MERCHANT AGREEMENT

In consideration of the mutual promises and covenants contained in this Merchant Agreement, and the agreement of Merchant to participate in the card processing services program established by Bank, the parties agree as follows:

 

The appendices, addenda, schedules, and Fee Schedule (if applicable) that accompany this Merchant Agreement, as amended from time to time as provided herein, are part of the terms and conditions of this Merchant Agreement, as are the Merchant Application and the Card Brand Rules, and are individually and collectively hereinafter referred to as the “Merchant Agreement”.

 

This Merchant Agreement contains a BINDING ARBITRATION PROVISION. Please review carefully prior to accepting the terms of this Merchant Agreement.

 

1. Parties. The parties to this Merchant Agreement are ESQUIRE BANK, N.A. a federally chartered bank whose address is 100 Jericho Quadrangle, Suite 100, Jericho, New York 11753 (“Bank”), Groundhog Enterprises, Inc. d/b/a Merchant Lynx Services, a Georgia Corporation, whose address is 348 Hiatt Drive, Palm Beach Gardens, FL 33418 (“ISO”), and the Merchant set forth on the Merchant Application form to which this Merchant Agreement is attached (“Merchant”).

 

2. Definitions. For the purposes of this Merchant Agreement and the Schedules referred to herein, the following definitions apply unless the context otherwise requires:

“Address Verification” means a service that allows Merchant to verify the home address of Cardholders with the relevant Issuer.

“Affiliate” means, in relation to a party, another person or entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common

control with, the party, or a party’s principal partners, shareholders, or owners of some other ownership interest.

“Applicable Law” means: (i) all applicable federal, state and local laws, rules and regulations; (ii) the Rules; and (iii) any executive orders or rules, orders or regulations imposed by any governmental entity from time to time or at any time.

“Card Brand(s)” means any entity formed to administer and promote Cards, including, without limitation, American Express Travel Related Services Company, Inc.; Discover Financial Services, LLC; Mastercard International, Inc.; VISA U.S.A., Inc.; and VISA International, Inc., and in the case of debit Transactions, the debit networks.

“Authorization” means an affirmative response, by or on behalf of an Issuer to a request to effect a Transaction, that a Transaction is within the relevant Cardholder’s available credit limit and that the Cardholder has not reported the Card lost or stolen. All Transactions requiring Authorization by the Card Brands must be authorized.

“Authorization Center” means the facility or facilities designated from time to time by Bank or ISO to which Merchant shall submit all requests for Authorization.

“Bank” has the definition that appears in the preamble hereof.

“Business Day” means any day other than: (i) a Saturday or Sunday; or (ii) a day on which banking institutions in New York are authorized by law or executive order to be closed (and on which Bank is in fact closed).

“Card(s)” means a valid credit card or debit card bearing the service mark of Visa, Mastercard, Discover, American Express, private-label credit card, ATM/debit card, pre-paid, stored-value or gift card, or any other card which Bank may at any time specify in writing as an additional Card payment option available to a Merchant.

“Cardholder” means a person authorized to use a Card.

“Chargeback” means a Transaction that Bank returns to Merchant pursuant to this Merchant Agreement.

“Forced Sale” means a sales Transaction processed without an approved electronic Authorization number being obtained for the full amount of the sales Transaction at the time the Transaction is processed.

“Full Recourse Transactions” means mail orders, telephone orders, e-commerce (Internet) orders, Pre-Authorized Recurring Order Transactions, and other “card not present” sales.

“ISO” has the definition that appears in the preamble hereof.

“Issuer” means a member of a Card Brand that enters into a contractual relationship with a Cardholder for the issuance of one or more Cards.

“Merchant” has the definition that appears in the preamble hereof.

“Merchant Application” means the forms completed and information provided by Merchant when applying for the services provided hereunder.

“Merchant Statement” means an itemized monthly statement of all charges and credits to the Operating Account (as that term is defined in Section 5 of this Merchant Agreement).

“Monthly Chargeback Violation,” for any given calendar month, means that more than five Chargebacks have been processed in that month and that the Transaction Chargeback Ratio for that month is equal to or greater than 1%.

“Mid-Qualified Transactions” means any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Card Brands.

“Non-Qualified Transactions” means: (i) any Transaction submitted for processing more than 48 hours past the time the Authorization occurred; (ii) any Transaction missing required data; and (iii) any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Card Brands.

“Normal Transaction” means a Transaction in which the Card is swiped through or dipped in a terminal, register or other device, capturing the Card information encoded on the Card’s magnetic strip.

“Pre-Authorized Recurring Order Transaction” means a Transaction that has been pre-authorized by the Cardholder and for which the goods or services are to be delivered or performed in the future by Merchant without having to obtain approval from the Cardholder each time.

“Qualified Transactions” means any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Card Brands.

“Rules” means all rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) adopted and/or amended from time to time by the Card Brands (including, without limitation, the Payment Card Industry Data Security Standard), Bank and each relevant Issuer.

“Servicer” means either Bank or ISO.

“Servicers” means Bank and ISO, collectively.

“Services” means the transaction processing services described on the attached Schedule A, as the same may be amended from time to time by Bank, in its sole discretion.

“Transaction” means the acceptance of a Card or information embossed on the Card for payment for goods sold and/or leased or services provided to Cardholders by Merchant and receipt of payment from Bank, whether the Transaction is approved, declined, or processed as a Forced Sale. The term “Transaction” also includes credits, errors, returns and adjustments.

“Transaction Chargeback Ratio,” for any given calendar month, means: (i) for VISA-related purposes, the number of Chargebacks processed in that calendar month divided by the total number of Transactions processed in that calendar month; and (ii) for Mastercard-related purposes, the number of Chargebacks processed in that calendar month divided by the total number of Transactions processed in the previous calendar month.

 

3. 3. Services Provided to Merchant. During the term of this Merchant Agreement, subject to the terms and conditions of this Merchant Agreement: (i) ISO shall use commercially reasonable efforts to provide technical documentation as needed, and technical support and customer support (including, without limitation, Authorization, settlement and Chargeback processing and reporting), twenty-four hours each day, seven days each week, in order to allow Merchant to accept and process Transactions; and (ii) Bank shall provide the Services to Merchant.

 

4. 4. Term. This Merchant Agreement shall become effective when all parties sign the Merchant Application form to which this Merchant Agreement is attached (or in connection with which this Merchant Agreement is provided) and, unless sooner terminated, shall remain in effect for a term of three (3) years (the “Initial Term”). This Merchant Agreement shall renew automatically for successive terms of three (3) years each (each a “Renewal Term”). The term of this Merchant Agreement shall be the Initial Term together with all Renewal Terms, if any. Any party can terminate this Merchant Agreement at the end of the then current term by providing written notice of termination to the other parties at least 90 days prior to the end of the then-current term. All existing obligations, warranties, indemnities and agreements with respect to Transactions entered into before such termination shall remain in full force and effect, and, regardless of any such termination, Merchant shall remain liable for all obligations to Cardholders, ISO, and Bank that are incurred while this Merchant Agreement is in effect. In the event that Merchant terminates this Merchant Agreement or causes Servicers to terminate this Merchant Agreement, Merchant shall be liable to pay to ISO an EARLY TERMINATION FEE. The EARLY TERMINATION FEE shall be $495 (the “EARLY TERMINATION FEE”). Merchant agrees that this EARLY TERMINATION FEE is not a penalty, but rather a reasonable estimation of the actual damages that would be suffered in the event of failure to receive the processing business for the then current term. Merchant agrees that the EARLY TERMINATION FEE shall also be due if Merchant discontinues submitting a material amount of Transactions for processing during the Initial Term or any Renewal Term of this Merchant Agreement. The amount of the EARLY TERMINATION FEE may be deducted from settlements payable to the Merchant under this Merchant Agreement. If, as a result of the location, size and nature of Merchant’s business operations and the manner under which this Merchant Agreement is terminated, this Merchant Agreement is subject to Subtitle 14-Credit Card Processors of the Commercial Law of Maryland, EARLY TERMINATION FEE will be the amount of $500.00.

 

5. Merchant Operating Account. Prior to accepting any Cards, Merchant shall establish a demand deposit account at Bank, or at a financial institution approved by Bank (the “Operating Account”), through which fees, charges and credits due to Merchant in accordance with this Merchant Agreement may be processed. Merchant authorizes Bank to debit all amounts Merchant owes Bank hereunder or any other agreement entered into between Merchant and Bank from the Operating Account, whether maintained at Bank or another financial institution, at times deemed appropriate by Bank, through the ACH Banking Network or by a manual debit of the Operating Account. Merchant waives any and all claims for loss or damage arising out of any such charges or debits to the Operating Account.

