Merchant

Services
Program
Terms and
Conditions
(Program Guide)
PREFACE
Thank you for selecting us for your payment processing needs. Accepting numerous payment options provides a convenience to your
customers, increases your customers ability to make purchases at your establishment, and helps speed payment to your account.
Your Merchant Processing Application will indicate the types of payments and Services you have elected to accept. These Program Terms
and Conditions (the Program Guide) presents terms governing the acceptance of Visa

, MasterCard

and Discover

Network Credit
Card and Non-PIN Debit Card payments and American Express

Card transactions and applicable to Non-Bank Services.

This Program Guide, your Merchant Processing Application and the schedules thereto (collectively, the Agreement), contains
the terms and conditions under which Processor and/or Bank and/or other third parties, will provide services. We will not
accept any alterations or strike-outs to the Agreement and, if made, any such alterations or strike-outs shall not apply. Please
read this Program Guide completely.
You acknowledge that certain Services referenced in the Agreement may not be available to you.
IMPORTANT INFORMATION ABOUT BANKS RESPONSIBILITIES:
Discover Network Card Transactions, American Express Card Transactions and other Non-Bank Services are not provided to
you by Bank, but are provided by Processor and/or third parties.
The provisions of this Agreement regarding Discover Network Card Transactions, American Express Card Transactions and
other Non-Bank Services constitute an agreement solely between you and Processor and/or third parties. Bank is not a party
to this Agreement insofar as it relates to Discover Network Card Transactions, American Express Card Transactions and other
Non-Bank Services, and Bank is not responsible, and shall have no liability, to you in any way with respect to Discover
Network Card Transactions, American Express Card Transactions and Non-Bank Services.
OTHER IMPORTANT INFORMATION:
Cards present risks of loss and non-payment that are different than those with other payment systems. In deciding to accept Cards,
you should be aware that you are also accepting these risks.
Visa U.S.A., Inc. (Visa) MasterCard Worldwide (MasterCard), DFS Services LLC (Discover Network), and American Express
Company, Inc. (American Express) are payment card networks that electronically exchange Sales Drafts and Chargebacks for Card
sales and Credits. Sales Drafts are electronically transferred from banks (in the case of MasterCard and Visa transactions) or network
acquirers (in the case of Discover Network transactions) that acquire them from merchants such as yourself through the appropriate
Card Organization, to the Issuers. These Issuers then bill their Cardholders for the transactions. The Card Organizations charge the
Acquirers interchange fees, pricing and/or assessments for submitting transactions into their systems. A substantial portion of the
Discount Rate or Transaction Fees that you pay will go toward these interchange fees, pricing and assessments.
In order to speed up the payment process, the Issuer transfers the funds back through the Card Organization to the Acquirer at
approximately the same time that the Issuer receives the electronic Sales Drafts. Even though the payments under this system are
made simultaneously, all payments made through the Card Organizations are conditional and subject to reversals and adjustments.
Each Card Organization has developed Card Organization Rules that govern their Acquirers and Issuers and the procedures,
responsibilities and allocation of risk for this process. Merchants are also bound by Card Organization Rules and applicable laws and
regulations. The Card Organization Rules and applicable laws and regulations give Cardholders and Issuers certain rights to dispute
transactions, long after payment has been made to the merchant, including Chargeback rights.
We do not decide what transactions are charged back and we do not control the ultimate resolution of the Chargeback. While we can
attempt to reverse a Chargeback to the Issuer, we can only do so if the Issuer agrees to accept it or the Card Organization requires the
Issuer to do so after a formal appeal process. Sometimes, your customer may be able to successfully charge back a Card transaction
even though you have provided your goods or services and are otherwise legally entitled to payment from your customer. While you
may still be able to pursue claims directly against that customer, neither we nor the Issuer will be responsible for such transactions.
You will be responsible for all Chargebacks and adjustments associated with the transactions that you submit for processing.
Please refer to the Glossary for certain capitalized terms used in the Agreement, including this Preface (if not defined above).
Capitalized terms not otherwise defined in the Agreement may be found in the Card Organization Rules.
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PART I: CONFIRMATION PAGE
1. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the
Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears for
Card Processing or within 30 days of the date of a TeleCheck transaction.
5. The Agreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7, 31.3, and 33.10 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Services Agreement in Sections 1.1, 1.3.2, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obligations to
us and our Affiliates are satisfied.
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A.3 under Additional Fee Information and Section 1 of the TeleCheck
Services Agreement.
9. If you lease equipment from Processor, , it is important that you review
Section 1 in Third Party Agreements. Bank is not a party to this Agreement.
THIS IS A NON-CANCEL ABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information: Wells Fargo Bank N.A.
The Banks mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746-4143.
Print Clients Business Legal Name: __________________________________________________________________________________________________
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
] consisting of 47 pages [including this Confirmation Page and the applicable Third Party Agreement(s)].
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Clients Application will be processed.
NO ALTERATIONS OR STRIKE-OUTS TO THE PROGRAM TERMS AND CONDITIONS WILL BE ACCEPTED.
Clients Business Principal:
Signature (Please sign below) :
X____________________________________________________________ ____________________________________ ________________
Title Date
_______________________________________________________________________________
Please Print Name of Signer
PROCESSOR Name: ___________________________________________________________________________________________________________________
INFORMATION:
Address: _________________________________________________________________________________________________________________
URL: _______________________________________________________________ Customer Service #: _________________________________
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and/or Processor or the contents of your
Agreement with TeleCheck. The following information summarizes portions of your Agreement in order to assist you in answering some of the
questions we are most commonly asked.
First Data Merchant Services
1307 Walt Whitman Road, Melville, NY 11747
1-800-858-1166
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements.
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download Visa Regulations from Visas website at:
http://usa.visa.com/merchants/operations/op_regulations.html
g) You may download MasterCard Regulations from MasterCards website at:
http://www.mastercard.com/us/merchant/support/rules.html
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DUPLICATE CONFIRMATION PAGE
1. Your Discount Rates are assessed on transactions that qualify for
certain reduced interchange rates imposed by MasterCard, Visa and
Discover. Any transactions that fail to qualify for these reduced rates
will be charged an additional fee (see Section 19 of the Program Guide).
2. We may debit your bank account (also referred to as your Settlement
Account) from time to time for amounts owed to us under the
Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or Settlement Account. For a
more detailed discussion regarding Chargebacks see Section 10 of Card
Processing Operating Guide or see the applicable provisions of the
TeleCheck Services Agreement.
4. If you dispute any charge or funding, you must notify us within 60
days of the date of the statement where the charge or funding appears for
Card Processing or within 30 days of the date of a TeleCheck transaction.
5. The Agreement limits our liability to you. For a detailed description
of the limitation of liability see Section 21, 28.7, 31.3, and 33.10 of the
Card General Terms; or Section 1.14 of the TeleCheck Services
Agreement.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions to
mitigate our risk, including termination of the Agreement, and/or hold monies
otherwise payable to you (see Card Processing General Terms in Section 24,
Term; Events of Default and Section 25, Reserve Account; Security Interest),
(see TeleCheck Services Agreement in Sections 1.1, 1.3.2, 1.3.9, 1.6), under
certain circumstances.
7. By executing this Agreement with us you are authorizing us and our
Affiliates to obtain financial and credit information regarding your business
and the signers and guarantors of the Agreement until all your obligations to
us and our Affiliates are satisfied.
8. The Agreement contains a provision that in the event you terminate the
Agreement prior to the expiration of your initial three (3) year term, you will
be responsible for the payment of an early termination fee as set forth in Part
IV, A.3 under Additional Fee Information and Section 1 of the TeleCheck
Services Agreement.
9. If you lease equipment from Processor, , it is important that you review
Section 1 in Third Party Agreements. Bank is not a party to this Agreement.
THIS IS A NON-CANCEL ABLE LEASE FOR THE FULL TERM INDICATED.
10. Card Organization Disclosure
Visa and MasterCard Member Bank Information: Wells Fargo Bank N.A.
The Banks mailing address is 1200 Montego, Walnut Creek, CA 94598, and its phone number is (925) 746-4143.
Print Clients Business Legal Name: __________________________________________________________________________________________________
By its signature below, Client acknowledges that it has received the Merchant Processing Application, Program Terms and Conditions [version
] consisting of 47 pages [including this Confirmation Page and the applicable Third Party Agreement(s)].
Client further acknowledges reading and agreeing to all terms in the Program Terms and Conditions. Upon receipt of a signed facsimile or
original of this Confirmation Page by us, Clients Application will be processed.
NO ALTERATIONS OR STRIKE-OUTS TO THE PROGRAM TERMS AND CONDITIONS WILL BE ACCEPTED.
Clients Business Principal:
Signature (Please sign below) :
X____________________________________________________________ ____________________________________ ________________
Title Date
_______________________________________________________________________________
Please Print Name of Signer
PROCESSOR Name: ___________________________________________________________________________________________________________________
INFORMATION:
Address: _________________________________________________________________________________________________________________
URL: _______________________________________________________________ Customer Service #: _________________________________
Please read the Program Guide in its entirety. It describes the terms under which we will provide merchant processing Services to you.
From time to time you may have questions regarding the contents of your Agreement with Bank and/or Processor or the contents of your
Agreement with TeleCheck. The following information summarizes portions of your Agreement in order to assist you in answering some of the
questions we are most commonly asked.
First Data Merchant Services
1307 Walt Whitman Road, Melville, NY 11747
1-800-858-1166
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend acceptance of Visa
and MasterCard products directly to a merchant.
b) The Bank must be a principal (signer) to the Agreement.
c) The Bank is responsible for educating merchants on pertinent Visa
and MasterCard rules with which merchants must comply; but this
information may be provided to you by Processor.
d) The Bank is responsible for and must provide settlement funds to
the merchant.
e) The Bank is responsible for all funds held in reserve that are
derived from settlement.
f) The Bank is the ultimate authority should a merchant have any
problems with Visa or MasterCard products (however, Processor
also will assist you with any such problems).
Important Merchant Responsibilities:
a) Ensure compliance with Cardholder data security and storage requirements.
b) Maintain fraud and Chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization Rules and applicable law and regulations.
e) Retain a signed copy of this Disclosure Page.
f) You may download Visa Regulations from Visas website at:
http://usa.visa.com/merchants/operations/op_regulations.html
g) You may download MasterCard Regulations from MasterCards website at:
http://www.mastercard.com/us/merchant/support/rules.html
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TABLE OF CONTENTS
PART I: Confirmation Page
Duplicate Confirmation Page
PART II: Card Services
A. Operating Procedures
1. MasterCard, Visa, Discover Network and American Express
Card Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
71.1. Card Descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.2. Effective/Expiration Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.3. Valid Signature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.4. Users Other Than Cardholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.5. Special Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.6. Delayed Delivery or Deposit Balance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.7. Recurring Transaction and Preauthorized Order Regulations . . . . . . . . . . 9
1.8. Certain Rules and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.9. Card Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.10. Deposits of Principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.11. Merchants in the Lodging Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.12. Customer Activated Terminals and Self-Service Terminals . . . . . . . . . . . . 10
1.13. Displays and Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.14. Cash Payments by and Cash Disbursements to Cardholders . . . . . . . . . . 10
1.15. Discover Network Cash Over Transactions . . . . . . . . . . . . . . . . . . . . . . . . 11
1.16. Telecommunication Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Suspect Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. Completion of Sales Drafts and Credit Drafts . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1. Information Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2. Mail/Telephone/Internet (Ecommerce) and Other
Card Not Present Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3. Customer Service Telephone Numbers for Cards Other Than
MasterCard, Visa and Discover Network. . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. Data Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1. Payment Card Industry Data Security Standards (PCI DSS) . . . . . . . . . . . 13
4.2. Data Security Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3. Compliance Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4. Immediate Notice Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5. Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.6. Required Information for Discover Network Security Breaches . . . . . . . . 14
4.7. Merchant Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.8. Noncompliance Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9. Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1. Card Not Present Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2. Authorization via Telephone
(Other Than Terminal/Electronic Device Users) . . . . . . . . . . . . . . . . . . . . 15
5.3. Authorization via Electronic Devices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4. Third Party Authorization System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5. Automated Dispensing Machines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6. Pre-Authorization for T&E (Travel & Entertainment) and
Restaurant Merchants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7. Discover Network Procedure for Request for Cancellation
of Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.8. Partial Authorization and Authorization Reversal. . . . . . . . . . . . . . . . . . . 15
6. Submission/ Deposit of Sales Drafts and Credit Drafts . . . . . . . . . . . . . . . . . . . 16
6.1. Submission of Sales for Merchants Other Than Your Business . . . . . . . . . 16
6.2. Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.3. Mail/Branch Deposit Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.4. Electronic Merchants: Daily Batching Requirements &
Media Submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7. Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8. Refunds/ Exchanges (Credits) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.1. Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.2. Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9. Retention of Records for Retrievals and Chargebacks . . . . . . . . . . . . . . . . . . . . 17
9.1. Retain Legible Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.2. Provide Sales and Credit Drafts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. Chargebacks, Retrievals and Other Debits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.1. Chargebacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.2. Summary (Deposit) Adjustments/Electronic Rejects. . . . . . . . . . . . . . . . . 19
10.3. Disputing Other Debits and Summary Adjustments . . . . . . . . . . . . . . . . . 19
11. Account Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.1. Change of Settlement Account Number . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.2. Change in Your Legal Name or Structure . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.3. Change in Company DBA Name, Address or
Telephone/Facsimile Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.4. Other Changes in Merchant Profile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.5. Charges for Changes to Account Maintenance . . . . . . . . . . . . . . . . . . . . . 19
12. Card Organization Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13. Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14. Special Provisions for American Express
14.1 Card Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14.2 Arbitration Agreement for Claims Involving American Express . . . . . . . . 20
14.3 Treatment of the American Express Brand . . . . . . . . . . . . . . . . . . . . . . . . 20
14.4 Prohibited Uses of the American Express Card. . . . . . . . . . . . . . . . . . . . . 20
14.5 American Express Transaction Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.6 Treatment of American Express Cardholder Information . . . . . . . . . . . . . 21
14.7 Disclosure and Use of Data Collected Under Agreement . . . . . . . . . . . . . 21
14.7.1 Consent for American Express to Contact You by. . . . . . . . . . . . . . . . . . . 21
Phone, eMail, Text or Facsimile. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.8 Conversion to a Direct Relationship with American Express . . . . . . . . . . 21
14.9 No Assignment of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.10 Third Party Beneficiary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.11 Your Right to Opt Out of American Express Card Acceptance . . . . . . . . . 21
14.12 Collections from American Express Cardholder . . . . . . . . . . . . . . . . . . . . 21
14.13 Completing a Transaction at the Point of Sale. . . . . . . . . . . . . . . . . . . . . . 21
14.14 In Person Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.15 Electronic Charges or Key Entered Charges . . . . . . . . . . . . . . . . . . . . . . . 21
14.16 Magnetic Stripe Card Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14.17 American Express Mobile Contactless Charges. . . . . . . . . . . . . . . . . . . . . 21
14.18 American Express Contact Chip Charges . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.19 American Express Contactless Chip Charges . . . . . . . . . . . . . . . . . . . . . . 22
14.20 American Express Key-Entered Charges . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.21 Keyed No Imprint for American Express Charges. . . . . . . . . . . . . . . . . . . 22
14.22 Merchant Website Information Display Guidelines. . . . . . . . . . . . . . . . . . 22
14.23 Aggregated Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
14.24 American Express Prepaid Card Security Features . . . . . . . . . . . . . . . . . . 22
14.25 American Express Processing Prepaid Cards. . . . . . . . . . . . . . . . . . . . . . . 22
14.26 American Express Policies and Procedures for Specific Industries . . . . . . 22
14.27. American Express Excessive Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
14.28 American Express Right to Modify or Terminate Agreement . . . . . . . . . . 24
B. Card General Terms
15. Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
16. Operating Procedures; Card Organization Rules and Compliance . . . . . . . . . . 24
17. Settlement of Card Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
18. Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
19. Fees; Adjustments; Collection of Amounts Due . . . . . . . . . . . . . . . . . . . . . . . . 24
20. Chargebacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
21. Representations; Warranties; Covenants; Limitations on Liability;
Exclusion of Consequential Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
22. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
23. Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
24. Term; Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
25. Reserve Account; Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
26. Financial and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
27. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
28. Special Provisions Regarding Non-Bank Cards . . . . . . . . . . . . . . . . . . . . . . . . . 28
29. Special Provisions for Debit Card. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
30. Special Provisions Regarding EBT Transactions . . . . . . . . . . . . . . . . . . . . . . . . 30
31. Special Provisions Regarding Wireless Services . . . . . . . . . . . . . . . . . . . . . . . . 31
32. Special Provisions Regarding TransArmor Services. . . . . . . . . . . . . . . . . . . . . . 32
33. Special Provisions Regarding Global Gateway E4 Services. . . . . . . . . . . . . . . . 33
34. Choice of Law; Venue; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
35. Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
36. Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
PART III: Third Party Agreements
Equipment Lease Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
TeleCheck Services Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Terms Applicable Only to TeleCheck ECA Warranty Service . . . . . . . . . . . . . . . . . 41
Terms Applicable Only to TeleCheck Paper Warranty Service . . . . . . . . . . . . . . . . 42
General Terms Applicable to All TeleCheck Services . . . . . . . . . . . . . . . . . . . . . . . 43
Addenda toTeleCheck Services Agreement
Mail Order Warranty Service Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
C.O.D. Warranty Service Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Hold Check Warranty Service Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
PART IV: Additional Important Information Page For Card Processing
A.1. Electronic Funding Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A.2. Funding Acknowledgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A.3. Additional Fees, Fee Related Information and Early Termination . . . . . . . . . . . 47
A.4. 6050W of the Internal Revenue Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A.5. Addresses For Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
AGL1704(ia)
7
A. OPERATING PROCEDURES
T
his part of the Program Guide (through Section 14) describes the procedures and
methods for submitting Credit Card transactions for payment, obtaining
authorizations, responding to Chargebacks and Media Retrieval Requests, and other aspects
of the operations of our services.
Processor is a full-service financial transaction processor dedicated, among other processing
services, to facilitating the passage of your Sales Drafts back to the thousands of institutions
who issue the MasterCard

, Visa

and Discover

Network Cards carried by your customers,

as well as to the independent Issuers of American Express

and Optima

. The Operating
Procedures contained in this part seek to provide you with the principles for a sound Card
program; however, you should consult the Card Organization Rules for complete
information and to ensure full compliance with them. They are designed to help you
decrease your Chargeback liability and train your employees. (In the event we provide
authorization, processing or settlement of transactions involving Cards other than
MasterCard, Visa, Discover Network and American Express, you should also consult those
independent Issuers proprietary rules and regulations.)
The requirements set forth in these Operating Procedures will apply unless prohibited by
law. You are responsible for following any additional or conflicting requirements imposed
by your state or local jurisdiction.
1. MasterCard, Visa, Discover Network and
American Express Card Acceptance
1.1. Card Descriptions. At the point of sale, the Card must be carefully examined to
determine whether it is a legitimate and valid Card and not visibly altered or mutilated.
The name of the Card (e.g., Visa, MasterCard, Discover Network or American Express)
should appear in bold letters on the Card. For all MasterCard and Visa Cards and for some
Discover Network Cards, the Issuer (e.g., XYZ Bank, etc.) should also appear in bold letters
on the Card. The following is a description of the authorized Visa, MasterCard, Discover
Network and American Express Card designs:
Visa: Visa Cards have the Visa symbol on the right-hand side of the Card. Above the Visa
symbol is the 3-dimensional hologram of the Visa Dove design. The expiration date must be
followed by one space and may contain the symbol V. Visa Cards contain a 16-digit account
number embossed across the middle of the Cards and the first digit is always a four (4). In
addition, Visa Cards have the first four digits of the account number printed directly below
the embossed number. You must always check these numbers carefully to ensure that they
are the same. Visa has a new Card design which differs significantly from the previous
description. You are required to familiarize yourself with the new design by consulting the
document entitled Card Acceptance Guidelines for Visa Merchants (VRM 04.02.11) and
Chargeback Management Guidelines for Visa Merchants (VRM 04. 03.11). You may
download the document free of charge from Visas website at http://www.visa.com/merchant
or order a hardcopy to be mailed to you for a nominal charge by telephoning Visa Fulfillment
at 800-VISA-311. Both the old and new Visa Card designs will be circulating concurrently
in the marketplace through the year 2010. Only Visa Cards fitting the old or new descriptions
may be accepted.
MasterCard: MasterCard Cards are issued under the following names: MasterCard,
EuroCard, Access, Union, Million and Diamond. The MasterCard symbol appears on the
front or back of the Card. MasterCard and the Globe designs appear in a 3-dimensional
hologram above the symbol. In addition, the words Classic, Preferred, Gold or Business
may appear. MasterCard account numbers are sixteen (16) digits, and the first digit is always
a five (5). The first four digits of the account must be printed directly below the embossed
number. Only MasterCard Cards fitting this description may be accepted. Beginning Jan-
uary 2006, MasterCard has a new Card design significantly different from the previous
description. You are required to familiarize yourself with the new design by consulting a
document MasterCard Card Identification Features. You may download the document
free of charge from MasterCards website at www.mastercard.us/merchants. Both the old
and new MasterCard Card designs will be circulating concurrently in the marketplace
through the year 2010. Only MasterCard Cards fitting the old or new descriptions may be
accepted.
Discover Network: The Discover Network includes Discover, Diners Club International,
domestic JCB, UnionPay, BCcard, and Dinacard. Valid standard, rectangular plastic Cards
bearing a Discover

Acceptance Mark include the following common characteristics and

distinctive features:
The Discover Acceptance Mark may appear on the lower right corner of the front, back,
or both sides of the Card.
Cards display either a three-dimensional hologram on the front or back of the Card OR
a three-dimensional holographic magnetic stripe on the back of the Card. Valid Cards do
not display holograms on both front and back.
Card Numbers may be embossed or unembossed and will appear on either the front or
back of a Card. Card Numbers begin with the number 6 and are composed of 16 digits
that should be clear and uniform in size and spacing.
The Cardholder name, and if applicable, business name, may be embossed or unembossed
and will appear on either the front or back of the Card.
The Valid Thru date may be embossed or unembossed and will appear on either the
front or back of a Card in mm/yy format that indicates the last month in which the Card
is valid.
The words DISCOVER or DISCOVER NETWORK appears on the front of the Card
under an ultraviolet light.
The signature panel displays the words DISCOVER or DISCOVER NETWORK and
may vary in size. Cards may contain a panel that includes an ultraviolet image of the
word DISCOVER. An underprint of void on the signature panel becomes visible if
erasure of the signature is attempted.
The last four digits of the Card Number may be displayed on the back of the Card and
are commonly printed in reverse indent printing on the signature panel.
On embossed Cards, a security character, displayed as an embossed stylized D appears
on the front of the Card.
The 3-digit CID is printed on the back of the Card in a separate box to the right of the
signature panel.
NOTE: Valid Cards may not always be rectangular in shape (e.g., Discover 2GO Cards).
Certain valid unembossed Cards or Contactless Payment Devices approved by us for use in
accessing Card Accounts (e.g., contactless stickers, key fobs, and Mobile Commerce
Devices) and to conduct Contactless Card Transactions may not display the same features
described above. Card expiration date and other features listed above are not displayed on
such Contactless Payment Devices.
NOTE: For unembossed Cards used to conduct a Card Present Card Sales, Merchants must
obtain an Authorization Response electronically using a POS Device. A Card Sale involving
an unembossed Card may be subject to Dispute if the Merchant key enters Card
information into a POS Device and does not use the electronic Authorization procedures.
Diners Club International:
A Diners Club International Acceptance Mark in upper left corner.
