HomeMy WebLinkAboutFIRST NATIONAL BANK OF OMAHA/TSYS MERCHANT SOLUTIONS, LLC 1 -2013Q CC?A /Tern ?ei, ? C3 ?
Ftg _ 7 2013
Principal: Associate: 002 Chain:001 MID#:
DDA# MCC Code: 7523
N-2013-014
MERCHANT TRANSACTION PROCESSING AGREEMENT - MERCHANT APPLICATION
2012 10 Merchant Application SBS Pass Through CONFIDENTIAL
Bm ot
City of Santa Ana City of Santa Ana
Location Street Address: (No P.O. Boxes) City: State: Zip:
20 Civic Center Plaza M-13 Santa Ana CA 92701
Contact Name: Phone: Fax: Email:
Minerva (714) 647-5440 MMancha@santa-ana.org
Mailing/Billing Address: (If different from Location) City: =State:Zip:
Phon
e:
20 Civic Center Plaza M-13 Santa Ana 01 (714) 647-5440
BUSINESS PROFILE AND ASSUNIP'l-IONS
# of Locations: Fed. Tax ID: Annual Visa/MasterCard/Discover Location Volume ($): Business Open Date:
1 956000785 Volume ($): 15,000.00 15,000.00
Average Ticket ($): Highest Ticket ($): Avg. monthly Vol. ($): Length of Ownership: Visa/MasterCard/Discover ?Yes
1.00 4.00 1,250.00 0 Yr 0 Mo Currently Accepted? ? No
# of Employees: Ownership Type: % of Goods/Services Cash and Cary: 100
0 Government
Type of Business: Pricing Method: Retail Type of Goods/Services sold:(Please include a copy ofyour retum/refund policy)
Retail Pass Thru *See Attached Amendment parking
RXious Processor: (Please Include copy of statements) Business Website: www.santa-ana.org
Card Present 100 % + Card Not Present % = TOTAL: 100% Sales to Consumer 95 %+ Business 5 % = TOTAL: 100%
If CNP Choose one: Card Swipe 100 a/o + Imprint 0 %= TOTAL Card Present %
Application Type: Addl. Location LOC/Old MID: Dun & Bradstreet #: (If available) Have you or your business ever declared
Never had bankcards 0 bankruptcy? [:1 Yes m No
Do you use any third party fulfillment houses? ? Yes ® No Do you work with an third parties or software vendors who have access to
an
If Yes, please provide a contact list of all third party fulfillment houses. cardholder data?
Yes ® No
If yes, please provide a contact list of all third parties and software vendors who
have access to cardholder data.
When is cardholder billed for goods/services? F] On Order ?On Shipment Average number of days between order and shipment? 0
Expected date of first transaction? Do you operate as a Seasonal Merchant? ? Yes 0 No
If seasonal, indicate operating months: ? Jan ? Feb ? Mar ? Apr ? May ? Jun ? Jul ? Aug ? Sep ? Oct ? Nov ? Dec
Bank Reference Name: Contact: Phone: Account Number:
JP Morgan Chase Robert Donahue (949) 471-9869 935309500
Trade/Supplier 1 Name: Contact: Phone: Account Number:
Trade/Supplier 2 Name: Contact: Phone: Account Number:
MEMBER BANK (ACQUIRER) IMPORTANT MEMBER BANK (ACQUIRER) RESPONSIBILITIES) IMPORTANT MERCHANT RESPONSIBILITIES
INFORMATION
1. A Visa Member is the only entity approved to extend acceptance of 1. Ensure compliance with cardholder data security and
First National Bank of Omaha Visa products directly to a Merchant storage requirements.
1620 Dodge Street 2. A Visa Member is responsible for educating Merchants on pertinent 2. Maintain fraud and chargebacks below thresholds.
Omaha, NE 68197 Visa Operating Regulations with which Merchants must comply 3. Review and understand the terms of the Merchant
800-853-9586 3. The Visa Member is responsible for and must provide settlement Agreement.
funds to the Merchant 4. Comply with Visa Operating Regulations.
4. The Visa Member is responsible for all funds held in reserve that are
derived from settlement.
The responsibilities listed above do not supersede the terms of the Merchant Agreement and are provided to ensure the Merchant understands some important
obligations of each party and that the Visa Member (Acquirer) is the ultimate authority should the Merchant
ve any problems.
ll?
Merchant Name:
City of Santa Ana Authorized Signatur .
X
Address: 20 Civic Center Plaza M-13 Print Name:
Santa Ana CA 92701 C, Ir- ? LJ/'gS
TSYS Merchant Solutions, LLC is a registered agent of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-9586
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2012 10 Merchant Application SBS Pass Through
CONFIDENTIAL
VISA/MC/DISCOVER
Pass through pricing: 0.0000 % DISCOUNT on SALES + $ 0.0000 per item on gross items (SALES plus Credits)
Merchant Setup $ 0.00 per MID Authorizations $0.0350 per V/MC/Disc/OnePoint Auth
"or"
Monthly Maintenance $ 0.00 per MID Excessive Electronic $ per V/MC/Disc Auth over 100%
Authorizations of SALES & per OnePoint Auth
Minimum Discount Billing $ per month/MID Non V/MC/Disc/OnePoint Authorizations $ 0.0350 each
Chargebacks $ 5.00 each Voice Authorizations $ 0.6500 each
Retrievals $ 5.00 each Voice AVS $ 1.99 each
Batch Capture $ 0.00 each Paper Statement ? Yes EINo $ 9.95 per month/MID
Insufficient Funds Fee $35 per unsuccessful debit of Wireless Monthly $ per device
DESIGNATED Account Wireless Set Up $ per device
OTHER $ Annual Seasonal $ per MID
OTHER $ Regulatory and Compliance $ 1.00 per month/MID
ATM/DEBIT ? Yes ?No PCI VALIDATION
Setup $ per MID PCI Validation $ 45.00 per year /MID OR $ 6.50 per month/MID
Transactions $ each PCI Non-validation: $ per month/MID if MERCHANT is not validated for compliance with
Monthly per MID $ TMS's vendor, beginning 75 days after signing.
Network Pass thru Interchange
Card Compromise Assistance Plan (CCAP)
CCAP Fee (PCI Validated): $ 7.95 per month/MID, if MERCHANT is validated for PCI Compliance with TMS's vendor.
CCAP Fee (PCI Non-Validated) : $ 29.95 per month/MID, if MERCHANT is not validated for PCI Compliance with TMS's vendor, beginning 75 days after
signing. This program is not being offered by Bank. Bank has no responsibility or liability under this program.
Account Closure Fee: If the AGREEMENT is terminated early during the INITIAL TERM or any RENEWAL TERM for any reason other than set out in para-
graph 5.1, 5.2A, or 5.2.B, then MERCHANT agrees to pay TMS an account closure fee ("ACCOUNT CLOSURE FEE") in accordance with the following $399
per MID during the first 12 months of the INITIAL TERM; $299 per MID during the second 12 months of the INITIAL TERM; $199 per MID during the third
12 months of the INITIAL TERM; $149 per MID during any RENEWAL TERM. MERCHANT agrees that the ACCOUNT CLOSURE FEE shall also be due to
TMS in accordance with this schedule if MERCHANT discontinues submitting SALES for processing during the INITIAL TERM or any RENEWAL TERM of
the AGREEMENT. MERCHANT agrees that this fee is a not a penalty, but rather a reasonable estimation of the actual damages TMS would suffer if TMS were
to fail to receive the processing business for the then current term. Paragraph references and capitalized terms not defined in this paragraph are defined in the
attached Terms and Conditions. Pursuant to Section 4.1 of the Terms and Conditions the INITIAL TERM shall be for 3 years.
Brand/Model MONETRA Brand/Model Brand/Model
Equipment Option OWNS Equipment Option Equipment Option
Fee $ 0.00 Quantity 1 Total $ 0.00 Fee $ Quantity-Total $ Fee $ Quantity-Total $ 0
Payment Option OWNS Payment Option Payment Option
OWNS N
Software Vendor Payment Application Version
Visa Zero Floor Limit: MasterCard Kilobyte: Visa Base fI:
$0.1039 per transaction without corresponding authorization $0.0014 per MasterCard gross transaction $0.0023 per Visa transaction
MC Acquirer License Fee: 0.005% of gross MC SALES dollar volume
The following fees will be passed through at Association's rate: Interchange, Assessments, MasterCard Network Access Brand Usage Fee, Visa Exception
Item Fee, Visa Network Acquirer Processing Fee, Visa International Acquirer Fee (including High Risk), Visa Partial Authorization Non-participation Fee, Dis-
cover International Processing Fee, Discover International Service Fee, Discover Data Usage Fee, MasterCard AVS Card Present Fee, MasterCard Account Sta-
tus Fee, MasterCard AVS Card Not Present Fee, Visa International Service (including cash advance), Visa Misuse, MasterCard Cross Border (US/Non-US/Puerto
Rico), MasterCard Processing Integrity, Visa Debit Transaction Integrity, Visa Fixed Acquirer Network Fee, All Other Applicable Association Fees.
FUNDSTRANSFER
In accordance with the terms set out in the Terms and Conditions, transfer funds will be made to/from the account set forth in the enclosed voided check or bank
letter. ? Standard El Premium ? IBA ? DDA
TSYS Merchant Solutions, LLC is a registered agent of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-9586
Merchant Initials: X
C} k
N
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2012 10 Merchant Application SBS Pass Through
CONFIDENTIAL
AMERICAN E.XPRFSS
? Existing American Express ESA ESA SE Merchant CAP
L1 New American Express OnePoint Discount % ? New American Express ESA Discount % EJ Monthly Flat (ESA)$
Merchant Name City of Santa Ana Annual American Express Charge Vol $ Avg Ticket $
Retail: + $0.10 Trans Fee Retail: 0.30% CNP downgrade ? D Daily Net Pay - ESA only ? Daily Gross Pay - ESA only
Restaurant: + $0.05 Tran Fee Restaurant: 0.30% CNP downgrade ? ? Monthly Gross Pay (+.03% if $100K +) - ESA only
13213 & Services, Wholesale & All Other: + $0.15 Trans Fee ? Payment Timing - ESA Only: ? 3 Day ? 15 Day ? 30 Day
Inbound Fee: 0.40% on Cross Border Transactions Prepaid Gift Card Discount
All industries except supermarkets 1.95% Supermarkets: $0.20 per transaction
By signing the Merchant Transaction Processing Agreement with BANK and TMS, I represent that I have read and am authorized to sign and submit this applica-
tion agreeing to be bound by the American Express'" Card Acceptance Agreement ("American Express Agreement"), and that all information provided herein is
true, complete, and accurate. I authorize TSYS Merchant Solutions, LLC. and its agents, assigns or affiliates (collectively "TMS") and American Express Travel
Related Services Company, Inc. ("American Express") and American Express agents and Affiliates to verify the information in this application and receive and
exchange information about me personally, including by requesting reports from consumer reporting agencies from time to time, and disclose such information to
their agent, subcontractors, Affiliates and other parties for any purpose permitted by law. I authorize and direct TMS and American Express and American Ex-
press agents and Affiliates to inform me directly, or inform MERCHANT, of reports about me that they have requested from consumer reporting agencies. Such
information will include the name and address of the agency furnishing the report. I also authorize American Express to use the reports on me from consumer
reporting agencies for marketing and administrative purposes. I am able to read and understand the English language. I understand that upon American Express's
approval of the application, the MERCHANT agrees to abide by the American Express Agreement and will be sent materials welcoming it, either to American
Express's program for TMS to perform services for American Express or in American Express's standard Card acceptance program which has different servicing
terms (e.g. different speeds of pay). I understand that if MERCHANT does not qualify for TMS's servicing program, that the entity may be enrolled in American
Express's standard Card acceptance program, and MERCHANT may terminate the American Express Agreement. By accepting the American Express Card for
the purchase of goods and/or services, or otherwise indicating its intention to be bound, MERCHANT agrees to be bound by the American Express Agreement. I
understand that TMS and BANK are not parties to the American Express Agreement.
IT"RSONAL GUARANTY
THIS general, absolute, and unconditional continuing Guaranty ("GUARANTY") by the undersigned (collectively "GUARANTOR" or "my" or "I" or "me"), is
for the benefit of TSYS Merchant Solutions, LLC and/or First National Bank of Omaha ("Collectively TMS"). For value received, and in consideration of the
mutual undertakings contained in the Merchant Transaction Processing Agreement and allied agreements ("AGREEMENT') between TMS and
("MERCHANT") as set forth below, I absolutely and unconditionally guarantee the full performance of all MERCHANT's obligations to TMS, together with all
costs, expenses, and attorneys' fees incurred by TMS in connection with any actions, inactions, or defaults of MERCHANT. I waive any right to require TMS to
proceed against other entities or MERCHANT. There are no conditions attached to the enforcement of this GUARANTY. I authorize TMS, its agents or assigns
to make from time to time any personal credit or other inquiries and agree to provide, at TMS's request, financial statements and/or tax returns. I agree that this
GUARANTY shall be governed and construed in accordance with the laws of the state of Nebraska, and that the courts of the state of Nebraska shall have and be
vested with personal jurisdiction over me. This is a continuing GUARANTY and shall remain in effect until one hundred eighty (180) days after receipt by TMS
of written notice by me terminating or modifying the same. The termination of the AGREEMENT or GUARANTY shall not release me from liability with re-
spect to any obligations incurred before the effective date of termination. No termination of this GUARANTY shall be effected by any change in my legal status
or any change in the relationship between MERCHANT and me. This GUARANTY shall bind and inure to the benefit of the personal representatives, heirs,
administrators, successors and assigns of GUARANTOR and TMS.
PERSONAL GUARANTOR: (Signature-No Titles) Print Name: (No Titles)
MERCHANT: (Business Legal Name) City of Santa Ana Social Security Number:
Home Address: Home Phone: Work Phone: (714) 647-544
AGRETMENT ACCEPTANCE
By their execution below the undersigned parties agree to abide by the merchant transaction processing agreement (the "AGREEMENT"). The AGREEMENT
consists of the Merchant Application and the Terms and Conditions (a separate attachment hereto), and MERCHANT acknowledges receipt of the terms and con-
ditions at the time of signing. MERCHANT warrants that the information provided on the Merchant Application is complete and accurate. MERCHANT author-
izes TMS and/or BANK to provide a copy of this Merchant Application to any third party for the services requested. MERCHANT, and its signing officer/owner/
partner, authorize TMS and/or BANK, or its agents or assigns, to make from time to time, any business and personal credit and other inquiries. If applicable,
MERCHANT agrees by its signature below to the Equipment Agreement and/or the Card Compromise Assistance Plan Agreement. In witness whereof the parties
hereto have caused this AGREEMENT to be executed by their duly authorized representatives effective on the date signed or approved by BANK.
Principal's Name (Please Print): AP, MS R ; A-5 Title: kLI e??
Equity Ownership (%) Home Phone No Date of Birth: Principal's Soc Sec No'.
0
Principal's Home Address: City: State: Zip'
MERCHANT (PRINCIPAL / OFFICER / OWNER) Name (Please Print): Title: Date:
Signature x
TSYS Merchant Solutions, LLC
("ThIS") Signature: Name: ry 4
Mora- ?u6?J_ ?^O Title?X D7t ?/-3
First National Bank of Omaha Name: Title Date:
("BANK") Signature
G
TSYS Merchant Solutions, LLC is a registered agent of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-9586
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2012 10 Merchant Application SBS Pass Through
CONFIDENTIALI2
Sales Professional Verification
By the signature below, the Sales Professional verifies that that the information stated in this Agreement is correct to the best of his/her knowledge and is as represented
to him/her by MERCHANT.
Sales Prof I Signature: Sales Professional Name Printed:
i
Bret Johnson
Sales Organization: Application Date: Physical Site Inspection Conducted By Sales
TSYS olutions 1/15/13 Professional Yes Q No
Note: MERCHANT may only opt out if MERCHANT validates PCI Compliance with TMS vendor within 75 days of signing. If at any time MERCHANT is not vali-
dated for compliance, MERCHANT will be automatically enrolled in CCAP until such time that MERCHANT restores validation, at which point MERCHANT will
again be opted out. MERCHANT declines to participate in the Card Compromise Assistance Plan ("CCAP") MERCHANT understands that under the terms of the
AGREEMENT, MERCHANT is responsible for all expenses, fines, assessments, and penalties that arise in the event that a data breach is suspected or occurs at one or
more of MERCHANT's locations. Further, MERCHANT understands and agrees that CCAP assistance will not be available to help pay any of the above mentioned
expenses, fines, assessments, or penalties in the event of a suspected or actual data breach at one or more of MERCHANTS locations. MERCHANT acknowledges that
despite opting out of CCAP, MERCHANT will still be assessed a PCI Validation Fee. This program is not being offered by BANK. BANK has no responsibility or
liability under this program.
n,
Merchant Name: Authorized Signatu e:
X
Title: Date: 1/15/13
Please attach voided check here.
TSYS Merchant Solutions, LLC is a registered agent of First National Bank of Omaha, 1620 Dodge Street, Omaha, NE 68197 800-853-9586
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Associate: 002 Chain: 001 MID#: DDA #:
MCC Code: 7523 Date Rec'd:
AMENDMENT TO THE
MERCHANT TRANSACTION PROCESSING AGREEMENT
THIS Amendment ("AMENDMENT"), by and between FIRST NATIONAL BANK OF OMAHA ("BANK"), TSYS MERCHANT
SOLUTIONS, LLC ("TMS"), and "MERCHANT", the name of which is set out below, shall become effective on the date executed or
approved by a duly authorized representative of BANK. BANK, TMS, and MERCHANT shall be collectively known hereafter as the
"PARTIES."
WHEREAS, BANK, TMS, and MERCHANT are PARTIES to a Merchant Transaction Processing Agreement (together with
its addenda, attachments, and schedules shall be hereinafter known as the "AGREEMENT"), under which BANK and TMS
provide transaction processing and other services regarding credit card sales transactions ("SALES"), subject to the terms
and conditions more fully set out in AGREEMENT; and
WHEREAS, the PARTIES desire to delete the ACCOUNT CLOSURE FEE as set out in the AGREEMENT.
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:
1. Terms set forth herein, which are typed in all capitalized letters and not defined herein, shall have the same meaning as set
out in the AGREEMENT.
2. The PARTIES agree to delete in its entirety the Account Closure Fee section from the FEES Section of the AGREEMENT.
3. The PARTIES agree to delete all other references to the ACCOUNT CLOSURE FEE from the Terms and Conditions of the
AGREEMENT.
4. This AMENDMENT, together with the AGREEMENT and its other amendments, attachments, exhibits, and schedules,
constitutes the entire AGREEMENT between the PARTIES as to transaction processing, and any other representations,
inducements, promises, or agreements not contained herein shall be of no force and effect as to transaction processing.
5. Except as amended hereby, BANK, TMS, and MERCHANT reaffirm the obligations of each as they are contained in the
AGREEMENT.
IN WITNESS WHEREOF, the PARTIES hereto have caused this AMENDMENT to be executed by their duly authorized
representative, effective as of the date executed or approved by BANK.
First National Bank of Omaha
BANK Authorized Signature
Print Name
Title
1/15/13
Date
TSYS Me Solutions, LLC
TMS Authorized Signature
VICT02 SU6h1r4r17
Print Name
Coo
Title
I-/7 ao/3
Date
MERCHANT NAME City of Santa Ana
ADDR
nZ i CA 9 2701
Authorized Signature
C?,e(c,s'0?-3t9S
Print Name ;
/4?//7 C i / /tI4,
Title
APPROVED AS TO FORM
i
LISA E. S I O -fCK
Assistant City Attornev
ATTEST.-
MARIA D. HUIZAR
CLERK OF THE COUNCIL
201210 ACF Waiver Amendment Page 1 of 1 CONFIDENTIAL
Terms
and
Conditions
Processing Terms and Conditions
Funds Transfer Instructions
Association Rules
TMS - Products/Services
TMS Equipment Agreement
TMS Card Compromise Assistance Plan Agreement
Third Parties - Products/Services
Provided by
T ISY? Marcharsc Sotucior+s"
www.tsysmerchantsolutions.com
First National Bank of Omaha
800.853.9586
Member Bank for Visa, Inc. and MasterCard International, Inc.
Copyright 0 2011 TSYS Merchant Solutions, LLC, Omaha Nebraska All rights reserved
PROCESSING TERMS AND CONDITIONS
This Merchant Transaction Processing Agreement (together with its addenda, attachments, and schedules shall be hereinafter known
as the "AGREEMENT"), is by and among the parties in the Merchant Application (the "PARTIES"). The AGREEMENT shall become
effective as set out in the signature block of the Merchant Application.
A. WHEREAS, TMS works with one or more financial institutions, including BANK, who are Members of VISA, Inc. ("VISA") and
MasterCard International, Inc. ("MASTERCARD"), and provides transaction processing and other services and products
("SERVICES") in relation to financial service cards issued by VISA, MASTERCARD, and other financial service card
organizations, including certain ATM/Debit networks (together herein known as "CARD(S)");
B. WHEREAS, TMS has a relationship with the Discover Network ("DISCOVER"), and American Express Travel Related Services
Company, Inc. ("AMERICAN EXPRESS"), and other financial service card organizations, including certain ATM/Debit networks
(collectively included in the definition of "CARDS" above). VISA, MASTERCARD, DISCOVER, AMERICAN EXPRESS,
ATM/Debit Networks, and the other financial service card organizations and their related international entities shall be collectively
known as "ASSOCIATIONS";
Notice: Depending on MERCHANT's authorization and settlement composition, the reference to DISCOVER and
AMERICAN EXPRESS in this AGREEMENT may not apply.
C. WHEREAS, MERCHANT, in furtherance of its business operations, wishes to accept CARDS and have TMS and BANK process
the resulting transactions ("SALES") pursuant to the terms and conditions set out below. For purposes of this AGREEMENT,
ATM/Debit transactions shall mean those transactions processed on an ATM/Debit network ("NETWORK(S)") in an on-line real
time environment requiring the entry of a personal identification number ("PIN"), and
D. WHEREAS, MERCHANT may desire to be sponsored as a participant in certain NETWORKS, under the terms of the rules and
regulations of each such NETWORK;
E. WHEREAS, ASSOCIATIONS, NETWORKS, TMS, and BANK each have adopted rules and regulations relating to all aspects of
SALES and SERVICES. Such rules and regulations, as amended from time to time, are incorporated herein by this reference
and shall be referred to as the "RULES"; and
F. WHEREAS, MERCHANT understands that this is an agreement for transaction processing and that the DISCOUNT (as defined
herein) for the SERVICES is calculated based on certain factors, including without limitation, the term of this AGREEMENT, the
number of transactions processed, the business type, the type of goods and/or services sold, and the method of processing; and
G. WHEREAS, BANK has assigned and/or delegated some of its rights and obligations under this AGREEMENT to TMS; provided
however that it is able to do so by the ASSOCIATIONS, NETWORKS, RULES, and any applicable law. In addition TMS has
assigned and/or delegated some of its rights and obligations under this AGREEMENT to BANK; provided however that it is able
to do so by the ASSOCIATIONS, NETWORKS, RULES, and applicable law;
H. WHEREAS, all applicable ADDENDA are attached hereto and are made a part of this AGREEMENT.
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:
1. GENERAL:
1.1 As a result of MERCHANT submitting SALES for processing to TMS and BANK, TMS and BANK will process such SALES and
BANK will credit or debit MERCHANT's DESIGNATED ACCOUNT (as defined herein) with the resulting financial proceeds of
such SALES, provided, however, that no payment for SALES will take place unless and until BANK has received payment for
such SALES from the ASSOCIATIONS. In addition, when a disputed transaction ("CHARGEBACK") occurs, MERCHANT agrees
to provide all requested information to TMS and TMS agrees to forward such information to the ASSOCIATIONS in accordance
with the RULES and the ASSOCIATIONS' dispute resolution guidelines. TMS and BANK are not responsible for the outcome of
any CHARGEBACK.
1.2 The CARDS designated herein will be processed under the terms and conditions of the AGREEMENT as long as TMS and BANK
are contractually permitted to offer such SERVICES by the respective ASSOCIATIONS.