 

6. Reserve Account. Upon, or at any time after, execution of this Merchant Agreement, Bank may establish a reserve account at Bank (the “Reserve Account”) in such amount as Bank from time to time may determine in its sole discretion. Bank may fund the Reserve Account by deducting amounts from payments due to Merchant, by effecting a charge against Merchant’s Operating Account or against any of Merchant’s accounts at Bank, or by demanding payment from Merchant (which payment Merchant shall make within ten (10) days after receipt of any such demand). The Reserve Account will be maintained for a minimum of nine months after the date on which this Merchant Agreement terminates or until such time as Bank determines that the release of the funds to Merchant is prudent, in the best interest of Bank, and commercially reasonable, and that Merchant’s account with Bank under this Merchant Agreement and any other agreement entered into between Merchant and Bank is fully resolved. Merchant and ISO acknowledge and agree that only Bank, and not ISO, may authorize or effect any release of funds from the Reserve Account. Bank may withdraw funds from the Reserve Account at any time to offset any indebtedness of Merchant to Bank that may arise out of or relate to the obligations of Merchant under this Merchant Agreement (including, but not limited to, Chargebacks and fees) or to offset any other indebtedness of Merchant to Bank under any other agreement entered into between Merchant and Bank, or (in Bank’s discretion) to satisfy obligations and indebtedness owed by Merchant to ISO or third parties under this Merchant Agreement. Upon expiration of this post-termination holding period and the satisfaction of such indebtedness, any balance remaining in the Reserve Account will be paid to Merchant. Bank will inform Merchant in writing of any charges debited to the Reserve Account during this post-termination holding period. Notwithstanding the foregoing, Bank, in its discretion, may release funds from the Reserve Account prior to the expiration of such nine-month period based on its assessment of the risks associated with effecting such release.

 

7. Fees. Merchant shall pay to Bank all fees specified on Schedule A, as amended by Servicers from time to time. For each Transaction, Bank will charge Merchant as follows:

(a)  An amount (“Merchant Discount Fees”) equal to a specified percentage of the total cash price of each sales and cash withdrawal Transaction (“Merchant Discount Rate”);

(b)  A specified amount per Transaction (“Transaction Fee”); and

(c)  A specified amount per Authorization (“Authorization Fee”).

 

The Merchant Discount Rate, Authorization Fees and Transaction Fees are set forth on Schedule A.  Different Merchant Discount Rates may apply to Qualified, Mid-Qualified and Non-Qualified Transactions, as shown on Schedule A. Merchant agrees that Bank will, and authorizes Bank to, deduct Merchant Discount Fees from the Operating Account or Reserve Account on a daily basis unless a monthly basis is specified on Schedule A. Merchant also agrees to pay to Servicers the amount of any fees, charges or penalties assessed against either Servicer by any Card Brand or Issuer for Merchant’s violation of any Applicable Law. Merchant shall pay Bank for any other services provided to Merchant by Servicers and for all other fees shown on Schedule A, including, but not limited to, monthly minimum fees, Chargeback fees and customer service fees.

 

8. Billing. All amounts Merchant owes to Bank, for any reason, may be charged to the Operating Account or Reserve Account, recouped by adjustment to any credits due to Merchant, or set off against any account or property Bank holds for or on behalf of Merchant.

 

9. Security Interest. As security for the performance by Merchant of all of its obligations under this Merchant Agreement, Merchant hereby grants to Bank a security interest in: (i) the funds held in the Operating Account and in the Reserve Account; and (ii) any inventory with respect to which a Transaction has occurred but has not yet been fulfilled. Merchant will execute and deliver to Bank such documents, in form satisfactory to Bank, as Bank may reasonably request in order to perfect Bank’s security interest in the Operating Account, Reserve Account and such inventory, and will pay all costs and expenses associated with filing the same or this Merchant Agreement in all public filing offices, where filing is deemed by Bank to be necessary or desirable. Bank is authorized to file financing statements relating to the Operating Account, the Reserve Account and such inventory without ISO where authorized by law. Merchant appoints Bank as its attorney-in-fact to execute such documents as are necessary or desirable to accomplish perfection of any security interests. This appointment is coupled with an interest and shall be irrevocable as long as Merchant owes any amount to Bank.

 

10. Processing Transactions.

(a)  Merchant shall obtain Authorizations and process Transactions using such equipment and software as may be approved from time to time by Bank, in its sole discretion (the “Equipment”).  Merchant shall validate Cards and Cardholders in face-to-face transactions as required by Applicable Law.

(b)  Merchant shall obtain Authorizations for Transactions in a manner required by Applicable Law and in the manner, and following the processes and procedures, determined from time to time by Bank, in its sole discretion, and communicated to Merchant by either Bank or ISO.

(c)  Merchant shall submit, in the manner determined from time to time by Bank, such information to Bank or Bank’s designee in connection with Transaction processing as Bank from time to time may determine.

(d)  Merchant shall not submit a Transaction to Bank (electronically or otherwise) until Merchant has performed its obligations to the Cardholder in connection with the Transaction or obtained Cardholder’s consent for a Pre-Authorized Recurring Order Transaction.

(e)  Merchant shall not transmit any Transaction to Bank that is illegal or that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder.

(f)  Merchant shall not process a Transaction that does not result from an act between a Cardholder and Merchant.

(g)  Merchant shall not request or use any Card number for any purpose other than as payment for its goods or services.

(h)  Merchant may transmit a Transaction that effects a prepayment of services or full prepayment of custom-ordered merchandise, manufactured to a Cardholder’s specifications, if Merchant advises Cardholder of the immediate billing at the time of the Transaction and within time limits established by the Card Brands.

(i)  Merchant may request but must not require a Cardholder to provide additional identification information as a condition of Card acceptance, unless such information is required to complete the Transaction, such as for shipping purposes, or the Rules specifically permit or require such information to be collected.

 

11. Prohibited Transactions. Merchant shall not do any of the following:

(a)  Establish a minimum on debit cards or greater than $10.00 on credit cards or a maximum dollar Transaction amount;

(b)  Obtain multiple Authorizations for amounts less than the total sale amount;

(c)  Obtain Authorization for the purpose of setting aside the Cardholder’s credit line for use in future sales;

(d)  Extend credit for or defer the time of payment of the total cash price in any Transaction;

(e)  Honor a Card except in a Transaction where a total cash price is due and payable;

(f)  Make any special charge to or extract any special agreement or security from any Cardholder in connection with any Transaction;

(g)  Transmit or accept payment for any Transaction that was not originated directly between Merchant and a Cardholder for the sale or lease of goods or the performance of services of the type indicated in the Merchant Application form to which this Merchant Agreement is attached;

(h)  Honor or accept a Card as payment for any legal services or expenses arising out of or related to: (i) any domestic relations matter where such services or expenses are furnished to a person whose name is not embossed on a Card; or (ii) any bankruptcy, insolvency, compromise, composition or other process affecting Cardholder’s creditors;

(i)  Use Merchant’s own Card, or one to which Merchant has access, to process a Transaction for the purpose of obtaining credit for Merchant’s own benefit;

(j)  Re-process any Transaction that was previously charged back to Bank and subsequently returned to Merchant, irrespective of Cardholder approval;

(k)  Initiate a Transaction credit without a preceding debit at least equal to the credit;

(l)  Initiate a Transaction credit without a balance in the Operating Account at least equal to the credit;

(m)  Use the Equipment or any data received thereon for any other purpose other than for determining whether or not Merchant should accept checks or Cards in connection with a current sale or lease of goods or services;

(n)  Use the Equipment or any data received thereon for credit inquiry purposes or any other purpose not authorized by this Merchant Agreement;

(o)  Draw or convey any inference concerning a person’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living when any Card or check is processed as non-accepted;

(p)  Disclose any information obtained through the Equipment to any person except for necessary disclosures to affected Cardholders, Bank and/or the Issuer;

(q)  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;

(r)  Disburse funds in the form of cash;

(s)  Accept a Card to collect or refinance an existing debt (whether originally owed to Merchant or otherwise) that is considered uncollectible (for example, payments to a collection agency or attempts to recover funds for a dishonored check) except to the extent specifically permitted by Applicable Law;

(t)  Issue a Transaction credit in respect of goods or services acquired in a cash transaction which are returned;

(u)  Make any cash refund to a Cardholder who has made a purchase with a credit Card (all Transaction credits shall be issued to the same credit Card account number used in the sale);

(v)  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;

(w)  Accept a Card for the purchase of Scrip (as defined by applicable VISA regulations), except to the extent specifically permitted by Applicable Law;

(x)  Accept any payment directly from a Cardholder for previous Card charges incurred and processed by Merchant;

(y)  Require, through an increase in price or otherwise, any Cardholder to pay any surcharge in connection with any Transaction or to pay any part of any charge imposed on Merchant by Bank except, in either case, as expressly permitted by, and under terms and conditions that comply in full with, Applicable Law;

(z)  Provide cash to a Visa cardholder unless Merchant is either (i) participating in Visa Cash-Back Services or (ii) a hotel or cruise line;

(aa)  Cause any Cardholder to waive its right to dispute a Transaction;

(bb)   Request the Card Verification Value 2 data (as defined by Visa) on any paper order form;

(cc)  Request a Cardholder account number for any purpose that is not related to payment for goods or services; or

(dd)  Add any tax to Transactions, unless applicable law expressly requires that a merchant be permitted to impose a tax, and only if such tax is included in the Transaction amount and not collected separately.