Two-character alphanumeric code printed in the lower right corner
Embossed 14 digit Account Number (begins with 36)
Embossed digits on the card must be clear and uniform in size and spacing within
groupings.
Embossed expiration data appears in mm/yy format and indicates the last month in which
the Card is valid.
NOTE: Some valid Cards bearing a Diners Club International Acceptance Mark display a
printed, unembossed Card number. If a Card sale involving a Diners Club International
Card with an unembossed Card number cannot be completed by swiping the card through
the POS Device, the card should not be accepted. If submitted, such card sale may be subject
to Dispute.
Union Pay:
A 16 digit Card number starting with 622, 624, 625, 626, or 628 is embossed
on the front of the Card.
Embossed digits on the Card should be clear and uniform in size and spacing.
The embossed expiration date appears in mm/yy format and indicates the last month in
which the Card is valid.
The Card contains a magnetic stripe.
A three-dimensional hologram image of Heaven Temple in the foreground with Chinese
characters in the background appears on the front of all such Cards. The hologram reflects
light as it is rotated.
Valid Thru and the Cardholder name (which may not be in English) are embossed on
the front of the Card.
The CID appears on the upper right corner of the signature panel.
NOTE: Text on Cards bearing a UnionPay Acceptance Mark may not be printed in English.
JCB:
Card Numbers are made up of 16 digits, starting with 35 embossed or printed on the
front of the Card.
Embossed digits on the Card should be clear and uniform in size and spacing within
groupings.
The Cardholder name and, if applicable, business name embossed on the front of the
Card.
A JCB Acceptance Mark appears on the front of the Card.
A three-dimensional hologram image of rising sun, rainbow, and JCB in micro lettering
appears on either the front or the back of the Card. The hologram reflects light as it is
rotated.
The embossed expiration date appears in mm/yy or mm/dd/yy format on the front of the
Card and indicates the last month in which the Card is valid.
The Card contains a magnetic stripe on the back of the Card.
The name JCB appears in ultraviolet ink on the left bottom of the front of the Card
when held under an ultraviolet light.
The first four digits of the Card number match the 4-digit number pre-printed just below
the embossed Card number of the front of the Card.
The first four digits of the Card number displayed on the signature panel on the back of
the Card match the last four digits of the Card number that appears on the front of the
Card.
The last four digits of the Card number on the back of the Card followed by the 3-digit CID.
An overprint on the signature panel reads JCB in two colors, blue and green.
PART II: CARD SERVICES
AGL1704(ia)
8
Some Cards have an embedded integrated circuit chip on the front of the Card.
The words Good Thru, Valid Dates, Valid Thru, or Expiration Date must be
printed near the expiration date. The corresponding words in the language of the country
where the JCB Card is issued may also be printed. The words Month/Year or the
corresponding words in the language of the country where the JCB Card is issued may be
printed above or below the expiration date
NOTE: Some valid Cards bearing the JCB Acceptance Mark will have a printed, unembossed
Card number on the Card. If a Card sale involving a valid, JCB Card with an unembossed
Card number cannot be completed by swiping the Card through the POS Device, the Card
should not be accepted. If you accept a Card that displays a printed, rather than embossed,
Card number, you are required to obtain a Card imprint, the Card sale may be subject to
dispute.
American Express:
All American Express Card Numbers start with 37 or 34. The Card number appears
embossed on the front of the Card. Embossing must be clear, and uniform in sizing and
spacing. Some Cards also have the Card Number printed on the back of the Card in the
signature panel. These numbers, plus the last four digits printed on the Sales Draft, must
match.
Pre-printed Card Identification (CID) Numbers must always appear above the Card
Number on either the right or left edge of the Card.
Only the person whose name appears on an American Express Card is entitled to use it.
Cards are not transferable.
Some Cards contain a holographic image on the front or back of the plastic to determine
authenticity. Not all American Express Cards have a holographic image.
Some Cards have a chip on which data is stored and used to conduct a charge.
The signature on the back of the Card must match the Cardholders signature on the
Credit Draft, and must be the same name that appears on the front of the Card. The
signature panel must not be taped over, mutilated, erased or painted over. Some Cards also
have a three-digit Card Security Code (CSC) number printed on the signature panel.
1.2. Effective/ Expiration Dates. At the point of sale, the Card should be carefully
examined for the effective (valid from) (if present) and expiration (valid thru) dates which
are located on the face of the Card. The sale date must fall on or between these dates. When
an expiration date is expressed in a month/year format, MasterCard transactions are valid
through and including the last day of the month and year. When the valid date is expressed
in a month/year format, MasterCard transactions that occur before the first day of the month
and year are invalid. Do not accept a Card prior to the effective date or after the expiration
date. If the Card has expired, you cannot accept it for a Card sale unless you have verified
through your Authorization Center that the Card is in good standing, otherwise, you are
subject to a Chargeback and could be debited for the transaction.
When a MasterCard PayPass enabled keyfob or mobile phone is presented for payment,
verifying a valid expiration date is not required.
1.3. Valid Signature. Check the back of the Card. Make sure that the signature panel has
not been disfigured or tampered with in any fashion (an altered signature panel may appear
discolored, glued or painted, or show erasure marks on the surface). The signature on the
back of the Card must compare favorably with the signature on the Sales Draft. However,
comparing the signature on the Card with the signature on the transaction receipt is not
applicable when an alternate Card form (MasterCard PayPass keyfob or mobile phone) is
presented. The Sales Draft must be signed by the Card presenter in the presence of your
authorized representative (unless a Card Not Present Sale) and in the same format as the
signature panel on the Card; e.g., Harry E. Jones should not be signed H.E. Jones. The
signature panels of Visa, MasterCard and Discover Network Cards have a 3-digit number
(CVV2/CVC2/CID) printed on the panel known as the Card Validation Code.
Visa, MasterCard, Discover Network, and American Express: If the signature panel on the
Card is blank, in addition to requesting an Authorization, you must do all the following:
Review positive identification bearing the Cardholders signature (such as a passport or
drivers license that has not expired) to validate the Cardholders identity.
Indicate the positive identification, including any serial number and expiration date, on
the Credit Draft or Sales Draft; provided that you must effect PAN Truncation, and must
not include the expiration date on the copy of the Sales Draft or Credit Draft that you
provide to the Cardholder, or as required by applicable law, the Sales Draft or Credit Draft
you retain.
Require the Cardholder to sign the signature panel of the Card prior to completing the
Transaction.
When a MasterCard PayPass enabled keyfob or mobile phone is presented for payment,
validating the customers signature is not required.
1.4. Users Other Than Cardholders. A Cardholder may not authorize another
individual to use his/her Card for purchases. Be sure the signature on the Card matches
with the one on the Sales Draft. Furthermore, any Card having two signatures on the back
panel is invalid and any sale made with this Card can result in a Chargeback. For Cards
bearing a photograph of the Cardholder, ensure that the Cardholder appears to be the
person depicted in the picture which appears on the Card. If you have any questions, call
the Voice Authorization Center and request to speak to a Code 10 operator.
1.5. Special Terms. If you limit refunds or exchanges, or impose other specific conditions
for Card sales, you must provide proper disclosure to the Cardholder at the time of
transaction in accordance with applicable law. If applicable, the words No Exchange, No
Refund, etc. must be clearly printed (in 1/4" letters) on the Sales Draft near or above the
Cardholders signature. The Cardholders copy of the Sales Draft, as well as your copy, must
clearly display this information near or above the Cardholders signature. Applicable
disclosures may vary by transaction type.
During a liquidation and/or closure of any of your outlets, locations and/or businesses, you
must post signs clearly visible to customers stating that All Sales Are Final, and stamp the
Sales Draft with a notice that All Sales Are Final.
Generally, do not give cash, check or in-store Credit refunds for Card sales. Visa allows for
the following exclusions: A cash refund to the Cardholder for a small ticket transaction or
a no signature required transaction, a cash refund, Credit, or other appropriate form of
Credit to the recipient of a gift purchased as a Mail/Phone Order transaction, or a cash
refund or in-store Credit for a Visa prepaid card transaction if the Cardholder states that the
Visa prepaid card has been discarded. NOTE: A disclosure does not eliminate your liability
for a Chargeback. Consumer protection laws and Card Organization Rules frequently allow
the Cardholder to dispute these items notwithstanding such disclosures.
1.6. Delayed Delivery or Deposit Balance. In a delayed delivery transaction where a
Cardholder makes a deposit toward the full amount of the sale, you should execute two
separate Sales Drafts (each completed fully as described in Section 3.1), the first for a
deposit and the second for payment of the balance upon delivery of the merchandise or the
performance of the services.
Visa: You must obtain an authorization for each Sales Draft on each transaction date. You
must assign the separate authorization numbers to each Sales Draft, respectively. You must
note on such Sales Drafts the words delayed delivery, deposit or balance, as
appropriate, and the authorization dates and approval codes.
MasterCard: For MasterCard transactions, you must obtain an Authorization for each Sales
Draft on each Transaction date. You must note on both Sales Drafts the words delayed
delivery, deposit or balance, as appropriate, and the authorization date and approval
code.
Discover Network: For Discover Network transactions, you must label one Sales Draft
deposit and the other balance, as appropriate.
You shall submit Authorization requests you receive and await receipt of the Authorization
Response prior to completing the Card sale. A positive Authorization Response will remain
valid for thirty (30) calendar days from the date of the Authorization response for Card
sales in the car rental industry, airline and passenger railway industries, the lodging industry
and other travel MCCs including passenger transport and all International Card sales. A
positive Authorization response will remain valid for ten (10) calendar days from the date
of the Authorization response for Card sales in all other industries and MCCs.
In addition, you must complete Address Verification at the time of the balance
authorization, and you must obtain proof of delivery upon delivery of the
services/merchandise purchased. You may not submit sales data relating to the balance to
us for processing until the merchandise/service purchased has been completely delivered.
American Express: For American Express Card transactions, you must clearly disclose your
intent and obtain written consent from the Cardholder to perform a delayed delivery
transaction before you request an Authorization. You must obtain a separate Authorization
Approval for each delayed delivery transaction on their respective Charge dates and clearly
indicate on each record that the Charge is either for the deposit or for the balance of the
transaction. You must submit the delayed delivery transaction record for the balance of the
purchase only after the items have been shipped, provided or services rendered. For
deposits, submission must be on the date the Cardholder agreed to pay for the deposit for
the purchase. For balances, submission must be on the date the items are shipped, provided
or services rendered. You must submit and Authorize each delayed delivery transaction
under the same Merchant Account Number and treat deposits on the Card no differently
than you treat deposits on all other payment products.
Advance Payment Charges for American Express Transactions.
An advance payment Charge is a Charge for which full payment is made in advance of you
providing the goods and/or rending services to the Cardholder and such Charges carry
higher risk. American Express may withhold settlement for part or all of such Charges until
it is determined that the risk has diminished.
You must follow the procedures below if you offer Cardholders the option or require them
to make advance payment Charges for the following types of goods and/or services:
Custom-orders (e.g., orders for goods to be manufactured to a customers specifications)
Entertainment / ticketing (e.g., sporting events, concerts, season tickets).
Tuition, room and board, and other mandatory fees (e.g., library fees) of higher
educational institutions.
Airline tickets, vehicle rentals, rail tickets, cruise line tickets, lodging, travel-related
services (e.g., tours, guided expeditions).
For an advance payment Charge, you must:
State your full cancellation and refund policies, clearly disclose your intent and obtain
written consent from the Cardholder to bill the Card for an advance payment Charge before
you request an Authorization. The Cardholders consent must include his or her agreement
to all the terms of the sale (including price and any cancellation and refund policies), and
a detailed description and the expected delivery date of the goods and/or services to be
provided (including, if applicable, expected arrival and departure dates).
Complete a Sales Draft. If the advance payment Charge is a Card Not Present Charge,
you must also: ensure that the Sales Draft contains the words Advance Payment; and
within twenty-four (24) hours of the Charge being incurred, provide the Cardholder
written confirmation (e.g., email or facsimile) of the advance payment Charge, the
amount, the confirmation number (if applicable), a detailed description and expected
delivery date of the goods and/or services to be provided (including expected arrival and
departure dates, if applicable) and details of your cancellation/ refund policy.
AGL1704(ia)
9
If you cannot deliver goods and/or services (e.g., because custom-ordered merchandise
cannot be fulfilled), and if alternate arrangements cannot be made, you must immediately
issue a Credit for the full amount of the advance payment Charge which cannot be fulfilled.
In addition to other Chargeback rights, a Chargeback may be exercised for any disputed
advance payment Charge or portion thereof if the dispute cannot be resolved in your favor
based upon unambiguous terms contained in the terms of sale to which you obtained the
Cardholders written consent.
1.7. Recurring Transaction and Preauthorized Order Regulations. If you process
recurring transactions and charge a Cardholders account periodically for recurring goods
or services (e.g., monthly insurance premiums, yearly subscriptions, annual membership
fees, etc.), the Cardholder shall complete and deliver to you a Cardholder approval for such
goods or services to be charged to his account. The approval must at least specify the
Cardholders name, address, account number and expiration date, the transaction amounts,
the timing or frequency of recurring Charges and the duration of time for which the
Cardholders permission is granted. For Discover Network transactions, the approval must
also include the total amount of recurring Charges to be billed to the Cardholders account,
including taxes and tips and your Merchant Account Number.
If the recurring transaction is renewed, the Cardholder must complete and deliver to you
a subsequent written request for the continuation of such goods or services to be charged
to the Cardholders account. You may not complete a recurring transaction after receiving
a cancellation notice from the Cardholder or Issuer or after a request for authorization has
been denied.
If we or you have terminated this Agreement, you may not submit authorization requests
or sales data for recurring transactions that are due after the termination date of this
Agreement, and you must inform Cardholders for which you have submitted the recurring
transactions that you no longer accept the Card.
You must obtain an Authorization for each transaction and write Recurring Transaction
(or, P.O. for MasterCard transactions/Signature on File for American Express
transactions) on the Sales Draft in lieu of the Cardholders signature. A positive
authorization response for one recurring transaction Card Sale is not a guarantee that any
future recurring transaction authorization request will be approved or paid.
For all recurring transactions, you should submit the 3-digit CID with the first authorization
request, but not subsequent authorization requests. Discover Network Card Organization
Rules specifically require that you follow this CID procedure for Discover Network
recurring transactions.
Also, for Discover Network recurring transactions, the Sales Draft must include a general
description of the transaction, your merchant name and a toll-free customer service number
that the Cardholder may call to obtain customer assistance from you or to cancel the written
approval for the recurring transaction.
For American Express recurring transactions, you should periodically verify with
Cardholders that their information (e.g., Card Number, expiration date, billing address) is
still accurate. This will improve the likelihood of obtaining an approval to an Authorization
request.
The method to secure consent for recurring Charges must contain a disclosure that you
may receive updated Card account information from the Issuer. You must retain evidence
of consent to receive updated Card account information from the Issuer for twenty-four
(24) months from the date you submit the last recurring billing Charge. If you offer
Cardholders the option to make recurring billing Charges, you must:
Ensure that your process for cancellation of recurring billing is simple and expeditious;
Clearly and conspicuously disclose all material terms of the option, including, if
applicable, the fact that recurring billing will continue until the option is cancelled by the
Cardholder;
Offer their American Express customers the option to receive written notification for the
recurring transaction(s) at least (10) ten days prior to submitting, or any time the Charge
amount exceeds a maximum amount that has been set by the Cardholder;
Within twenty-four (24) hours of incurring the first recurring billing Charge, provide the
Cardholder written confirmation (e.g., email or facsimile) of such Charge, including all
material terms of the option and details of your cancellation/refund policy; and
Where the material terms of the option change after submission of the first recurring
billing Charge, promptly notify the Cardholder in writing of such change and obtain the
Cardholders express written consent to the new terms prior to submitting another
recurring billing Charge.
The cancellation of an American Express Card constitutes immediate cancellation of that
Cardholders consent for recurring Charges. American Express will not have any liability
from such cancellation. If an American Express Card is cancelled or a Cardholder withdraws
consent to recurring Charges, you are responsible for arranging another form of payment
with the Cardholder.
All recurring transactions or preauthorized orders may not include partial payments for
goods or services purchased in a single transaction.
You may not impose a finance charge in connection with a Recurring Transaction or
Preauthorized Order.
If you process recurring payment transactions, the Recurring Payment Indicator must be
included in each authorization request, and as applicable, each Batch submission entry.
Penalties can be assessed by the Card Organizations for failure to use the Recurring Payment
Indicator.
1.8. Certain Rules and Requirements. The following rules are requirements strictly
enforced by Visa, MasterCard and Discover Network:
Your minimum Credit Card acceptance amount cannot exceed $10.00. Such minimum
amount must be established to all Credit Cards regardless of Card Issuer or Card brands.
Unless you are a federal government entity or institution of higher learning, you may not
establish a maximum amount as a condition for accepting a Card, except that for Discover
transactions, you may limit the maximum amount a Discover Network Cardholder may
spend if, and only if, you have not received a positive authorization response from the
Issuer. Setting a minimum transaction amount limit for Debit Cards (Pin Debit or Non-
PIN Debit) is prohibited.
You cannot impose a surcharge or fee for accepting a Debit Card.
You cannot establish any special conditions for accepting a Card.
You cannot require the Cardholder to supply any personal information (e.g., home or
business phone number; home or business address including zip code; or drivers license
number) unless instructed by the Authorization Center. The exception to this is for mail/
telephone/Internet order or delivery-required transactions, or as otherwise permitted by
applicable law. Any information that is supplied by the Cardholder must not be in plain
view when mailed.
Any tax required to be collected must be included in the total transaction amount and not
collected in cash.
You cannot submit any transaction representing the refinance or transfer of an existing
Cardholder obligation deemed uncollectible.
You cannot accept a Visa Consumer Credit Card or Commercial Visa Product, issued by
a U.S. Issuer, to collect or refinance an existing debt. NOTE: Visa Consumer debit and Visa
Business debit Card products including prepaid card type can be accepted to collect or
refinance an existing debt.
You cannot submit a transaction or sale that has been previously charged back.
You must create a Sales Draft or Credit Draft for each Card transaction and deliver at least
one copy of the Sales Draft or Credit Draft to the Cardholder.
You cannot submit a transaction or sale to cover a dishonored check.
If you accept Card checks, your Card check acceptance policy must treat the acceptance
of checks from all payment card brands that you accept equally (e.g., if you accept
MasterCard, Visa and Discover Network, your check acceptance policy must treat checks
for all three payment card brands equally). You should handle these Card checks like any
other personal check drawn upon a bank in the United States.
Failure to comply with any of the Card Organization Rules may result in fines or penalties.
U.S. Merchants may engage in any of the following:
You may direct customers to a particular brand or type of general purpose card or a
particular form of payment. U.S. merchants may also encourage customers who initially
present a Visa Card to use a payment card with a different network brand, a different type
of payment card or a different form of payment.
You may provide a discount/incentive for a consumer to pay with cash, check, Credit
Card, Debit Card, etc., however, you must clearly and conspicuously disclose the discount
to consumers. Also, you must offer the discount to all consumers and you cannot
discriminate based upon Card brand or Card Issuer. However, you may choose not to
accept either U.S. issued Debit Cards or U.S. issued Credit Cards under the terms
described in Section 1.9.
You may offer a discount or rebate, including an immediate discount or rebate at the point
of sale;
You may offer a free or discounted product, service or enhanced service
You may offer an incentive, encouragement, or benefit;
You may express a preference for the use of a particular brand or type of general purpose
card or a particular form of payment;
You may promote a particular brand or type of general purpose card or a particular form
or forms of payment through posted information, through the size, prominence, or
sequencing of payment choices, or through other communications to a customer;
You may communicate to a customer the reasonably estimated or actual costs incurred by
the merchant when a customer uses a particular brand or type of general purpose card or
a particular form of payment or the relative costs of using different brands or types of
general purpose cards or different forms of payment. NOTE: Visa Consumer Debit and
Visa Business Debit Card products including prepaid Card type can be accepted to collect
or refinance an existing debt; or
You may engage in any other practices substantially equivalent to the above.
You will inform the Cardholder that you are responsible for the Card transaction including
your goods and services and for related customer service, dispute resolution and
performance of the terms and conditions of the transaction.
1.9. Card Acceptance. If you have indicated either in the Merchant Processing
Application or by registering with us at least thirty (30) days in advance that, as between
Non-PIN Debit Card transactions and Credit Card transactions, you will limit your
acceptance to either (i) only accept Non-PIN Debit transactions; or (ii) only accept Credit
Card transactions, then the following terms in this Section 1.9 will apply:
1.9.1. You will be authorized to refuse to accept for payment either Non-PIN Debit Cards
or Credit Cards that are issued within the United States. You will, however, continue to be
obligated to accept all foreign issued Credit Card or Debit Cards issued by MasterCard,
Visa or Discover Network so long as you accept any type of MasterCard, Visa or Discover
Network branded Card.
1.9.2. While many Debit Cards include markings indicating debit (such as Visa Checkcard,
Visa Buxx, Gift Card, DEBIT, or Mastermoney), many Debit Cards may not include any such
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markings. It will be your responsibility to determine at the point of sale whether a Card is
of a type that you have indicated that you will accept. You agree to institute appropriate
systems and controls to limit your acceptance to the Card types indicated. You may purchase
a table of ranges of numbers currently associated with Debit Card transactions upon
execution of confidentiality/non-disclosure agreements required by the Card Organizations.
You will be responsible for updating your systems to utilize such tables and to obtain updated
tables. You must safeguard BIN information provided by us. If you share our provided BIN
information with a third party to use on your behalf, you must require they safeguard it also
and use it only for card type identification at the POS.
1.9.3. To the extent that you inadvertently or unintentionally accept a transaction that you
are not registered to accept, such transaction will downgrade and you will be charged the
Non Qualified Rate or, if you are utilizing the Enhanced Recovery Reduced Discount option,
you will be charged the Enhanced Recovery Reduced Rate on the volume of said transaction
that Client was not registered to accept, in addition to the difference between the
MasterCard/ Visa/Discover Network Qualified Rate agreed to in Section 9 of the Service
Fee Schedule and the actual interchange rate assessed to the downgraded transaction.
1.9.4. Based upon your choice to accept only the Card types indicated in the Application,
you must remove from your premises any existing signage indicating that you accept all
Visa, MasterCard or Discover Network Cards and use approved specific signage reflecting
your policy of accepting only Non-PIN Debit or Credit Cards.
1.9.5. Even if you elect not to accept Non-PIN Debit Card transactions as provided above,
you may still accept PIN Debit Card transactions if you have signed up for PIN Debit Card
Services.
1.9.6. If a MasterCard Card is presented, you must use your best efforts, by reasonable and
peaceful means, to retain the card while making an authorization request. In a face-to-face
environment, you must give a MasterCard Cardholder the option of a signature based
transaction. Unless the Cardholder uses a PIN, the Cardholder must sign the transaction
receipt.
1.9.7. MasterCard revised standards related to the use of Mobile POS (MPOS)
terminals.
Merchants with less than $100,000 in annual MasterCard transaction volume may use Chip-
only MPOS terminals:
That do not support magnetic stripe capture
That support either signature or No Cardholder Verification Method (CVM)
That may offer optional support PIN entry
Merchants with less than $100,000 in annual MasterCard transaction volume may use
MPOS terminals or Chip-only MPOS solutions that do not support electronic signature
capture to complete a transaction without obtaining a CVM.
Please Note: Merchants with more than $100,000 in annual transactions may use MPOS
terminals if the MPOS terminal complies with MasterCards requirements for POS terminals
or hybrid POS terminals (if chip cards are accepted).
