HomeMy WebLinkAboutItem 20 - Debit and Credit Card Merchant Payment Processing Services Finance and Management Services
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Item # 20
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
November 16, 2021
TOPIC: Debit and Credit Card Merchant Payment Processing Services
AGENDA TITLE:
Approve Renewal Agreement with TSYS Merchant Solutions, LLC, DBA Global
Payments, for Debit and Credit Card Merchant Payment Processing Services, including
Europay, MasterCard, Visa and e-Commerce Gateway Transaction Integration and
Support in the Amount not to Exceed $172,500, which Includes a General Contingency
of $22,500
RECOMMENDED ACTION
Authorize the City Manager to execute a renewal agreement with TSYS Merchant
Solutions, LLC, DBA Global Payments, for debit and credit card payment processing
services, including Europay, MasterCard, and Visa and e-Commerce gateway transaction
integration and support in an amount not to exceed $172,500, which includes a general
contingency of $22,500. The renewal agreement shall commence November 16, 2021,
and expire June 30, 2022, and will cover all services provided by Consultant since July
1, 2021, subject to non-substantive changes approved by City Manager and City Attorney.
DISCUSSION
The Treasury & Customer Service Division (“Treasury”) of the Finance & Management
Services Agency (“FMSA”) is responsible for maintaining all banking related services for
the City. A component of banking is debit and credit card merchant payment processing
services. Since 1997, City of Santa Ana residents have been able to use debit and credit
cards to pay City of Santa Ana taxes, permits, fees, fines, and other charges due for City
services. Acceptance of a debit and/or credit card payment requires and involves using
a merchant service company such as TSYS Merchant Solutions, LLC, DBA Global
Payments (“TSYS”). MasterCard and Visa payment transactions are presented by TSYS
on behalf of the City for all credit card payments made at City facilities, including but not
limited to: City Hall Cashiering Counters, Police Department Traffic and Records
Divisions, and the Santa Ana Zoo.
On March 12, 2012, the City Council authorized a moratorium on the imposition of City
debit and credit card processing fees to promote electronic payments and attract more
online payments by customers; and in March 2013, Treasury negotiated a significant
reduction of the TSYS discount fee from 1.5% to 0%, which has helped the City offset
Award Renewal Agreement with TSYS, DBA Global Payments
November 16, 2021
Page 2
2
2
2
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City expenditures. TSYS has agreed to maintain the reduced rate for the term of the
agreement. The rapid growth and popularity of debit and credit card payments made by
residents and businesses; in Fiscal Year 2020-21 there were over 41,000 debit and credit
card payment transactions at City facilities (up approximately 5,000 transactions over FY
2019-20), which totaled over $5.6 million (up approximately $535,000 over FY 2019-20)
in collections of City taxes, permits, fees, fines, and other charges due for City services.
Additionally, on June 21, 2016, the City Council approved a maximum credit card
transaction limit in the amount of $5,000 dollars for debit and credit card transactions
taking place at City facilities in order to reduce the merchant payment processing charges
for large dollar debit and credit card transactions, which are costlier than smaller dollar
transactions. The City incurs a variety of fees for each transaction, the most variable and
largest of which is an Interchange fee set by payment networks like MasterCard and Visa.
The amounts vary from card type to card type, based on criteria established by the issuer.
For example, a 3.5% merchant payment processing fee for a $100,000 transaction costs
the City $3,500, while a 3.5% percent fee for a $1,000 transaction costs the City $35.
Payment of high merchant processing fees for accepting large dollar value debit and
credit card transactions is contrary to the City’s financial interest and is not in the spirit of
the City’s moratorium on debit and credit card merchant processing fees, which is
intended to be a convenience for City residents and small businesses. Consequently, to
improve the security of debit and credit card payment transactions for Santa Ana
residents and to minimize the risk of a credit card information data breach, City Council
will be presented in a future Council Meeting with a recommendation to approve a City-
wide upgrade to iNovah cashiering software and payment terminal hardware to EMV Chip
& PIN contactless payment terminals and PCI DSS compliance to protect credit card
payment data.
TSYS is the fifth largest third-party merchant processor in North America. TSYS has
historically provided an excellent customer experience in connection with the City’s
merchant processing needs. Because of TSYS’ long time business relationship with the
City beginning as TransFirst, LLC in March 2014, they possess institutional knowledge of
the City’s current payment processing systems.
Regretfully, over a number months the City and TSYS (now merged with Global
Payments) have attempted to negotiate contractual terms for an extended renewal
contract, but ultimately could not come to a mutually satisfactory agreement with regards
to certain key contractual provisions beyond June 30, 2022. Nevertheless, TSYS has
agreed to maintain a reduced merchant processing rate for the City’s in-person credit and
debit card transactions, and thus a short-term renewal agreement will allow Treasury
Services sufficient time to transition and consolidate cashiering payment capabilities with
a different provider.
Award Renewal Agreement with TSYS, DBA Global Payments
November 16, 2021
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Therefore, staff recommends the approval of a short-term renewal agreement with TSYS
for merchant payment processing services for the City’s walk-in cashiering stations.
Below is a summary of costs by Fiscal Year:
FY 2021-22:
1. Merchant Payment Services – base amount of $150,000, plus $22,500
contingency.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds for this renewal agreement and services are budgeted and available in various
departmental Contract Services Professional accounts (No. Various-62300). Funds will
be budgeted for expenditure as follows:
FY
Accounting
Unit -
Account
No.
Fund
Description
Accounting
Unit -
Accounting
No.
Description
Contracted
Amount
Annual Rate
Increase
(Contingency)
Maximum
Amount
2021-
22
Various-
62300 Various
Contract
Services
Professional
$150,000 $22,500 $172,500
Subtotal:Subtotal:Grand
Total:
$150,000 $22,500 $172,500
EXHIBIT(S)
1. TSYS Merchant Solutions, LLC, DBA Global Payments, Agreement
Submitted By: Kathryn Downs, FMSA Executive Director
Approved By: Kristine Ridge, City Manager
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RENEWAL AGREEMENT
CITY OF SANTA ANA
THIS RENEWAL AGREEMENT (“Agreement”) is made and entered into on this 16th day of
November 2021, by and between TSYS Merchant Solutions, LLC, dba Global Payments, Inc. &
Its Subsidiaries (“Consultant”), and the City of Santa Ana, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State
of California (“City”).
RECITALS
A.The City desires to retain a consultant having special skill and knowledge in the field of
debit and credit card merchant payment processing services, including Europay,
MasterCard, and Visa and e-Commerce gateway transaction integration and support
services.
B.Consultant represents that Consultant is able and willing to provide such services to the
City.
C.In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1.SCOPE OF SERVICES
Consultant shall perform during the term of this Agreement, the tasks and obligations
including all labor, materials, tools, equipment, and incidental customary work required to fully
and adequately complete the services described and set forth in the Merchant Card Processing
Agreement attached hereto as Exhibit A.
2.COMPENSATION
a.City agrees to pay, and Consultant agrees to accept as total payment for its services for
City, the rates and charges identified in the Client Satisfaction Offer, which shall be
deemed inclusive of all fees and charges payable by City, attached hereto as Exhibit B.
For the fiscal year period covered under the terms of this Agreement funds to be
expended shall not exceed a base contracted amount of $150,000, together with a general
contingency amount of $22,500, for a combined maximum sum of $172,500.
b.Payment by City shall be made within forty-five (45) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment
need not be made for work which fails to meet the standards of performance set forth
EXHIBIT 1
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in the Recitals which may reasonably be expected by City. Billing or invoice statements
shall be presumed to have been received three (3) days after they are mailed or twenty-
four (24) hours after being electronically transmitted in accordance with the provisions of
Section 13 of this Agreement (“NOTICE”).
c. Change Order Contingency: During the term of this Agreement, City may request
optional services of Consultant at mutually agreed upon scope and fees.
1. Change Order
No extra work may be undertaken unless a written "Change Order" is first given
by the Contract Officer or his/her designee, to Consultant, incorporating therein any
material change in the scope, fees and/or administration of this Agreement proposed by
City.
2. Additional Work or Services
(a) Extra Work or Services
City shall have the right at any time during the performance of the work or
services set forth in this Agreement, without invalidating said Agreement or any
amendments thereto, to elect to exercise any existing option specified in the
Scope of Services for extra work or services or to order extra work or services
pursuant to a duly executed Change Order or to expend previously appropriated,
but unspent contingency funds authorized to be carried forward by the Executive
Director of Finance and Management Services to cover expenses for work or
services agreed to by the parties but exceeding any annual City fiscal year
compensation amount cap initially specified under the Compensation provisions
of this Agreement or thereby make changes by altering, adding to or deducting
from said work or services.
(b) Maximum Contract Compensation Cap
Net total compensation to Consultant shall not, as the result of any Change
Order, exceed the maximum contract compensation amount set forth under
Section 2 (“COMPENSATION”), subsection a. of this Agreement, unless an
increase in maximum contract compensation is agreed to by the parties pursuant
to a duly executed amendment of this Agreement.
d. Coordination of Work or Services
1. Representative of Consultant
The following officer of Consultant is hereby designated as being the representative
of Consultant authorized to act in its behalf with respect to the work specified
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herein and make all decisions in connection therewith:
Global Payments Integrated Carl Van Laethem
Representative Client Success Advisor/National Accounts
It is expressly understood that the experience, knowledge, capability and reputation of
the foregoing officer & representative is a substantial inducement for City to enter into
this Agreement. Therefore, the foregoing representative shall be responsible during the
term of this Agreement for directing all activities of Consultant and devoting sufficient
time to personally supervise the services hereunder. For purposes of this Agreement, the
foregoing officer & representative may not be replaced nor may their responsibilities be
substantially reduced by Consultant without the express written approval of City.
2. Contract Officer
The Contract Officer shall be the person designated hereunder by City. It shall be
Consultant's responsibility to assure that City's Contract Officer is kept informed of the
progress of the performance of the consulting services set forth in this Agreement and
Consultant shall refer any decisions which must be made by City to the Contract Officer.
The Contract Officer shall have authority to enter into Change Orders with Consultant
pursuant to this Agreement. The Contract Officer shall have authority to sign all
documents on behalf of City required hereunder to carry out the terms of this Agreement.
Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
City of Santa Ana Kristine Ridge, City Manager
Contract Officer or designee
3. TERM
This Agreement shall commence on the date first written above and terminate on June 30,
2022, unless terminated earlier in accordance with Section 9, below. This Agreement shall cover
all services provided by Consultant since July 1, 2021.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries
and wages, employer's social security taxes, unemployment insurance and similar taxes relating
to employees and shall be responsible for all applicable withholding taxes.
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5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents,
volunteers and representatives as additional insured(s) and shall include, but not
be limited to protection against claims arising from bodily and personal injury,
including death resulting therefrom and damage to property, resulting from any
act or occurrence arising out of Consultant’s operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of
insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property
damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the
aggregate. Such insurance shall (a) name the City, its officers, employees, agents,
and representatives as additional insured(s); (b) be primary and not contributory
with respect to insurance or self-insurance programs maintained by the City; and
(c) contain standard separation of insureds provisions.
b. Business automobile liability insurance, or equivalent form, with a combined
single limit of not less than $1,000,000 per occurrence. Such insurance shall
include coverage for owned, hired and non-owned automobiles.
c. Worker’s Compensation Insurance. In accordance with the provisions of Section
3700 of the Labor Code, Consultant, if Consultant has any employees, is required
to be insured against liability for worker’s compensation or to undertake self-
insurance. Prior to commencing the performance of the work under this
Agreement, Consultant agrees to obtain and maintain any employer’s liability
insurance with limits not less than $1,000,000 per accident.
d. Technology errors and omissions insurance, with a limit of not less than
$1,000,000 per claim with $2,000,000 in the aggregate.
e. Cyber and Network Security/Technology liability insurance with a limit of not less
than $1,000,000 per claim with $2,000,000 in the aggregate.
f. Crime liability insurance with a limit of not less than $1,000,000 per claim with
$2,000,000 in the aggregate. The following requirements apply to the insurance
to be provided by Consultant pursuant to this section:
i. Consultant shall maintain all insurance required above in full force and effect
for the entire period covered by this Agreement.
ii. Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved by the City.
iii. City of Santa Ana, its officers, employees, agents and representatives shall be
Additional Insureds with respect to General Liability Insurance and Auto
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Liability Insurance is Primary and Non-Contributory.
iv. Certificates and policies shall state that the policies shall not be canceled
without thirty (30) days prior written notice to the City of cancellation with ten
(10) days prior notice for non-payment of premium in accordance with policy
provisions. Similar notice of reduction or material change shall be given if coverage
falls below or is not in compliance with the contract requirements.
v. Consultant shall supply City with a fully executed additional insured
endorsement.
vi. Certificates of insurance endorsements shall show the City as a certificate
holder as follows:
City of Santa Ana
Risk Management Division, 4th Floor 20 Civic Center Plaza
Santa Ana, CA 92701
vii. Where the amounts or coverage provided by the certificates of insurance
provides coverage greater than those listed by this Agreement, the amounts
provided by the certificates of insurance shall be incorporated by reference
into the Agreement.
g. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance
has been procured and is in force and paid for, the City shall have the right, at the
City’s election, to forthwith terminate this Agreement. Such termination shall not
affect Consultant’s right to be paid for its time and materials expended prior to
notification of termination. Consultant waives the right to receive compensation
and agrees to indemnify the City for any work performed prior to approval of
insurance by the City.
6. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
7. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or
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the City. Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which is not embodied herein.
8. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City’s ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
9. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay
Consultant compensation for all services performed by Consultant prior to receipt of such notice
of termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director of Finance and
Management Services may require Consultant to deliver to the City all work
product(s) completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the
City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
10. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed
by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or
right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether
or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
11. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
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12. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals,
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
13. NOTICE
Any notice, tender, demand, delivery, or other communication required or made
pursuant to this Agreement shall be in writing and shall be deemed to be properly given if
delivered in person or mailed by first class or certified mail, postage prepaid, or by express mail
courier (i.e. FedEx, UPS, etc.), or sent by fax or email communication in the manner provided
in this section. Any such notice shall be addressed to the other party at the address set forth
below. Consultant invoice/billing statement notices to City shall be sent to City’s Primary
Representative/Project Manager or designees. All notices, including invoice/billing statement
notices and notices of address changes, provided under this Agreement are deemed received on
the third day after mailing if sent by regular mail, or the next day if sent by overnight delivery.