 

12. Prohibition of Furnishing Account Information; Use of Third Parties. Merchant shall not, without the Cardholder’s consent, sell, purchase, provide or exchange any Card information in the form of Transaction documents, carbon copies of imprinted Transaction documents, mailing lists, tapes, journal rolls or other media obtained through the use of a Card to any third party. Merchant may use third parties that do not have a direct agreement with Bank as Merchant’s agent for the direct delivery of Transactions for clearing and settlement if:

(a)  Merchant advises Bank that it will use a third-party processor in this capacity, identifying the third party so selected by Merchant;

(b)  Merchant agrees that Bank will reimburse Merchant only for the Visa Transactions delivered by that third-party processor to VisaNet; and

(c)  Merchant assumes responsibility for any failure by its third-party processor to comply with Applicable Law.

Merchant shall notify Bank of the identity of any third party performing services to Merchant in connection with which such third party has access to any Card information.

 

13. Daily Reconciliation of Transactions.

(a)  Electronically Transmitted Transactions. Bank shall control and disburse all Transaction-related settlement funds to Merchant. Transactions with respect to which Bank receives payment from or through the Card Brands will be settled on a daily basis, and, except as otherwise expressly provided or permitted pursuant to the terms of this Merchant Agreement, Bank shall deliver payment to Merchant in connection with such Transactions by effecting a credit to the Operating Account equal to the reconciled and paid summary Transaction total of all of Merchant’s total paid summary Transactions since the previous credit.  Notwithstanding the foregoing, Bank may, in its sole discretion, effect a credit to the Operating Account in connection with any Transaction prior to the point in time Bank receives payment in connection therewith from or through the Card Brands.  In either case, Bank may, if necessary or appropriate, reduce any credit made to the Operating Account by, and/or Bank may require that Merchant pay to Bank an amount equal to: (i) the sum of all Cardholder charges denied, refused or charged back; (ii) all refunds processed on account of Cardholders during said time period; (iii) the amounts, fees and charges, including (but not limited to) Chargebacks, Merchant owes Bank hereunder or under any other agreement entered into between Bank and Merchant; (iv) all taxes, penalties, charges, fees and other items incurred by Bank that are reimbursable pursuant to this Merchant Agreement; (v) all applicable rates, fees and charges described on Schedule A; (vi) any amount Bank previously credited to the Operating Account that Bank determines, in good faith, was incorrectly so credited; (vii) any amount Bank determines, in its sole discretion, represents unacceptable risk to the relevant Cardholder or Bank; and (viii) any liabilities of Merchant to ISO relating to Transactions processed pursuant to the terms of this Merchant Agreement. Any application of funds associated with the settlement of Transactions that differs from the foregoing must be agreed to, in writing, by Bank and Merchant and may not, in any respect, violate Applicable Law.

(b)  Reconciliation of Transactions. Merchant shall reconcile each settled Transaction within fifteen (15) days after the date on which such Transaction is submitted to Bank for payment, and shall notify Bank and ISO immediately of any discrepancies or errors Merchant notes as a result of such reconciliation. Neither Bank nor ISO shall have any responsibility or liability for Transaction-related errors or omissions that are brought to their attention more than thirty (30) days after the date on which the Transaction to which such error or omission relates is first presented to Bank for settlement.

(c)  Provisional Credit. Any credits to the Operating Account are provisional only and subject to revocation by Bank until such time that the Transaction is final and no longer subject to Chargeback by the Issuer, Cardholder or Card Brands. Bank may withhold payment for a Transaction to Merchant, for any reason, until such time as the Transaction has been verified as legitimate by the relevant Issuer, or Servicers receive adequate supporting documentation from Merchant to authenticate the Transaction and mitigate Chargeback risk.

 

14. Adjustments and Returns. Merchant will maintain a fair customer complaint, exchange and return policy and make adjustments with respect to goods and services sold and/or leased to its customers whenever appropriate. If Merchant limits its acceptance of returned merchandise, or if Merchant is an Electronic Commerce Merchant, Merchant will ensure that its return policy is clearly set forth on the Transaction receipt or on Merchant’s website, as required by Applicable Law.  If goods are returned, or services are terminated or canceled, or any price is adjusted, Merchant will prepare and transmit a credit or return Transaction, either electronically or by paper, for the amount of the adjustment as a deduction from the total amount of Transactions transmitted that day. If the amount of credit or return Transactions exceeds the amount of sales Transactions, Merchant shall pay the excess to Bank. Merchant shall make no cash refunds on credit Transactions and shall handle all credit adjustments as provided in this Section 14. If no refund or return will be given, Merchant must advise Cardholder in writing, at the time of the Transaction, that the sale is a “final sale” and “no returns” are permitted. Merchant must advise Cardholder in writing of any policy of Merchant that provides for no-cash refunds and in-store credit only. Merchant shall follow Card Brand reservation/no-show policies, and shall notify Cardholders in writing of this policy on all advance reservations. Merchant also shall notify Cardholders at the time of the reservation of the exact number of days required for reservation deposit refunds.

 

15. Chargebacks. The acceptance by Bank of any Transaction processed in accordance with the terms of this Merchant Agreement shall be without recourse to Merchant, except for:

(i) Full Recourse Transactions; (ii) as otherwise indicated in this Merchant Agreement; and (iii) under any of the following circumstances:

(a)  No specific prior Authorization for the Transaction was obtained from the Authorization Center, the approval number does not appear in the electronic transmittal that is maintained by Bank, or the Transaction was submitted to the Bank or ISO thirty (30) days or more after the date on which the goods and/or services to which the Transaction relates were purchased or leased by the relevant Cardholder;

(b)  The Transaction was based on a pre-authorization form, the Card on which the Authorization was based was canceled and Merchant was so notified prior to the Transaction;

(c)  The Card giving rise to the Transaction was canceled and prior to, or at the time of, the Transaction, and Merchant received notice of the cancellation through the electronic terminal, in writing or otherwise;

(d)  The Card expired prior to the date of the Transaction or the date of the Transaction was prior to the validation date, if any, indicated on the Card;

(e)  The Transaction information required by this Merchant Agreement was not submitted to Bank, or the procedures required by this Merchant Agreement to be followed in connection with processing a Transaction were not followed;

(f)  Bank or Issuer receives a complaint from or on behalf of a Cardholder stating that there is an unresolved dispute or defense to a charge (whether or not valid) between Merchant and Cardholder;

(g)  The Cardholder makes a written complaint to Bank or Issuer that the Cardholder did not make or authorize the Transaction;

(h)  A setoff or counterclaim of any kind exists in favor of any Cardholder against Merchant that may be asserted in defense of an action to enforce payment against the Cardholder in the Transaction;

(i)  The Transaction was made at or by a merchant other than Merchant;

(j)  The Transaction otherwise violates the terms of this Merchant Agreement or any Applicable Law;

(k)  A Transaction is charged back by an Issuer; or

(l)  Any representation or warranty made by Merchant in connection with the Transaction is false or inaccurate in any respect.

 

In any such case, Bank shall not be obligated to accept a Transaction for credit to the Operating Account. If Bank has credited the Operating Account or Reserve Account for such a Transaction, Bank may return the Transaction to the Merchant, and Merchant shall pay Bank the amount of the Transaction. Merchant agrees that it is solely responsible for all Chargebacks, and that Bank, without prior notice to Merchant, may: (i) charge the amount of the Transaction to the Operating Account or Reserve Account; (ii) recoup the amount of the Transaction by adjustment of the credits due to Merchant; and/or (iii) set off the amount of the Transaction against any account or property Bank holds for or on behalf of Merchant. If Merchant disagrees with Bank’s decision to charge back a Transaction, Merchant must so notify Bank in writing within 10 days of the Chargeback, and provide documentation that the dispute has been resolved to Cardholder’s satisfaction or proof that a credit has been issued.  Without limiting the generality of any other provision of this Merchant Agreement, if Bank or ISO, if ISO has indemnified Bank, takes legal action against Merchant for any Chargebacks or any amounts due Bank or ISO hereunder, Merchant shall pay the costs and attorneys’ fees incurred by Bank and/or ISO, whether suit is commenced or not.