1.10. Deposits of Principals. Owners, partners, officers and employees of your business
establishment, and the guarantors who signed the Application, are prohibited from
submitting Sales Drafts or Credit Drafts transacted on their own personal Cards, other than
transactions arising from bona fide purchases of goods or services in the ordinary course
of your business. Such use in violation of this Section 1.10 is deemed a cash advance, and
cash advances are prohibited.
1.11. Merchants in the Lodging Industry.
1.11.1. Generally. There are additional rules and requirements that apply to merchants
in the lodging industry for practices including, but not limited to, Guaranteed Reservations
and Charges for no shows, advance deposits, overbookings, and priority checkout. If you
are a merchant in the lodging industry, you must contact us for these additional rules and
requirements. Failure to do so could result in additional charges or termination of this
Agreement.
1.11.2. Lodging Service Programs. In the event you are a lodging merchant and wish
to participate in Visas and/or MasterCards lodging services programs, please contact your
sales representative or relationship manager for details and the appropriate MasterCard and
Visa requirements.
1.11.3. Written Confirmation of Guaranteed Reser va tions. You must provide the
Cardholder with written confirmation of a guaranteed reservation. The confirmation must
contain:
Cardholders name as it appears on the Card, if present.
Card Number, truncated where required by applicable law to you or us and Card
expiration date if present, unless prohibited by applicable law to you or us.
Reservation confirmation number.
Anticipated arrival date and length of stay.
The cancellation policy in its entirety, inclusive of the date and time the cancellation
privileges expire.
Any other pertinent details related to the reserved accommodations.
1.11.4. Cancellation of Guaranteed Reservations. If a Cardholder requests a
cancellation in accordance with Merchants cancellation policy and specified time frames,
Merchant must provide the Cardholder with a cancellation number and instructions to
retain a record of it. If a Cardholder requests a written confirmation of the cancellation,
Merchant must forward this confirmation within three (3) Business Days of the Cardholders
request. The cancellation confirmation must contain: Cardholders reference that Charges
were placed on the Card, if applicable, or a guarantee that a no-show Charge will not be
placed on the Card.
Cardholders name as it appears on the Card, if present.
Card Number, truncated as required by applicable law to you or us.
Card expiration date, if present, unless prohibited by applicable law to you or us.
Reservation cancellation number.
Date of cancellation.
The name of the Merchants employee that processed the cancellation.
Any other pertinent information related to the reserved accommodations.
1.12. Customer Activated Terminals and Self-Service Terminals. Prior to conducting
Customer Activated Terminal (CAT) transactions or Self-Service Terminal transactions
you must contact us for approval and further instructions, rules and requirements that
apply to CAT and Self-Service Terminal transactions. Failure to do so could result in
additional charges or termination of this Agreement.
Customer Activated Terminals for American Express Transactions
Charges for purchases at your Customer Activated Terminals (CATs) must meet the
requirements for Sales Draft as detailed below:
You must include:
Full Magnetic Stripe data stream or chip Card data in all Authorization requests, and;
CAT indicator on all Authorization requests and Submissions.
American Express will not be liable for actual or alleged fraudulent Charges occurring
through Customer Activated Terminals (CAT) and will have the right to Chargeback for
those Charges.
1.13. Displays and Advertising. You must prominently display appropriate Visa,
MasterCard, Discover Network, and, if applicable, other Card Organization decals and
program Marks at each of your locations, in catalogs, on websites and on other promotional
materials as required by Card Organization Rules, if you elected to accept such Card
payments on your Application. You may not indicate that Visa, MasterCard, and Discover
Network, or any other Card Organization endorses your goods or services.
Your right to use the program Marks of the Card Organizations terminates upon the earlier
of (i) if and when your right to accept the Cards of the respective Card Organization
terminates (e.g., if your right to accept Discover Network Cards terminates, you are no
longer permitted to use Discover Network Program Marks), (ii) delivery of notice by us or
the respective Card Organization to you of the termination of the right to use the Mark(s)
for that Card Organization, or (iii) termination of the license to use the program Marks by
the respective Card Organization to us.
American Express: If you elected to accept the American Express Card on your
Application, whenever payment methods are communicated to customers, or when
customers ask what payments are accepted, you must indicate your acceptance of the
American Card and display the American Express Marks (including any Card application
forms provided to you) as prominently and in the same manner as you do for any other
Card or payment products. You must not use the American Express Marks in any way that
injures or diminishes the goodwill associated with the American Express Marks, nor
(without prior written consent from us) indicate that American Express endorse your goods
or services. You shall only use the American Express Marks as permitted by the Agreement
and shall cease using the American Express Marks upon termination of the Agreement
1.13.1. Discover Network Sublicense to Use Discover Network Program Marks.
You are prohibited from using the Discover Network Program Marks, as defined below, other
than as expressly authorized in writing by us. Discover Network Program Marks means the
brands, emblems, trademarks and/or logos that identify Discover Network Cards, including,
without limitation, Diners Club International Cards, JCB, UnionPay, BCcard, and Dinacard.
Additionally, you shall not use the Discover Network Program Marks other than as a part of
the display of decals, signage, advertising and other forms depicting the Discover Network
Program Marks that are provided to you by us or otherwise approved in advance in writing
by us.
You may use the Discover Network Program Marks only to promote the services covered by
the Discover Network Program Marks by using them on decals, indoor and outdoor signs,
advertising materials and marketing materials; provided that all such uses by you must be
approved in advance by us in writing.
You shall not use the Discover Network Program Marks in such a way that customers could
believe that the products or services offered by you are sponsored or guaranteed by the
owners of the Discover Network Program Marks. You recognize that you have no ownership
rights in the Discover Network Program Marks. You shall not assign to any Person any of the
rights to use the Program Marks.
1.13.2. American Express sublicense to Use American Express Marks. You shall
only use the American Express Marks as reasonably necessary to perform your obligations
under the Agreement. The guidelines listed below apply to the Merchants use of the
American Express Blue Box logo.
The BlueBox logo must always be shown in the pre-approved American Express Blue
or, in one- or two-color communications or black.
The space around the Blue Box must equal at least 1/3 the size of the box.
The Blue Box logo minimum size is 3/8" and 1/2" is the preferred size.
A minimum distance of 1-1/2 times the size of the Blue Box must be allowed between
the Blue Box logo and another Mark.
For additional guidelines on the use of the American Express Marks, you can visit the
American Express website at www. americanexpress.com/decals.
You must remove American Express Marks from your website and wherever else they are
displayed upon termination of the Agreement or if do not elect to accept or are not
authorized to accept American Express Cards.
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1.14. Cash Payments by and Cash Disbursements to Cardholders. You must not
accept any direct payments from Cardholders for Charges of merchandise or services which
have been included on a Sales Draft; it is the right of the Issuer to receive such payments.
You may not make any cash disbursements or cash advances to a Cardholder as part of a
Card transaction unless you are a financial institution with express authorization in writing
in advance from Servicers. For Discover, cash advances in authorized jurisdictions other
than the United States may be conducted in an originating currency provided that cash
advances may be subject to dispute and/or Acquirer fees.
1.15. Discover Network Cash Over Transactions. Cash Over transactions are not
available for MasterCard or Visa transactions. You may issue Cash Over in connection with
a Discover Network Card sale, provided that you comply with the provisions of this
Agreement, including the following requirements:
You must deliver to us a single authorization request for the aggregate total of the goods/
services purchase amount and the Cash Over amount of the Card sale. You may not
submit separate authorization requests for the purchase amount and the Cash Over
amount.
The Sales Draft must include both the purchase amount and the Cash Over amount, and
you may not use separate Sales Drafts for the purchase amount and Cash Over amount.
Cash Over may only be offered with a Card Present Card Sale that includes a purchase of
goods or services by the Cardholder. You must not issue Cash Over as a stand-alone
transaction. Merchants that offer Cash Over may require the total amount of a Card Sale
with a Credit product, including Cash Over, to meet a minimum transaction amount of
up to $10.00.
You shall not assess or charge fees of any type or amount, including any surcharges, on
Cash Over transactions. None of the fees or charges applicable to Cash Advances shall be
applied to Cash Over transactions.
Cash Over may not be dispensed in connection with Credits, Cash Advances, or any Card
Sale for which you are unable to electronically capture Track Data using the POS Device.
The maximum amount of cash that you may issue as Cash Over is $100.00.
(Cash Over may not be available in certain markets. Contact us for further information).
1.16. Telecommunication Transactions. Telecommunication Card Sales occur when a
telephone service provider is paid directly using a Card for individual local or long-distance
telephone calls. (NOTE: Pre-paid telephone service cards are not and do not give rise to
Telecommunication Card Sales). Prior to conducting Telecommunication transactions
you must contact us for approval and further instructions, rules and requirements.
Failure to do so could result in additional charges or termination of this Agreement.
2. Suspect Transactions
If the appearance of the Card being presented or the behavior of the person presenting the
Card is suspicious in nature, you must immediately call the Voice Authorization Center
and ask to speak to a Code 10 operator. Answer all their questions and follow their
instructions. While not proof that a transaction is fraudulent, the following are some
suggestions to assist you in preventing fraudulent transactions that could result in a
Chargeback:
Ask yourself, does the Customer:
appear nervous/agitated/hurried?
appear to be making indiscriminate purchases (e.g., does not care how much an item
costs, the size, etc.)?
make purchases substantially greater than your usual customer (e.g., your average
transaction is $60, but this transaction is for $360)?
insist on taking the merchandise immediately (e.g., no matter how difficult it is to handle,
is not interested in free delivery, alterations, etc.)?
appear to be purchasing an unusual amount of expensive items or the same items?
take an unusual amount of time to sign the Sales Draft, or look at the back of the Card as
he signs?
talk fast or carry on a conversation to distract you from checking the signature?
take the Card from a pocket instead of a wallet?
repeatedly come back, in a short amount of time or right before closing time, to make
additional purchases?
cause an unusual, sudden increase in the number and average sales transactions over a
one- to three-day period?
tell you he has been having some problems with his Issuer and request that you call a
number (that he provides) for a special handling or authorization?
have a previous history of disputed Charges?
place orders to be shipped to an address other than the billing address, or use anonymous/
free email domains?
place orders sent to zip codes or countries where you show a history of fraudulent claims?
frequently make purchases and then return goods for cash?
use a prepaid Card to purchase other prepaid Cards?
use a large numbers of prepaid Cards to make purchases?
Does the Card:
have characters the same size, height, style and all within alignment?
appear to be re-embossed (the original numbers or letters may be detected on the back
of the Card)?
have a damaged hologram?
have a Magnetic Stripe on the back on the Card?
have an altered Magnetic Stripe?
have an altered signature panel (e.g., appear discolored, glued or painted, or show erasure
marks on the surface)?
have valid from (effective) and valid thru (expiration) dates consistent with the sale
date?
If you use an electronic terminal and swipe the Card, make sure the account number
displayed on the terminal and/or the Sales Draft matches the number on the Card. If you
cannot or do not verify the account number and accept the sale, you are subject to a
Chargeback and could be debited for the amount of the transaction. IF THE NUMBERS
DO NOT MATCH, DO NOT ACCEPT THE CARD AS A FORM OF PAYMENT, EVEN
THOUGH AN AUTHORIZATION CODE FOR THE MAGNETICALLY SWIPED CARD
NUMBER MAY BE RECEIVED.
Fraud-Prone Merchandise Tips:
Gift Cards, jewelry, video, stereo, computer and camera equipment, shoes, and mens
clothing are typically fraud-prone because they can easily be resold.
Be suspicious of high dollar amounts and transactions with more than one fraud-prone
item, e.g., two VCRs, three gold chains, etc.
If you suspect fraud:
Call the Voice Authorization Center and ask to speak to a Code 10 operator.
If the terminal does not display the Card number, call the POS Help Desk for terminal
assistance.
REMEMBER: AN AUTHORIZATION CODE ONLY INDICATES THE AVAILABILITY
OF A CARDHOLDERS CREDIT AT THE TIME OF THE TRANSACTION. IT DOES NOT
WARRANT THAT THE PERSON PRESENTING THE CARD IS THE RIGHTFUL
CARDHOLDER. IF PROPER PROCEDURES ARE NOT FOLLOWED AT THE TIME OF
THE TRANSACTION, YOU ARE SUBJECT TO A CHARGEBACK AND YOUR
ACCOUNT MAY BE DEBITED FOR THE AMOUNT OF THE TRANSACTION.
3. Completion of Sales Drafts and Credit Drafts
You must prepare a Sales Draft or Credit Draft, as applicable, for each Card transaction and
provide a copy of it or a transaction receipt or copy of the Draft to the Cardholder at the
time the Card transaction is completed.
3.1. Information Required. All of the following information must be contained on a
single page document constituting a Sales Draft:
Cardholders account number must appear on the Credit Draft or Sales Draft in the
manner required by applicable law and Card Organization Rules. NOTE: The copy of the
Sales Draft or Credit Draft you provide to a Cardholder must not include the Cardholders
Card expiration date or any more than the last four digits of the Cardholders Card
number. Some states have similar requirements that also apply to the Sales Drafts or Credit
Drafts you retain. MasterCard requires that Card expiration dates be excluded from the
Sales Drafts or Credit Drafts your business retains. You are solely responsible to determine
the Card account number truncation requirements and Card expiration date exclusion
requirements for your state/jurisdiction;
Clear imprint of the Card. Whenever the term imprint is used it refers to the process
of using a manual imprinting machine to make an impression of the Card on the same side
of a signed Sales Draft; it does not include the printout from a printer attached to an
electronic device. If you use an electronic device (e.g., authorization/draft capture
terminal, cash register, POS Device, etc.) and swipe the Card to read and capture the Card
information via the Magnetic Stripe, you do not have to imprint the Card. HOWEVER,
IF THE TERMINAL FAILS TO READ THE MAGNETIC STRIPE OR IF YOU ARE
REQUIRED TO OBTAIN A VOICE AUTHORIZATION, THEN YOU MUST IMPRINT
THE CARD. IN ADDITION, THE SALES DRAFT MUST HAVE THE CARDHOLDERS
SIGNATURE. FAILURE TO FOLLOW THESE PROCEDURES WILL PREVENT YOU
FROM DEFENDING A TRANSACTION IN THE EVENT THAT IT IS CHARGED BACK
UNDER A CLAIM THAT THE RIGHTFUL CARDHOLDER DID NOT AUTHORIZE THE
PURCHASE. ENTERING INFORMATION INTO A TERMINAL MANUALLY WILL NOT
PREVENT THIS TYPE OF CHARGEBACK. FOR MAIL, TELEPHONE, INTERNET AND
OTHER CARD NOT PRESENT ORDERS SEE SECTION 3.2;
Cardholders signature. However, eligible merchants participating in MasterCards Quick
Payment Service Program, Visa Easy Payment Program, American Express No Signature
Program, and Discover Networks No Signature Program, and/or certain Discover Network
transactions (see note below) are not required to obtain the Cardholders signature under
certain conditions set forth by each program;
Date of the transaction;
Amount of the transaction (including the approved currency of the sale);
Description of the goods and/or services involved in the transaction (if there are too many
items, combine them into one description; e.g., clothing instead of one pair of pants,
one shirt). Do not carry information onto a second Sales Draft;
Description of your merchandise return and Credit/refund policy;
A valid authorization code; and
Merchants Doing Business As (D/B/A) name and location (city and state required) and
Merchant Account Number.
When imprinting Sales Drafts, do not alter the Cardholder account number, circle or
underline any information on the Sales Draft or alter a Sales Draft in any way after the
transaction has been completed and signed. Stray marks and other alterations on a Sales
Draft may render it electronically unscannable, unreadable or illegible. This may result in
a Chargeback or Summary Adjustment to your account.
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For Discover Network sales using a paper Sales Draft (as opposed to Electronic Draft
Capture), the paper Sales Draft must also contain the initials of your representative or
employee that conducted the transaction. For Discover Network Credits, the Credit Draft
must contain the signature of your authorized representative or employee that conducted
the transaction.
Discover Card Sales in an amount more than $50.00 including sales taxes, tip, surcharge
and/or Cash Over amount are not eligible for treatment as No Signature Card Sales and you
may lose a dispute of such a Card Sale if the Merchant fails to obtain the Cardholders
Signature on the Sales Draft.
Eligible merchants participating in Visa Easy Payment Service (VEPS) (Visas No Signature
Required Program), Quick Payment Service and/or Small Ticket are only required to provide
the Cardholder with the completed Sales Draft when requested by the Cardholder.
NOTE: For Visa, MasterCard and Discover Network transactions, if you are a merchant
operating under certain merchant category codes (MCC) approved by Visa, MasterCard
and Discover Network, you are not required to obtain the Cardholders signature so long
as the full track data is transmitted in the authorization request and the sale amount is
below the applicable program floor limit (MasterCard/Discover/American Express is $50 or
less. Visas program limit remains at $25 or less excluding U.S. grocery stores (MCC 5411)
and discount stores (MCC 5310) where the limit has been raised to $50.
For MasterCard, if you are operating vending machines under MCC 5499 (Miscellaneous
Food Stores-Convenience Stores, Markets, Specialty Stores), you need not provide a receipt
at the time a transaction is conducted. If a vending machine cannot provide a printed
receipt, you must disclose and post instructions advising customers how a receipt may be
obtained.
Sales Drafts for American Express Transactions.
You must create a Sales Draft for every Charge. For each Charge submitted electronically,
you must create an electronically reproducible Sales Draft. The Sales Draft (and a copy of
the customers receipt) must disclose your return and/or cancellation policies.
If the Cardholder wants to use different Cards for payment of a purchase, you may create
a separate Sales Draft for each Card used. However, if the Cardholder is using a single Card
for payment of a purchase, you shall not divide the purchase into more than one Charge,
nor shall you create more than one Sales Draft.
Submit the Charge to American Express directly, or through your Processor, for payment.
Retain the original Sales Draft (as applicable) and all documents evidencing the Charge,
or reproducible records thereof, for the timeframe listed in our country-specific policies.
Provide a copy of the Sales Draft to the Cardholder.
You may be able to create more than one Sales Draft if the purchase qualifies for a delayed
delivery Charge. The retention time frame for Sales Drafts is twenty-four (24) months from
the date you submitted the corresponding Charge to us. Pursuant to applicable law, truncate
the Card number and do not print the Cards expiration date on the copies of Sales Drafts
delivered to Cardholders. Truncated Card number digits must be masked with replacement
characters such as x, * or #, and not blank spaces or numbers.
If you submit Charges on paper, you must create a Sales Draft containing all of the following
required data:
Full Card number and expiration date (pursuant to applicable law), and if available,
Cardholder name.
The date the Charge was incurred.
The amount of the Charge, which must be the total price for the purchase of goods and
services (plus applicable taxes and gratuities) purchased on the Card.
A clear description of the goods or services purchased by the Cardholder.
An imprint or other descriptor of you name, address, Merchant Account Number and, if
applicable, store number.
The words no refunds if you have a no refund policy, and you return and/or cancellation
policies.
American Express No Signature.
You may participate in the American Express No Signature Program. The No Signature
Program allows establishments not to request a signature from Cardholders on the Sales
Draft. To qualify for the No Signature Program, both the establishment and each Charge
must meet the following criteria:
Establishment Criteria.
If your establishment is classified in an industry that accepts in-person Charges, then the
establishment may participate in the No Signature Program with the exception of the
following categories:
Merchants who do not conduct in-person Charges (i.e., internet, mail order or telephone
order).
Prohibited transactions as set forth in Section 14.4 or illegal transactions or activity, as
described in Section 35.2.
High Risk Merchants (e.g., establishments whose business type has had historically high
occurrences of fraud and disputed charges with American Express or as compared to
other similarly situated merchants (or both); examples include internet electronic
services or nightclubs/lounges) as determined by American Express in its sole discretion.
Merchants placed in our Fraud Full Recourse Program.
Charge Criteria:
The amount or Charge must meet the threshold established in American Express country
specific policy.
The Charge Submission must include the appropriate indicator to reflect that the Card
and the Cardholder were present at the point of sale.
The Charge Submission must include a valid approval.
Under the No Signature Program, Chargebacks will not be exercised for such Charges based
solely on the establishments failure to obtain the Cardholders signature at the point of sale.
If a disproportionate amount or a number of disputed Charges under the No Signature
Program occur, you must cooperate to reduce the amount or number of disputed Charges.
If such efforts fail, you may be placed in American Express Chargeback programs (see
American Express Card Organization Rules regarding chargeback programs), or your
establishments participation in the No Signature Program may be modified or terminated.
The established threshold for charges to qualify under the No Signature Program is $50.00
or less.
3.2. Mail / Telephone / Internet (Ecommerce) Orders and Other Card Not Pres -
ent Sales. You may only engage in mail/telephone/Internet orders provided they do not
exceed the percentage of your total payment Card volume reflected on your Application.
Failure to adhere to this requirement may result in cancellation of your Agreement.
Merchants conducting Internet transactions using MasterCard or Visa Cards must have
special codes (an Electronic Commerce Indicator) added to their authorization and
settlement records. Discover Network does not use an Electronic Commerce Indicator.
Failure to register as a merchant conducting Internet transactions can result in fines
imposed by the Card Organizations.
Mail, Telephone, Internet and other Card Not Present transactions have a substantially
higher risk of Chargeback. Since you will not have an imprinted or magnetically swiped
transaction and you will not have the Cardholders signature on the Sales Draft as you would
in a face-to-face transaction, you will assume all risk associated with accepting a
mail/telephone/ Internet or other Card Not Present transaction. The following procedures,
while they will not eliminate Chargebacks, are useful in reducing them and should be
followed by you:
Obtain the expiration date of Card.
On the Sales Draft, clearly print the Cardholders account number; effective and expiration
dates; date of transaction; description of the goods and services; amount of the transaction
(including shipping, handling, insurance, etc.); Cardholders name, billing address and
shipping address; authorization code; and merchants name and address (city and state
required); provided, that you must effect PAN Truncation, and must not include the
expiration date, on the copy of the Sales Daft or Credit Draft that you provide to the
Cardholder, or as required by applicable law, the Sales Draft or Credit Draft you retain.
For mail orders, write MO; for telephone orders, write TO on the Cardholders
signature line.
If feasible, obtain and keep a copy of the Cardholders signature on file on a form
authorizing you to submit telephone and mail order transactions.
You should utilize the Address Verification Service for all Card Not Present Transactions
(see note below). Address Verification is specifically required for all Discover Network
Card Not Present Transactions, and if you do not receive a positive match through AVS,
you may not process the Discover Network Card Not Present Transaction. If you do not
have AVS, contact us immediately.
You should obtain the 3- or 4 digit Card Validation Code number and include it with
each authorization request. Discover Network Card Organization Rules specifically
require that you submit the Card Validation Code with the authorization request for all
Discover Network Card Not Present Transactions.
For telephone orders, it is recommended that written verification of the sale be requested
from the Cardholder (sent by mail or fax).
You may not submit a transaction for processing until after the merchandise has been
shipped or the service has been provided to the customer. (The Card Organizations will
permit the immediate billing of merchandise manufactured to the customers
specifications [i.e., special/custom orders] provided the Cardholder has been advised of
the billing details.)
You should provide a copy of the Sales Draft to the Cardholder at the time of delivery. You
must also obtain proof of delivery of the goods or services to the address designated by
the Cardholder (i.e., by getting a signature of the Cardholder or person designated by the
Cardholder through the delivery carrier). If the Cardholder visits one of your locations
to receive the goods or services purchased, obtain an imprint of the card and the
Cardholders signature.
Notify the Cardholder of delivery time frames and special handling and/or cancellation
policies. Merchandise shipping dates must be within seven (7) days of the date
authorization was obtained. If, after the order has been taken, additional delays will be
incurred (e.g., out of stock), notify the Cardholder and reauthorize the transaction.
