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MERCHANT AGREEMENT

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Merchant Account Agreement - Table Of Contents 2003
ARTICLE 1 – GENERAL RULES AND REGULATIONS 2

DEFINITIONS 2
1.01 HONORING CARDS 2
1.02 ADVERTISING 3
1.03 CARD EXAMINATION AND CARD RECOVERY 4
1.04 PRIOR AUTHORIZATION 4
1.05 DELIVERY OF COPY OF SALES DRAFT 5
1.06 ENTRY AND PRESENTMENT OF TRANSACTION 5
1.07 MULTIPLE TRANSACTION RECORDS; PARTIAL CONSIDERATION 6
1.08 TELEPHONE ORDERS, MAIL ORDERS AND PRE-AUTHORIZED ORDERS 6
1.09 PRE-AUTHORIZED LODGING AND VEHICLE RENTAL TRANSACTIONS 7
1.10 RETURNS AND ADJUSTMENTS; CREDIT DRAFTS 7
1.11 PAYMENTS 8
1.12 CASH ADVANCES 8
1.13 REFINANCING EXISTING DEBT 9
1.14 RELEASE OF CARDHOLDER ACCOUNT INFORMATION 9
1.15 PURGED TRANSACTIONS 9
1.16 MONTHLY VOLUME AND AVERAGE TICKET 9
1.17 KEYED PERCENTAGE 10
 
ARTICLE 2 – REPRESENTMENT, PAYMENT AND CHARGEBACK 10

FEES 10
DEFINITIONS 10
2.01 TERMINATION OF DATA 10
2.02 ACCEPTANCE AND DISCOUNT 11
2.03 ENDORSEMENT 11
2.04 CHARGEBACK 11
2.05 CHARGEBACK AND SECURITY INTEREST 13
2.06 CHARGEBACK AND DOCUMENTATION RETRIEVAL FEE 14
2.07 WITHHOLDING 14
2.08 DISPUTES WITH CARDHOLDER 15
2.09 EXCESSIVE CHARGEBACKS AND RETRIEVAL REQUESTS 15
 
ARTICLE 3 – TERMINATION, MODIFICATION AND COMPLIANCE WITH LAW15

3.01 COMPLIANCE WITH LAW 15
3.02 MODIFICATION 16
3.03 REFUSAL OR REVOCATION OF CREDIT AND REPAYMENT BY MERCHANT 16
3.04 TERMINATION 17
3.05 AUTOMATIC RENEWAL 18
3.06 TERMINATED MERCHANT FILE AND MATCH FILE 18
 
ARTICLE 4 – eCommerce GATEWAY PROGRAMMING 19

4.01 APPLICABILITY TO THIS AGREEMENT 19
4.02 ELECTRONIC PAYMENT SYSTEM 19
4.03 PROGRAMMING OF WEB SITE 19
4.04 MERCHANT’S ACCOUNT PROGRAMMING AGENT 20
4.05 FEES SUBJECT TO FLUCTUATION 20
4.06 TECHNICAL SUPPORT 20
4.07 SHUT DOWNS 20
 
ARTICLE 5 – LINK POINT  VIRTUAL CHECKS 20

DEFINITIONS 20
5.01 PURPOSE 21
5.02 ANTICIPATED VOLUME 21
5.03 REPRESENTATIONS BY MERCHANT 22
5.04 REVOCATION OF AUTHORITY 22
5.05 IDENTIFYING NUMBERS 22
5.06 REGULATORY COMPLIANCE 22
5.07 NOTICE OF ERRONEOUS/UNAUTHORIZED TRANSFERS 22
5.08 PROCESSING ENTRIES 23
5.09 ORIGINATING TRANSACTIONS 23
5.10 RETURNED ENTRIES 23
5.11 NOTICE OF CHANGE INFORMATION AND RETRANSMISSION 23
5.12 METHOD OF TRANSFER 24
5.13 SETTLEMENT AND FINALITY 24
5.14 REPORTS 24
5.15 LIMITS OF LIABILITY 25
5.16 PRICING AND PAYMENT 25
5.17 RELEASE OF INFORMATION 25
5.18 TERMINATION 25
5.19 NON-SUFFICIENT FUNDS (NSF) FEE 26
 
ARTICLE 6 – DEBIT CARD PROGRAM 26

6.01 APPLICABILITY TO THIS AGREEMENT 26
6.02 SERVICES 26
6.03 MERCHANT OBLIGATIONS 26
6.04 NO LIABILITY 27
6.05 DEBIT FEES 27
 
ARTICLE 7 – CHECK GUARANTEE SERVICE 28

7.01 SERVICE PROVIDED 28
7.02 EXCLUSIONS 28
7.03 AMOUNT OF CARDSERVICE INTERNATIONAL OBLIGATION 28
7.04 MERCHANT’S GOOD STANDING 29
7.05 OBLIGATIONS UPON PRESENTMENT OF CHECK 29
7.06 INFORMATION APPEARING ON CHECKS 29
7.07 ADDITIONAL CHECK REQUIREMENTS 30
7.08 REASSIGNMENT OF CHECKS 31
7.09 MERCHANT’S DUTY TO ADVISE 31
7.10 COOPERATION 31
7.11 ASSIGNMENT OF CHECKS TO CARDSERVICE INTERNATIONAL 32
7.12 EXECUTION OF SEPARATE ASSIGNMENTS 32
7.13 MONTHLY MINIMUM 32
7.14 DISCOUNT PERCENTAGE 32
7.15 DOCUMENTATION FEE 32
7.16 LATE FEE 32
7.17 REINSTATEMENT FEE 33
7.18 CHANGE IN FEES AND CHARGES 33
7.19 LIEN 33
7.20 SET-OFFS 33
7.21 MERCHANT’S BUSINESS NEED FOR INFORMATION 33
7.22 NONDISCLOSURE 33
7.23 CONFIDENTIAL INFORMATION ABOUT MERCHANT 34
7.24 TRAINING 34
7.25 OTHER SERVICES 34
7.26 MERCHANT CHANGES 34
7.27 INFORMATION 35
7.28 DISPLAY AND ADVERTISING 35
7.29 NOTICES 35
 
ARTICLE 8 –  FEES AND MERCHANT ACCOUNT SUPPORT36

FEES 36
DISCOUNT PERCENTAGES 36
BATCH HEADER FEE 36
TRANSACTION FEE 37
8.01 IMPRINTERS, TERMINALS AND SUPPLIES 37
8.02 DISCOUNT PERCENTAGE 37
8.03 MONTHLY MINIMUM 38
8.04 CUSTOMER SUPPORT FEE 38
8.05 REJECT FEE 38
8.06 DOCUMENTATION FEE 38
 
ARTICLE 9 – GENERAL PROVISIONS 38

9.01 FORMS 38
9.02 RECORDS 39
9.03 CHANGE IN TRANSMISSION METHOD 39
9.04 SUPPLEMENTARY DOCUMENTS 40
9.05 AMENDMENT 40
9.06 MERCHANT ACCOUNT 40
9.07 ALL NOTICES 40
9.08 EFFECT OF HEADINGS 41
9.09 POINT-OF-SALE TERMINAL SERVICES 41
9.10 ADHERENCE 42
9.11 CHANGE IN BANKING INFORMATION 42
9.12 TIME LIMITATION FOR ASSERTING CLAIMS AND INSTITUTING ACTIONS 42
9.13 INDEMNIFICATION 42
9.14 LIMITATION OF LIABILITY 43
9.15 ENTIRE AGREEMENT; WAIVER 43
9.16 RESERVE ACCOUNT 43
9.17 BANKRUPTCY 44
9.18 LAW AND VENUE 44
9.19 ASSIGNABILITY 45
9.20 ATTORNEYS’ FEES AND COSTS 45
9.21 GUARANTORS 45
9.22 FORCE MAJEURE 46
9.23 CUMULATIVE REMEDIES 46
9.24 BREACH OF OTHER AGREEMENTS 46
9.25 FIDUCIARY RELATIONSHIP 47
9.26 SECURITY INTEREST AND MERCHANT PERFORMANCE REQUIREMENT 47
9.27 SEVERABILITY 48
9.28 MERCHANT NAME AND BUSINESS TYPE 48
 
* * *
This ends the Cardservice International Merchant Agreement
* * *
MERCHANT AGREEMENT
 
This Agreement (“Agreement”) is entered into by and between the undersigned Merchant (“Merchant”), the Member FDIC Insured Bank identified in the Merchant Application and Agreement (“Bank”), represented by its Registered Service Provider, Cardservice International, Inc. (“Cardservice International”), an Independent Sales Organization and Merchant Services Provider for Bank. The guarantor (s) signing this Agreement is also a party as a continuing guarantor (s) pursuant to paragraph 3.15. To the maximum degree permitted by law and by MasterCard International, Inc. (“MasterCard”) and Visa U.S.A., Inc. (“VISA”) rules and regulations, it is the intention of the parties that the rights of Bank set forth in this Agreement or arising from this Agreement, may be exercised by Cardservice International. Within the context of this Agreement and to the full extent permitted by law and by MasterCard and VISA rules and regulations, the rights granted to Cardservice International shall also be for the benefit of any company affiliated with Cardservice International to the extent such affiliate may have or may have had a prior relationship with Merchant concerning or related to credit card processing. Merchant, Cardservice International, and Bank make this Agreement in consideration of the mutual covenants set forth herein.

This Agreement shall not be effective until the Merchant’s signed Merchant Application, which incorporates this Agreement by reference, is approved by Bank. Therefore, Cardservice International representative’s signature hereon constitutes only an offer made on behalf of, and is contingent upon approval by Bank and Cardservice International, which is located in Agoura Hills, California. This offer shall automatically expire after thirty (30) days unless both Merchant and Cardservice International’s corporate office have also signed this Agreement. If Merchant reasonably anticipates that it will have sales volume in excess of $10,000 per month in combined MasterCard and VISA transactions, Merchant at the request of Bank and Cardservice International, shall submit its current financial statement with this Agreement. Merchant’s financial condition shall be one of the factors on which acceptance of this Agreement shall be conditioned. Merchant acknowledges that this Agreement is premised upon Merchant having a floor limit of ZERO dollars. By entering into this Agreement, Merchant agrees to comply with and be subject to, all MasterCard or VISA rules and regulations as they may exist from time to time, including, but not limited to, chargeback procedures and the resolution of any disputes relating thereto. Any violation of MasterCard and VISA rules and regulations by Merchant shall constitute a breach of this Agreement and may, at the option of Bank and Cardservice International, be grounds for terminating this Agreement.

ARTICLE 1 – GENERAL RULES AND REGULATIONS

DEFINITIONS

Account Number
A unique sequence of numbers assigned to a cardholder account that identifies the issuer and type of financial transaction card.

Association Bank
A licensed association member that acquires the data relating to a transaction from the card acceptor or merchant and submits that data into interchange, either directly or indirectly.

Authorization
The process used by card issuers to approve or decline a transaction request (this only validates this transaction, it does not guarantee the sale).

Automated Clearing House (ACH)
One of the groups of processing institutions that have networked together to exchange (clear and settle) electronic debit transactions.

Average Ticket
A predetermined dollar amount that the merchant can process on a per-sale basis.

Batch
A set of records within the merchant’s closing transmission through the point-of-sale terminal.

Card Issuer
The financial institution that issues a credit card.

Cardholder
The customer to whom a card has been issued or the individual authorized to use the card.

Monthly Volume
A predetermined dollar amount that the merchant can process through the terminal.

1.01 HONORING CARDS

Merchant shall honor, in accordance with the terms and conditions of this Agreement and in accordance with all MasterCard and VISA rules and regulations in existence at the time of the transaction, without discrimination, all MasterCard and VISA credit cards (“Cards”) when properly presented as payment by Merchant’s customers (“Cardholder”) in connection with bona fide legal transactions. If Merchant does not transact business with the general public, e.g., a private club, Merchant shall be deemed to have complied with this non-discrimination rule if it honors all valid Cards of Cardholders who have purchasing privileges or memberships with Merchant.

Merchant shall not, through an increase in price or otherwise, impose a surcharge on a Cardholder who elects to use a Card in lieu of payment by cash, check or similar means. Merchant may offer discounts for the purpose of inducing payment by cash, check, or other means not involving the use of a Card, provided that the discount is offered to all prospective buyers.

Merchant shall not establish minimum or maximum transaction amounts.

1.02 ADVERTISING

Merchant shall display any advertising or promotional materials provided by Bank and Cardservice International so as to be readily visible to Merchant’s customers. This material will be designed to inform the public that Cards will be honored at Merchant’s place of business. Merchants that do not deal with the general public, as well as companies subject to government regulation prohibiting such advertising or promotion or other Merchants expressly exempted by MasterCard or VISA, are excluded from this advertising display requirement.

Merchant shall not display or use advertising or promotional materials which suggest, implicitly or explicitly, that Merchant only honors Cards issued by Bank.

Merchant shall have the right to use or display the proprietary names and symbols associated with Cards only while this Agreement is in effect or until Merchant is notified by Bank, Cardservice International, MasterCard or VISA to stop such usage.

Merchant shall only use the proprietary names and symbols associated with Cards to indicate that Cards are accepted for payment and shall not indicate, directly or indirectly, that Bank and Cardservice International, MasterCard or VISA endorses Merchant’s products or services.

1.03 CARD EXAMINATION AND CARD RECOVERY

  1. check the date on which the Card becomes valid and the date on which the Card expires. Merchant shall not accept any Card that is not yet valid or that has expired;
  2. examine the signature on each Cardholder’s Card. Merchant shall not honor any Card where the signature on the sales draft does not correspond to the signature on the Card;
  3. not request or record such personal Cardholder information, such as home or business telephone number, a home or business address, driver’s license, or other such identification onto the sales draft as a condition of the sale unless such information is required under specific circumstances cited in MasterCard or VISA rules and regulations; and
  4. examine all Card security features (such as, by way of example only, a hologram) included on the Card. Merchant shall use its best efforts to retain, by reasonable and peaceful means, any Card which appears to be counterfeit, fraudulent or stolen when:
    1. Merchant is directed to do so by Bank or Cardservice International’s designated authorization center; or
    2. Merchant has, or should have, reasonable grounds to believe that a Card is counterfeit, fraudulent or stolen. Merchant’s obligation to retain or recover a Card does not authorize Merchant to commit any breach of the peace or to cause any injury to persons or property and Merchant in fact agrees not to commit any such breach of the peace or to cause any injury to persons and/or property.
1.04 PRIOR AUTHORIZATION

Prior to accepting Card for payment, Merchant shall use due diligence to verify that Cardholder is authorized to use the Card presented and that such Card is genuine.