 

In addition to any other remedy available to Bank, upon the occurrence of a Monthly Chargeback Violation, Merchant must pay to Bank a fee that is calculated as follows (where X in the table below is the Transaction Chargeback Ratio for the relevant calendar month and Y is the number of Chargebacks processed during the relevant calendar month):

 

Y	1.0% ≤X≤ 1.5%	1.5%<X≤ 2%	2% <X≤ 2.25%	2.25%<X≤ 2.5%	2.5%<X≤ 3%	3-<X≤ 3.5%	3.5%<X≤ 5%	5% <X≤ 7.5%	7.5%<X
5 – 25	$0	$10	$10	$15	$15	$20	$25	$40	$50
26 – 50	$10	$10	$15	$15	$20	$20	$25	$40	$50
51 – 75	$15	$20	$20	$20	$25	$25	$30	$50	$50
76 – 100	$15	$20	$20	$25	$25	$30	$35	$50	$50
101 – 125	$20	$20	$25	$25	$30	$35	$35	$60	$60
126 – 150	$20	$25	$25	$30	$35	$35	$40	$75	$75
151 – 175	$25	$30	$30	$35	$35	$40	$40	$75	$100
175 +	$25	$30	$35	$35	$40	$40	$50	$100	$100

 

16. Merchant Statement. At least once each month, Bank shall provide a statement (the “Merchant Statement”) to Merchant. All information appearing on the Merchant Statement shall be deemed accurate and affirmed by Merchant unless Merchant objects by written notice specifying the particular item in dispute within 30 days of the date of the Merchant Statement.

 

17. Retention of Information. Merchant shall retain the information required to be submitted in connection with a Transaction or to be maintained in connection with a complaint for seven years from the date of the Transaction or the complaint. At the request of Bank, Merchant shall provide such information to Bank or ISO, as directed by Bank or ISO, within five (5) days of receipt of a request from Bank. Failure to meet such time frame or non-delivery of any item or delivery of an illegible copy of an item requested by an Issuer shall, among other things, constitute a waiver by Merchant of any claims and may result in an irrevocable Chargeback for the full amount of the Transaction.

 

18. Recovery of Cards. Merchant will use its best efforts to reasonably and peaceably recover and retain any Card with respect to which Merchant receives notification of cancellation, restrictions, theft or counterfeiting. This notice may be given: (i) electronically through the Equipment; (ii) by the Authorization Center through any means; or (iii) by listing on any canceled Card or restricted Card list. Merchant shall also take reasonable steps to recover a Card that it has reasonable grounds to believe is counterfeit, fraudulent or stolen.

 

19. Customer Complaints. Merchant shall respond promptly to inquiries from Cardholders and shall attempt to resolve any disputes amicably. If unresolved disputes occur with a frequency unacceptable to Bank, Bank may terminate this Merchant Agreement. Bank reserves the right to charge Merchant reasonable fees and reimbursement on account of excessive Cardholder inquiries, refunds or Chargebacks. Merchant agrees to maintain the following information in writing with respect to each claim or defense asserted by a Cardholder for which Merchant has received notice:

(a)  The Cardholder’s name;

(b)  The Card account number;

(c)  The date and time the Cardholder asserted the claim or defense;

(d)  The nature of the claim or defense; and

(e)  The action that Merchant took in an attempt to resolve the dispute.

 

Upon request, Merchant shall furnish Bank with this information in writing within 10 days.

 

20. Confidentiality. Merchant shall treat all information received in connection with this Merchant Agreement as confidential. Merchant shall prevent the disclosure of this information except for necessary disclosures to affected Cardholders, to Bank, to ISO and to Issuers.

 

21. Compliance with Applicable Law.
22. General. Merchant represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses, and that it is in compliance with all Applicable Law, in connection with the operation of its business.  Merchant represents and warrants that it understands the importance of complying with Applicable Law in connection with any and all actions it takes in connection with Transactions (including, without limitation, complying with requirements relating to Transaction information, storage and disclosure), and covenants at all times to comply in full with all Applicable Law, including, without limitation, all Rules relating to: (i) the use by Merchant of Card Brand-owned trademarks, logos, trade names and designations (collectively, “Card Brand Marks”); (ii) acceptance of Cards (which, in any event, must be limited to Bank’s area of use and must be in accordance with a policy adopted by Merchant to not discriminate among customers seeking to make purchases with a Card); (iii) risk management; (iv) transaction processing; and (iv) products, programs or services in which Merchant is required or elects to participate.  Merchant further acknowledges and agrees that it is responsible for the actions of all of its employees while in Merchant’s employ.  For the sake of clarity, and without otherwise limiting any other provision of this Merchant Agreement: (i) Merchant will terminate its use of all Card Brand Marks immediately upon termination of this Merchant Agreement, and will terminate its use of any relevant Card Brand Marks immediately upon the request of Bank or the relevant Card Brand; and (ii) Merchant acknowledges and agrees that it must not sell, purchase, provide, exchange or in any manner disclose Cardholder account or Transaction data, or personal information of or about a Cardholder to anyone other than Bank, the Card Brands, or in response to a valid government demand.

 

1. Data Security Rules. Without limiting the generality of the foregoing or any other provision of this Merchant Agreement, Merchant understands that it and all of its employees, agents, representatives and service providers must comply with the Rules, including without limitation, those relating to Cardholder information security issues, non-disclosure of Cardholder information and Transaction documents, retention and storage of Cardholder and Transaction information and other security procedures adopted by the Card Brands.  Merchant hereby confirms its agreement to abide by and fully comply with (and cause its employees, agents, representatives and service providers to abide by and fully comply with) such Rules, and, when requested, demonstrate compliance with such Rules, including, without limitation, the Rules and procedures described below:

 

10. Visa Cardholder Information Security Program and Mastercard Site Data Protection Program. Visa and Mastercard have implemented programs to protect Cardholder data. The Visa Cardholder Information Security Program (“CISP”) and Mastercard Site Data Protection Program (“SDP”) apply to Merchant if Merchant processes or stores Cardholder data as a result of Internet or mail/telephone acceptance of Visa or Mastercard Card account information. A copy of the complete Visa Cardholder Information Security Standards manual and a Self-Assessment Worksheet can be obtained online at www.visa.com/cisp or from Bank, and a copy of the SDP provisions can be obtained from Bank.  Visa and Mastercard may impose restrictions, fines, or prohibit Merchant from participating in Visa or Mastercard programs if it is determined that Merchant is non-compliant.  Merchant may be required to comply with an audit to verify compliance with security procedures.  The following list describes some of the current CISP and SDP program requirements, with all of which Merchant may be required to comply, if applicable to Merchant.  (A) install and maintain a working network firewall to protect data accessible via the Internet; (B) keep security patches up-to-date; (C) encrypt stored data; (D) encrypt data sent across networks; (E) use and regularly update anti-virus software; (F) restrict access to data by business “need to know”; (G) assign a unique ID to each person with computer access to data; (H) don’t use vendor-supplied defaults for system passwords and other security parameters; (I) track access to data by unique ID; (J) maintain a policy that addresses information security for employees and contractors; and (K) restrict physical access to Cardholder information.  Merchant must also comply with the requirements of Section 10.3 of the Visa Rules in connection with suspected or confirmed losses, thefts, compromises of information, and fraud or laundering associated with information. Please also note that this is not intended to be a complete list, and Merchant remains solely responsible for understanding and complying in full with all of the applicable CISP and SDP requirements.

 

1. Transaction Information. Merchant acknowledges that the sale or disclosure of databases containing Cardholder account numbers, personal information, or other Transaction information to third parties is strictly prohibited by the Rules.  Unless Merchant obtains consents from Servicers, and each applicable Card Brand, issuing bank and Cardholder, Merchant must not use, disclose, sell or disseminate any Cardholder information obtained in connection with a Transaction (including without limitation, the names, addresses and Card account numbers of Cardholders, copies of imprinted sales drafts and/or credit records, mailing lists, tapes or other media obtained in connection with a sales draft and/or credit record) except for purposes of authorizing, completing and settling Transactions and resolving any Chargebacks, retrieval requests or similar issues involving Transactions, other than pursuant to a court or governmental agency request, subpoena or order.  Merchant shall use proper controls for, limit access to, and render unreadable prior to discarding all records containing Cardholder account numbers and Card imprints.