1.3 On an exclusive basis, MERCHANT agrees to submit all SALES for processing from CARDS accepted in MERCHANT's
business as described in the Merchant Application to TMS in accordance with the RULES and pursuant to the terms of this
AGREEMENT.
1.4 MERCHANT, TMS, and BANK agree to abide by the RULES, a summary of which is attached hereto. TMS, BANK, and
ASSOCIATIONS may from time to time amend the RULES or operating procedures related to SALES and SERVICES.
MERCHANT has been supplied with a summary of the RULES and by signing this AGREEMENT, acknowledges that it has
reviewed them. MERCHANT agrees to comply with all applicable state, federal and local laws, rules and regulations ("LAWS").
MERCHANT agrees to assist TMS and BANK in complying in a complete and timely manner with all LAWS and RULES now or
hereafter applicable to any SALE or this AGREEMENT. MERCHANT will execute and deliver to TMS or BANK all such
instruments that TMS or BANK may from time to time deem necessary. It is MERCHANT's responsibility to know all applicable
LAWS and the RULES that apply to MERCHANT's acceptance of CARDS and to ensure that MERCHANT's equipment complies
with all LAWS and RULES. MERCHANT agrees to indemnify, defend, and hold TMS and BANK harmless from and against any
loss, cost or damage (including reasonable legal fees and court costs) incurred as a result of MERCHANT's failure to comply with
applicable LAWS or RULES.
1.5 MERCHANT agrees that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest
confidence all information and data belonging to or relating to the business of TMS and BANK, including but not limited to the
terms of this AGREEMENT, and will safeguard such information and data by using a reasonable degree of care but in no event
less than the same degree of care that MERCHANT uses to protect its own confidential information
201108 MTPA Terms and Conditions Page 2 of 35 CONFIDENTIAL
1.6 Security Standards.
A. MERCHANT agrees it will not disclose to any third party any cardholder account information or other personal information
except to their agent assisting in completing a card transaction, or as required by law. MERCHANT must not request or use
cardholder account number information for any purpose that MERCHANT knows or should have known to be fraudulent or in
violation of the RULES, or for any purpose that the cardholder did not authorize, except to MERCHANT's agent assisting in
completing a card transaction, or as required by law. MERCHANT must keep all systems and media containing account,
cardholder or transaction information (physical or electronic, including but not limited to account numbers, card imprints, and
terminal identification numbers) in a secure manner, to prevent access by or disclosure to anyone other than MERCHANT's
authorized personnel. MERCHANT must destroy, in a manner that will render the data unreadable, all such media that
MERCHANT no longer deems necessary or appropriate to store (except for Sales Drafts maintained in accordance with this
AGREEMENT, LAWS or RULES). Further, MERCHANT must take all steps reasonably necessary to ensure cardholder
information is not disclosed or otherwise misused. MERCHANT may not retain or store magnetic stripe, CW2 or CVC2 data
after authorization. MERCHANT must not store, and must ensure that all of MERCHANT's third party providers that have access
to cardholder data do not store, magnetic stripe, CW2 or CVC2 data after a transaction.
B. If MERCHANT uses any third parties who will have access to cardholder data ("Merchant Provider(s)"), or any third party
payment application(s) or software, MERCHANT must notify TMS of the identity of the Merchant Provider(s) and/or the name and
version of the payment application(s) or software. In addition, MERCHANT must: (1) only allow the Merchant Providers access
to the cardholder data for purposes that are authorized by the RULES, (2) have proper security measures in place for the
protection of cardholder data, (3) ensure that Merchant Providers have proper security measures in place for the protection of
cardholder data, (4) comply with and assure that Merchant Providers comply with the Payment Card Industry ("PCI") Data
Security Standard, as amended from time to time, which may be referred to as the Visa Cardholder Information Security Program
("CISP") (found at www.visa.com), the MasterCard Site Data Protection Program ("SDP") (found at www.mastercard.com),
Discover Information Security and Compliance ("DISC") (found at http://www.discovernetwork.com/fraudsecurity/disc.html), and
the American Express Data Security Operating Policy ("DSOP") (found at
https://www209.americanexpress.com/merchant/sincilevoice/Ddfs/en US/DSOP Merchant US.pdf), and (5) have written
agreements with Merchant Providers requiring the compliance set forth herein. MERCHANT will immediately notify TMS of any
suspected or confirmed loss or theft of any transaction information, including any loss or theft from a Merchant Provider.
MERCHANT is responsible for demonstrating MERCHANT's and Merchant Providers' compliance with the CISP, SDP, DISC,
DSOP, and PCI programs, and providing reasonable access to MERCHANT's locations and ensuring Merchant Providers provide
reasonable access to their locations to verify MERCHANT's and Merchant Providers' ability to prevent future security violations.
Any fees, fines or penalties resulting from non-compliance will be passed through to MERCHANT. MERCHANT agrees to
indemnify TMS, BANK and the ASSOCIATIONS against all costs, expenses, damages and/or losses resulting from any breach of
security, or loss or theft of information.
C. In addition, in the event of a suspected or confirmed loss or theft of information, MERCHANT agrees, at MERCHANT's cost,
to provide all information requested by TMS, BANK, an ASSOCIATION, other financial institutions, or local, state or federal
officials in connection with such event and to cooperate in any ensuing investigation. Any information provided in response to
such investigation will (as between MERCHANT, TMS, and BANK) be considered TMS's and BANK's confidential information.
MERCHANT agrees that TMS or BANK may release to the ASSOCIATIONS, other financial institutions and/or regulatory, local,
state or federal officials, any information MERCHANT provides to TMS or BANK in connection with a suspected or confirmed loss
or theft of transaction information. The requirements of this provision apply to cardholder data regardless of the medium in which
the information is contained and regardless of whether MERCHANT processes transactions via Internet, mail, phone, face-to-face
or any other method. Additional information regarding data security may be found at the ASSOCIATIONS' websites.
1.7 Submission by MERCHANT of SALES or participation in SERVICES at any time after seven (7) days from the date of distribution
of or publication by the ASSOCIATIONS of amended RULES to MERCHANT shall be evidence that MERCHANT was provided
with and/or received access to the amended RULES and has agreed to abide by them.
1.8 If MERCHANT is a healthcare provider or other entity covered by the Health Insurance Portability and Accountability Act of 1996,
as amended, and the supporting regulations under 45 C.F.R. Part 160 and 164, as amended, MERCHANT agrees it will not
provide TMS and BANK with Personal Healthcare Information (as defined in such act).
2. SPECIFIC OPERATING PROCEDURES:
21 MERCHANT agrees that it will comply with all Card Acceptance Procedures in the RULES for each SALE, including, but not
limited to the following:
A. MERCHANT agrees that it will obtain and record a valid positive authorization for all SALES in accordance with the RULES
before submitting them to TMS for processing;
B. MERCHANT must be able to prove, by evidence of a terminal capture of the magnetic stripe or a signed SALES DRAFT (as
defined in the RULES) showing imprint of the CARD, that the CARD was present at the time of SALE, unless specifically set
up for Card Not Present transactions; and
C. Failure to read the magnetic stripe on the card may result in a DISCOUNT rate tier downgrade or a CHARGEBACK.
2.2 TMS, BANK and/or third party banks with which TMS or BANK have a relationship are members of certain NETWORKS and are
willing to sponsor MERCHANT as a participant in such NETWORKS ("SPONSOR") as set forth in the Merchant Application.
Additional NETWORKS may be available from time to time. TMS and BANK do not warrant the continuing availability of any
NETWORK. MERCHANT agrees to pay TMS the then current FEES for any NETWORK added or deleted after the effective date
of this AGREEMENT.
23 MERCHANT agrees to accept valid CARDS of each of the selected NETWORKS and will not impose purchase minimums,
maximums, or surcharges, unless specifically allowed by the NETWORKS. MERCHANT agrees to comply with Federal
Regulation E and the rules, procedures, fees, assessments, penalties, and other obligations of each NETWORK, as from time to
time are in effect.
201108 MTPA Terms and Conditions Page 3 of 35 CONFIDENTIAL
2.4 TMS may provide MERCHANT access through MERCHANT's terminals to the NETWORKS as set forth herein.
2.5 MERCHANT must Batch Out each POS terminal every day. Failure to Batch Out daily will delay the deposit of funds. "Batch Out"
is the process by which MERCHANT totals and settles all transactions, on each POS terminal, which occurred before midnight
(12:00 a.m.) and transmit the information to TMS and BANK. In all cases, MERCHANT must present the record within three (3)
business days after the transaction date, unless otherwise permitted by the RULES. Transactions contained in an untimely Batch
Out may incur higher rates, be refused, be held for a one hundred eighty (180) day period, or become subject to a
CHARGEBACK. MERCHANT is responsible for re-submitting a Batch Out or a sales ticket if the POS terminal fails to properly
Batch Out or if sales ticket data does not process through the normal payment cycle. TMS and/or BANK are not liable to
MERCHANT for higher rates or for amounts TMS and/or BANK did not collect, including but not limited to amounts collected by
third party service providers.
3. PAYMENT OF SUMS DUE:
3.1 MERCHANT agrees to pay TMS and/or BANK the fees set forth in the Merchant Application and all other sums owed to TMS
and/or BANK ("FEES") for SALES and SERVICES as set forth in this AGREEMENT as amended from time to time. FEES
include but are not limited to all CHARGEBACKS. MERCHANT agrees that it is jointly and severally liable for all FEES, charges,
and other sums owed to TMS and/or BANK by any affiliated entities of MERCHANT.
3.2 As set out in the Merchant Application and the Rate Descriptions, discount ("DISCOUNT") is a FEE charged as a percentage of
gross SALES submitted by MERCHANT, which generally includes "Processing," "Authorizations," "Assessments," and
"Interchange." Assessments and Interchange are the standard fees that the ASSOCIATIONS charge for the clearing of SALES
transactions and are subject to change by the ASSOCIATIONS. Neither TMS nor BANK have direct control over these fees. Any
adjustment in Interchange and Assessments by the ASSOCIATIONS may result in an adjustment to MERCHANT's DISCOUNT.
TMS and/or BANK will notify MERCHANT in writing of any change in FEES caused by action of ASSOCIATIONS prior to any
such change becoming effective. Notice to MERCHANT of any change in FEES caused by ASSOCIATIONS may be less than
thirty (30) days.
3.3 DISCOUNT is quoted by TMS based on the information supplied by MERCHANT as set forth in the Merchant Application.
MERCHANT agrees that the FEES are based on the term of this AGREEMENT, the method of processing, and the information
set forth in the Merchant Application. MERCHANT agrees that such information is a material fact in the calculation of the
DISCOUNT and other FEES. MERCHANT agrees that if such information is shown to be incorrect or if such information
changes, TMS and/or BANK may amend FEES on less than thirty (30) days notice as set out herein and/or add FEES on less
than thirty (30) days notice to reflect such change. MERCHANT agrees to pay such amended and/or additional FEES.
3.4 MERCHANT agrees that FEES not listed in the AGREEMENT will be charged at TMS's and/or BANK's current rate.
3.5 The FEES may be amended by TMS and/or BANK on thirty (30) days written notice to MERCHANT unless provided otherwise
herein.
3.6 MERCHANT agrees to pay TMS and/or BANK for CHARGEBACKS related to SALES or SERVICES. MERCHANT understands
that neither TMS nor BANK is in any way financially responsible for CHARGEBACKS. Failure to comply with the RULES will
increase MERCHANT's exposure to CHARGEBACKS. MERCHANT's obligation to pay CHARGEBACKS shall survive the
termination or expiration of AGREEMENT.
3.7 If the ASSOCIATIONS or a regulatory body governing TMS and/or BANK should levy a fine or penalty or assess a charge to TMS
and/or BANK as a result of MERCHANT's SALES or SERVICES or CHARGEBACK activity, MERCHANT agrees to pay such
fines, penalties, or charges, and any administrative fees associated with same.
3.8 MERCHANT shall establish a designated account at the institution of its choice ("DESIGNATED ACCOUNT") for the credit and
debit of sums between the PARTIES. MERCHANT, pursuant to the Funds Transfer Instructions set out herein, authorizes both
TMS and BANK to make deposits and withdrawals from the DESIGNATED ACCOUNT. MERCHANT hereby grants to TMS and
BANK a security interest and lien upon the DESIGNATED ACCOUNT to secure all of MERCHANT's (or any related entity under
MERCHANT's control) obligations to TMS or BANK under this AGREEMENT. If required by TMS and/or BANK, MERCHANT
agrees to cooperate with TMS and/or BANK and the depository bank maintaining the DESIGNATED ACCOUNT to cause a
Control Agreement to be executed with respect to the DESIGNATED ACCOUNT. MERCHANT agrees to maintain a balance in
the DESIGNATED ACCOUNT in an amount specified by TMS and/or BANK and MERCHANT agrees to deposit funds into the
DESIGNATED ACCOUNT so that the minimum balance required by TMS and/or BANK is maintained. If this AGREEMENT is
terminated for any reason, the DESIGNATED ACCOUNT shall be maintained for a period of one hundred eighty (180) days, plus
the period of any warranty or guarantee on goods and/or services sold by MERCHANT and processed as SALES, from the date
of the last SALE processed by MERCHANT under AGREEMENT. TMS may recoup and debit from the DESIGNATED
ACCOUNT all non-VISA and non-MASTERCARD related FEES and other obligations due to TMS under this AGREEMENT or
any other agreement MERCHANT or MERCHANT's related entities have with TMS without prior notice to MERCHANT. BANK
may recoup and debit from the DESIGNATED ACCOUNT all FEES and other obligations due to BANK and/or TMS under this
AGREEMENT or any other agreement MERCHANT or MERCHANT's related entities have with BANK without prior notice to
MERCHANT. After all obligations of MERCHANT under this AGREEMENT are satisfied in full, the balance in the DESIGNATED
ACCOUNT, if any, shall be paid to MERCHANT. MERCHANT agrees to indemnify and hold harmless all financial institutions
from any loss or claim incurred for acting on instructions from TMS and/or BANK with respect to the DESIGNATED ACCOUNT.
MERCHANT agrees not to pledge or assign the DESIGNATED ACCOUNT, any proceeds of it or any other amounts due TMS or
BANK under this AGREEMENT to any person or entity and MERCHANT shall continually maintain the DESIGNATED ACCOUNT
free from all liens and encumbrances. In the event a RESERVE ACCOUNT, as defined below, is established, MERCHANT
authorizes TMS and/or BANK to make withdrawals from the DESIGNATED ACCOUNT to replenish the RESERVE ACCOUNT as
necessary.
3.9 MERCHANT agrees to provide TMS and BANK with a deposit in the amount of money required by TMS and/or BANK
("RESERVE ACCOUNT"), if determined necessary by TMS and/or BANK: (i) at the time this AGREEMENT is executed, (ii) if in
the opinion of TMS and/or BANK, information received or discovered about MERCHANT reflects an adverse change in status;
(iii) in the event that any information requested by TMS and/or BANK is not received; (iv) upon the notice of termination or
201108 MTPA Terms and Conditions Page 4 of 35 CONFIDENTIAL
expiration of the AGREEMENT; or (v) at any time during the term of this AGREEMENT. BANK may withhold the payment for
SALES in an amount reasonably determined by TMS and/or BANK as necessary to secure payment by MERCHANT of all FEES
and other obligations under this AGREEMENT and the amounts so withheld shall be deposited into the RESERVE ACCOUNT. If
there is not enough money retained to cover the anticipated FEES, TMS and/or BANK may require MERCHANT to remit
additional funds. The RESERVE ACCOUNT shall be maintained in a bank account with BANK in the name of BANK and under
the sole control of BANK, and MERCHANT grants to TMS and BANK a security interest and lien upon the RESERVE ACCOUNT
to secure all of MERCHANT's obligations to TMS and BANK under this AGREEMENT. If this AGREEMENT is terminated for any
reason, the RESERVE ACCOUNT shall be maintained for a period of one hundred eighty (180) days, plus the period of any
warranty or guarantee on goods and/or services sold by MERCHANT and processed as SALES, from the date of the last SALE
processed by MERCHANT under AGREEMENT. Both TMS and BANK may recoup and debit from the RESERVE ACCOUNT all
FEES and other obligations due to TMS or BANK under this AGREEMENT without prior notice to MERCHANT. After all
obligations of MERCHANT under this AGREEMENT are satisfied in full, the balance in the RESERVE ACCOUNT, if any, shall be
paid to MERCHANT.
3.10 BANK agrees to pay MERCHANT for SALES less FEES owed to TMS and BANK by MERCHANT. BANK shall recoup and
deduct FEES from incoming transactions or recoup and debit the same from MERCHANT's DESIGNATED ACCOUNT or the
RESERVE ACCOUNT. MERCHANT agrees that BANK has the right to deduct these FEES at any time including on a daily basis
if necessary. BANK is not obligated to pay MERCHANT or credit the DESIGNATED ACCOUNT for any SALES transmitted or
delivered to TMS and BANK after MERCHANT becomes insolvent, ceases to do business, or dissolves.
3.11 Both TMS and BANK have the right of recoupment and set-off. This means that both TMS and BANK may recoup and offset any
outstanding or uncollected amounts owed to TMS or BANK from: (i) any amounts BANK would otherwise be obligated to deposit
into the DESIGNATED ACCOUNT, and (ii) any other amounts TMS or BANK may owe MERCHANT under this AGREEMENT or
any other agreement.
3.12 If MERCHANT does not pay any sums due within thirty (30) days from date of notice, TMS and/or BANK will charge, and
MERCHANT agrees to pay, a late fee of one and one-half percent (1.5%) per month on the balance outstanding or the highest
amount allowed by law. If MERCHANT breaches AGREEMENT or if TMS and/or BANK identifies suspicious or irregular activity
related to SALES or SERVICES, TMS and/or BANK may refuse to process SALES or to provide SERVICES and/or BANK may
hold funds pending the cure of such breach or resolution of such activity.
3.13 If TMS or BANK takes any action against MERCHANT to collect any FEES or monies due to TMS or BANK from MERCHANT,
MERCHANT agrees to pay all costs of collection, including but not limited to, attorney fees, to the extent allowed by law.
3.14 If MERCHANT is a participant in a TMS third party program including, but not limited to, Agent Bank and/or Association
programs, and MERCHANT subsequently leaves such third party, TMS may amend the FEES or terminate the AGREEMENT.
4. TERM OF AGREEMENT:
4.1 The initial term of this AGREEMENT shall be for three (3) years ("INITIAL TERM") commencing on the date this AGREEMENT is
executed or approved by BANK.
4.2 At the expiration of the INITIAL TERM, this AGREEMENT will automatically renew for successive one (1) year periods
("RENEWAL TERM") unless terminated as set out below.
5. TERMINATION OF AGREEMENT:
5.1 This AGREEMENT may be terminated by TMS or BANK at any time effective upon thirty (30) days written notice.
5.2 MERCHANT may terminate this AGREEMENT as follows:
A. upon TMS's or BANK's default of any material obligation to MERCHANT thereunder and the failure of TMS or BANK to cure
such default within thirty (30) days after written notice of such default;
B. upon written notice of non-renewal at least thirty (30) days prior to the commencement of any RENEWAL TERM; or
C. on thirty (30) days notice of termination accompanied by payment to TMS of the ACCOUNT CLOSURE FEE.
5.3 In order to protect the ASSOCIATIONS, TMS, and BANK, TMS or BANK may terminate this AGREEMENT effective immediately
for any of the following reasons:
A. insolvency, receivership, voluntary or involuntary bankruptcy, assignment of any of MERCHANT's assets for the benefit of
MERCHANT's property creditors, or if any part of MERCHANT's property is or becomes subject to any levy, seizure,
assignment or sale for or by any creditor or governmental agency without being released within thirty (30) days thereafter;
B. if MERCHANT fails to pay any FEES when due;
C if MERCHANT has misrepresented or omitted any material information provided to BANK and/or TMS;
D if MERCHANT is in breach of the AGREEMENT or the RULES;
E. if MERCHANT, after TMS's or BANK's request, fails to send copies of SALES DRAFTS to TMS or BANK,
F. if MERCHANT submits for processing SALES that were not originated as a result of a direct SALE transaction between a
cardholder and MERCHANT in the normal course of business ("LAUNDERING");
G if the number of CHARGEBACKS experienced by MERCHANT in any one (1) month exceeds one percent (1%) of the
number of SALES in that or any prior month;
H in the event of a material change of MERCHANT's business as described in the Merchant Application ("BUSINESS"),
I in the event the ASSOCIATIONS identify MERCHANT, its principal, or associated parties under any program designed to
monitor merchants, or MERCHANT creates circumstances that cause harm or loss of goodwill to the VISA system;
J. if MERCHANT is inactive for ninety (90) days and is not a seasonal MERCHANT; or
K in the event that Guarantor (if designated) gives notice of its intention to withdraw the Guaranty.
5.4 Effect of Termination of the AGREEMENT:
A In the event that this AGREEMENT is terminated by TMS or BANK for cause, TMS or BANK may be required to report the
name and address of MERCHANT and MERCHANT's principals to the ASSOCIATIONS for inclusion on the Terminated
201108 MTPA Terms and Conditions Page 5 of 35 CONFIDENTIAL
Merchant File and in other programs that monitor merchants. In the event that this AGREEMENT is terminated for cause
and MERCHANT is obligated to TMS or BANK for sums due and the principals of MERCHANT are liable for such debts, a
negative credit report may be submitted to a credit-reporting agency.
B. MERCHANT hereby releases, indemnifies and holds TMS, BANK, and the ASSOCIATIONS harmless to the fullest extent
permitted by applicable law for any loss or damage it may incur as a result of reporting MERCHANT or its principals to a
credit reporting agency hereunder or as a consequence of MERCHANT or its principals being placed by TMS, BANK, or its
Agents on the ASSOCIATIONS' merchant monitoring lists.
6. BANKRUPTCY:
6.1 It is not the intention of the PARTIES that TMS or BANK remains obligated to continue processing SALES or providing
SERVICES in the event of a bankruptcy filing by MERCHANT. Upon filing voluntary or involuntary bankruptcy proceedings by or
against MERCHANT, MERCHANT must notify BANK and TMS in writing within five (5) days. Notification must be sent by
certified mail to BANK and TMS at the addresses for NOTICES set out herein.
6.2 Credits to MERCHANT's DESIGNATED ACCOUNT and other payments to MERCHANT are provisional. The PARTIES
acknowledge the AGREEMENT is an agreement whereby BANK is extending financial accommodations to MERCHANT within
the meaning of Section 365 of the Bankruptcy Code as amended from time to time. The right of MERCHANT to receive any
amounts due or to become due from TMS or BANK is expressly subject and subordinate to the CHARGEBACKS, recoupment,
setoff, lien, and security interest rights of TMS and/or BANK under this AGREEMENT without regard to whether such
CHARGEBACKS, recoupment, setoff, lien, and/or security interest rights are being applied to claims that are liquidated,
unliquidated, fixed, contingent, matured, or unmatured.
7. INFORMATION AND DOCUMENTATION:
7.1 MERCHANT agrees to comply with all requests for information and documentation regarding SALES and the CARDS utilized in
processing such SALES or SERVICES under AGREEMENT within the time period stated by TMS and BANK in its request.
7.2 USA PATRIOT ACT REQUIREMENTS. To help the government fight the funding of terrorism and money laundering activities,
the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person
(including business entities) who opens an account. What this means: When MERCHANT opens an account, TMS and/or BANK
will ask for the applicant's name, physical address, date of birth, taxpayer identification number, and other information that will
allow TMS or BANK to identify the applicant. TMS or BANK may also ask to see the applicant's driver's license or other
identifying documents. TMS or BANK will advise MERCHANT if additional information is required.
7.3 Upon TMS's or BANK's request, MERCHANT shall provide TMS or BANK with current financial statements in a format
acceptable to TMS and BANK.
7.4 MERCHANT and its signing officer/owner/partner/principal authorize TMS and BANK, or their agents or assigns, to make, from
time to time, any business and personal credit and other inquiries TMS and BANK consider necessary to review the acceptance
and continuation of this AGREEMENT. MERCHANT authorizes parties contacted by TMS and BANK or any of their respective
affiliates, in relation to this AGREEMENT, to release the credit information requested by TMS, BANK, or any affiliate.