  1. In addition to the requirements set forth elsewhere in this Agreement, as part of Merchant’s due diligence, Merchant shall obtain prior authorization for every transaction processed through Merchant’s electronic terminal or, if such authorization is not reasonably possible, then authorization shall be obtained by telephone. Merchant shall follow all instructions received in the authorization process. After receiving authorization, Merchant may consummate only the transaction authorized and must post the authorization number on the sales draft. Whenever authorization is obtained by a method other than through the electronic terminal, the Merchant shall execute a sales draft with the Cardholder’s signature and the credit card information imprinted onto the draft.
  2. Obtaining authorization shall not, by itself, satisfy Merchant’s obligation to exercise due diligence. Neither shall authorization constitute a waiver by Bank of any other procedures required of Merchant by this Agreement or any MasterCard or VISA rules or regulation. Authorization shall not validate a transaction which would otherwise be invalid. Authorization shall not validate a transaction involving the use of an expired card or a transaction wherein Cardholder’s signature does not match or has not been authorized by Cardholder. Merchant shall remain fully liable for any chargeback and fees related to an invalid transaction, whether or not prior authorization was obtained.
1.05 DELIVERY OF COPY OF SALES DRAFT

Merchant shall deliver a true and complete copy of the sales draft, credit draft or other transaction memorandum to the Cardholder at the time of the transaction.

1.06 ENTRY AND PRESENTATION OF TRANSACTION

Merchant shall transmit a daily batch to Bank and Cardservice International containing all sales data relevant to electronic transactions, except that:

  1. When authorization is obtained by telephone, Merchant shall enter the data obtained from the Cardholder/Authorization Center onto a manually imprinted sales draft and forthwith transmit this data into its electronic terminal. The transaction shall be communicated to Bank and Cardservice International in such form as Bank and Cardservice International may from time to time specify or as may be required under any applicable laws, rules, or regulations; or
  2. Merchant shall present no sales data until the goods have been shipped or the services performed and Merchant has otherwise performed all of its principal obligations to the Cardholder in connection with the transaction. If Bank and Cardservice International request a copy of such sales draft, credit draft or other transaction memorandum or evidence, Merchant shall provide Bank and Cardservice International with said copy, no later than three (3) calendar days from the date of request.
1.07 MULTIPLE TRANSACTION RECORDS; PARTIAL CONSIDERATION

Merchant shall include on one transaction record the entire amount due for each transaction, unless:

  1. the Cardholder pays the balance of the amount due at the time of transaction in cash or by check; or
  2. all or some goods or services are to be delivered or performed at a later date and Cardholder signs two separate sales drafts, one of which represents a deposit and the second of which represents payment of the balance and the “balance” sales draft is completed only upon delivery of goods or performance of the services. In such case, Merchant agrees:
    1. to note on the sales draft the word “deposit” or “balance,” as appropriate; and
    2. not to present the “balance” sales draft until all goods are delivered or all services are performed; or
  3. in accordance with MasterCard and VISA regulations, Merchant shall not divide a single transaction. By way of example only, a single transaction shall not be divided into two (2) or more smaller transactions.
1.08 TELEPHONE ORDERS, MAIL ORDERS AND PRE-AUTHORIZED ORDERS

If a Card transaction is made in such a manner that the credit card is not present at the time of the transaction as, by way of example, a telephone order (“TO”), mail order (“MO”), or pre-authorized order (“PO”), the sales draft may be completed without a Cardholder’s signature or a Card imprint. In such case however, Merchant agrees:

  1. to print legibly on the sales draft sufficient information to identify Merchant and the Cardholder, including all embossed information on Card, including, but not limited to, Merchant’s name and address, Cardholder’s name and any other names which appear on the Card, Cardholder’s account number, expiration date and any effective date on the Card; and
  2. to print legibly on the signature line of the sales draft the letters “TO,” “MO,” or “PO,” as appropriate; and
  3. in the case of a pre-authorized order, to require Cardholder to execute and deliver to Merchant a written pre-authorization, which Merchant must retain and make available to Bank upon request; and
  4. not to deliver goods or perform services covered by a pre-authorization after being notified that the pre-authorization has been canceled, declined or that the Card is not to be accepted.
In any non-imprint transaction, either manual or electronic, Merchant acts solely at his own risk and shall waive the right to dispute any chargeback arising from a failure to produce to Bank/Cardservice International an imprinted draft.

1.09 PRE-AUTHORIZED LODGING AND VEHICLE RENTAL TRANSACTIONS

Regardless of the terms and conditions of any written pre-authorization form, the sales draft amount of any lodging or vehicle rental transaction which has been pre-authorized shall include only that portion of the transaction, including any applicable taxes, evidencing a bona fide renting of real or personal property by Merchant to a Cardholder and shall not include any consequential charges. Nothing herein is intended to restrict Merchant from enforcing the terms and conditions of its pre-authorization form through means other than a Card transaction.

1.10 RETURNS AND ADJUSTMENTS; CREDIT DRAFTS

If Merchant has a policy of permitting refunds, exchanges, returns, or adjustments for cash customers, Merchant shall maintain the same policy for persons making purchases through use of a Card. However, Merchant may restrict its refund or return policy as to any Card transaction if Merchant discloses such policy to Cardholder in writing before obtaining Cardholder’s signature. According to MasterCard and VISA regulations, any refund or adjustment policy must be made by printing appropriate notice (such as “No Refunds or Exchanges”) on all copies of the sales drafts in close proximity to the space for the Cardholder’s signature.

Except as provided above, if Merchant accepts any goods for return, any services are terminated or canceled, or Merchant allows any price adjustment (other than involuntary refunds required by applicable airline or other tariffs or otherwise by law), then Merchant shall not make any cash refund. Instead, Merchant shall electronically complete and transmit promptly to Bank the credit data evidencing the refund or adjustment, and deliver to the Cardholder a true and complete copy of the credit draft at the time the refund or adjustment is made, together with the date and amount of the credit, in sufficient detail to identify the transaction. Merchant shall imprint or legibly reproduce on each credit draft the embossed information from the Card and from Merchant’s imprinter. The amount of the credit draft may not exceed the amount of the original transaction as reflected on the sales draft.

IN CONJUNCTION WITH EACH CREDIT TRANSACTION, MERCHANT SHALL HAVE SUFFICIENT FUNDS AVAILABLE IN BANK TO COVER THE AMOUNT OF SUCH TRANSACTION AND ANY RELATED FEES.

Merchant shall not under any circumstance:

  1. Accept payment from a Cardholder for the purpose of depositing funds to the Cardholder’s Account.
  2. Process a Credit Transaction Receipt without having completed a previous retail transaction with the same Cardholder.
1.11 PAYMENTS

Merchant shall not receive any payments from a Cardholder for charges included on any transaction resulting from use of any Card. Neither shall Merchant receive any payments from a Cardholder to prepare and present a credit draft for the purpose of effecting a deposit to the Cardholder’s account.

1.12 CASH ADVANCES

Merchant shall not use, at its location or through its electronic terminal, Merchant’s own credit card or any credit card which Merchant is authorized to use. Such use is deemed a Cash Advance. Cash Advances are prohibited and can result in immediate termination and addition to the Combined Terminated Merchant File, Terminated Merchant File and Match File.

1.13 REFINANCING EXISTING DEBT

Merchant shall not process any transaction representing the refinancing of an existing obligation of a Cardholder including, but not limited to, obligations:

  1. Previously owed Merchant except where the refinancing results from a conversion of Merchant’s existing credit program to a MasterCard or VISA program and appropriate documentation is provided to Bank and Cardservice International; or
  2. Arising from the dishonor of a Cardholder’s personal check; or
  3. Representing the collection of any other pre-existing indebtedness.
1.14 RELEASE OF CARDHOLDER ACCOUNT INFORMATION

Unless required by law, Merchant shall not, under any circumstances, sell, purchase, provide, or otherwise disclose Cardholder’s account information or other Cardholder personal information to anyone except Issuer or Bank and Cardservice International.

1.15 PURGED TRANSACTIONS

Merchant acknowledges that batches of transactions that are not closed and transmitted within forty-five (45) days shall be automatically purged and erased from the processing system, and are not recoverable. Merchant releases Bank and Cardservice International from any loss they may sustain as a result of such purging and erasure and agrees to indemnify each of them for any losses, including attorneys’ fees and costs, that they may sustain from any source because of this.

1.16 MONTHLY VOLUME AND AVERAGE TICKET

Merchant represents that the estimated monthly Card sales volume and average ticket amount appearing on the Merchant Application is a reasonable estimate. Merchant acknowledges that any monthly volume in excess of that estimated by Merchant will cause Cardservice International to review Merchant’s file and that this review may result in delay in transmission of funds and possible interruption or termination of service.

1.17 KEYED PERCENTAGE

Merchant warrants that the keyed percentage appearing on merchant’s application is a reasonable estimate. Merchant also understands and acknowledges that if the keyed percentage exceeds the stipulated percentage set forth in the Merchant Application, Cardservice International will review the merchant account. Such review may result in immediate increase of discount rates and fees, delay in the transmission of funds and/or termination of the Merchant Agreement.

ARTICLE 2 – REPRESENTMENT, PAYMENT AND CHARGEBACK

FEES

Chargeback, Credit or Debit, or Representment – $25.00 each

Documentation Retrieval Request – $15.00 each

DEFINITIONS

Chargeback
A procedure in which a disputed transaction is returned to the Merchant by the card-issuing bank (via the merchant’s bankcard processor) for possible resolution.

Credit Slip (Draft or Voucher)
A record of a return or refund of a transaction presented by the Merchant to the Cardholder and Merchant’s bankcard processor.

Representment
A procedure in which a disputed transaction is returned to the card-issuing bank.

Retrieval Request
A request made by a Card Issuer to a Merchant (via the bankcard processor) for a copy of a sales slip when there is a question about a transaction.

Sales Slip (Draft)
A record of a sale to use as evidence of purchases made with a Card.
2.01 TERMINATION OF DATA

Instead of depositing paper sales or credit drafts with Bank, Merchant shall transmit all sales data and credit data to Bank and Cardservice International by means of magnetic tape or electronic data. “Sales data” refers to information transmitted by Merchant which is combined in a sales draft or the electronic or magnetic tape record that is the equivalent of such a sales draft. “Credit data” refers to the information transmitted by Merchant combined in a credit draft or the electronic or magnetic tape record that is the equivalent of such a credit draft. All data (“Transaction Records”) transmitted shall be in a media form and format approved in advance by Bank and Cardservice International and shall be pre-sorted and organized according to Bank and Cardservice International’s instructions. It shall include all information which appears on the sales or credit draft. All references in this Agreement to “sales drafts,” “credit drafts,” “sales data,” or “credit data” shall include, as applicable, Transaction Records transmitted electronically or on magnetic tape, or in original format.

2.02 ACCEPTANCE AND DISCOUNT

Subject to Merchant not being in default of this Agreement and subject to Bank’s chargeback rights, Bank agrees to accept valid Transaction Records from Merchant during the term of this Agreement and to pay Merchant the total amount represented by the Transaction Records, less any applicable discount fees and other charges agreed to by the parties and all setoff rights Bank may have. Any payment made by Bank to Merchant shall not be final but shall be subject to subsequent review and verification by Bank. Upon thirty (30) days written notice to Merchant, Bank and Cardservice International retain the right to change the fees set forth in this Agreement.

2.03 ENDORSEMENT

Merchant shall endorse any Transaction Record it presents to Bank and Cardservice International. If Merchant fails to do so, Merchant shall be deemed to have endorsed any Transaction Record it presents to Bank and Cardservice International in favor of Bank and Cardservice International and Merchant hereby appoints Bank and Cardservice International, acting either jointly or alone, as its attorney in fact to supply such endorsement on Merchant’s behalf.

2.04 CHARGEBACK

After acceptance by Bank and Cardservice International, Merchant shall nevertheless repay Bank the amount represented by the Transaction Record, plus any applicable chargeback or related fee, if Bank has been charged back by another financial institution or if any one or more of the following circumstances exist:

  1. The Transaction Record or any material or information on a sales or credit draft (such as, by way of example only, the account number, expiration date of the Card, Merchant description, transaction description or notation of prior authorization for the transaction amount or date) is illegible, incomplete or otherwise not discernible, is not endorsed or is not delivered to Bank and Cardservice International within the required time limits;
  2. The Cardholder account number was declined or was not authorized on the transaction date and Merchant failed to reject the transaction;
  3. The sales draft does not contain the imprint of a Card that was valid, effective and unexpired on the transaction date;
  4. The transaction was one for which prior credit authorization was required and prior credit authorization was not obtained or a valid authorization number is not correctly and legibly included on the Transaction Record;
  5. The Transaction Record is a duplicate of an item previously paid;
  6. The Cardholder disputes the execution of the Transaction Record, the sale, delivery, quality or performance of the goods or services purchased, or alleges that a credit adjustment was requested and refused or that a credit adjustment was issued by Merchant but not posted to Cardholder’s account;
  7. The price of the goods or service shown on the Transaction Record differs from the amount shown on the copy of the sales draft or the receipt delivered to the Cardholder at the time of the transaction;
  8. Bank and Cardservice International reasonably determine that Merchant has violated any term, condition, covenant, warranty or other provision of this Agreement in connection with the Transaction Record or the transaction to which it relates;
  9. Bank and Cardservice International reasonably determine that the Transaction Record is fraudulent or that the related transaction is not a bona fide transaction in Merchant’s ordinary course of business, or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation, negligence, fraud or dishonesty on the part of Merchant or Merchant’s agents or employees;
  10. The Transaction Record arises from a mail or telephone order transaction which the Cardholder disputes entering into or authorizing, or which involves an account number that never existed or that has expired and has not been renewed;
  11. Merchant fails to provide Bank and Cardservice International with any sales draft or credit draft in accordance with this Agreement;
  12. Multiple authorization attempts were made by Merchant for a single transaction;
  13. Merchant has divided a single transaction, in violation of MasterCard and VISA regulations or of this Agreement; or
  14. The Transaction Record is otherwise subject to chargeback by the Card Issuer or Cardholder in accordance with the Associations’ MasterCard/VISA rules or applicable law.
2.05 CHARGEBACK AND SECURITY INTEREST

Merchant covenants, agrees and acknowledges that, simultaneously with each purchase by Cardservice International, or Bank with respect to Bankcard transactions hereunder of Debt, a contingent and unmatured claim for chargeback accrues against Merchant in favor of Cardservice International and Bank for the amount that Cardservice International and/or Bank is required, or has the right, to pay to or repurchase for MasterCard or VISA with respect to any fees, discounts, customer credits and adjustments, charges, fines, assessments, penalties or other items which may be charged back to Merchant by Cardservice International and/or Bank, and that all settlements or credits given or payment made by Cardservice International and/or Bank in connection with such purchases are provisional, and subject to revocation, chargeback or refund, subject to the other terms of this Agreement, the rules and regulations of MasterCard or VISA, and their Operating Procedures. The right of Merchant to receive any amounts due or to become due to it from Cardservice International and/or Bank is expressly subject and subordinate to the chargeback, setoff, lien and security interest rights of Cardservice International and Bank without regard to whether such chargeback, setoff, lien and security interest rights are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured or unmatured.