 

Merchant may not retain or store magnetic stripe data after a Transaction has been authorized. If Merchant stores any electronically captured signature of a Cardholder, Merchant may not reproduce such signature except upon the specific request of Bank.  Merchant shall store all media containing Cardholder names, Cardholder account information, and other personal information, as well as Card imprints (such as sales drafts and credit records, auto rental agreements, and carbons) in an area limited to selected personnel and, prior to discarding any such information, destroy it in a manner that renders the data unreadable.  Merchant further warrants and agrees that in the event of its failure, including bankruptcy, insolvency, or other suspension of business operations, it will not sell, transfer or disclose any materials that contain Cardholder account numbers, personal information, or Transaction information to third parties, and shall return the information to Bank and provide acceptable proof of destruction to Bank.

 

22. Taxes. Each party hereto shall report its income and pay its own taxes to any applicable jurisdiction. If either Bank or ISO is required to pay any taxes, interests, fines or penalties owed by Merchant, said amount shall become immediately due and payable by Merchant to Bank or ISO. If excise, sale or use taxes are imposed on Transactions, Merchant shall be responsible for the collection and payment thereof. Merchant shall not add any tax to any Transaction unless Applicable Law expressly provides that Merchant is permitted to impose a tax, and any such tax amount, if so allowed, shall be included in the Transaction amount and not collected separately.  Bank or ISO shall be entitled to recover from Merchant any of said taxes paid by it on behalf of Merchant immediately after payment.

 

23. Limitation of Liability. In addition to all other limitations on the liability of Bank and ISO contained in this Merchant Agreement, neither Bank nor ISO shall be liable to Merchant or Merchant’s customers or any other person for any of the following:

(a)  Any loss or liability resulting from the denial of credit to any person or Merchant’s retention of any Card or any attempt to do so;

(b)  Any loss caused by a Transaction downgrade resulting from defective or faulty Equipment, even if such Equipment is owned by Bank or ISO;

(c)  The unavailability of Services caused by the termination of contracts with computer hardware vendors, processors or installers, whether terminated by Bank, ISO or any other person for any reason; or

(d)  Interruption or termination of any Services caused by any reason except for failure of ISO to repair or replace Equipment at Merchant’s expense (in which case, any resulting liability shall be for the sole account of ISO). At no time will ISO’s liability exceed the amount of fees collected or reasonably expected to be collected from Merchant for this delay period.

 

NEITHER BANK NOR ISO SHALL BE LIABLE FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THIS MERCHANT AGREEMENT OR ANY OF THE SERVICES TO BE PERFORMED BY BANK OR ISO PURSUANT TO THIS MERCHANT AGREEMENT.  MERCHANT ACKNOWLEDGES THAT NEITHER BANK NOR ISO HAVE PROVIDED ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY EQUIPMENT OR SERVICES AND THAT NEITHER BANK NOR ISO HAVE ANY LIABILITY WITH RESPECT TO ANY EQUIPMENT. NEITHER BANK NOR ISO MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES THEY EACH PROVIDE HEREUNDER. IF THERE ARE ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS RESULTING FROM BANK’S OR ISO’S PERFORMANCE OR ANY FAILURE TO PERFORM, BANK’S AND ISO’S LIABILITY SHALL BE LIMITED TO CORRECTING SUCH ERRORS, IF COMMERCIALLY REASONABLE. WITH THE EXCEPTION OF THE OBLIGATION OF BANK TO SETTLE THE FACE VALUE OF VALID TRANSACTIONS TO MERCHANT, SUBJECT TO THE TERMS HEREOF, THE AGGREGATE MAXIMUM LIABILITY OF EITHER BANK OR ISO (COLLECTIVELY OR INDIVIDUALLY) UNDER THIS MERCHANT AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY MERCHANT FOR THE SERVICES PROCURED HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

 

MERCHANT SHALL NOT MAKE ANY CLAIM AGAINST BANK OR ISO ON ACCOUNT OF THE TERMINATION OF THIS MERCHANT AGREEMENT BY EITHER OF THEM OR EITHER OF THEIR CEASING TO PROCESS TRANSACTIONS HEREUNDER OR SUSPEND PROCESSING HEREUNDER.

 

24. Intentionally Omitted.

 

25. Indemnification. Merchant agrees to indemnify and hold Bank and ISO harmless from any and all losses, claims, damages, liabilities and expenses, including attorneys’ fees and costs (whether or not an attorney is an employee of Bank or Bank’s Affiliates, ISO or Affiliates of ISO) arising out of any of the following:

(a)  Merchant’s failure to comply with this Merchant Agreement and/or termination of this Merchant Agreement as a result of any breach by Merchant;

(b)  Any act or omission of Merchant or its Affiliates;

(c)  Merchant’s failure to comply with any Equipment’s user’s guide;

(d)  Merchant’s failure to comply with any Applicable Law;

(e)  Any dispute concerning the quality, condition or delivery of any merchandise or the quality of performance of any service;

(f)  The fraud or dishonesty of Merchant or Merchant’s employees, licensees, successors, agents and/or assigns;

(g)  Merchant’s selection of an Internet service provider or other telecommunication services provider;

(h)  The theft of or damage or destruction to any Equipment; or

(i)  Full Recourse Transactions, unauthorized Transactions and prohibited Transactions; or

(j) All internal and third party (e.g. collection agency, attorney) fees associated with ISO or Bank collecting any amounts owing to either of them hereunder.

 

Without prejudice to the rights of Bank, but only with Bank’s express prior written consent in

each instance, ISO may enforce any of the rights of Bank under this Merchant Agreement.

 

26. Credit Investigation and Bank Auditing. Bank may audit, from time to time, Merchant’s compliance with the terms of this Merchant Agreement. Merchant shall provide all information requested by Bank to complete Bank’s audit. Merchant authorizes parties contacted by Bank to release the credit information requested by Bank, and Merchant agrees to provide a separate authorization for release of credit information, if requested by Bank. Merchant shall deliver to Bank such information as Bank may reasonably request from time to time, including without limitation, financial statements and information pertaining to Merchant’s financial condition. Such information shall be true, complete and accurate. Without limiting the generality of the foregoing, Merchant shall provide to Bank and ISO its balance sheet and income statements not less frequently than every three calendar months during the term of this Merchant Agreement.

 

27. Termination of Merchant Agreement by Bank and ISO. Bank or ISO may terminate this Merchant Agreement upon at least 30 days’ prior written notice to the other parties. In addition, Bank or ISO may terminate this Merchant Agreement immediately upon written notice to Merchant upon the occurrence of any of the following (each, an “Event of Default”):

(a)  Any information concerning Merchant obtained by Bank is unsatisfactory to Bank, in Bank’s sole discretion.

(b)  Any act of fraud or dishonesty is committed by Merchant, its employees or agents, or Bank believes in good faith that Merchant, its employees or agents have committed, are committing or are planning to commit any acts of fraud or misrepresentation.

(c)  Chargebacks are excessive, in the opinion of Bank or ISO.

(d)  There is a breach of any representation or warranty made by Merchant hereunder, or Merchant defaults in the performance of any of its obligations under this Merchant Agreement.

(e)  A petition under any bankruptcy or insolvency law is filed by or against Merchant or one of its Affiliates.

(f)  Bank or ISO determines that the continuation of this Merchant Agreement may create harm or the loss of goodwill to Bank, ISO, or any Card Brand.

(g)  Merchant fails to maintain sufficient funds in the Operating Account to cover the amounts due to Bank hereunder.

(h)  Merchant’s percentage of error Transactions or retrieval requests is excessive in the opinion of Bank or ISO.

(i)  Any insurance policy obtained by Bank, ISO or Merchant relating to Transactions and/or Chargebacks is cancelled or terminated for any reason.

(j)  Merchant fails to provide financial statements suitable to Bank and ISO on request.

(k) Bank determines that ISO does not or cannot perform its duties under this Merchant Agreement and Bank determines that it is not feasible to provide the Services contemplated by this Merchant Agreement to Merchant. Bank is not obligated to provide replacement Services if ISO does not or cannot perform. (As between Bank and ISO, this provision shall not be exercised by Bank other than pursuant to the notice, breach and cure provisions of the sponsorship agreement between them);

(l)  Any Card Brand recommends or demands that this Merchant Agreement be terminated; or

(m) The Application contains any incorrect, incomplete or misleading information concerning the Merchant, its Affiliates or guarantors.