If sent by fax, communication shall be effective or deemed to have been given twenty-four (24)
hours after the time set forth on the transmission report issued by the transmitting facsimile
machine, addressed as set forth above. If sent by email, communication shall be effective or
deemed to have been given twenty-four (24) hours after the time set forth on the delivery time
stamp notated by the internet service provider, addressed as set forth above. For purposes of
calculating these time frames, weekends, City Hall closure dates, federal, state, County or City
holidays shall be excluded.
If to City:
Clerk of the City
Council City of Santa
Ana 20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Executive Director
Finance and Management Services
Agency City of Santa Ana
20 Civic Center Plaza (M-
17) Santa Ana, CA 92702
Phone: (714) 647-6960
Fax: (714) 647-5414
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If to Consultant:
TSYS Merchant Solutions, LLC, dba Global Payments
Attn: David Green
Corporate Secretary
One Heartland Way
Jefferson, IL 47130
Fax: (480) 333-7979
Representative or designees: Consultant Primary Representative/Project Manager shall be:
Carl Van Laethem
Client Success Advisor/National Accounts Global Payments Integrated Phone: (801) 772-1671
Email: carl.vanlaethem@globalpay.com
Representative or designees: City Primary Representative/Project Manager shall be:
Willard Holt
Treasury and Customer Services Manager
20 Civic Center Plaza (M-15), Room 1105,
Santa Ana, CA 92701
Phone: (714) 647-5456
Fax: 714-647-5304
Email: wholt@santa-ana.org
A party may change its address or representative or designees by giving notice in writing to the
other party. Thereafter, any communication shall be addressed and transmitted to the new
address and/or new representative or designees.
14. COUNTERPART SIGNATURE AND DELIVERY
This Agreement must be signed below and may be signed in separate counterparts including
facsimile copies and delivered by fax, email as a PDF (Portable Document Format) file
attachment, or by other means that displays the original or a copy of the signatures. Each
counterpart (including facsimile copies) is deemed an original and all counterparts are deemed
on and the same instrument and legally binding on the parties. Any subsequent amendments to
this Agreement may be signed and delivered in the same manner.
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15.MISCELLANEOUS PROVISIONS
a.Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attorney’s fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
b.All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement. Provided however, that in the event that
any provision of any exhibit is in direct conflict with the provisions of this
Agreement then the terms of this Agreement will prevail solely with respect to
any such directly conflicting provisions, or portions thereof.
//
//
{Signatures on following page}
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IN WITNESS WHEREOF, the pa11ies hereto have executed this Agreement the date and year
first above written.
ATTEST:
Daisy Gomez
Cle rk of the Council
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
RECOMMENDED FOR APPROVAL:
Exec utive Director
Fi nance and Management Services Agency
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CITY OF SANT A ANA
Kiistine Ridge
City Manager
CONSULT ANT:
David Green
Corporate Secretary
SB
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EXHIBIT A
MERCHANT CARD PROCESSING AGREEMENT
Page 1 of 10 UNIVMERAGMT v22.0421
MERCHANT CARD PROCESSING AGREEMENT
PLEASE READ SECTION 20 (“ATTORNEY FEES; ARBITRATION; CLASS
ACTION WAIVER”) CAREFULLY AS IT RELATES TO ARBITRATION AND
CLASS ACTIONS
While all terms in this Merchant Agreement are important, here is a summary of some
sections on which we occasionally receive questions. These are common clauses in merchant
processing agreements throughout our industry.
• The introductory paragraphs explain that the Merchant Agreement consists of other
documents in addition to this Merchant Agreement.
• We can amend your Merchant Agreement by providing you with 15 days’ notice or,
under certain circumstances, with less than 15 days’ notice (see section 10).
• Unless confirmed otherwise on your application, the initial term of this Merchant
Agreement is three years. If you terminate early without cause, you may be required to
pay an early termination fee (see section 11).
• The proceeds you receive from transactions are provisional credits. We can charge or
debit your settlement account to recover these provisional credits. We can also debit your
Settlement Account to recover other amounts that you may owe us (see Section 12).
• If you dispute any charge or funding, you must notify us within 30 days of the date of
the statement (see section 12.5).
• In some circumstances, we may require the establishment of a reserve account with us
so we can mitigate risks. Section 13 explains how that reserve account will be funded and
how we may use money in that account.
• Our processing fees are set out in detail in the Merchant Application. We may change
these fees, but must ordinarily notify you before doing so (see Section 16).
• This agreement contains an arbitration clause (see Section 20.2) and a class action
waiver (see Section 20.3).
• This agreement is a complete and final agreement between us. It supersedes any
previous negotiations we may have had on the services and products. (Section 21).
This Merchant Card Processing Agreement (“MPA”) is for merchant card payment
processing services among the merchant (“Merchant”) that signed the Application for
Merchant Card Processing (“Merchant Application”), Member Bank, and Processor. The
Merchant Application and the MPA are part of the “Merchant Agreement” as defined below.
Subject to the requirements of the Operating Rules, Processor and Member Bank reserve the
right to allocate duties and obligations amongst themselves as they agree appropriate in their
sole discretion, and Member Bank or Processor may jointly or individually assert or exercise
any rights or remedies provided hereunder. If Merchant wishes to address any act or
omission by, or make or bring any claim or action against, Merchant Bank or Processor
relating to this Merchant Agreement, it shall first discuss such issue with Processor prior to
making or bringing any claim or action against Member Bank (in which case Processor shall
address the issue as agreed with Member Bank). Member Bank is responsible for sponsoring
Merchant with Visa and Mastercard, and for settlement of Merchant sales funds. Unless
otherwise noted, all other products, services and obligations to Merchant are the sole
responsibility of Processor.
VISA®, Inc. (“Visa”) and Mastercard® International, Inc. (“Mastercard”), the Discover®
Network (“Discover”), and the American Express® Network (“American Express”) are
collectively known herein as the “Card Associations.” If elected by Merchant on the
Merchant Application, Processor will settle American Express® Card and Discover®
Network transactions in accordance with the terms set forth in the Merchant Application and
in doing so, Processor does not represent or indicate in any way that Member Bank sponsors
Processor into the American Express Network and Discover Network. If Merchant elects
and is approved to participate in the American Express OptBlue Program, Merchant agrees
to comply with the American Express OptBlue Merchant Operating Guide, which may be
accessed at www.americanexpress.com/merchantopguide. Member Bank does not sponsor
Processor into the American Express Network and Discover Network, is not providing or
agreeing to provide Merchant any services hereunder with respect to American Express Card
and Discover Network Card transactions, does not determine or approve or agree upon any
fees, charges, pricing, or any other terms and conditions, relating to American Express Card
and Discover Network Card transactions, and has no responsibility or liability to Merchant
for American Express Card and Discover Network Card transactions. Nor does Member
Bank provide or agree to provide Merchant any services hereunder or have any responsibility
or liability to Merchant with respect to any PIN-based debit or stored value or electronic
benefit transfer transactions (except only to the extent, if any, required under Visa’s or
Mastercard’s Operating Rules or mandatory provisions of applicable law), or any PayPal
transactions, JCB, Carte Blanche, or other Card type transactions (other than Visa and
Mastercard Credit and non-PIN based debit/stored value /electronic benefit transactions,
including any such transactions made with Diner’s International Cards which also carry the
Mastercard Mark and are processed as Mastercard transactions), any CrossCheck or other
Check Services transactions, merchant gift or loyalty card transactions, or any other services
specified in the Merchant Application as covered in whole or in part by this Agreement but
as not being provided by Member Bank. No reference to Member Bank herein shall be
deemed to create any obligations or liability of Member Bank with respect to American
Express Card or American Express Network transactions or Discover Network Cards or
Discover Network Card transactions, or to any of the other types of Cards, transactions or
services referred to above or in the Merchant Application as not being provided by Member
Bank.
The appendices, addenda (including but not limited to the ACH Addendum, and Petro
Addendum if applicable), schedules, Fee Schedule, applicable product or services terms as
indicated on the Merchant Application, and ACH Terms and Conditions that accompany this
MPA, as amended from time to time as provided herein, are part of the terms and conditions
of this MPA, as are the Merchant Application and the Operating Rules, and are hereinafter
individually and collectively referred to as the “Merchant Agreement.” The Operating Rules
for Visa are located at https://usa.visa.com/support/consumer/visa-rules.html, and the
Operating Rules for Mastercard are located at https://www.mastercard.us/en-
us/business/overview/support/rules.html.
Capitalized terms used in this Merchant Agreement which are not defined herein shall
have the meaning given to them in the Merchant Application, which is incorporated by
reference into this Agreement and may be amended from time to time by Merchant
Bank or Processor upon notice to Merchant.
According to the processing services selected by Merchant on the Merchant Application and,
in accordance with the terms of this Merchant Agreement and applicable Operating Rules,
Merchant agrees to participate in Processor’s Card processing program by honoring Cards
in accordance with this Merchant Agreement; and to submit Transaction Receipts, Credit
Transaction Receipts and other electronic data to Processor for the Card Program services
provided by Processor.
With respect to Visa and Mastercard Transactions:
Member Bank is responsible for providing settlement funds directly to Merchant, and
Processor shall not have access to or hold settlement funds.
1. MERCHANT’S APPLICATION AND INFORMATION. By completing the
Merchant Application, Merchant applies for the Card Program services covered by the
Merchant Application and the Merchant Agreement. In their sole and absolute discretion,
Processor and/or Member Bank may accept or reject Merchant’s Merchant Application.
Merchant may present Transactions to Processor only for the activities and in the volumes
described on the Merchant Application, including the percentage of Mail/Phone Order and
Electronic Commerce Transactions. The earlier date of the presentation of the first
Transaction, including any test Transaction, by Merchant to Processor or the date Processor
approves the Merchant Application signifies the effective date of the Merchant Agreement
(the “Effective Date”). By either Merchant’s signature on the Merchant Application or
Merchant’s processing a Transaction (including a test Transaction) with Processor, Merchant
affirmatively accepts and agrees to be bound by the Merchant Agreement.
2. MERCHANT’S GENERAL DUTIES.
2.1 General. Merchant will comply with the Merchant Agreement for submitting and
processing Transactions with Processor. Processor is responsible to Merchant for processing
Transactions under the Operating Rules for the Card Program services to which Merchant
subscribes, which may vary among Card types.
2.2 Merchant’s Responsibility for Acts of Others. Merchant, and not Member Bank
or Processor, is responsible for any advice from, acts of, as well as omissions, acts of fraud
or acts of misconduct by, Merchant’s employees, processors, consultants, advisors,
contractors, Merchant Servicers, Agents, officers and directors. Merchant, and not Member
Bank or Processor, is responsible for the use, unauthorized use or misuse of Merchant’s
equipment, POS Equipment, or software.
2.3 Electronic and Paperless Notices and Disclosures. Merchant consents to
receiving electronically rather than in paper form all written notices, disclosures and other
documents (“Documents”) which are to be provided by Processor to Merchant under the
Merchant Agreement. Processor will notify Merchant that a Document is available at
Processor’s web site with a link to that specific page of the web site containing the Document.
Merchant agrees that such notification may be sent to Merchant at the e-mail address
provided as part of the Merchant Application.
By Merchant affirmatively checking the box to consent to receive paperless delivery of IRS
Notices on the Merchant Application, if applicable, Merchant acknowledges that it has
reviewed and received the Consent to Paperless Delivery of IRS Notices, located at
http://www.tsys.com/documents.html and that Merchant consents and agrees to receive IRS
notifications by paperless delivery.
Merchant understands and acknowledges that access to the Internet and e-mail are required
for Merchant to access Documents electronically or by paperless delivery and Merchant
confirms that Merchant has such access. Merchant understands that there are costs related to
accessing Documents electronically or by paperless delivery and Merchant agrees that
Merchant is responsible for these related access costs.
At any time, and without giving Merchant advance notice, Member Bank and/or Processor
may elect not to send a Document electronically or by paperless delivery, in which case a
paper copy of the Document will be sent to Merchant at Merchant’s last known address, as
provided by Merchant, or such Document shall otherwise be provided as provided for herein.
3. PROCEDURES FOR CARD TRANSACTIONS.
3.1 Honoring Cards.
(a) Limited Acceptance. If appropriately indicated herein, Merchant shall be a
Limited Acceptance Merchant, which means that Merchant has elected to accept only certain
Visa and Mastercard card types as indicated on the Merchant Application, or via later
notification. The Visa or Mastercard Credit acceptance option on the Merchant Application
refers to Visa Credit and Business transactions, and is what Mastercard refers to as “Other
Card” transactions. Notwithstanding anything to the contrary in the Application, Merchant
can elect (i) to accept only Visa or Mastercard non-PIN based debit/stored value/electronic
benefit transactions (sometimes referred to as “signature debit” transactions, whether or not
an actual signature is required), or (ii) to accept only Visa or Mastercard Credit transactions,
or (iii) to accept all Visa or Mastercard Credit and signature debit transactions; provided,
however, that a Merchant who accepts any Visa or Mastercard Card types must accept all
valid Visa or Mastercard Card types issued by a non-U.S. issuer. Merchant is not required
Page 2 of 10 UNIVMERAGMT v22.0421
to accept Card brands other than Visa or Mastercard in order to accept Visa or Mastercard
Cards (except that transactions using Diner’s International Cards which also carry the
Mastercard Mark must be accepted if Merchant accepts Mastercard Card transactions of the
same type). Merchant Bank and Processor have no obligation other than those expressly
provided under the Operating Rules and applicable law as they may relate to Limited
Acceptance. Member Bank’s and Processor’s obligations do not include policing card types
at the point of sale. Merchant will be solely responsible for the implementation of its decision
for limited acceptance including but not limited to policing the card type(s) of transactions
at the point of sale submitted for processing by Processor. Should Merchant submit a
transaction for processing for a card type it has indicated it does not wish to accept, Processor
may process that transaction and Merchant will pay the applicable fees, charges, and
assessments associated with that transaction. Merchant will comply with any applicable laws
and Operating Rules for the card type processed.
(b) Discover. If Merchant has chosen to accept Discover Card Transactions in the
Merchant Application, Merchant must accept Discover Cards at all Merchant establishments,
including in payment for purchases of goods and services, for charitable contributions and
for Cash Over Transactions, when properly presented for payment by a Cardholder. Subject
to this Section, a Merchant must create a Transaction Receipt for each Discover Card
Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder. A
Merchant may issue a Cash Over in connection with a Discover Card Transaction. Merchant
must deliver a single Authorization Request for the aggregate total of the goods/services
purchase amount and the Cash Over amount. In addition, the Transaction Receipt must
include both the purchase amount and the Cash Over amount.