You may not require a Cardholder to complete a postcard or other document that displays
the Cardholders account number in clear view when mailed.
If you accept orders via the Internet, your web site must include the following information
in a prominent manner:
Complete description of the goods or services offered;
Description of your merchandise return and Credit/refund policy;
Customer service contact, including email address and/or telephone number;
Transaction currency (U.S. dollars, unless permission is otherwise received from Servicers);
Any applicable export or legal restrictions;
Delivery policy;
Consumer data privacy policy;
A description of the transaction security used on your website;
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The sale or disclosure of databases containing Cardholder account numbers, personal
information, or other Card transaction information to third parties is prohibited;
Your identity at all points of interaction with the Cardholder;
Address of merchant including country;
Cancellation policy; and
Date any free trial period ends.
You may not accept Card Account Numbers through Electronic Mail over the Internet.
NOTE: AVS (and other fraud mitigation tools such as Verified by Visa, MasterCard Secure
Code, CVV2, CVC2 and CID verification) does not guarantee against Chargebacks, but
used properly, it assists you in reducing the risk of fraud by confirming whether certain
elements of the billing address provided by your customer match the billing address
maintained by the Issuer. AVS also may help you avoid incurring additional interchange
expenses. AVS is a separate process from obtaining an Authorization and will provide a
separate response. A transaction may not match addresses when submitted for AVS and
still receive an Authorization. It is your responsibility to monitor the AVS responses and use
the information provided to avoid high-risk transactions.
American Express Internet Charges.
For internet orders, you must use separate Merchant Account Numbers provided to you for
internet orders on all your requests for Authorization and submission of charges, provide
at least one (1) months prior written notice of any change in your internet address, and
comply with any additional requirements that may be added from time to time. Additionally,
if a disputed Charge arises involving a Card Not Present Charge that is an internet electronic
delivery Charge, a Chargeback may be exercised for the full amount.
Processing a Card Not Present Charge for American Express Transactions you
must:
Submit the Charge to American Express;
For Card Not Present Charges, you must create a Sales Draft and ask the Cardholder to provide:
Card number;
Card expiration date;
In addition, it is recommended that you ask for:
Name as it appears on the Card,
Cardholders billing address, and
Ship-to address, if different from the billing address.
American Express will not Chargeback for such charges based solely upon a Card- member
claim that he or she did not receive the disputed goods if you have:
Verified the address to which the goods were shipped was the Cardholder's full billing
address.
Provided proof of delivery signed by the Cardholder or an authorized signer of the Card
indicating the delivery of the goods or services to the Card- member's full billing address.
American Express will not be liable for actual or alleged fraudulent transactions over the
internet and will have the right to Chargeback for those charges. For Internet Orders, you
must:
Use any separate merchant numbers (seller ID) established for your internet orders in all
of your requests for Authorization and Submission of charges.
Provide us with at least one (1) months prior written notice of any change in your internet
address.
Comply with any additional requirements that American Express provides from time to
time. Additionally, if a disputed Charge arises involving a Card Not Present Charge that
is an internet electronic delivery Charge, American Express may exercise Chargeback for
the full amount of the Charge and place you in any of its Chargeback programs.
When providing Proof of Delivery, a signature from the Cardholder or an authorized signer
of the Card is not required.
3.2.1. Discover Network Protocol for Internet Trans actions. Each Internet Discover
Network Card transaction accepted by you and submitted to us shall comply with Discover
Network standards, including, without limitation, Discover Network standards governing
the formatting, transmission and encryption of data, referred to as the designated protocol.
You shall accept only those Internet Discover Network Card transactions that are encrypted
in accordance with the designated protocol. As of the date of these Operating Procedures, the
designated protocol for the encryption of data is Secure Socket Layer (SSL). We may, at our
discretion, withhold Settlement until security standards can be verified. However, the
designated protocol, including any specifications with respect to data encryption, may
change at any time upon thirty (30) days advance written notice. You shall not accept any
Internet Discover Network Card transaction unless the transaction is sent by means of a
browser which supports the designated protocol.
3.3. Customer Service Telephone Numbers for Card types which are funded by
individual non-bank Card Organizations include:
American Express/ESA or Direct 1-800-528-5200
American Express See Part IV, Section A.5 Cust. Service #
JCB, International 1-800-366-4522
(For YEN and CAD currency only)
TeleCheck 1-800-366-1054
Voyager 1-800-987-6591
WEX 1-800-492-0669
Available 24 hours/day; 7 days/week.
4. Data Security
THE FOLLOWING IS IMPORTANT INFORMATION REGARDING THE PROTECTION
OF CARDHOLDER DATA. PLEASE REVIEW CAREFULLY AS FAILURE TO COMPLY
CAN RESULT IN SUBSTANTIAL FINES AND LIABILITIES FOR UNAUTHORIZED
DISCLOSURE AND TERMINATION OF THIS AGREEMENT.
4.1. Payment Card Industry Data Security Standards (PCI DSS). Visa, MasterCard,
Discover Network, JCB and American Express aligned data security requirements to create
a global standard for the protection of Cardholder data. The resulting Payment Card
Industry Data Security Standards (PCI DSS) defines the requirements with which all entities
that store, process, or transmit payment card data must comply. PCI DSS is the name used
to identify those common data security requirements. The Cardholder Information Security
Program (CISP) is Visa USAs data security program, the Site Data Protection (SDP) program
is MasterCards data security program, Discover Network Information Security and
Compliance (DISC) is Discover Networks data security program, and the Data Security
Operating Policy (DSOP) is American Express data security program, each based on the
PCI DSS and industry aligned validation requirements. PCI DSS compliance validation is
focused on Merchant Equipment (as defined below) where Cardholder data is processed,
stored or transmitted, including:
All external connections into your network (i.e., employee remote access, third party
access for processing, and maintenance);
All connections to and from the authorization and settlement environment (i.e.,
connections for employee access or for devices such as firewalls, and routers); and
Any data repository outside of the authorization and settlement environment.
For the purposes of this Section 4, Merchant Equipment means any and all equipment you
use in connection with Card authorization, clearing, completing, settling, transmitting or
other related processing, including, without limitation, all telecommunication lines and
wireless connections and software, systems, point-of-sale terminals, card readers,
merchandise and card scanners, printers, PIN pad devices and other hardware, whether
owned by you, Merchant Providers or other Persons used by you.
The Card Organizations or we may impose fines or penalties, or restrict you from accepting
Cards if it is determined that you are not compliant with the applicable data security
requirements. We may in our sole discretion, suspend or terminate Services under this
Agreement for any actual or suspected data security compromise. You agree that you will
not request any Authorizations, submit any Sales Drafts or Credit Drafts until you have
read and understood the PCI DSS, CISP, SDP and DISC for which you acknowledge we
have provided you sufficient information to obtain, and you will be deemed to have done
so upon our receipt of your request or submission of any Authorizations, Sales Drafts or
Credit Drafts.
You must comply with the data security requirements described in this Section 4.1,
including, without limitation, PCI DSS, SDP, CISP, DSOP and DISC, and any additional
Card Organization requirements applicable to payment applications and PIN transactions.
Detailed information about PCI DSS can be found at the PCI DSS Councils website:
www.pcisecuritystandards.org.
Detailed information about Visas CISP program can be found at Visas CISP website:
www.visa.com/cisp.
Detailed information about MasterCards SDP program can be found at the MasterCard
SDP website: www.mastercard.com/sdp.
Detailed information about DISC can be found at Discover Networks DISC website:
http://www.discovernetwork.com/merchants/data-security/disc.html.
Detailed information about DSOP can be found at American Express DSOP website:
www.americanexpress.com/datasecurity.
4.2. Data Security Requirements. You must comply with the data security require -
ments shown below:
You must install and maintain a secure network firewall to protect data across public
networks.
You must protect stored data and data sent across networks, using methods indicated in
the PCI DSS.
You must use and regularly update anti-virus software and keep security patches up-to-
date.
You must restrict access to data by business need to know, assign a unique ID to each
person with computer access to data and track access to data by unique ID.
You must not use vendor-supplied defaults for system passwords and other security
parameters.
You must regularly test security systems and processes.
You must maintain a policy that addresses information security for employees and
contractors.
You must restrict physical access to Cardholder information.
You may not transmit Cardholder account numbers to Cardholders for Internet
transactions.
You cannot store or retain Card Validation Codes (three-digit values printed in the
signature panel of most Cards, and a four-digit code printed on the front of an American
Express Card) after final transaction authorization.
You cannot store or retain Magnetic Stripe data, PIN data, chip data or AVS data. Only
Cardholder account number, Cardholder Name and Cardholder expiration date can be
retained subsequent to transaction authorization.
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You must destroy or purge all Media containing obsolete transaction data with Cardholder
information.
You must keep all systems and Media containing Card account, Cardholder, or transaction
information (whether physical or electronic) in a secure manner so as to prevent access
by, or disclosure to any unauthorized party.
For Internet transactions, copies of the transaction records may be delivered to
Cardholders in either electronic or paper format.
You must use only services and Merchant Equipment that have been certified as PCI-DSS
compliant by the Card Organizations.
4.3. Compliance Audits. You may be subject to ongoing validation of your compliance
with PCI DSS standards. Furthermore, we retain the right to conduct an audit at your
expense, performed by us or a Person designated by us to verify your compliance, or that
of your agents or Merchant Providers, with security procedures and these Operating
Procedures.
4.4. Immediate Notice Required. In the event that transaction data is known or
suspected of having been accessed or retrieved by any unauthorized Person, you must contact
us immediately, and in no event more than 24 hours after becoming aware of such activity.
4.5. Investigation. You must, at your own expense (i) perform or cause to be performed
an independent investigation, including a forensics analysis performed by a certified
forensic vendor acceptable to us and the Card Organizations in accordance with Card
Organization standards, of any data security breach of Card or transaction data, (ii) provide
a copy of the certified forensic vendors final report regarding the incident to us and the
Card Organizations, (iii) perform or cause to be performed any remedial actions
recommended by any such investigation, and (iv) cooperate with us in the investigation and
resolution of any security breach. Notwithstanding the foregoing, if required by a Card
Organization, we will engage a forensic vendor approved by a Card Organization at your
expense. You must cooperate with the forensic vendor so that it may immediately conduct
an examination of Merchant Equipment, and your and Merchant Providers procedures and
records and issue a written report of its findings.
4.6. Required Information for Discover Network Security Breaches. For security
breaches involving Discover Network transactions and/or track data, you must provide us
and/or Discover Network with the following information: (i) the date of breach; (ii) details
concerning the data compromised (e.g., account numbers and expiration dates, Cardholder
names and addresses, etc.); (iii) the method of such breach; (iv) your security personnel
contacts; (v) the name of any person (including law enforcement) assisting you with your
investigation of such breach; and (vi) any other information which we reasonably request
from you concerning such breach, including forensics reports. You shall provide such
information as soon as practicable, and the items listed in (i)-(v) shall be provided to us in
any event within 48 hours of your initial notification to us of the breach.
4.7. Merchant Providers. The data security standards set forth in this Section 4 also
apply to Merchant Providers. Before you engage any Merchant Provider, you must provide
to us in writing (a) the Merchant Providers legal name, (b) contact information, and (c)
intended function. You acknowledge and agree that you will not use, or provide Cardholder
data access to, any Merchant Provider until you receive our approval and, if required,
confirmation of our registration of that Merchant Provider with applicable Card
Organizations. You must ensure that you and Merchant Providers: (i) comply with the
registration process which can involve site inspections, background investigations,
provision of financial statements, and any other information required by a Card
Organization; (ii) comply with the periodic and other reporting required by a Card
Organization; and (iii) comply with all applicable Card Organization Rules, including
without limitation, those requiring security of Cardholder data. You may allow Merchant
Providers access to Cardholder data only for purposes authorized under and in conformance
with the Card Organization Rules. You are responsible for all our costs and expenses
associated with our review, approval, certification (and recertification as may be required
by us or the Card Organization Rules) and registration of any Merchant Providers.
Your use of the Services, equipment, software, systems, materials, supplies or resources of
third parties regarding your Card transactions processing, including, without limitation,
Merchant Providers and any third party lessors or licensors, will not affect your obligations
under this Agreement to us which will apply to the same extent as if you had not used
them. We have no liability or responsibility to you or others regarding these third parties,
even if we referred them to you. These third parties are your agents, and you are solely
responsible for (i) determining whether they can meet your needs and standards, (ii) their
actions, inactions and compliance with the terms of this Agreement and the Card
Organization Rules and (iii) any and all fees, costs, expenses and other obligations owed to
them by you or owed by them to us or to Card Organizations.
4.8. Noncompliance Fees. If we have not received receipt of your validation of
compliance with your PCI DSS standards within the first 90 days of the date of the
Agreement, you will be charged a monthly non-receipt of PCI Validation fee as set forth in
the Application or as otherwise communicated to you, for the period beginning upon
expiration of the 90 day period, until such time as you are compliant or this Agreement is
terminated, whichever comes first. This monthly non-receipt of PCI Validation fee is in
addition to any and all other fees for which you are responsible related to your failure to be
compliant as required hereunder.
4.9. Costs. If you or a Merchant Provider (or other Person used by you) are determined
by any Card Organization, regardless of any forensic analysis or report, to be the likely
source of any loss, disclosure, theft or compromise of Cardholder data or Card transaction
information, or caused Cardholder data to be put at risk (together, Compromised Data
Events) and regardless of your belief that you have complied with the Card Organization
Rules or any other security precautions and are not responsible for the Compromised Data
Event, you must promptly pay us for all related expenses, claims, assessments, fines, losses,
costs, and penalties and Issuer reimbursements imposed by the Card Organizations against
us (together, Data Compromise Losses). In addition to the foregoing, you must also pay
us promptly for all expenses and claims made by Issuers against us alleging your
responsibility for the Compromised Data Event, apart from any claim procedures
administered by the Card Organizations.
5. Authorizations
Each authorization request you submit to us must fully comply with the applicable
provisions of this Agreement. Submission of an authorization request that does not fully
comply may result in assessment of additional fees to you, a declined authorization response
or a Chargeback to you.
An Authorization Approval Code only indicates the availability of Credit on an account at
the time the Authorization is requested. It does not guarantee or warrant that the person
presenting the Card is the rightful Cardholder, the Charge is in fact valid or bona fide, nor
is it a promise or guarantee that you will be paid for the Charge and not be subject to a
Chargeback.
You must obtain an Authorization Approval Code from us (or as authorized, pursuant to
Section 5.4) for all transactions. A positive authorization response for MasterCard remains
valid for seven (7) days for electronic processed transactions. For true paper merchants for
MasterCard and Visa transactions the Authorization remains valid for fourteen (14) days.
A positive authorization response for Visa will remain valid for thirty (30) calendar days
from the date the Issuer provides the Authorization response for Card Sales in the car rental
Industry, airline and passenger railway industries, the lodging industry, and other travel
MCCs including passenger transport and ten (10) days from the date of the Authorization
response for Card Sales by Merchants in all other industries and MCCs. A positive
Authorization response for Discover Network transactions remains valid for ten (10) days
for Non T&E transactions and thirty (30) days for T&E transactions. A positive
Authorization response for American Express Non T&E transactions are good for seven
(7) days, American Express T&E transactions are good for thirty (30) days. Failure to obtain
an Authorization Approval Code for a sales transaction may result in a Chargeback and/or
the termination of your Agreement. Authorization Approval Codes can be obtained through
your POS Terminal or a Voice Response Unit (VRU). Any fees related to authorizations
will be charged for a request for an Authorization Approval Code, whether or not the
transaction is approved.
Do not attempt to obtain an Authorization Approval Code provided by someone other than
us except as described in Section 5.4. If a Cardholder or another service provider provides
you with either an authorization number or with a telephone number for obtaining
authorizations, the Authorization Approval Code you receive may not be valid. Even if the
transaction is initially processed and funded, it may be charged back at a later date. Also,
if you receive a purported Authorization Approval Code from someone other than us, we
will not have the supporting records and will be unable to verify that you received the
authorization if that is later questioned in a Chargeback.
If you obtain Address Verification, you must review the AVS response separately from the
authorization response and make your own decision about whether to accept the
transaction. A transaction can receive an Authorization Approval Code from the Issuer even
if AVS is unavailable or reflects that the address provided to you does not match the billing
address on file at the Issuer. If the authorized Cardholder disputes such a transaction, you
will be responsible for the resulting Chargeback.
If you receive a Referral response to an attempted authorization, you may not submit the
transaction without calling for and receiving a voice authorization. After receiving a Referral
response you may not attempt another authorization on the same Card through your POS
Terminal.
If you fail to obtain an Authorization Approval Code or if you submit a Card transaction
after receiving a decline (even if a subsequent authorization attempt results in an
Authorization Approval Code), your transaction may result in a Chargeback and may be
assessed fines or fees by the Card Organizations for which you will be responsible. These
currently range from $25 to $150 per transaction. To avoid these costs and related
Chargebacks, always obtain an Authorization Approval Code directly from your terminal
before submitting a transaction for settlement.
For Cards other than MasterCard, Visa and Discover Network (e.g., American Express,
etc.) or for check acceptance, you must follow the procedures for authorization and
acceptance for each. For American Express, you must obtain an Authorization Approval
Code except for charges under a floor limit. The Authorization must be for the full amount
of the Charge except for merchants that are classified in the restaurant industry.
You may not attempt to obtain multiple authorizations for a single transaction. If a sale is
declined, do not take alternative measures with the same Card to obtain an approval of the
sale from other authorization sources. Instead, request another form of payment. If you
accept and process a transaction that was declined, or attempt multi-transactions and/or
multi-authorizations, you are subject to a Chargeback, Card Organization fines and/or
cancellation of your Agreement. Do not discuss reason for decline with a Cardholder rather
refer them to the customer service number on the back of the Card.
For Visa, MasterCard and Discover transactions, automated fuel dispensers must ensure
that completion messages are submitted for such Card transactions within 60 minutes of
the Authorization.
For Discover transactions, Merchants operating in the petroleum industry that conduct
Card Sales at Automated Fuel Dispensers (AFDs), may submit an Authorization Request for
$1.00 to verify the validity of the Card presented. Under such circumstances, you must
submit an Authorization Advice Message for the actual amount of the Card Sale within
sixty (60) minutes of completion of fuel delivery regardless of whether you previously
received a Partial Authorization Response or a positive Authorization Response for any
other amount. If you do not complete the Card Sale following receipt of an approved
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Authorization Response for any amount, a request to cancel the Authorization Request
must be submitted within sixty (60) minutes of the completion of fuel delivery.
5.1. Card Not Present Transactions. You must obtain the 3- or 4 digit Card Validation
Code (CVV2, CVC2, CID) and submit this Code with all authorization requests with
respect to transactions where the Card is not present (e.g., telephone, mail or internet sales).
However, for recurring transaction authorizations you should submit the Card Validation
Code with the first authorization request only, and not with subsequent recurring
transaction authorization requests. (See Section 1.7). NOTE: For each Card Not Present
Discover Network transaction, you must also verify the name and billing address of the
Discover Network Cardholder using the Address Verification System (AVS), and if you do
not receive a positive match, do not process the Discover Network Card Not Present
transaction.
5.2. Authorization via Telephone (Other Than Ter minal / Electronic Device Users).
Call your designated voice authorization toll free number and enter the authorization
information into the VRU using a touch tone phone or hold for an authorization
representative.
If advised to pick up a Card, use reasonable and peaceful means to do so, and do not take
any action that will alarm or embarrass the Card presenter. You will bear all responsibility
for claims, liabilities, costs and expenses as a result of any action by you, your employees,
vendors or agents, that attempt to retain a Card without the Issuers direct request or
failure to use reasonable, lawful means in retaining or attempting to retain the Card.
Forward the Card to: Attn: Rewards Department, P.O. Box 5019, Hagerstown, MD 21740.
You may be paid a reward for the return of the Card.
On occasion, the Authorization Center will ask you to obtain identification from the
Cardholder before issuing an approval code. If you are instructed to do so, clearly write
the appropriate identification source and numbers in the space provided on the Sales
Draft unless otherwise prohibited by law.
If the sale is declined, please remember that our operators are only relaying a message
from the Issuer. The fact that a sale has been declined should not be interpreted as a
reflection of the Cardholders creditworthiness. The Cardholder should be instructed to
call the Issuer.
5.3. Authorization via Electronic Devices.
If you use an electronic terminal to obtain an Authorization Approval Code, all sales
should be authorized through this equipment. Authorizations through other methods
will result in additional charges to you.
If your terminal malfunctions, refer to your Quick Reference Guide, if necessary, or call
the POS Help Desk. The problem will either be corrected promptly or may require
terminal programming or replacement. During the period in which your terminal is not
functioning, remember to check it periodically since most terminal problems are
temporary in nature and are quickly corrected.
If a terminal is moved or if wires are disconnected, causing malfunction, call the POS
Help Desk immediately and follow their instructions. You may be responsible for any
service charges incurred for reactivation of the terminal.
Until the terminal becomes operable, you must call your designated voice authorization
toll free number and enter authorization information into the VRU using a touchtone
phone. During this time, each transaction must be imprinted using a manual Imprinter
machine. Failure to obtain an Authorization Approval Code and to imprint these
transactions could result in a Chargeback to your account.
5.4. Third Party Authorization System. If you have contracted with another
authorization network to obtain Credit Card authorization, i.e., your terminal can Split Dial,
liability resulting from discrepancies with that network must be resolved between you and
that network. We will not research Chargebacks resulting from Authorization Approval
Codes obtained from another authorization service organization. Such Chargebacks will be
passed through to you for resolution. If an authorization provided by a third party
authorization system is challenged in a Chargeback, you must obtain proof (e.g., third party
authorization logs) from the authorization source and submit it to us within the time frame
specified on the Chargeback documentation.
IF YOU CONTRACTED TO USE ONE OF OUR AUTHORIZATION SERVICES, DO NOT
USE ANOTHER THIRD PARTY SYSTEM WITHOUT NOTIFYING CUSTOMER SERVICE.
OTHERWISE, WE WILL BE UNABLE TO SUCCESSFULLY RESEARCH AND DEFEND
ANY AUTHORIZATION RELATED CHARGEBACKS ON YOUR BEHALF. THIS DELAY
WILL SIGNIFICANTLY DECREASE YOUR TIME TO RESEARCH AND PROVIDE PROOF
OF AUTHORIZATION, THUS REDUCING YOUR OPPORTUNITY TO REVERSE A
CHARGEBACK.
If you utilize another authorization network, you will be responsible for the downgrade of
any transactions to a higher cost interchange that result from a mismatch of information to
our systems and those of third party authorization networks (see Section 19.1).
If you use a third party authorization network, you must also comply with Section 4.7.
Call the following for other Card types:
American Express/ESA or Direct 1-800-528-5200
JCB, International 1-800-522-9345
(For YEN and CAD currency only)
TeleCheck 1-800-366-5010
Voyager 1-800-987-6589
WEX 1-800-842-0071
Available 24 hours/day; 7 days/week.
All approved sales authorized in this manner must be entered manually as post
authorization transactions into the terminal, once the terminal becomes operational. All
Credit transactions must be entered into the terminal for data capture. You may be subject
to a Chargeback if you receive a Referral and subsequently receive an approval. To reduce
the risk of such a Chargeback, the Card should be imprinted using a manual Imprinter
machine. (For specific procedures on Electronic Data Capture, refer to the Terminal
Operating Instructions/Users Guide.) If the terminal malfunctions for more than twenty-
four (24) hours, contact Customer Service for further instructions on processing your
transactions.