 

Bank or ISO may, in their sole discretion, selectively terminate one or more of Merchant’s approved locations without terminating this entire Merchant Agreement.

 

In the event of termination, all obligations of Merchant incurred or existing under this Merchant Agreement prior to termination shall survive the termination. Merchant’s obligations with respect to any Transaction shall be deemed incurred and existing on the date of such Transaction.

 

In the event Bank terminates this Merchant Agreement following any Event of Default, Merchant: (i) agrees that Bank may place Merchant on each Card Brand’s “Terminated Merchant File” (or any other list or file serving a similar purpose); and (ii) agrees to indemnify and hold Bank and ISO harmless from and against any and all costs, expenses and liabilities incurred by Bank and/or ISO in connection with or arising out of such Event of Default.

 

Following any bankruptcy filing against or by Merchant, Bank reserves the right to suspend or discontinue the provision of Services.  Merchant must notify Bank in writing no later than five (5) days following any bankruptcy filing by or against Merchant.

 

Credits to the Operating Account and other payments to Merchant are provisional.

 

The parties acknowledge and agree that Bank is extending financial accommodations to Merchant within the meaning of 11 U.S.C.365 (c) (2) of the Bankruptcy Code as amended from time to time. The right of Merchant to receive any amounts due or to become due from Bank is expressly subject and subordinate to the Chargebacks, recoupment, setoff, lien, and/or security interest rights that are being applied to claims that are liquidated, unliquidated, fixed contingent, matured or unmatured.

 

28. Termination of Merchant Agreement by Merchant. Merchant may terminate this Merchant Agreement upon at least 30 days’ prior written notice to the other parties if Bank or ISO amends Schedule A pursuant to Section 31 to increase the rates, fees or charges Merchant pays hereunder, except for fees or rates that result from a pass through from a Card Brand. In the event that a Merchant terminates this Merchant Agreement due to fee or rate increases (other than pass-through increases), Merchant is not required to pay the EARLY TERMINATION FEE.

 

29. Setoff. In addition to any other legal or equitable remedy available to it in accordance with this Merchant Agreement or by law, Bank and ISO may set off any amounts due to it against any property of Merchant in its possession or under its control.

 

30. Exclusivity. Merchant shall submit all Transactions made during the term hereof solely to Bank for processing. If Merchant fails to comply with this provision, Merchant agrees to pay Bank, within 10 days of the date of non-compliance, a liquidated damages sum to be determined by computing the projected gross dollar volume of Transactions processed by Bank on behalf of the Merchant for the remainder of the term hereof and multiplying that number by 1%. Merchant and Bank agree that the damages suffered by Bank as a result of such non-compliance would be extremely difficult to calculate with precision. For that reason, the parties hereto agree that the liquidated damages should be computed as set forth above. Any exceptions to this exclusive arrangement must be approved by Bank and ISO in advance in writing. Merchant shall not create a new Affiliate for the purpose of circumventing this provision, as reasonably determined by ISO or Bank.

 

31. Amendments to this Merchant Agreement. From time to time Bank or ISO may amend this Merchant Agreement as follows:

(a)  Bank or ISO may amend or delete Cards or Services listed in Schedule A by notifying Merchant in writing of any such amendment. All provisions of this Merchant Agreement shall apply to Cards or Services added to this Merchant Agreement. Bank shall notify Merchant of the fees to be charged for processing the additional Cards and Services. Acceptance by Merchant of a new approved Card as payment for a Transaction or use of a new Service after Bank has sent Merchant notice of an amendment shall constitute Merchant’s agreement to the amendment and the fees or charges related to these additions.

(b)  From time to time, Bank or ISO may change all rates, fees and charges set forth on Schedule A. Bank or ISO will provide written notice to Merchant of all such amendments. Bank or ISO may change the rates, fees and charges without prior written notice if Merchant’s sales volume or average Transaction amount does not meet Merchant’s projections contained in the Merchant Application form to which this Merchant Agreement is attached or if the risk factors associated with processing Transactions increase. If notice is required, Bank or ISO will give written notice on the Merchant Statement. All new rates, fees and charges will become effective for the month immediately following the month in which the notice appeared on the Merchant Statement unless Merchant terminates this Merchant Agreement in accordance with Section 28.

(c)  Bank or ISO may amend this Merchant Agreement in any manner other than as described in Section 31(a) or 31(b) above simply by providing written notice of such amendment to Merchant, and such amendment shall become effective on the latter of: (i) the date on which such written notice is received by Merchant; or (ii) a date specified by Bank or ISO in such written notice.

 

32. Assignment. This Merchant Agreement may not be assigned by Merchant or ISO without the prior written consent of Bank. Bank may assign this Merchant Agreement without limitation. Subject and pursuant to the sponsorship agreement between Bank and ISO, ISO may assign this Merchant Agreement and cause Bank to assign this Merchant Agreement. Assignment of this Merchant Agreement by Bank or ISO shall relieve the assignor of any further obligations under this Merchant Agreement.

 

33. Financial Accommodations. Bank, ISO and Merchant intend this Merchant Agreement to be construed as a contract to extend financial accommodations for the benefit of Merchant.

 

34. 34. Waiver. To the extent that Merchant becomes a debtor under any chapter of title 11 of the United States Code and such event does not result in the termination of this Merchant Agreement, Merchant hereby unconditionally and absolutely waives any right or ability that Merchant may otherwise have had to oppose, defend against or otherwise challenge any motion filed by Bank for relief from the automatic stay of 11 U.S.C. § 362(a) to enforce any of Bank’s rights or claims under this Merchant Agreement.

 

35. 35. Cooperation. In their dealings with one another, each party agrees to act reasonably and in good faith and to fully cooperate with each other in order to facilitate and accomplish the transactions contemplated hereby. Merchant covenants and agrees that, if it is undergoing forensic investigation at the time this Merchant Agreement is signed, Merchant will fully cooperate with the investigation until it is completed.

 

36. 36. Entire Agreement. This Merchant Agreement, together with the Schedules attached hereto, supersedes any other agreement, whether written or oral, that may have been made or entered into by any party (or by any officer or officers of any party) relating to the matters covered herein and constitutes the entire agreement of the parties hereto. The parties agree that this Merchant Agreement may be completed in electronic or paper form, at the discretion of Servicers.

 

37. Severability. If any provisions of this Merchant Agreement shall be held, or deemed to be, or shall in fact be, inoperative or unenforceable as applied in any particular situation, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections herein contained shall not affect the remaining portions of this Merchant Agreement or any part hereof.

 

38. 38. Notices. Except for notices provided by Bank to Merchant on the Merchant Statement, all notices, requests, demands or other instruments which may or are required to be given by any party hereunder shall be in writing and each shall be deemed to have been properly given when: (i) served personally on an officer of the party to whom such notice is to be given, (ii) upon expiration of a period of three (3) business days from and after the date of mailing thereof when mailed postage prepaid by registered or certified mail, requesting return receipt, or (iii) upon delivery by a nationally recognized overnight delivery service, addressed as follows:

 

If to BANK: 100 Jericho Quadrangle, Suite 100, Jericho, New York 11753

 

If to ISO: Merchant Lynx Services, 348 Hiatt Drive, Palm Beach Gardens, FL 33418, with a copy (which shall not solely constitute notice) to Ben Katz, 1600 Division Street, Ste. 700, Nashville, TN  37203

 

If to MERCHANT: Address listed on the application to which this Merchant Agreement is attached.

 

Any party may change the address to which subsequent notices are to be sent by notice to the others given as aforesaid.

 

39. BINDING ARBITRATION.
40. Merchant, ISO or Bank may elect to resolve any dispute hereunder (each, a “Claim”) by individual, binding arbitration. If arbitration is chosen by any party, no party will have the right to litigate that Claim in court or have a jury trial on that Claim. Further, no party will have the right to participate in a representative capacity or as a member of any class pertaining or be a named party to a class-action with respect to any Claim for which any party elects arbitration. Except as set forth below, the arbitrator’s decision will be final and binding. Other rights a party would have in court may also not be available in arbitration.

 

1. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Merchant Agreement and the selected organization’s rules in effect when the Claim is filed, except where those rules conflict with this Merchant Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, or to an arbitrator appointed pursuant to Section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing shall take place in New York, New York unless all parties agree to an alternate venue.

 

1. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other merchants or other persons or entities similarly situated. The arbitrator’s authority is limited to Claims between Merchant and ISO or Bank, or both of them. Claims may not be joined or consolidated unless all parties to this agreement agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case brought and cannot be used in any other case except to enforce the award as between Merchant and ISO or Bank, or both of them. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against ISO or Bank, or both of them. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these arbitration clauses are deemed invalid or unenforceable, then the entire arbitration provision (other than this sentence) will not apply.