(c) PayPal™. If Merchant has chosen to accept PayPal Payment Card
Transactions in the Merchant Application, Merchant must accept PayPal Payment Cards at
all Merchant establishments, including in payment for purchases of goods and services and
for charitable contributions when properly presented for payment by a Cardholder. Subject
to this Section, a Merchant must create a Transaction Receipt for each PayPal Card
Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder.
(d) American Express. If Merchant has chosen to accept American Express® Cards
in the Merchant Application, Merchant must accept American Express Cards as payment for
goods and services sold, or (if applicable) for charitable contributions made, at all of its
establishments, except as expressly permitted by state statute. Merchant is jointly and
severally liable for the obligations of Merchant’s establishments under the Merchant
Agreement. In the event Merchant’s American Express annual charge volume exceeds
$1,000,000 in a rolling twelve month period or is greater than $100,000 in any three
consecutive months, Merchant will be considered a High CV Merchant by American Express
and will be required to enter into a direct merchant card acceptance agreement with American
Express. Upon any conversion to a direct agreement with American Express, Merchant will
be bound by American Express’ then current Card Acceptance Agreement and to any pricing
and fees set by American Express. Merchant has the right to opt-out of acceptance of
American Express Cards at any time without affecting Merchant’s rights to accept other card
types. If Merchant elects to receive messages from American Express regarding products,
services and resources available to it, as indicated on the Merchant Application, Merchant
agrees messages maybe sent by American Express to the phone numbers, fax numbers or
email addresses provided by Merchant. If a wireless number is provided, Merchant agrees
communications may be sent via SMS or text in addition to automated calls. Merchant may
opt out of receiving messages by contacting Processor.
(e) EBT Transactions. If Merchant has chosen to accept Electronic Benefits
Transfer (“EBT”) transactions, Merchant agrees to issue United States Department of
Agriculture, Food and Nutrition Services (“FNS”) food stamp benefits (“FS Benefits”)
and/or government delivered cash assistance benefits (“Cash Benefits,” and with FS
Benefits, “Benefits”) to recipients (“Recipients”) in in accordance with the procedures
specified herein, and in all documentation and user guides provided to Merchant by
Processor, as amended from time-to-time; and pursuant to the Quest Operating Rules (the
"Quest Rules"), as amended from time-to-time, issued by the National Automated Clearing
House Association as approved by the Financial Management Service of the U.S. Treasury
Department. Unless otherwise defined herein, all capitalized terms shall have the meanings
ascribed them in the Quest Rules. Merchant will provide each recipient a receipt of each
Benefit issuance. Merchant will be solely responsible for Merchant’s issuance of Benefits
other than in accordance with authorizations. Merchant agrees to comply with all the
requirements, laws, rules and regulations pertaining to the delivery of services to Benefit
Recipients and Benefit Recipient confidentiality. If Merchant issues FS Benefits under this
Merchant Agreement, Merchant represents and warrants to Processor that Merchant is an
FNS-authorized "Merchant" (as such term is defined in the Rules) and is not currently
suspended or disqualified by FNS. Merchant agrees to secure and maintain at its own expense
all necessary licenses, permits, franchises, or other authorities required to lawfully effect the
issuance and distribution of Benefits under this Merchant Agreement, including without
limitation, any applicable franchise tax certificate and non-governmental contractor’s
certificate, and covenants that Merchant will not issue Benefits at any time during which
Merchant is not in compliance with the requirements of any applicable law. Merchant agrees
to hold Processor harmless from any costs of compliance or failure to comply with any such
obligation by Merchant. Processor may terminate or modify the provision of services to
Merchant if any of Processor’s agreements with government EBT agencies are terminated
for any reason or if any party threatens to terminate services to Processor due to some action
or inaction on the part of Merchant. Nothing contained herein shall preclude the State from
commencing appropriate administrative or legal action against Merchant or for making any
referral for such action to any appropriate Federal, State, or local agency. Any references to
"State" herein shall mean the State in which Merchant issues Benefits pursuant hereto. If
Merchant issues Benefits in more than one State pursuant hereto, then the reference shall
mean each such State severally, not jointly.
3.2 Operating Procedures for Transactions. In accepting Cards for the purchase of
Merchant’s goods and services, Merchant shall comply with the requirements of the
Merchant Agreement, including but not limited to the Operating Rules, as the same are
revised from time to time.
3.3 Submission of Valid Transactions.
(a) Merchant will submit to Processor a Transaction only if the Transaction is
made or approved by the Cardholder who is issued the Card used for the Transaction. The
burden of verifying the identity of the Cardholder and the Cardholder’s authority to initiate
a Transaction rests solely with Merchant. Merchant will not submit directly or indirectly: (i)
any Transaction that Merchant knows or should have known to be fraudulent or not
authorized by the Cardholder; (ii) any Transaction that results from a transaction outside of
Merchant’s normal course of business, as described on the Merchant Application; or (iii) any
Transaction containing the account of a Card issued to Merchant or any account numbers
issued to Merchant’s business owners, family members, principals or employees for
Transactions that do not represent a purchase of goods or services from Merchant or a credit
transaction related to a purchase of goods or services from Merchant .
(b) If at any time the volume of Transactions substantially exceeds or decreases
from the projected annual volume stated on the Application, or if at any time Processor
suspects fraud, money laundering or violations of the Operating Rules, Processor may, in its
sole and absolute discretion and in addition to other remedies that the Processor may have:
(i) refuse to process the excessive or suspect Transactions; (ii) process the Transactions and
retain the funds received from processing until such time as the excess or suspect
Transactions are found to be valid or invalid and processed in accordance with the Operating
Rules; (iii) suspend processing and/or terminate the Agreement; or (iv) amend the Merchant
Agreement to protect the interests of Processor.
3.4 Payments to Merchant for Valid Transactions.
(a) Member Bank and Processor will provide provisional credit to Merchant for
each undisputed and valid Transaction that Merchant submits to Processor by crediting
Merchant’s Settlement Account, provided Member Bank and Processor have received
settlement for the valid Transaction through the Interchange procedures specified by the Card
Association applicable to the Card used for the Transaction (Member Bank and Processor do
not provide payment for all Card types for which Authorization services are provided).
Member Bank and Processor are not obligated to provide provisional credit to Merchant for
Transactions submitted that are not valid Transactions, and may suspend or discontinue any
provisional credit in Member Bank’s and/or Processor’s sole and absolute discretion,
including for any reason that would justify termination of this Merchant Agreement. Each
provisional credit from Member Bank and Processor to Merchant will be subject to
adjustment, including revocation, upon Processor’s further review and verification.
Provisional credit to Merchant for a Transaction disputed by a Cardholder for any
reason is not final.
(b) Member Bank and Processor may deduct from any payment to Merchant the
amount of any Credit Transaction Receipt processed for Merchant, any Chargeback to
Merchant, any amount to be deposited in the Reserve Account and any Processing Fees and
amounts sufficient to reimburse Member Bank and Processor for the amount of any Card
Association assessments (sometimes referred to as “fines” or “penalties”) or charges due
from Merchant or for any current or future obligation of the Merchant that arises under the
Merchant Agreement. Merchant must immediately pay Member Bank and Processor the
amount by which a Credit Transaction Receipt processed on any day exceeds valid
Transactions submitted on that day. Without limiting Member Bank’s and Processor’s
remedies, Member Bank and Processor may obtain the amount due by deducting it from the
Settlement Account, Reserve Account or other accounts of or funds due Merchant.
(c) Merchant acknowledges that all payments and credits provided to Merchant
are provisional and subject to suspension, to Chargebacks and to adjustments in accordance
with the Merchant Agreement, including, but not limited to the Operating Rules.
3.5 Retrieval Requests. If Merchant deposits Transactions with Processor through
magnetic tape, electronic transmission, or electronic data capture terminal, upon the request
of a Card Association, Processor or Member Bank, Merchant shall respond to all Retrieval
Requests within the time frames specified in the applicable Operating Rules. If Merchant
does not respond or responds late to a Retrieval Request, Merchant may be without recourse
as Chargebacks for “non receipt of requested item” in most cases, cannot be reversed.
Member Bank and Processor are not obligated to provide provisional credit to Merchant for
any Retrieval Request and may suspend or discontinue any provisional credit in their sole
and absolute discretion.
3.6 Equipment; Supplies; Displays.
Important Note: Merchant acknowledges and agrees that Member Bank and its affiliates
have no duty, obligation or liability whatsoever for: (1) the POS Equipment, herein; (2) any
actions or omissions of Processor with respect to the POS Equipment; (3) failure of
merchant to perform routine maintenance and updates to the POS Equipment; (4) any
failure of merchant to adhere to standard security requirements as it relates to the POS
Equipment; or (5) any claims or disputes arising out of the foregoing.
(a) At Merchant’s request, Processor will supply Merchant with point-of-sale
equipment, including a terminal, router or other compatible or ancillary equipment, hardware
or device (collectively “POS Equipment”). Processor will use good faith efforts to program
or configure the POS Equipment to operate at the Merchant Outlets in compliance with the
Operating Rules; however, Processor makes no representations or warranties that
Processor’s programming of the POS Equipment furnished by Processor will operate in
compliance with the Operating Rules and applicable law. If Processor supplies Merchant
with POS Equipment or other equipment, then Merchant must return such equipment upon
termination of this Agreement.
(b) The individual providing the terminal to Merchant is an employee of
Processor, unless otherwise identified as an independent sales contractor. Merchant
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acknowledges and understands that POS Equipment may be supplied to Merchant that is
the property of Processor and is being provided to Merchant for free use subject to the
following conditions and requirements:
(i) Merchant shall be liable for a $495 fee for non-return of Processor
supplied POS Equipment if Merchant terminates or ceases processing under the terms of this
Agreement before the expiration of the initial or renewal term of this Merchant Agreement
and fails to return the POS Equipment within ten days of termination or of ceasing
processing.
(ii) Merchant shall be liable for a $450 fee for non-return of Encryption
Exchange POS Equipment if applicable;
(iii) Merchant will be liable for any damages to the POS Equipment from
the misuse or negligent use or handling of the POS Equipment;
(iv) Merchant will be liable for any reasonable monthly fee as determined
by Processor for paper or other supplies provided by Processor for use with the POS
Equipment; and
(v) Processor, at its absolute and sole discretion, may allow for one
terminal exchange at no charge, but may charge additional fees for subsequent exchanges.
(c) All Processor and third party POS Equipment and services provided or
procured by Processor under this Merchant Agreement are provided “AS-IS.” Processor
makes no warranty as to this POS Equipment’s fitness for any particular purpose (or any
other Warranty) and disclaims any liability resulting from the POS Equipment or Merchant’s
use of the POS Equipment.
(d) Merchant acknowledges that Processor or a third party is supplying the POS
Equipment and that Member Bank shall have no responsibility or liability for the POS
Equipment supplied to Merchant.
(e) Merchant will use only the forms for Transactions and electronic processing
formats provided or approved in advance by Processor. Processor may change the forms
from time to time, and, upon notification, Merchant will comply with any changes. Merchant
will use Transaction forms or materials provided by Processor only for Transactions which
Merchant submits to Processor.
(f) Merchant may not (i) indicate or imply that the Card Associations, Processor
or Member Bank endorses any Merchant goods or services, (ii) refer to a Card Association,
Processor or Member Bank in stating eligibility for Merchant’s products, services or
membership, or (iii) use any marks, symbols or logos owned by any Card Association,
Processor or Member Bank for any purpose other than those permitted in the Operating
Rules, provided that any use of Processor’s or Member Bank’s marks, symbols or logos shall
be in accordance with and subject to any branding guidelines provided by Processor and
Member Bank. Merchant acknowledges that Member Bank and Processor shall remain the
sole and exclusive owners of their respective intellectual property and Confidential
Information (defined below). Except to the extent expressly provided herein, no rights to
Processor’s or Member Bank’s intellectual property or Confidential Information are granted
hereunder, and all rights therein are expressly reserved.
3.7 Europay/Mastercard/Visa (“EMV”) Chip Card Compliance. Merchant agrees that
if Merchant does not use POS Equipment that has been certified EMV chip card compliant
and enabled or when a lost or stolen chip and PIN card is used at an EMV enabled terminal
capable of processing chip and signature only, Merchant may be liable for payment of any
transactions submitted for chargeback by the applicable EMV chip card issuer(s).
4. MERCHANT’S WARRANTIES. Upon signing the Merchant Application, and each
time Merchant submits a Transaction, Merchant represents and warrants that:
4.1 Merchant has abided by the Merchant Agreement, and all applicable laws , the
Operating Rules;
4.2 Each statement made on the Merchant Application was true as of the date Merchant
signed the Merchant Application agreeing to be bound by the Merchant Agreement;
4.3 There have been no materially adverse changes in information provided in the
Merchant Application or in Merchant’s financial condition, or management;
4.4 Merchant does not do business under a trade name or style not previously disclosed
in writing, and there has been no change in the nature of Merchant’s business or the product
lines that Merchant sells not previously disclosed;
4.5 The Transaction is genuine and arises from a bona fide sale of merchandise or
services by Merchant, represents a valid obligation for the amount shown on the Transaction
Receipt and does not involve the use of the Card for any other purpose;
4.6 Merchant has title to the Transaction and Transaction Receipt, there are no liens or
other encumbrances on it, and Merchant has the authority to convey the Transaction for
processing;
4.7 The Transaction is not subject to any dispute, set-off or counterclaim;
4.8 The Transaction has not been previously presented for processing unless allowed
by the Operating Rules;
4.9 Each statement on the Transaction Receipt is true, and Merchant has no knowledge
of facts that would impair the validity or collectability of the amount of the Transaction;
4.10 The person who executes the Merchant Application on behalf of Merchant has the
full power and authority to execute the Merchant Application and to enter into the Merchant
Agreement;
4.11 The Merchant Agreement is the legal, valid, and binding obligation of Merchant
enforceable against Merchant in accordance with its terms;
4.12 Merchant shall submit Transactions only in accordance with the information
contained in the Merchant Application and the Merchant Agreement;
4.13 Merchant has the power and authority to authorize the automatic funds transfer
provided for in the Merchant Agreement;
4.14 The Settlement Account is owned and controlled by Merchant and is a valid
account for processing debit and credit transactions under the Merchant Agreement;
4.15 Merchant is not (i) a Sanctioned Person, (ii) located in or operating under a license
issued by a jurisdiction whose government has been identified by the U.S. Department of
State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j),
(iii) located in or operating under a license issued by a jurisdiction that has been designated
as non-cooperative with international anti-money laundering principles or procedures by an
intergovernmental group or organization of which the U.S. is a member, or (iv) located in or
operating under a license issued by a jurisdiction that has been designated by the U.S.
Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to
money laundering concerns; and
4.16 Merchant will immediately notify Member Bank and Processor in writing of any
material changes to any information provided herein including but not limited to a change in
Merchant’s legal entity, location, business type, or the types of goods and services offered
for sale by Merchant.
5. CONFIDENTIALITY; DATA SECURITY.
5.1 Confidentiality. Merchant will treat as confidential: (i) the terms of the Merchant
Agreement; (ii) all information or data, of whatever nature, relating to Processor (including
its operations, policies, procedures, accounts and personnel) accessed or used by or disclosed
to Merchant in connection with the Merchant Agreement; (iii) Processor’s IRS W-9 form;
and (iv) all information or data that is proprietary to a third party (including Processor’s
customers and contractors) and that Processor is obligated to treat as confidential, accessed
or used by or disclosed to Merchant in connection with the Merchant Agreement
(individually and collectively, “Confidential Information”). Merchant shall not use or
disclose Confidential Information without Processor’s prior written consent. Merchant may
only disclose Confidential Information to Merchant employees who have a need to know
such information in connection with Merchant’s performance hereunder and who are bound
to confidentiality restrictions no less restrictive than those herein. Merchant shall exercise
at least the same degree of care to maintain the confidentiality of Confidential Information
that it uses for its own similar information, but in no event less than a reasonable degree of
care. The foregoing obligations shall not apply to any information that (x) is received from
any third party source that is properly authorized to disclose it without restriction, (y) is or
becomes generally known to the public by publication or some other means other than a
breach by Merchant or its employees of any agreement or confidentiality obligations, or (z)
is required by law to be divulged, provided that the request is proper and the disclosure does
not exceed that which is required. In the case of (z), Merchant will provide prior notice
thereof and cooperate with Processor to limit disclosure. Upon Processor’s request, and upon
termination or expiration of the Merchant Agreement, Merchant shall return or, only if
requested by Processor, destroy all Confidential Information in its possession or control.
Merchant acknowledges that a breach of this Section 5 may cause Processor irreparable
injury and that Processor may have no adequate remedy at law. Accordingly, Processor may
seek provisional or injunctive relief in addition to any other rights or remedies.
5.2 Transaction Receipts. Merchant will retain in a secure and confidential manner
original or complete and legible copies of each Transaction Receipt, and each Credit
Transaction Receipt required to be provided to Cardholders, for such period as required by
law or the Operating Rules. Merchant shall render all materials containing Cardholder
Account Numbers unreadable prior to discarding. Merchant is responsible for ascertaining
whether applicable law requires copies retained by Merchant to truncate card numbers and
suppress expiration dates, and for complying with all such laws.
5.3 Storage. Merchant will store Transaction Receipts and Credit Transaction
Receipts in an area limited to selected and authorized personnel, and when record-retention
requirements have been met, Merchant will destroy the records so that the same are rendered
unreadable.
5.4 Merchant Servicers and Agents. Merchant must notify Processor and receive
Processor’s approval prior to engaging any Merchant Servicer or Agent in connection with
Merchant’s acceptance of Cards or the submission of Transactions to Processor. Merchant
shall provide Member Bank and Processor at least sixty days advance written notice of
Merchant’s election to use a Merchant Servicer or Agent. Member Bank and/or Processor
may individually approve or deny the use of a Merchant Servicer or Agent in their sole and
absolute discretion and at any time. If a Merchant Servicer or Agent is required to certify,
register, or act in any fashion pursuant to the Operating Rules, Merchant shall cause such
Merchant Servicer or Agent to cooperate with Processor in completing any steps required
for registration and/or certification and/or action. Merchant is solely responsible for any and
all applicable fees, costs, expenses and liabilities associated with such registration and/or
certification and/or action. Processor and Member Bank shall in no event be liable to
Merchant or any third party for any actions or inactions of any Merchant Servicer or Agent
used by Merchant, and Merchant hereby expressly assumes all such liability.
Merchant will immediately notify Processor if Merchant decides to use electronic
authorization or data capture terminals provided by any entity other than Processor or its
authorized designee (“Third Party Terminals”) to process Transactions, including leasing a
terminal from a third party. If Merchant elects to use Third Party Terminals: (a) the third
party providing the terminals will be Merchant’s Merchant Servicer in the delivery of
Transactions to Processor; and (b) Merchant assumes full responsibility and liability for any
failure of that third party to comply with the Operating Rules, applicable laws, rules or
regulations or the Merchant Agreement. Processor and Member Bank will not be responsible
for any losses or additional fees incurred by Merchant as a result of any error by a third party
agent or a malfunction in a Third Party Terminal.
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The use of a Merchant Servicer or Agent or software or systems provided by a Merchant
Servicer or Agent that has connectivity to the Internet poses an increased risk, and Merchant
assumes all liability for such increased risks. If Merchant utilizes software or hardware with
a connection to the Internet such hardware or software interacts in any capacity with the
provision of services contemplated pursuant to this Merchant Agreement, Merchant is solely
liable without limitation for any and all consequences of such interaction.
5.5 Security. Merchant agrees and shall ensure that Merchant Servicers and Agents
utilized by Merchant provide the same levels of security as those required of Merchant, and
that such Merchant Servicers and Agents transmit data in accordance with: (a) the required
format(s) of the Card Associations; (b) the Operating Rules; and (c) the requirements of
Processor and Member Bank. Merchant must have a written contract between Merchant and
its Agent or between Merchant and the Merchant Servicer that stipulates adherence to the
provisions of such information security requirements. Merchant’s written contract with any
such third party must contain provisions obligating the third party to comply with applicable
law, with CISP and SDP and DISC and PCIDSS, PA-DSS, PIN and PED security
requirements if applicable, and all other Card Association requirements pertaining to
confidentiality and security and integrity of Cardholder and Card transaction data, with all
rules prohibiting storage of certain Card transaction data, and with all other applicable
Operating Rules and the requirements of Processor and Member Bank. Merchant will only
allow Merchant Servicers or Agents to have access to cardholder data for the purposes that
are authorized by the Operating Rules. Any fees or liability assessments from actual or
alleged noncompliance will be the sole liability of the Merchant. Merchants processing less
than 1 million annual Visa transactions and using third parties for POS application, terminal
installation and integration must engage Payment Card Industry (PCI) Qualified Integrator
Reseller (QIR) professionals to install, integrate, and support point-of-sale applications and
terminal installation and integration. Merchant shall indemnify and hold Member Bank and
Processor harmless against losses or damages arising from the acts or omissions of Merchant
Servicers or Agents engaged by Merchant.
5.6 Loss or Theft. Merchant must immediately notify Member Bank and Processor
of any suspected or confirmed loss or theft of materials or records that contain Cardholder
Account Numbers or Card Transaction information. In the event of a suspected or confirmed
loss or theft Merchant shall provide immediate access to all facilities, systems, procedures,
equipment, and documents as may be deemed appropriate by Processor and Member Bank
or their designated representatives, regulators or auditors for inspection, audit, and copying
as deemed appropriate by both Member Bank and Processor in their individual sole
discretion. Merchant shall be responsible for all costs associated with such inspection, audit,
and copying however such costs may occur.
5.7 Merchant authorizes Processor to release its name and address to any third party
whom the Processor determines needs to know such information in order for Processor to
perform the Card Program services under this Merchant Agreement and who has requested
such information.
5.8 Merchant will not: (a) provide Cardholder Account Numbers, personal Cardholder
information or Transaction information to anyone except Processor, the Card Associations,
or Merchant’s Merchant Servicers or Agents for the purpose of assisting Merchant in
completing Card Transactions, or as specifically required by law; (b) retain or store Card
Magnetic Stripe, CVV, CVV2, CVC2 or CID data (including Track Data) subsequent to
Authorization for a Transaction; (c) sell, purchase, provide or exchange Card Account
Number information to any third party without the Cardholder’s consent, or to any entity
other than Merchant’s Merchant Servicers or Agents, Processor, the Card Associations, or in
response to valid legal process or subpoena; or (d) release any Cardholder information over
the telephone under any circumstances.
5.9 Merchant may not in any event, including its failure, including bankruptcy,
insolvency, or other suspension of business operations, sell, transfer, or disclose any
materials that contain Cardholder Account Numbers, personal information or Transaction
information to third parties. In the event that Merchant’s business fails or ceases to exist,
Merchant is required to return to Processor all such information or provide proof of
destruction of this information to Processor.
5.10 Merchant agrees to establish security procedures to protect Cardholder information
and comply with the Visa Cardholder Information Security Program (CISP), Mastercard’s
Site Data Protection (SDP) Program, Discover Information Security Compliance (DISC),
American Express Data Security Requirements, the Payment Card Industry (PCI) Data
Security Standards, and applicable laws pertaining to the privacy and security of personal
information (including, without limitation, and to the extent applicable, those of non-U.S.
governmental authorities). Detailed information about PCI DSS can be found at the PCI
DSS Council’s Website: www.pcisecuritystandards.org. The Card Associations, Processor
or Member Bank, and their respective representatives, may inspect the premises of Merchant
or any Merchant Servicer or Agent engaged by Merchant for compliance with security
requirements. Merchant acknowledges that any failure to comply with security requirements
may result in the imposition of restrictions on Merchant or the permanent prohibition of
Merchant’s participation in Card acceptance programs by the Card Associations. Merchant
shall indemnify and hold Processor and Member Bank harmless against any losses or
damages arising from Merchant's actual or alleged failure to comply with security procedures
and any losses or damages arising from or related to Merchant's acts or omissions that result
in an actual or alleged breach of data security, including but not limited to Merchant's non-
participation in any breach security program Processor may offer.
5.11 Processor acknowledges that it will maintain compliance with all applicable PCI
DSS requirements.
5.12 Federal regulations enacted pursuant to the USA PATRIOT Act and other
applicable laws require financial institutions with which Processor has relationships to verify
the identity of every person who seeks to open an account with a financial institution. As a
result of Merchant’s status as an account holder with Member Bank, Merchant shall provide
documentary verification of Merchant’s identity, such as a driver’s license or passport for an
individual and certified copy of organization documents for an entity in manner acceptable
to Processor and Member Bank. Processor and Member Bank reserve the right to verify
Merchant’s identity through other non-documentary methods as Processor and Member
Bank deems appropriate in its sole discretion. Processor and Member Bank may retain a
copy of any document it obtains to verify Merchant’s identity with the financial institution.
6. OPERATING RULES.
6.1 Merchant must comply with the Operating Rules, as the same may be amended
from time to time. The Operating Rules may change with little or no advance notice to
Merchant and Merchant will be bound by all such changes. If Merchant objects to any
change in the Operating Rules, it must immediately stop accepting new Transactions for
Cards governed by the change. The Operating Rules will govern in the event that there is
any inconsistency between the Merchant Agreement and the Operating Rules. However,
nothing in the Merchant Agreement shall be construed to impose on Merchant a requirement
(including a requirement under the Operating Rules) which is prohibited by mandatory
provisions of applicable law (i.e., where the applicability of such provisions of law to the
Merchant Agreement, and of the law’s prohibition to the particular requirement which
otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by
agreement), but the requirement hereunder shall be construed to continue in effect and to be
imposed on Merchant in all respects and at all times to the fullest extent possible without
violating the law’s prohibition, with only those particular applications of the requirement
which would violate the law’s prohibition deemed severed from the provisions hereof.
6.2 Operating Rules of the Debit Networks may differ among them with respect to the
Transactions they allow. Processor, at its discretion, may require that the most restrictive
requirements of one Debit Network apply to all of Merchant’s On-line Debit Card
Transactions, regardless of Card type.
7. MERCHANT’S BUSINESS; OTHER PROCESSORS.
7.1 Compliance With Laws. Merchant will comply with all applicable federal, state,
and local laws and regulations (“Requirements of Law”), including but not limited to laws
and regulations regarding anti-money laundering compliance, in completing Transactions,
submitting them to Processor, performing its obligations under the Merchant Agreement, and
otherwise conducting its business.
7.2 Change in Name or Business. Merchant will give Member Bank and Processor
at least thirty days’ prior written notice before any change in Merchant’s name or location,
any change in ownership or management of Merchant’s business, any sale, assignment,
rental, lease or transfer of ownership of any location that accepts Cards, or any material
change in information concerning Merchant in the Merchant Application, and material
change in the type or nature of the business carried out by Merchant or otherwise required to
be provided to Processor.
7.3 Other Processors. To the extent permitted by applicable law, Merchant agrees
that it will not participate in a Card Program with another financial institution or processor
without Processor’s written approval.
8. CREDIT REPORTS AND OTHER INFORMATION.
8.1 Reports About Merchant. From time to time, Processor may obtain credit and
other information on Merchant, owners and officers of Merchant, any and all personal
guarantors of Merchant, and any signatory to the Merchant Application, from others (such
as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish
information on Merchant’s relationship with Processor and Processor’s experience with
Merchant to others seeking the information.
8.2 Reports from Merchant. Merchant will provide Processor with updated business
and financial information concerning Merchant, including financial statements, tax returns,
evidence of required licenses and other information and documents Processor may
reasonably request from time to time. Merchant shall further provide Processor such
information as it may request for the making of insurance claim, regulatory or other filings
related to Merchant’s activity pursuant to this Agreement. All material marked “confidential”
which Processor receives from Merchant will be used only by Processor, Member Bank or
Card Association in performing the Card Program services under this Merchant Agreement
or related services and reporting. Processor, Member Bank and any Card Association,
regulator, auditor or any other entity having authority may audit Merchant’s records relating
to this Merchant Agreement. Merchant shall provide all documentation, information or other
inspection rights requested by Processor’s or Member Bank’s regulators or auditors or
otherwise to enable Processor and Member Bank to meet Requirements of Law. Without
limiting the generality of the foregoing, Merchant understands and agrees that if, at the time
of signing this Merchant Agreement Merchant is undergoing a forensic investigation,
Merchant must notify Processor and fully cooperate with the investigation until it is
completed.
8.3 Information. Merchant authorizes Processor to release and use information
collected in connection with Processor’s provision of services to the Merchant contemplated
in the Merchant Agreement, to third parties that provide services to Processor or Merchant,
for marketing purposes with third parties with whom Processor has a relationship to offer
products and/or services to merchants, or to any third party that requests and has a reason to
know such information, including but not limited to the Card Associations, and any third
party having regulatory control over any party.