2.06 CHARGEBACK AND DOCUMENTATION RETRIEVAL FEE

Merchant shall pay Bank a $25.00 fee for each chargeback, credit, or debit presentment. Such fee shall be increased to $35.00 any time that chargebacks are classified as “excessive” as defined in paragraph 2.09 of this Agreement. Merchant shall pay a $15.00 fee for each Documentation Retrieval Request. The amount of these fees are subject to change by Bank and Cardservice International upon Bank and Cardservice International giving Merchant thirty (30) days notice of any change.

2.07 WITHHOLDING

If Bank reasonably believes that any of the circumstances listed in paragraph 2.04 exists or are likely to exist with respect to any Transaction Record which Bank has accepted and forwarded to Cardholder’s issuing bank for payment, Bank may withhold from payments due Merchant under this Agreement the Transaction Record amount less any discount until such time that:

  1. Bank is itself charged back by the issuing bank for the transaction. In such event Bank shall retain the funds and return the Transaction Record to Merchant pursuant to the chargeback procedure of paragraph 2.04; or
  2. The period of time by which Cardholder must dispute the Transaction Record and the issuing bank exercise its chargeback rights against Bank has expired; or
  3. Bank otherwise determines to their exclusive satisfaction that a chargeback on the Transaction Record will not occur.
Upon termination of this Agreement, Bank/Cardservice International may withhold payment to Merchant for such period of time reasonably determined by Bank and Cardservice International as necessary to establish a reserve to cover any chargebacks, credit drafts and uncollected discounts or fees, including, but not limited to, costs for accounting, investigation and account management, that may result from transactions previously processed and appearing after the termination date.

2.08 DISPUTES WITH CARDHOLDER

All disputes between Merchant and any Cardholder relating to any Card transaction shall be settled between Merchant and such Cardholder. Merchant shall, in accordance with paragraph 3.07, indemnify Bank, Cardservice International, MasterCard and VISA from any claim or suit brought by Cardholder relating to any transaction with Merchant.

2.09 EXCESSIVE CHARGEBACKS AND RETRIEVAL REQUESTS

Merchant agrees that if Bank and Cardservice International are presented, during any monthly period, with

  1. chargebacks relating to Merchant’s transactions processed by Bank in excess of one percent (1%) of the average monthly dollar amount of such transactions or
  2. Documentation Retrieval Requests in excess of three percent (3%) of the total number of transactions processed, then such chargebacks or retrieval requests shall be conclusively deemed to be excessive under applicable MasterCard and VISA regulations. Bank and Cardservice International may thereupon terminate this Agreement or take such other action as may be authorized herein or by applicable MasterCard or VISA regulations. The percentage figure in this paragraph shall not be deemed to be, nor shall be, a limitation of Bank’s rights to establish a reserve pursuant to the terms of this Agreement. Merchant agrees that the amount or extent of any such reserve shall be based on Bank and Cardservice International’s reasonable estimation of the need for it, in light of circumstances known to them at the time.
ARTICLE 3 – TERMINATION, MODIFICATION AND COMPLIANCE WITH LAW

3.01 COMPLIANCE WITH LAW

Merchant shall comply with all laws, ordinances and regulations applicable to Merchant, Merchant’s business and any Card transaction, including without limitation all state and federal consumer credit and consumer protection statutes and regulations. Neither Bank nor Cardservice International shall have any obligation to notify or advise Merchant of the existence of such laws or changes in such laws. Merchant warrants that it has the right to sell the products it sells and to use the trade names it uses.

3.02 MODIFICATION

This Agreement is subject to such modifications, changes and/or additions as may be required, or determined by Bank and Cardservice International, by reason of any state or federal statute, judicial decision, MasterCard or VISA rules or regulations, or the regulation or ruling of any federal agency having jurisdiction over Bank and Cardservice International or Merchant. Such modifications, changes and additions may be made unilaterally by Bank and Cardservice International, shall be in writing and shall be effective immediately upon dispatch by Bank and Cardservice International.

This Agreement may only be modified as approved in writing by the Bank and the corporate office of Cardservice International. No field representative of Bank or Cardservice International is authorized to make any modification to this Agreement or to make any representation which is not set forth in this Agreement.

3.03 REFUSAL OR REVOCATION OF CREDIT AND REPAYMENT BY MERCHANT

Bank may refuse to accept any sales draft or revoke its prior acceptance thereof in any one or more of the following circumstances:

  1. The transaction giving rise to the sales draft was not made in compliance with all terms and conditions of this Agreement, as well as all applicable laws, rules or regulations; or
  2. The Cardholder disputes his or her liability to Bank and Cardservice International or other issuer for any reason including, but not limited to, those chargeback rights enumerated in MasterCard and VISA operating regulations in effect from time to time; or
  3. The transaction giving rise to the sales draft was not a bona fide transaction directly between Merchant and Cardholder. Merchant shall not accept any transaction on behalf of any other person or persons, or any other business.
No Merchant shall process any transaction accumulated prior to the issuance of a Merchant Number. If such refusal or revocation occurs, Merchant shall, in addition to any penalties and fees, immediately repay Bank the full amount credited by Bank to Merchant’s account on the basis of such sales draft.

3.04 TERMINATION

The term of this Agreement shall be six (6) months unless otherwise provided for herein. Notwithstanding this six (6) month term, and any renewals of that term as provided for in paragraph 3.05 of this Agreement, Merchant may terminate this Agreement by giving thirty (30) days written notice to Bank and Cardservice International and concurrently with said notice, paying Cardservice International $300.00 as an early cancellation fee. Furthermore, if this Agreement is terminated because of Merchant’s breach of any of its obligations, such termination shall also be deemed an early cancellation and will require the Merchant to pay to Cardservice International the early cancellation fee of $300.00. Merchant and Cardservice International mutually agree that said $300.00 is a reasonable estimate of the costs and expenses Cardservice International will incur as a result of any early cancellation of this Agreement by Merchant. For a period of six (6) months from the effective date of this Agreement, Cardservice International will not increase the initial discount rate offered to Merchant except as that rate is affected by any increased charges to Cardservice International in Interchange, Assessments and Communication costs from MasterCard, VISA and communications suppliers, or any other fees beyond Cardservice International’s control. This rate guarantee is void, if Merchant has a higher than allowable percentage of keyed transactions, retrievals or chargebacks or if this Agreement is in a renewal period. Notwithstanding the six (6) month term, Bank may terminate this Agreement, without cause, upon thirty (30) days prior written notice to Merchant. Bank may terminate this Agreement immediately for cause if any of the following occur:

  1. If Merchant is or becomes bankrupt or is otherwise unable to pay its debts as they become due; or
  2. If Merchant violates any term, condition, covenant or warranty of this Agreement; or
  3. If Merchant is identified on the Combined Terminated Merchant File. MERCHANT ACKNOWLEDGES THAT SUCH IDENTIFICATION IS GROUNDS FOR IMMEDIATE TERMINATION OF THIS AGREEMENT AND OF IMMEDIATE TERMINATION OF SERVICE.
Upon the effective date of any termination, Merchant’s rights to make Card transactions, to deposit transactions with Bank and Cardservice International and to use sales draft forms, credit draft forms, promotional material and/or any other items provided or made available through Bank and Cardservice International shall cease. However, Merchant’s obligations in connection with any Transaction Record accepted by Bank and Cardservice International before or after termination shall survive such termination including, without limitation, Merchant’s chargeback obligations. Following the effective date of termination, Merchant shall maintain funds on deposit on account available to Bank for a reasonable time. Based upon Cardholder and Issuer chargeback rights, the amount of funds shall be reasonably adequate to cover all chargeback deposit charges, refunds, and fees, including, but not limited to, costs for accounting, investigation and account management, incurred by Bank and Cardservice International pursuant to this Agreement, MasterCard or VISA operating regulations, or the regulations of any processing facility shall be maintained in such account. Bank is hereby irrevocably authorized by Merchant to charge such account or other accounts maintained by Merchant, for the amount of such matters. Merchant shall pay Bank for all such matters upon demand by Bank, together with all costs and expenses incurred by Bank and Cardservice International, including reasonable attorneys’ fees.

3.05 AUTOMATIC RENEWAL

This Agreement will be automatically renewed for successive periods of six (6) months unless either party notifies the other, in writing, of its intention not to renew no less than thirty (30) days and no more than ninety (90) days prior to the end of each term.

3.06 TERMINATED MERCHANT FILE AND MATCH FILE

MERCHANT EXPRESSLY ACKNOWLEDGES that a Terminated Merchant File (“TMF”) or any successor thereto is maintained by MasterCard containing the business name and names and identification of principals of Merchants which have been terminated for one or more of the reasons specified in MasterCard or VISA operating regulations. Examples would be, but are not limited to, fraud, counterfeit drafts, unauthorized transactions, excessive chargebacks and retrieval requests, laundering or where a high security risk exists.

MERCHANT ACKNOWLEDGES THAT BANK AND CARDSERVICE INTERNATIONAL ARE REQUIRED TO REPORT THE BUSINESS NAME OF THE MERCHANT AND THE NAMES AND IDENTIFICATION OF ITS PRINCIPALS TO THE TMF WHEN A MERCHANT IS TERMINATED FOR ONE OR MORE OF THE REASONS SPECIFIED IN MASTERCARD OR VISA OPERATING REGULATIONS. MERCHANT EXPRESSLY AGREES AND CONSENTS TO SUCH REPORTING BY BANK AND CARDSERVICE INTERNATIONAL.

ARTICLE 4 – GATEWAY PROGRAMMING

4.01 APPLICABILITY TO THIS AGREEMENT

In addition to all other provisions of this Merchant Agreement, the provisions of this Article 4 shall apply if Merchant has elected to utilize the electronic commerce payment system offered by Cardservice International.

4.02 ELECTRONIC PAYMENT SYSTEM

So long as Merchant is current in the obligations to Cardservice International and is not otherwise in breach of this Merchant Agreement, Cardservice International shall provide Merchant the use of its Internet-based electronic payment system.

4.03 PROGRAMMING OF WEB SITE

While Cardservice International provides specific APIs or programming scripts to Merchant or Merchant’s Web site programmer(s), Merchant acknowledges that such sample programming scripts are insufficient to allow the Merchant’s Web site to function with the LinkPoint Secure Payment Gateway. Programming of the Merchant Web site and its functionality are the sole responsibility of Merchant.

4.04 MERCHANT’S PROGRAMMING AGENT

Merchant has the sole responsibility to select and employ any competent programming agent to accomplish the programming required to make the Merchant’s Web site function correctly with the LinkPoint Secure Payment Gateway.

4.05 FEES SUBJECT TO FLUCTUATION

All fees for Gateway service are based on the number of monthly transactions processed by Merchant. The amount of these fees will therefore fluctuate based on Merchant’s volume. The Merchant Agreement provisions requiring notice prior to a change in fees shall not apply to any transactions governed by this Article 4.

4.06 TECHNICAL SUPPORT

Merchant shall be responsible for all technical support for Web site- related issues.

4.07 SHUT DOWNS

Cardservice International reserves the right, from time to time, without prior notice, to shut down and restart the LinkPoint Secure Payment Gateway service for maintenance and/or software upgrades for time periods of at least one (1) minute and generally not exceeding five (5) minutes.

ARTICLE 5 - LINKPOINT VIRTUALCHECK

DEFINITIONS

LinkPoint VirtualCheck Discount Rate
Negotiated percentage rate set forth in the Merchant Application section of this Agreement.

LinkPoint VirtualCheck Transaction Fee
A charge for each LinkPoint VirtualCheck transaction submitted to Cardservice for processing. This is in addition to any transaction fee charged for bankcard transactions.

LinkPoint VirtualCheck Return Item Fee
A charge for each LinkPoint VirtualCheck item returned to Cardservice.

LinkPoint VirtualCheck Transaction Cancellation Fee
A charge for canceling a LinkPoint VirtualCheck transaction not yet submitted to the ACH system.

LinkPoint VirtualCheck Reversal Fee
A charge for canceling a LinkPoint VirtualCheck transaction that has already been submitted to the ACH system. A second ACH transaction is submitted to reverse a prior ACH transaction. The LinkPoint VirtualCheck reversal fee is $15.00 per occurrence.