5.5. Automated Dispensing Machines. Records must be produced for all transactions
whose origin and data capture are automated dispensing machines or Limited Amount
Terminals. Records should include the Cardholder account number, merchants name,
terminal location, transaction date and amount.
5.6. Pre-Authorization for T&E (Travel & Entertain ment) and Restaurant Merch ants.
If you are a business engaged in providing travel and/or entertainment services (e.g., car
rentals, hotels, motels, etc.) or a restaurant business, and engage in the practice of pre-
Authorization you must comply with the following general procedures:
A hotel, motel, or car rental merchant may obtain an estimated Visa, MasterCard or
Discover Network authorization at the time of check-in.
Restaurants must not add an estimated tip amount to the authorization request beyond
the value of the goods provided, or services rendered, plus any applicable tax.
You must notify the Cardholder of the dollar amount you intend to Pre-Authorize.
If the customer decides to use another form of payment (e.g., cash, check, etc.) you must
promptly call the Voice Authorization Response Unit to delete the authorization hold.
Provide the Cardholders account number, original dollar amount and date of the
transaction, and the authorization code. If a new transaction takes place, a new imprinted
and signed Sales Draft for the exact amount and a new authorization code for that amount
must be obtained.
VEHICLE RENTAL PROVIDERS MAY NOT INCLUDE POTENTIAL VEHICLE DAMAGE
OR INSURANCE DEDUCTIBLES IN ANY PREAUTHORIZATIONS.
If you receive a decline on a transaction, you must wait twenty-four (24) hours before
attempting to reauthorize. If you reauthorize prior to this time frame and receive an
approval, you may be subject to a Chargeback and a fine imposed by the Card
Organizations.
Hotels, motels, and car rental merchants are allowed up to a 15% variance above the
amount authorized. If the final amount charged to the Cardholder exceeds the original
estimate by more than 15% above the preauthorization, you must authorize any additional
amounts, and all incremental authorization codes must be written in the authorization area
along with the date of authorization and the amount authorized.
Pre-Authorization for certain establishments, are allowed up to a 20% (instead of 15%)
variance above the amount authorized. If the final amount exceeds the amount
preauthorized by more than 20%, you must authorize the additional amount. Estimating
the Authorization amount to include a tip is prohibited. The authorization request should
include only the amount associated with the bill presented to the consumer.
You should obtain an authorization for the initial estimated charges and then monitor
the charges to ensure that the actual charges made do not exceed the estimated charges. If
the actual charges exceed the amount of the initial estimated authorization (and any
subsequent estimated authorizations), then you must secure a positive authorization for
the additional amount. NOTE: Subsequent authorizations should only be for the additional
amount of total charges and not include amounts already authorized.
The estimated amount of any pre-authorization for lodging accommodations must be
based on (i) the intended length of stay; (ii) the room rate; (iii) applicable taxes and service
charges; and (iv) other miscellaneous charges as dictated by experience.
If an authorization request is declined, no charges occurring after that date will be
accepted for that Cardholder.
You do not need to obtain a final authorization if the total sum of charges (the final
amount) does not exceed 120% of the previously authorized charges. You must record the
dates, authorized amounts, and their respective Authorization Approval Codes on the Sales
Draft(s).
5.7. Discover Network Procedure for Request for Cancellation of Author i zation.
If a Discover Network Card sale is cancelled or the amount of the transaction changes
following your receipt of authorization for the sale, you must call your Authorization Center
directly and request a cancellation of the authorization. An authorization may be cancelled
at any time within ten (10) days of your receipt of the authorization, but must be cancelled
before the sales data relating to the transaction is submitted to us, after which the
authorization cannot be changed. For an authorization cancellation, you must provide us
with the following information, in this order:
The Discover Network Merchant Account Number used in the authorization;
The Card number;
The original amount of the authorization being cancelled;
The new amount of the total transaction (if any);
The original authorization code for the authorization being cancelled;
The expiration date of the Card; and
A brief reason for the authorization cancellation.
5.8. Partial Authorization and Authorization Reversal. Partial authorization provides
an alternative to a declined transaction by permitting an Issuer to return an authorization
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approval for a partial amount, an amount less than the transaction amount requested by the
merchant when the available card balance is not sufficient to approve the transaction in
full. The Cardholder is able to use up the remaining funds on the card and select another
form of payment (i.e., another payment card, cash, check) for the remaining balance of the
transaction. For MasterCard transactions, partial authorization is optional for batch
authorized e-commerce transactions, mail order, telephone order transactions and recurring
payment transactions. For Discover transactions, partial Authorization support is optional
for Card Not Present transactions. If you support partial authorizations, a partial
authorization indicator must be included in each authorization request. It is a requirement
for all U.S. and U.S. Territory merchants that provide cash-back at Point of Sale to support
Visa Partial Authorization.
An authorization reversal must be submitted if the authorization is no longer needed, a
partial amount of the total authorized is submitted for the settled transaction, or the
Cardholder elects not to complete the purchase. The transaction sent for settlement must
be no more than the amount approved in the partial authorization response. In the event
that you wish to support the partial authorization functionality, you must contact Processor
for additional rules and requirements. An authorization reversal may only be submitted if
the transaction has not settled. Once the transaction has settled, only a Credit or refund can
occur.
6. Submission/Deposit of Sales Drafts and Credit Drafts
6.1. Submission of Sales for Merchants Other Than Your Business. You may present
for payment only valid charges that arise from a transaction between a bona fide Cardholder
and your establishment. If you deposit or attempt to deposit transactions that arise from
sales between Cardholders and a different business than the one approved by us in our
Agreement with you, then the transaction may be charged back, we may suspend or debit
funds associated with all such transactions, and we may immediately terminate your
account and the Agreement.
6.1.1. Factoring. Factoring is considered merchant fraud and strictly prohibited.
Factoring is the submission of authorization requests and/or Sales Drafts by a merchant for
Card transactions transacted by another business. If you submit Sales Drafts on behalf of
another person, you will suffer any losses associated with the disputes of any such Sales
Draft and/or transaction. Also if any fraud is involved, you could face criminal prosecution.
6.2. Timeliness. In order to qualify for the lowest interchange Discount Rate, all Sales
and Credit Drafts must be properly completed and submitted daily. If you have not received
payment for submitted Sales Drafts after one (1) week from your normal payment date,
contact Customer Service. Late Submission of Sales or Credit Drafts may result in increased
interchange rates or fees or in a Chargeback to you.
6.3. Mail / Branch Deposit Procedures. Complete the appropriate summary form
designated for your use. Imprint the completed summary with your Merchant Identification
Card, if applicable, and sign it. Please do not staple or clip Sales Drafts together or to
summary forms. This will distort the Cardholders account number and may result in a
Summary Adjustment or Chargeback to you. Mail your deposits daily to us, or, if your
Agreement allows deposit at a local bank branch, you must make daily deposits.
Do not send us the merchant copies (which are for your records); submit only the Bank hard
copies of the transactions. If merchant copies are submitted, they will be returned to you
unprocessed.
6.4. Electronic Merchants: Daily Batching Require ments & Media Submis sion.
Batches must be transmitted to us by the time indicated in Section A.2. of Part IV, of this
Agreement) in order to be processed on the date of transmission. Additionally, if you deposit
via magnetic tape, electronic transmissions, or Electronic Data Capture terminal, and have
contracted to send the actual Sales Drafts and Credit Drafts to us for imaging and retrieval,
the Media must be batched daily by register/terminal following the procedures below.
Failure to do so may result in a processing fee and/or a Chargeback due to our inability to
retrieve the Media as requested by the Issuer.
A register/terminal Batch header form must be filled out for each Batch of Media.
The Batch header must be imprinted with your Merchant Identification Card, and all
areas completed properly (i.e., Batch number, date, amount, number of items, etc.).
The Batch/deposit total must match to the settled/reconciled amount displayed on the
terminal upon closing the Batch.
Any discrepancies between the actual Media and electronic display must be reconciled and
corrected before storing the Media (for merchants who contract to hold their Media) or
before sending us the copies of the deposit. Otherwise, transactions may appear to be a
new Submission and may be manually keyed (causing duplicate billing to Cardholders
and resulting in Chargebacks) or we may not be able to retrieve an item when requested
by the Issuer.
It is your responsibility to ensure that the actual Media is batched correctly and,
depending on the terms of your Agreement, either stored at your location or sent to
Processor. (In some cases, the actual Media is sent daily to your head office, and forwarded
to Processor for imaging.)
You must confirm that your equipment has transmitted your Batches to us at least once
daily. Even if your equipment is designed or programmed to close and submit Batches
without your intervention, it is ultimately your responsibility to confirm that the Batches
have been transmitted to us for processing.
7. Settlement
Except as otherwise set forth in this Program Guide, Your funds for MasterCard/Visa/
Discover Network and American Express transactions will ordinarily be processed and
transferred to your financial institution within two (2) Business Days from the time a Batch
is received by Processor if your financial institution is the Bank. If your financial institution
is not the Bank, your MasterCard/Visa/Discover transactions will ordinarily be processed via
the Federal Reserve within two (2) Business Days from the time a Batch is received by
Processor. The Federal Reserve will transfer such amounts to your financial institution.
If you have been classified by Discover Network as having a Discover Direct Strategic
Relationship with Discover Network, we will not acquire your Discover Network
transactions and they will be subject to your agreement with Discover Network.
You acknowledge and agree that if we have not agreed to or do not acquire transactions for
any Card type (i) we have no liability or responsibility whatsoever for the settlement of or
disputes regarding those transactions and (ii) you will pursue directly with the related Card
Organization all claims and disputes regarding those transactions. You agree to pay us for
per item processing, authorization and other fees in the Application for any non-acquired
transaction services you receive from us. For the avoidance of doubt, with respect to the
payments you have elected to accept on your Merchant Processing Application, you
authorize us to submit Card transactions to, and receive settlement for such transactions
from, the applicable Card Organizations on your behalf.
8. Refunds/Exchanges (Credits)
8.1. Refunds.
You must promptly complete and submit a Credit Draft for the total amount of the Credit,
which must include the following information:
The account number and expiration date;
The Cardholders name;
Your name, city, state and Merchant Account Number;
A description of the goods or services;
The transaction date of the Credit;
The total amount of the Credit; and
For Discover Network transactions, the approved currency used and the signature of
your authorized representative or employee.
You cannot process a Credit transaction that does not correspond to a previous transaction
on the original Sales Draft.
Full refunds must be for the exact dollar amount of the original transaction including
tax, handling charges, etc. (You must identify the shipping and handling charges
incurred.) The refund amount may not be for more than the original Card sale amount.
All dollar amounts and other handwritten information must be clearly written. (Stray
marks on the Credit Draft will render it unscannable/illegible.)
Do not circle or underline any information on the Credit Draft.
Imprint the Credit Draft with the same Card used by the Cardholder to make the original
purchase when applicable. You should not credit an account that differs from the account
used for the original transaction.
Never give cash or check Credit refunds for Card sales.
Have the Cardholder sign the Credit Draft, give the Cardholder the appropriate copy, and
deposit the Credit Draft immediately. Failure to process a Credit within five (5) calendar
days may result in a Chargeback.
Authorization is not required for Credits.
You cannot intentionally submit a sale and an offsetting Credit at a later date solely for
the purpose of debiting and crediting your own or a customers account.
You are responsible for paying all refunds submitted to us on your merchant account. We
assume no responsibility for verifying any Credits or refunds.
Do not process a Credit transaction once a Chargeback is received. Credits issued after a
Chargeback has been received may not be recoverable and the merchant would be
financially responsible for the credit as well as the Chargeback.
YOU ARE RESPONSIBLE TO SECURE YOUR TERMINALS AND TO INSTITUTE
APPROPRIATE CONTROLS TO PREVENT EMPLOYEES OR OTHERS FROM
SUBMITTING CREDITS THAT DO NOT REFLECT BONA FIDE RETURNS OR
REIMBURSEMENTS OF PRIOR TRANSACTIONS.
8.1.1 Processing a Credit for American Express Transactions.
These are additional requirements for a Credit for purchases or payments made on an
American Express Card.
To issue a Credit, you must:
1. Compare the last four digits on the Sales Draft against the Card presented (when
applicable).
2. Have the Cardholder sign the Credit Draft (when applicable).
3. Provide a copy of the Credit Draft to the Cardholder.
You must not issue a Credit when there is no corresponding Charge, nor issue a Credit in
exchange for cash or other consideration from a Cardholder. You must submit all Credits
under the establishment where the Credit originated. A Credit must be issued in the
currency in which the original Charge was submitted to us. You must issue Credits to the
Card used to make the original purchase; however, if the Credit is for the return of a gift by
someone other than the Cardholder who made the original purchase, apply your usual
refund policy.
If the Cardholder indicates that the Card on which the purchase was originally made is no
longer active or available, do the following:
For all Cards except Prepaid Cards, advise the Cardholder that you must issue the Credit
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to that Card. If the Cardholder has questions, advise him or her to call the customer
service number on the back of the Card in question.
If the inactive or unavailable Card is a Prepaid Card, apply your usual refund policy for
returns.
If you issue a Credit, American Express will not refund the discount or any other fees or
assessments previously applied on the corresponding Charge. The discount on Chargebacks
will not be refunded.
Your return and cancellation policies must be fair and clearly disclosed at the time of sale
in compliance with applicable law. Your policies must be conveyed to the Cardholder prior
to completion of the Charge and printed on a copy of a receipt or Sales Draft. Your refund
policy for purchases on the American Express Card must be at least as favorable as your
refund policy for purchases made with other payment products or other payment methods.
Return Policy recommendations.
Provide clear return instructions for your customers, including the following information:
Customer service telephone number.
Reference number for the return.
Expected processing time for the Credit.
Return address, preferably on a pre-formatted shipping label (if applicable).
You must submit all Credits to us within seven (7) days of determining that a Credit is due.
Cancellation Policy Recommendations.
Provide document cancellation policy and terms and conditions on the contract the
Cardholder signs, or on your website, as applicable.
Provide Cardholder with a cancellation number that can be tracked in your records.
American Express Return Policy For Prepaid Products.
If your return policy for the purchase of prepaid products is different from your standard
return policy, you must ensure that such prepaid product-specific return policy is clearly
disclosed to the Cardholder at the time of purchase in accordance with applicable law and
also coded to print on all receipts and copies of Sales Drafts you provide to Cardholders.
8.2. Exchanges.
No additional paperwork is necessary for an even exchange. Just follow your standard
company policy.
For an uneven exchange, complete a Credit Draft (follow the procedures outlined in
Section 8.1) for the total amount of only the merchandise returned. The Cardholders
account will be credited for that amount. Then, complete a new Sales Draft for the total
amount of any new merchandise purchased.
9. Retention of Records For Retrievals and Chargebacks
9.1. Retain Legible Copies.
For Visa: You must securely retain legible copies of all Sales Drafts and Credit Drafts or any
other transaction records for a period of thirteen (13) months from the date of each
transaction and a period of five (5) years for the retention of healthcare Sales Drafts and Credit
Drafts. The Sales Drafts you retain must comply with all requirements (see Section 3.1).
For MasterCard: You must securely retain legible copies of all Sales Drafts and Credit Drafts
or any other transaction records for a period of thirteen (13) months from the date of each
transaction and a period of five (5) years for the retention of healthcare Sales Drafts and Credit
Drafts. The Sales Drafts you retain must comply with all requirements (see Section 3.1).
For Discover Network: You must securely retain legible copies of all Sales Drafts and Credit
Drafts or any other transaction records for the longer of (i) 365 days or (ii) the resolution
of any pending or threatened disputes, claims, disagreements or litigation involving the
Card transaction. You must also keep images or other copies of Sales Drafts for no less than
three (3) years from the date of the Discover Network transaction.
For American Express: You must submit the Credit to American Express directly, or through
your Processor, for payment. You must securely retain legible copies of all Sales Drafts and
Credit Drafts or any other transaction records for 24 months from the date you submitted
the corresponding Credit to us. You must also provide a copy of the Credit Draft to the
Cardholder or as required by applicable law, truncate the Card Number and do not print the
Cards expiration date on copies of Credit Drafts delivered to the Cardholder.
9.2. Provide Sales and Credit Drafts. You must provide all Sales Drafts and Credit Drafts
or other transaction records requested by us within the shortest time limits established by
Card Organization Rules. You are responsible for any deficiencies in Card transaction data
transmitted or otherwise delivered to us.
10. Chargebacks, Retrievals and Other Debits
10.1. Chargebacks.
10.1.1. Generally. Both the Cardholder and the Issuer have the right to question or
dispute a transaction. If such questions or disputes are not resolved, a Chargeback may
occur. As a result, we will debit your Settlement Account or settlement funds for the amount
of each Chargeback. It is strongly recommended that, whenever possible, you contact the
Cardholder directly to resolve a disputed transaction or Chargeback, unless the dispute
involves a Discover Network Cardholder, in which case Discover Network rules and
regulations expressly prohibit you from contacting the Discover Network Cardholder
regarding the dispute. You are responsible for all Chargebacks, our Chargeback fees, and
related costs arising from your transactions.
10.1.2. Transaction Documentation Requests. In some cases, before a Chargeback is
initiated, the Issuer will request a copy of the Sales Draft, via a request for transaction
documentation. We will forward the request to you. You must respond to the request within
the time frame and manner set forth in the request. We will then forward your response to
the Issuer. If you fail to timely respond, we will so notify the Issuer and a Chargeback may
result. Upon receipt of a transaction documentation request, immediately retrieve the
requested Sales Draft(s) using the following guidelines:
Make a legible copy, centered on 8-1/2 x 11-inch paper (only one (1) Sales Draft per
page).
Write the case number from the request for transaction documentation on each
copy/page.
If applicable, make copies of a hotel folio, car rental agreement, mail/phone/internet order
form, or other form of receipt.
If a Credit transaction has been processed, a copy of the Credit Draft is also required.
Letters are not acceptable substitutes for Sales Drafts.
Fax or mail legible copies of the Sales Draft(s) and Credit Drafts, if applicable, to the fax
number or mail address provided on the request form.
If you fax your response, please set your fax machine to print your fax number and name
on the documents that you send. We can use this information to help determine where the
documentation received originated from should additional research be required.
Additionally, please set the scan resolution on your fax machine to the highest setting. The
higher resolution setting improves the clarity of characters and graphics on the
documentation transmitted and helps reduce the number of illegible fulfillments and/or
Chargebacks.
If we do not receive a clear, legible and complete copy of the transaction documentation
within the timeframe specified on the request, you may be subject to a Chargeback for
non-receipt for which there is no recourse.
A handling fee may be charged by the Issuer and will be debited from your Settlement
Account or settlement funds if, a transaction documentation request results from a
difference in the following information on the Sales Draft and the transmitted record:
Merchant name or an incorrect city, state, foreign country and/or transaction date.
10.1.3. Chargeback Process. Regardless of whether you respond to a transaction
documentation request, a Chargeback may be debited to your Settlement Account for
numerous reasons (see below). If the Issuer submits a Chargeback, we will send you a
Chargeback notification, which may also include a request for transaction documentation.
Due to the short time requirements imposed by MasterCard, Visa, Discover Network
and American Express, it is extremely important that you respond to a Chargeback
notification and transaction documentation request within the time frame set forth
in the notification. Do not process a Credit transaction once a Chargeback is received; the
Issuer will credit the Cardholders account. Credits issued after a Chargeback has been
received may not be recoverable and you may be financially responsible for the Credit as
well as the Chargeback. If the information you provide is both timely and, in our sole
discretion, sufficient to warrant a representment of the transaction and/or reversal of the
Chargeback, we will do so on your behalf. However, representment and/or reversal is/are
ultimately contingent upon the Issuer and/or Cardholder accepting the transaction under
applicable Card Organization guidelines. Representment or reversal is not a guarantee that
the Chargeback has been resolved in your favor.
For Visa Chargebacks: If we reverse the Chargeback and represent the transaction to the
Issuer, the Issuer, at its sole discretion, may elect to submit the matter for arbitration before
Visa. Visa currently charges a $250 filing fee and a $250 review fee. You will be responsible
for all such fees and charges whether or not a decision is made in your favor, and any other
applicable fees and charges imposed by Visa, as they may change from time to time. Such
fees and charges will be debited from your Settlement Account or settlement funds, in
addition to the Chargeback.
For MasterCard Chargebacks: If we reverse the Chargeback and represent the transaction
to the Issuer, the Issuer, at its sole discretion, may elect to resubmit the Chargeback. In
such event, at the discretion of Processor, we will debit your Settlement Account or
settlement funds for the Chargeback. However, if you feel strongly that it is an invalid
Chargeback, we may, on your behalf and at your request, submit the matter for arbitration
before MasterCard. MasterCard currently charges a $150 filing fee and a $250 review fee.
You will be responsible for all such fees and charges whether or not a decision is made in
your favor and any other applicable fees and charges imposed by MasterCard as they may
change from time to time. Such fees and charges will be debited from your Settlement
Account or settlement funds, in addition to the Chargeback.
For Discover Network Chargebacks: If Discover Network rejects our representment request
and you feel strongly that the Chargeback is invalid, we may, at the discretion of Processor
and on your behalf and at your request, submit the matter for dispute arbitration before
Discover Network. Discover Network charges fees for representment requests and an
arbitration fee as published in their fee schedule.
For American Express Chargebacks: You may request a Chargeback reversal if the
Chargeback was applied in error. In order for us to consider your request, you must have
responded to the original inquiry within the specified timeframe set forth in your dispute
notification, and provide all supporting documentation to substantiate the error.
If the Chargeback is not disputed within the applicable time limits set forth by MasterCard,
Visa, Discover Network and American Express rules and regulations, reversal rights are
forfeited. Our only alternative, for Visa and MasterCard non-fraud Chargeback reason codes,
is to attempt a good faith collection from the Issuer on your behalf. This process can take
up to six (6) months and must meet the Issuers criteria (e.g., at or above a set dollar amount).
Good faith collection attempts are not a guarantee that any funds will be collected on your
behalf. Issuers normally charge good faith collection fees, which are deducted from the
transaction amount if accepted in addition to any processing fees that are charged by us.
NOTE: Discover Network and American Express do not offer good faith collection for
Acquirers.
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MasterCard and Visa Card Organization Rules require that a merchant make a good faith
attempt and be willing and able to resolve any disputes directly with the Cardholder.
Discover Network rules and regulations, however, prohibit you and/or us from contacting
the Cardholder directly regarding dispute(s) or any other matter, except as required for
acceptance of Discover Network transactions, and require you and/or us to submit any
responses to dispute notices directly to Discover Network.
Due to Card Organization Rules, you may not re-bill a Cardholder after a Chargeback is
received for that transaction, even with Cardholder authorization.
We strongly recommend that you include a detailed rebuttal letter along with all pertinent
documents when responding to a transaction request or a Chargeback notification (e.g., rental
agreement, imprinted portion of the invoice or Sales Draft; the portion signed by the
Cardholder; and the area where the authorization codes, with amounts and dates, are located).
Due to the short time frames and the supporting documentation necessary to successfully
(and permanently) reverse a Chargeback in your favor, we strongly recommend the
following:
Avoid Chargebacks by adhering to the guidelines and procedures outlined in these
Operating Procedures.
If you do receive a Chargeback, investigate, and if you dispute the Chargeback, submit the
appropriate documentation within the required time frame.
Whenever possible, contact the Cardholder directly to resolve the dispute, unless the
dispute relates to a Discover Network Cardholder, in which case direct contact with the
Discover Network Cardholder regarding the dispute is prohibited by Discover Network
Card Organization Rules.
If you have any questions, call Customer Service.