9. ASSIGNMENT; BANKRUPTCY.
9.1 Assignment. The Merchant Agreement is binding upon the successors and assigns
of Processor, Member Bank and Merchant. Merchant will not assign or transfer (including
by merger, change of control or operation of law) the Merchant Agreement (in whole or in
part) to another person or entity without Processor and Member Bank’s prior written consent
Page 5 of 10 UNIVMERAGMT v22.0421
and any purported assignment made without Processor’s and Member Bank’s consent will
be void.
9.2 Bankruptcy.
(a) Merchant will notify Processor immediately if any bankruptcy, insolvency or
similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant
Agreement constitutes an executory contract to extend financial accommodations as defined
in 11 U.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in
the event of bankruptcy. Merchant and Processor agree that in the event of Merchant’s
bankruptcy, Processor shall be entitled to suspend further performance under this Merchant
Agreement.
(b) Merchant acknowledges and agrees that in the event of a bankruptcy
proceeding, Merchant must establish a Reserve Account or maintain a previously established
and then current Reserve Account in amounts required by Processor and in accordance with
any Reserve Account provision specified in this Merchant Agreement. Processor will have
the right to setoff against the Reserve Account for any and all obligations which Merchant
may owe Processor, without regard as to whether the obligations relate to Transactions
initiated or created before or after the filing of the bankruptcy petition.
10. AMENDMENTS; WAIVERS.
10.1 Amendments. Bank shall have the right to modify or amend the terms and
conditions of this Merchant Agreement, including, without limitation, the right to modify,
amend, or supplement applicable fees, charges, and/or discounts. Modifications and
amendments related to changes to the Operating Rules, changes to the fees charged by the
Card Associations, Member Bank, or third parties, or in response to changes in Requirements
of Law (collectively, a “Third Party Change”) may be made effective immediately, with or
without notice. Modifications or amendments unrelated to a Third Party Change shall be
effective upon the date specified in a notice to the Merchant (the “Change Notice”), provided
that the date shall not be fewer than five business days after the date of such Change Notice.
A Change Notice may be reflected as a message attached to Merchant’s monthly billing
statements. Following the Effective Date, in the event of any modification or amendment not
related to a Third Party Change, Merchant shall have the right to terminate this Merchant
Agreement, without liability for premature termination pursuant to Section 11.2(d), by
providing written notice thereof to Processor, provided that such notice must be given within
five business days following the date of the Change Notice. Other than the amendments set
forth above, this Merchant Agreement may be amended only in writing signed by Merchant,
Member Bank, and Processor.
10.2 Waivers. Bank’s failure to enforce this Merchant Agreement will not waive
Bank’s rights under this Merchant Agreement. Waivers of any provision of this Merchant
Agreement must be in writing and signed by Bank. A waiver in one instance will not apply
to other occasions unless that intent is clear from the signed waiver.
11. TERM; TERMINATION.
11.1 Term/Renewal. The initial term of this Merchant Agreement shall be for the term
of three years (the “Initial Term”) commencing on the earlier date of the presentation of the
first Transaction, including any test Transaction, by Merchant to Bank or the date Bank
approves the Merchant Application; provided, however, that if Merchant is receiving these
terms and conditions as an amendment to an existing Merchant Agreement, the amendment
shall not affect the then-existing term. By either Merchant’s signature on the Merchant
Application or Merchant’s processing a Transaction with Bank, Merchant confirms
acceptance of the Merchant Agreement. At the expiration of the Initial Term, this Merchant
Agreement will automatically renew for successive one year periods (each a “Renewal
Term” and collectively with the Initial Term the “Term”) unless a party provides the other
parties with notice of its intent not to renew the Merchant Agreement at least ninety days
prior to the expiration of the then current term.
11.2 Termination.
(a) Termination without Cause. Member Bank or Processor or Member Bank’s
or Processor’s designated representative may terminate the Merchant Agreement as to all
Card types or individually specified Card types, without cause, upon thirty days advance
written notice.
(b) Termination for Cause by Processor or Member Bank. Member Bank or
Processor or Member Bank’s or Processor’s designated representative may terminate the
Merchant Agreement in its sole and absolute discretion, effective immediately, upon written,
electronic or oral notice, to Merchant if Member Bank or Processor reasonably determines
that any of the following conditions exists:
(i) Merchant has violated any provision of the Merchant Agreement.
(ii) There is a material adverse change in Merchant’s financial condition,
material change in Merchant’s processing activity, processing activity inconsistent with the
Merchant Application, or Member Bank or Processor determines in its sole discretion that
Merchant’s processing activity could result in a loss to Processor or Merchant Bank.
(iii) A petition in bankruptcy has been filed by or against Merchant,
Merchant is generally unable to pay its debts as they become due, a receiver, custodian,
trustee, liquidator or similar official is appointed for a substantial portion of Merchant’s
business, there is a general assignment for the benefit creditors, or the business terminates.
(iv) Any information which Merchant provided to Processor or Merchant
Bank, including Merchant Application information, was false, incomplete or misleading
when received, or has materially changed since Merchant provided such information.
(v) At any time during the term of the Merchant Agreement, Merchant has
had a monthly ratio of Chargebacks to Transactions that Processor or Member Bank, in their
sole and absolute discretion, deems excessive.
(vi) There is an overdraft for three days or more in the Settlement Account,
or overdrafts in the Settlement Account are otherwise excessive.
(vii) Merchant or any of Merchant’s officers or employees has been
involved in processing Transactions with Processor or Member Bank or other parties arising
from fraudulent or otherwise unauthorized transactions.
(viii) Merchant is or will be unable or unwilling to perform its obligations
under the Merchant Agreement or any applicable laws.
(ix) Merchant has failed to pay Processor or Member Bank any amount
when due.
(x) Merchant has failed to promptly perform or discharge any obligation
under the Merchant Agreement, the Settlement Account or the Reserve Account.
(xi) Any of Merchant’s representations or warranties made in connection
with the Merchant Agreement was not true or accurate when given.
(xii) Merchant has defaulted on any agreement it has with Processor or
Member Bank.
(xiii) Processor or Member Bank is served with legal demand, order or
process seeking to attach or garnish any of the provisional credits arising out of or relating
to the Merchant Agreement, Merchant’s funds or property in Processor’s or Member Bank’s
possession,
(xiv) The Operating Rules are amended in any way such that Processor or
Member Bank determines that the continued existence of the Merchant Agreement would
cause Processor or Member Bank to be in breach of such Operating Rules.
(xv) Any Guaranty supporting Merchant’s obligations is revoked,
withdrawn or terminated or altered in any way.
(xvi) Any governmental entity initiates proceedings against, or an
investigation regarding, Merchant, or Processor or Member Bank reasonably believes that a
governmental entity may do so.
(xvii) If any circumstances arise regarding Merchant or its business that, in
Processor’s or Member Bank’s discretion, make harm or loss of goodwill to Processor,
Member Bank or any Card Association likely.
(c) Termination for Cause by Merchant. Merchant may terminate the Merchant
Agreement in the event of a material breach of the terms of the Merchant Agreement by
Processor, provided Merchant gives Processor written notice of any alleged breach and such
breach remains uncured for a period of thirty days following receipt of written notice by the
Processor.
(d) Damages for Early Termination.
(i) Processor and Merchant acknowledge and agree that in addition to all
other remedies available to Processor under the Merchant Agreement or as otherwise
available in law or equity, if the Merchant Agreement is terminated prior to the expiration of
the applicable Term of the Merchant Agreement for any reason other than for a material,
uncured breach by Processor, Merchant agrees to pay Processor damages (the “Damages”)
determined by adding an account closure fee as follows (unless a different amount is
disclosed on the Merchant Application): (1) $250 for Merchants with less than twelve months
remaining from the date of termination to the end of the then current Term, or; (2) $500 for
Merchants with more than twelve months remaining, or such portion of the foregoing as may
be permitted by applicable law.
(ii) Merchant agrees that such Damages shall also be due to Processor if
Merchant discontinues submitting Transactions for processing during the Term for a period
of ninety (90) consecutive days, and is not designated on the Merchant Application, or by
notice to Processor, as a seasonal merchant or as otherwise agreed to by Processor.
(iii) Merchant acknowledges and agrees that the Damages are not a penalty
but rather are a reasonable computation of the financial harm caused by the termination of
the Merchant Agreement or the cessation of processing activity by Merchant.
(e) Member Bank’s or Processor’s rights of termination under the Merchant
Agreement are cumulative. A specific right of termination shall not limit any other right of
Processor or Member Bank to terminate the Merchant Agreement expressed elsewhere in the
Merchant Agreement. Notice of termination may be given orally or in writing, if given orally,
shall be confirmed in writing, except as otherwise stated in the Merchant Agreement.
(f) Upon termination, Merchant’s rights to complete Transactions and submit
them to Processor, and to use Transaction form or formats, promotional material and any
other items provided by Processor, will cease. Termination of the Merchant Agreement will
not terminate the rights and obligations of Merchant, Processor and Member Bank relating
to acts or omissions occurring before termination, including for example, any Processing
Fees or other service fees owed to Processor, any Transactions processed for Merchant by
Processor (whether before or after termination), Merchant’s Chargeback and indemnity
obligations, and the Security Interest granted to Processor and Member Bank in the Merchant
Agreement.
(g) It is understood that a file for terminated merchants referred to as Member
Alert to Control High-Risk Merchants (“MATCH”), formerly known as the Terminated
Merchant File (“TMF”), is managed and maintained by Mastercard and utilized by the Card
Associations and acquiring banks to identify the names of any business (and its principals)
that have been terminated for certain reasons, including fraud, depositing excessive
counterfeit paper, excessive unauthorized transactions, excessive chargebacks, depositing
paper for others (laundering), bankruptcy or breach of a Merchant Agreement. Merchant
acknowledges that Member Bank or Processor is required to report Merchant to the MATCH
(and/or on the Consortium Merchant Negative File (the CMNF) published by Discover®
Network) if the Merchant Agreement is terminated for any of the foregoing reasons or other
reasons as may be modified by the Card Associations. Merchant agrees and consents to such
reporting in the event of the termination of the Merchant Agreement for any of the foregoing
reasons, and Processor and Member Bank shall have no liability for such reporting, even in
Page 6 of 10 UNIVMERAGMT v22.0421
instances where Merchant contends that the foregoing bases for termination do not, in fact,
exist.
(h) Sections 2.3, 3, 4, 5, 6, 7, 8.1, 9.1, 10.2, 11, 12, 13, 14, 15, 16.3, 16.4 17, 18,
19, 20, 22, 23, 24, and 25 will survive termination of the Merchant Agreement.
12. SETTLEMENT ACCOUNT.
12.1 Settlement Account Required. Merchant must maintain a Settlement Account in
Merchant’s name in satisfactory condition at a depository institution under arrangements
acceptable to Processor. The Settlement Account will be subject to the provisions of Section
14 of this Merchant Agreement.
12.2 Minimum Balance. Merchant agrees to maintain a minimum balance of funds in
the Settlement Account as Processor may specify to Merchant in writing from time to time.
12.3 Provisional Credits. Subject to the terms and conditions of the Merchant
Agreement, Processor and Member Bank agree to provisionally credit Merchant for each
Transaction that Processor accepts from Merchant. Merchant acknowledges that Processor
and Member Bank may reverse or revoke such credit, including in response to any
Chargeback. Furthermore, Merchant agrees that Processor and Member Bank may charge or
debit the Settlement Account for the amount of any Transaction processed under the
Merchant Agreement, or any agreement Processor or Member Bank may have with any
Merchant Affiliate, that results in a Chargeback, or for any Credit Transaction Receipt or
other reimbursement or Processing Fees or other Merchant obligation to which Processor or
Member Bank may be entitled under the Merchant Agreement.
12.4 Audits and Adjustments. Merchant agrees that Processor and Member Bank may
audit all Transaction calculations and that Processor and Member Bank shall have the right,
without notice, to make withdrawals, deposits, or other adjustments to or from the Settlement
Account for any deficiencies or overages.
12.5 Errors and Disputes. Processor and Member Bank shall be entitled to presume
that any amounts the Processor and Member Bank pays to or debits from Merchant are
correct unless Merchant disputes these by sending Processor written notice within thirty days
of the date of the applicable statement containing any disputed payments or debits.
PROCESSOR AND MEMBER BANK SHALL NOT BE LIABLE FOR ANY DISPUTED
PAYMENTS OR DEBITS, INCLUDING ANY ALLEGEDLY IMPROPER FEE(S),
UNDERPAYMENTS, OR BILLING ERRORS, WHICH ARE NOT REPORTED TO
PROCESSOR IN WRITING WITHIN SUCH THIRTY-DAY PERIOD.
12.6 POS Equipment. If Merchant chooses to rent or lease POS Equipment from
Processor or utilizes software provided by Processor for use in processing Transactions,
Merchant agrees to pay Processor: (a) a pre-determined monthly rental fee; (b) any initial
upfront costs as required; and (c) all applicable taxes for such POS Equipment or software
utilization.
12.7 Settlement Account Closure. If the Settlement Account is closed, Processor or
its designated representative may terminate the Merchant Agreement, effective immediately,
upon written or oral notice (with written confirmation in the event of oral notice) unless
Merchant opens another Settlement Account acceptable to Processor. Merchant may change
the Settlement Account upon prior written approval by Processor, which approval will not
be unreasonably withheld.
12.8 ACH Authorization. Merchant authorizes Processor and Member Bank or their
agents or designated representatives to initiate debit and credit entries and adjustments to the
Settlement Account or the Reserve Account (described in Section 13 of the MPA) through
the ACH settlement process for amounts due under the Merchant Agreement. This
authorization will remain in full force and effect until termination of the Merchant
Agreement and the full and final payment of all obligations of Merchant due under the
Merchant Agreement. Merchant acknowledges and agrees that Processor and Member Bank
will not be liable for any delays in receipt of funds, any failure by Merchant to receive funds,
or errors in debit or credit entries caused by Merchant, or third parties, including but not
limited to any Card Association or any financial institution.