7.5 MERCHANT is supplied with monthly reports by TMS regarding MERCHANT's SALES or SERVICES activity. It is MERCHANT's
sole responsibility to report any error or discrepancies detected by MERCHANT in writing to TMS 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.
7.6 MERCHANT will notify TMS immediately of any change in ownership, corporate or "d/b/a" name, location address, or the
information contained on MERCHANT's imprinter plates.
7.7 If MERCHANT participates in any TMS third party program, MERCHANT agrees that TMS may report information as required to
such third party.
7.8 MERCHANT is solely responsible for maintaining complete backup records of all information relating to its customers' orders,
inquiries, purchases, SALES and any other customer information in accordance with this AGREEMENT, LAWS, and RULES.
8. PROCESSING RESTRICTIONS:
8.1 MERCHANT agrees that it will not materially change its BUSINESS or the method in which it markets or sells the goods and
services of BUSINESS without informing TMS in advance of such change. TMS and BANK will only process SALES from the
BUSINESS as defined in the AGREEMENT.
8.2 If actual monthly SALES volume substantially exceeds the projected annual SALES volume as provided in the Merchant
Application and pro-rated to one month, TMS and BANK may, at their option, do one or more of the following: (i) refuse to
process SALES in excess of such sum; (ii) process such SALES and retain the proceeds of such SALES until the next month and
release such sums to MERCHANT at that time counting this volume as SALES volume for that month; (iii) terminate this
AGREEMENT; and/or (iv) amend this AGREEMENT in a way as to ensure that TMS and BANK have security for the increased
volume. Such rights of termination and retention of funds are in addition to those already provided for herein.
8.3 In the event of failure, including bankruptcy, insolvency, or other suspension of business operations by MERCHANT,
MERCHANT shall not sell, transfer, or disclose any materials that contain cardholder account numbers, personal information, or
other ASSOCIATION transaction information to third parties. Upon request from TMS or BANK, MERCHANT shall either (i)
provide this information or (ii) provide acceptable proof of destruction of this information.
9. USE OF THE INTERNET SYSTEM INTEGRATORS AND/OR THIRD PARTY SERVICE PROVIDERS:
9.1 If MERCHANT accepts SALES through its web site or through a system integrator, MERCHANT shall at all times maintain and be
responsible for the security of the transmission of data relating to the processing of SALES associated with this AGREEMENT.
MERCHANT shall be responsible for obtaining and maintaining web site security, for the encryption of all data, and for any and all
storage of data. MERCHANT shall display on its web site its: (i) consumer data privacy policy and (ii) security method for
transmission of payment data. An e-commerce MERCHANT must display the address of its "permanent establishment" on its
web site along with MERCHANT's country of domicile, either a) on the same screen view as the checkout screen used to present
the total purchase amount, or b) within the sequence of web pages the cardholder accesses during the checkout process.
201108 MTPA Terms and Conditions Page 6 of 35 CONFIDENTIAL
9.2 MERCHANT shall be responsible for obtaining and contracting with any third party service provider(s), payment engine(s),
payment gateway(s), and any other Internet service provider(s) and/or system integrator(s). MERCHANT shall ensure that said
third parties appropriately format and transmit SALES to TMS and BANK in accordance with the then current RULES and
requirements of TMS, BANK, and ASSOCIATIONS. If MERCHANT is using a Member Service Provider's terminal or software
application, (i.e. dial terminal or equivalent sales capture solution), and the Member Service Provider is providing the customer
service, then such Member Service Provider is a separate entity and is not an agent of TMS or BANK. MERCHANT understands
the AGREEMENT is between TMS, BANK, and MERCHANT. Disputes involving a Member Service Provider shall be dealt with
independently from TMS and BANK. If disputes are unresolved and relate to SERVICES provided under the AGREEMENT,
MERCHANT shall notify TMS at the address set out in the AGREEMENT. MERCHANT must pay TMS and BANK regardless of
any disputes it has with any Member Service Provider. If MERCHANT elects to use the terminal or software of third party
providers to capture and transmit SALES to TMS and BANK, MERCHANT must disclose the relationship to TMS and
MERCHANT assumes full responsibility and liability for such third party provider's failure to comply with the RULES. The third
party provider may be the source for information regarding SALES, authorizations and CHARGEBACKS that may be needed by
TMS and BANK. Certain CHARGEBACKS require authorization information to reverse. MERCHANT is responsible for obtaining
this information from such third party provider. Neither TMS nor BANK are liable for SALES they did not receive. MERCHANT
understands that in the event MERCHANT rents TMS's terminals, the communications vendor is not responsible for losses
arising from the SALES processed using the vendor's service.
9.3 MERCHANT agrees that neither TMS nor BANK is responsible for any services or equipment provided by any third party with
which MERCHANT has contracted. MERCHANT agrees that TMS and BANK are not responsible for and are not able to provide
customer service for the point of sale ("POS") devices installed by and/or operated by any third party with which MERCHANT has
contracted. MERCHANT should contact the third party for service of this equipment. MERCHANT shall not allow any third party
to install, remove, or modify any terminal software application of TMS without the express written consent of TMS. MERCHANT
agrees TMS and BANK can only process SALES received by TMS and BANK, and any third party is responsible for ensuring
SALES are formatted and transmitted to TMS and BANK in accordance with the then current requirements of TMS, BANK, and
ASSOCIATIONS. TMS and BANK may increase FEES if a third party presents SALES transactions not in accordance with the
then current ASSOCIATIONS' requirements. MERCHANT assumes full responsibility and liability for DISCOUNT rate tier
downgrades caused by any third party. MERCHANT assumes full responsibility and liability for third party providers' failure to
comply with the RULES. MERCHANT is responsible for obtaining from the third party provider any information needed by TMS
and BANK.
9.4 MERCHANT shall assume full liability and shall indemnify and hold TMS, BANK, and ASSOCIATIONS harmless for: (i) the
actions and/or inactions of any third party with which MERCHANT has contracted or (ii) the failure of any third party with which
MERCHANT has contracted to comply with the LAWS or RULES.
10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES:
10.1 MERCHANT's rights and remedies hereunder are exclusive and in lieu of all other rights and remedies. TMS and BANK shall not
otherwise be liable for any error, omission, delay, computer virus, loss of data or records or disclosure of confidential information
which may occur as a result of, or in any way be connected with, the rendering of SERVICES hereunder. TMS and BANK shall
not be liable for any services or products of third parties. In any event, TMS's and BANK'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 processing portion of the DISCOUNT paid to TMS by MERCHANT in the
month prior to the incident giving rise to liability. In no event shall ASSOCIATIONS, or the ASSOCIATIONS' contractors be liable
for losses, damages, or liabilities whether in contract, tort (including negligence), strict liability or under any other theory incurred
by MERCHANT, MERCHANT's customers, or any other person or entity arising under this AGREEMENT. IN NO EVENT SHALL
TMS, BANK, THE ASSOCIATIONS, OR THE ASSOCIATIONS' CONTRACTORS BE LIABLE FOR SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA,
VIRUSES, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR TMS
AND BANK WERE ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY
HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
10.2 THE SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE
DISCLAIMED BY TMS, BANK, ASSOCIATIONS, AND ASSOCIATIONS' CONTRACTORS, INCLUDING BUT NOT LIMITED TO,
THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A
PARTICULAR PURPOSE. TMS AND BANK ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR
OMISSIONS IN THE CONTENT. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISIONS OF THE
UNIFORM COMMERCIAL CODE SHALL NOT APPLY.
11. WARRANTIES AND INDEMNITIES:
11.1 MERCHANT understands that TMS and BANK merely provide processing services for SALES or SERVICES and is neither a
partner in MERCHANT's business operations nor a guarantor of the receipt by MERCHANT of the proceeds of SALES or
SERVICES. Furthermore, TMS and BANK do not guarantee that SALES or SERVICES will not be subject to CHARGEBACKS
11.2 MERCHANT warrants there is no action, suit or proceeding pending or to MERCHANT's knowledge threatened, which, if decided
adversely, would impair MERCHANT's ability to carry on MERCHANT's business substantially as now conducted or which would
adversely affect MERCHANT's financial condition or operations. MERCHANT warrants that it, or its principals or sales agents
have not been terminated from depositing SALES with any other member of the ASSOCIATIONS, have never been placed on the
MasterCard MATCH system, or on the Combined Terminated Merchant File except as disclosed in writing to TMS and BANK.
11.3 MERCHANT warrants that at the time of depositing SALES for processing: (i) it has the right to assign such SALES to BANK and
does by this reference assign all its rights, title, and interest to payment for such SALES to BANK so that TMS and BANK may
process SALES under the AGREEMENT; (ii) it has no knowledge of any fact that would impair the collectability of the SALES;
and (iii) that the SALES represent a valid obligation of the cardholder: (a) in the amount indicated; (b) for merchandise sold and
201108 MTPA Terms and Conditions Page 7 of 35 CONFIDENTIAL
delivered or services rendered to the cardholder by the MERCHANT; and (c) it does not involve any element of credit for any
other purpose.
11.4 MERCHANT agrees to indemnify and hold harmless TMS, BANK, SPONSORS, and ASSOCIATIONS, including the
ASSOCIATIONS' contractors, from and against any claims, demands, or judgments, made or recovered against it, arising out of
any misrepresentation or breach by MERCHANT of the terms of this AGREEMENT or arising from any act or omission by
MERCHANT which violates any LAWS, the RULES, or the rights of another person or otherwise injures any third party. TMS,
BANK, SPONSORS, or the ASSOCIATIONS may defend on its own any such claims or demands or request MERCHANT to take
up such defense. In either event MERCHANT will further indemnify TMS, BANK, SPONSORS, and the ASSOCIATIONS for
reasonable attorney fees or any other necessary expenses incurred by TMS and BANK by reason of such defense.
11.5 MERCHANT shall be solely responsible for losses and CHARGEBACKS incurred as a result of, or arising out of, any fraud
including LAUNDERING, negligence, or willful misconduct on the part of MERCHANT, or MERCHANT's employee(s) or agent(s).
11.6 MERCHANT is responsible for any electronic virus or viruses that may be encountered and is responsible for routinely scanning
its computers and diskettes using a reliable virus product to detect and remove any viruses found.
12. NOTICES:
12.1 All notices required under this AGREEMENT from MERCHANT shall be written paper notices effective, unless otherwise stated in
AGREEMENT, upon the earlier of actual receipt thereof or the third (3rd) business day following such notices being deposited
postage prepaid in the United States Postal System.
12.2 All written paper notices shall be sent to the following addresses, which may be changed by any PARTY by designating an
alternate address, effective upon fourteen (14) days notice of such change:
If to TMS: If to MERCHANT:
TSYS Merchant Solutions, LLC At the address set out in the Merchant Application or such
Attention: Legal Department alternative address as designated in writing by MERCHANT.
1601 Dodge Street, 23E
Omaha, NE 68102-1637
If to BANK:
First National Bank of Omaha
Attention: Acquirer Legal & Risk Department
1620 Dodge Street, Stop 3395
Omaha, NE 68197
12.3 MERCHANT consents to receiving electronically rather than in paper form all notices, disclosures and other documents
("DOCUMENTS") which are to be provided to MERCHANT under this AGREEMENT. MERCHANT will be notified that a
DOCUMENT is available at TMS's web site with a link to that specific page of the web site containing the DOCUMENT.
MERCHANT agrees that such notification will be sent to MERCHANT at the e-mail address provided as part of the Merchant
Application. Any DOCUMENT sent to MERCHANT electronically will be maintained on the website for not less than six (6)
months from the date of its posting on the web site. MERCHANT understands and acknowledges that access to the Internet, e-
mail and the worldwide web are required for MERCHANT to access a DOCUMENT electronically and MERCHANT confirms that
MERCHANT has such access. MERCHANT understands that there are costs related to access DOCUMENTS electronically and
MERCHANT agrees that MERCHANT is responsible for these related access costs. Without advance notice to MERCHANT and
at any time, electronic DOCUMENTS may no longer be sent to MERCHANT, in which case a paper copy of the DOCUMENT will
be sent to MERCHANT pursuant to Sections 12.1 and 12.2.
13. MISCELLANEOUS:
13.1 Assignment. Except as expressly provided in this AGREEMENT, MERCHANT may not assign its rights or delegate its
responsibilities under this AGREEMENT without the prior written consent of TMS and BANK. TMS and BANK may each assign
its rights or delegate duties under this AGREEMENT without the prior consent of MERCHANT.
13.2 Governing Law and Forum. The PARTIES acknowledge and agree that this AGREEMENT and any Guaranty contained herein
was, and shall be deemed to have been, made and delivered in Douglas County, Nebraska. The laws of the State of Nebraska,
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 AGREEMENT and any Guaranty contained herein, including, without limitation, the
validity, interpretation, construction, performance and enforcement of the AGREEMENT and Guaranty. The PARTIES agree that,
in the event of any dispute regarding, arising out of or relating to this AGREEMENT or any Guaranty contained herein, the courts
of the State of Nebraska 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 AGREEMENT or any
Guaranty contained herein shall be filed and litigated only in courts located in Douglas County, Nebraska, and such courts shall
have exclusive jurisdiction over any action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this
AGREEMENT or any Guaranty contained herein. If MERCHANT brings legal action against TMS or BANK 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.
13.3 Waiver. No delay or failure by either PARTY to exercise any right under AGREEMENT and no partial or single exercise of that
right shall constitute a waiver of that right or any other right, unless expressly provided for in AGREEMENT.
13.4 Force Maieure. TMS and BANK are not liable or responsible for any failure or delay in performance caused by any Act of God,
strikes, flood, fire, war, public enemy, electrical or equipment failure, failures by third parties, or other events beyond its control.
13.5 Entire Agreement. This AGREEMENT constitutes the entire understandings of the PARTIES as to the subject matter contained
herein and supersedes all prior contracts, agreements, and negotiations between the PARTIES whether verbal or written.
13.6 Costs. Neither PARTY shall be responsible for the costs incurred by the other in negotiating or implementing this AGREEMENT.
201108 MTPA Terms and Conditions Page 8 of 35 CONFIDENTIAL
13.7 Survival. The obligations of all PARTIES incurred prior to the effective date of termination of this AGREEMENT will survive the
termination of this AGREEMENT. If any portion of the AGREEMENT is held invalid or unenforceable for any reason, it is agreed
that any invalidity or unenforceability will not affect the remainder of the same and the remaining provisions will remain in full force
and effect. The PARTIES agree that the Court of competent jurisdiction may modify any objectionable provision of the
AGREEMENT so as to render it valid, reasonable and enforceable.
13.8 Amendment. This AGREEMENT may be amended or modified by TMS or BANK effective upon thirty (30) days written notice.
Any alteration or strikeover in the text of this pre-printed AGREEMENT will have no binding effect and will not be deemed to
amend this AGREEMENT.
13.9 Authori . By signing the AGREEMENT, each PARTY represents that it has the full legal power and authority to enter into
performance obligations under this AGREEMENT. Each PARTY represents that the entering into of this AGREEMENT has been
duly authorized; the signer is a duly authorized signatory; this AGREEMENT constitutes a legal, valid, and binding obligation of
each PARTY; and that this AGREEMENT is enforceable against each PARTY in accordance with its terms.
13.10P-Card. To the extent applicable, TMS and BANK agree not to use any information supplied by MERCHANT in the Purchasing
Card Information that is required for acceptance of purchasing cards, in its decision as to whether to accept MERCHANT for
processing. MERCHANT agrees to hold TMS and BANK harmless from any and all claims relating to the collection, processing,
dissemination, and use or misuse of the information contained in the Purchasing Card Information. MERCHANT acknowledges
that the information from the Purchasing Card Information will be sent to MERCHANT's corporate customers who pay with a
purchasing card. MERCHANT agrees that TMS AND BANK are not responsible for any actions or omissions of others regarding
this information.
13.11 Taxes. MERCHANT agrees to pay all federal, state, and local sales, use, property and excise taxes which may be assessed in
connection with the services and related products provided under this AGREEMENT.
13.12 Disclosure of Merchant Identification Number ("MID). For security reasons, MERCHANT must disclose its MID thereby
authorizing TMS to make changes to its account. TMS and BANK may request from MERCHANT additional information to
further verify MERCHANT's identity. TMS may assume that the person disclosing the MID has the authority to make changes to
MERCHANT's account. MERCHANT is responsible and liable for changes made after disclosure of its MID. MERCHANT is
responsible for insuring its MID is kept confidential.
13.13 Information Release. MERCHANT authorizes TMS and BANK to release MERCHANT's information to third parties that provide
services to TMS, BANK, or MERCHANT or to any third party that requests and has a reason to know such information, including
but not limited to the ASSOCIATIONS, and any third-party having regulatory control over the PARTIES.
13.14 Counterparts/Facsimile. This AGREEMENT may be executed and delivered in any number of counterparts, each of which shall
be an original but all of which together shall constitute one and the same instrument. Any photocopy, facsimile, electronic or
other copies shall have the same effect for all purposes as an ink-signed original. MERCHANT hereby authorizes TMS and
BANK and their affiliates to send facsimiles to the MERCHANT's facsimile number set forth in this AGREEMENT.
13.15 Monitoring. MERCHANT understands and agrees that any telephone conversation between MERCHANT and TMS or BANK
may be monitored and recorded.
13.16 Binding Agreement. This AGREEMENT shall not become a binding AGREEMENT between the PARTIES until (i) it is signed or
approved by an authorized Agent of BANK; and (ii) TMS has received a negative response to its inquiry of the ASSOCIATIONS'
programs designed to monitor merchants.
13.17 Products and Services. TMS may from time to time add products and/or services to the SERVICES. At MERCHANT's request,
TMS may provide such additional products and/or services to MERCHANT at TMS's then current rate. MERCHANT agrees to
abide by all parameters set by TMS for such products and/or services as set out in any product specification or documentation as
amended from time to time. MERCHANT is responsible for any coding and testing, if necessary, for such products and/or
services. TMS and BANK have made reasonable efforts to secure information and abide by the ASSOCIATIONS' security
guidelines but TMS and BANK do not guarantee security. MERCHANT is responsible for protecting access to any passwords or
user identification numbers. Access to and use of password protected areas of any products and/or services are restricted to
authorized users only. It is the MERCHANT's obligation to notify TMS immediately if its passwords or user identification numbers
have been lost or stolen or if there has been unauthorized access. TMS and/or BANK shall at all times retain all title to and
ownership of the products and SERVICES. MERCHANT agrees not to, directly or indirectly, modify, reverse engineer,
decompile, disassemble or derive source code from the products and SERVICES. Either PARTY may terminate a product and/or
service at any time upon thirty (30) days written notice to the other without terminating the AGREEMENT.
13.18 Communication. MERCHANT authorizes TMS and/or BANK and its affiliates to communicate with, solicit and/or market to
MERCHANT via regular mail, telephone, e-mail and facsimile in connection with the provision of goods or services by TMS and
BANK, its affiliates, or any third party that TMS or BANK shares, transfers, exchanges, discloses or provides information with or
to pursuant this AGREEMENT and will hold TMS and BANK, its affiliates and such third parties harmless against any and all
claims pursuant to the federal CAN-SPAM ACT of 2003, the Telephone Consumer Protection Act and any and all other state or
federal laws relating to transmissions or solicitations by any of the methods described above
13.19 Disclosure. The ASSOCIATIONS require that the following be disclosed to MERCHANT: (i) BANK is in control of TMS's
performance under this AGREEMENT; (ii) BANK must pre-approve all FEES; (iii) the AGREEMENT may not be amended without
TMS's and BANK's express written consent; (iv) TMS will not have access to MERCHANT's ASSOCIATION related funds, (v)
TMS may not subcontract, sublicense, assign, license, franchise, or in any manner extend or transfer to any third party, any right
or obligation of TMS set forth in this AGREEMENT, and (vi) BANK may not waive the foregoing requirements.
FUNDS TRANSFER INSTRUCTIONS
MERCHANT desires to effect settlement of credits and debits from MERCHANT's DESIGNATED ACCOUNT by means of ACH and/or
wire transfer in conjunction with the processing of SALES transactions or SERVICES as anticipated by AGREEMENT. In accordance
with this desire, MERCHANT authorizes BANK and/or TMS to initiate debit and credit entries to the DESIGNATED ACCOUNT (the
details of which are set out herein and in the Merchant Application). MERCHANT agrees to maintain sufficient funds in DESIGNATED
201108 MTPA Terms and Conditions Page 9 of 35 CONFIDENTIAL
ACCOUNT to cover debit transactions. By signing this AGREEMENT, MERCHANT states that it has authority to agree to such
transactions and that the DESIGNATED ACCOUNT indicated is a valid and legitimate account for the handling of these transactions.
This authority is to remain in effect until BANK and/or TMS receives written notice from MERCHANT revoking it. This authorization is
for the payment of SALES, returns and FEES, CHARGEBACKS, or any other sums owed between the PARTIES. MERCHANT also
certifies that the appropriate authorizations are in place to allow MERCHANT to authorize this method of settlement. All changes to the
identification of the DESIGNATED ACCOUNT under this authorization must be made in writing in accordance with AGREEMENT.
MERCHANT agrees that if the DESIGNATED ACCOUNT is an IBA and MERCHANT closes the IBA, the DESIGNATED ACCOUNT
shall become the Home Account without further written notification and these instructions will apply. MERCHANT understands that if
the information supplied as to the ABA Routing Number and Account Number of the DESIGNATED ACCOUNT is incorrect, and funds
are incorrectly deposited, BANK and/or TMS will attempt to assist MERCHANT in the recovery of such funds but has no liability as to
restitution of the same. BANK's and/or TMS's assistance in recovering the funds, where available, will be billed to MERCHANT at
BANK's and/or TMS's current hourly rate for such work. MERCHANT acknowledges that the origination of ACH transactions to the
DESIGNATED ACCOUNT must comply with the provisions of U.S. law.
ASSOCIATION RULES
NOTICE: This information is a summary of common ASSOCIATION regulations; however card acceptance, processing and
chargeback procedures are subject to change. If there are any differences between the ASSOCIATIONS' regulations and
these RULES, the ASSOCIATIONS' regulations will prevail in every instance. To the extent these RULES or the
ASSOCIATIONS' regulations conflict with applicable local, state, or federal laws, rules, or regulations, such local, state, or
federal laws, rules or regulations shall govern. The ASSOCIATIONS publish summaries of the regulations for merchants.
Some of these summaries may be accessed at www.visa.com and www.mastercard.com, while AMERICAN EXPRESS and
DISCOVER regulations may be accessed atwww.tsystransactionsummary.com.
ASSOCIATION CARD ACCEPTANCE PROCEDURES
1. Honor All CARDS:
11 MERCHANT shall honor all CARDS issued by an ASSOCIATION, when presented in accordance with these RULES, for the
purchase of goods or services by an authorized holder of CARD or in processing a request for credit resulting from such a
transaction, unless MERCHANT provides TMS and BANK with a thirty (30) day written notice that it no longer wishes to accept
either credit or debit cards, including check or prepaid cards (i.e., non-PIN based debit). If MERCHANT has provided such notice
to TMS and BANK, upon the expiration of the thirty (30) day notice period, MERCHANT will no longer be required to accept such
cards.
1.2 If a cardholder presents a VISA CARD that is in the MERCHANT's category of acceptance and that bears a mark representing
another payment service: (i) MERCHANT must honor the cardholder's request if the cardholder indicates that the transaction is
to be processed as a VISA transaction and (ii) MERCHANT may process the transaction as something other than a VISA
transaction despite an initial indication by the cardholder that the transaction is to be processed as a VISA transaction, but only if
the cardholder agrees that the transaction may be processed as something other than a VISA transaction. MERCHANT may not
mislead the cardholder concerning what payment service or system will be used. These rules do not require MERCHANT to
explain any loss of consumer rights if the transaction is not processed as a VISA transaction, but if MERCHANT provides any
information on this topic, that information must be accurate.