10.1.4. Chargeback Reasons. This section outlines the most common types of
Chargebacks. This list is not exhaustive. For ease of understanding, we have combined like
Chargebacks into six groupings. We have included recommendations on how to reduce the
risk of Chargebacks within each group. These are recommendations only, and do not
guarantee that you will be able to prevent Chargebacks.
1. Authorization Issues: Proper Authorization procedures were not followed and valid
Authorization was not obtained.
The following scenarios could cause an Authorization Related Chargeback
to occur:
Authorization not obtained.
Authorization was declined.
Transaction processed with an expired card and Authorization was not obtained.
Transaction was processed with an invalid account number and Authorization was not
obtained.
Card Recovery Bulletin (CRB) or Exception File was not checked (transactions below
floor limit).
To reduce your risk of receiving an Authorization Related Chargeback:
Obtain valid Authorization on the day of the transaction.
Card Present Transactions-Authorization must be obtained on the transaction date for
the amount settled.
Card Not Present Transactions-Authorization must be obtained on the transaction date
for the amount settled. However, if merchandise is being shipped, Authorization must
be obtained within seven calendar days of the transaction ship date.
If a declined response is received, then request another form of payment from the
Cardholder.
If a Referral response is received, then follow proper voice procedures to obtain a valid
Authorization and obtain an imprint of the card.
Pick-up response indicates that the Issuer is requesting for the card to be retained and
returned back to them. The Card should not be accepted for payment. Additionally, you
can choose to retain the Credit Card and return it to the Acquirer.
Merchants should not exceed any predetermined thresholds for specific terminal types as
specified by each Card Organization.
2. Cancellations and Returns: Credit was not processed properly or the Cardholder has
cancelled and/or returned items.
The following scenarios could cause a Cancellation and Return Related
Charge back to occur:
Cardholder received damaged or defective merchandise.
Cardholder continued to be billed for cancelled recurring transaction.
Credit transaction was not processed.
To reduce your risk of receiving a Cancellation and Return Related Chargeback:
Issue Credit to the Cardholder for the same account as the purchase in a timely manner.
Do not issue Credit to the Cardholder in the form of cash, check or in-store/
merchandise Credit as we may not be able to recoup your funds in the event the
transaction is charged back.
Ensure customers are fully aware of the conditions for recurring transactions. Cancel
recurring billings as soon as notification is received from the Cardholder or as a
Chargeback, and Issue the appropriate Credit as needed to the Cardholder in a timely
manner.
Pre-notify the Cardholder of billings within 10 days (Domestic) and 15 (International)
prior to billing, allowing the Cardholder time to cancel the transaction.
Provide proper disclosure of your refund policy for returned/cancelled merchandise, or
services to the Cardholder at the time of transaction in accordance with applicable law.
Card present, Cardholder signed the Sales Draft containing disclosure.
If applicable, the words NO EXCHANGE, NO REFUND, etc. must be clearly printed
in 1/4-inch lettering on the Sales Draft near or above the Cardholder signature.
Ecommerce, provide disclosure on website on same page as check out requiring
Cardholder to click to accept prior to completion.
Card Not Present, provide cancellation policy at the time of the transaction.
Provide cancellation numbers to Cardholders when lodging services are cancelled.
Ensure delivery of the merchandise or services ordered to the Cardholder.
3. Fraud: Transactions that the Cardholder claims are unauthorized; the account number
is no longer in use or is fictitious, or the merchant was identified as high risk.
The following scenarios could cause a Fraud Related Chargeback to occur:
Multiple transactions were completed with a single card without the Cardholders
permission.
Counterfeit card was utilized and proper acceptance procedures were not followed.
Authorization was obtained; however, full track data was not transmitted.
Cardholder states that they did not authorize or participate in the transaction.
NOTE: Visa Fraud Chargebacks: Chargeback representment rights do not exist if you failed
to fulfill a retrieval request and/or provide a sales slip that contains all required data
elements. To preserve Chargeback representment rights, respond to all retrieval requests
with a clear legible copy of the transaction document that contains all required data
elements within the required timeframe that is specified by the retrieval request.
To reduce your risk of receiving a Fraud Related Chargeback:
Card Present Transactions:
Pre-notify the Cardholder of billings within ten (10) days
American Express customers have the option to receive written notification of the
recurring transaction at least (10) days prior to submitting, or any time the Charge
amount exceeds a maximum amount that has been set by the cardholder.
Obtain an Authorization for all transactions.
If you are utilizing an electronic device to capture card information, swipe, dip or wave
all Card transactions through your electronic authorization device to capture Cardholder
information. When applicable ensure the displayed Cardholder number matches the
number on the Card.
If you are unable to electronically capture the Card or if a Referral response is received,
imprint the Card using a valid imprinting device that will capture the embossed Card
and merchant information. Do not alter the imprint on the draft in any way. Manually
entering the information into the terminal does not protect you from this type of
Chargeback. All pertinent information relating to the transaction must be written on the
manually imprinted draft (transaction date, dollar amount, authorization code and
merchandise description) along with the Cardholder signature.
NOTE: Do not imprint on the back of a signed Sales Draft. The imprint must be on the
transaction document that contains all transaction elements to prove the Card was present
at the time of the transaction.
Obtain the Cardholder signature for all transactions; ensure the signature on the Sales
Draft matches the signature on the back of the Card.
Process all transaction one time and do not Batch out transactions multiple times.
Educate staff on procedures to eliminate point of sale (POS) fraud.
Card Not Present Transactions:
Participation in recommended fraud mitigation tools:
Verified by Visa Program
MasterCard SecureCode
Address Verification Services
CVV2, CVC2 and CID Verification
NOTE: While transactions utilizing these tools may still be disputed, the service may assist
you with your decision to accept the Card for the transaction.
Ensure you ship to the AVS confirmed address (bill to and ship to should match).
Obtain Authorization for all transactions.
Ensure merchant descriptor matches the name of the business and is displayed correctly
on the Cardholder statement.
Ensure descriptor includes correct business address and a valid customer service number.
American Express offers fraud mitigation tools for both Card Present and Card Not Present
transactions to help verify that a Charge is valid. These tools help you mitigate the risk of
fraud at the point of sale, but are not a guarantee that a Charge is in fact valid or bona fide,
or that you will not be subject to a Chargeback. For optimal use of the tools, please visit
American Express Fraud Prevention Information at: www.americanexpress.com/fraudinfo.
4. Cardholder Disputes: Merchandise or services not received by the Cardholder,
Merchandise defective or not as described.
The following scenarios could cause a Cardholder Dispute Chargeback to occur:
Services were not provided or merchandise was not received by the Cardholder.
The Cardholder was charged prior to merchandise being shipped or merchandise was not
received by agreed upon delivery date or location.
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Cardholder received merchandise that was defective, damaged, or unsuited for the
purpose sold, or did not match the description on the transaction documentation/verbal
description presented at the time of purchase.
Cardholder paid with an alternate means and their Card was also billed for the same
transaction.
Cardholder cancelled service or merchandise and their Card was billed.
Cardholder billed for a transaction that was not part of the original transaction document.
The Cardholder claims to have been sold counterfeit goods.
The Cardholder claims the terms of sale were misrepresented by the merchant.
To reduce your risk of receiving a Cardholder Dispute Related Chargeback:
Provide Services or Merchandise as agreed upon and described to the Cardholder; clearly
indicate the expected delivery date on the sales receipt or invoice.
Contact the Cardholder in writing if the merchandise or service cannot be provided or is
delayed, and offer the Cardholder the option to cancel if your internal policies allow.
In the event that the Cardholder received defective merchandise or the merchandise
received was not as described; resolve the issue with the Cardholder at first contact.
If the merchandise is being picked up by the Cardholder, have them sign for the
merchandise after inspection that it was received in good condition.
Do not Charge the Cardholder until the merchandise has been shipped, ship according
to the agreed upon terms and obtain signed Proof of Delivery from the Cardholder.
If unable to provide services or merchandise, issue a Credit to Cardholder in a timely
manner.
Accept only one form of payment per transaction and ensure the Cardholder is only billed
once per transaction.
Do not bill Cardholder for loss, theft or damages unless authorized by the Cardholder.
Ensure that a description of the service or merchandise provided is clearly defined.
5. Processing Errors: Error was made when transaction was processed or it was billed
incorrectly.
The following scenarios could cause a Processing Error Chargeback to occur:
Transaction was not deposited within the Card Organization specified timeframe.
Cardholder was issue a Credit Draft; however, the transaction was processed as a sale.
Transaction was to be processed in a currency other than the currency used to settle the
transaction.
The account number or transaction amount utilized in the transaction was incorrectly
entered.
A single transaction was processed more than once to the Cardholders account.
Cardholder initially presented Card as payment for the transaction; however Cardholder
decided to use an alternate form of payment.
Limited amount or self-service terminal transaction was processed for an amount which
is over the pre-determined limit.
To reduce your risk of receiving a Processing Error Related Chargeback:
Process all transactions within the Card Organization specified timeframes.
Ensure all transactions are processed accurately and only one time.
NOTE: In the event that a transaction was processed more than once; immediately issue
voids, transaction reversals or Credits.
Ensure that credit transaction receipts are processed as Credits and sale transaction
receipts are processed as sales.
Ensure all transactions received a valid Authorization Approval Code prior to processing
the transaction and obtain a legible magnetic swipe or imprinted Sales Draft that is signed.
Do not alter transaction documentation or make any adjustments unless the Cardholder
has been contacted and agrees to any modifications of the transaction amount.
Ensure limited amount, self-service and automated fuel dispenser terminals are set
properly to conform to the pre-determined limits.
6. Non Receipt of Information: Failure to respond to a Retrieval Request or Cardholder
does not recognize.
The following scenarios could cause Non Receipt of Information Chargeback
to occur:
The transaction documentation was not provided to fulfill the retrieval request.
The retrieval request was fulfilled with an illegible Sales Draft or was an invalid fulfillment
(incorrect sales draft or sales draft did not contain required information which may
include signature).
The Cardholder does not recognize or is unfamiliar with the transaction due to the
merchant name and/or location not matching the name and/or location where the
transaction took place.
To reduce your risk of receiving a Non Receipt of Information Related
Chargeback:
Provide a clear and legible copy of the Sales Draft that contains all required data elements
within the required timeframe that is specified on the retrieval request.
Ensure that the most recognizable merchant name, location and/or customer service
phone number is provided on all transactions.
Retain copies of all transaction documentation for the required timeframe that is specified
by each Card Organization.
Develop efficient methods to retrieve transaction documentation to maximize ability to
fulfill requests.
10.2. Summary (Deposit) Adjustments/Electronic Rejects. Occasionally, it is
necessary to adjust the dollar amount of your summaries/Submissions (deposits) and credit
or debit your Settlement Account or settlement funds accordingly. The following is a list of
the most frequent reasons for Summary (Deposit) Adjustments/Electronic Rejects:
Your summary reflected an arithmetic error.
Submitted sales not included in your Agreement (e.g., American Express).
The dollar amount is unreadable/illegible.
The Cardholders account number is unreadable/illegible.
Duplicate Sales Draft submitted.
Card number is incorrect/incomplete.
Summary indicated credits, but no credits were submitted.
10.3. Disputing Other Debits and Summary Adjustments. In order to quickly resolve
disputed debits and Summary Adjustments, it is extremely important that the items listed
in this section be faxed or sent to the address listed on the notification.
If the Summary Adjustment is for an unreadable or incorrect Cardholder account number,
resubmit the corrected Sales Draft with your next deposit. Also, if the transaction is over
thirty (30) calendar days old, you must reauthorize and obtain a valid Authorization
Approval Code.
A clear and legible copy of the Sales Draft containing the following should be obtained from
your files:
Date of sale/Credit;
Cardholders account number, name and signature;
Total amount of the sale and description of goods and services; and
Date and Authorization Approval Code.
Include a dated cover letter detailing the reasons for requesting a review of the debit or
Summary Adjustment and documentation to support your dispute. (You should retain a
copy of the correspondence and all documentation for your files.) If the inquiry is related to
prior correspondence, be sure to include the control number we previously used.
Immediately fax or mail the Sales Draft or Credit Drafts to the fax number or address
provided on your notification letter.
If you have any questions, please call the Customer Service number provided on the last
page of this Program Guide. If a Customer Service Representative informs you that additional
documentation is required in order to fully review the item, please immediately submit your
rebuttal and transaction documentation to the fax number or address listed on the debit
notification.
11. Account Maintenance
11.1. Change of Settlement Account Number. If you change the Settlement Account
in which you receive the proceeds of your transactions, you must call Customer Service or
your Relationship Manager immediately. If you accept payment types other than Visa,
MasterCard and Discover Network (such as the American Express Card and TeleCheck
Services), you are also responsible for contacting the Card Organizations or companies
governing those Cards to notify them of this change.
11.2. Change in Your Legal Name or Structure. You must call Customer Service or
your Relationship Manager and request a new Agreement.
11.3. Change in Company DBA Name, Address or Telephone/ Facsimile Num ber.
To change your company or location DBA name, address (or e-mail address), or telephone/
facsimile number, you must send the request in writing to the address on your statement.
11.4. Other Change(s) in Merchant Profile. You must immediately notify us of any
change to the information on file with us in your merchant profile, including: (i) any new
lines or types of business; (ii) change in ownership; (iii) the opening, closing or liquidation
of business or any location; (iv) change in Card processing method (i.e., paper Sales Drafts
to POS Device); (v) voluntary or involuntary party to a bankruptcy case; (vi) entry into a
loan or other agreement with a Person that seeks to affect this Agreement; and/or (vii)
change from a business that exclusively conducts Card-present retail sales to one that
accepts Card sales by mail, telephone or Internet transactions. We retain the right to
terminate this Agreement if you fail to notify us of any change to the information in your
merchant profile.
11.5. Charges for Changes to Account Maintenance. You may be charged for any
changes referenced in this section or any other changes requested by you or otherwise
necessary related to account maintenance.
12. Card Organization Monitoring
MasterCard, Visa, Discover Network and American Express have established guidelines,
merchant monitoring programs and reports to track merchant activity such as, but not
limited to excessive Credit, reported fraud and Chargebacks, and increased deposit activity.
In the event you exceed the guidelines or engage in practices that could circumvent such
monitoring programs or submit suspicious transactions as identified by a Card Organization
or any related program or reports, you may be subject to: (i) operating procedure
requirement modifications; (ii) Chargebacks and/or increased fees; (iii) settlement delay
or withholding; (iv) termination of your Agreement; or (v) audit and imposition of fines.
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13. Supplies
Placing Orders.
To order additional supplies, call Customer Service when you have two months inventory
left. We will ship you an adequate amount of supplies. The amount of supplies (based on
usage) on hand should not exceed a three- to six-month supply.
In an EMERGENCY, please contact Customer Service using the number provided on the
last page of this Program Guide. If supplies are sent via an express delivery service, the
delivery charges will be debited to your account.
You are responsible for unauthorized use of sales/Credit and summary Media. We
recommend that you store all supplies in a safe location.
You may be charged for supplies and applicable shipping and handling charges.
14. Special Provisions For American Express
The provisions in this Section 14 apply to American Express Card acceptance and
Transactions.
14.1 Card Acceptance. If you elect to accept American Express Cards under the
Agreement, You must accept the American Express Card as payment for goods and services
sold (other than those goods or services identified under Prohibited Uses of the American
Express Card below), or (if applicable) for charitable contributions made, at all of your
establishments, except as expressly permitted by applicable law. You are jointly and severally
liable for the obligations of your establishments under the Agreement.
14.2 Arbitration Agreement for Claims Involving American Express. In the event
that you or we are not able to resolve a Claim this Section 14.2 explains how Claims may
be resolved through arbitration. You or we or American Express may elect to resolve any
Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator.
If arbitration is elected by any party to resolve a Claim, the parties understand and agree that
neither you nor we nor American Express will have the right to litigate or have a jury trial
on that Claim in court. Further, you, we, and American Express understand and agree that
the parties will not have the right to participate in a class action or in a representative
capacity or in a group of persons alleged to be similarly situated pertaining to any Claim
subject to arbitration under this Agreement. Arbitrator's decisions are final and binding,
with very limited review by a court, and once confirmed by a court of competent
jurisdiction, an arbitrator's final decision on a Claim is generally enforceable as a court
order. Other rights you, we, or American Express would have in court may also not be
available in arbitration.
i. Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected by
the party electing arbitration. Claims will be resolved pursuant to this Section 14.2 and the
selected arbitration organizations rules in effect when the Claim is filed, except where those
rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for
other information. Claims may be referred to another arbitration organization if all parties
agree in writing, if [American Express or we, on one hand, selects the organization and
you, on the other hand,] select the other within 30 days thereafter or if an arbitrator is
appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. 1-16 (FAA).
Any arbitration hearing will take place in New York, NY.
ii. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that
Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or
purported representative basis or on behalf of the general public or other persons allegedly
similarly situated. The arbitrators authority is limited to Claims between you, us, and
American Express. An arbitration award and any judgment confirming it will apply only to
the specific case brought by you, us or American Express and cannot be used in any other
case except to enforce the award as between you, us and American Express. This prohibition
is intended to, and does, preclude you from participating in any action by any trade
association or other organization against American Express. Notwithstanding any other
provision in this Section 14.2, if any portion of these Limitations on Arbitration set forth
in this Section 14.2 (ii) is found invalid or unenforceable, then the entire Section 14.2 (other
than this sentence) will not apply, except that you, we, and American Express do not waive
the right to appeal that decision.
iii. Previously Filed Claims/No Waiver. You, we, or American Express may elect to
arbitrate any Claim that has been filed in court at any time before trial has begun or final
judgment has been entered on the Claim. You, we, or American Express may choose to
delay enforcing or to not exercise rights under this Section 14.2, including the right to elect
to arbitrate a claim, without waiving the right to exercise or enforce those rights on any
other occasion. For the avoidance of any confusion, and not to limit its scope, this Section
14.2 applies to any class-action lawsuit relating to the Honor All Cards, non-
discrimination, or no steering provisions of the American Express Merchant Regulations,
or any similar provisions of any prior American Express Card acceptance agreement, that
was filed against American Express prior to the effective date of the Agreement to the extent
that such claims are not already subject to arbitration pursuant to a prior agreement between
Merchant and American Express.
iv. Arbitrators Authority. The arbitrator will have the power and authority to award any
relief that would have been available in court and that is authorized under this Agreement.
The arbitrator has no power or authority to alter the Agreement or any of its separate
provisions, including this Section 14.2.
v. Split Proceedings for Equitable Relief. You, we, or American Express may seek equitable
relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the
status quo pending completion of the arbitration. This Section 14.2 shall be enforced by any
court of competent jurisdiction.
vi. Small Claims. American Express will not elect arbitration for any Claim you properly
file in a small claims court so long as the Claim seeks individual relief only and is pending
only in that court.
vii. Governing Law/Arbitration Procedures/Entry of Judgment. This Section 14.2 is made
pursuant to a transaction involving interstate commerce and is governed by the FAA. The
arbitrator shall apply New York law and applicable statutes of limitations and honor claims
of privilege recognized by law. The arbitrator shall apply the rules of the arbitration
organization selected, as applicable to matters relating to evidence and discovery, not federal
or any state rules of procedure or evidence, provided that any party may ask the arbitrator
to expand discovery by making a written request, to which the other parties will have 15
days to respond before the arbitrator rules on the request. If your Claim is for $10,000 or
less, you may choose whether the arbitration will be conducted solely based on documents
submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under
the rules of the selected arbitration organization. At the timely request of a party, the
arbitrator will provide a written opinion explaining his/her award. The arbitrators decision
will be final and binding, except for any rights of appeal provided by the FAA. Judgment
on an award rendered by the arbitrator may be entered in any state or federal court in the
federal judicial district where your headquarters or your assets are located.
viii. Confidentiality. The arbitration proceeding and all information submitted, relating
to or presented in connection with or during the proceeding, shall be deemed confidential
information not to be disclosed to any person not a party to the arbitration. All
communications, whether written or oral, made in the course of or in connection with the
Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator,
including any arbitration award or judgment related thereto, are confidential and
inadmissible for any purpose, including impeachment or estoppel, in any other litigation
or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-
discoverable solely as a result of its use in the arbitration.
ix. Costs of Arbitration Proceedings. You will be responsible for paying your share of any
arbitration fees (including filing, administrative, hearing or other fees), but only up to the
amount of the filing fees you would have incurred if you had brought a claim in court.
American Express will be responsible for any additional arbitration fees. At your written
request, American Express will consider in good faith making a temporary advance of your
share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the
arbitrator for good cause.
x. Additional Arbitration Awards. If the arbitrator rules in your favor against American
Express for an amount greater than any final settlement offer American Express made before
arbitration, the arbitrators award will include: (1) any money to which you are entitled as
determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable
attorneys fees, costs and expert and other witness fees incurred by you.
xi. Definitions. For purposes of this Section 14.2 only, (i) American Express includes its
Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables,
and all agents, directors, and representatives of any of the foregoing, (ii) You includes
your Affiliates, licensees, predecessors, successors, or assigns, any purchasers of any
receivables and all agents, directors, and representatives of any of the foregoing, and (iii)
Claim means any allegation of an entitlement to relief, whether damages, injunctive or
any other form of relief, against American Express or any other entity (including you or us)
that American Express has the right to join, including any allegation involving a transaction
using an American Express product or network or regarding an American Express policy
or procedure.
14.3 Treatment of the American Express Brand Except as expressly permitted by
applicable law, you must not:
indicate or imply that you prefer, directly or indirectly, any other payment products over
the Card,
try to dissuade Cardholders from using the Card,
criticize or mischaracterize the Card or any of American Express services or programs,
try to persuade or prompt Cardholders to use any other payment products or any other
method of payment (e.g., payment by check),
impose any restrictions, conditions, disadvantages or fees when the Card is accepted that
are not imposed equally on all other payment products, except for electronic funds
transfer, or cash and check,
suggest or require Cardholders to waive their right to dispute any transaction,
engage in activities that harm the American Express business or the American Express
Brand (or both),
promote any other payment products (except your own private label card that you issues
for use solely at your establishments) more actively than you promote the Card, or
convert the currency of the original sale transaction to another currency when requesting
Authorization or submitting transactions (or both).
You may offer discounts or in-kind incentives from your regular prices for payments in
cash, ACH funds transfer, check, Debit Card or Credit Card, provided that (to the extent
required by applicable law): (i) you clearly and conspicuously disclose the terms of the
discount or in-kind incentive to your customers, (ii) the discount or in-kind incentive is
offered to all of your prospective customers, and (iii) the discount or in-kind incentive
does not differentiate on the basis of the issuer or, except as expressly permitted by
applicable law and Card Organization (e.g., Visa, MasterCard, Discover, JCB, American
Express). The offering of discounts or in-kind incentives in compliance with the terms of
this section will not constitute a violation of the provisions set forth in the above section
Treatment of the American Express Brand.
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14.4 Prohibited Uses of the American Express Card. You must not accept the Card
for any of the following:
adult digital content sold via internet electronic delivery,
amounts that do not represent bona fide sales of goods or services (or, if applicable,
amounts that do not represent bona fide charitable contributions made) at your
establishments. For example, purchases at your establishments by your owners (or their
family members) or employees contrived for cash flow purposes, or payments that you
have accepted in order to advance cash to Cardholders in connection with the transaction,
amounts that do not represent bona fide, direct sales by your establishment to
Cardholders made in the ordinary course of your business,
cash or cash equivalent (e.g., gold, silver, platinum, and palladium bullion and/or bars).