 

1. Any party may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Any party may choose to delay enforcing or to not exercise rights under this arbitration provision, including the right to elect to arbitrate a Claim, without waiving the right to exercise or enforce those rights on any other occasion.

 

1. The arbitrator shall have the power and authority to award any relief that would have been available in court, including 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 Merchant Agreement or any of its separate provisions, including this section, nor to determine any matter or make any award except as provided in this section.

 

1. Any party may seek equitable relief in aid of 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 reasonable attorneys’ fees and costs, including legal fees, to be paid by the party against whom enforcement is ordered.

 

1. ISO or Bank shall not elect to use arbitration under this section for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.

 

1. This arbitration section is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and shall honor claims of privilege recognized by law. 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, provided that any party may request that the arbitrator to expand the scope of discovery by doing so in writing and copying any other parties, who shall have fifteen (15) days to make objections, and the arbitrator shall notify the parties of his/her decision within twenty (20) days of any objecting party’s submission. If a Claim is for $10,000 or less, any party may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the rules of the selected arbitration organization. At the timely request of a party, the arbitrator shall provide a written and reasoned opinion explaining his/her award. The arbitrator’s decision shall be final and binding, except for any rights of appeal provided by the FAA. If a Claim is for $100,000 or more, or includes a request for injunctive relief, (a) any party to this Merchant Agreement shall be entitled to reasonable document and deposition discovery, including (x) reasonable discovery of electronically stored information, as approved by the arbitrator, who shall consider, inter alia, whether the discovery sought from one party is proportional to the discovery received by another party, and (y) no less than five depositions per party; and (b) within sixty (60) days of the initial award, either party can file a notice of appeal to a three-arbitrator panel administered by the selected arbitration organization, which shall reconsider de novo any aspect requested of that award and whose decision shall be final and binding. If more than sixty (60) days after the written arbitration decision is issued the losing party fails to satisfy or comply with an award or file a notice of appeal, if applicable, the prevailing party shall have the right to seek judicial confirmation of the award in any state or federal court where Merchant’s headquarters or Merchant’s assets are located.

 

40. Captions. Captions in this Merchant Agreement are for convenience of reference only and are not to be considered as defining or limiting in any way the scope or intent of the provisions of this Merchant Agreement.

 

41. No Waiver. Any delay, waiver or omission by Bank to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of this Merchant Agreement shall not be construed to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the other party. All remedies afforded by this Merchant Agreement for a breach hereof shall be cumulative.

 

42. Force Majeure. The parties shall be excused from performing any of their respective obligations under this Merchant Agreement which are prevented or delayed by any occurrence not within their respective control including but not limited to strikes or other labor matters, destruction of or damage to any building, natural disasters, accidents, riots or any regulation, rule, law, ordinance or order of any federal, state or local government authority.

 

43. Bank/ISO Relationship. For purposes of this Merchant Agreement and performance of this Merchant Agreement by ISO, Merchant acknowledges that: (i) ISO is the exclusive agent of Bank; (ii) Bank is entirely responsible for, and in control of, ISO’s performance; and (iii) Bank must approve, in advance, any fee payable to or in connection with any obligation of Merchant arising from or related to performance of this Merchant Agreement.

 

44. Limited Acceptance. Visa Rules allow Merchant to become a Limited Acceptance Merchant as part of its use of Bank’s Services. A “Limited Acceptance Merchant,” as defined by Visa, is a merchant that accepts either, but not both, of the following:

• Visa Credit and Business Category Cards
• Visa Debit Category Cards

 

Merchant has elected to become a Limited Acceptance Merchant by choosing to accept ONLY (please mark the applicable card category below):

□ Visa Credit and Business Category Cards

□ Visa Debit Category Cards

 

Merchant’s failure to select one of the Limited Acceptance Categories above means that Merchant has elected to accept BOTH Visa Credit and Business Category Cards and Visa Debit Category Cards.

 

If Merchant elects to be a Limited Acceptance Merchant, Merchant must properly display the Visa-approved signage that represents the Limited Acceptance Category that Merchant has selected above.

 

45. Special Merchant Categories.

(a)  If Merchant is a Health Care Merchant (as defined by the Visa Core Rules and Visa Product and Service Rules (the “Visa Core Rules”)), Merchant acknowledges that it must comply with the provisions of Section 5.9.12 of the Visa Core Rules.

 

(b) If Merchant is a T&E Merchant (as defined by the Visa Core Rules), Merchant acknowledges that it must comply with all of the provisions of the Visa Core Rules relating to T&E Merchants, including Sections 5.9.6, 5.10.4.1, 7.3.12, and 11.1.3.2.  Merchant further agrees that, if it is an International Airline Program Merchant (as defined by the Visa Core Rules), the terms of the attached International Airline Program Merchant Addendum apply.

 

(c)  If Merchant receives BIN information from Bank, Merchant agrees that: (i) such information may be used solely for purposes of identifying Visa card product types at the point of sale; (ii) Merchant may not, and will not, disclose such information to any third party; and (iii) Merchant will treat such information as proprietary and confidential information belonging to Visa and with the same degree and case as information labeled “Visa Confidential.”

 

(d)  If Merchant is an Electronic Commerce Merchant (as defined by the Visa Core Rules and Visa Product and Service Rules (2014)—the “VCR”), the following terms apply (references following each requirement indicate whether the requirement is located in the VCR or the Visa Acquirer Risk Program Standards Guide (2010) (VPSG); capitalized terms that are not otherwise defined in this Merchant Agreement are used as defined in the VCR):

i. Merchant must display its consumer data privacy policy on its website. (VPSG)

 

ii. Merchant must display the security method it uses for the transmission of payment data on its website. (VPSG)

 

iii.  Merchant must offer Cardholders a secure transaction method and a data protection method, such as Secure Sockets Layer (SSL), 3-D Secure and/or Verified by Visa. (VPSG; VCR Section 1.5.6.2)

 

iv. For Non-Secure Transactions and Non-Authenticated Security Transactions, Merchant must attempt to obtain a Visa Card expiration date and submit it as part of the Authorization Request. (VCR Section 5.8.4.1)

 

v. Merchant’s website must contain all of the following:

(A)  Customer service contact, including email address or telephone number.

(B)  The address, including the country, of Merchant’s permanent establishment, either:

(1)  On the same screen view as the checkout screen used to present the final Transaction amount; or

(2)  Within the sequence of web pages the Cardholder accesses during the checkout process.

(C)  Policy for delivery of multiple shipments.

(D)  Security capabilities and policy for transmission of payment card details.

(E)  In addition, on an Online Gambling Merchant’s homepage or payment page, all of the following:

(1)  The statement “Internet gambling may be illegal in the jurisdiction in which you are located; if so, you are not authorized to use your payment card to complete this transaction”;

(2)  A statement of the Cardholder’s responsibility to know the laws concerning online gambling in the Cardholder’s country;

(3)  A statement prohibiting the participation of minors;

(4)  A complete description of the rules of play, cancellation policies, and pay-out policies;

(5)  A statement recommending that the Cardholder retain a copy of Transaction records and Merchant policies and rules; and

(6)  An Acquirer numeric identifier specified by Visa. (VCR Section 5.9.3.1)

 

vi. Merchant must not display the full Account Number to the Cardholder online. (VCR Section 5.9.3.2)

 

vii.  If Merchant is a Verified by Visa Merchant, Merchant acknowledges that its Electronic Commerce Transactions are not eligible for Chargeback protection from Chargeback reason codes 75 (Transaction Not Recognized) and 83 (Fraud-Card-Absent Environment) if either:

(A)  The Merchant is classified with one of the following MCCs:

(1)  MCC 4829 (Wire Transfer Money Orders);

(2)  MCC 5967 (Direct Marketing – Inbound Teleservices Merchant);

(3)  MCC 6051 (Non-Financial Institutions – Foreign Currency, Money Orders [not Wire Transfer], Travelers’ Cheques); or

(4)  MCC 7995 (Betting, including Lottery Tickets, Casino Gaming Chips, Off-Track Betting, and Wagers at Race Tracks); or

(B)  Merchant has been identified in the Merchant Chargeback Monitoring Program or Risk Identification Service Online. Merchant remains ineligible while it is in either program, and for an additional 4 months after exiting the program. This condition also applies if Merchant enabled Verified by Visa while identified in either program.  (VCR Section 5.9.3.5)

 

viii.  Merchant must include the following in its transaction receipts:

(A)  Customer service contact;