13. ADDITIONAL COLLATERAL SECURITY; RESERVE ACCOUNT.
As a condition for providing Card Program services, Merchant may, at Processor’s
discretion, be required to provide additional collateral security for Merchant’s obligations
hereunder, which additional collateral security shall be of a kind, and in amounts, satisfactory
to Processor in Processor’s sole discretion, and which shall be in addition to all other
collateral provided for in Section 14 hereof. Processor may require that all or any part of the
additional collateral be deposited in a Reserve Account, in which case the following
provisions of this Section 13 shall apply:
13.1 Reserve During Term of Merchant Agreement.
(a) Merchant may be required to deposit, or Processor or Member Bank may
deposit by deducting from any provisional credit or payment otherwise due to Merchant or
from any funds in the Settlement Account or any other deposit account of Merchant, into an
account maintained by Member Bank (or at another approved depository institution) (the
“Reserve Account”), initially or at any time in the future as requested by Processor, sums
sufficient to satisfy Merchant’s current and/or future obligations as determined by Processor
in its sole and absolute discretion. In lieu of establishing a Reserve Account, Processor may,
at its election, demand and receive other forms of additional collateral security, including,
without limitation, letters of credit or certificates of deposit. Failure to supply such additional
collateral security shall constitute a material breach of this Merchant Agreement.
(b) The Reserve Account will be separate from the Settlement Account.
Notwithstanding anything else in this Merchant Agreement to the contrary, Merchant shall
have no ownership interest or property rights in the Reserve Account or the funds therein,
no right of withdrawal from the Reserve Account, and no right to receive interest on funds
held in the Reserve Account. Rather, the Reserve Account shall be under the sole control of
Member Bank. Any and all earnings from deposits of Merchant to the Reserve Account shall
be the sole property of the Processor.
13.2 Reserve Account Deposits.
(a) At any time in Processor’s sole and absolute discretion, Processor may (i)
designate the minimum balance required to be deposited in the Reserve Account, (ii) require
that the amount on deposit in the Reserve Account be increased, (iii) require that Merchant
deposit, or Processor or Member Bank may deposit for Merchant into the Reserve Account
a percentage of, or a fixed amount from each Transaction processed, or (iv) otherwise
determine the amount to be deposited in the Reserve Account. Processor at its sole and
absolute discretion may require that each month Merchant deposit, or Processor or Member
Bank may deposit by deducting from any provisional credit or payment due to Merchant or
from any funds in the Settlement Account or any other deposit account of Merchant sums
into the Reserve Account no later than the twentieth day of the month. Processor shall notify
Merchant as to the amount of the funds to be deposited each month.
(b) Merchant acknowledges and agrees that the Reserve Account may contain
both funds deposited by Merchant and funds of other merchants of the Processor.
13.3 Deductions from Reserve Account. If funds are not available in the Settlement
Account, Processor or Member Bank without prior notice to Merchant may deduct from any
provisional credits or payment due to Merchant that are maintained in the Reserve Account
any current or future obligation of Merchant to Processor or Member Bank under the
Merchant Agreement, including all Processing Fees, Chargebacks, Credit Transaction
Receipts, Damages, and any and all additional fees and obligations under the terms of the
Merchant Agreement, and sums sufficient to reimburse Processor and Member Bank for the
amount of any liability assessments and charges due the Card Associations.
13.4 Replenishment of Reserve Account Deficiencies. Whenever the balance in the
Reserve Account is less than the minimum balance required, or is otherwise deficient,
Processor or Member Bank may, without prior notice, deposit the deficiency into the Reserve
Account by reducing any payment to Merchant required by the Merchant Agreement or
deduct the deficiency from the Merchant’s or Merchant’s Affiliate’s Settlement Account or
any other deposit account of Merchant or Merchant Affiliate with another depository
institution (including accounts of general partners if Merchant is a partnership) and deposit
it into the Reserve Account. Merchant authorizes deductions from its accounts by ACH entry,
sight draft, preauthorized check, reverse wire, or otherwise as Processor and Member Bank
deem appropriate under the circumstances. In addition, Merchant will deposit any deficiency
into the Reserve Account within one Business Day after receiving Processor’s oral or written
request. Without limiting Processor’s remedies, Merchant’s failure to deposit any deficiency
on time will permit Processor, without advance notice, to suspend or cease processing
additional Transaction Receipts and Credit Transaction Receipts. Processor will give
Merchant written notice of any suspension or cessation of processing.
13.5 Additions to Reserve Account. If Processor has reason to believe that Merchant
may be liable to customers or to Processor for Chargebacks exceeding the balance in the
Reserve Account, Processor or Member Bank may: (a) immediately place in the Reserve
Account provisional credits or payments otherwise due to Merchant and/or stop processing
transactions for Merchant until such time as the extent of Merchant’s obligations to Processor
and Member Bank, or Merchant’s liability for Chargebacks, or Merchant’s liability to
customers are known, and Processor no longer deems itself insecure, and/or (b) demand from
Merchant an amount that in Processor’s judgment is needed to ensure payment of Merchant’s
obligations and liabilities. Merchant’s failure to pay any amount will permit Member Bank
or Processor or its designated representative to terminate the Merchant Agreement
immediately without advance notice.
13.6 Reserve Account After Merchant Agreement Terminates. Processor or
Member Bank may continue to hold or deposit funds in the Reserve Account after
termination of the Merchant Agreement, regardless of whether termination is by Merchant,
Processor or Member Bank. Upon termination of the Merchant Agreement by Merchant,
Processor or Member Bank, Processor and Member Bank may retain sufficient funds to
satisfy any and all Processing Fees, Chargebacks, Credit Transaction Receipts, Damages,
and any and all additional fees, and sums sufficient to reimburse Processor and Member
Bank for the amount of any liability assessments and charges due the Card Associations or
other obligations or liabilities arising or, in Processor’s or Member Bank’s discretion, likely
to arise under the terms of the Merchant Agreement. If no funds have been deposited into
the Reserve Account before termination, Processor, at Processor’s option, may notify
Merchant to deposit funds into the Reserve Account upon termination of the Merchant
Agreement. All provisions which apply to a pre-termination Reserve Account will apply
after termination, including replenishment of deficiencies. The funds will be held by
Processor and Member Bank or its designated agent for a period of not less than one hundred
eighty days from the date of the last Transaction, including, but not limited to a Chargeback,
processed under the Merchant Agreement, plus the period of any warranty, guarantee, and/or
return policy on goods and/or services sold. Processor and Member Bank will turn over the
balance in the Reserve Account to Merchant after Processor reasonably determines that the
risk of Chargebacks, Processing Fees or Merchant’s liabilities or obligations under the
Merchant Agreement has ended and after deducting all amounts that Merchant owes to
Processor and Member Bank under the Merchant Agreement or any other agreement.
14. SECURITY INTEREST.
14.1 Merchant’s Grant of Security Interest.
(a) To secure Merchant’s performance of its obligations under this Merchant
Agreement, and any other agreement with Processor or Member Bank, Merchant grants
Processor and Member Bank a security interest in each Transaction and its proceeds,
provisional credits, the Settlement Account, the Reserve Account (without in any way
suggesting that Merchant has ownership interest or property rights in the Reserve Account),
and any other deposit account of Merchant with a financial institution, whether now existing
or established in the future, and in the proceeds of all those accounts, any funds due to
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Merchant from Processor or Member Bank and any of Merchant’s property held by Processor
or Member Bank. Processor and Member Bank may enforce these security interests without
notice or demand. The security interests granted under this Merchant Agreement will
continue after the Merchant Agreement terminates, until Merchant satisfies all its obligations
to Processor and Member Bank.
(b) Furthermore, and with respect to any security interests granted herein,
Processor and Member Bank will have all rights afforded under the Uniform Commercial
Code, as the same may, from time to time, be in effect in the State of Georgia; provided,
however, in the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interests granted herein is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of Georgia, then
Processor and Member Bank will have all rights afforded under the Uniform Commercial
Code as in effect from time to time in such other jurisdiction for purposes of the provisions
relating to such attachment, perfection or priority of the security interests, as well as any
other applicable law.
14.2 Perfection of Security Interest. Upon request of Processor, Merchant will
execute one or more financing statements or other documents to evidence the security
interests granted to Processor and Member Bank under this Section 14. Merchant shall
cooperate with Processor in obtaining any control agreement or similar agreement with a
depository bank necessary to perfect the security interests granted herein. In addition,
Merchant agrees that its signature on the Merchant Application will be considered
Merchant’s signature agreeing to any control agreement as defined in Article 9 of the
Uniform Commercial Code among Merchant, Processor, Member Bank and any other
financial institution under which Processor, Member Bank, Merchant and any other financial
institution agree to the disposition of funds in the Settlement Account, the Reserve Account
or any other deposit account without further consent by Merchant.
15. CUSTOMER CLAIMS. To the extent that Processor or Member Bank has paid or may
become liable for a Chargeback or Credit Transaction Receipt, Merchant will be obligated
to reimburse Processor and Member Bank for any sums Processor or Member Bank pays or
for which Processor or Member Bank is liable. If Merchant does not reimburse Processor or
Member Bank, Processor and Member Bank will have all of the rights and remedies of
Cardholders, including the Cardholders’ rights under 11 U.S.C. §507(a)(6). Processor and
Member Bank may assert any claim on behalf of a Cardholder individually or on behalf of
all Cardholders as a class.
16. PROCESSING FEES.
16.1 Fee Schedule. Merchant will pay Processing Fees in the amount specified in the
Fee Schedule attached to the Merchant Application or as otherwise provided for in this
Merchant Agreement or an Addendum thereto. Monthly recurring Processing Fees will be
assessed upon approval of the Merchant Application. Processor may amend, supplement,
modify, or increase the Processing Fees, including, without limitation, introducing new
products or services, pursuant to Section 10.1 of this Merchant Agreement.
16.2 Card Association Actions. Processor will not be required to provide Merchant
with fifteen days’ notice of an increase in Processing Fees in the event that any Card
Association, or any other entity having such authority takes any action that increases the
Processing Fees.
16.3 Government and Regulatory Actions. Processor will not be required to provide
Merchant with fifteen days’ notice for any increase in Processing Fees resulting from any
fine, charge, fee or cost incurred in connection with any state, federal or other regulatory
action, change in laws or regulations or escheatment of Merchant’s funds.
16.4 Payment. Processing Fees and other service charges, obligations or liabilities
owed by Merchant to Processor or Member Bank under the Merchant Agreement may be
deducted by Processor or Member Bank from amounts due Merchant, or from the Settlement
Account or from the Reserve Account. Merchant will pay the amounts due by the next
Business Day if sufficient funds are not available in the Settlement Account.
17. INDEMNIFICATION; LIMITATION OF LIABILITY; WARRANTY.
17.1 Indemnification. Merchant shall indemnify each of Processor and Member Bank,
including their respective officers, directors, employees, independent sales organizations
(“ISOs”), and agents, against and hold them harmless from any and all claims, demands,
settlements, losses, damages, liabilities, costs and expenses of any kind (including reasonable
attorney’s fees) of any party arising from or based upon any actual or alleged act or omission
of Merchant, Merchant’s employees, Merchant’s designated representatives or agents,
Merchant Servicers or Merchant’s Agent(s) in connection with or arising out of this
Merchant Agreement, the duties to be performed by Merchant pursuant to the Merchant
Agreement, any Transactions which Merchant submits to Processor (including
Chargebacks), or Merchant’s actual or alleged violation of the Operating Rules or any
Requirements of Law. In the event that Processor or Member Bank is made a party to any
litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively
“Actions”) commenced by any third party, Merchant shall protect and hold each of Processor
and Member Bank harmless from and with respect to the Actions and shall indemnify such
party from and against all costs, expenses, and attorney’s fees, including in-house legal fees,
incurred or paid in connection with the Action, together with any judgments, settlements,
losses, damages or other liabilities. Merchant shall indemnify, defend, and hold harmless
each of Processor and Member Bank from and against any actual or alleged hacking,
infiltration, or compromise of Merchant’s systems or the systems of Merchant, Merchant
Servicers or Merchant’s Agent(s), designated representatives, or other agents.
17.2 Limitation of Liability. Each of Processor and Member Bank will not accept
responsibility for errors, acts, or failure to act by others, including but not limited to,
Merchant Servicers, Agents, third party suppliers of software, equipment or services; or,
banks, communication common carriers, data processors or clearinghouses through which
transactions may be passed, originated and/or authorized. Each of Processor and Member
Bank will not be responsible for any loss, liability or delay caused by fires, earthquakes, war,
civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor
disputes, failures in communication networks, legal constraints or other events beyond the
control of Bank. Each of Processor and Member Bank undertakes no duties to Merchant
other than the duties expressly provided for in the Merchant Agreement, and any and all
other or additional duties that may be imposed upon Processor or Member Bank in law or
equity are hereby irrevocably waived and released to the maximum extent permitted by law.
IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE CUMULATIVE LIABILITY OF EACH OF PROCESSOR AND
MEMBER BANK, AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS, TO MERCHANT, WHETHER ARISING IN
CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE
AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE
LESSER OF $10,000 OR, THE AMOUNT EQUAL TO THE AGGREGATE OF
MONTHLY NET PROCESSING FEES PAID BY MERCHANT IN THE THREE
MONTH PERIOD PRIOR TO THE MONTH THAT THE INCIDENT GIVING RISE
TO LIABILITY OCCURRED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL EITHER PROCESSOR OR MEMBER BANK OR THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE
LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR
EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE,
DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR
DAMAGES WERE FORESEEABLE OR PROCESSOR OR MEMBER BANK WAS
ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER
ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
PROCESSOR AND MEMBER BANK SPECIFICALLY DISCLAIM ALL
WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, PROCESSOR AND MEMBER BANK DO NOT GUARANTEE OR
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-
FREE.
18. NOTICES. Each notice required by the Merchant Agreement will be in writing (hard
copy or electronic), except as otherwise stated in the Merchant Agreement, and will be
effective when delivered, (a) to Member Bank at the address designated on the Merchant
Application, and the return address on Merchant’s Card processing statements, (b) to
Processor at the address designated on the Merchant Application and (c) to Merchant at
Merchant’s address to which Processor mails Merchant’s statements or at the electronic
mail address provided by Merchant in the Merchant Application, or at such other address
as any party may provide by written notice to the other parties. Any address Merchant
designates may also be the address to which Processor mails Merchant’s statements. Where
applicable, delivery by facsimile transmission or electronic mail will be considered
effective when the sender receives electronic confirmation of the transmission.
19. GEORGIA LAW; JURISDICTION; VENUE. Merchant’s offer to enter into this
Merchant Agreement is made in Muscogee County, Georgia; this Merchant Agreement shall
be performed by Merchant in Muscogee County, Georgia and governed by Georgia law,
excluding its conflict of laws rules. Merchant and Guarantor agree to bring any claim or
action relating to the Merchant Agreement in binding arbitration as set forth in Section 20.2
below. Any matters not otherwise subject to arbitration (such as, by way of example only,
injunctive relief, action to recover any monetary losses or damages from unpaid obligations
of the Merchant under the Merchant Agreement, or claims to enforce an arbitration award),
shall be brought in the state or federal courts located in Muscogee County, Georgia. All
parties irrevocably and unconditionally submit to the jurisdiction of such courts with respect
to any such action. In the event that Processor or Member Bank is required to resolve a
dispute with Merchant that requires any action under this provision, Merchant hereby agrees
and consents to receive service of process by certified mail.