Collectible coins and jewelry are not prohibited,
charges that the Cardholder has not specifically approved,
costs or fees over the normal price of the goods or services (plus applicable taxes) that
the Cardholder has not specifically approved,
damages, losses, penalties, or fines of any kind,
gambling services (including online gambling), gambling chips, gambling credits, or
lottery tickets,
unlawful/illegal activities, fraudulent business transactions or when providing the goods
or services is unlawful/illegal (e.g. unlawful/illegal online internet sales of prescription
medications or controlled substances; sales of any goods that infringe the rights of a
rights-holder under laws applicable to us, you, or the Cardholder; online child
pornography),
overdue amounts or amounts covering returned, previously dishonored or stop-
payment checks (e.g., where the Card is used as a payment of last resort),
sales made by third parties or entities conducting business in industries other than yours.
You must not use the Card to verify a customer's age.
14.5 American Express Transaction Data. The transaction data you collect to facilitate
the Charge must be or have been provided directly to you by the Cardholder. You must not
accept or have accepted transaction data from, nor shall you provide or have provided
transaction data to, any third parties other than your covered parties (as defined in the Data
Security Operating Policy (DSOP)). If you fail to comply with this requirement, in addition
to other rights and remedies regarding monitoring., you may be charged a fee as indicated
on the Merchant Processing Application, we may suspend Card acceptance privileges at
your establishments, or terminate the Agreement. Where Cardholders pay you using
payment or e-wallet accounts (which Cardholders may have created by providing Card-
member information when the account was established), the transaction data collected to
facilitate the Card Not Present Charge has already been provided directly by the Cardholder.
You are not required to have the Cardholder re-enter the transaction data. All information
required by American Express evidencing one or more transactions, including information
obtained at the point of sale, information obtained or generated during Authorization and
Submission, and any Chargeback.
14.6 Treatment of American Express Cardholder Information. You acknowledge that
any and all American Express Cardholder information is confidential and the sole property
of the Issuer, American Express or any of its Affiliates. Except as otherwise specified in the
Agreement, you must not disclose Cardholder information, nor use nor store it, other than
to facilitate transactions at your establishments in accordance with the Agreement.
14.7 Disclosure and Use of Data Collected Under Agreement. We may disclose to
American Express data and information that you provide on your Application and that we
collect as part of performing American Express payment processing services or transaction
related services including information about you. American Express may use the
information that you provide in the Application at the time of setup to screen and/or
monitor you in connection with Card marketing and administrative purposes. American
Express also may use such information to perform its responsibilities in connection with
American Express Card acceptance, promote the American Express Network, perform
analytics and create reports, and for any other lawful business purposes, including
marketing purposes. American Express may otherwise use and share your information for
business purposes and as permitted by Applicable Law. American Express uses reasonable
administrative, technical and physical security measures to protect Program Merchant
information consistent with the sensitivity of the information.
14.7.1 Consent for American Express to Contact You by Phone, eMail, Text or
Facsimile. American Express may use the information you provide in the Application (as
such information may be updated) to call you or send you communications or materials via
email, SMS, text or facsimile regarding American Express products, services and resources
available to you. You consent and agree to receive autodialed, automated and/or prerecorded
calls and communications (which may include SMS or text messages) at the telephone
number(s) you have provided. If you provide a fax number, you consent and agree to
receiving fax communications from American Express. In connection with the foregoing,
you understand that the calls made or communications sent to you by American Express
may be subject to charges or fees by your telecommunications or other applicable service
provider that are your responsibility to pay. You understand that your consent under this
Section 14.7.1 is not a condition of purchasing or receiving any product or service or
entering into this Agreement.
Opt-Out: You may opt-out of receiving marketing related communications and materials
from American Express by calling Processor at the Customer Service Number stated in Part
IV, Section A.5 of the Program Guide. If you have opted-out, you may still receive messages
or communications from American Express related to important information about your
account.
14.8 Conversion to a Direct Relationship with American Express. You acknowledge
and agree that upon written notice from us, you will be converted to a direct American
Express Card acceptance relationship with American Express if and when the annual
American Express Card charges that you submit under this Agreement are greater than
$1,000,000. You agree that , upon conversion, (i) you will be bound by American Express
then-current Card Acceptance Agreement with respect to American Express Transactions;
(ii) American Express will set pricing and other fees payable by you for American Express
Card acceptance; and (iii) you will no longer be able to submit American Express Card
transactions under this Agreement, but this Agreement will continue in full force and effect
with respect to other payments and services you elected to receive on your Application.
14.9 No Assignment of Payments. You acknowledge and agree that you shall not assign
to any third party any payments due to you under this Agreement as the result of American
Express Card transactions, and all indebtedness arising from American Express Card
charges will be for bona fide sales of goods and services (or both) at your establishments
and free of liens, claims, and encumbrances other than ordinary sales taxes; provided,
however, that you may sell and assign future transaction receivables to us, our Affiliates
and/or any other funding source that partners with us or our Affiliates.
14.10 Third Party Beneficiary Rights. American Express is a direct and intended third-
party beneficiary of this Agreement, and may enforce any terms of this Agreement that
apply to American Express, including American Express Card acceptance and transaction
processing, directly against you.
14.11 Your Right to Opt Out of American Express Card Acceptance. You may opt
out of accepting American Express Cards at any time without directly or indirectly affecting
your rights to accept any other payment products.
14.12 Collections from American Express Cardholder. You may not bill or collect
from any American Express Cardholder for any purchase or payment on the American
Express Card unless a Chargeback has been exercised, you have fully paid for such Charge,
and you otherwise have the right to do so.
14.13 Completing a Transaction at the Point of Sale. All valid transactions begin with
a Cardholders purchase at the point of sale. Whether the physical Card is used to facilitate
a Card present Charge, or the Cardholder provides his or her Cardholder Information over
the phone, via mail order, or the internet, the transaction must not be completed without
the Card and/or information provided by the Cardholder. To accept the Card for charges at
your establishments, at the point of sale, you must:
Clearly and conspicuously, disclose all material terms of sale prior to obtaining an
Authorization, and
Clearly and conspicuously inform Cardholders at all points of interaction (e.g., sales
conducted in person, over the internet, mobile or via mail or telephone order) what Entity
is making the sales offer, so that the Cardholder can clearly distinguish you from any
other party involved in the interaction (e.g., a vendor of goods or provider of services
you may engage, or another merchant seeking to conduct business with the Cardholder).
The transaction data you collect to facilitate the Charge must be or have been provided
directly to you by the Cardholder. You must not accept or have accepted transaction data
from, nor shall you provide or have provided transaction data to, any third parties other
than your covered parties (as defined in the Data Security Operating Policy (DSOP)). If
you fail to comply with this requirement, you may be charged non-compliance or other
fees as indicated on the Merchant Processing Application and/or have your Card acceptance
privileges at required your establishments suspended or disentitled.
14.14 In Person Charges. In-person charges refer to charges in which the Card and
Cardholder are present at the point of sale. An example of this is when a Cardholder
presents a Card to the merchant at a retail store. For all in-person charges, the Card must
be presented. There are several ways in which you can conduct the in-person Charge. The
steps you take vary according to how you go about conducting both types of in-person
charges:
14.15 Electronic charges or key-entered charges. When providing proof of delivery,
a signature from the Cardholder or an authorized signer of the Card is not required.
14.16 Magnetic Stripe Card Charges
When presented with a Card at the point of sale you must:
Verify that the customer is the Cardholder (Cards are not transferable).
Capture Magnetic Stripe data by swiping the Card (unless the Charge was already initiated
by waving the contactless chip Card in close proximity to the point of sale system).
Match the Card number and the expiration date on the Card to the same information on
the Sales Draft.
Ensure the name that prints on the Sales Draft matches the name on the front of the Card
except when the Cardholder name is not captured on the Sales Draft or for prepaid Cards
that do not show a name on their face.
Validate the Card's presence by taking an imprint of the Card (the imprint is for your
records). Failure to validate the Card's presence by taking an imprint of the Card can
render merchant liable for Chargebacks if the Card- member disputes the Charge, except
when the Cardholder name is not captured on the Sales Draft or for prepaid Cards that
do not show a name on their face.
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14.17 American Express Mobile Contactless Charges.
When presented with a contactless-enabled mobile phone, in addition to the Magnetic
Stripe Card Charges requirements, you must:
Capture Magnetic Stripe or chip Card data by waving the contactless-enabled mobile
phone in close proximity to the contactless reader.
Compare the signature (when obtained) on the Sales Draft with the signature on the
companion physical Card or a valid form of formal identification (e.g. driver's license).
You must not record or store the information from such formal identification in any way.
If a mobile contactless transaction cannot be processed for any reason, you should require
that the Cardholder provide the companion physical Card to complete the transaction.
14.18 American Express Contact Chip Charges.
When presented with a chip Card to be inserted into a chip Card reader, in addition to the
Magnetic Stripe Card Charges requirements, you must:
Capture chip Card data by inserting the Card into the chip Card reader, The point of sale
system will advise Cardholders to enter their PIN (a chip and PIN Charge) or sign for the
Charge (a chip and signature Charge).
Chip and PIN Charges. Cardholders will enter their PIN into the point of sale system
using the keypad. If the chip and PIN Charge are unable to be completed due to a
technical problem, the point of sale system will show an error message.
Chip and signature Charge. Failure to obtain a signature, when required, can render you
liable for Chargebacks if the Cardholder disputes the Charge. Obtaining a signature may
not be required if merchants establishment and the Charge qualify for the No Signature
Program.
14.19 American Express Contactless Chip Charges.
When presented with a chip Card to be read via a contactless reader and the Charge qualifies
for the No Signature Program, in addition to the Magnetic Stripe Card Charges
requirements, you must:
Capture Magnetic Stripe or chip Card data using the contactless reader.
For charges that do not qualify under the No Signature Program, follow the relevant Card
acceptance procedures outlined in either:
Magnetic Stripe Card Charges, or
Contact Chip Card Charges.
14.20 American Express Key-Entered Charges.
If a Card cannot be read electronically, in addition to the Magnetic Stripe Card Charges
requirements, you must:
Key enter the data.
Validate the Cards presence by taking an imprint of the Card (the imprint is for your
records). Failure to validate the Cards presence by taking an imprint of the Card can
render you liable for Chargebacks if the Cardholder disputes the Charge.
14.21 Keyed No Imprint for American Express Transactions.
Your establishments may be eligible to participate in the American Express Keyed No
Imprint Program. The Keyed No Imprint Program allows you to submit in-person
charges without taking an imprint of the Card if you meet the following Charge criteria:
All Cards qualify for the Keyed No Imprint Program.
The Charge must be key-entered.
The Charge Submission must include the appropriate indicator to reflect that the Card
and the Cardholder were present at the point of sale.
The Charge Submission must include a valid approval, and;
The CID Number must be confirmed as a positive match. Under the Keyed No Imprint
Program, Chargebacks will not be exercised for such charges based solely on the
establishments failure to obtain an imprint of the Card. If a disproportionate amount or
number of disputed charges under the Keyed No Imprint Program occurs, you must
cooperate to reduce the number of disputed charges. If such efforts fail, you may be placed
in any of American Express Chargeback programs or your participation in the Keyed No
Imprint Program may be modified or terminated.
4.22 Merchant Website Information Display Guidelines.
An accurate description of the goods/services offered, including the currency type for the
transaction (e.g., U.S. Dollars). Transaction currency must be in U.S. Dollars.
Your physical address in the U.S.
An email address and a telephone number for customer service disputes.
Return/refund policy.
A description of your delivery policy (e.g., No COD, No overnight).
A description of your security practices (e.g., information highlighting security practices
you use to secure transactions conducted on the internet).
A statement of known export restrictions, tariffs, and any other regulations.
14.23 Aggregated Charges.
If you are classified as an internet industry, you may process aggregated charges, provided
the following criteria are met:
Clearly disclose your intent and obtain written consent from the Card- member that their
purchases or refunds (or both) on the Card may be aggregated and combined with other
purchases or refunds (or both) before you request an Authorization.
Each individual purchase or refund (or both) that comprises the aggregated Charge must
be incurred under the same merchant number and on the same Card.
Obtain a pre-Authorization of no more than $15. 00
Create a Sales Draft for the full amount of the aggregated Charge.
The amount of the aggregated Charge must not exceed $15 or the amount for which you
obtained pre-Authorization.
Submit each Sales Draft within our submission timeframe.
Provide the Cardholder with an email containing the date, amount, and description of
each individual purchase or refund (or both) that comprises the aggregated Charge, and
the date and the amount of the aggregated Charge.
14.24 American Express Prepaid Card Security Features.
Although there are a number of unique prepaid Cards, all prepaid Cards share similar
features, except that Prepaid Cards may or may not be embossed, and the following features
may appear on the front or back of the Card (or a combination of both):
The American Express logo generally appears in the bottom right corner.
The words PREPAID or INCENTIVE will generally be shown above the American Express
logo.
Cards pre-loaded with funds may show the dollar amount or the total points (reloadable
Cards generally will not show a number).
The CID Number will appear usually above the Card number or above the logo.
The Card number appears on the Card.
The valid date or expiration date appears on the Card.
The recipients name or company name may appear on the Card.
14.25 American Express Processing Prepaid Cards
Prepaid Cards are available for a variety of uses: gifting, travel, incentive, etc. All American
Express prepaid Cards show the American Express Blue Box logo either on the face or
back of the prepaid Card. Prepaid Cards may or may not be embossed. Most prepaid Cards
can be used for both in-store and online purchases. Prepaid Cards are valid through the
date on the Card. Simply swipe the Card at the point of sale just like any other Card. A
prepaid Card must be tendered for an amount that is no greater than the funds available on
the Card.
Instruct Cardholders that, before making a purchase, they must check their remaining
funds by calling the twenty-four (24) hour, toll-free number on the back of the Card.
Because prepaid Cards are pre-funded, if you receive a decline when seeking
Authorization, ask the customer to call the toll-free number on the back of the Card to
confirm that the purchase price does not exceed the available funds on the prepaid Card.
If the prepaid Card does not have enough funds to cover the purchase price, process a split
tender transaction or request an alternative form of payment.
You must create a Sales Draft for a prepaid Card as you would any other Card.
Be on the lookout for Suspect Transactions.
14.26 American Express Policies and Procedures for Specific Industries.
This Section 14.26 states additional American Express policies and procedures applicable
to merchants classified in specific industries. All other provisions and requirements of this
Agreement apply to these merchants as well. To the extent possible, the provisions of this
Section 14.26 and the other provisions of the Agreement applicable to American Express
transactions shall be interpreted to give each their full effect. However, if a conflict is
deemed to exist between them, then the provisions of this Section 14.26 shall govern.
14.26.1 Auto dealers:
This section applies to merchants classified in an auto dealer industry.
The following requirements will apply to charges for the down payment or the entire
purchase price of new and used motor vehicles. You may accept the Card for down payment
of a motor vehicle, subject to the following provisions:
You must not submit a Charge for the down payment price of a used motor vehicle unless
and until you have a written agreement/bill of sale signed by the Cardholder setting forth
the terms of the sale, including down payment price, and your cancellation policy.
In addition to its other Chargeback rights, American Express also has Chargeback rights
for any portion of the Charge for the down payment price of a used motor vehicle which
is disputed by the Cardholder, if such disputed charge cannot be resolved in your favor
based upon unambiguous language contained in the written agreement/bill of sale.
Should a Cardholder exercise his or her right to rescind the written agreement/bill of sale
during any rescission period set forth in the Cardholder's agreement with you or at law,
you shall submit a Credit to us promptly.
If American Express has classified you as an auto dealer of used motor vehicles
exclusively, the down payment must not exceed 50% of the full purchase price of the
motor vehicle.
If the Cardholder denies making or authorizing the Charge, American Express will have
Chargeback rights for such Charge in addition to our other Chargeback rights.
You may also accept the Card for the entire purchase price of a new or used motor vehicle,
subject to the following provisions:
You are classified as an auto dealer of new or new and used motor vehicles (i.e. Your
dealership sells new motor vehicles exclusively or both new and used motor vehicles).
AGL1704(ia)
23
The amount of the Charge does not exceed the total price of the motor vehicle after
deduction of applicable discounts, taxes, rebates, cash down payments, and trade-in values.
You must not submit a Charge for the entire purchase price of a new or used motor vehicle
unless and until you have a written agreement/bill of sale signed by the Cardholder setting
forth the terms of the sale, including purchase price, delivery date and your cancellation
policy.
In addition to other Chargeback rights, American Express also has Chargeback rights for
any portion of the Charge for the entire purchase price of a new or used motor vehicle
which is disputed by the Cardholder, if such disputed Charge cannot be resolved in your
favor based upon unambiguous language contained in the written agreement/bill of sale.
Should a Cardholder exercise his or her right to rescind the written agreement/bill of sale
during any rescission period set forth in the Cardholders agreement with you or at law,
you shall submit a Credit to us promptly.
If the Cardholder denies making or authorizing the Charge and you have not transferred
title or physical possession of the motor vehicle to the Cardholder, American Express
will have Chargeback rights for such Charge in addition to its other Chargeback rights.
14.26.2 Business-to-Business (B2B)/ Wholesale Distribution
If you are classified in the business-to-business (B2B) or wholesale distribution industries,
and American Express determines that you are not in the telecommunications industry,
then notwithstanding the prohibition in Section 14.4, Prohibited Uses of the Card, you
may accept the Card for overdue amounts to the extent that acceptance of overdue amounts
is a common practice in your industry and does not constitute an attempt to obtain payment
from the Cardholder whose prior methods of payment have, in American Express
reasonable judgment, been difficult to collect or uncollectible. An indicator of such
difficulty, for example, may be the fact that you have sent a customer account to collections.
To minimize your risk of a Chargeback with B2B Charges, always:
Obtain a signature for all in-person charges. For Card Not Present Charges, obtain Proof
of Delivery, and
Maintain clear and accurate records of orders and returns.
Notwithstanding the restriction in Section 6, you must not submit any Charge until the
goods have been shipped or services have been provided to the Cardholder. To the extent
that you have clearly disclosed your intentions to the Card -member and the Cardholder
agrees, then you may submit the following types of Charges to us before you ship the goods
to the Card- member:
Charges representing deposits on custom and special orders (so long as you comply with
applicable law) or goods not in inventory at the time the order is placed.
Charges representing advance, partial, or full payment for goods that the Cardholder
requests you to ship at a later date.
14.26.3 Insurance
This section contains provisions specific to establishments that are classified in the
insurance industry. If any of your goods or services are sold or billed by independent
agencies, then you must provide to American Express a list of such independent agencies
and notify us of any subsequent changes in the list. American Express may use this list to
conduct mailings that encourage such independent agencies to accept the Card.
American Express may mention your name in such mailings, and you must provide us with
a letter of endorsement or assistance as American Express may require.
You must use your best efforts to encourage independent agencies to accept the Card.
American Express acknowledges that you have no control over such independent agencies.
From time to time, and subject to prohibited uses of the Card, American Express may
establish joint marketing campaigns that promote Card acceptance specifically at your
establishments or, generally, at insurance companies. A necessary purpose for which you
submit Cardholder Information that is responsive to such joint marketing campaigns
includes American Express use of that information to perform back-end analyses to
determine the success of such joint marketing campaigns.
American Express undertakes no responsibility on your behalf for the collection or timely
remittance of premiums. American Express will not be subject to any liability, under any
circumstances, for any claim arising from, or related to, any insurance policy issued by you
or your agencies.
If the Card is accepted as payment for fixed rate cash value life insurance policies or fixed
rate annuities under the Agreement, you represent and warrant to Processor that the fixed
rate cash value life insurance policies and fixed rate annuities for which the Card will be
accepted for premium payments are not securities requiring registration under the Securities
Act of 1933.
14.26.4 Oil/Petroleum
If you are classified in the oil and petroleum industry, American Express may place you in
the Fraud Full Recourse Program if you accept charges originating at a Customer Activated
Terminal (CAT) gas pump. American Express will not exercise Chargeback up to a certain
dollar amount for charges that qualify under the Oil Fraud Protection Program described
below.
Oil/Petroleum Requirements
If you are classified in the oil and petroleum industry, you must:
Obtain a unique Merchant Account Number for your CAT gas pump sales. If you conduct
any other business at your establishment (e.g., convenience store sales, car washing
services), you must obtain a unique Merchant Account Number for those lines of
business.
Submit dealer location data along with each Authorization request and each Submission
file. Dealer location data consists of your business:
dealer number (store number)
name
street address
city
postal code.
Oil/Petroleum Recommendations
American Express has implemented several policies and fraud prevention tools to assist in
combating fraud at the gasoline pump.
American Express recommends that you:
Set a pre-Authorization request of $100 at your CAT gas pumps.
For higher charges such as diesel, adjust the pre-Authorization amount to accommodate
the higher charges.
Set your CAT gas pumps to shut off when they reach the pre-Authorization amount.
Request a separate Authorization for purchases that exceed the original pre-Authorization
amount.
Oil Fraud Protection Program
The Oil Fraud Protection Program addresses counterfeit fraud Chargebacks at fuel pump
CATs. Under this program, American Express will not exercise Chargeback for the amount
of the Charge up to $100 provided that both the establishment and each Charge meet the
following criteria:
The Authorization request meets the data requirements listed under CATs.
The Authorization request must include the correct merchant category code (MCC) for
automated fuel dispensers (5542),
The Issuer determines that the Card used to initiate the Charge was counterfeit, and,
The establishment qualified for Chargeback protection under the program at the time of
the Charge, as follows:
For an establishment to qualify under the Oil Fraud Protection Program, it (i) must authorize
and submit Transactions under the unique Merchant Account Number (Seller ID) assigned
to the establishment, and (ii) must have, in a given month, a counterfeit fraud to Charge
volume ratio below 1%. An establishment whose counterfeit fraud to Charge volume ratio
rises to or exceeds 1% in a given month will not qualify under the Oil Fraud Protection
Program until the ratio falls below 1% for three (3) consecutive months. Notwithstanding
the foregoing, the Oil Fraud Protection Program does not apply to merchants that submit one
Merchant Account Number (Seller ID) consolidated charges from multiple establishments
(i.e., central submitters) or to the establishments that those merchants submit on behalf of.
American Express offers a variety of fraud prevention tools which may enable merchants to
reduce fraud in order to qualify and retain eligibility for the program.
14.26.5 Restaurants
If you are classified in the restaurant or bar industry, then the following Authorization
procedures apply. If the final restaurant or bar Charge is no greater than the amount for
which you obtained Authorization plus 20% of that amount, no further Authorization is
necessary. If the final restaurant or bar Charge is greater than the amount for which you
obtained Authorization by more than 20%, you must obtain Authorization for any
additional amount of the Charge that is greater than the original Authorization. When
submitting the Charge, only include the initial approval.
14.26.6 Telecommunications
If American Express classifies you in the Telecommunications industry, notwithstanding
anything to the contrary in the Agreement, American Express may place you in one or more
of the following Chargeback programs:
Partial Immediate Chargeback Program for an amount of $50 or less; or Fraud Full Recourse
Program.
American Express may establish audit procedures determined in American Express
discretion to ensure that no charges except for recurring billing charges are submitted
under the Merchant Account Number designated for recurring billing charges.
We may request that you provide us with a list of Affiliates and the list you provide must
include any agency in the geographic area where you offer any telecommunications
services.
14.26.7 Government/Utilities/Education
This section applies to merchants classified in the government, utilities, or certain education
industries (i.e. higher education, private school - kindergarten to grade 12).
Customers should feel free to use all forms of payment that you accept without being
penalized for choosing a particular form of payment. To promote consumer choice, you are
generally prohibited from imposing any restrictions, conditions, or disadvantages when the
Card is accepted that are not imposed equally on all other payment products. See
Treatment of the American Express Brand.
Merchants in these specific industries may assess convenience fees on charges, provided that
they comply with the other requirements of this section, as follows:
AGL1704(ia)
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Merchants must not impose a higher convenience fee on charges than it imposes on other
payment products, except for Automated Clearing House funds transfers, cash, and
checks.