LinkPoint VirtualCheck Non-conforming Transaction Fee
A penalty charged to the merchant for violations of the Rules and/or Regulations. The LinkPoint VirtualCheck non-conforming transaction fee is $100.00 per occurrence.
5.01 PURPOSE Cardservice International will provide Merchant Automated Clearing House (“ACH”) services. These transactions will be placed through a bank with whom Cardservice International has a relationship and who will be acting as the Originating Depository Financial Institution (“ODFI”). Cardservice International will debit money (“Debit Entry”) for purposes of collecting Automatic Payments from the accounts of the Merchant’s customers (“Customers”) and/or credit money (“Credit Entry”) for the purpose of paying Merchant’s accounts payable. Cardservice International will provide these services in accordance with the terms and conditions of this Agreement, the Operating Rules (“Rules”) of the National Automated Clearing House Association (“NACHA”) and the applicable Federal Regulations (“Regulations”) governing ACH transactions as they exist at the time of your transactions. “Entry” shall mean either a Credit Entry or a Debit Entry. All provisions of Merchant Agreement shall remain in full force and effect and are reaffirmed, including but not limited to Cardservice International’s right to establish reserve accounts, hold back procedures and the granting of security interests.

5.02 ANTICIPATED VOLUME

Merchant acknowledges that if any of the anticipated monthly LinkPoint VirtualCheck volume amount, average LinkPoint VirtualCheck ticket amount or maximum LinkPoint VirtualCheck transaction amount are exceeded, Cardservice International has the right to terminate or suspend services or to impose such other conditions as it, in its sole and absolute discretion, deems appropriate.

5.03 REPRESENTATIONS BY MERCHANT

With respect to all Entries Merchant asks Cardservice International to originate, Merchant covenants and represents that:

  1. Each Customer has authorized the debiting and/or crediting of its account;
  2. Each Entry is for an amount the Customer has agreed to; and
  3. Each Entry is in all other respects properly authorized.
5.04 REVOCATION OF AUTHORITY

Merchant shall cease initiating Entries immediately upon receipt of actual or constructive notice of a Customer’s termination or revocation of Merchant’s authority.

5.05 IDENTIFYING NUMBERS

Merchant understands that Cardservice International may rely solely on identifying numbers provided by Merchant or Customer to determine the bank and account of a Customer even if the numbers identify a bank or account holder different from the one identified by name.

5.06 REGULATORY COMPLIANCE

Merchant shall be responsible for conforming its policies and procedures with the Rules and Regulations. Merchant is urged to consult Merchant’s counsel regarding such compliance.

5.07 NOTICE OF ERRONEOUS/UNAUTHORIZED TRANSFERS

Merchant shall regularly and promptly review all entries and other communications sent to Merchant and to immediately notify Cardservice International if any discrepancy exists between Merchant’s records and those provided by Cardservice International, the ODFI or Merchant’s bank or with respect to any transfer that Merchant believes was not authorized by Merchant or Customer. If Merchant fails to notify Cardservice International within fourteen (14) calendar days after the date that Cardservice International mails or otherwise provides a statement of account or other report of activity to Merchant, Merchant will be responsible for all losses or other costs associated with any erroneous or unauthorized transfer. The foregoing does not limit Merchant’s liability for other breaches of this Agreement.

5.08 PROCESSING ENTRIES

Cardservice International is only responsible for processing Entries that have been transmitted by Merchant in a timely manner and in proper format. From time to time, Cardservice International will notify Merchant of the acceptable means of transmission, the proper format and of applicable cut-off times.

5.09 ORIGINATING TRANSACTIONS

Cardservice International will use the information provided by Merchant to originate Merchant’s entries to the ACH. Merchant acknowledges that Cardservice International may reject Merchant’s entries for any reason permitted or required by the Rules or Regulations. Merchant also acknowledges that Merchant’s Entry may be rejected by Cardservice International or its origination may be delayed if processing the Entry would cause Cardservice International to violate any Federal Reserve or other regulatory risk control program or any other law or regulation. At Merchant’s request, Cardservice International may make such efforts as it deems reasonable to reverse or delete an entry, but it shall not be required to do so. All requests shall be made in writing and faxed, delivered, mailed or otherwise transmitted to Cardservice International.

5.10 RETURNED ENTRIES

Cardservice International shall apply returned entries to Merchant’s account when they are received. Returned items reports will be available to Merchant via the LinkPoint Secure Payment Gateway.

5.11 NOTICE OF CHANGE INFORMATION AND RETRANSMISSION

Merchant shall not initiate entries until such time as the Notice of Change (“NOC”) information has been received and records have been updated. Cardservice International shall have no obligation to retransmit an entry if the original transmission was not in compliance with these terms and conditions. If Merchant requests that the return item be retransmitted, Cardservice International may do so in accordance with the Rules. Merchant shall pay any costs associated with the retransmission.

5.12 METHOD OF TRANSFER

Cardservice International will transfer all funds to a custodial account at Cardservice International’s ODFI. Merchant shall not be entitled to interest on such funds. Cardservice International will hold the funds until all preliminary returns have cleared. The funds will then be transferred to the financial institution and account of Merchant’s choice. The standard hold period is five (5) banking days. Should questionable activity occur, or if the Merchant’s return rate increases significantly, this hold period may be extended by Cardservice International at its absolute discretion.

5.13 SETTLEMENT AND FINALITY

After expiration of the hold period for debit entries, Cardservice International will conditionally credit Merchant’s account. However, this credit will not become final until Cardservice International has been paid the full amount of the entries in immediately available funds and all of Customer’s rights to dispute the transaction have expired and the transaction has become irreversible in all other ways. If any debit entry is returned to Cardservice International, Merchant authorizes Cardservice International to debit Merchant’s account for the amount of the returned item plus fees and costs incurred by Cardservice International. If Merchant’s account has insufficient funds to cover Merchant’s obligations, Merchant shall pay Cardservice International the amount of any deficiency on demand in immediately available funds or Cardservice International may, without further demand or authorization, debit any account maintained by Merchant. Any credit entries created by Merchant will be debited from Merchant’s account in accordance with the hold period prior to the credit being distributed to Merchant’s payees’ accounts. If the debit entry is returned for any reason, the credit entry will be canceled.

5.14 REPORTS

Cardservice International shall make available to Merchant various activity reports via the LinkPoint Secure Payment Gateway.

5.15 LIMITS OF LIABILITY

Cardservice International will be responsible for its performance of the ACH services as a Third Party Processor in accordance with the Rules and Regulations. However, Merchant and Cardservice International agree that in addition to the limitations of liability contained in the Merchant Agreement, Cardservice International shall not be liable for errors, acts or failures to act of others, including but not limited to banks, communications carriers and clearing houses through which Entries may be originated or through which Cardservice International receives or transmits information. No such person or entity shall be deemed Cardservice International’s agent.

5.16 PRICING AND PAYMENT

Cardservice International will notify Merchant in writing of, and Merchant agrees to pay promptly, the fees and charges that Cardservice International establishes from time to time. The current fees and charges are set forth in the Application section of this Agreement. There are no additional fees for data storage. Merchant authorizes Cardservice International to obtain payment of these fees and any other amounts due it by debiting Merchant’s account and, in consideration for Cardservice International entering into this Agreement, and other good and valuable consideration, hereby irrevocably appoints Cardservice International as its attorney in fact to so do.

5.17 RELEASE OF INFORMATION

Unless required by law, or by the terms of this Agreement, Merchant shall not, under any circumstances, sell, purchase, provide, or otherwise disclose any Customer’s account information or other Customer personal information to anyone. Merchant shall store all data securely. Cardservice International may advise potential users of the services that Cardservice International has a relationship with Merchant.

5.18 TERMINATION

Cardservice International or Merchant may terminate the LinkPoint VirtualCheck Services called for in this Agreement at any time by written notice and without any cancellation fee. Any termination will not affect Merchant’s or Cardservice International’s rights or obligations arising before the termination.

5.19 NON-SUFFICIENT FUNDS (NSF) FEE

If Merchant has obtained Customer’s active prior consent to do so, Merchant may elect to charge Customers a NSF item fee as authorized by law but not to exceed $25.00. After receipt of instructions from Merchant and proof of Customer’s consent, Cardservice will attempt to collect such fee on Merchant’s behalf following a specified number of days after the principal is collected. No fee will be collected until the principal has been collected. “Active prior consent” means that if the notification occurred online, then the Customer must have affirmatively indicated their consent prior to being able to proceed with the submission of the check for payment.

ARTICLE 6 – DEBIT CARD PROGRAM

6.01 APPLICABILITY TO THIS AGREEMENT

In addition to all other provisions of this Merchant Agreement, the provisions of this Article 5 shall apply if Merchant elected to utilize the debit card online network.

6.02 SERVICES

Bank shall sponsor Merchant for membership in the debit card online network that Merchant has selected. Merchant acknowledges that sponsorship does not guarantee acceptance. Cardservice International shall process and settle Merchant’s debit card transactions.

6.03 MERCHANT OBLIGATIONS

Until and unless otherwise authorized by Cardservice International, Merchant shall utilize Cardservice International’s compatible terminals, PIN pads or systems capable of processing all Automatic Clearing House (ACH) debit card transactions as well as online debit card transactions. Merchant shall abide by all applicable laws, statutes and regulations in addition to all the rules and regulations of the debit card online network that Merchant has selected. Failure to do so shall subject Merchant, at Bank’s or Cardservice International’s sole discretion, to immediate termination. Merchant shall be responsible for all paper copy of debit card transactions, in accordance with the applicable debit card network rules. Within one business day of the original transaction, Merchant shall balance each location to the system for each business day that such location is open. Merchant shall be responsible for all telephone message unit costs, if any, as they are incurred by Merchant for any of the services that are provided. Unless specifically noted herein, the responsibility for the installation of and training in the use of terminals shall be with Merchant. Merchant shall be responsible for entering data correctly. If an entry is made incorrectly, Cardservice International shall use its best efforts to assist Merchant in correcting the entry, but cannot guarantee that the effort will be successful.

6.04 NO LIABILITY

Merchant agrees and acknowledges that neither Bank or Cardservice International shall have any liability, either in tort or in combination thereof, for claims arising from debit card transactions except in the case of gross or willful conduct on the part of Bank or Cardservice International. In no event shall Bank or Cardservice International be liable for special, consequential, indirect or exemplary damages, including lost profits, revenues and business opportunities.

6.05 DEBIT FEES

The debit fees as set forth on the Merchant Application are to be paid by Merchant. These fees are subject to change upon thirty (30) days prior notice to Merchant from Cardservice International. Merchant shall also be charged the network fees as set forth on the Merchant Application, on a per transaction, per network basis for the networks that service the Merchant’s location. NOTE: All fees and other charges shall be settled monthly through the Automated Clearing House (ACH).

ARTICLE 7 – CHECK GUARANTEE SERVICE

7.01 SERVICE PROVIDED

Cardservice International shall purchase from Merchant all U.S. and Canadian first party, personal, and company checks that are within Merchant’s guarantee limit and that have been received by Merchant in the ordinary course of business as payment for goods and/or services, but which have been returned unpaid to Merchant, provided Merchant has followed the procedures set forth herein and is not otherwise in breach of this Agreement.

7.02 EXCLUSIONS

The following are excluded from the Check Guarantee Service:

  1. Payroll checks;
  2. Starter, counter, and temporary checks;
  3. “Pre” and “post dated” checks;
  4. Checks on which payment has been stopped including insufficient fund checks on which payment is subsequently stopped;
  5. Checks written for split or partial sales. A split sale is a single sale for which Merchant accepts two checks or a check and cash. Partial payments are an initial deposit for goods purchased or for services to be rendered. Examples of partial payments include any lay-away, down payment, or retainer fee for services;
  6. Any unsigned check, whether presented directly by checkwriter or created by merchant; and
  7. Any check drawn as a cash advance on a credit card account provided this is reasonably evident on the face of the check. The determination of “reasonably evident” shall be in the sole discretion of Cardservice International.
7.03 AMOUNT OF CARDSERVICE INTERNATIONAL OBLIGATION

Cardservice International’s obligation under paragraph 7.01 is limited to the face amount of the check, up to the warranty limit only. Charges associated with bad checks, such as non-sufficient fund fees and rejected item fees, are not covered by this Agreement.

7.04 MERCHANT’S GOOD STANDING

Merchants who have appeared or appear on the MasterCard and Visa Combined Terminated Merchant File (TMF) or any successor thereto are not eligible for Cardservice International’s Check Guarantee Service. Merchant represents that it has not been and is not currently listed on the MasterCard and Visa TMF. If Merchant is listed in the TMF in the future, this Agreement shall automatically terminate as of the date of such listing.

7.05 OBLIGATIONS UPON PRESENTMENT OF CHECK

Merchant shall, at the time a check is presented, do the following:

  1. Obtain valid identification from the person presenting the check and correctly enter this information into the point-of-sale terminal. The name on the identification must match the name imprinted on the check. Acceptable identification consists of any one of the following:
    1. Valid U.S. driver’s license;
    2. Valid Canadian driver’s license; or
    3. Valid State Identification Card.
    Merchant shall identify the issuing state for each U.S. identification on the check and when entering the information into the terminal.
  2. Obtain an approval code from Cardservice International. The person presenting the check must be present at the time of approval.
7.06 INFORMATION APPEARING ON CHECKS

The following information must appear on the face of each check:

  1. The approval code must be written on the face of the check at the time of approval.
  2. Company checks must be imprinted by the bank showing the name, address, and telephone number of the company. The name and driver’s license number of the person presenting the company check must also be printed or written on the face of the check.
  3. Personal checks must have the name of the checkwriter imprinted by the bank. The checkwriter’s telephone number and address must also appear on the check, either imprinted, or handwritten. P.O. Box numbers are not acceptable.
  4. Canadian checks must be written for U.S. funds only. The words “U.S. Funds Only” must appear on the face of the check.
  5. Any written changes on the check, including date, amount, or phone number must be initialed by the checkwriter.
  6. The check must be made payable to Merchant’s business. It may not be payable to any individual person.
  7. The check date and the authorization date must be the same.
  8. The dollar amount shown in words and figures must be the same.
7.07 ADDITIONAL CHECK REQUIREMENTS

In order for a check to be covered by this Agreement, the following requirements must also be met:

  1. Only one check, per checkwriter, per checking account, per day, up to the guarantee limit, is covered by this Agreement.
  2. The identification number must be entered correctly into the point- of-sale terminal. Any alphabetic letter that is part of an identification number must be entered correctly as an alphabetic character into the point-of-sale terminal.
  3. The check must be deposited into the Merchant’s bank account within three (3) business days of its receipt.
  4. The dollar amount of the check must be entered correctly in the point-of-sale terminal.
  5. Cardservice International must receive the dishonored checks and completed Check Purchase Request Forms within thirty (30) days of the check date. Checks received by Cardservice International on or before the last day of the month will be paid on the 25th day of the following month.
  6. Merchant’s account with Cardservice International must be current in order to receive warranty payment.
7.08 REASSIGNMENT OF CHECKS

Cardservice International may, at its sole option, reassign to Merchant any check purchased by Cardservice International if:

  1. The goods and/or services for which the check was issued in payment have been returned to Merchant or have not been delivered by Merchant, or the checkwriter claims that Merchant’s services were unsatisfactory.
  2. Merchant has received full or partial payment or has received any type of security to secure payment of the check assigned to Cardservice International;
  3. The transaction for which the check was tendered is for any reason illegal, null, or invalid;
  4. The check is written on questionable or unusual paper; or
  5. The transaction is for something other than goods or services, for example, but not limited to, check cashing or loans.
7.09 MERCHANT’S DUTY TO ADVISE

Merchant shall immediately advise Cardservice International of any circumstances that occurred as specified in paragraphs 7.08a and 7.08b within 48 hours of such circumstances. Failure to advise Cardservice International will result in immediate termination of this Agreement and may result in imposition of additional fees and assessment of damages resulting to Cardservice International. Once a check has been reassigned to Merchant, Cardservice International shall have no obligation with respect to such reassigned check.