1.3 PROHIBITIONS -A MERCHANT must not:
A. Accept cardholder payments for previous Visa Card or Visa Electron Card charges incurred at the MERCHANT location;
B. Establish a minimum or maximum Transaction amount as a condition for honoring a Visa Card or Visa Electron Card;
C. Require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration
date, signature, or any other card account data in plain view when mailed,
D. Add any surcharge to transactions;
E. Add any tax to transactions, unless applicable law expressly requires that a MERCHANT be permitted to impose a tax. Any
tax amount, if allowed, must be included in the transaction amount and not collected separately;
F. Enter into interchange any transaction receipt for a transaction that was previously charged back and subsequently returned
to the MERCHANT irrespective of cardholder approval. The MERCHANT may pursue payment from the customer outside
the VISA system;
G. Request or use an account number for any purpose other than as payment for its goods or services, except to support the
Health Care Eligibility Service or VISA Activation and Load Service, as specified in VISA regulations;
H. Disburse funds in the form of travelers cheques, if the sole purpose is to allow the cardholder to make a cash purchase of
goods or services from MERCHANT;
1. Disburse funds in the form of cash, unless:
1) MERCHANT is dispensing funds in the form of travelers cheques, Visa TravelMoney Cards, or Foreign Currency. In this
case, the transaction amount is limited to the value of the travelers cheques, Visa TravelMoney Card, or Foreign
currency plus any commission or fee charged by the MERCHANT; or
2) MERCHANT is participating in the Visa Cash Back Service, as further specified in the VISA regulations
J. Accept a Visa Card or Visa Electron card for the purchase of Scrip,
K Accept a Visa electron Card for Manual Cash Disbursement,
L. Accept a Visa TravelMoney Card for a Manual Cash Disbursement;
M. Accept a card to collect or refinance an existing debt that has been deemed uncollectible by the merchant providing the
associated goods or services (Note: A transaction that represents a payment on an existing obligation must be identified by
the appropriate indicator in the Authorization Request and Clearing Record.),
N. Enter into interchange a transaction that represents collection of a dishonored check, or
201108 MTPA Terms and Conditions Page 10 of 35 CONFIDENTIAL
O. Require a cardholder to waive his or her rights to dispute the transaction as a condition of the SALE.
2. Sales Transactions:
2.1 No SALE may be completed if cardholder (the duly authorized holder and user of CARD) fails to present his/her CARD to
MERCHANT at time of SALE, except in the case of Card Not Present environments where MERCHANT has received written
permission by TMS and BANK to do so.
2.2 IF USING A MANUAL IMPRINTER, MERCHANT MUST IMPRINT THE CARD. IF USING AN ELECTRONIC DEVICE,
MERCHANT MUST HAVE THE CARD SUCCESSFULLY READ BY A MAGNETIC STRIPE CARD READER/TERMINAL WITH
PRINTER ATTACHED. If MERCHANT's terminal cannot successfully read the magnetic stripe, MERCHANT must imprint the
card, even if it is a key entered transaction. MERCHANT must imprint the CARD on the same SALES DRAFT (a paper record
evidencing the purchase of goods or services using a CARD) containing the remainder of the transaction information and the
cardholder signature. Failure to obtain a signed and imprinted SALES DRAFT when a transaction is not captured by swiping
through a magnetic stripe reader will expose MERCHANT to a CHARGEBACK on such a transaction regardless of the
authorization that may or may not be received. Failure to read the magnetic stripe on the card may result in a DISCOUNT rate
tier downgrade.
2.3 MERCHANT shall require cardholder to sign the SALES DRAFT.
2.4 Unless specifically permitted by TMS and BANK to the contrary, goods and services purchased must be delivered to cardholder
at time of SALE.
2.5 MERCHANT shall not require cardholders to provide personal information (such as telephone number or address) as a condition
for honoring a SALE, unless required by the RULES.
2.6 TMS, BANK, the ASSOCIATIONS, or their designated agent, on behalf of itself or others, shall have the right to inspect
MERCHANT's security systems and procedures from time to time after reasonable notice to MERCHANT.
2.7 If MERCHANT receives BIN information from TMS and BANK, MERCHANT must not use such information for any reason other
than to identify VISA debit category products at the point of sale, unless authorized by VISA. VISA BIN information is proprietary
and confidential information belonging to VISA. MERCHANT must not disclose VISA BIN information to any third party without
prior written permission from VISA. If MERCHANT uses an agent or Merchant Servicer, MERCHANT must include the foregoing
provisions in its agreement or contract with such agent or Merchant Servicer.
3. SALES DRAFTS:
3.1 MERCHANT shall deliver to the cardholder, at the time of a SALE, a true, complete, and legible copy of the SALES DRAFT or
suitable receipt evidencing a SALE involving use of CARD.
3.2 The following information must be included on the SALES DRAFT:
A. final four digits of CARD account number;
B. MERCHANT's d/b/a name;
C. MERCHANT's city and state;
D. amount of the SALE (including any applicable taxes);
E. date of the SALE;
F. space for cardholder signature if applicable;
G. transaction payment type;
H. legend identifying the party to whom it will be delivered (i.e. merchant copy, customer copy);
1. authorization code; and
J. clear imprint of the CARD unless successfully read by a magnetic stripe reader.
3.3 Under federal law, MERCHANT is prohibited from displaying more than the last five digits of the account number or the expiration
date of the CARD on any electronically generated SALES DRAFT.
3.4 MERCHANT shall not disclose a cardholder's account information or any other personal information to third parties other than
MERCHANT's agents for the purpose of completing the transaction or as specifically required by law or by the RULES.
3.5 MERCHANT shall store all SALES DRAFTS and transaction records in a limited access area for at least one (1) year after the
date of SALES. MERCHANT shall retain all original SALES DRAFTS or legible microfilm copies of all SALES DRAFTS and
transaction records for at least three (3) years.
3.6 MERCHANT shall not deposit SALES DRAFTS that it knows or should have known to be either fraudulent or not authorized by
the cardholder.
4. Security Features:
4.1 In all cases, MERCHANT is required to examine the card security features prior to completing a SALE.
4.2 When an Electronic Cash Register ("ECR") or Electronic Draft Capture ("EDC") terminal reads the magnetic stripe on the CARD,
MERCHANT must check the CARD account number on the terminal (if displayed) against the account number embossed on the
CARD or follow such other security check as is mandated by TMS and BANK from time to time. If the CARD is read with a
terminal that displays the CARD number and the SALES DRAFT is printed, MERCHANT shall verify that the account number
displayed on the terminal match the embossed numbers on the face of the CARD. In the event that they do not match, the SALE
must not be completed. Failure to follow these checks and procedures will expose MERCHANT to CHARGEBACKS.
4.3 In the event that the terminal is programmed to require MERCHANT to key the last four (or more) digits of each CARD used for a
SALE, and the terminal indicates that the numbers keyed are not the same as those present on the card, the SALE must not be
completed
4.4 In order to protect the integrity of the ASSOCIATIONS' systems, BANK may hold funds settled by MERCHANT in the event of a
breach of AGREEMENT, irregular SALES activity, or receipt of detrimental financial information
201108 MTPA Terms and Conditions Page 11 of 35 CONFIDENTIAL
5. Authorization:
5.1 On all SALES, MERCHANT shall request an authorization for the total amount of the SALE and shall record the positive
authorization response code on the SALES DRAFT prior to completing the SALE. If MERCHANT receives a negative
authorization response, MERCHANT shall not complete the SALE and may receive further instructions from the authorization
center.
5.2 MERCHANT may not, after receiving a negative response or decline on an authorization request:
A. split the SALE amount into multiple transactions in order to obtain a valid authorization for each one, so that the separate
transactions total the original dollar amount of the SALE; or
B. attempt any further electronic or voice authorizations.
5.3 In the event that an unsigned CARD is presented at the point of sale, MERCHANT must request that cardholder provide proof of
identification and sign the card before completing the SALE. Details of the identification provided must be placed on the SALES
DRAFT unless prohibited by local law. In the event that the cardholder refuses to do so, the SALE must not be completed.
5.4 In any of the following cases, MERCHANT shall obtain authorization from the voice authorization center, designated or approved
by TMS and/or BANK, before completing a SALES transaction:
A. paper MERCHANTS whose SALES exceed MERCHANT's floor limit as established by TMS and BANK, or amended from
time to time;
B. an unsigned CARD is presented;
C. if MERCHANT believes the CARD may be counterfeit or stolen or that the SALE is in some other manner suspicious or
unusual, MERCHANT should state to the voice authorization clerk, "This is a Code 10" and await further instruction; or
D. in any other circumstances hereinafter established by TMS and BANK or stated in the RULES and/or AGREEMENT.
5.5 If permitted in writing by TMS and BANK, a retail store that accepts an infrequent telephone order transaction should obtain an
authorization using the above authorization procedures. The floor limit for Card Not Present authorization is zero. In such cases,
the authorization does not protect the MERCHANT from CHARGEBACKS where the cardholder disputes that the CARD use was
authorized.
5.6 MERCHANT shall indicate to the voice authorization center the reason for the authorization request except where the sole reason
for the request is that the SALE exceeds the MERCHANT's floor limit.
5.7 When MERCHANT requests and receives a positive authorization code, MERCHANT shall enter such code onto the SALES
DRAFT. In the event that a negative response is obtained, the MERCHANT shall not complete the SALE and, if instructed, shall
attempt to pick up CARD by reasonable and peaceful means and notify the voice authorization center and ask for further
instructions.
6. Recovery of Cards:
6.1 MERCHANT shall use its best effort to recover any CARD, by reasonable and peaceful means, if:
A. the account number thereon is listed on an Electronic Exception File;
B. the printed four digits do not match the first four digits of the embossed account number (VISA);
C. MERCHANT is advised to do so by the authorization center; or
D. MERCHANT has reasonable grounds to believe such CARD is counterfeit, fraudulent, or stolen.
6.2 This obligation upon MERCHANT in no way authorizes a breach of the peace or any injury to persons or property, and
MERCHANT will hold TMS, BANK, and the ASSOCIATIONS harmless from any claim arising from any injury to person or
property or other breach of peace.
7. Multiple SALES and SALES DRAFTS and Partial Consideration:
7.1 Generally, all SALES accomplished at the same time should be included on one SALES DRAFT.
7.2 MERCHANT shall not affect a SALE when only part of the amount due is included on the single SALES DRAFT except:
A. when the balance of the amount due is paid by the cardholder at the time of the SALE in cash, by check, with another CARD,
or any combination thereof; or
B. when the cardholder executes two separate SALES DRAFTS in a delayed delivery transaction, whereby a deposit is made
by completion of one SALES DRAFT and payment of the balance is tendered by completion of a second SALES DRAFT,
conditioned upon delivery of merchandise or performance of services. If the total amount of both SALES DRAFTS exceeds
the floor limit, authorization must be obtained.
7.3 The use of multiple CARDS for one purchase is permissible, as long as an individual SALES DRAFT is used for each CARD.
The use of multiple SALES on one CARD, for one purchase, is not permitted
8. Returned Merchandise and Adiustments:
81 If MERCHANT agrees to credit a cardholder for any merchandise or service that was the subject of a SALE, MERCHANT must
provide a Credit Transaction Receipt using the same CARD as in the original SALE. Such credit shall not exceed the original
SALE amount. MERCHANT shall not make any cash refund on SALES.
82 MERCHANT may limit its acceptance of returned merchandise or establish a policy to make price adjustments for any SALE
provided proper disclosure is made and purchased goods and service are delivered to the cardholder at the time of the SALE
83 Proper disclosure means the words "NO REFUND," "EXCHANGE ONLY," or "IN STORE CREDIT ONLY" are printed in large
letters near the signature line on all copies of the SALES DRAFT prior to obtaining the cardholder's signature on the SALES
DRAFT. MERCHANT may stipulate other special circumstances or terms of the SALE on the SALES DRAFT.
84 For each credit transaction, MERCHANT must be able to provide TMS and BANK with evidence of the original purchase.
9. Cash Transaction:
91 MERCHANT shall not receive money from a cardholder and subsequently prepare a credit voucher for the purpose of depositing
to the cardholder's account.
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9.2 Cash disbursement by MERCHANT to a cardholder is not permitted. Additionally, MERCHANT shall not make any cash advance
to an employee, principal, or family member of MERCHANT, who is a cardholder.
9.3 MERCHANT will not accept SALES from cardholders where the primary purpose of the transaction is for the provision of working
capital to business and not the purchase of goods and/or services from the business.
10. Quasi Cash Transactions:
10.1 MERCHANT shall not accept SALES for processing that are classified as "Quasi-Cash Transactions" including, but not limited to,
the sale of casino gaming chips, money orders, opening deposits on financial or other accounts, wire transfer money orders, or
the issuance of scrip.
10.2 No MERCHANT shall accept a CARD or use a VISA and MASTERCARD processing terminal to issue scrip exchangeable for
cash, products, or services as a result of a SALE.
11. Promotional Materials:
11.1 MERCHANT will adequately display promotional materials provided by TMS and BANK to inform the public that MERCHANT will
honor CARDS.
11.2 All uses by MERCHANT of decals, signs, printed and broadcast materials, and other promotional materials must be in conformity
with the requirements of ASSOCIATIONS. MERCHANT will not at any time do or cause to be done any act or deed in any way
impairing or intended to impair TMS's, BANK's, or ASSOCIATIONS' exclusive right, title, and interest in and to its respective
protected marks.
11.3 MERCHANT may use promotional materials only to indicate that CARDS are accepted for payment and shall not indicate, directly
or indirectly, that MERCHANT has received endorsement of any goods or services other than the CARDS' services.
11.4 MERCHANT may not refer to the CARDS in stating eligibility for its products, services, or membership.
11.5 MERCHANT shall permit TMS and BANK or ASSOCIATIONS, at all reasonable times, to inspect the MERCHANT's use of the
promotional materials. Should any materials so submitted fail to meet with TMS's, BANK's, or ASSOCIATIONS' approval, for any
reason whatsoever, the MERCHANT agrees to cease using such material. Neither TMS, BANK, nor ASSOCIATIONS shall have
any liability to MERCHANT relating to disapproved materials using a protected mark.
12. CARDS Other than VISA. MASTERCARD, AMERICAN EXPRESS and DISCOVER:
12.1 MERCHANT is required to comply with the specific regulations, as set out in its agreements with ASSOCIATIONS other than
VISA, MASTERCARD, AMERICAN EXPRESS, and/or DISCOVER with regard to the acceptance of cards issued by such
ASSOCIATIONS. TMS and BANK are not responsible for the funding of such transactions. Further, TMS and BANK are not
responsible for payment for SALES for any ASSOCIATIONS unless and until TMS and BANK have received payment for such
SALES from the ASSOCIATIONS.
CHARGEBACKS
13. General:
13.1 Failure to comply with the RULES will reduce TMS's and BANK's ability to reverse CHARGEBACKS and increase the likelihood
of MERCHANT receiving a CHARGEBACK.
13.2 MERCHANT may be subject to a CHARGEBACK on SALES for a minimum period of 180 days, plus the period of any warranty or
guarantee on goods and/or services sold by MERCHANT, from the date the SALE was entered into the ASSOCIATIONS'
processing system.
13.3 TMS and BANK agree to mail all CHARGEBACK documentation to the address provided by MERCHANT. MERCHANT agrees
to respond promptly to all CHARGEBACKS. If TMS and/or BANK elects, at their sole discretion, to take action on
CHARGEBACKS after the ASSOCIATION time limits have expired, such action shall be done at additional cost.
13.4 MERCHANT agrees that it will not re-deposit SALES that have been previously charged back and not represented. This
restriction applies whether or not the cardholder consents to such activity.
13.5 MERCHANT agrees that if it receives a CHARGEBACK for an international cardholder, the MERCHANT is responsible for any
currency conversion differences in the dollar amount.
14. CHARGEBACK Reasons:
14.1 The summary of reasons for CHARGEBACKS includes, but is not limited to, any one of the following:
A. an invalid CARD account number submitted by MERCHANT;
B. neither the cardholder nor a person authorized by the cardholder received the goods or services requested;
C. the cardholder received the good or services but disputes the quality;
D. the cardholder never received credit for a returned item or a canceled order;
E. the cardholder was charged incorrectly;
F. the amount of the SALE exceeded the Floor Limit and an Authorization was not obtained or was denied;
G. the SALE was authorized but not for the correct amount,
H. the Authorization code provided is invalid;
I. the CARD was expired at the time of the SALE or had not reached its effective date;
J. the SALES DRAFT was not signed. An exception will be made where Card Not Present SALES are permitted,
K. the CARD issuer has information that a MERCHANT fraud has occurred;
L. the CARD account number and the amount of SALE are missing from SALES DRAFT or are illegible;
M. the SALES DRAFT bears the imprint of a CARD which to the ASSOCIATIONS is a counterfeit CARD because the CARD is
not embossed in accordance with the standards set forth in the ASSOCIATIONS' regulations, even if the SALE was
authorized.
201108 MTPA Terms and Conditions Page 13 of 35 CONFIDENTIAL
15. CHARGEBACK Monitoring Programs:
15.1 Any MERCHANT location that exceeds a one percent (1%) CHARGEBACK to Interchange ratio for all incoming CHARGEBACKS
for that location is considered an excessive chargeback merchant and may be subject to Visa and MasterCard's monitoring
programs Merchants are responsible for monitoring their monthly chargeback percentage and developing chargeback reduction
plans as required by Visa and MasterCard. Excessive CHARGEBACK activity for an unreasonable period of time may result in
termination of this AGREEMENT. MERCHANT will pay TMS and/or BANK for any fine or charge levied by the ASSOCIATIONS
on TMS and/or BANK or MERCHANT as a result of its chargeback activity. This section may be amended from time to time as a
result of action by ASSOCIATIONS.
16. Other Association Monitoring Programs:
16.1 If MERCHANT is identified by certain ASSOCIATION monitoring programs, TMS's and BANK's ability to reverse
CHARGEBACKS may be severely restricted.
16.2 Certain monitoring programs review the number of lost, stolen and counterfeit CARDS accepted by MERCHANT in its normal
course of business and the percentage of CARDS used for SALES that were not read electronically by terminals or ECRs. The
purpose of these programs is to reduce the use of lost, stolen and counterfeit CARDS.
16.3 In the event that MERCHANT is identified under these programs as exceeding the acceptable threshold value of such CARDS,
MERCHANT may become liable for CHARGEBACKS and SALES on lost, stolen, or counterfeit CARDS regardless of the CARD
ACCEPTANCE PROCEDURES followed, and AGREEMENT may be terminated by TMS and BANK.
17. ASSOCIATION Registration Programs:
17.1 If MERCHANT is identified by certain ASSOCIATION registration programs, TMS and/or BANK will take the necessary steps to
register the merchant. MERCHANT will pay TMS and BANK for any fine or charge levied by the ASSOCIATIONS on TMS,
BANK, or MERCHANT as a result of the registration program including but not limited to one-time registration fees, ongoing
registration fees and non-compliance fees. This section may be amended from time to time as a result of action by
ASSOCIATIONS.
UNIQUE BUSINESS REQUIREMENTS
18. Card Not Present Merchants:
18.1 MERCHANT may not accept Card Not Present SALES unless AGREEMENT specifically refers to Card Not Present SALES. if
this is not the case, MERCHANT should contact TMS and BANK if they wish to accept Card Not Present SALES and provide
descriptions of product types and marketing methods. TMS and BANK may refuse MERCHANT permission to accept Card Not
Present SALES.
18.2 If MERCHANT is specifically authorized by TMS and BANK to accept Card Not Present SALES, no SALE shall be submitted for
processing prior to the shipping of the product or the provision of services purchased by the cardholder.
18.3 Card Not Present SALES do not require the cardholder's signature on the SALES DRAFT. MERCHANT is required to obtain the
valid dates for each CARD used for a SALE. The expiration date must be submitted as part of the Authorization inquiry.
18.4 If MERCHANT supplies goods and/or services under a Pre-Authorization Order ("PO"), it shall not charge a cardholder for goods
after receiving notice from a cardholder that the authorization for goods or services is canceled.
18.5 The receipt of a valid Authorization does not protect MERCHANT from CHARGEBACKS on SALES for the Unauthorized
Purchaser reason code. The shipping documents indicating the address the goods were shipped to and a signature of an
individual (even cardholder) will not normally be sufficient to reverse an Unauthorized Purchaser reason code.
18.6 MERCHANT assumes the risk associated with accepting Card Not Present SALES transactions.
18.7 Card Not Present MERCHANTS are encouraged to investigate the CHARGEBACK protection attributes of the various Address
Verification Services and Card Verification Value Services available from ASSOCIATIONS.
18.8 MERCHANT, or its agent, shall implement and maintain all of the security requirements specified in PCI. MERCHANT shall
immediately notify TMS and BANK of the use an agent. MERCHANT shall immediately notify TMS and BANK of any suspected
or confirmed loss or theft of material or records that contain account information and both:
A. demonstrate its ability to prevent future loss or theft of account or transaction information; and
B. allow the ASSOCIATIONS, or an acceptable independent third party, to verify this ability by conducting a security review.
18.9 Electronic Commerce Merchants (VISA):
A VISA makes the 3-D Authentication system available to Electronic Commerce Merchants as a way to reduce fraud in Internet
Transactions. Electronic Commerce Merchants may elect to implement 3-D Secure. Electronic Commerce Merchants that
process 3-D Secure Transactions must comply with requirements specified in the: (i) VISA Operating Regulations; (ii) the
VISA 3-D Secure: Merchant Implementation Guide and (iii) VISA Cardholder Information Security Program.
B. A web site operated by an Electronic Commerce Merchant must contain all of the following information: (i) a complete
description of the goods or services offered; (ii) the merchant's returned merchandise and refund policy, (iii) the merchant's
customer service contact, including electronic mail addresses and/or telephone number; (iv) the transaction currency; (v) any
export or legal restrictions (if known); (vi the merchant's delivery policy; (vii) the address of the merchant's permanent
establishment, viii) the merchant's consumer data privacy policy; and (ix) the security method for the transmission of payment
data.
C Electronic Commerce Merchants must offer cardholders a secure transaction method, such as: (i) Secure Sockets Layer
(SSL), or (ii) 3-D Secure.
18.10 Installment Billing Transactions (VISA):
A If it offers an Installment Billing Transaction option, MERCHANT must.
1) Disclose, in writing, the terms, including but not limited to, whether the installment terms are limited to certain goods that
a cardholder may purchase. The written disclosure must also include the shipping and handling charges and any
applicable tax;
201108 MTPA Terms and Conditions Page 14 of 35 CONFIDENTIAL
2) Inform a cardholder not billed in the transaction currency of the MERCHANT that each Installment Billing Transaction
amount may vary due to currency conversion rate fluctuations;
3) Ensure that the sum of the Installment Billing Transactions does not include any finance charge or exceed the total price
of the goods; and
4) Authorize all transactions (zero floor limit).
B. MERCHANT must not add finance charges to an Installment Billing Transaction.
C. MERCHANT must not deposit the first installment Billing Transaction with TMS and BANK until the shipment date of the
goods. MERCHANT must deposit subsequent Installment Billing Transaction Receipts at either of the following intervals: (i)
30 calendar days or more, or (ii) monthly anniversary of the shipment date (same day of each month).
18.11 Card Identification Data (CID) (Discover):
A. MERCHANT is required to submit the CID with the authorization request for a Card Not Present CARD sale. MERCHANT's
failure to include the CID in an authorization request where required may result in a negative authorization response and may
increase the fees MERCHANT is obligated to pay. If MERCHANT does not submit CID with an authorization request for a
Card Not Present CARD sale, MERCHANT may lose a dispute of the CARD sale. MERCHANT is prohibited from retaining,
archiving or otherwise storing the CID in any form or format for any reason, including the recording of the CID on SALES
DRAFTS or the making of photocopies of the front or back of CARDS.
19. Vehicle Rental Authorization Procedures:
19.1 A special authorization procedure is available if MERCHANT estimates the transaction amount based upon cardholder's intended
rental length at time of rental, the applicable rental rate, tax, and/or mileage rates. Such estimated transaction amount shall not
include ancillary charges representing amounts to cover potential vehicle damages or insurance deductibles when cardholder
waives insurance at time of rental.