(B)  Merchant country; and

(C)  Conditions of sale, including return and cancellation policy. (VCR Section 5.10.3.3)

 

ix. In an Authorization Request, Merchant must not transmit Authentication Data specific to one Transaction with another Transaction, except when either:

(A)  2 Transactions are related due to delayed delivery; or

(B)  All items of an order cannot be shipped at the same time. (VCR Section 10.15.3.2)

 

(e)  If Merchant limits its acceptance of returned merchandise or is an Electronic Commerce Merchant, Merchant must ensure that its return policies are clearly indicated to a Cardholder on the Transaction Receipt or on Merchant’s website, as follows (VCR Section 5.4.2.4):

 

Location	Required Disclosure	To be used for the following Merchant Policies
Transaction Receipt (all copies, near the Cardholder signature area or in an area easily seen by the Cardholder)	“No Refund” “No Exchanges” “All Sales Final”	Merchant does not: ● Accept merchandise as a return or exchange ● Issue a refund to a Cardholder
	“Exchange Only”	Merchant accepts merchandise in exchange for merchandise of equal value to the original Transaction amount
	“In-Store Credit Only”	Merchant accepts merchandise in exchange for an in-store credit document that both: ● Equals the value of the returned merchandise ● Must be used at the Merchant location
Website (on checkout screen or in sequence of web pages before final checkout)	“Click to accept” or other acknowledgement button or checkbox	All return/refund policies and other purchase terms and conditions

 

46. Participation in the American Express OptBlue® Program

By checking the “Accept” checkbox next to AMERICAN EXPRESS OptBlue® on [the application], Merchant has elected to participate in the American Express OptBlue program (“American Express Card Acceptance”). The following terms and conditions apply to Merchant’s participation in American Express Card Acceptance.

 

(a)  The definition of “Association(s)” is changed to read as follows:

“Card Brand(s)” means VISA U.S.A., Inc. (“Visa”), Mastercard International Incorporated (“Mastercard”), Discover Financial Services LLC (“Discover”) and American Express Travel Related Services Company, Inc. (“American Express”).

 

(b)  The definition of “Card(s)” is changed to read as follows:

“Card(s)” means either a Visa, Mastercard, Discover or American Express credit card, debit card (or other similar card that requires a PIN for identification purposes), or pre-paid, stored-value or gift card.

 

(c)  The definition of “Issuer” is changed to read as follows:

“Issuer” means American Express or a member of a Card Brand that enters into a contractual relationship with a Cardholder for the issuance of one or more Cards

 

(d)  Merchant authorizes Bank and/or its Affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express on behalf of Merchant.

 

(e)  Merchant agrees that Bank may disclose to American Express information regarding Merchant and Transactions to American Express, and that American Express may use such information: (i) to perform its responsibilities in connection with American Express Card Acceptance; (ii) to promote American Express; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communications purposes within the parameters of American Express Card Acceptance, and important transactional or relationship communications from American Express. American Express may use the information about Merchant obtained in this Merchant Agreement at the time of setup to screen and/or monitor Merchant in connection with American Express marketing and administrative purposes.  Merchant agrees it may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of Merchant. Merchant may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls.  Merchant agrees that it may be sent fax communications.

 

(f)  Merchant may opt-out of receiving future commercial marketing communications from American Express by contacting ISO; however, Merchant may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude Merchant from receiving important transactional or relationship messages from American Express.

 

(g)  Merchant acknowledges that it may be converted from American Express Card Acceptance to a direct relationship with American Express if and when its American Express-related Transaction volumes exceed the eligibility thresholds for American Express Card Acceptance.  If this occurs, upon such conversion: (i) Merchant will be bound by American Express’s then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by Merchant.

 

(h)  Merchant will not assign to any third party any payments due to it under American Express Card Acceptance, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future American Express-related Transaction receivables to Bank, its affiliated entities and/or any other cash advance funding source that partners with Bank or its affiliated entities, without consent of American Express.  Notwithstanding the foregoing, Bank prohibits Merchant from selling or assigning future American Express-related Transaction receivables to any third party.

 

(i)  Notwithstanding anything in this Merchant Agreement to the contrary, American Express shall have third-party beneficiary rights, but not obligations, to the terms of this Merchant Agreement applicable to American Express Card Acceptance to enforce such terms against Merchant.

 

(j)  By contacting Bank or ISO, Merchant may opt out of accepting American Express at any time without directly or indirectly affecting its rights to accept other Cards.

 

(k)  Bank and ISO have the right to terminate Merchant’s participation in American Express Card Acceptance immediately upon written notice to Merchant: (i) if Merchant breaches any of the provisions of this Section 46 or any other terms of this Merchant Agreement applicable to American Express Card Acceptance; or (ii) for cause or fraudulent or other activity, or upon American Express’s request.  In the event Merchant’s participation in American Express Card Acceptance is terminated for any reason, Merchant must immediately remove all American Express branding and marks from Merchant’s website and wherever else they are displayed.

 

(l)  Merchant’s refund policies for American Express-related Transactions must be at least as favorable as its refund policy for purchase with any other Card, and the refund policy must be disclosed to Cardholders at the time of purchase and in compliance with Applicable Law.   Merchant may not bill or attempt to collect from any cardholder for any American Express-related Transaction unless a Chargeback has been exercised, Merchant has fully paid for such Chargeback, and it otherwise has the right to do so.

 

(m)  Merchant must accept American Express as payment for goods and services (other than those goods and services prohibited by this Merchant Agreement, the MOG (as that term is defined below or Applicable Law) sold, or (if applicable) for charitable contributions made at all of its business locations and websites, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant’s business locations and websites under this Merchant Agreement.

 

(n)  Merchant or American Express may elect to resolve any claim against each other, or against Bank or ISO with respect to American Express-related Transactions, by individual, binding arbitration, decided by a neutral arbitrator, in accordance with the MOG.

 

(o)  Merchant will comply in full with American Express’s Merchant Operating Guide (as the same may be amended from time to time) (the “MOG”).  The current MOG can be found at www.americanexpress.com/merchantopguide.  For the sake of clarity, the term “Rules” specifically includes the MOG.  Provisions required by the MOG to be included in this Merchant Agreement are incorporated into this Merchant Agreement in full by this reference.

 

(p)  American Express has the right to modify the terms of this Section 46 and any other provision of this Merchant Agreement that relates to American Express Card Acceptance and to terminate Merchant’s acceptance of American Express-related Transactions and to require an investigation of Merchant’s activities with respect to American Express-related transactions.

 

(q)  In addition to the obligations undertaken by Merchant in Section 21, above, Merchant must comply in full with the American Express Data Security Requirements (DSR).  A copy of the American Express Data Security Requirements can be obtained online at www.americanexpress.com/dsr. Merchant will abide by and fully comply with applicable American Express requirements, including, without limitation, the requirement to report all instances of a Data Incident (as that term is defined in the MOG) immediately to Bank after discovery of the incident.

 

(r)  Merchant must ensure data quality and that Transaction Data  and customer information is processed promptly, accurately and completely, and complies with the American Express Technical Specifications (as those terms are defined in the MOG).

 

(s)  Merchant acknowledges and agrees that Merchant is responsible for being aware of and adhering to privacy and data protection laws and must provide specific and adequate disclosures to Cardholders of Merchant’s collection, use and processing of personal data.

 

47. Participation in Merchant Lynx’s Leverage Up Program

Merchant Lynx’s Leverage Up Program allows merchants to implement a fee across all tender types to help alleviate increasing business expenses (the “Leverage Up Program”).  The merchant must charge this fee on all tender types and display proper signage describing the Leverage Up Program.  Failure to follow the compliance requirements may result in a non-compliance notice. The following terms and conditions apply to Merchant’s participation in the Leverage Up Program.

 

(a) Merchant must ensure that it is participating in the Leverage Up Program in compliance with all Applicable Law. Merchant shall indemnify ISO and Bank for any and all losses attributable to Merchant’s illegal or improper use of the Leverage Up Program, including, without limitation, any fines, fees, or penalties from governmental, regulatory, or industry-governing entities.

 

(b) Both Bank and ISO, individually, have the right to terminate Merchant’s participation in the Leverage Up Program immediately upon written notice to Merchant in their sole discretion. By contacting ISO, Merchant may opt out of the Leverage Up Program at any time.

 

(c)  Bank and ISO jointly may modify the terms of this Section 47 and any other provision of this Merchant Agreement that relates to the Leverage Up Program by providing written notice to Merchant. Merchant may opt out of the Leverage Up Program by providing written notice to ISO and Bank within 30 days of notice of any modification of this Section 47.