7.10 COOPERATION

Merchant shall, within two (2) days of request, provide Cardservice International with any Police Reports, Affidavits of Forgery, or other documents relating to an assigned check. If Cardservice International requires any additional information, Merchant shall promptly supply such information upon Cardservice International’s request. Merchant shall cooperate with Cardservice International in collecting Merchant’s assigned checks. For example, Merchant shall assist, to the extent Cardservice International deems necessary, in preparing and filing police reports, identifying suspects, and appearing as a witness in any court proceeding relating to Merchant’s assigned, dishonored checks.

7.11 ASSIGNMENT OF CHECKS TO CARDSERVICE INTERNATIONAL

Provided Merchant has complied with all provisions of this Agreement, Cardservice International shall purchase all dishonored checks from Merchant. Merchant shall transfer and assign to Cardservice International all such checks, together with all rights, title, and interest therein.

7.12 EXECUTION OF SEPARATE ASSIGNMENTS

Merchant shall execute and submit a separate assignment (Check Purchase Request Form) for each assigned check.

7.13 MONTHLY MINIMUM

Merchant shall pay a minimum monthly charge of $25.00.

7.14 DISCOUNT PERCENTAGE

Merchant shall pay Cardservice International discount percentages and transaction fees at the rate set forth on the Merchant Application section of this Agreement as approved by Cardservice International’s Corporate Check Guarantee department.

7.15 DOCUMENTATION FEE

If Cardservice International is required to provide copies of any documents to Merchant, e.g., statement copies, Merchant shall pay Cardservice International a fee of $2.00 per each page provided.

7.16LATE FEE

Cardservice International shall invoice all charges on the 1st day of each month. Merchant shall pay these charges promptly. Merchant’s failure to pay Cardservice International by the 15th of the month shall result in the assessment of a $5.00 per month late charge for each month that Merchant’s account has a delinquent outstanding balance.

7.17 REINSTATEMENT FEE

A $15.00 service charge shall be assessed to reinstate service to any closed account. At Cardservice International’s discretion, Merchant may be required to provide a security deposit to secure payment of fees or charges incurred by Merchant.

7.18 CHANGE IN FEES AND CHARGES

Any of the fees and charges referenced in this Agreement are subject to adjustment by Cardservice International upon thirty (30) days notice to Merchant.

7.19 LIEN

In order to secure timely payment of all amounts owing by Merchant to Cardservice International, Merchant hereby grants Cardservice International a lien on Merchant’s designated DDA account and further grants Cardservice International the right to unilaterally deduct fees or charges owing to Cardservice International by Merchant from said account.

7.20 SET-OFFS

Cardservice International reserves the right to set-off funds due Merchant if the Merchant’s accounts receivable are delinquent. Cardservice International may exercise its set-off rights without prior notice to Merchant.

7.21 MERCHANT’S BUSINESS NEED FOR INFORMATION

Merchant warrants and represents that it has a legitimate business need for the information it will request. Merchant further warrants and represents that the information it requests shall be used only in compliance with local, state, and federal legislation and regulations. Merchant agrees to certify, in writing, that all foregoing information has been surrendered to Merchant.

7.22 NONDISCLOSURE

Neither Merchant or its employees or agents shall disclose the results of any inquiry made to Cardservice International except to the person about whom such inquiry was made. In no case shall the results of any inquiry be disclosed to any person or entity outside of Merchant’s organization. Merchant agrees to indemnify and hold Cardservice International harmless from all claims or liability arising directly or indirectly from Merchant’s use of the information supplied by Cardservice International. If Merchant rejects any check based wholly or partly on information obtained from Cardservice International, Merchant shall advise the consumer of that fact and provide the consumer with Cardservice International’s name and address.

7.23 CONFIDENTIAL INFORMATION ABOUT MERCHANT

While providing services pursuant to this Agreement, Cardservice International may receive private or confidential information about Merchant. Cardservice International shall use its best efforts to keep such information confidential. This shall not prohibit disclosure of such information to persons requiring the same in order to perform Cardservice International’s obligations under this Agreement. Merchant understands that because of the services it provides, Cardservice International may be subject to examination by state or federal regulatory agencies and may be required to supply such agencies with information pertaining to Merchant.

7.24 TRAINING

Merchant shall conduct an initial check guarantee seminar for all employees at each store location and shall permit Cardservice International to conduct periodic check guarantee seminars at a frequency of not more than once a year at each store location.

7.25 OTHER SERVICES

Merchant shall notify Cardservice International if Merchant is using Cardservice International in conjunction with any other check verification or authorization service.

7.26 MERCHANT CHANGES

Merchant shall notify Cardservice International of any changes in its terminal supplier, depositing bank relationship, business checking account, business, or residence address and/or telephone number, or any other information that affects the communication links between it and Cardservice International. All notices must be in writing and transmitted to Cardservice International in accordance with paragraph 7.29 of this Agreement.

7.27 INFORMATION

Merchant shall promptly and regularly provide Cardservice International with current information regarding all of Merchant’s check cashing and credit card experience relating to insufficient funds, forgeries, nonexistence, and closed accounts and other information indicating bad risk experience. No original documents are to be provided for reporting purposes. All reported information becomes the property of Cardservice International.

7.28 DISPLAY AND ADVERTISING

Merchant shall prominently display the Cardservice International and Check Guarantee logo at each location and payment counter where checks may be tendered. Merchant shall have the right to use all decals, identification data, and other materials furnished by Cardservice International during the effective dates of this Agreement. Merchant shall return all such materials to Cardservice International or destroy them (at Cardservice International’s option) on the termination of this Agreement. Merchant consents to Cardservice International’s use of Merchant’s name in its promotional and advertising material.

7.29 NOTICES

All notices shall conform to the provisions of paragraph 9.07 of this Agreement. However, any notice pertaining to Check Guarantee shall be directed to:

Cardservice International
Department CG-47
P.O. Box 2310
Agoura Hills, CA 91376-2310
Facsimile (818) 878-8424

ARTICLE 8 – OTHER FEES AND SUPPORT

Fees
Monthly Minimum Charge$25.00 minimum
Customer Support Fee$10.00 per month
Providing Any Documentation$ 2.00 per page
Checking Account Change$25.00 per change
Reject Fee$15.00 per item, or
$25.00 per daily batch

DISCOUNT PERCENTAGES

Qualified – Negotiated percentage rate set forth in the Merchant Application section of this Agreement. Mid-Qualified – Refer to the Merchant Application Section of this Agreement for current pricing. Non-Qualified – Refer to the Merchant Application Section of this Agreement for current pricing. As mandated by VISA, all direct marketing merchants (businesses where the credit card is not present at the time of the sale) and non-direct marketing merchants who accept mail order and telephone order transactions must utilize the Address Verification Service (AVS) or face additional Non-Qualifying fees as well as increased risk. All AVS inquiries will incur a $0.05 AVS fee.

BATCH HEADER FEE

A Merchant is billed a batch header fee each time a batch is transmitted to the Host for settlement. The batch header fee ranges from $0.20 cents to $0.30 cents. This fee is negotiated and assigned by the Agent or sales representative at the time the Merchant applies for an account.

TRANSACTION FEE

A Merchant is billed a transaction fee each time communication is made with the Host via the POS Terminal. This fee is negotiated and assigned by the Agent or sales representative at the time the Merchant applied for an account.

8.01 IMPRINTERS, TERMINALS AND SUPPLIES

Merchant shall have imprinter(s) and terminal(s) used to process Card transactions, and shall maintain them in good working order and shall notify Bank and Cardservice International prior to any change of the imprinted or programmed information. Merchant is under no obligation to purchase or lease imprinter(s) and terminal(s) from Cardservice International. However, all imprinters, terminal(s) or other equipment provided to Merchant by Cardservice International shall remain the property of Cardservice International until fully paid for. Merchant hereby grants to Cardservice International a security interest in such equipment for so long as any amount remains to be paid. Merchant agrees and authorizes Cardservice International to debit Merchant’s bank account to pay for terminal(s), equipment and/or operational supplies until the entire balance of said terminals, equipment and/or operational supplies is paid in full. Cardservice International may upgrade or otherwise modify its computer system at any time without prior notice to Merchant. Merchant agrees to provide Cardservice International access to Merchant’s computer terminals in the event that Cardservice International deems it necessary in order to upgrade or otherwise modify its system.

8.02 DISCOUNT PERCENTAGE

Merchant shall pay Bank discount percentages, batch header fees and transaction fees for processing the credit card drafts. The discount percentages shall include consideration for Qualifying, Mid-Qualifying and Non-Qualifying transactions. Merchant hereby authorizes Bank to debit any of the Merchant’s Accounts for payment of any and all fees and the discount percentage which shall be paid at the rate established as set forth on the Merchant Application portion of this Agreement. Said discount percentage may be revised from time to time upon thirty (30) days written notice to Merchant except as noted in section 1.17 of this Agreement.

8.03 MONTHLY MINIMUM

Merchant shall pay a monthly minimum charge of $25.00 or such other sum as may be determined by Bank and Cardservice International from time to time upon thirty (30) days notice to Merchant.

8.04 CUSTOMER SUPPORT FEE

Merchant shall pay to Bank and Cardservice International a Customer Support Fee of $10.00 per month or such other sum as may be determined by Bank and Cardservice International from time to time upon thirty (30) days notice to Merchant.

8.05 REJECT FEE

Merchant acknowledges that failure by Merchant to maintain sufficient funds in its checking account to execute its obligations under this Agreement will result in the imposition of a Reject Fee in the amount of $15.00 per item or $25.00 per daily batch as applicable. This fee is subject to change as may be determined by Bank and Cardservice International from time to time upon thirty (30) days notice to Merchant.

8.06 DOCUMENTATION FEE

If Bank and Cardservice International are required to provide documentation, such as, by way of example only, statement copies, Merchant shall pay to Cardservice International a fee of $2.00 per page provided to Merchant. This fee is subject to change as may be determined by Bank and Cardservice International from time to time upon thirty (30) days notice to Merchant.

ARTICLE 9 – GENERAL PROVISIONS

9.01 FORMS

Merchant shall use only such forms or modes of transmission for sales data as are provided or approved in advance by Bank and Cardservice International. Merchant shall not use forms or equipment available through Cardservice International except in connection with Card transactions hereunder. Cardservice International will make sales drafts and forms available by fee and on order of Merchant.

9.02 RECORDS

Merchant shall preserve a copy of the actual paper sales drafts and credit drafts for at least one (1) year after the date Merchant presents the transaction data to Bank and Cardservice International. Merchant shall retain original transaction data or make legible microfilm copies of both sides of such actual paper Transaction Records, and store for a minimum of three (3) years. Within three (3) calendar days of receipt of Bank and Cardservice International’s request, Merchant shall provide to Bank and Cardservice International, at Merchant’s cost, either the actual paper Transaction Record, if requested by Bank and Cardservice International, or a legible microfilm thereof comparable in size to the actual paper Transaction Records. In addition, Merchant shall, within three (3) calendar days of Bank and Cardservice International’s request, provide any other documentary evidence available to Merchant and reasonably requested by Bank and Cardservice International to meet its obligations under law, including, but not limited to, its obligations under the Fair Credit Reporting Act, or its obligations to otherwise respond to questions concerning Cardholder accounts. Following termination, for so long as Merchant is required to retain the same, Merchant shall promptly provide Bank and Cardservice International with all original and microfilm copies of records required to be retained at the time of termination. (a) Merchant assumes full and exclusive responsibility for the security of all data and records it obtains, whether received or in transit, or accumulates, as a result of entering into the Merchant Agreement with Cardservice International. Neither Bank or Cardservice International or their agents, contractors, licensees, employees, officers, directors or affiliates warrant the security of such data and records. Losses to Bank or to Cardservice International arising from any breach of such security shall give rise, inter alia, to charge back rights by Bank and Cardservice International.

9.03 CHANGE IN TRANSMISSION METHOD

Merchant shall give Bank and Cardservice International at least thirty (30) days prior written notice of its desire to alter in any material respect its medium of transmission of sales data and credit data to Bank and Cardservice International. Any change shall be subject to Bank’s and Cardservice International’s prior approval.

9.04 SUPPLEMENTARY DOCUMENTS

References to “this Agreement” include any supplementary agreements, addenda, appendixes and amendments and any other agreements, schedules, appendixes and amendments promulgated by Bank and Cardservice International and furnished to Merchant from time to time.

9.05 AMENDMENT

Bank and Cardservice International may amend this Agreement at any time by mailing written notice to Merchant of any amendment at least thirty (30) days prior to the effective date of the amendment. The amendment shall become effective on the date specified by Bank and Cardservice International unless Bank and Cardservice International receives Merchant’s notice of termination of this Agreement before such effective date.