19.2 MERCHANT shall record on the SALES DRAFT the date, amount, and all authorization approvals obtained.
19.3 MERCHANT shall disclose to cardholder the amount authorized at the time of rental.
19.4 Subsequent Authorization:
A. If no Authorization was obtained at time of rental and MERCHANT, based upon cardholder's actual charges later estimates
the transaction amount will exceed the applicable floor limit, MERCHANT may obtain an Authorization approval code for the
new estimated amount.
B. MERCHANT may obtain Authorization for additional amounts (above any amount not authorized) on the car rental pick-up
date or prior to the car rental return date. Additional Authorization is not necessary if the sales transaction does not exceed
the sum of the authorized amounts plus fifteen percent (15%) of the sum of the authorized amounts.
20. Paper Processing Merchants:
20.1 Paper processing MERCHANTS shall authorize by using the established Floor Limits. Any MERCHANT that wishes to accept a
SALES transaction under the established Floor Limits, and which is not authorized, is liable for the resulting CHARGEBACKS
from those CARD numbers listed on the Electronic Exception File.
20.2 In the case of a MERCHANT depositing paper drafts, such drafts shall be deposited with TMS and BANK within five (5) days of
the SALE date.
21. Express Payment Services ("EPS"):
21.1 Any "fast food" restaurant, motion picture theater, or parking lot MERCHANT that wishes to participate in the VISA or
MASTERCARD EPS program must first obtain an EPS Agreement with TMS and BANK.
22. Travel and Entertainment ("T&E") Merchants:
22.1 A MERCHANT whose primary function is to provide travel related services shall be referred to as a Travel & Entertainment
("T&E") MERCHANT. These include but are not limited to car rental, lodging, and central reservation services.
22.2 A T&E MERCHANT may process delayed or amended charges if the cardholder has consented to be liable for those charges.
These charges may NOT include charges for loss, theft, or damage.
23. T&E Services:
23.1 A T&E MERCHANT may participate in any of the following VISA T&E Services:
A. Priority Check-Out Service
B. T&E Advance Deposit Service
C. T&E Cash Disbursement Service
D. VISA Reservation Service
RULES which apply to the VISA T&E Services are available upon request.
23.2 Priority Check-Out Service:
A. MERCHANT agrees to do the following for VISA transactions:
1) accept all VISA CARDS;
2) have cardholder complete, sign, and return a Priority Check-Out Agreement ("Agreement") which includes the
cardholder's mailing address;
3) complete a SALES DRAFT which includes the total SALES amount and the words "Priority Check-Out" on the signature
line;
4) review the completed Agreement and ensure the account number matches the account number on the SALES DRAFT if
applicable,
5) comply with normal Authorization and deposit requirements;
6) at the cardholder's request, MERCHANT must mail the SALES DRAFT copy, the itemized bill, and the signed
Agreement to the cardholder within three (3) business days of the cardholder's departure; and
201108 MTPA Terms and Conditions Page 15 of 35 CONFIDENTIAL
7) MERCHANT must retain the itemized bill and signed Agreement for a minimum of six (6) months after the transaction
date.
B. MERCHANT agrees to do the following for MasterCard transactions:
1) accept all MasterCard CARDS,
2) obtain a card imprint;
3) complete a SALES DRAFT with one of the following typed or legibly printed on the signature line: telephone order
("TO"), mail order ("MO") "PO," "Guaranteed Reservation/No Show," "Signature on File-Express Check-out," or
"Advance Deposit;"
4) retain and make available to the acquirer upon request the customer's written request to the MERCHANT for pre-
authorization; and
5) not deliver goods or perform services covered by a pre-authorization after receiving notification that the pre-authorization
is canceled or that the MasterCard card covered by the pre-authorization is not to be honored.
C. MERCHANT agrees to do the following for Discover transactions:
1) If MERCHANT offers priority check-out services, MERCHANT must comply with the following requirements: (i) require
the cardholder to sign the registration card at the time of check-in acknowledging responsibility for all charges, and
obtain an authorization for the estimated amount of the accommodations at check-in; (ii) complete a SALES DRAFT at
check-out by entering the total amount of charges incurred during the stay, including restaurant bills, telephone charges,
convenience bar charges, missing item fees and miscellaneous expenses; (iii) write the words "Priority Check-out" on
the cardholder signature line of the SALES DRAFT; (iv) obtain a final authorization code for any additional amounts from
the check-in estimate to equal the total amount to be billed to the cardholder by following the normal authorization
procedures; and (v) mail (at the address shown on the registration card) or otherwise deliver a copy of the SALES
DRAFT and the itemized lodging bill (portfolio) to the cardholder within seven (7) calendar days of check-out.
23.3 T&E Advance Deposit Service: MERCHANT agrees to:
A. accept all VISA CARDS;
B. obtain the cardholder name, account number, expiration date on the card, telephone number, mailing address, scheduled
date of arrival/embarkation/rental, and intended length of stay/term/rental;
C. determine the Advance Deposit amount, which is the cost of the intended length of stay, cost of the cruise, or cost of the
intended term of rental, not to exceed fourteen (14) days;
D. apply the deposit amount to the total obligation;
E. provide: (1) reservation confirmation code to the cardholder advising that it be retained, (2) advance deposit amount, and (3)
cancellation policy requirements;
F. advise the cardholder the accommodations will be held according to the reservation and provide written confirmation if
requested;
G. advise the cardholder that MERCHANT will retain the deposit amount if the cardholder has not canceled the reservation
within the specified timeframes;
H. MERCHANT must not charge for a no-show transaction;
I complete the SALES DRAFT including Advance Deposit amount, cardholder name/
mailing address/telephone number/account number, expiration date, the words "Advance Deposit" on the signature line,
confirmation code, scheduled date of arrival/embarkation/rental, and the date and time the cancellation privileges, if any,
expire without forfeiture;
J follow normal Authorization procedures;
K. mail a SALES DRAFT copy and cancellation policy to the cardholder within three (3) business days of the SALES date;
L accept all cardholder cancellations within the time limits specified by MERCHANT;
M. upon cancellation, MERCHANT shall complete a Credit Transaction Receipt with the information set out in I above and
including the cancellation code. MERCHANT must deposit the Credit Transaction Receipt within five (5) days of the
transaction date and mail a copy to the cardholder within three (3) days of the transaction date of the Credit Transaction
Receipt;
N. for a lodging MERCHANT, if the reserved accommodations are unavailable, the MERCHANT must provide the cardholder
the following services without charge: refund the entire Advance Deposit amount, provide a copy of the Credit Transaction
Receipt to the cardholder, comparable accommodations at an alternate establishment for the number of nights specified in
the reservation not to exceed fourteen (14) nights or until the reserved accommodations become available, two (2) three (3)
minute telephone calls, message forwarding to the alternate establishment, transportation to the alternate establishment and
return to the original establishment and if requested, daily transportation to and from the alternate establishment and the
MERCHANT location, and
0. for a car rental MERCHANT, if the reserved vehicle is unavailable, the MERCHANT must provide the cardholder the
following services without charge: refund the entire Advance Deposit amount and provide a comparable vehicle for the
number of days specified in the reservation, not to exceed fourteen (14) days or until the reserved vehicle becomes
available.
23.4 T&E Cash Disbursement Service: MERCHANT may make cash disbursement to a registered VISA Gold or Platinum cardholder
under the following conditions:
A cardholder indicates at registration the intent to pay for services with a VISA CARD,
B. before disbursement, the MERCHANT reviews positive identification, and if permitted by applicable law, records type and
number on the SALES DRAFT;
201108 MTPA Terms and Conditions Page 16 of 35 CONFIDENTIAL
C. MERCHANT completes an eighty (80) column Cash Disbursement SALES DRAFT or a fifty-one (51) column Cash
Disbursement SALES-T&E that includes the cardholder's positive identification or a Cash Disbursement Record;
D. MERCHANT does not disburse more than two hundred fifty dollars ($250.00) during the cardholder's stay. Cash availability
may limit cash disbursements; and
E. MERCHANT must not include any additional fees or charges except taxes or charges imposed by law on the transaction
amount.
23.5 Visa Reservation Service: Any MERCHANT who accepts CARDS to guarantee reservations must do so in accordance with the
following requirements:
A. MERCHANT must accept all VISA CARDS;
B. MERCHANT will obtain the cardholder's account number, expiration date, and name embossed on the CARD. MERCHANT
must quote to cardholder the rate of reserved accommodation, MERCHANT name and address, and the Confirmation Code
advising that it be retained. Advise the cardholder that if he/she has not checked in by checkout time the following day after
his/her scheduled arrival date or the reservation was not properly canceled, the cardholder will be billed for one night's
lodging plus applicable taxes. If requested, the MERCHANT will provide a written confirmation with the above information
including the VISA Reservation Service provisions relating to the cardholder's obligation, and any other reservation details;
C. MERCHANT must accept all cancellations prior to the specified time. The MERCHANT must not require more than seventy-
two (72) hours cancellation notification prior to the scheduled arrival date. But, if the cardholder makes the reservation within
seventy-two (72) hours of the scheduled arrival date, the cancellation deadline must be no earlier than 6:00 p.m. on the
arrival date. If the MERCHANT requires that the cardholder cancel before 6:00 p.m. on the arrival date, the MERCHANT
must mail the cancellation policy to the cardholder;
D. if the reservation is properly canceled, MERCHANT must provide a cancellation code and advise the cardholder to retain it.
If requested, MERCHANT must mail a confirmation of cancellation that includes the following: cardholder name, account
number, card expiration date, cancellation code, and details related to the canceled reservation;
E. if cardholder has not claimed or canceled the accommodation by the specified time, the room(s) must be held available in
accordance with the reservation until checkout time the following day. MERCHANT may then complete a SALES DRAFT for
one night's lodging plus applicable tax, indicating the cardholder's account number, expiration date, and name embossed on
the CARD and the words "No Show" on the cardholder signature line. MERCHANT must obtain an authorization code for the
no show transaction; and
F. if guaranteed accommodations are unavailable, MERCHANT must provide cardholder with comparable accommodations for
one night at another establishment, transportation to the location of the alternative establishment, and if requested, provide
cardholder with a three (3) minute telephone call and message forwarding to the alternate establishment. These services
shall be provided at no cost to cardholder.
24. Pre-authorized Health Care Transactions:
24.1 MERCHANTS accepting Pre-authorized Health Care Transactions must have the cardholder complete an order form containing
the following:
A. a request for the services to be charged to the cardholder's account;
B. assignment of insurance benefits to the MERCHANT;
C. authorization for the MERCHANT to charge the cardholder's account for only that portion of the bill subsequent to
MERCHANT's receipt of any applicable insurance payment;
D. duration of time, not to exceed one (1) year, for which permission is granted; and
E. if the Pre-authorized Health Care Transaction is renewed, the cardholder must provide an updated order form.
24.2 MERCHANT must:
A. retain a copy of the order form during the period it is in effect;
B. provide a copy of the order form upon TMS's and/or BANK's request;
C. type or print the words "Pre-authorized Health Care" on the signature line of the SALES DRAFT; and
D. submit a SALES DRAFT within ninety (90) days of the service date and request authorization for the amount due upon
receipt of notice of adjudication from the cardholder's insurance company.
24.3 MERCHANT must not complete a Pre-authorized Health Care Transaction after receiving a notice of cancellation from
cardholder, TMS, BANK, or if the MERCHANT receives a decline response.
25. Visa Supermarket Program:
25.1 Any MERCHANT that wishes to participate in the VISA Supermarket Incentives Program must first obtain a Supermarket
Incentives Agreement from TMS AND BANK.
26. Electron Card Program:
26.1 MERCHANT may accept Electron Cards. If a MERCHANT chooses to accept Electron Cards, it must accept all Electron Cards
when properly presented and process all transactions as Electron Card transactions.
27. Automated Fuel Dispenser ("AFD") Program:
27.1 When an AFD transaction takes place, the card must be present and the entire, unaltered contents of either track 1 or track 2 of
the magnetic stripe must be read and transmitted along with a value of "90" in the POS entry mode code field.
27.2 The MERCHANT name, city, state, and zip code of the actual station location where the transaction took place must be included
in any authorization or clearing message.
27.3 A transaction receipt must be produced and the transaction must be cleared within 2 days of the transaction date.
27.4 MERCHANT must obtain an authorization for the exact amount of the transaction or use the Status Check Procedure that
requires the MERCHANT to request an authorization for no more than one dollar ($1.00).
201108 MTPA Terms and Conditions Page 17 of 35 CONFIDENTIAL
27.5 MERCHANT must use the Status Check Procedure if the floor limit is zero and the actual transaction amount is no more than fifty
dollars ($50.00).
27.6 MERCHANT must have an established self-service terminal operating plan on file with TMS and BANK and must establish a
velocity-check program that monitors the volume and frequency of account transactions.
27.7 The transaction ratio of CHARGEBACKS to total VISA Interchange for the MERCHANT chain must not exceed an average of
0.30 percent (0.003%) for the previous six (6) months.
27.8 The transaction ratio of fraud to total VISA Interchange for the MERCHANT chain must not exceed an average of 0.40 percent
(0.004%) for the previous six (6) months.
27.9 Under no circumstances should the MERCHANT use an arbitrary estimation of the transaction amount to obtain an authorization.
27.10 An AFD must not dispense scrip.
28. Recurring Transactions:
28.1 MERCHANT will not accept recurring SALES transactions where the delivery of, provision of, or billing for, goods or services is
performed on a periodic basis ("RECURRING TRANSACTIONS") without the express written consent of TMS and BANK and
without following the rules stated below.
28.2 MERCHANT must obtain from the cardholder a completed Order Form containing a written request for the goods or services to
be charged to the cardholder's CARD. The Order Form must include the transaction amount (unless the RECURRING
TRANSACTIONS are for varying amounts), the frequency of the recurring charges, and the duration of time for which the
cardholder's permission is granted. The cardholder signature (including electronic signature or other similar authentication) must
be effective under applicable law.
28.3 MERCHANT must retain a copy of the Order Form for the duration of the RECURRING SERVICES and provide it to TMS and
BANK upon request.
28.4 Upon completion of the SALES DRAFT, MERCHANT should write the words "Recurring Transaction" on the signature line.
28.5 When a RECURRING TRANSACTION is renewed, MERCHANT must obtain an updated Order Form (as set out above) from the
cardholder.
28.6 For an Electronic Commerce Transaction, include the frequency and duration of the RECURRING TRANSACTION, as agreed to
by the cardholder, on the SALES DRAFT and provide a simple and easily accessible online cancellation procedure, if the
cardholder's request for goods or services was initially accepted online.
28.7 For RECURRING TRANSACTIONS, MERCHANT must not:
A. include partial payment for goods or services purchased in a single transaction;
B. include additional finance charges on a RECURRING TRANSACTION;
C. complete a RECURRING TRANSACTION if it does not receive an Authorization or if it receives a cancellation notice from
the cardholder: or
D. request or use a cardholder account number for purposes other than as payment for its goods or services.
28.8 For RECURRING TRANSACTIONS of varying amounts, the MERCHANT must:
A. on the Order Form, allow the cardholder to specify a minimum and a maximum transaction amount to be charged;
B. inform the cardholder of his/her right to receive, with at least ten (10) days notice before the transaction date, a written
notification of the amount and date of the next charge; and
C. allow the cardholder to choose to receive notice in any of the following ways: (i) for every charge; (ii) when the transaction
amount is outside of the specified minimum and maximum amount range; and (iii) when the transaction amount will differ
from the most recent charge by more than an agreed upon amount.
29. Delayed Delivery Transactions:
29.1 MERCHANT must obtain an authorization if the cumulative total of both SALES DRAFTS exceeds the floor limit. MERCHANT
must obtain authorization for each SALES DRAFT on each transaction date.
29.2 MERCHANT must:
A. Assign a separate authorization number for each SALES DRAFT; and
B. Write the following information on the appropriate SALES DRAFT:
1) Words "Delayed Delivery;"
2) Word "Deposit" or "Balance," as appropriate; and
3) Authorization date and authorization code, if applicable.
29.3 MERCHANT may deposit the SALES DRAFT for the delayed delivery deposit before delivery of the goods or service.
29.4 MERCHANT must not deposit the SALES DRAFT for the balance before delivery of the goods or service.
30. Card Checks (Discover):
30.1 Card checks are frequently issued to cardholders. MERCHANT agrees to accept Card checks on a basis consistent with the
terms of MERCHANT's policy applicable to the acceptance of other payment card checks. MERCHANT should handle these
Card checks like any other personal check drawn upon a bank in United States.
31. Employee Purchases:
31.1 MERCHANT is prohibited from conducting Cash Advances, Card Sales or returns for goods or services with the MERCHANT's
owners, officers or employees using such individual's personal Card(s), except for bona fide Card Transactions in the ordinary
course of MERCHANT's business. MERCHANT is responsible for the actions and omissions of MERCHANT's principals, officers,
employees and agents, including any fraud committed by, and/or any intentional or negligent acts or omissions by, any owner,
officer or employee of MERCHANT.
201108 MTPA Terms and Conditions Page 18 of 35 CONFIDENTIAL
ATM/DEBIT NETWORK RULES
NOTICE: This information is a summary of common ATM/Debit Network rules; however card acceptance, processing and
chargeback procedures are subject to change.
ATM/DEBIT NETWORK CARD ACCEPTANCE PROCEDURES
1. Discrimination:
1.1 MERCHANT shall honor all valid CARDS without discrimination. When MERCHANT has multiple locations, the MERCHANT
shall instruct each location not to discriminate between the cardholder and other customers.
1.2 MERCHANT shall not require cardholders to provide personal information (such as telephone number or address) as a condition
for honoring a CARD, unless required by the RULES.
1.3 MERCHANT may not require or request the cardholder's signature or any other means of verifying the cardholder's identity.
1.4 MERCHANT shall place the PIN Entry Device in an area accessible by all cardholders and that can reasonably prevent others
from observing the entered PIN.
1.5 MERCHANT shall not request or require the cardholder to provide or disclose their PIN in any oral or written manner to the
MERCHANT.
2. SALES DRAFTS:
2.1 MERCHANT shall deliver to the cardholder at the time of a SALE a true and completed copy of the SALES DRAFT evidencing a
SALE involving use of a CARD. The SALES draft must comply with the requirements of all RULES, and LAWS.
2.2 The following information must be included on the SALES DRAFT: (i) CARD account number; (ii) MERCHANT's DBA name; (iii)
MERCHANT's city and state; (iv) amount of SALE; and (v) SALE date.
2.3 A SALES DRAFT shall be made available to the cardholder at each terminal.
2.4 MERCHANT may not require or request the cardholder to divulge the PIN belonging to that cardholder.
2.5 MERCHANT shall not impose any fee or charge without the prior written consent of TMS and BANK. If surcharging is approved
by TMS and BANK, it must be a separate line item on the SALES draft and must be in compliance with all NETWORKS' rules,
and LAWS.
2.6 MERCHANT shall not process any SALE if the terminal does not receive an authorization code. When a denial to an
authorization request is received, the POS transaction shall not be completed, unless completed as a MERCHANT Store and
Forward Transaction or Resubmission Transaction.
2.7 A SALE shall not be completed if the MERCHANT knows or should know that the SALE is fraudulent or not authorized by the
cardholder.
2.8 A SALE may be reversed or voided electronically, but only if such reversal/void is entered prior to midnight of the calendar day on
which the SALE was initiated. To effect a reversal or void, cardholder must re-enter the PIN, the magnetic stripe reader must
read the card, and MERCHANT must transmit the trace number and the exact dollar amount of the SALE to be reversed or
voided. A reversal or void must be initiated at the same MERCHANT identified on the SALES draft at which the original SALE
was initiated, but need not be initiated at the same POS terminal.
2.9 All returns shall be processed in accordance with the MERCHANT's normal procedures, except that MERCHANT or cardholder
shall not attempt to reverse a previously approved POS Transaction, unless otherwise permitted in accordance with the rules.
2.10 Any SALES known by the MERCHANT to be erroneous should be canceled and re-billed, in the cardholders presence.
2.11 Balance inquiries may be performed only by the cardholder at a cardholder-operated terminal and shall at all times require the
cardholder to enter the PIN and use the magnetic stripe reader.
3. SALES DRAFTS - Distribution and Storage of Information:
3.1 MERCHANT shall not disclose a cardholder's account information or any other personal information to third parties other than to
MERCHANT's agents for the purpose of completing the SALE or as specifically required by law or by the RULES
3.2 MERCHANT shall store in a limited access area for at least one (1) year after the date of SALES all transaction records and
MERCHANT shall make and retain for at least two (2) years the original or legible microfilm copies of both sides of all transaction
records; Prior to discarding, MERCHANT shall destroy or make unreadable all material containing cardholder account numbers.
3.3 There are no voice authorizations for transactions and no manually imprinted SALES drafts.
4. Promotional Materials:
4.1 MERCHANT will adequately display promotional materials to inform the public that MERCHANT will honor CARDS.
4.2 All uses by MERCHANT of decals, signs, printed and broadcast materials and other promotional materials must be in conformity
with the requirements of the NETWORKS, TMS, and BANK. MERCHANT will not at any time do, or cause to be done, any act or
deed in any way impairing or intended to impair TMS's, BANK's, NETWORKS's, or SPONSOR's exclusive right, title and interest
in and to its respective protected marks.
4.3 MERCHANT may use promotional materials only to indicate that CARDS are accepted for payment and shall not indicate, directly
or indirectly, that MERCHANT has received endorsement of any goods or services other than the CARDS' services.
4.4 MERCHANT may not refer to CARDS in stating eligibility for its products, services, or membership
4.5 MERCHANT shall permit TMS and BANK or SPONSOR, at all reasonable times, to inspect the MERCHANT's use of the
promotional materials. Should any materials fail to meet TMS's, BANK's, NETWORKS' or SPONSOR's approval, for any reason,
the MERCHANT agrees to cease using such material. Neither TMS, BANK, NETWORKS nor SPONSOR shall be liable to
MERCHANT for losses relating to the disapproval of use of such materials.
4.6 MERCHANT shall be responsible for all costs associated with promotional material.
4.7 All advertising or publicity by any terminated MERCHANT using the Service mark shall immediately cease upon such termination.
201108 MTPA Terms and Conditions Page 19 of 35 CONFIDENTIAL
CHARGEBACKS
5. General:
5.1 MERCHANT agrees to pay TMS and/or BANK for any NETWORK fees, fines or charges imposed on MERCHANT or TMS and
BANK. Such reimbursement will be accomplished by the debit of the sum(s) involved from the MERCHANT's DESIGNATED
ACCOUNT.
5.2 Failure to comply with the RULES will increase MERCHANT's exposure to CHARGEBACKS.
5.3 TMS agrees to mail all CHARGEBACK documentation to MERCHANT promptly to MERCHANT's address shown on
AGREEMENT. MERCHANT agrees to respond promptly to all CHARGEBACKS. If TMS and BANK elect, at their discretion, to
take action on CHARGEBACKS after the NETWORK time limits have expired, such action shall be done at additional cost. Upon
request of NETWORK, TMS, or BANK, the MERCHANT will retrieve and forward to TMS, within the time frame required by the
NETWORKS, either the original or a readable copy of the Terminal journal tape or duplicate transaction receipt for the transaction
in question and, if requested, will give the NETWORK such information from such transaction records as it requests by telephone.
The MERCHANT will, on request of the NETWORK, cooperate fully with the NETWORK and the card-issuing participant in order
that the participant may comply with the error resolution procedures.
6. Monitoring Programs:
6.1 If certain monitoring programs identify MERCHANT, TMS's and BANK's ability to reverse CHARGEBACKS can be severely
restricted.
6.2 Certain Monitoring Programs review the number of Lost, Stolen and Counterfeit CARDS accepted by MERCHANT in its normal
course of business. The purpose of these Programs is to reduce the use of Lost, Stolen and Counterfeit CARDS.
6.3 In the event that MERCHANT is identified under these PROGRAMS as exceeding the acceptable threshold value of such
CARDS, MERCHANT may become liable for CHARGEBACKS and SALES on Lost, Stolen, or Counterfeit CARDS regardless of
the CARD ACCEPTANCE PROCEDURES followed, and AGREEMENT may be terminated on notice by TMS and BANK.