20. ATTORNEY FEES; ARBITRATION; CLASS ACTION WAIVER.
20.1 Attorney Fees. Merchant and/or Guarantor will be liable for and will indemnify
and reimburse Processor and Member Bank for all attorneys’ fees, including in-house legal
fees, and other costs and expenses paid or incurred by Processor and Member Bank in the
enforcement of this Merchant Agreement or in matters relating to this Merchant Agreement,
or arising from any breach by Merchant of this Merchant Agreement, or any other
wrongdoing by Merchant or Guarantor. In the event Processor or Member Bank must engage
in any recovery or collection efforts to collect any amounts due from Merchant to Processor
or Member Bank, Merchant will reimburse Processor and Member Bank for all fees and
expenses incurred in such collection, plus reasonable administrative fees and expenses.
20.2 Arbitration.
NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR
RIGHTS AND THE RESOLUTION OF DISPUTES
ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS
AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER
THAN IN COURT; HOWEVER, MERCHANT MAY ASSERT CLAIMS IN SMALL
Page 8 of 10 UNIVMERAGMT v22.0421
CLAIMS COURT IF (1) THE CLAIMS QUALIFY FOR SMALL CLAIMS COURT; (2)
THE MATTER REMAINS IN SMALL CLAIMS COURT AT ALL TIMES; AND (3) THE
MATTER PROCEEDS ONLY ON AN INDIVIDUAL (NOT A CLASS OR
REPRESENTATIVE BASIS). 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.
The arbitrator's award or decision will not affect issues or claims involved in any proceeding
between Processor or Member Bank and any person or entity who is not a party to the
arbitration. The arbitrator may award monetary, declaratory or injunctive relief only in favor
of the individual party seeking relief and only to the extent necessary to provide relief
warranted by that party's individual claim. The arbitrator's award, if any, will not apply to
any person or entity that is not a party to the arbitration. However, nothing in this Section or
Merchant Agreement shall preclude any party from bringing issues to the attention of federal,
state or local agencies. Such agencies can, if the law allows, seek relief on your behalf.
Further, notwithstanding the foregoing, nothing in this Section or this Merchant Agreement
prohibits a party from applying to a court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other equitable relief.
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
(if no such rules are in effect, JAMS default arbitration rules shall 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 (if no such rules are in effect, JAMS
default arbitration rules shall apply). Unless the arbitrator(s) determine that justice or fairness
require otherwise: (i) any arbitration will proceed in Muscogee County, Georgia (although,
for the convenience of the Merchant or Guarantor (as applicable), any party or its counsel
may participate telephonically); and (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. Any decision rendered in any arbitration proceeding shall be
final and binding on each of the parties to the arbitration and judgment may be entered
thereon 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 the total damage claims in an arbitration are $10,000 or less, not including Merchant’s
attorney fees (“Small Arbitration Claim"), the arbitrator may, if the MERCHANT, prevails,
award the Merchant reasonable attorney fees, expert fees and costs (separate from Arbitration
Costs as defined below), but may not grant Processor its attorney fees, expert fees or costs
(separate from Arbitration Costs) unless the arbitrator determines that the Merchant’s claim
was frivolous or brought in bad faith. In a Small Arbitration Claim case, ISO will pay all
arbitration filing, administrative and arbitrator costs (together, “Arbitration Costs"). The
Merchant must submit any request for payment of Arbitration Costs to JAMS at the same
time the Merchant submits its Demand for Arbitration. However, if the Merchant wants
Processor to advance the Arbitration Costs for a Small Arbitration Claim before filing,
Processor will do so at the Merchant’s written request which must be sent to Processor at the
address in Section 18 above.
If the Merchant’s total damage claims in an arbitration exceed $10,000, not including the
Merchant’s attorney fees (“Large Arbitration Claim"), the arbitrator may award the
prevailing party its reasonable attorneys' fees and costs, or it may apportion attorneys' fees
and costs between the Merchant and Processor (such fees and costs being separate from
Arbitration Costs). In a Large Arbitration Claim case, if the Merchant is able to demonstrate
that the Arbitration Costs will be prohibitive as compared to the costs of litigation, ISO will
pay as much of the Arbitration Costs as the arbitrator deems necessary to prevent the
arbitration from being cost-prohibitive.
Merchant hereby agrees that claims applicable to American Express may be resolved through
arbitration as further described in the American Express Merchant Requirements Guide (the
“American Express Guide”).
A court, not the arbitrator, will decide any questions regarding the validity, scope and/or
enforceability of this Section
20.3 Class Action Waiver.
NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR
RIGHTS AND THE RESOLUTION OF DISPUTES
MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE
THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS MERCHANT
AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT
RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE
CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES.
21. FINAL AGREEMENT. This Merchant Agreement and all applicable Addenda attached
hereto, is the complete and final agreement between Merchant, Processor and Member Bank
for the Card Program services covered by this Merchant Agreement and supersedes all prior
or contemporaneous negotiations, stipulations or agreements between them with respect
thereto. In the event of any conflict or inconsistency between this Merchant Agreement and
any other agreement between Processor or any of its affiliates and Member Bank or any of
its affiliates (but not Merchant), such other agreement shall control with respect to such
conflict or inconsistency. If any provision of this Merchant Agreement is invalid or
unenforceable, the other provisions remain effective.
22. SEVERABILITY. If any term or provision of this Merchant Agreement is found to be
invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or
provisions hereof or the whole of this Merchant Agreement, but such terms or provisions
shall be deemed modified to the extent necessary to render such term or provision
enforceable, and the rights and obligations of the parties shall be construed and enforced
accordingly, preserving to the fullest permissible extent the intent and agreements of the
parties herein set forth. No part or portion of 20.2 (Arbitration) or Section 20.3 (Class Action
Waiver) shall be deemed so integral to either this Agreement as a whole, or to the remaining
parts or portions of Sections 20.2 or 20.3 hereof, that the unenforceability of that part or
portion should have any impact on or render the remainder unenforceable.
23. CONTINUING GUARANTY.
23.1 As a primary inducement to Processor to enter into the Merchant Agreement, and
to approve the Merchant Application of Merchant, the Guarantor(s), individually and
severally, who signed on the Guarantor signature line(s) on the Merchant Application, agree
to be bound by all terms and provisions of the Merchant Agreement to the same extent and
in the same manner as Merchant, and unconditionally and irrevocably, personally guarantee
the continuing full and faithful performance and payment by Merchant of each and all of
Merchant’s duties and obligations to Processor and Member Bank under the Merchant
Agreement or any other agreement currently in effect or in the future entered into between
Merchant or its principals and Processor or Member Bank, as such agreements now exist or
are amended from time to time, with or without notice to Guarantor(s).
23.2 Merchant and Guarantor(s) further agree to be bound by the terms and provisions
of any Merchant Agreement between Processor or Member Bank and any Merchant Affiliate,
regardless of whether such agreement currently exists or is executed, amended or supplement
at some future date. Merchant and Guarantor(s) unconditionally and irrevocably guarantee
the full payment and performance of each and all duties and obligations owed to Processor
or Member Bank by Merchant Affiliate pursuant to any Merchant Agreement. The
provisions of Section 23.3 apply to the guarantee by Merchant and Guarantor(s) of the
Merchant Affiliate’s obligations to Processor or Member Bank under any Merchant Card
Processing Agreement.
23.3 Guarantor(s) understands that Processor, without notice to Guarantor(s), may from
time to time renew or extend the Merchant Agreement, modify rates, limits, charges and fees,
or modify the amount or type of services provided to Merchant all of which may increase the
Guarantor’s obligations under this Guaranty. Guarantor(s) further understands that Processor
may proceed directly against Guarantor(s) without first exhausting Processor’s remedies
against Merchant, any other person or entity responsible to Processor or any security held by
Processor. This Guaranty is a continuing guaranty and will not be discharged or affected by
the release or discharge of Merchant or the death of the Guarantor(s). This Guaranty will
bind all heirs, administrators, and representatives of the Guarantor(s) and may be enforced
by or for the benefit of any successor of Processor. To the fullest extent permissible under
applicable law, Guarantor(s) waives any and all rights of subrogation, reimbursement or
indemnity derived from Merchant, all other rights and defenses available to Merchant, and
all other rights and defenses available to Guarantor(s). This Guaranty may not be otherwise
revoked, suspended, withdrawn or terminated without the express written consent of
Processor.
24. AUTHORIZED USERS. To the extent Merchant is granted electronic access to any
systems or portals of Processor, Merchant shall be responsible for (i) ensuring that only
authorized users of such systems or portals access the same; (ii) keeping all logins, user
names, and passwords confidential; and (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 such actions were not
authorized by Merchant.
25. TAXES. Merchant shall be solely responsible for the calculation, collection, and
remittance of any sales tax imposed by any government authority in connection with the
provision of Merchant’s goods or services. Unless Merchant is otherwise exempt (and can
prove such exemption to Processor’s satisfaction), Merchant agrees to pay all taxes imposed
on the services, equipment, or other property provided to Merchant pursuant to this
Agreement.
26. RELATIONSHIP OF THE PARTIES. Merchant designates Processor as its agent to
receive payments for transactions processed pursuant to this Card Services Agreement.
Processor, however, shall not be considered a partner or fiduciary to Merchant, and nothing
in this Merchant Agreement or the rendition of services related to this Merchant Agreement
shall be deemed to create a joint venture, partnership, or fiduciary relationship between or
among the parties. Rather, the relationships between Member Bank and Merchant, and
between Processor and Merchant, are arm’s length commercial relationships.
27. PRODUCTS AND SERVICES.
Important Note: Merchant acknowledges and agrees that Member Bank and its affiliates
have no obligation or liability whatsoever for: (1) the Products and Services described
Page 9 of 10 UNIVMERAGMT v22.0421
herein, (2) any actions or omissions of Processor with respect to these Products and
Services, or (3) any claims or disputes arising out of the foregoing.
27.1 If Merchant elects to receive any of the ancillary Products and Services listed on
the Merchant Application (including but not limited to the Guardian Suite (and its related
products), Payment Acceptance Applications (WebPASS, Multi-PASS, and/or Hosted
Payments), and TransLink Insights either in various packages or on a product by product
basis, Merchant agrees to the following terms applicable to the relevant software licenses
(collectively, the “Licensed Software”). Use of the Licensed Software is limited to
Merchant’s internal business purposes. Title to and ownership of the Licensed Software
remains with Processor and its suppliers. Merchant may not (a) alter or modify the Licensed
Software, (b) reverse engineer, decompile, disassemble, or in any way attempt to derive the
source code for the Licensed Software, or (c) transfer the Licensed Software to any third
party or make the Licensed Software available to any third party as part of any time-sharing
or service bureau arrangement. Merchant will not export or re-export the Licensed Software
without the appropriate United States or foreign government licenses. All express and
implied warranties regarding the Licensed Software by Processor and its suppliers to
Merchant are disclaimed. For U.S. Government End Users: The Licensed Software is a
“commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more
specifically is “commercial computer software” and “commercial computer software
documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with
48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Licensed
Software is provided to U.S. Government end users (a) only as a commercial end item, and
(b) with only those rights as are granted to all other end users pursuant to the terms and
conditions herein. The Licensed Software is only offered on terminals capable of supporting
it.
27.2 VITAL POS. Subject to the terms and conditions of this Agreement and the
Terms of Use and Privacy Policy located within the Vital POS Software and associated
portals and web pages (the “Platform”), including without limitation payment of the fees as
set forth in this Agreement, Processor hereby grants to Merchant a limited, revocable, non-
exclusive, non-transferable, non-sublicensable license to utilize (and allow for the
utilization by designated employees and agents) the Vital POS Platform only on an as-is
basis, for the sole and exclusive purpose of internally operating the products in the normal
course of Merchant’s business, and as expressly stipulated under this Agreement (the
“Platform License”). Merchant acknowledges and agrees that the Platform provided under
this Agreement and all intellectual property provided, embodied, or used in association
therewith, including without limitation all trademarks, service marks, logos, software,
designs, templates, encryption algorithms, copyrights, and other proprietary rights, and any
documentation related to any of the foregoing (collectively, “Intellectual Property Rights”),
are and shall remain solely and exclusively owned by Processor (or other third party owner
as the case may be). Merchant shall have no right to market, distribute, sell, assign, pledge,
sublicense, lease, deliver, or otherwise transfer the Platform or any component thereof, to
any third party. Merchant shall not, and shall not permit any third party to, use the Platform
directly or indirectly to provide a time-sharing or subscription service to any third party or
to function as a service bureau or application service provider. Merchant shall not reverse
engineer, decompile, disassemble, translate, modify, alter, create any derivative works
based upon, or otherwise change the Platform or any part thereof, or determine or attempt
to determine any source code, algorithms, methods or techniques embodied in the Software
included in the Services, or any Application Programming Interfaces “API(s)” or any part
thereof, or access or use the Platform or the APIs in any way except via access provided
through use in accordance with the Processor documentation and the terms of the
Agreement. Merchant shall comply with the Terms of Use and Privacy Policy (as updated
from time to time), all security and operational requirements, policies, and procedures
relating to the Platform as specified in the documentation related thereto and as may be
otherwise communicated or provided by Processor. Merchant shall use the Platform solely
in the conduct of its business and in compliance with all laws, rules, and regulations of
every governmental authority or card association having jurisdiction over Merchant or any
of the foregoing.
28. GLOBAL PAYMENTS EQUIPMENT AGREEMENT.
Important Note: Merchant agrees Member Bank is not a party to the GLOBAL PAYMENTS
Equipment Agreement and has no responsibility under it. Merchant acknowledges and
agrees that Member Bank and its affiliates have no obligation or liability whatsoever for:
(1) products or services provided under the GLOBAL PAYMENTS Equipment Agreement,
or (2) any actions or omissions of TSYS Merchant Solutions, LLC dba Global Payments
(“GLOBAL PAYMENTS”) with respect to the GLOBAL PAYMENTS Equipment Agreement.
Merchant agrees that any claims or disputes arising out of the foregoing will be resolved
without involving Member Bank and that Member Bank is entitled to rely on Merchant’s
agreements in this Section 24.