9.06 MERCHANT ACCOUNT

In order to facilitate the transfer of payments between the parties hereto, or any affiliate thereof, Merchant may maintain a commercial deposit account with Bank. Said account shall be subject to such terms and conditions (including, without limitation, the imposition of service charges and fees) as may be agreed to by Bank and Merchant. In the absence of any express written agreement, the standard terms and conditions applicable to commercial deposit accounts offered by Bank shall apply. As amounts become payable, whether or not under this Agreement, to Bank and/or Cardservice International (including any company affiliated with Cardservice International), or to Merchant under this Agreement, Bank may, unless otherwise agreed in writing, make payments to or receive payments from Merchant by crediting or debiting such account without prior notice. If such a commercial deposit account is not maintained by Merchant, payment between the parties shall be made in a manner satisfactory to Bank and Cardservice International.

9.07 ALL NOTICES

All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if delivered personally. If Merchant transmits by U.S. Mail, postage pre-paid, notice shall be deemed served upon confirmed receipt by Bank and Cardservice International. If service by Cardservice International facsimile transmission is used, Merchant shall mail the original of the communication to the receiving party on the date of transmission, by first class mail, postage pre-paid and it shall be deemed served on the day of confirmed receipt by Bank and Cardservice International. If Bank and/or Cardservice International use service by Cardservice International facsimile transmission, service is deemed to have been duly given on the day of transmission. If Cardservice International facsimile transmission is not used, notice shall be given by, first class mail, postage pre-paid and it shall be deemed served on the day of mailing. Unless otherwise required by this Agreement, all communications to Cardservice International must be addressed as follows:

Cardservice International, Inc.
Attention: Merchant Services
P.O. Box 2310
Agoura Hills, CA 91376-2310
Facsimile: (818) 880-9898

Communications to Merchant shall be addressed to the address appearing on the Merchant Application. Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.

9.08 EFFECT OF HEADINGS

The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.

9.09 POINT-OF-SALE TERMINAL SERVICES

The point-of-sale terminal (POS) can be utilized to obtain various services, some of which originated with Bank and Cardservice International, and others which are provided by a third party. These services include authorization and electronic draft capture for major credit cards, and other data needed to process information electronically. Merchant agrees that when the services do not originate with Bank or Cardservice International, Merchant will abide by the regulations of the third party, provided that said regulations do not contradict or infringe upon MasterCard, VISA, Bank, and Cardservice International regulations. Merchant agrees to release Bank and Cardservice International from all liability for any damage to Merchant arising from services which do not originate from Bank and/or Cardservice International.

9.10 ADHERENCE

Merchant agrees to be responsible and liable for adhering to all provisions of this Agreement without exception and in full. Failure to abide by the provisions herein constitute, among other remedies provided for herein, grounds for possible interruption or termination of service.

9.11 CHANGE IN BANKING INFORMATION

Merchant shall notify Cardservice International of any change in business checking account, change of bank or any other banking information. Merchant shall pay Cardservice International a fee in the amount of $25.00 for each checking account change.

9.12 TIME LIMITATION FOR ASSERTING CLAIMS AND INSTITUTING ACTIONS

Despite any statute to the contrary, any claim arising from or relating to this Agreement (whether contract, tort, or both) shall be brought within two (2) years after it arises, provided that with respect to any claim or dispute concerning fees, charges or other costs charged to Merchant, Merchant must have, within ninety (90) days of the assessment of any disputed fee, charge or costs, appealed such determination to Cardservice International in writing by United States certified mail, return receipt requested, and such appeal must have been denied.

9.13 INDEMNIFICATION

Merchant and Guarantor shall, jointly and severally, indemnify, defend, and hold harmless, Bank and Cardservice International, MasterCard and VISA, against and with respect to any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorneys’ fees, that Bank and Cardservice International, MasterCard and VISA shall incur or suffer, that arise, result from, or relate to any breach of, or failure by Merchant to perform any of its representations, warranties, covenants or agreements in this Agreement or in any schedule, supplemental agreement, appendix or other instrument furnished or to be furnished to Merchant under this Agreement or in the event Bank or Cardservice International are named as parties to any litigation involving Merchant brought by a party not party to this Merchant Agreement.

9.14 LIMITATION OF LIABILITY

Bank and Cardservice International’s liability to Merchant with respect to any Card transaction shall not exceed the amount represented by the Transaction Record in connection with that transaction, less any applicable discount or fees. Bank and Cardservice International shall in no event be liable for any incidental or consequential damages whatsoever.

9.15 ENTIRE AGREEMENT; WAIVER

This Agreement, together with supplemental agreements, appendixes and schedules, constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

9.16 RESERVE ACCOUNT

In addition to the security interest and chargeback rights granted to Bank by Merchant, Merchant hereby authorizes Bank to establish a Reserve Account, with or without prior notice to Merchant, at any time prior to, at or after termination of this Agreement, to ensure Bank’s recovery of any liabilities owed it or reasonably anticipated to be owed it by Merchant pursuant to this Agreement.

  1. Such liabilities include, but are not limited to, those arising out of actual and/or potential post-termination chargebacks, as well as any and all post-termination fees, including, but not limited to, costs for accounting, investigation and account management, charges and expenses due or anticipated to be due Bank from Merchant.
  2. Merchant agrees that if Bank does establish the Reserve Account, it shall be in any amount that Bank, in its sole discretion, deems reasonable under the circumstances. The Reserve Account may be funded and/or replenished by Bank’s withholding or withdrawing from, or freezing all or any part of, the Commercial Account and/or accounts maintained by Merchant with Bank. Unless Bank agrees otherwise in writing with Merchant, the Reserve Account shall not bear interest.
  3. Bank may enforce its security interest in the Reserve Account without notice or demand. Bank’s right to sums owed it by Merchant pursuant to this Agreement shall in no way be limited by the balance or existence of the Reserve Account. Bank’s rights with respect to the Reserve Account, as well as the security interest granted Bank under this Agreement, shall survive the termination of this Agreement.
9.17 BANKRUPTCY

No assignee for the benefit of creditors, successor in interest, custodian, receiver, trustee in bankruptcy, debtor in possession, sheriff or any other officer of a court, or other person charged with taking custody of a party’s assets or business, shall have any right to continue or to assume or to assign this Agreement. In the event any party becomes insolvent, makes an assignment for the benefit of its creditors, files a petition or otherwise seeks relief under or pursuant to any other bankruptcy, insolvency or reorganization statute or proceeding, or if any party dissolves, discontinues or substantially discontinues its business or if a receiver, trustee, or similar officer is appointed for Merchant or for a substantial portion of Merchant’s business or assets, or if any judgment, writ of attachment execution, levy or similar process against any party is served on the others or is issued with respect to any substantial part (valued at twenty percent [20%] or more of the total tangible assets) of the property of any party, the other parties may, at their sole election, terminate this Agreement by written notice to the others.

9.18 LAW AND VENUE

This Agreement shall be construed in accordance with, and governed by, California law as applied to contracts that are executed and performed entirely in California. The parties agree that any suit, action, or proceeding arising out of or relating to this Agreement, or the interpretation, performance or breach of this Agreement, shall be instituted in any court of the State of California located in Los Angeles County. Each party irrevocably submits to the jurisdiction of those courts and waives all objections to jurisdiction or venue that it may have under the laws of the State of California or otherwise in those courts in any suit, action, or proceeding. The parties expressly stipulate, consent to and agree that the specific geographic location as the place of performance of this Agreement, in its entirety, shall be within the county of Los Angeles in the State of California. By this special contract, the exclusive venue for any action between them shall be within the county of Los Angeles in the State of California.

9.19 ASSIGNABILITY

Merchant may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Bank and Cardservice International. For purpose of this Agreement, assignment shall include, but not be limited to, transfer of control of Merchant and any ownership change which results in a new majority owner. Without such written consent, Merchant shall continue to be bound by this Agreement.

9.20 ATTORNEYS’ FEES AND COSTS

Merchant shall be liable for and shall indemnify and reimburse Bank and Cardservice International for any and all attorneys’ fees and other costs and expenses paid or incurred by Bank and Cardservice International in the enforcement of this Agreement, or in collecting any amounts due from Merchant to Bank and Cardservice International hereunder or resulting from any breach of any of the terms or conditions of this Agreement. In addition, whether legal action is contemplated or commenced against Merchant, Cardservice International shall be entitled to recover from Merchant all of its investigative and other costs related to searching for the whereabouts of Merchant or any Guarantor. Merchant authorizes Cardservice International, at its sole option and without prior notice, to deduct such investigative and other costs from any monies that Merchant may have on deposit with Cardservice International or which Merchant has previously authorized Cardservice International to access.

9.21 GUARANTORS

As a primary inducement to Bank and Cardservice International to enter into this Agreement with Merchant, the undersigned Guarantor(s), by signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Bank and Cardservice International pursuant to this Agreement, as it now exists or as it may be amended from time to time, whether before or after termination or expiration and whether or not Guarantor has received notice of any amendment. If Merchant breaches this Agreement, Bank and Cardservice International may proceed directly against Guarantor or any other person or entity responsible for the performance of this Agreement, without first exhausting its remedies against any other person or entity responsible therefore to it, or any security held by Bank.

9.22 FORCE MAJEURE

Bank and Cardservice International shall have no liability to Merchant for delay or failure to perform any part of this Agreement on account of an act of God or the public enemy, fire, explosion, flood, earthquake, riot, war, sabotage, accident, embargo or any circumstances of like or different character beyond Bank’s and Cardservice International’s reasonable control or by interruption or delay in transportation, inadequacy or shortage or failure of supply of materials, utilities, computer software, or equipment breakdown, labor trouble, or compliance with any order, direction, action or request of any governmental officer, department or agency.

9.23 CUMULATIVE REMEDIES

All remedies of Bank and Cardservice International hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of Bank and Cardservice International to exercise, and no delay in exercising any right or remedy hereunder, shall operate as a waiver of such right or remedy.

9.24 BREACH OF OTHER AGREEMENTS

This Agreement is the principal agreement between Merchant and Bank and Cardservice International. In order to further effectuate the subject matter of this Agreement, the parties acknowledge that a number of additional agreements may be entered into between them. Merchant hereby agrees that Merchant’s breach of any of those additional agreements shall also constitute a breach of this Agreement.

9.25 FIDUCIARY RELATIONSHIP

As provided in California Financial Code Section 952 as it now exists and as it may be amended from time to time, whenever Merchant has a deposit held arising from or subject to this Agreement with any bank which, pursuant to this Agreement, Merchant is not entitled to, Merchant’s entitlement to such deposit shall be as a fiduciary of Bank and Cardservice International until any claim by Bank and Cardservice International has been resolved. Merchant agrees that its failure to repay, within twenty (20) calendar days of notification, to Bank and Cardservice International funds Merchant is not entitled to, shall result in a presumption that Merchant intends to misappropriate such funds.

9.26 SECURITY INTEREST AND MERCHANT PERFORMANCE REQUIREMENT

To secure Merchant’s performance under this Agreement, including without limitation, Merchant’s obligations arising out of chargebacks; Merchant hereby grants, pursuant to the California Uniform Commercial Code, Bank and Cardservice International a security interest in Merchant’s electronic terminal, printer, imprinter and imprinter plate. Further, Merchant grants to Bank a security interest in all sales drafts, credit drafts, and in all deposits, regardless of source, made to Merchant’s account established or designated and maintained pursuant to this Agreement, as well as in the proceeds of those deposits, and in all other accounts maintained by Merchant. Bank may enforce this security interest by:

  1. Making an immediate debit (charge) to any account, without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the Automated Clearing House (ACH) system; and/or
  2. Freezing the entire account, without notice or demand of any kind, upon Bank and Cardservice International’s reasonable determination that Merchant has breached any term of this Agreement; and/or
  3. Taking possession of any or all of Merchant’s sales drafts, verifications and confirmations of transactions; and/or
  4. Taking possession of any and/or all of Merchant’s electronic terminals, printers, imprinters and imprinter plates.
Merchant shall provide any statement or notice that Bank and Cardservice International determines to be necessary to preserve and protect Bank’s security interest. Merchant’s granting of this security interest in no way limits Merchant’s liabilities to Bank and Cardservice International under this Agreement.

9.27 SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable, and binding on the parties.

9.28 MERCHANT NAME AND BUSINESS TYPE

Changes, by way of example only, business name change, business telephone and/or address change, or any banking information shall be submitted, in writing, to Bank and Cardservice International by Merchant under the terms provided in this Agreement. Merchant represents that it is engaged in the business specified on the Merchant Application portion of this Agreement. Merchant shall not process payment transactions for any other type of business.

* * *
This ends the Cardservice International Merchant Agreement.
The American Express® Card Acceptance Agreement follows.
* * *

American Express® Card Acceptance Agreement

By signing the Cardservice International Merchant Application and Agreement, I represent that I have read this Agreement and that the business entity indicated on the application above agrees to be bound by this Agreement. This Agreement becomes effective upon approval of such business entity to accept the American Express Card by American Express Travel Related Services Company, Inc. The terms and conditions found below apply to your acceptance of American Express Cards. The words, we, our and us, mean American Express Travel Related Services Company, Inc. You and your mean the business entity accepting the Card hereunder. American Express Card or Card shall mean any card or other account access device issued by American Express Travel Related Services Company, Inc., or its subsidiaries or affiliates or its or their licensees bearing the American Express name or an American Express trademark, service mark or logo. Cardmember means the person whose name is embossed on the face of the Card. Purchases made with the Card are Charges. You agree to accept the Card under the terms of this Agreement at all your Establishments in the United States, Canada, the U.S. Virgin Islands and Puerto Rico in payment for all goods and services sold (except as noted below). This includes sales made in person, by telephone, by mail or by any other method. Each location or method of conducting sales is an Establishment. By accepting Cards for the purchase of goods and/or services, you agree to be bound by this Agreement. If you do not wish to accept the terms of this Agreement, you must not submit Charges and you must notify us immediately and return all materials we provided to you. You further agree to comply with, and be bound by, our operating policies and procedures, as such may be amended from time to time.