OPERATIONAL REQUIREMENTS
7. MERCHANT Name and Address:
7.1 All forms submitted to TMS and BANK must bear both the corporate and "Doing Business As" ("DBA") name.
8. Use of Service Marks:
8.1 The MERCHANT shall prominently display service marks at or near all major public access points to inform the public that
MERCHANT will honor CARDS. The service marks of all POS services shall be displayed in the same location and shall be of
equal size. MERCHANT shall always display the service marks in their full color version. The MERCHANT must display the
service marks upon acceptance of the CARDS.
8.2 The MERCHANT shall not use the service marks for any other purpose without the express written consent of the NETWORKS.
8.3 The NETWORKS shall have the right to inspect the MERCHANT's use of the service marks and require the MERCHANT to
cease use of its respective service mark if not in compliance with these RULES or any other of its respective NETWORK rules.
8.4 The MERCHANT's right to use and display the service marks shall terminate upon termination of this agreement. Upon
termination, voluntary or involuntary, the MERCHANT shall immediately remove all service marks from all terminals and from any
other display location maintained by such MERCHANT or otherwise associated with such terminals.
8.5 MERCHANTS who use the service marks shall obtain no interest in the service marks except the right to use them in accordance
with the RULES.
9. Equipment:
9.1 A MERCHANT shall take all necessary steps to insure that all POS Terminals and PIN Pads operated in all of its locations:
A. are placed in an area accessible by all cardholders;
B. are available for use whenever open for business;
C. will function with a minimum of error meeting all applicable technical specifications and security regulations; and
D. will require the cardholder to enter the cardholder's PIN at or near the check out location when initiating a POS Transaction.
9.2 A PIN pad or PIN processor must meet the ANSI standard format X9.8, 1995 or newer requirements, as they are released.
9.3 Terminals must have a Magnetic Stripe reader capable of reading Track 2 on the CARDS.
9.4 PINS used in conjunction with any store and forward transaction or MERCHANT resubmission must be encrypted and stored
within a Tamper Resistant Security Module.
9.5 If MERCHANT's authorization system is capable of store and forward, it must comply with the NETWORKS's rules and
regulations regarding this capability. TMS, BANK, the Issuer, and the NETWORKS shall not be liable for any losses suffered by a
MERCHANT arising from the use of the store and forward function.
9.6 A PIN must never be logged in any form as a function of software either in the clear or encrypted.
MISCELLANEOUS RULES
10. Liability of MERCHANT:
10.1 MERCHANT shall be liable for all actions of its employees and agents and shall insure that they comply with the RULES and all
LAWS.
11. Supply of Information:
11.1 MERCHANTS must submit all information requested by the NETWORKS, TMS, and BANK, including, but not limited to, lists anc
mailing addresses of terminals.
11.2 A MERCHANT shall not sell, purchase, provide, or exchange account number information in the form of transaction receipts,
carbon copies of transaction receipts, mailing lists, tapes, or other media obtained by reason of a SALE to any third party other
than to the MERCHANT's agents for the purpose of assisting the MERCHANT in its business, or to the NETWORK, TMS and/or
BANK; or pursuant to a government request
201108 MTPA Terms and Conditions Page 20 of 35 CONFIDENTIAL
12. Left CARDS:
12.1 CARDS that are inadvertently left at a MERCHANT location must be held under dual control during the time they are retained.
12.2 CARDS inadvertently left at a MERCHANT location may be returned to the cardholder by MERCHANT under the following
conditions: (i) the CARD was inadvertently left by the cardholder at an on-premise location, and (ii) the cardholder requests the
CARD within one business day, and (iii) the cardholder provides two forms of current identification, one of which is a photo
identification.
12.3 If the cardholder has not requested the CARD within one business day, the CARD should be destroyed by cutting it in half
through the stripe and processed in the normal manner.
13. Security Features:
13.1 TMS, BANK, NETWORK or their designated agent, on behalf of itself or others, shall have the right to inspect MERCHANT's
security systems and procedures from time to time.
TMS PRODUCTS AND SERVICES
TSYS InfoCenter
1. MERCHANT may not access TSYS InfoCenter without the express written consent of TMS.
2. TSYS InfoCenter displays information related to the MERCHANT'S transaction processing activity between the MERCHANT and
TMS via a web interface.
3. TMS will provide MERCHANT access to TSYS InfoCenter for the person(s) listed in the TSYS InfoCenter Access Application
form(s) signed and submitted by MERCHANT. Access will be provided through a web site designated by TMS. MERCHANT
agrees to pay all FEES associated with the TSYS InfoCenter product as stated in the completed and signed TSYS InfoCenter
Access Application form(s). The PARTIES agree that any completed and signed TSYS InfoCenter Access Application form
which is submitted shall be fully incorporated and made part of the AGREEMENT.
4. MERCHANT is responsible for any electronic virus or viruses that may be encountered and is responsible for routinely scanning
its computers and diskettes using a reliable virus product to detect and remove any viruses found.
5. Information is encrypted by Secure Sockets Layer (SSL) technology. TMS has made reasonable efforts to secure information,
but does not guarantee security. MERCHANT is responsible for protecting access to TSYS InfoCenter. Access to and uses of
password protected areas of TSYS InfoCenter are restricted to authorized users only. It is the MERCHANT's obligation to
immediately notify TMS if its PIN has been lost or stolen or if there has been unauthorized access.
6. MERCHANT may terminate the use of TSYS InfoCenter Web Site or any authorized user of the website by providing TMS with
written notification of said termination. The PARTIES agree that said written termination(s) shall be fully incorporated and made
part of the AGREEMENT. MERCHANT is fully responsible for terminating MERCHANT employee access. TMS may terminate
MERCHANT access to the TSYS InfoCenter web site immediately upon notice to MERCHANT and said termination(s) shall be
incorporated into the AGREEMENT.
7. TMS is not liable for any direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with
access to or use of TSYS InfoCenter, even if TMS has been advised of the possibility of such damages, including liability
associated with any viruses which may infect MERCHANT's computer(s).
8. THE SERVICE AND CONTENT FROM OR THROUGH TSYS INFOCENTER ARE PROVIDED "AS IS," "AS AVAILABLE," AND
ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION
HEREIN MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TMS AND BANK ASSUME NO LIABILITY
OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT CONTAINED ON THIS SITE.
9. MERCHANT's access to and use of TSYS InfoCenter is subject to all LAWS, as well as, all ASSOCIATIONS' rules and
regulations. TMS reserves the right to seek all remedies available at law and in equity for violations of the AGREEMENT or any
other applicable law, rule or regulation, including the right to block access from a particular Internet address to the designated
web site.
TMS EQUIPMENT AGREEMENT
Important Note: BANK is not a party to the following agreement. MERCHANT acknowledges and agrees that BANK and its
affiliates are in no way responsible for the actions, inactions, performance or nonperformance of TMS, or for disputes
or resolving disputes of an kind arising from this agreement.
THIS Equipment Agreement ("EQUIPMENT AGREEMENT"), by and between TMS, and "MERCHANT," the name of which is set forth
in the AGREEMENT, as defined herein, shall become effective as of the date TMS executes ("EFFECTIVE DATE") the Merchant
Transaction Processing Agreement (the "AGREEMENT").
WHEREAS, TMS and MERCHANT shall hereinafter be referred to as the "PARTIES"; and
WHEREAS MERCHANT desires to purchase or rent equipment from TMS 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:
1. TMS agrees to sell or rent to MERCHANT and MERCHANT agrees to buy or rent from TMS the EQUIPMENT described in the
AGREEMENT or as added from time to time via MERCHANT's request through TMS's customer service center. 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 that may result from this transaction.
201108 MTPA Terms and Conditions Page 21 of 35 CONFIDENTIAL
MERCHANT hereby authorizes TMS to debit payment from the MERCHANT's designated account established under the
AGREEMENT for items ordered herein if payment does not accompany order.
2. Upon payment by MERCHANT to TMS of the entire purchase amount required herein, TMS 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.
3. If MERCHANT is renting EQUIPMENT, MERCHANT agrees to pay TMS a monthly rental fee ("RENTAL FEE") for the
EQUIPMENT until such time said EQUIPMENT is returned to TMS, which will be debited monthly from the MERCHANT's
DESIGNATED ACCOUNT established under the AGREEMENT or billed separately to merchant if the DESIGNATED ACCOUNT
no longer exists. 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
TMS's then current RENTAL FEE for the length of time MERCHANT had the use of the EQUIPMENT.
4. MERCHANT agrees to pay the RENTAL FEE on a per month basis as rental for the EQUIPMENT. TMS may amend the
RENTAL FEE on thirty (30) days written notice to MERCHANT. Submission by MERCHANT of SALES after such notice period
shall be evidence that MERCHANT has received the amended RENTAL FEE and has agreed to such amended RENTAL FEE.
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.
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.
7. Upon expiration or termination of the EQUIPMENT AGREEMENT, MERCHANT agrees to remove the rental EQUIPMENT from
its locations and deliver it to TMS 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 TMS.
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 TMS. If the rental EQUIPMENT is damaged, lost, or not returned to TMS, MERCHANT
shall, at the option of TMS, repair the rental EQUIPMENT at MERCHANT's expense or pay TMS the current replacement cost of
the rental EQUIPMENT.
9. MERCHANT hereby grants to TMS the right, during normal business hours, to enter any location under MERCHANT's control for
the purpose of inspecting, repairing, or replacing rental EQUIPMENT.
10. MERCHANT shall and does hereby agree to indemnify and hold TMS, 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 TMS) maintenance, delivery and return of the EQUIPMENT. This
indemnification and the obligations contained herein shall survive termination or expiration of EQUIPMENT AGREEMENT.
11. MERCHANT shall keep rental EQUIPMENT insured against all risks for not less than replacement costs of rental EQUIPMENT,
naming TMS as an additional insured as its interest may appear.
12. If this EQUIPMENT AGREEMENT is terminated, TMS shall have the right to enter MERCHANT's locations for the purpose of
recovering rental EQUIPMENT.
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.
TMS will provide maintenance service to rental EQUIPMENT during the term of the EQUIPMENT AGREEMENT. MERCHANT
shall not allow any other person or entity to maintain or tamper with rental EQUIPMENT without the express written consent of
TMS.
14. MERCHANT's rights and remedies hereunder are exclusive and in lieu of all other rights and remedies. TMS 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 TMS pursuant to this or any other
agreement. In any event, TMS'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 TMS by MERCHANT in the six-month period prior to the incident giving rise to liability. IN NO
EVENT SHALL TMS 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 TMS WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF
WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. TMS 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.
15. TMS, 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, TMS HEREBY ASSIGNS, TO
THE EXTENT POSSIBLE, ALL WARRANTIES AND RIGHTS OF TMS WITH RESPECT TO THE EQUIPMENT PROVIDED BY
THE MANUFACTURER OF THE EQUIPMENT. TMS DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS
OR WARRANTIES OF ANY KIND WITH RESPECT TO THE MANUFACTURER'S WARRANTY.
201108 MTPA Terms and Conditions Page 22 of 35 CONFIDENTIAL
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 TMS, which will not be unreasonably
withheld.
17. The PARTIES acknowledge and agree that this EQUIPMENT AGREEMENT was, and shall be deemed to have been, made and
delivered in Douglas County, Nebraska. The laws of the State of Nebraska, 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 Nebraska 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 Douglas County, Nebraska, 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 TMS 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.
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.
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.
20. The obligations of all PARTIES hereto incurred prior to the effective date of termination of EQUIPMENT AGREEMENT shall
survive such termination.
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.
22. This EQUIPMENT AGREEMENT may only be amended or modified by a subsequent written agreement by and between the
PARTIES hereto.
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.
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.
TMS CARD COMPROMISE ASSISTANCE PLAN AGREEMENT
Important Note: BANK is not a party to the following agreement. MERCHANT acknowledges and agrees that BANK and its
affiliates are in no way responsible for the actions, inactions, performance or nonperformance of TMS, or for disputes
or resolving disputes of an kind arising from this agreement.
Card Compromise Assistance Plan
This Card Compromise Assistance Plan ("CCAP") sets forth the terms and conditions by which TMS will assist MERCHANT for certain
losses related to a Data Security Event. TMS's obligations to MERCHANT under this CCAP do not constitute the issuance of a policy,
certificate, or contract of insurance between TMS and MERCHANT. TMS has chosen to obtain insurance, from a licensed insurance
broker, to support TMS's contractual obligations to MERCHANT under this CCAP. Words and phrases that appear in boldface are
defined as above or in Clause II or elsewhere in this CCAP. In the event of any conflict between this CCAP and any other written
agreement between TMS and MERCHANT (including but not limited to the Merchant Transaction Processing Agreement), the terms of
this CCAP shall control only with respect to matters addressed in this CCAP. Both TMS and MERCHANT agree that this CCAP is
offered solely by TMS; and not First National Bank of Omaha ("BANK"). BANK does not have any liability or responsibility for the
CCAP.
SCOPE OF AGREEMENT FOR DATA SECURITY EVENT EXPENSES
TMS shall pay Merchant for all reasonable Security Event Expenses and Post Event Services Expenses resulting from a Data
Security Event first discovered by MERCHANT during the CCAP and reported to TMS within the Notice Period.
DEFINITIONS
A. ADCR Fines means amounts contractually assessed against MERCHANT either directly by a card association, or indirectly
through a financial institution who has sponsored MERCHANT into the Card Associations for Bank Card processing, to cover partial
collection of losses experienced by a Bank Card issuer as a result of a data security event, including the Account Data Compromise
Recovery ("ADCR") process and similar processes.
B. Bank Card means a financial transaction card, including a debit card, credit card or prepaid card, issued by a Card Association
or a financial institution as a member of a Card Association.
C. Cardholder means a natural person or entity to which a Bank Card has been issued.
D. Cardholder Information means the data contained on a Bank Card, or otherwise provided to MERCHANT, that is required by
the Card Association or MERCHANT in order to process, approve and/or settle a Bank Card transaction.
E. Card Association means each of Visa International, MasterCard Worldwide, Discover Financial Services, JCB, American
Express and any similar credit or debit card association that is a participating organization of the PCI Security Standards Council.
201108 MTPA Terms and Conditions Page 23 of 35 CONFIDENTIAL
F. Card Association Assessment means a monetary assessment, fee, fine or penalty levied against MERCHANT by a Card
Association as the result of: (i) a Data Security Event; or (ii) a security assessment conducted as the result of a Data Security Event.
The Card Association Assessment shall not exceed the maximum monetary assessment, fee, fine or penalty permitted upon the
occurrence of a Data Security Event by the applicable rules or agreement in effect as of the inception date of this CCAP for such Card
Association. Card Association Assessment also means Compliance Case Costs and ADCR Fines. Card Association
Assessment does not include Chargeback recovery, Chargeback fines or Chargeback expenses assessed directly against
MERCHANT.
G. Card Replacement Expenses means the costs that MERCHANT is required to pay by the Card Association to replace
compromised Bank Cards as the result of (i) a Data Security Event or (ii) a security assessment conducted as the result of a Data
Security Event.
H. Chargeback means the procedure by which a Bank Card transaction is returned to MERCHANT who is then responsible for the
amount of such transaction.
1. Compliance Case Costs means costs and expenses incurred by a card issuer in monitoring and addressing Bank Card
accounts which are reasonably believed to be compromised or at risk as a result of a Data Security Event and for which
reimbursement is requested pursuant to rules of a Card Association. Compliance Case Costs do not include Chargeback amounts.
J. Data Security Event means the actual or suspected unauthorized access to or use of Cardholder Information, arising out of
MERCHANT's possession of or access to such Cardholder Information, which has been reported: (a) to a Card Association by
MERCHANT and/or a financial institution who is sponsoring MERCHANT into the Card Association; or (b) to MERCHANT by a Card
Association. All Security Event Expenses and Post Event Services Expenses resulting from the same, continuous, related or
repeated event or which arise from the same, related or common nexus of facts, will be deemed to arise out of a single Data Security
Event.
K. Forensic Audit Expenses means the costs of a security assessment conducted by a qualified security assessor approved by a
Card Association or the PCI Security Standards Council to determine the cause and extent of a Data Security Event.
L. MID means a Merchant Identification Number assigned by TMS to MERCHANT, which is a unique number assigned to a
location where MERCHANT accepts Bank Cards for payment.
M. Notice Period means the thirty (30) day period commencing immediately upon the discovery by MERCHANT of a Data
Security Event. However in no event shall the Notice Period extend pass the termination date of the CCAP.
N. Pollutants means, but are not limited to, any solid, liquid, gaseous, biological, radiological or thermal irritant or contaminant,
including smoke, vapor, dust, fibers, mold, spores, fungi, germs, soot, fumes, asbestos, acids, alkalis, chemicals and waste. "Waste"
includes, but is not limited to, materials to be recycled, reconditioned or reclaimed and nuclear materials.
0. Post Event Services Expenses means reasonable fees and expenses incurred by MERCHANT with TMS's prior written
consent, for any service specifically approved by TMS in writing, including without limitation, identity theft education and assistance and
credit file monitoring. Such services must be provided by or on behalf of TMS or MERCHANT within one (1) year following discovery of
a Data Security Event covered under the CCAP to a Cardholder whose Cardholder Information is the subject of that Data Security
Event for the primary purpose of mitigating the effects of such Data Security Event.
P. Security Event Expenses means Card Association Assessments, Forensic Audit Expenses, Card Replacement
Expenses and Post Event Services Expenses that MERCHANT is obligated to pay in connection with a Data Security Event.
III. DUTIES IN THE EVENT OF A DATA SECURITY EVENT
A. Before TMS agrees to support TMS's contractual obligations to MERCHANT under this CCAP, MERCHANT shall notify TMS in
writing as soon as practicable within the Notice Period of an actual or alleged Data Security Event first discovered by MERCHANT
during the CCAP term. Notice must include at a minimum:
1. MERCHANT's name and all of MERCHANT's MIDs alleged to have been breached;
2. A description of the Data Security Event;
3. The potential number of Cardholders affected by the Data Security Event; and
4. A copy of all notices and correspondence sent and/or received by MERCHANT, concerning the Data Security Event.
B. All notices shall be sent to TMS at the following address:
TSYS Merchant Solutions, LLC
Attention: Legal Department / CCAP Event
1601 Dodge Street, Floor 23 East
Omaha, NE. 68102-1637
C. Under all circumstances, MERCHANT shall not admit any liability, assume any financial obligation, pay any money, or incur any
expense in connection with any Data Security Event without TMS's prior written consent. If MERCHANT elects to do so, it will be at
MERCHANT's own expense.
C. MERCHANT shall take reasonable steps to prevent a Data Security Event to the extent arising from the Program and to
mitigate the loss arising out of a Data Security Event, including without limitation, following the procedures required by a Card
201108 MTPA Terms and Conditions Page 24 of 35 CONFIDENTIAL
Association in the event of a Data Security Event. In all events, Merchant shall not take any action, or fail to take any action, without
TMS's prior written consent, which prejudices TMS's rights under this CCAP.
IV. ADDITIONAL OBLIGATIONS
In addition to all other duties and obligations contained elsewhere in this CCAP:
A. Merchant shall allow TMS and/or our insurers to examine and audit all of its records that relate to the matters covered by this
CCAP. TMS and/or its insurers may conduct the audits during regular business hours during the term of the CCAP and within
three (3) years after the term of this CCAP ends; and
B. MERCHANT shall pay all amounts payable when due to TMS under this CCAP or any other written agreement to which
MERCHANT and TMS are a party, including the Merchant Transaction Processing Agreement to which this CCAP has been
attached. MERCHANT shall also be responsible for the giving and receiving of timely notices as required under the CCAP,
including, but not limited to, notice of a Data Security Event and any claim arising out of such Data Security Event.
V. EXCLUSIONS
The CCAP does not and will not apply to:
A. any Data Security Event arising out of MERCHANT allowing any party (other than its employees or TMS) to hold or access
Cardholder Information;
B. any Security Event Expenses arising out of or resulting, directly or indirectly, from any dishonest, fraudulent, criminal or
malicious act, error or omission, or any intentional or knowing violation of the law, if committed by MERCHANT's:
1. directors, officers, trustees, governors, management committee members, members of the management board or partners (or
the equivalent positions), whether acting alone or in collusion with other persons; or
2. employees (other than officers) if any of MERCHANT's elected or appointed officers possessed knowledge of any such:
a) dishonest, fraudulent, malicious, or criminal or malicious act, error or omission;
b) intentional or knowing violation of the law or the CCAP, or
c) gaining of any profit or advantage to which MERCHANT is not legally entitled;
prior to or at the time (a), (b) or (c) above were committed,
C. any Data Security Event caused by or resulting, directly or indirectly, from an act, error or omission of TMS, including, without
limitation: (i) the disclosure of any Cardholder Information by TMS its employees or any person or entity to whom TMS provides
Cardholder Information; or (ii) any failure of the TMS's operating environment security, computer system equipment or payment
processing network; provided however, this exclusion does not apply to the actual or alleged failure of TMS to monitor the operations of,
or the security procedures or computer systems used by, MERCHANT;
D. any Security Event Expenses arising out of or resulting from a claim, suit, action or proceeding against MERCHANT that is
brought by or on behalf of any federal, state or local government agency;
E. any Data Security Event relating to MERCHANT if MERCHANT has experienced a prior Data Security Event unless
MERCHANT was later certified (or re-certified) as PC] compliant by a qualified security assessor;
F. any Data Security Event involving MERCHANT if MERCHANT: (i) is categorized by any Card Association as "Level 1"; or (ii)
MERCHANT processed more than six million (6,000,000) Bank Card transactions during the twelve month period prior to
MERCHANT's enrollment into this CCAP;
G. any expenses, other than Security Event Expenses, incurred by MERCHANT, arising out of or resulting, directly or indirectly,
from a Data Security Event, including without limitation, expenses incurred to bring MERCHANT into compliance with the PCI Data
Security Standard or any similar security standard,
H. any Security Event Expenses arising out of or resulting, directly or indirectly, from physical injury, sickness, disease, disability,
shock or mental anguish sustained by any person, including without limitation, required care, loss of services or death at any time
resulting therefrom;
1. any Security Event Expenses arising out of or resulting, directly or indirectly, from any of the following:
1. fire, smoke, explosion, lightning, wind, water, flood, earthquake, volcanic eruption, tidal wave, landslide, hail, an act of God or
any other physical event, however caused,
2 strikes or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations (whether declared or not), civil
war, mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion,
revolution, military or usurped power, or any action taken to hinder or defend against these actions; or
3. electrical or mechanical failures, including any electrical power interruption, surge, brownout or blackout; a failure of telephone
lines, data transmission lines, satellites or other infrastructure comprising or supporting the Internet, unless such lines or infrastructure
were under TMS's operational control;
J. any Security Event Expenses arising out of or resulting, directly or indirectly, from the presence of or the actual, alleged or
threatened discharge, dispersal, release or escape of Pollutants (including nuclear materials), or any direction or request to test for,
201108 MTPA Terms and Conditions Page 25 of 35 CONFIDENTIAL
monitor, clean up, remove, contain, treat, detoxify or neutralize Pollutants, or in any way respond to or assess the effects of
Pollutants;
K. any Data Security Event that was not properly reported to TMS during the Notice Period;
L. any Data Security Event occurring before the effective date of this CCAP between TMS and MERCHANT, or after the
termination of CCAP;
M. any expenses incurred for, or as a result of, regularly scheduled, recurring or routine security assessments, regulatory
examinations, inquiries or compliance activities;
N. any: (1) gaining of a profit or advantage to which the TMS or MERCHANT is not legally entitled, or (2) MERCHANT's expenses
or charges (other than Security Event Expenses), including employee compensation and benefits, overhead, over-charges or cost
over-runs;
0. any Data Security Event first discovered by MERCHANT after the effective date and time of the expiration, cancellation or non-
renewal of this CCAP regardless of when the Data Security Event actually occurred;
P. any Security Event Expenses arising out of or resulting, directly or indirectly, from the infringement of copyright, patent,
trademark, trade secret or other intellectual property rights; or
Q. any Security Event Expenses alleging, arising out of or resulting, directly or indirectly, from any discrimination against any
person or entity on any basis, including but not limited to: race, creed, color, religion, ethnic background, national origin, age, handicap,
disability, sex, sexual orientation or pregnancy.