THIS GLOBAL PAYMENTS Equipment Agreement ("EQUIPMENT
AGREEMENT"), by and between GLOBAL PAYMENTS, and “Merchant,” the name
of which is set forth in the Agreement, as defined herein, shall become effective as of the
date Merchant Application (“Effective Date”).
WHEREAS, GLOBAL PAYMENTS and Merchant shall hereinafter be referred to as the
“Parties”; and
WHEREAS Merchant desires to purchase or rent equipment from GLOBAL
PAYMENTS in order to accept and process specified credit card transactions.
NOW THEREFORE, in consideration of the mutual promises made herein, and other
valuable consideration, receipt and sufficiency of which are hereby acknowledged, the
Parties do hereby agree as follows:
28.1 GLOBAL PAYMENTS agrees to sell or rent to Merchant and Merchant agrees to
buy or rent from GLOBAL PAYMENTS the equipment described in the Merchant
Application or as added from time to time via Merchant’s request through Processor‘s
customer service center. GLOBAL PAYMENTS owns all right, title and interest in all
EQUIPMENT rented or sold to MERCHANT hereunder, provided that such right, title and
interest will transfer to MERCHANT in the event MERCHANT purchases the
EQUIPMENT. The individual sales representative selling or renting the EQUIPMENT to
MERCHANT is an employee of GLOBAL PAYMENTS. Merchant’s payment for
equipment or delivery of the equipment to Merchant will constitute Merchant’s acceptance
of the applicable following terms and conditions. Payment for equipment and any related
fees shall be due and payable on the Effective Date of this EQUIPMENT AGREEMENT if
purchasing equipment, monthly if renting, or upon an otherwise agreed upon date or payment
schedule. Merchant agrees to pay the fee(s) set out in the Agreement and as added from time
to time. Merchant is responsible for all sales, use, excise and other taxes, including penalties
and interest, that may result from this transaction. The fees set forth in the Merchant
Application related to this EQUIPMENT AGREEMENT are exclusive of any and all
applicable taxes or assessments, whether designated as sales taxes, use taxes, ad valorem
taxes, GST/HST taxes, VAT taxes or by some other name or designation, and including any
interest or penalties thereon, which may be levied or assessed by any governmental or taxing
jurisdiction in connection with the performance of services or provision of materials to
Merchant by GLOBAL PAYMENTS. In the event of the payment of or for any such tax,
assessment or expense by GLOBAL PAYMENTS, Merchant shall in turn pay GLOBAL
PAYMENTS for such items. Merchant hereby authorizes GLOBAL PAYMENTS to debit
payment from the Merchant’s designated account established under the Agreement for items
ordered herein if payment does not accompany order.
28.2 Upon payment by Merchant to GLOBAL PAYMENTS of the entire purchase
amount required herein, GLOBAL PAYMENTS shall sell, transfer and assign the purchased
equipment to Merchant for Merchant’s use and benefit. All risks or expenses of loss,
damage, or repair to the equipment shall be borne by Merchant upon such transfer of title.
28.3 If Merchant is renting equipment, Merchant agrees to pay Processor a monthly
rental fee (“Rental Fee”) for the equipment until such time said equipment is returned to
GLOBAL PAYMENTS, which will be debited monthly from the Merchant’s Settlement
Account established under the Agreement or billed separately to merchant if the Merchant’s
Settlement Account no longer exists. MERCHANT may return the EQUIPMENT to
GLOBAL PAYMENTS at any time during the AGREEMENT, at which time MERCHANT
will no longer be responsible for future payments of the RENTAL FEE. If Merchant is
purchasing the equipment via multiple payments and terminates the EQUIPMENT
AGREEMENT prior to completing the monthly purchase payments, then Merchant agrees
to immediately pay the remainder of the purchase price or, if Merchant returns the equipment
under the conditions specified herein, Merchant agrees to pay GLOBAL PAYMENTS’s then
current RENTAL FEE for the length of time Merchant had the use of the equipment.
28.4 Merchant agrees to pay the Rental Fee on a per month basis as rental for the
EQUIPMENT. GLOBAL PAYMENTS may amend the Rental Fee on thirty (30) days
written notice to Merchant. Submission by Merchant of a Transaction after such notice
period shall be evidence that Merchant has received the amended Rental Fee and has agreed
to such amended Rental Fee. Merchant is supplied with monthly reports by Processor
regarding the equipment. It is Merchant’s sole responsibility to report any error or
discrepancies detected by Merchant in writing to GLOBAL PAYMENTS within ninety (90)
days following the end of the monthly reporting period. After such period, Merchant will be
deemed to have accepted the monthly reports as delivered.
28.5 The Parties agree to each of the terms and conditions set forth herein and
acknowledge that such provisions are binding upon each of them, their successors, heirs and
assigns.
28.6 Merchant understands that a telephone jack and other equipment may be required
for its phone system to be compatible with equipment at Merchant’s expense.
28.7 Upon expiration or termination of the EQUIPMENT AGREEMENT, Merchant
agrees to remove the rental equipment from its locations and deliver it to GLOBAL
PAYMENTS at Merchant’s cost in the same condition as when the rental equipment was
installed, normal wear and tear excepted. The Parties agree that the rental equipment is and
will remain personal property of GLOBAL PAYMENTS.
28.8 Merchant hereby assumes the entire risk of loss, damage or destruction of the
equipment from any cause whatsoever, until the delivery of the rental equipment to
GLOBAL PAYMENTS. If the rental equipment is damaged, lost, or not returned to
GLOBAL PAYMENTS, Merchant shall, at the option of GLOBAL PAYMENTS, repair the
rental equipment at Merchant’s expense or pay GLOBAL PAYMENTS the current
replacement cost of the rental equipment.
28.9 Merchant hereby grants to GLOBAL PAYMENTS the right, during normal
business hours, to enter any location under Merchant’s control for the purpose of inspecting,
repairing, or replacing rental equipment.
28.10 Merchant shall and does hereby agree to indemnify and hold GLOBAL
PAYMENTS, its agents, employees, successors and assigns harmless from any and all
liability, damages or loss (including attorney fees and costs) arising out of the ownership,
selection, possession, leasing or renting, operation (regardless of where, how and by whom
operated), control, use, condition (including, but not limited to, latent and other defects,
whether or not discoverable by GLOBAL PAYMENTS) maintenance, delivery and return
of the equipment. This indemnification and the obligations contained herein shall survive
termination or expiration of EQUIPMENT AGREEMENT.
28.11 Merchant shall keep rental equipment insured against all risks for not less than
replacement costs of rental equipment, naming GLOBAL PAYMENTS as an additional
insured as its interest may appear.
28.12 If this EQUIPMENT AGREEMENT is terminated, GLOBAL PAYMENTS shall
have the right to enter Merchant’s locations for the purpose of recovering rental equipment.
28.13 Neither Merchant nor any third party is authorized to make any alterations, repairs
or changes including programming changes to rental equipment. Any personal property
attached to rental equipment shall become part of the equipment. GLOBAL PAYMENTS
will provide maintenance service to rental equipment during the term of the EQUIPMENT
Page 10 of 10 UNIVMERAGMT v22.0421
AGREEMENT. Merchant shall not allow any other person or entity to maintain or tamper
with rental equipment without the express written consent of GLOBAL PAYMENTS.
28.14 Merchant’s rights and remedies hereunder are exclusive and in lieu of all other
rights and remedies. GLOBAL PAYMENTS shall not otherwise be liable for any error,
omission, delay, loss of data or records or disclosure of confidential information which may
occur as a result of, or in any way be connected with, any use of equipment or services
provided by GLOBAL PAYMENTS pursuant to this or any other agreement. IN ANY
EVENT, GLOBAL PAYMENTS’S LIABILITY TO MERCHANT, WHETHER ARISING
IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE
DIRECT LOSS TO MERCHANT OR AN AMOUNT EQUAL TO THE AGGREGATE OF
MONTHLY RENTAL FEES PAID TO GLOBAL PAYMENTS BY MERCHANT IN THE
SIX-MONTH PERIOD PRIOR TO THE INCIDENT GIVING RISE TO LIABILITY. IN
NO EVENT SHALL GLOBAL PAYMENTS BE LIABLE FOR SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY
INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR
NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR GLOBAL
PAYMENTS WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS
OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL
PURPOSE. GLOBAL PAYMENTS is not responsible for any loss or damages whatsoever
sustained by Merchant arising as a result of any acts of God, strikes, flood, weather, shortages
of parts or supplies or other events beyond its reasonable control.
28.15 GLOBAL PAYMENTS, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE EQUIPMENT INCLUDING BUT NOT
LIMITED TO: THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS
FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE
EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE
WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH
REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OF CONTRACT
PERTAINING THERETO; THE ABSENCE OF ANY INFRINGEMENT OF ANY
PATENT, TRADEMARK OR COPYRIGHT; THE ABSENCE OF LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE; THE ABSENCE OF ANY
OBLIGATION BASED ON STRICT LIABILITY IN TORT. UPON SALE OF THE
EQUIPMENT TO MERCHANT, GLOBAL PAYMENTS HEREBY ASSIGNS, TO THE
EXTENT POSSIBLE, ALL WARRANTIES AND RIGHTS OF GLOBAL PAYMENTS
WITH RESPECT TO THE EQUIPMENT PROVIDED BY THE MANUFACTURER OF
THE EQUIPMENT. GLOBAL PAYMENTS DOES NOT MAKE ANY EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT
TO THE MANUFACTURER’S WARRANTY.
28.16 Except as expressly provided herein, Merchant may not assign its rights or delegate
its responsibilities regarding rental equipment under this EQUIPMENT AGREEMENT
without the prior written consent of GLOBAL PAYMENTS, which will not be unreasonably
withheld.
28.17 The Parties acknowledge and agree that this EQUIPMENT AGREEMENT was,
and shall be deemed to have been, made and delivered in Muscogee County, Georgia The
laws of the State of Georgia, without giving effect to its conflicts of law principles, shall
govern all matters (whether in contract, statute, tort or however characterized) arising out of
or relating to this EQUIPMENT AGREEMENT, including, without limitation, the validity,
interpretation, construction, performance and enforcement of the EQUIPMENT
AGREEMENT. The Parties agree that, in the event of any dispute regarding, arising out of
or relating to this EQUIPMENT AGREEMENT, the courts of the State of Georgia shall have
and be vested with personal jurisdiction over the Parties. The Parties further agree that any
and all actions, claims, suits or proceedings arising out of or relating (directly or indirectly)
to this EQUIPMENT AGREEMENT shall be filed and litigated only in courts located in
Muscogee County, Georgia , and such courts shall have exclusive jurisdiction over any
action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this
EQUIPMENT AGREEMENT. If Merchant brings legal action against GLOBAL
PAYMENTS for any reason, Merchant shall commence the action within one (1) year of the
date the error or the incident giving rise to such action occurred.
28.18 No delay or failure by either Party to exercise any right under EQUIPMENT
AGREEMENT, and no partial or single exercise of that right, shall constitute a waiver of
fact or any other right, unless expressly provided herein.
28.19 Neither Party shall be responsible for the costs incurred by the other for negotiating
or implementing this EQUIPMENT AGREEMENT and Merchant shall be responsible for
installation of the equipment.
28.20 The obligations of all Parties hereto incurred prior to the effective date of
termination of EQUIPMENT AGREEMENT shall survive such termination.
28.21 In the event that any portion of EQUIPMENT AGREEMENT shall be held invalid
or unenforceable for any reason, it is agreed that any invalidity or unenforceability shall not
affect the remainder of the same and the remaining provisions shall remain in full force and
effect, and any court of competent jurisdiction may so modify any objectionable provision
of the same so as to render it valid, reasonable and enforceable.
28.22 This EQUIPMENT AGREEMENT may only be amended or modified by a
subsequent written agreement by and between the Parties hereto.
28.23 Merchant hereby represents that the entering into of this EQUIPMENT
AGREEMENT has been duly authorized by Merchant and that this EQUIPMENT
AGREEMENT constitutes a legal, valid and binding obligation of Merchant, and is
enforceable against Merchant in accordance with its terms.
28.24 This EQUIPMENT AGREEMENT constitutes the entire understandings of the
Parties as to the subject matter contained herein and supersedes all prior contracts,
agreements and negotiations whether oral or written.
EXHIBIT B
CLIENT SATISFACTION OFFER
Client Offer – TMS v1.2021Page 1 of 1CONFIDENTIAL
CLIENT SATISFACTION OFFER (RETENTION DEPARTMENT) Merchant Name or DBA Name: City of Santa Ana Merchant ID(s): 41399800818517, 41399800818822, 41399800818830, 41399800822550 Date: 6/21/2021 TSYS Merchant Solutions, LLC DBA Global Payments (“Global Payments”), values its merchant clients and strives to create mutually beneficial, long-term relationships with them. To that end, Global Payments offers you, the Merchant, the following terms. Accepting this offer will modify your Application for Merchant Card Processing (“Application”) and Merchant Card Processing Agreement (the Application and the Card Processing Agreement are collectively referred to as the “Agreement”) with Global Payments as follows:
Pricing
Interchange Pass Thru (0.00% + 0.00 P/I)
Authorization Fees: Visa / MC .25, Discover .30, Amex .21
Monthly Service Fee: $5.00
Annual Location Fee for MC: $15.00
Fixed Acquirer Network Fee (FANF): $2.90
Contract Term The term of the Agreement will continue for from the last date of execution below (the “Effective Date”). This time period will be referred to as the “Extended Term”. At the expiration of the Extended Term, the Agreement will automatically renew for successive one-year periods (each a “Renewal Term”, and collectively with the Initial Term and the Extended Term, the “Term”) unless a party provides the other party with notice of its intent not to renew the Agreement at least 60 days prior to the expiration of the then current term. Termination of the Agreement prior to the expiration of the Extended Term shall result in the assessment of an account closure fee for each terminating MID to be paid by Merchant as follows: (a) $250 if less than twelve months remaining from the date of termination to the end of the then current Term; or (b) $500 if more than twelve months remaining, or such portion of the foregoing as may be permitted by applicable law. All other terms and conditions of the Agreement remain unchanged. This Client Satisfaction Offer and the details contained herein are confidential and may not be disclosed, displayed, or otherwise transmitted to any third party except to attorneys, accountants or other professional advisers as may be necessary to effect the purposes of this letter between the parties. Sincerely, TSYS Merchant Solutions, LLC DBA Global Payments Reviewed and Accepted by Merchant: By: ____________________________________________________________ By: ____________________________________________________________ Name: _________________________________________________________
Name: __________________________________________________________ Title: __________________________________________________________ Title: ____________________________________________________________ Date: ________________ Date: ____________________________________________________________