HONORING CARDS

When a customer asks what payment methods are accepted, you will mention the American Express Card. You will honor the Card, and will not attempt to:

  1. dissuade the Cardmember from using the Card;
  2. criticize or mischaracterize the Card or any services or programs offered in connection with the Card;
  3. persuade the Cardmember to use any other credit, charge, debit card or other card or service; or
  4. impose any restrictions or conditions on the use or acceptance of the Card that are not imposed equally on the use or acceptance of other cards.
You represent and warrant that your policy is not to prefer any card over the American Express Card. You will not, directly or indirectly, state or publish or otherwise indicate a preference for any charge, credit, debit card or other card or service over the Card or participate in a program with a third party which so states or publishes or otherwise indicates a preference. You shall not promote the use of any other charge, credit, debit or other card or service (except for your own card which is issued solely by you and is usable only at your Establishments) more actively than you promote the use of the Card. You shall display American Express signs, decals or other identification prominently at your Establishments, with at least equal prominence with signs, decals or other identification that are displayed for other cards. You agree to display our “Take-One” containers filled with Card application forms. You will receive a $3.00 commission when we open a new Card account based upon a Card application from your Establishment.

DISCOUNT/MONTHLY FLAT FEE

The amount we charge you for accepting the Card shall be either:

  1. a percentage of the face amount of Charges you submit (Discount Rate); or
  2. a monthly flat fee (Monthly Fee).
The initial Discount Rate or Monthly Fee is indicated in this Agreement or otherwise provided to you in writing by us. We have the right to adjust the Discount Rate or Monthly Fee at any time. We also have the right to stop charging you a Monthly Fee and to start charging you by using a Discount Rate if the amount of Charges you submit exceeds a threshold amount determined by us.

PAYMENT

We will pay you in United States Dollars for the face amount of Charges you submit, minus: 1) the amount calculated using the Discount Rate (Discount) or the Monthly Fee (whichever is applicable); 2) any amounts you owe us; 3) any amounts for which we have Full Recourse; and 4) any Credits you submit. We will send payment to you in accordance with the payment plan you selected. If we charge you a Monthly Fee, we may debit your Account for such Monthly Fee. Establishments located in Canada must submit Charges in Canadian Dollars and will be paid in Canadian Dollars. You may not receive payment on behalf of any other entity. You may elect one of two other payment options. With the first such option, the Discount will not be deducted from the face amount of the Charges you submit. Instead, after each month, we will debit your Account for the aggregate Discount with respect to all of that month’s Charges. If you select this option, we have the right to add an additional 0.03% to your Discount Rate if the amount of Charges you submit exceeds a threshold amount determined by us. With the second option, at the time of each of our payments to you for Charges submitted, there will be a separate debit to your Account for the Discount related to such Charges. In both cases, when we pay you for the face amount of Charges you submit, we will deduct any Credits you submit and we will debit your Account for: 1) any amounts you owe us; and 2) any amounts for which we have Full Recourse. In order to be eligible for either option, you must: 1) submit all Charges to us electronically; 2) receive all payments electronically via ACH; and 3) be paid on the Basic Payment Plan.

Payment Method

You must participate in our Electronic Pay Program (Electronic Pay) unless:

  • You do not have a bank account and cannot get one or
  • Your bank does not have access to the Federal Reserve System to receive Automated Clearing House transactions.
Payments will be sent electronically via the Automated Clearing House of the Federal Reserve System (ACH) to the demand deposit account you designate (Account) at a domestic bank (Bank) that participates in ACH. Unless otherwise mutually agreed, we will initiate payment via ACH within three (3) business days of receiving and processing Charge Data. If your payment date falls on a day that our bank is not open for processing ACH payments, we will initiate payment on the next day our bank is open for processing ACH payments. You must provide us information about your Account and your Bank, and you must notify your Bank that we may have access to the Account for debiting and crediting the Account. We will not be responsible for any obligations or liabilities, including but not limited to incidental or consequential damages, over and above the amount of the applicable debit, credit or adjustment to your Account in the event that any such debit, credit or adjustment is not honored by your Bank or is improperly applied to your Account. There is an additional fee of 0.15% of the face amount of Charges you submit for participation in Electronic Pay. However, if you obtain Authorization for Charges electronically and transmit Charge Data to us electronically, you will not be charged the additional fee for participation in Electronic Pay.

There are three (3) payment alternatives as described below:

  • Basic Payment Plan: Payment is sent within three (3) business days after we receive and process Charges.
  • Economy Payment Plan: Payment is sent fifteen (15) calendar days after we receive and process Charges.
  • Extended Payment Plan: Payment is sent thirty (30) calendar days after we receive and process Charges.
If you are paid by check, we will charge a processing fee of 95 cents per check.

FULL RECOURSE

Full Recourse means our right to payment from you for the full amount of each Charge subject to such right. We may deduct, recoup and offset such amount from payments to you or you shall pay us promptly upon receipt of our invoice. We shall have Full Recourse with respect to a Charge if you do not comply with the terms of this Agreement, even if we had notice when we paid you for that Charge that you did not so comply and even if you obtained Authorization for the Charge in question. We will also have Full Recourse as provided elsewhere in this Agreement.

DISPUTED CHARGES

If we contact you regarding a claim, complaint, or question about any Charge (Disputed Charge) you must respond to us in writing or electronically within twenty (20) days after we contact you. We will have Full Recourse for the amount of the Disputed Charge if, by the end of that time period, you have not provided us with a written substantive response to our inquiry which enables us to resolve the dispute. If a Cardmember, despite your reply, continues to withhold payment for the Disputed Charge and the Cardmember has the right under applicable law to withhold such payment, we will have Full Recourse for such Charge.

CARD ACCEPTANCE PROCEDURES

Procedures for Card acceptance are set forth below. You must comply with any changes in these procedures of which we notify you.

In Person Charges

For Charges made in person, you must:

  • Verify that the Card is not visibly altered or mutilated;
  • Ensure that the Card is being used within the valid dates shown on the face of the Card;
  • Verify that the Card is signed in the same name as the name embossed on the front of the Card;
  • Create a Charge Record as described below and verify that the Cardmember’s signature on the Charge Record matches the signature on the back of the Card; and
  • Obtain Authorization as described below.
Other Charges

For all other Charges, such as Charges made by mail, telephone, via the Internet or at unattended Establishments, you must:

  • Obtain Authorization as described below; and
  • Create a Charge Record as described below, except with the words “Mail Order,” “Telephone Order,” “Internet” or “Signature on File,” as applicable, on the Cardmember signature line.
If the Cardmember denies making or authorizing such a Charge and you have not obtained the Cardmember’s signature for the Charge, we will have Full Recourse for such Charge. We will not have Full Recourse for such a Charge based upon a claim that the goods were not received if you have: 1) verified with us that the address to which the goods were shipped is the Cardmember’s billing address; and 2) obtained a receipt signed by an authorized signer verifying the delivery of the goods to such address. For Charges made via the Internet, you shall conform with any additional requirements we may have. For purposes of this Agreement, the term Internet shall also include online services, Worldwide Web and other similar networks.

Completing Charge Records

For every Charge you must create or complete a record of Charge (Charge Record) containing:

  1. the Card account number and expiration date via an imprinter or Card swipe device;
  2. the date the Charge was incurred;
  3. the amount of the Charge, which must be the total purchase price of the goods or services purchased plus applicable taxes;
  4. the Authorization approval code number;
  5. an acceptable description of the goods or services purchased;
  6. an imprint or other registration of your name, address and the Establishment Number we assigned;
  7. the Cardmember’s signature; and
  8. the words “No Refunds” if you have a No Refund policy.
Authorization

You must obtain an authorization approval code number from us (Authorization) for all Charges as described below, regardless of amount and except as otherwise expressly provided herein. Each Authorization request must be for the total purchase price of the goods or services purchased plus applicable taxes. Authorization is not a guarantee that we will accept the Charge without Full Recourse, nor is it a guarantee that the person making the Charge is the Cardmember. You agree to obtain Authorization for every Charge regardless of amount. If your electronic authorization terminal is unable to reach our computer authorization system for Authorization, or you do not have such a terminal, you agree to obtain Authorization for all Charges by calling us at our authorization telephone number. You shall be charged 65 cents for each Charge for which you request authorization by telephone. We retain the right to change the amount we charge to you for requesting Authorization by telephone at any time. For Charges for goods or services which are shipped or provided more than thirty (30) days after the order is made, you must obtain Authorization for each such Charge at the time the order is made and again immediately before you ship the goods or provide the services to the Cardmember. You may not obtain Authorization on behalf of any other entity.

Credits

When you give a refund for a purchase made with a Card, you must credit that Card account (Credit). You must create a record of Credit (Credit Record) and submit the Credit Record to us within seven (7) calendar days of determining the Credit is due. We will deduct the amount of the Credit, minus the applicable Discount, from your payment. If we are unable to deduct such amount, you must pay us promptly upon receipt of our invoice. You will issue Credits only for Charges made with the Card. You must not give a cash refund for goods or services purchased with the Card.

Submission and Acceptance of Charges and Credits

You shall submit all Charges to us within seven (7) days of the date they are incurred; provided, however, that you shall not submit any Charge until the goods or services purchased have been delivered to the Cardmember. You must submit Credits as described above in “Credits.” Charges and Credits will be deemed accepted on a given business day if received and processed before our close of business for that day at the location we designate. You warrant that all indebtedness arising from Charges that you submit is genuine and free of any liens, claims or encumbrances. You acknowledge that you have no right to bill and/or collect from any Cardmember for any purchase made with the Card. When you submit Charges and Credits electronically (Charge Data), you must do so over communications lines or via magnetic tape in machine-readable format (Transmission). Even if you transmit Charge Data electronically, you must still complete and retain Charge Records and Credit Records. In the event you submit Charges and Credits on paper, you must submit Charge Records and Credit Records approved by us in accordance with the instructions we provide. Transmissions must comply with the specifications we provide and must include a description of the goods or services purchased which is acceptable to us. At our request you shall place additional, less or differently formatted information on Transmissions. We are not obligated to accept any Transmission that does not comply with our requirements. You may not submit Charges on behalf of any other entity.

Processors

You may retain, at your expense, a third party approved by us (Processor) for obtaining Authorizations and/or submitting Charges and Credits. You, and not we, are responsible for any errors, omissions, delays or expenses caused by your Processor. You must provide us with all information we request about your Processor and you must notify us promptly in writing if you change your Processor.

Recurrent Billing

If you offer automatic/recurrent billing for a series of separate purchases, Cardmembers must sign a consent form (Consent Form) authorizing you to charge their Card accounts for specific amounts at specific times (Recurrent Billing Charges). You must obtain a Consent Form before submitting the first Recurrent Billing Charge. The Consent Form must include the Cardmember’s name, Card account number and signature; the amount of each Recurrent Billing Charge; the frequency of such Recurrent Billing Charges; the dates the Recurrent Billing Charges will begin and end; and a statement that the Cardmember may cancel the Consent Form at any time. You must retain Consent Forms for twenty-four (24) months from the date you submit the last Recurrent Billing Charge. Before submitting each Recurrent Billing Charge, you must obtain Authorization and create a Charge Record except with the words “Signature on File” on the Cardmember signature line.

Document Retention

You must retain the original Charge Record or Credit Record and all documents evidencing such transactions, or reproducible records thereof, for twenty-four (24) months from the date you submitted the Charge or the Credit to us. You must provide a copy of the Charge Record or Credit Record and other supporting documents to us within twenty (20) calendar days of our request.

Refunds

Your refund policy for purchases made with the Card must be at least as favorable as your refund policy for purchases made with other forms of payment. You must disclose your refund policy to Cardmembers at the time of the purchase and in a manner that complies with applicable law.

PROHIBITED TRANSACTIONS

You may not accept the Card for:

  • Penalties or fines of any kind, damages, losses or any other costs or fees that are beyond the normal basic fee for the goods or services provided, or amounts for which the Cardmember has not specifically authorized payment by the Card;
  • Gambling services, gambling chips or gambling credits;
  • Cash;
  • Goods which will be resold;
  • Leases of personal property for greater than four (4) months;
  • Sales made under a different trade name or business affiliation than indicated in this Agreement or otherwise approved by us;
  • Sales by third parties; or
  • Amounts which do not represent a bona fide sale of goods or services at your Establishment.
RESERVE

We may withhold payment from you if, in our reasonable business judgment, it is necessary to create a reserve as security for your obligations to us and/or any of our parent, subsidiaries or affiliates under this Agreement or any other agreement between you and us and/or any of our parent, subsidiaries or affiliates. We have the right to deduct from and recoup and offset against the reserve, amounts you owe us and/or any of our parent, subsidiaries or affiliates under this Agreement or any other agreement between you and us and/or any of our parent, subsidiaries or affiliates. We will notify you if we withhold payments. We may take other reasonable actions to protect our rights and/or those of any of our parent, subsidiaries or affiliates including, but not limited to, changing your speed or method of pay, exercising Full Recourse immediately for all Disputed Charges without first sending you an inquiry, and/or charging you a fee for each Disputed Charge.

CONFIDENTIALITY

You shall keep confidential any information you receive from us that is not publicly available and the terms and conditions of this Agreement, including without limitation your Discount Rate or Monthly Fee. You agree that the names, addresses and account numbers of Cardmembers are our sole and exclusive property. You must not use or disclose a Cardmember’s name, address or account number except as provided in this Agreement.

TRADEMARKS AND SERVICE MARKS

This Agreement does not give either party any rights in the other party’s name, logo, service marks, trademarks, trade names, taglines or any other proprietary designation (Marks). No use may be made of either party’s Marks without the prior written permission of that party. Where you mention the Card as a payment method you must use our Marks, but only as described in our logo sheets. You agree that we may list the name and address of you and your Establishment(s) in materials containing lists of establishments which accept the Card which we may publish from time to time.

NOTICES

Unless otherwise notified, you will send all notices to:

American Express
Travel Related Services Company, Inc.
P.O. Box 53773
Phoenix, AZ 85072
Attn: SE Maintenance Unit

INDEMNIFICATION

You agree to indemnify and hold harmless us, our parent, subsidiaries, affiliates, licensees, successors and assigns from and against all damages, losses and expenses including, but not limited to, reasonable attorneys’ fees and costs, arising or alleged to have arisen out of: 1) any goods or services you sell; 2) the marketing of any goods or services you sell; 3) the negligent or wrongful performance of, or failure to perform, by you, your agents and/or employees, any duties or obligations under this Agreement; 4) the violation or alleged violation by you, your agents and/or employees of any laws, regulations or rulings applicable to you; and/or 5) your breach of this Agreement.