R. any fines or assessment levied against MERCHANT that are not the direct result of a Data Security Event;
S. any Data Security Event arising out of any software not under license to MERCHANT; provided, however, this exclusion shall
not apply to a Data Security Event arising out of a virus, Trojan horse or other software used by a third party to obtain fraudulent
access to data on MERCHANT's computer system or to collect data in transit to or from MERCHANT's computer system; or
T. any Data Security Event arising out of a breach in a computer system in which MERCHANT shares a common database(s),
operating system(s) and/or software application(s) on a single piece of equipment at a single location with one or more legal entities
who share no legal relationship to one another.
VI. LIMITS TO SCOPE OF PAYMENTS
A. The following limits on payment amounts shall apply under this CCAP:
Annual Data Security Event Limit: $ 1,000,000
Annual Per Merchant Limit: $ 1,000,000
Annual Per MID Limit: $ 100,000
B. On an annual basis, the most TMS will pay for the total of all Security Event Expenses and Post Event Services Expenses
arising out of or related to any single Data Security Event during the term of the Program and reported to TMS within the Notice
Period is the Annual Data Security Event Limit noted above, regardless of the number of merchants or MIDs involved with or impacted
by such Data Security Event.
C. On an annual basis, the most TMS shall pay for the total of all Security Event Expenses and Post Event Services Expenses
arising out of or related to MERCHANT is the Annual Per Merchant Limit noted above, regardless of the number of Data Security
Events first discovered by MERCHANT during the term of the Program and reported to TMS within the Notice Period.
D. On an annual basis, the most TMS shall pay for the total of all Security Event Expenses and Post Event Services Expenses
arising out of or related to any MID is the Annual Per MID Limit noted above, regardless of the number of Data Security Events first
discovered by MERCHANT during the term of this CCAP and reported to TMS within the Notice Period and subject to the Annual Per
Merchant Limit set forth in Section VI (A) above.
E. All Security Event Expenses and Post Event Service Expenses resulting from the same, continuous, related or repeated
Data Security Events shall be subject to the terms, conditions, exclusions and above payment of this CCAP as in effect at the time the
first such Data Security Event is first discovered by MERCHANT.
VIII. OTHER PROVISIONS AFFECTING SCOPE OF ASSISTANCE
A. Coverage Territory
Subject to its terms, conditions and exclusions, this CCAP applies to a Data Security Event occurring, and Security Event Expenses
incurred, anywhere in the world during the term of the CCAP.
B. Term and Termination of the CCAP
The Initial Term of this CCAP shall commence on the latter of: (i) August 1, 2011; or (ii) the EFFECTIVE DATE of the Merchant
Transaction Processing Agreement, and shall continue to be in effect unless terminated as set out below.
This CCAP shall be deemed terminated immediately: (i) in the event MERCHANT and TMS cease to be parties to a Merchant
Transaction Processing Agreement; (ii) if TMS elects, in its sole determination, to discontinue offering the CCAP in whole or in part for
201108 MTPA Terms and Conditions Page 26 of 35 CONFIDENTIAL
any reason; or (iii) MERCHANT informs TMS of its decision to "Opt-Out" of the CCAP, provided however, that it meets the criteria for
doing so as set forth in Section C below.
C. Opting-Out of the CCAP
At anytime after MERCHANT has provided documentary proof to TMS that it is validated as PCI compliant by a qualified
security assessor, MERCHANT shall have the ability to "Opt-Out" of this CCAP and decline the Card Compromise Assistance provided
by it. If however MERCHANT is later identified by TMS as no longer validated as PCI compliant for any reason, MERCHANT will
immediately be re-enrolled back into this CCAP (provided they are still eligible to participate) and subject to payment of the fee
applicable to non-validated merchants. To validate compliance, please go to www.validatepci.com. Once MERCHANT receives
validation, you are then eligible to Opt-Out of this CCAP. Please note that it may take TMS up to 30 days to confirm that MERCHANT
has validated compliance.
By Opting-Out of this CCAP, MERCHANT understands that under the terms of the Merchant Transaction Processing Agreement
with TMS that MERCHANT is solely responsible for all expenses, fines, assessments, and penalties that arise in the event that a data
breach is suspected or occurs at one or more of my merchant location(s). MERCHANT also understands and agrees that following
Opt-Out the CCAP will not be available to help pay any of the above mentioned expenses, fines, assessments, and penalties in the
event of a suspected or actual breach of one or more of MERCHANT's locations.
In order to Opt-Out, please contact TMS either by telephone at (800) 228-2443, or via email at custom erservice GDtsys.com. If
contacting TMS via phone, please follow the instructions on the voice prompt to Opt-Out. If you are contacting TMS via email, please
include your doing-business-as name, contact information and all of your MIDs. In addition, please include the phrase "Opt-Out of
CCAP" in the subject line.
For more information on the CCAP, please visit www.rovalgroupservice.com/cca
D. Legal Action Against TMS
No person or organization has a right under this CCAP:
to join TMS as a party or otherwise bring TMS into a suit asking for damages from MERCHANT; or
to sue TMS on this CCAP unless all of its terms have been fully complied with by MERCHANT.
In any event TMS will not be liable for amounts that are not payable under the terms of this CCAP or that are in excess of the applicable
limits on payments under Clause VI above.
Subrogation
In the event of any payment under this CCAP, TMS or any insurers of TMS shall be subrogated to the extent of such
payment, to all rights of recovery of MERCHANT arising out of a covered Data Security Event. MERCHANT shall do whatever is
necessary, including signing documents, to help TMS obtain any recovery TMS may seek. To the extent TMS makes a payment to
MERCHANT under this CCAP and, prior or subsequent to such payment, MERCHANT receives any amount from any other person or
entity in connection with or arising out of the Data Security Event with respect to which TMS made such payment, MERCHANT shall
immediately remit such amount to TMS up to the amount of TMS's payment to MERCHANT.
F. Payments Where MERCHANT Has Insurance Coverage
This CCAP shall only cover qualifying expenses hereunder to the extent such expenses are not otherwise covered by any policies of
primary or secondary insurance maintained by merchant.
G. Assignment
This CCAP and any rights provided hereunder are not assignable without TMS's written consent. Any assignment without such a
consent shall be deemed null and void.
H. Changes
Changes to the provisions of this CCAP shall be made only by a written amendment issued by TMS and made a part of this CCAP.
Reimbursement
Payments made under this CCAP to or on behalf of MERCHANT shall be repaid to TMS by MERCHANT in the event and to the extent
that MERCHANT shall not be entitled to such payment.
J. Title of Paragraphs
The titles of the various clauses and paragraphs of this Assistance Agreement and endorsements, if any, attached to this Assistance
Agreement, are inserted solely for convenience or reference and are not to be deemed in any way to limit or expand the provisions to
which they relate, and are not part of this Assistance Agreement.
K. Cancellation
There shall be no payment for any Data Security Event first discovered by MERCHANT after the effective date and time of the
expiration, cancellation or non-renewal of this CCAP regardless of when the Data Security Event actually occurred.
201108 MTPA Terms and Conditions Page 27 of 35 CONFIDENTIAL
L. Organizational Changes
If during the CCAP term:
(1) MERCHANT shall consolidate with, merge into, or sell all or substantially all of its assets to any other person or entity or
group of persons or entities acting in concert; or
(2) any person or entity or group of persons or entities acting in concert shall acquire securities or voting rights which result in
ownership or voting control by other entities or persons of more than fifty percent (50%) of the outstanding securities
representing the rights to vote for the election of MERCHANT's directors;
(any of such events being a "Transaction"), then this CCAP shall continue in full force and effect as to Data Security Events occurring
on or after the date of this CCAP between MERCHANT and TMS and prior to the effective time of the Transaction presuming that
MERCHANT and TMS remain parties to a Merchant Transaction Processing Agreement; provided that such Data Security Event is
first discovered prior to the effective time of the Transaction and otherwise reported to TMS during the Notice Period and in
accordance with the terms and conditions of this CCAP. There shall be no assistance afforded by any provision of this CCAP for any
Data Security Event that is first discovered, or that occurs, on or after the effective time of the Transaction, unless: (i) within thirty (30)
days of such Transaction TMS have been provided with full particulars of the Transaction, the related entities and any other
information requested by TMS; and (ii) MERCHANT or its successor, has agreed to any additional payment amounts and amendments
to this CCAP required by TMS in connection with such Transaction.
Post-Transaction assistance as described above is also conditioned upon MERCHANT or its successor timely paying all amounts that
may be required to be paid under this CCAP and all other written agreements then in effect between TMS and merchant (including but
not limited to the Merchant Transaction Processing Agreement) to which this CCAP is attached.
THIRD PARTIES - PRODUCTS AND SERVICES
Important Note: TMS and BANK are not a party to the following agreement. MERCHANT acknowledges and agrees that
TMS and BANK and their affiliates are in no way' responsible for the actions, inactions, performance or
nonperformance of American Express, or for disputes or resolving disputes of an kind arising from this agreement.
` American Express Card Acceptance Agreement
Agreement for American Express Card Acceptance and American Express OnePoint'Program
The Agreement is by and between American Express Travel Related Services Company, Inc., a New York corporation, and you, the
Merchant. By accepting the American Express Card, you agree to be bound by the Agreement.
General Provisions
1. SCOPE AND OTHER PARTS OF AGREEMENT; DEFINITIONS
a. Scope of the Agreement. The Agreement governs your acceptance of American Express Cards in the United States (but
not Puerto Rico, the U.S. Virgin Islands, and other U.S. territories and possessions) under our American Express OnePoint
Program, which makes available to eligible merchants an integrated service through our agent TSYS Merchant Solutions,
LLC and its agents, assigns or affiliates (collectively referred to as "TMS"), among other agents Schedule A contains
important provisions governing your acceptance of the Card under this program. The Agreement covers you alone. You must
not obtain Authorizations, submit Charges or Credits, or receive payments on behalf of any other party, except as otherwise
expressly permitted in the Merchant Regulations.
b. Other Parts of the Agreement.
i. Merchant Regulations. The Merchant Regulations set forth the policies and procedures governing your acceptance of
the Card. You shall ensure that your personnel interacting with customers are fully familiar with the Merchant
Regulations. The Merchant Regulations are a part of, and are hereby incorporated by reference into, the Agreement. You
agree to be bound by and accept all provisions in the Merchant Regulations (as changed from time to time) as if fully set
out herein and as a condition of your agreement to accept the Card. We reserve the right to make changes to the
Merchant Regulations in scheduled changes and at any time in unscheduled changes as set forth in section 8.j below.
The Merchant Regulations and releases of scheduled changes therein are provided only in electronic form, existing at the
website specified below in the definition of "Merchant Regulations" or its successor website. However, we shall provide
you a paper copy of or a CD-ROM containing the Merchant Regulations or releases of scheduled changes therein upon
your request. To order a copy, please call our agent TMS (telephone: 1.800.228.2443). We may charge you a fee for
each copy that you request.
ii. Schedule A. Schedule A, attached hereto or which we otherwise may provide to you, contains other important provisions
governing your acceptance of the Card. Schedule A is a part of, and is hereby incorporated by reference into, the
Agreement.
C. Definitions. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the
Merchant Regulations. Some definitions are repeated here for ease of reference.
Affiliate means any Entity that controls, is controlled by, or is under common control with
either party, including its subsidiaries. As used in this definition, control means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of an Entity, whether through the ownership of voting securities, by
contract, or otherwise. For the avoidance of doubt, but not by way of limitation, the direct or indirect ownership of more than 50% of
(i) the voting securities or (ii) an interest in the assets, profits, or earnings of an Entity shall be deemed to constitute "control" of the
Entity.
Agreement means these General Provisions, Schedule A and any other accompanying schedules and exhibits, and the Merchant
Regulations, collectively.
American Express Card and Card mean (i) any card, account access device, or payment
201108 MTPA Terms and Conditions Page 28 of 35 CONFIDENTIAL
device bearing our or our Affiliates' Marks and issued by an Issuer or (ii) a Card Number.
• Cardmember means an individual or Entity (i) that has entered into an agreement establishing a Card account with an Issuer or (ii)
whose name appears on the Card.
• Charge means a payment or purchase made on the Card. Card Present Charge means a Charge for which the Card is presented at
the point of sale. Card Not Present Charge means a Charge for which the Card is not presented at the point of sale (e.g., Charges by
mail, telephone, fax or the Internet), is used at unattended Establishments (e.g., customer activated terminals, called CATS), or for
which the transaction is key-entered. Disputed Charge means a Charge about which a claim, complaint, or question has been
brought.
• Chargeback (sometimes called "full recourse" or "Full Recourse" in our materials), when used as a verb, means our reimbursement
from you for the amount of a Charge subject to such right; when used as a noun, means the amount of a Charge subject to
reimbursement from you. Immediate Chargeback (sometimes called "Immediate Full Recourse" in our materials) means our right to
Chargeback immediately and irrevocably without first contacting you or sending you an Inquiry and for which you have no right to
present any written response to dispute the Chargeback.
• Claim means any claim (including initial claims, counterclaims, cross-claims, and third party claims), dispute, or controversy between
you and us arising from or relating to the Agreement or prior Card acceptance agreements, or the relationship resulting therefrom,
whether based in contract, tort (including negligence, strict liability, fraud, or otherwise), statutes, regulations, or any other theory,
including any question relating to the existence, validity, performance, construction, interpretation, enforcement, or termination of the
Agreement or prior Card
acceptance agreements or the relationship resulting therefrom.
• Credit means the amount of the Charge that you refund to Cardmembers for purchases or payments made on the Card.
• Discount means the amount that we charge you for accepting the Card, which amount is: (i) a percentage (Discount Rate) of the
face amount of the Charge that you submit; or a flat Transaction fee, or a combination of both; and/or (ii) a Monthly Flat Fee (if you
meet our requirements).
• Entity means a corporation, partnership, sole proprietorship, trust, association, or any other legally recognized entity or organization.
• Establishments means any or all of your and your Affiliates' locations, outlets, websites,
online networks, and all other methods for selling goods and services, including methods that you adopt in the future.
• General Provisions means the provisions set out in this document other than in Schedule A or any other accompanying schedule or
exhibit hereto.
• Marks mean names, logos, service marks, trademarks, trade names, taglines, or other proprietary designs or designations.
• Merchant Regulations means the American Express Merchant Regulations - U.S., which are available at
www.americanexpress.com/merchantpolicy and can be accessed by entering your Merchant Number.
• Merchant Number (sometimes called the "Merchant ID" or "Establishment" or "SE" number in our materials) means the unique ten-
digit number we assign to your Establishment; if you have more than one Establishment, we may assign to each a separate
Merchant Number.
• Other Agreement means any agreement, other than the Agreement, between (i) you or any of your Affiliates and (ii) us or any of our
Affiliates.
• Other Payment Products mean any charge, credit, debit, stored value or smart cards, account access devices, or other payment
cards, services, or products other than the Card.
• Reserve means a fund established and/or collateral held by us as security for your or any of your Affiliates' obligations to us or any
of our Affiliates under the Agreement or any Other Agreement.
• We, our, and us mean American Express Travel Related Services Company, Inc.
• You and your (sometimes called the "Merchant", "Service Establishment," or "SE" in our materials) mean the Entity accepting the
Card under the Agreement, and its Affiliates
conducting business in the same industry.
d. List of Affiliates. You must provide to our agent a complete list of your Affiliates conducting business in your industry and
notify our agent promptly of any subsequent changes in the list.
ACCEPTING THE CARD
a. Acceptance. You must accept the Card as payment for all goods and services sold at all of your Establishments, except
as otherwise expressly specified in the Merchant Regulations. You agree that the provisions of Chapter 3 (Card Acceptance)
of the Merchant Regulations are reasonable and necessary to protect the Cardmember's choice of which Card to use and
that charge and credit Cards, including corporate Cards, are interchangeable. You are jointly and severally liable for the
obligations of your Establishments under the Agreement.
b. Transaction Processing and Payments. Our Card acceptance, processing, and payment requirements are set forth in
the Merchant Regulations. Some requirements are summarized here for ease of reference, but do not supersede the
provisions in the Merchant Regulations.
i. Format. You must create a Charge Record for every Charge and a Credit Record for every Credit that comply with our
requirements, as described in the Merchant Regulations. You may create multiple Charge Records for a single purchase
placed on different Cards, but you must not create multiple Charge Records for a single purchase to the same Card, by
dividing the purchase into more than one Charge.
ii. Authorization. You must obtain from and submit to us an Authorization Approval code for all Charges. Authorization
does not guarantee that we will accept the Charge without exercising Chargeback, nor is it a guarantee that the person
making the Charge is the Cardmember or that you will be paid.
iii. Submitting Charges and Credits. Your Establishments must submit Charges and Credits in U.S. dollars. You must not
issue a Credit when there is no corresponding Charge. You must issue Credits to the Card account used to make the
original purchase, except as otherwise expressly specified in the Merchant Regulations.
iv. Payment for Charges. We will pay you, through our agent, according to your payment plan in U.S. dollars for the face
amount of Charges submitted from your Establishments less: (i) the Discount, (ii) any amounts you owe us or our Affiliates,
(iii) any amounts for which we have Chargebacks, and (iv) any Credits you submit. Your initial Discount is indicated in the
Agreement or otherwise provided to you in writing by us In addition to your Discount we may charge you additional fees
and assessments, as listed in the Merchant Regulations. We may adjust any of these amounts and may change any
other amount we charge you for accepting the Card.
v. Chargeback. We and our agent have Chargeback rights, as described in the Merchant Regulations. We and our agent may
Chargeback by deducting, withholding, recouping from, or offsetting against our payments to you (or debiting your Account), or
201108 MTPA Terms and Conditions Page 29 of 35 CONFIDENTIAL
we or our agent may notify you of your obligation to pay us, which you must do promptly and fully. Our or our agent's failure to
demand payment does not waive our Chargeback rights.
vi. Protecting Cardmember Information. You must protect Cardmember Information, as described in the Merchant
Regulations. You have additional obligations based on your Transaction volume, including providing to us documentation
validating your compliance with the PCI Standard performed by Qualified Security Assessors or Approved Scanning
Vendors (or both).
3. PROTECTIVE ACTIONS
a. Creating a Reserve. Regardless of any contrary provision in the Agreement, we have the right in our sole discretion to
determine that it is necessary to have some security for your or any of your Affiliates' obligations to us or any of our Affiliates,
under the Agreement or any Other Agreement. If we so determine, we may (i) withhold and offset amounts from payments
we otherwise would make to you under the Agreement or (ii) establish a Reserve, including by requiring you to deposit funds
or other collateral with us.
b. Trigger Events for Reserve. Some of the events that may cause us to establish a Reserve include: (i) your ceasing a
substantial portion of or adversely altering your operations; (ii) your selling all or substantially all of your assets or any
party acquiring 25% or more of the equity interests issued by you (other than parties currently owning 25% or more of
such interests), whether through acquisition of new equity interests, previously outstanding interests, or otherwise; (iii)
your suffering a material adverse change in your business; (iv) your becoming insolvent; (v) our receiving a
disproportionate number or amount of Disputed Charges at your Establishments; or (vi) our reasonable belief that you will
not be able to perform your obligations under the Agreement, under any Other Agreement, or to Cardmembers.
C. Establishing a Reserve. If an event leads us to believe that we need to create a Reserve, then we may immediately
establish a Reserve or terminate the Agreement. We shall inform you if we establish a Reserve. We may increase the
amount of the Reserve at any time as long as the amount of the Reserve does not exceed an amount sufficient, in our
reasonable judgment, to satisfy any financial exposure or risk to us under the Agreement (including from Charges
submitted by you for goods or services not yet received by Cardmembers) or to us or our Affiliates under any Other
Agreement, or to Cardmembers.
d. Other Protections. We may deduct and withhold from, and recoup and offset against, the Reserve (i) any amounts you
or any of your Affiliates owe us or any of our Affiliates under the Agreement or any Other Agreement; (ii) any costs
incurred by us in connection with administration of the Reserve, including legal fees; and (iii) any costs incurred by us as
a result of your failure to fulfill any obligations to us, any of our Affiliates, or to Cardmembers, including legal fees. We
may take other reasonable actions to protect our rights or those of any of our Affiliates, including changing the speed or
method of payment for Charges, exercising Immediate Chargeback, or charging you fees for Disputed Charges. If we
deem it necessary based on our assessment of risk posed by your business, we may require you at any time to deposit
funds or other collateral with us as security to protect our financial risk hereunder as a condition of your accepting the
Card. These funds and collateral shall be treated as a Reserve under the Agreement.
e. Providing Information. You must provide to us promptly, upon request, information about your finances,
creditworthiness, and operations, including your most recent certified financial statements.
4. NOTICES
a. Delivery and Receipt. Unless otherwise explicitly provided for herein, all notices hereunder must be in writing and sent
by hand delivery; or by U.S. postal service, such as first class mail or third class mail, postage prepaid; or by expedited
mail courier service; or by electronic mail (e-main; or by facsimile transmission, to the addresses set out below. Notices
are deemed received and effective as follows: If hand-delivered, upon delivery; if sent by e-mail or facsimile transmission,
upon sending; if mailed, upon the earlier of (i) receipt or (ii) three days after being deposited in the mail if mailed by first
class postage or ten days after being deposited in the mail if mailed by third class postage. If the addressee provided for
below rejects or otherwise refuses to accept the notice, or if the notice cannot be delivered because of a change in
address for which no notice was appropriately given, then notice is effective upon the rejection, refusal or inability to
deliver.
b. Our Notice Address. Unless we notify you otherwise, you shall send notices to us, through our agent, at:
American Express Travel Related Services Company, Inc.
TSYS Merchant Solutions, LLC
Attention: Legal Department
1601 Dodge Street, 23E
Omaha, NE 68102-1637
G. Your Notice Address. Our agent shall send notice to you at the address, e-mail address, or facsimile number you
indicated on your application to accept the Card. You must notify our agent immediately of any change in your notice
address.
5. INDEMNIFICATION AND LIMITATION OF LIABILITY
a. Indemnity. You shall indemnify, defend, and hold harmless us and our Affiliates, agents, successors, assigns, and third
party licensees, from and against all damages, liabilities, losses, costs, and expenses, including legal fees, arising or
alleged to have arisen from your breach, negligent or wrongful act or omission, failure to perform under the Agreement, or
failure in the provision of your goods or services.
b. Limitation of Liability. In no event shall we or our Affiliates, agents, successors, or
assigns be liable to you for any incidental, indirect, speculative, consequential, special, punitive, or exemplary damages of
any kind (whether based in contract, tort, including negligence, strict liability, fraud, or otherwise, or statutes, regulations, or
any other theory) arising out of or in connection with the Agreement, even if advised of such
potential damages Neither you nor we (and our agent) will be responsible to the other for damages arising from delays or
problems caused by telecommunications carriers or the banking system, except that our (and our agent's) rights to create
201108 MTPA Terms and Conditions Page 30 of 35 CONFIDENTIAL
Reserves and exercise Chargebacks will not be impaired by such events.
TERM AND TERMINATION
a. Effective Date/Termination Date. The Agreement begins as of the date (i) you first accept the Card after receipt of the
Agreement or otherwise indicate your intention to be bound by the Agreement or (ii) we approve your application to accept the
Card, whichever occurs first. Either party can terminate the Agreement without cause (and notwithstanding any other rights
established under the Agreement) at any time by notifying the other party. Termination will take effect according to the
notice period specified in section 4.a above.
b. Grounds for Termination. In addition to our rights in sections 3.c and 6.a. above, we may terminate the Agreement at
any time without notice to you and without waiving our other rights and remedies if you have not submitted a Charge
within any twelve month period. The Agreement is a contract to extend financial accommodations, and if bankruptcy or
similar proceedings are filed with respect to your business, then the Agreement will
terminate automatically.
