impair lire validity or collectability 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 />Merchant Agreement,
<br />4.11 This Merchant Agreement is the legal, valid, and binding obligation of the
<br />Merchant enforceable against the Merchant in accordance with its temps;
<br />4.12 Merchant shall submit Transactions only in accordance with the information
<br />contained in the Merchant Application and this Merchant Agreement,
<br />4.13 Merchant has the power and authority to authorize the automatic funds transfer
<br />provided For in this Merchant Agreement:
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