TERMINATING THIS AGREEMENT

Either party can terminate this Agreement by sending written notice to the other party. The termination will be effective on the third business day after such notice is sent. You agree that this Agreement is a contract to extend financial accommodations and that if bankruptcy proceedings or similar proceedings are filed with respect to your business, this Agreement is automatically terminated. You must notify us immediately if any of the above events occur. Upon termination, you must:

  1. remove all American Express identification and return our materials and equipment immediately;
  2. submit any Charges incurred prior to the termination in accordance with this Agreement; and
  3. submit any Credits relating to these Charges in accordance with this Agreement.
Our rights under the sections entitled “FULL RECOURSE,” “DISPUTED CHARGES,” “RESERVE,” “CONFIDENTIALITY” and “INDEMNIFICATION” shall survive termination of this Agreement.

COMPLIANCE WITH LAWS

You agree to comply with all laws, regulations and rules applicable to you. You represent and warrant that you are not a person or entity with whom the United States Government prohibits U.S. companies from dealing, including but not limited to a person or entity listed on the United States Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals List. Our acceptance of you as a merchant that is permitted to accept the Card is conditional upon the truthfulness of such representation and warranty.

GOVERNING LAW

THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS NEGOTIATED, EXECUTED AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.

ASSIGNMENT

You may not assign this Agreement. We may assign this Agreement to our parent, subsidiaries or affiliates.

NO WAIVER

Failure to enforce any term or condition of this Agreement shall not be a waiver of the right to later enforce such term or condition or any other term or condition of this Agreement.

CHANGING THIS AGREEMENT

We have the right to change this Agreement at any time. We will notify you of any change in writing at least ten (10) days in advance. If the changes are unacceptable to you, you may terminate this Agreement as described in the section entitled “TERMINATING THIS AGREEMENT.”

ENTIRE AGREEMENT

This Agreement is the entire agreement with respect to the subject matter hereof and supersedes any previous agreement with respect to the subject matter hereof.

VERIFICATION OF INFORMATION/INVESTIGATIVE CONSUMER REPORTS

You represent and warrant that all statements contained in the Cardservice International Merchant Application and Agreement and such other information you provide to us in connection with the Cardservice International Merchant Application and Agreement are true, complete and correct. You understand and agree that an investigative or consumer report about the commercial and/or personal finances of you, any person(s) signing the Cardservice International Merchant Application and Agreement and/or any person(s) providing us with permission may be requested from a consumer and/or commercial credit reporting agency or other investigative agency in connection with this Agreement.

PROVISIONS APPLICABLE TO SPECIFIC INDUSTRIES

If you are engaged in any of the following industries you must comply with the following applicable provisions. 1. WHOLESALE DISTRIBUTION
You represent that

  1. your primary Standard Industrial Classification (SIC) is that of a wholesale business;
  2. at least eighty percent (80%) of your annual sales are transactions involving goods or services which will be resold; and
  3. you are not in the oil or telecommunications industries. As such, the prohibition against acceptance of the Card for goods which will be resold under “PROHIBITED TRANSACTIONS” shall not apply.
When you submit Charges to us, the Charge Records or Charge Data, in addition to our other requirements, shall set forth the quantity of product(s) or service(s) sold to the Cardmember. We will exercise Full Recourse immediately for all Charges involving actual or alleged fraud, without first sending you an inquiry.

2. HEALTH CARE
For services rendered or goods provided while a Cardmember is admitted as a patient at your Establishment, you may delay submitting Charges up to $1200 but not for longer than thirty (30) days after the Cardmember is discharged.

3. INSURANCE
You may accept the Card for insurance premiums only at your Establishments in the United States. You must not accept the Optima® Card for these Charges.

4. LODGING
When a Cardmember wishes to use the Card to pay for a lodging stay, at the time of check-in, you will obtain Authorization for the full estimated amount of the Charge based upon the room rate and the number of days that the Cardmember expects to stay, plus taxes and other known ancillary amounts (Estimated Lodging Charge). You shall not overestimate this amount. If you fail to obtain such Authorization for the Estimated Lodging Charge and submit the Charge, and the Cardmember fails to pay the Charge for any reason, we shall have Full Recourse for the full amount of the Charge. Upon check-out: 1) If the final Charge is no greater than the Estimated Lodging Charge plus fifteen percent (15%) of the Estimated Lodging Charge, no further Authorization is necessary. 2) If the final Charge is greater than the Estimated Lodging Charge by more than fifteen percent (15%), you will obtain Authorization for any additional amount of the Charge which is greater than the Estimated Lodging Charge. If you fail to request such Authorization for the additional amount, or request Authorization for the additional amount but Authorization is declined, and the Cardmember fails to pay the Charge for any reason, we will have Full Recourse for the amount of the Charge in excess of the Estimated Lodging Charge.

Assured Reservations

If you have elected to participate in the Assured Reservations program, you must accept the Card to reserve accommodations until the published check-out time on the day following the scheduled arrival date (Assured Reservations). For each Assured Reservation, you must confirm the reservation and record the Cardmember’s name, address, Card account number and expiration date. When accepting an Assured Reservation, you must advise the Cardmember that, if the Cardmember does not claim the Assured Reservation, or cancel it within the time specified in your stated cancellation policy, the Cardmember may be charged for one night’s lodging plus applicable taxes. If the Cardmember does not claim or cancel the Assured Reservation, and you decide to charge the one night’s lodging, you must submit a completed Charge Record with the words “Assured Reservations—No Show” on the Cardmember signature line or transmit the appropriate no-show description on the Charge Data. If the Cardmember cancels, you must provide the Cardmember with a cancellation number and maintain a record of such cancellation number and the date provided. Failure by you to comply with the above requirements will result in our exercising our right to Full Recourse if the No-Show Charge is disputed by the Cardmember. If you do not honor an Assured Reservation, you must: 1) pay for a one night stay at comparable accommodations nearby; 2) pay for transportation to the alternate location; 3) pay for a three (3) minute telephone call, if requested by the Cardmember; and 4) forward all communications to the alternate location. If your cancellation policies and practices result in a disproportionate number of disputes with respect to No-Show Charges, you agree to cooperate with us in efforts to reduce the number of such disputes. In the event that such efforts fail to reduce the number of such disputes, we reserve the right to exercise our right to Full Recourse immediately for all such disputes without first sending you an inquiry. CARDeposit®

If you have elected to participate in the CARDeposit® program, to the extent you require room deposits you must accept the Card for payment of these deposits (CARDeposits). Only Cardmembers with a billing address in the United States, Canada, Puerto Rico or the U.S. Virgin Islands may use the Card for the payment of CARDeposits. A CARDeposit may not exceed the cost of a fourteen (14)-night stay plus applicable taxes. For each CARDeposit, you must complete a Charge Record except with the word “CARDeposit” on the Cardmember signature line. You must also indicate on the Charge Record the scheduled arrival date. Within three (3) business days from the date of the CARDeposit Charge you must send the Cardmember written confirmation of the arrival and departure dates, the amount of the CARDeposit, a confirmation number and the cancellation policy. If a CARDeposit is canceled, you must send a written cancellation notice showing the cancellation number to the Cardmember within three (3) business days. If a refund is due, you must submit a Credit Record with the words “CARDeposit® Cancellation” on the Cardmember signature line. If an arrival date of a CARDeposit is changed, you will send the Cardmember a written confirmation of the change within three (3) business days. Upon arrival the Cardmember must show the Card. If the Cardmember does not have the Card, other identification must be shown. If you do not honor a CARDeposit you must:

  1. issue a Credit for the CARDeposit;
  2. pay for comparable accommodations nearby for the duration of the original reservation (not to exceed 14 nights) or until the original location accommodations are available, whichever occurs first;
  3. pay for the Cardmember’s transportation to the alternate location and for a return to the original location once each day until the original accommodations are available; and
  4. pay for two three-minute telephone calls for the Cardmember to inform of the alternate location and to advise of being moved back to the original location.
Emergency Check-In

If a Cardmember whose Card is lost or stolen requests check-in, you must call our toll-free authorization number, ask for an “Authorizer,” request Authorization for an “Emergency Check-In” and follow the Authorizer’s Instructions. You may then submit a Charge Record for the approved amount with the words “Emergency Check-In” under the Cardmember’s signature.

Check Cashing

You must cash personal checks up to $250 per stay for Cardmembers who are paying for their stay with the Card, subject to cash availability. We will reimburse you for checks which are returned to you unpaid if you have followed our instructions.

Promotional Materials

You must display prominently American Express signs, decals or other identification, including our “Take-One” containers filled with Card application forms, in all high traffic areas, such as front desks, cashiers’ locations and restaurants. You must also put our “In-Room” applications on desk tops in at least 90% of your rooms.

5. MOTOR VEHICLE SALES
We will accept Charges for the down payment or the entire purchase price of new and used motor vehicles only if: 1) you provide a full warranty on the motor vehicle of at least one year or 12,000 miles; 2) you transfer title and physical possession of the motor vehicle to the Cardmember; 3) the amount of the Charge does not exceed the total price of the motor vehicle after applicable discounts, rebates, cash down payments, and trade-in values have been deducted; and 4) you obtain Authorization for the entire amount of the Charge. If within ninety (90) days after delivery of the motor vehicle, the Cardmember refuses to pay us due to a dispute regarding the quality of the motor vehicle, we will have Full Recourse for the Charge. We will not exercise our rights of Full Recourse until the Cardmember has returned the motor vehicle to you.

6. VEHICLE RENTAL
Special Authorization Procedures
When a Cardmember wishes to use the Card to rent a vehicle, you shall obtain Authorization for the full estimated amount of the Charge (Estimated Rental Charge). The Estimated Rental Charge shall be determined by multiplying the rate by the rental period reserved by the Cardmember. You shall not overestimate this amount and shall not include an amount for any possible damage to or theft of the vehicle. If you fail to obtain such Authorization for the Estimated Rental Charge and submit the Charge, and the Cardmember fails to pay the Charge for any reason, we shall have Full Recourse for the full amount of the Charge. Upon return of the vehicle, the following terms shall apply: 1) If the final Charge is no greater than the Estimated Rental Charge plus fifteen percent (15%) of such Estimated Rental Charge, no further Authorization shall be necessary; 2) If the final Charge is greater than the Estimated Rental Charge by more than fifteen percent (15%), you shall obtain Authorization for any additional amount of the Charge which is greater than the Estimated Rental Charge. If you fail to request such Authorization for the additional amount, or you request Authorization for the additional amount but Authorization is declined, and the Cardmember fails to pay the Charge for any reason, we shall have Full Recourse for the amount of the Charge in excess of the Estimated Rental Charge. We have the right to periodically monitor you or your Establishment’s compliance with the Authorization procedures set forth above. If we notify you that an Establishment is not complying with these procedures, you agree to cure such non-compliance. If, after thirty (30) days from the date you were notified of the non-compliance, the Establishment continues to fail to comply with these procedures, then we shall have Full Recourse for the full amount of any Charges made at that Establishment during such continued non-compliance. For purposes of this provision, “non-compliance” shall occur when more than five percent (5%) of an Establishment’s Authorizations or more than five percent (5%) of your Authorizations do not comply with these Authorization procedures. If you wish to accept the Card for property damage to a rented vehicle you must sign our Vehicle Rental Addendum.

7. PARKING/TAXIS
When the number of parking days is agreed upon when the Cardmember leaves the motor vehicle with you, you must submit the Charge immediately. When you provide a parking pass valid for a predetermined number of parking days, you must submit the Charge immediately. When the number of parking days is not known when the Cardmember leaves the motor vehicle with you, you must not submit the Charge until the last day of parking. If

  1. you do not have an electronic authorization terminal; and
  2. you are submitting Charges for taxis (not including limousine or car service) or parking, then you are not required to obtain Authorization for those Charges smaller than $50 for taxis and $75 for parking lots, each such amount being a Floor Limit.
You must not attempt to avoid the Authorization requirement by submitting two or more charges for a single transaction. We have the right to change, or eliminate such Floor Limits, at any time.

8. TELECOMMUNICATIONS
We will exercise Full Recourse immediately for all Disputed Charges without first sending you an inquiry. For telephone call Charges, you will furnish a complete description of each call to the Cardmember.

9. TIMESHARE
You represent that for at least 2 years you have been in the business of:

  1. selling Timeshare Units; or
  2. listing Timeshare Units for sale, rental or exchange.
Timeshare Unit means the exclusive right to occupy a unit in a real estate development located in the United States, U.S. Virgin Islands and Puerto Rico for vacation and resort use for a period of time each year not exceeding 4 weeks.

You may accept the Card only for:

  1. no more than 20% of the purchase price of an ownership interest or other annual occupancy right in a Timeshare Unit; or
  2. membership fees to register or list a Timeshare Unit for sale, rental or exchange.
You may not submit any Charges until you have the irrevocable right to retain the payment under applicable law and under a written agreement signed by the Cardmember. You may not accept the Card for: 1) maintenance fees; 2) campground memberships; 3) recreational fees; or 4) interests in real property other than Timeshare Units.

10. CHARITABLE DONATIONS
You represent that you are a non-profit organization incorporated or registered as such under applicable law and recognized by the U.S. Internal Revenue Service (IRS) as an entity qualifying for tax exemption under Section 501 of the IRS Code (Code). You may accept the Card only for charitable donations: 1) which are 100% tax-deductible to the payor as a charitable contribution under the Code; or 2) which include the receipt of an item or service of value (such as a meal or admission to an event or other incentive) where at least 75% of the amount is tax-deductible to the payor as a charitable contribution under the Code.

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800-948-6457

Chuck Taylor
Sr. Account Exec.
E-Commerce
Strategic Alliances
Cardservice-Texas

450 N. Sam Houston Parkway 
Suite 273
Houston, Texas  77060-3551
Tel.:  281-445-6941
Fax:  281-445-7257
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    These materials were prepared by Ignite Payments US an independent sales agent for Ignite Payments, LLC. All trademarks, service marks and trade names referenced in this material are the property of their respective owners. Ignite Payments, LLC. is a registered ISO of Wells Fargo Bank, N.A., Walnut Creek, CA. Ignite Payments, LLC is a registered ISO of Deutsche Bank, USA, New York, NY. American Express requires separate approval.

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