C. Post-Termination. If the Agreement terminates, without waiving our other rights and remedies, we and our agent may
withhold from you any payments until we have fully recovered all amounts owing to us and our Affiliates. If any amounts
remain unpaid, then you and your successors and permitted assigns remain liable for such amounts and shall pay us
within thirty days of our request. You must also remove all displays of our Marks, return our materials and equipment
immediately, and submit to our agent any Charges and Credits incurred prior to termination.
d. Effect of Termination. Termination of the Agreement for any reason does not relieve the parties of their respective rights
and duties arising prior to the effective date of termination that by their nature are intended to survive termination, including
the provisions of sections 1, 3, 5, 6, 7, and 8 of these General Provisions, our Chargeback rights, and your duties set forth in
the Merchant Regulations to protect Cardmember Information, indemnify us, retain documents evidencing Transactions, and
notify your Recurring Billing customers of such termination. Our and our agent's right of direct access to the Demand Deposit
Account will also survive until such time as all credits and debits permitted by the Agreement, and relating to Transactions
prior to the effective date of termination, have been made.
DISPUTE RESOLUTION
a. Arbitration Rights. All Claims shall be resolved, upon your or our election, through arbitration pursuant to this section 7
rather than by litigation.
b. Arbitration Rules/Organizations. The party asserting the Claim shall select one of the following arbitration
organizations, which shall apply its rules in effect at the time the Claim is filed. In the event of an inconsistency between
this section 7 and any rule or procedure of the arbitration organization, this section 7 controls. The party asserting the
Claim shall simultaneously notify the other party of its selection. If our selection is not acceptable to you, then you may
select another of the following organizations within thirty days after you receive notice of our initial selection. Any
arbitration hearing that you attend shall take place in the federal judicial district where your headquarters is located.
• National Arbitration Forum (NAF): P.O. Box 50191, Minneapolis, MN 55404-0191; (800) 474-2371; www.arbitration-
forum.com
• American Arbitration Association (AAA): 335 Madison Avenue, New York, NY 10017; (800) 778-7879; www.adr.org
c. Limitation of Rights. IF ARBITRATION IS CHOSEN BY A PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR
WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR
TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE RULES OR PROCEDURES OF
NAF OR AAA, AS APPLICABLE. FURTHER, YOU SHALL NOT HAVE THE RIGHT TO PARTICIPATE IN A
REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM.
OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
NOTWITHSTANDING ANY OTHER PROVISION IN THE AGREEMENT AND WITHOUT WAIVING EITHER PARTY'S
RIGHT TO APPEAL SUCH DECISION, IF ANY PORTION OF THIS SECTION 7.c OR OF SECTION 7.d. BELOW IS
DEEMED INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 7 (OTHER THAN THIS SENTENCE)
SHALL NOT APPLY.
d. Individually Named Parties Only. All parties to the arbitration must be individually named. There is no right or authority
for any Claims to be arbitrated or litigated on a class-action or consolidated basis, on behalf of the general public or other
parties, or joined or consolidated with claims of other parties, and you and we are specifically barred from doing so. This
prohibition is intended to, and does, preclude any trade association or other organization from arbitrating any Claim on a
representative basis on behalf of the organization's members. The arbitrator's authority to resolve Claims is limited to
Claims between you and us alone, and the arbitrator's authority to make awards is limited to awards to you and us alone.
e. Application of Provision. For the avoidance of any confusion, and not to limit its scope, this section 7 applies to any
putative class action lawsuit that has been filed against us prior to the effective date of the Agreement relating to the
"Honor All Cards," "non-discrimination," or "no steering" provisions of the Agreement as described in sections 1 and 2 of
these General Provisions and Chapter 3 (Card Acceptance) of the Merchant Regulations, or prior versions of a Card
acceptance agreement.
f. Equitable Relief. The arbitrator shall have the power and authority to grant equitable relief (e.g., injunction, specific
performance) and, cumulative with all other remedies, shall grant specific performance whenever possible The arbitrator
shall have no power or authority to alter the Agreement or any of its separate provisions, including this section 7, nor to
determine any matter or make any award except as provided in this section 7.
g Small-Claims Court; Injunctive Relief. We shall not elect to use arbitration under this section for any individual Claim
that you properly file in a small claims court so long as the Claim is pending only in that court. Injunctive relief sought to
enforce the provisions of sections 8.a and 8.b of these General Provisions is not subject to the requirements of this
section 7. This section 7 is not intended to, and does not, substitute for our ordinary business practices, policies, and
procedures, including our rights to Chargeback and to create Reserves
h Governing Law/Appeal/Entry of Judgment. This section 7 is made pursuant to a transaction involving interstate
commerce and is governed by the Federal Arbitration Act, 9 U.S.C. § 16 et seq. (FAA). The arbitrator shall apply New
York law and applicable statutes of limitations, honor claims of privilege recognized by law and, at the timely request of
201108 MTPA Terms and Conditions Page 31 of 35 CONFIDENTIAL
either party, provide a written and reasoned opinion explaining his or her decision. The arbitrator shall apply the rules of
the arbitration organization selected, as applicable to matters relating to evidence and discovery, not the federal or any
state rules of civil procedure or rules of evidence. The arbitrator's decision shall be final and binding, except for any rights
of appeal provided by the FAA or if the amount of the award exceeds US $100,000, in which case either party can appeal
that award to a three-arbitrator panel administered by NAF or AAA, as applicable, which shall reconsider de novo any
aspect of the initial award requested by majority vot6 and whose decision shall be final and binding. The decision of that
three-person panel may be appealed as provided by the FAA. The costs of such an appeal shall be borne by the
appellant regardless of the outcome of the appeal. Judgment upon the award rendered by the arbitrator may be entered
in any state or federal court in the federal judicial district where your headquarters or your assets are located.
i. Confidential Proceedings. The arbitration proceeding and all testimony, filings, documents, and any information relating
to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other
party. All offers, promises, conduct, and statements, whether written or oral, made in the course of the negotiations,
arbitrations, and proceedings to confirm arbitration awards by either party, its agents, employees, experts or attorneys, or
by the arbitrator, including any arbitration award or judgment related thereto, are confidential, privileged, and inadmissible
for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or
non-parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the negotiation or arbitration.
j. Split Proceedings for Equitable Relief. Either you or we may seek equitable relief in arbitration prior to arbitration on
the merits to preserve the status quo pending completion of such process. This section shall be enforced by any court of
competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, including legal fees,
to be paid by the party against whom enforcement is ordered. Except as otherwise provided in section 7.c. above, if any
portion of this section 7 (other than section 7.c. or d.) is deemed invalid or unenforceable, it shall not invalidate the
remaining portions of this section 7, the Agreement, or any predecessor agreement you may have had with us, each of
which shall be enforceable regardless of such invalidity.
8. MISCELLANEOUS
a. Confidentiality. You must keep confidential and not disclose to any third party the provisions of the Agreement and any
information that you receive from us that is not publicly available.
b. Proprietary Rights and Permitted Uses. Neither party has any rights in the other party's Marks, except as otherwise
expressly specified in the Merchant Regulations, nor shall one party use the other party's Marks without its prior written
consent, except that we may use your name, address (including your website addresses or URLs), and customer service
telephone numbers in any media at any time.
C. Your Representations and Warranties. You represent and warrant to us that: (i) you are duly organized, validly
existing, and in good standing under the laws of the jurisdiction in which you are organized; (ii) you are duly qualified and
licensed to do business in all jurisdictions in which you conduct business; (iii) you have full authority to enter into the
Agreement and all necessary assets and liquidity to perform your obligations and pay your debts hereunder as they
become due; (iv) there is no circumstance threatened or pending that might have a material adverse effect on your
business or your ability to perform your obligations or pay your debts hereunder; (v) you are authorized to enter into this
Agreement on behalf of your Establishments and Affiliates, including those indicated in this Agreement, and the individual
who signs this Agreement or otherwise enters into it has authority to bind you and them to it; (vi) you are not (1) listed on
the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons
List (available at www.treas.gov/ofac), (2) listed on the U.S. Department of State's Terrorist Exclusion List (available at
www.state.gov), or (3) located in or operating under license issued by a jurisdiction identified by the U.S. Department of
State as a sponsor of international terrorism, by the U.S. Secretary of the Treasury as warranting special measures due
to money laundering concerns, or as noncooperative with international anti-money laundering principles or procedures by
an intergovernmental group or organization of which the United States is a member; (vii) you have not assigned to any
third party any payments due to you under this Agreement; (viii) all information that you provided in connection with this
Agreement is true, accurate, and complete; and (ix) you have read this Agreement and kept a copy for your file. If any of
your representations or warranties in this Agreement becomes untrue, inaccurate, or incomplete at any time, we may
immediately terminate this Agreement in our discretion.
d. Compliance with Laws. You shall comply with all applicable laws, regulations, and rules.
e. Governing Law; Jurisdiction; Venue. The Agreement and all Claims are governed by and shall be construed and
enforced according to the laws of the State of New York without regard to internal principles of conflicts of law.
Notwithstanding the immediately preceding sentence, the parties agree that an electronic transmission contemplated
hereunder is being provided in connection with a transaction affecting interstate commerce that is subject to the
federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §1700 et seq (E-Sign Act). The
parties intend that the E-Sign Act apply to the fullest extent possible to validate their ability to electronically transmit
and electronically commit to be bound by the obligations and form assent described in the Merchant Regulations and
releases of scheduled changes therein. Subject to section 7, any action by either party hereunder shall be brought
only in the appropriate federal or state court located in the County and State of New York. Each party consents to the
exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.
f. Interpretation. In construing the Agreement, unless the context requires otherwise: (i) the singular includes the plural
and vice versa; (ii) the term "or" is not exclusive; (iii) the term "including" means "including, but not limited to;" (iv) the term
"day" means "calendar day;" (v) any reference to any agreement (including the Agreement), instrument, contract, policy,
procedure, or other document refers to it as amended, supplemented, modified, suspended, replaced, restated, or
notated from time to time; (vi) all captions, headings, and similar terms are for reference only. To the extent possible,
these General Provisions, the provisions of Schedule A, and the provisions of the Merchant Regulations shall be
interpreted to give each their full effect. However, if a conflict is deemed to exist between them, then that conflict shall be
resolved in the following order of precedence: Schedule A and any accompanying exhibits shall control over these
General Provisions or the Merchant Regulations (or both) and the Merchant Regulations shall control over these General
201108 MTPA Terms and Conditions Page 32 of 35 CONFIDENTIAL
Provisions.
g. Assignment. You shall not assign the Agreement, whether voluntarily or by operation of law (including by way of sale of
assets, merger, or consolidation), without our prior written consent. Any purported assignment by operation of law is
voidable in our sole discretion. We may assign the Agreement without your consent. Except as otherwise specified
herein, the Agreement binds, and inures to the benefit of, the parties and their respective successors and permitted
assigns.
h. Waiver; Cumulative Rights. Either party's failure to exercise any of its rights under the Agreement, its delay in enforcing any
right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course
of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of the
Agreement shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.
All rights and remedies of the parties are cumulative, not alternative.
i Savings Clause. Other than as set forth in the last sentence of section 7.c above, if any provision of the Agreement is held
by a court of competent jurisdiction to be illegal or unenforceable, that provision shall be replaced by an enforceable provision
most closely reflecting the parties' intentions, with the balance of the Agreement remaining unaffected.
j. Amendments. We reserve the right to change the Agreement at any time (including by amending any of its provisions,
adding new provisions, or deleting or modifying existing provisions) on at least ten days' prior notice to you, provided that
we shall change the Merchant Regulations pursuant to the following provisions. You agree to accept all changes (and
further to abide by the changed provisions in the Merchant Regulations) as a condition of your agreement to accept the
Card. We are not bound by any changes that you propose in the Agreement, unless we expressly agree in a writing
signed by our authorized representative. An e-mail does not constitute such a signed writing.
(1) Scheduled Changes. The Merchant Regulations are published twice each year, in April and October. We have
the right to, and hereby notify you that we may, change the provisions of the Merchant Regulations in scheduled
releases (sometimes called "Notification of Changes" in our materials) as follows:
• a release of scheduled changes, to be published every April, which changes shall take effect in the
following October (or in a later) edition of the Merchant Regulations or during the period between two
editions of the Merchant Regulations, and
• a release of scheduled changes, to be published every October, which changes shall take effect in the
following April (or in a later) edition of the Merchant Regulations or during the period between two editions
of the Merchant Regulations.
Where a change is to take effect during the period between two editions of the Merchant Regulations, we shall
also include the change in the edition of the Merchant Regulations covering the period during which the change
shall take effect, noting the effective date of the change therein.
(2) Unscheduled Changes. We also have the right to, and hereby notify you that we may, change the provisions of
the Merchant Regulations in separate unscheduled releases, which generally shall take effect ten days after
notice to you (unless another effective date is specified in the notice)
k. Entire Agreement. The Agreement is the entire agreement between you and us regarding the subject matter hereof and
supersedes any previous agreements, understandings, or courses of dealing regarding the subject matter hereof.
1. Disclaimer of Warranties. WE DO NOT MAKE AND HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS,
WARRANTIES, AND LIABILITIES, WHETHER EXPRESS, IMPLIED, OR ARISING BY LAW OR FROM A COURSE OF
DEALING OR USAGE OF TRADE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY WARRANTY OF TITLE OR NON-INFRINGEMENT.
M. No Third-Party Beneficiaries. The Agreement does not and is not intended to confer any rights or benefits on any
person that is not a party hereto and none of the provisions of the Agreement shall be enforceable by any person other
than the parties hereto, their successors and permitted assigns.
n. Press Releases. You shall not issue any press release or make any public announcement (or both) in respect of the
Agreement or us without our prior written consent.
o. Independent Contractors. You and we are independent contractors. No agency, partnership, joint-venture, or
employment relationship is created between the parties by the Agreement. Each party is solely responsible for its own
acts and omissions and those of its respective agents, employees, representatives, and subcontractors in connection
with the Agreement.
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
By:
Kim C. Goodman
Executive Vice President, Merchant Services US
201108 MTPA Terms and Conditions Page 33 of 35 CONFIDENTIAL
Schedule A
Other Important Provisions for Card Acceptance
American Express OnePoint Program
1. OVERVIEW OF AMERICAN EXPRESS ONEPOINT PROGRAM
a. Eligibility; Transition to Our Standard Card Acceptance Program. Our American Express OnePoint Program provides integrated
Card acceptance services to eligible Entities through our agents, including First National Bank of Omaha. If you do not qualify for this
program, you may be enrolled in our standard American Express Card acceptance program, which has different servicing terms (e.g.,
different speeds of payment); you may terminate the Agreement if you do not wish to so be enrolled. If you become ineligible for our
American Express OnePoint Program, we will transition you to our standard American Express Card acceptance program upon forty-
five day's prior notice, unless you opt-out of that transition by notifying our agent in writing no later than fifteen days prior to the effective
date of transition.
b. Program Services. We may perform our obligations and exercise our rights under the Agreement directly or through our agents.
Since we are acting through our agent in many instances under the Agreement, the terms we, our, or us also may refer to our agent
above, as the context requires. Please direct all inquiries and notices under the American Express OnePoint Program to our
agent:
TSYS Merchant Solutions, LLC
Attention: Legal Department
1601 Dodge Street, 23E
Omaha, NE 68102-1637
c. Merchant Regulations. The Merchant Regulations set forth the policies and procedures of our standard American Express Card
acceptance program. The provisions of this Schedule A describe the different terms that apply to you under the American Express
OnePoint Program and take precedence over the corresponding provisions of the Merchant Regulations. For example, since Entities
classified in certain industries do not qualify for the American Express OnePoint Program, references in the Merchant Regulations to
those industries may not apply to you. Please contact our agent for a copy of the Merchant Regulations and with any questions about
specific industries under the program.
2. DOING BUSINESS WITH AMERICAN EXPRESS
a. Certain American Express Terms Not Applicable. Our Online Merchant Services, the terms applicable to Corporate Purchasing
Cards, and our Monthly Flat Fee option are not available to you under the American Express OnePoint Program. During your
participation in the program, you are not required to configure your systems to communicate directly with our systems and you must not
provide Payment Services or otherwise act as a Payment Service Provider.
b. Merchant Number; Your Merchant Information.
Under the American Express OnePoint Program, you will not receive a standard American Express Merchant Number. Our agent will
instead assign a unique OnePoint Program "merchant" or "account" number to your Establishment; if you have more than one
Establishment (or a sales channel for Internet Orders), it may assign to each a separate number. You will need that number each time
you call our agent under the American Express OnePoint Program. (If you are enrolled in or transition to our standard Card acceptance
program, we (not our agent) will assign you a standard American Express Merchant Number.) You must notify our agent of
any changes in your business and banking information and any closings of your Establishments. Our agent may verify and disclose
information about you, including by requesting reports about you and the person signing your application to accept the Card.
3. AUTHORIZATION
During your participation in the American Express OnePoint Program, you must initiate an Authorization for each Charge according to
the Authorization procedures of our agent and contact our agent about all Authorization responses. You must obtain from and submit to
our agent an Authorization Approval code for all Charges. Authorization does not guarantee that we or our agent will accept the Charge
without exercising Chargeback, nor is it a guarantee that the person making the Charge is the Cardmember or that you will be paid.
4. SUBMISSION
During your participation in the American Express OnePoint Program, you must submit Charges and Credits electronically to our agent
according to its Submission procedures under the OnePoint Program "merchant" or "account" number of the Establishment where the
Charge or credit originated. You must not submit Charges and Credits on paper.
5. SETTLEMENT
a. Settlement Amount. Our agent will pay you according to your payment plan, as de-scribed below, in U.S. dollars for the face amount
of Charges submitted from your Establishments less all applicable deductions, which may include: (i) the Discount, (ii) any amounts you
owe us or our Affiliates, (iii) any amounts for which we have Chargebacks, and (iv) any Credits you submit Our agent will subtract the
full amount of all applicable deductions from this payment to you (or debit your Demand Deposit Account), but if it cannot, then you must
pay it promptly upon demand
b. Discount. Your initial Discount and other fees and assessments are indicated in the Agreement or otherwise provided to you in
writing by our agent. We or our agent may adjust any of these amounts and may change any other amount charged to you for accepting
the Card. We or our agent may charge you different Discount Rates for Charges submitted by your Establishments that are in different
industries. We or our agent will notify you of such fees, such adjustments and charges, and assessments and any different Discount
Rates or Transactions fees that apply to you.
c. Payment Plan. During your participation in the American Express OnePoint Program, the terms of your payment plan (e.g., speed of
payment, payment and reconciliation options) with our agent govern settlement payments to you. Our agent will send payments for
Charges from your Establishments according to your payment plan to your Demand Deposit Account that you designate to it. You must
notify your bank that we, through our agent, will have access to your account for debiting and crediting the Demand Deposit Account.
6. PROTECTING CARDMEMBER INFORMATION
You must notify our agent immediately if you know or suspect that Cardmember Information has been accessed or used without
authorization or used other than in accordance with the Agreement You must promptly provide to us and our agent all Card Numbers
201108 MTPA Terms and Conditions Page 34 of 35 CONFIDENTIAL
related to the data incident and audit reports of the data incident, and you must work with us and our agent to rectify any issues arising
from the data incident, as specified in the Merchant Regulations.
7. RISK EVALUATION
a. Prohibited/High Risk Merchants and Activities. Entities classified in certain industries or accepting Transactions for certain
prohibited activities do not qualify for the American Express OnePoint Program, but may qualify for our standard American Express
Card acceptance program. Please contact our agent with any questions about those risk evaluation procedures under the program.
b. Protective Actions. Our agent may take actions to protect our rights or those of any of our Affiliates on our behalf. For example, the
determination to establish a Reserve may be triggered by events identified by our agent and may include requiring you to deposit funds
or other collateral with us or our agent, changing the speed of payment for Charges, exercising Immediate Chargeback, and charging
you fees for Disputed charges. Our agent may establish the Reserve; increase the Reserve from time to time; make deductions and
withhold from, and recoup and offset against the Reserve any amounts owed under the Agreement; and terminate the Agreement on
our behalf. Our agent will inform you if a Reserve is established. You must provide to our agent promptly, upon request, information
about your finances, creditworthiness, and operations, including your most recent certified financial statements.
8. INQUIRIES AND CHARGEBACKS
During your participation in the American Express OnePoint Program, our agent's procedures for Inquiries, Disputed Charges, and
Chargebacks govern the Disputed Charge process, provided that nothing therein waives our Chargeback rights under the Agreement.
Our agent may Chargeback by deducting, withholding, recouping from, or offsetting against our payments to you (or debiting your
Account), or our agent may notify you of your obligation to pay us (through our agent), which you must do promptly and fully. Our or our
agent's failure to demand payment does not waive our Chargeback rights.
The information contained in this document is CONFIDENTIAL to the business and operations of TSYS Merchant Solutions, LLC and
shall not be duplicated or disclosed in whole or in part without the prior written permission of TSYS Merchant Solutions, LLC
201108 MTPA Terms and Conditions Page 35 of 35 CONFIDENTIAL
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 3, 2012
TITLE:
RECEIVE AND FILE
SPACE PARKING
PROGRAM
REGARDING SINGLE-
METER FIELD TRIAL
CITY MANAGER
DISCUSSION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 15t Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
In recent years, the Downtown area has seen significant changes to the area with the addition of
new offices, retail, entertainment venues, restaurant and residential uses. These positive changes
have presented the city with the opportunity to explore improvements to our current metered
parking equipment to enhance the parking experience for a wider range of patrons. There are
approximately 1,300 metered parking spaces in the City with 530 metered parking spaces in the
downtown area. Currently, the traditional parking meters only accept coins. Faced with new
parking challenges and the fact that many people are carrying limited cash/change, many cities
are converting to smart meters that conveniently accept credit and debit cards as well as coins and
are seeing revenue enhancement between 20-30 percent with the upgraded technology.
Based on the successes of smart parking meters in other cities, the city is interested in entering
into a trial 90-day term agreement with IPS Group, Inc. and First National Bank of Omaha/TSYS
Merchant Solutions, LLC to sample 50 single-space meters that accept multiple payment options
and ten space sensors that detect when a vehicle departs. This San Diego-based company has
been the leader in intelligent single-space parking meter technology for over 15 years. Their
product can be seen in over 40 cities in the United States and Canada as well as several nearby
communities.
In an effort to sample different areas in the Downtown and to receive feedback from users, the trial
meters would be placed on high demand blocks of east and west 4th Street, N. Broadway and N.
Sycamore. In addition to the 50 smart meters, we will also sample ten space sensors to be placed
in the ground to detect the presence or absence of a vehicle. The sensors provide the ability to
add courtesy time on the meter, supports anti-meter feeding and typically increases revenues by
having spaces reset when a vehicle departs.
9OA-1
Receive and File Regarding Single-Space
Parking Meter Field Trial Program
December 3, 2012
Page 2
The IPS smart meters use a mechanism that retrofits into our current meter unit. Therefore, it is a
very economical way to upgrade without any changes to the infrastructure or need for additional
hardware and equipment. The device is solar-powered, uses LED lights to provide visual
enforcement, and will accept coins, tokens, credit/debit cards and smart cards. The data
management system will wirelessly notify parking operations staff of any faults or jams and
provides financial information on each meter. In addition, the change to solar-powered meters will
eliminate the need to replace over 2,400 nine-volt batteries each year.
Prior to and throughout the trial period, staff will initiate a public outreach effort to first, inform all
Downtown stakeholders, residents, and visitors, and secondly, to evaluate the success and
acceptance of the products. Public outreach methods to be utilized will include placing an online
public awareness video and survey on the city website and advertised throughout the city, as well
as a sticker being placed on each trial meter. Downtown Inc. will also be asked to help inform the
public by including an article in their newsletter. Staff will also personally speak with businesses in
the trial areas and parking meter and parking control officers will carry information material. The
IPS Group smart meters will include a variety of management reports to compare current meter
revenues with smart meter revenues on both sensored and non-sensored meters during this trial
period.
In order to use the credit card feature, a valid merchant account is needed prior to the installation.
First National Bank of Omaha, TSYS Merchant Solutions, LLC has provided the best rate to the
City. They will be responsible for the payment process of receiving transactions from the IPS
meters (via the wireless transmission) and depositing the transactions into the bank. The city is
charged a fee of .035 cents per transaction.
90A-Z