Merchants classified as government Entities, including government utilities, and privately
owned utilities may assess convenience fees on all Charges.
Merchants classified as educational institutions may assess convenience fees only on
charges for tuition, room and board, school lunch payments or other mandatory fees.
You must clearly disclose the amount of convenience fees to the customer and give the
customer the opportunity to cancel the Charge if the customer does not want to pay the
convenience fee.
Any explanation, verbal or written, describing why the convenience fee is being assessed,
or how it is calculated, must characterize the convenience fee as an assessment to cover your
administrative costs and not as an assessment to cover your cost of accepting the Card.
You must obtain separate Authorizations and Approval codes for each of the principal
charges and the convenience fee. Furthermore, the descriptor on the convenience fee must
clearly state that it is a convenience fee (e.g., Official Payments City of X (principal
payment) and Official Payments Convenience Fee (convenience fee)).
Your third-party service provider can only assess a convenience fee when it accepts the
Card for the foregoing charges in compliance with the requirements of this section.
14.26.8 Internet/Online Pharmacies
If it is determined that you are an internet/online pharmacy merchant that accepts the Card
for sales of prescription medications (as defined by applicable law) in the Card Not Present
environment:
You must be certified by the Verified Internet Pharmacy Practice Sites program of the
National Association of Boards of Pharmacy (www.nabp.net), or,
You or your authorized representative must attest that you comply with the licensing and
inspection requirements of (i) U.S. federal law and the state in which you are located and
(ii) each state to which you dispense pharmaceuticals.
Upon request, you must promptly provide documentation that you fulfill the foregoing
requirements. Failure to provide this documentation promptly may result in suspension or
disentitlement of Card acceptance privileges. Specific procedures exist for transaction
processing by internet/online merchants.
Online/mail order tobacco retail
If you are classified or it is otherwise determined that you are an online or mail order (or
both) tobacco or e-cigarette merchant, then you must provide the website address of the
online store from which you sell your tobacco products. If your website facilitates tobacco
sales, you will be required on request to provide an executed and notarized Affidavit of
Compliance with Laws - Online/Mail Order Tobacco. If you fail to complete the Affidavit,
Card acceptance privileges may be suspended. American Express may monitor your
website.
14.27 American Express-Excessive Disputes
You may be subject to various fees and assessments as set forth on the Application,
including fees for excessive disputes. Some fees and assessments are for special products or
services, while others may be applied based upon non-compliance of American Express
policies and procedures. Many non-compliance fees and assessments can be avoided by
correcting the actions that are causing such non-compliance.
14.28 American Express Right to Modify or Terminate Agreement.
American Express has the right to modify the Agreement with respect to American Express
Card transactions or to terminate your acceptance of American Express Card transactions
and to require Processor to investigate your activities with respect to American Express
Card transactions.
B. CARD GENERAL TERMS
In addition to the preceding Operating Procedures, our Agreement with you includes the
following General Terms. If you fail to follow any of the provisions of the Operating Procedures
or General Terms, you may incur certain liabilities and we may terminate our Agreement.
15. Services
Subject to Card Organization Rules, Services may be performed by us, our Affiliates, our agents,
or other third parties we may designate from time to time in connection with this Agreement.
16. Operating Procedures;
Card Organization Rules and Compliance
You agree to follow all requirements of this Agreement in connection with each Card
transaction and to comply with all applicable Card Organization Rules, including without
limitation, the data security requirements described in Section 4. From time to time, we may
amend the Operating Procedures, by providing you with at least 20 days prior written
notice, and those provisions will be deemed incorporated into this Agreement. However, for
changes in the Card Organization Rules or for security reasons, certain changes in Card
procedures may become effective on shorter notice. If there are any inconsistencies between
the General Terms and the Operating Procedures, the General Terms will govern. You are
responsible for staying apprised of all applicable changes to the Card Organization Rules
and maintaining compliance with the Card Organization Rules. Card Organization Rules
may be available on web sites such as
http://usa.visa.com/merchants/operations/op
_
regulations.html and
http://www.mastercard.com/us/merchant/support/rules.html. These links may change from
time to time.
17. Settlement of Card Transactions
17.1. We will only be required to settle Card transactions for Card types specified in your
Application. Promptly after presentment of Sales Drafts pursuant to the Operating
Procedures, we will initiate a transfer of the applicable settlement funds to you.
17.2. Unless otherwise agreed to in writing to the contrary, all discount fees are deducted
daily. All settlements for Visa, MasterCard, Discover Network and American Express Card
transactions will be net of Credits, Summary Adjustments, applicable discount fees when
due, Chargebacks and any other amounts then due from you. We may also set off from any
payments otherwise due, any amounts owed to any of our respective Affiliates, whether or
not arising out of or related to this Agreement.
17.3. All credits to your Settlement Account or other payments to you are provisional and
are subject to, among other things, our right to deduct our fees, our final audit, Chargebacks
(including our related losses), and fees, fines and any other charge imposed on us by the Card
Organizations as a result of your acts or omissions. You agree that we may debit or credit your
Settlement Account for any deficiencies, overages, fees, pending Chargebacks and any other
amounts owed to us or any of our respective Affiliates, or we may deduct such amounts
from settlement funds or other amounts due to you from us, or our respective Affiliates. You
further agree we can offset any amounts owed to us or our Affiliates related to activity in
other accounts maintained in the name of or guaranteed by you, any of your principals,
guarantors or authorized signors. Alternatively, we may elect to invoice you for any such
amounts, net due 30 days after the invoice date or on such earlier date as may be specified.
17.4. We will not be liable for any delays in receipt of funds or errors in debit and credit
entries caused by you or any Person.
17.5. In addition to any other remedies available to us under this Agreement, you agree
that should any Event of Default (see Section 24.4) occur, we may, with or without notice,
change processing or payment terms and/or suspend credits or other payments of any and
all funds, money and amounts now due or hereafter to become due to you pursuant to the
terms of this Agreement, until we have had reasonable opportunity to investigate such event.
17.6. You acknowledge and agree that transfers to and from the Settlement Account shall
be based on the account number and routing number supplied by you. We are not
responsible for detecting errors in any Settlement Account information you provide,
including the account numbers and routing numbers, even if any of those numbers do not
correspond to the actual account or financial institution identified by name.
17.7. This Agreement is a contract whereby we are extending financial accommodations
to you within the meaning of Section 365(c) of the U.S. bankruptcy code. Your right to
receive any amounts due or to become due from us is expressly subject and subordinate to
Chargeback, setoff, lien, security interest and our rights to withhold settlement funds under
this Agreement, without regard to whether such Chargeback, setoff, lien, security interest
and the withholding of settlement funds rights are being applied to claims that are
liquidated, unliquidated, fixed, contingent, matured or unmatured.
18. Exclusivity
During the term of this Agreement, you shall use us as your exclusive provider of all Services.
19. Fees; Adjustments; Collection of Amounts Due
19.1. In consideration of the Services provided by us, you shall be charged, and hereby
agree to pay us any and all fees set forth in this Agreement (for the purposes of clarity, this
includes the Application and any additional pricing supplements or subsequent
communications), all of which shall be calculated and payable pursuant to the terms of
this Agreement and any additional pricing supplements or subsequent communications.
If a transaction fails to qualify for your anticipated interchange levels or you inadvertently
or intentionally accept a transaction other than the type anticipated for your account
AGL1704(ia)
25
(including a different Card type), then, as applicable to your pricing method, you will be
charged a higher interchange, Discount Rate or Non-Qualified Interchange Fee, as well any
applicable surcharge for that transaction, all as further described in Section A.3 of Part IV
of this Agreement and in the Application. With respect to inadvertent or intentional
acceptance of a transaction other than the type anticipated for your account (including a
different Card type), you will also be subject to payment to us of our then-current
transaction fee(s) with respect to such Card and/or transaction and be liable, obligated and
responsible under this Agreement for any such transaction to the same extent as you would
be if it was of a Card type elected and approved.
For more information on Visas and MasterCards interchange rates, please go to
www.visa.com and www.mastercard.com.
19.2. All authorization fees will be charged for each transaction that you attempt to
authorize. All capture fees will be charged for each transaction that you transmit to us for
settlement. If you are being billed a combined fee for both the authorization and capture of
a transaction, the authorization and capture must be submitted as a single transaction,
otherwise the authorization and the capture will each be charged separately. You are
responsible for utilizing software or services that will correctly submit these transactions to
achieve the combined billing.
19.3. The fees for Services set forth in this Agreement are based upon assumptions
associated with the anticipated annual volume and average transaction size for all Services
as set forth in this Agreement and your method of doing business. If the actual volume or
average transaction size are not as expected or if you significantly alter your method of
doing business, we may adjust your discount fee and transaction fees without prior notice.
19.4. The fees for Services set forth in this Agreement may be adjusted to reflect increases,
or new fees imposed by Card Organizations, including without limitation, interchange,
assessments and other Card Organization fees, or to pass through increases or new fees
charged to us by other Persons related to the Services. All such adjustments shall be your
responsibility to pay and shall become effective upon the date any such change or addition
is implemented by the applicable Card Organization or other Person as specified in our
notice to you.
19.5. Subject to Section 24.3, we may also increase our fees or add new fees for Services
for any reason at any time, by notifying you thirty (30) days prior to the effective date of
any such change or addition.
19.6. If you receive settlement funds by wire transfer, we may charge a wire transfer fee per
wire.
19.7. To the extent the Automated Clearing House (ACH) settlement process is used to
effect debits or credits to your Settlement Account, you agree to be bound by the terms of
the operating rules of the National Automated Clearing House Association, as in effect from
time to time. You hereby authorize us to initiate credit and debit entries and adjustments
to your account through the ACH network and/or through direct instructions to the
financial institution where your Settlement Account is maintained for amounts due under
this Agreement and under any agreements with us or our respective Affiliates for any
products or services, as well as for any credit entries in error. You hereby authorize the
financial institution where your Settlement Account is maintained to effect all such debits
and credits to your account. This authority will remain in full force and effect until we have
given written notice to the financial institution where your Settlement Account is
maintained that all monies due under this Agreement and under any other agreements with
us or our respective Affiliates for any products or services have been paid in full. You are
solely responsible to inform us in writing if you want any fees or other adjustments to be
debited from an account other than your Settlement Account.
19.8. You agree to pay any fines imposed on us by any Card Organization resulting from
Chargebacks and all fees, fines and other charges imposed on us by a Card Organization
with respect to your acts or omissions. You are also responsible for all fees, fines, and other
charges imposed on us as a result of acts or omissions by your agents or third parties.
19.9. If your Chargeback percentage for any line of business exceeds the estimated industry
Chargeback percentage, you shall, in addition to the Chargeback fees and any applicable
Chargeback handling fees or fines, pay us an excessive Chargeback fee for all Chargebacks
occurring in such month in such line(s) of business. Each estimated industry Chargeback
percentage is subject to change from time to time by us in order to reflect changes in the
industry Chargeback percentages reported by Visa, MasterCard, American Express or
Discover Network. Your Chargeback Percentage will be calculated as the larger of (a) the
total Visa, MasterCard, American Express and Discover Network Chargeback items in any
line of business in any calendar month divided by the number of Visa, MasterCard,
American Express and Discover Network transactions in that line of business submitted
that month, or (b) the total dollar amount of Visa, MasterCard, American Express and
Discover Network Chargebacks in any line of business received in any calendar month
divided by the total dollar amount of your Visa, MasterCard, American Express and
Discover Network transactions in that line of business submitted in that month.
19.10. You agree to promptly and carefully review your merchants statements or other
documents provided or made available to you (physically, electronically or otherwise
provided by Us or others) reflecting Card transaction activity, including, activity in your
Settlement Account. If you believe any adjustments should be made with respect to your
Settlement Account, you must notify us in writing within sixty (60) days after any debit or
credit is or should have been effected or such shorter period as provided in the terms and
conditions that govern such account. If you notify us after sixty (60) days, we shall have
no obligation to investigate or effect any adjustments. Any voluntary efforts by us to assist
you in investigating such matters shall not create any obligation to continue such
investigation or any future investigation.
19.11. If you do not pay us all fees and any other amounts due under this Agreement
within thirty (30) days of the date of our merchant statement or other statement setting
forth the amount due, then we may, in our sole discretion, charge you interest, for such
time that the amount and all accrued interest remain outstanding at the lesser of (i) 12%
APR, or (ii) the maximum rate permitted by applicable law.
19.12. Other Debits. We may also debit your Settlement Account or your settlement
funds in the event we are required to pay Card Organization fees, charges, fines, penalties
or other assessments as a consequence of your sales activities. Such debits shall not be
subject to any limitations of time specified elsewhere in the Agreement, including, without
limitation the following, which we may add to or delete from this list as changes occur in
the Card Organization Rules or our Operating Procedures pursuant to Section 16:
Card Organization fees, charges, fines, penalties, registration fees, or other assessments
including any fees levied against us or any amount for which you are obligated to
indemnify us.
Currency conversion was incorrectly calculated. NOTE: For Discover Network
transactions, you are not permitted to convert from your local Discover Network
approved currency into another currency, nor may you quote the price of a transaction
in U.S. Dollars if completed in another approved currency.
Discount Rate not previously charged.
Reversal of deposit posted to your account in error.
Debit for Summary Adjustment not previously posted.
Reversal of Credit for deposit previously posted.
Debit for Chargeback never posted to your account.
Debit for EDC Batch error fee.
Card Organization Merchant Chargeback/fraud monitoring fees excessive Chargeback
handling fees.
Failure of transaction to meet Member Controller Authorization Service (MCAS)
Cardholder account number on exception file.
Original transaction currency (foreign) not provided.
Travel Voucher exceeds maximum value.
Debit and/or fee for investigation and/or Chargeback costs related to this Agreement, or
for costs related to our collection activities in an amount no less than $100.00.
Costs arising from replacement or damage to equipment rented.
Payment of current or past due amounts for any equipment purchase, rental or lease.
Incorrect merchant descriptor (name and/or city, state) submitted.
Incorrect transaction date submitted.
Shipping and handling fees.
Costs or expenses associated with responding to any subpoena, garnishment, levy or
other legal process associated with your account in an amount no less than $150.00.
20. Chargebacks
20.1. You shall be responsible for reimbursing us for all transactions you submit that are
charged back. See the Operating Procedures for additional information regarding
Chargebacks and Chargeback procedures.
20.2. You shall reimburse us for any Chargebacks, return items, or other losses resulting
from your failure to produce a Card transaction record requested by us within the applicable
time limits.
21. Representations; Warranties; Covenants; Limitations
on Liability; Exclusion of Consequential Damages
21.1. Without limiting any other warranties hereunder, you represent, warrant to and
covenant with, us, and with the submission of each Sales Draft reaffirm, the following
representations, warranties and/or covenants:
21.1.1. each Card transaction is genuine and arises from a bona fide transaction permissible
under the Card Organization Rules by the Cardholder directly with you, represents a valid
obligation for the amount shown on the Sales Draft, preauthorized order, or Credit Draft,
and does not involve the use of a Card for any other purpose;
21.1.2. each Card transaction represents an obligation of the related Cardholder for the
amount of the Card transaction;
21.1.3. the amount charged for each Card transaction is not subject to any dispute, setoff
or counterclaim;
21.1.4. each Card transaction amount is only for respective merchandise or services
(including taxes, but without any surcharge) sold, leased or rented by you pursuant to your
business as indicated on the application and, except for any delayed delivery or advance
deposit Card transactions expressly authorized by this Agreement, that merchandise or
service was actually delivered to or performed for the Cardholder entering into that Card
transaction simultaneously upon your accepting and submitting that Card transaction for
processing;
21.1.5. with respect to each Card transaction, you have no knowledge or notice of any
fact, circumstance or defense which would indicate that such Card transaction is fraudulent
or not authorized by the related Cardholder or which would otherwise impair the validity
or collectability of that Cardholders obligation arising from that Card transaction or relieve
that Cardholder from liability with respect thereto;
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21.1.6. each Card transaction is made in accordance with these General Terms, Card
Organization Rules and the Operating Procedures;
21.1.7. each Sales Draft is free of any alternation not authorized by the related Cardholder;
21.1.8. you have completed one Card transaction per sale; or one Card transaction per
shipment of goods for which the Cardholder has agreed to partial shipments;
21.1.9. you are validly existing, in good standing and free to enter into this Agreement;
21.1.10. each statement made on the Application or other information provided to us in
support of this Agreement is true and correct;
21.1.11. you are not doing business under a name or style not previously disclosed to us;
21.1.12. you have not changed the nature of your business, Card acceptance practices,
delivery methods, return policies, or types of products or services sold requiring a different
MCC under Card Organization Rules, in a way not previously disclosed to us;
21.1.13. you will use the Services only for your own proper business purposes and will not
resell, directly or indirectly, any part of the Services to any Person; (NOTE: Factoring is
prohibited.)
21.1.14. you have not filed a bankruptcy petition not previously disclosed to us;
21.1.15. you own and control the Settlement Account, and no third party security interest
or lien of any type exists regarding the Settlement Account or any Card transaction.
21.1.16. you will not at any time during the term of this Agreement, or until all amounts
due under this Agreement have been paid in full, grant or pledge any security interest or
lien in the Reserve Account, Settlement Account or transaction proceeds to any Person
without our consent;
21.2. THIS AGREEMENT IS A SERVICE AGREEMENT. WE DISCLAIM ALL
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY
OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE OF ANY SERVICES
OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY SERVICES OR ANY GOODS
PROVIDED BY A THIRD PARTY.
21.3. IN NO EVENT SHALL WE OR OUR AFFILIATES OR ANY OF OUR OR THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS,
BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS
OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES
THAT PAYMENT OF ANY EARLY TERMINATION FEE OR LIQUIDATED DAMAGES AS
PROVIDED ELSEWHERE IN THIS AGREEMENT SHALL NOT BE PROHIBITED BY THIS
PARAGRAPH.
21.4. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
(INCLUDING BUT NOT LIMITED TO SECTIONS 27 or 22.5), OUR CUMULATIVE
LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR
DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), REGARDLESS OF
THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED, (I) $50,000; OR (II)
THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THIS AGREEMENT FOR
SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING 12 MONTHS,
WHICHEVER IS LESS.
21.5. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
(INCLUDING BUT NOT LIMITED TO SECTION 24), OUR LIABILITY FOR ANY DELAY
IN FUNDING TRANSACTIONS TO YOU FOR ANY REASON, OTHER THAN FOR ANY
REASON DESCRIBED IN SECTIONS 17.4 AND 17.6, WILL BE LIMITED TO INTEREST
COMPUTED FROM THE DATE THAT YOU SUBMIT THE TRANSACTION TO THE DATE
THAT WE FUND THE TRANSACTION AT THE RATE OF THE FEDERAL FUNDS AS SET
BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW YORK, FROM TIME TO TIME,
LESS ONE PERCENT (1%).
21.6. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
BANK IS NOT RESPONSIBLE, AND SHALL HAVE NO LIABILITY, TO YOU IN ANY WAY
WITH RESPECT TO NON-BANK SERVICES.
22. Confidentiality
22.1. Unless you obtain written consents from us and each applicable Card Organization,
Issuer and Cardholder, you must not use, disclose, store, sell or disseminate any Cardholder
information obtained in connection with a Card transaction (including the names, addresses
and Card account numbers of Cardholders) except for purposes of authorizing, completing
and settling Card transactions and resolving any Chargebacks, Retrieval Requests or similar
issues involving Card transactions, other than pursuant to a court or governmental agency
request, subpoena or order. You shall use proper controls for and limit access to, and render
unreadable prior to discarding, all records containing Cardholder account numbers and
Card imprints. You may not retain or store Magnetic Stripe data or Card Validation Codes
after a transaction has been authorized. If you store any electronically captured signature
of a Cardholder, you may not reproduce such signature except upon our specific request.
22.2. You acknowledge that you will not obtain ownership rights in any information relating
to and derived from Card transactions. Cardholder account numbers, personal information
and other Card transaction information, including any databases containing such
information, may not be sold or disclosed to a Person as an asset upon a bankruptcy,
insolvency or failure of Clients business. Upon a bankruptcy, insolvency or failure of Clients
business, all Card transaction information must be returned to Servicers or acceptable proof
of the destruction of all Card transaction information must be provided to Servicers.
22.3. You will treat this Agreement, the Card Organization Rules and any information
supplied or otherwise made accessible by us or our agents as confidential, including without
limitation, (i) information about the products, services, operations, procedures, customers,
suppliers, sales, pricing, business plans and marketing strategies of Servicers, their
respective Affiliates and the customers, clients and suppliers of any of them; (ii) any
scientific or technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its confidentiality affords Servicers
a competitive advantage over its competitors; and (iii) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable and will not disclose the same to any third
parties, provided, however, that these restrictions do not apply to information: (a) rightfully
obtained on a non-confidential basis from a Person and your agents and representatives,
which Person was not subject to a duty of confidentiality, (b) rightfully and independently
known by you on a non-confidential basis prior to its disclosure or (c) generally available
to the public other than through any disclosure by or fault of you, your agents or
representatives.
22.3.1. Our confidential information shall be used by you only to exercise your rights and
to perform your obligations hereunder. Client shall receive our confidential information in
confidence and not disclose the confidential information to any third party, except as may
be agreed upon in writing by us. Client shall safeguard all of our confidential information
using a reasonable degree of care, but not less than that degree of care used by it in
safeguarding its own similar information or material. Upon request by us or upon
termination of this Agreement, Client shall return to us or destroy all of our confidential
information in its possession or control.
22.3.2. The obligations of confidentiality and restrictions on use in this Section shall not
apply to any confidential information that: (i) was in the public domain prior to the date
of the Agreement or subsequently came into the public domain through no fault of Client;
(ii) was received from a third party free of any obligation of confidence of Client to the
third party and which third party, to Clients knowledge, was not under an obligation to keep
the information confidential; (iii) was already in Clients possession prior to receipt from
us; (iv) is required to be disclosed by law, regulation or court order after giving us as much
advance notice as practical of the possibility of disclosure; or (v) is subsequently and
independently developed by Clients employees, consultants or agents without use of or
reference to our confidential information.
22.3.3. Except as specifically provided for herein, this Section does not confer any right,
license, interest or title in, to or under our confidential information to Client. Except as
specifically provided for herein, no license is hereby granted to Client under any patent,
trademark, copyright, trade secret or other proprietary rights of ours.
22.3.4. Client acknowledges that breach of the restrictions on use or disclosure of any our
confidential information would result in immediate and irreparable harm to us, and money
damages would be inadequate to compensate for that harm. We shall be entitled to equitable
relief, in addition to all other available remedies, to redress any breach.
22.4. We may use data collected as part of performing payment processing or other
transaction-related services for you for the purpose of providing additional products and
services to you, other merchants, or third parties. As permitted by law this includes
collecting, using, and anonymizing cardholder information, dates, amounts, and other data
from your transactions (Transaction Data) to provide you with analytic products and
services as well as collecting and using Transaction Data anonymized and aggregated with
other merchants transaction data to provide you, other merchants, and third parties with
analytic products and services.
22.5. You shall not assign to any Person, the rights to use the Marks of Servicers, our agents
or the Card Organizations.
22.6. All rights, title, and interest in and to all intellectual property related to the Services
(including without limitation, the content of any materials, web screens, layouts, processing
techniques, procedures, algorithms, and methods), owned, developed or licensed by us prior
to, during the term of, or after the Agreement, or employed by us in connection with the
Services and any updates, changes, alterations, or modifications to or derivative works from
such intellectual property, shall be and remain, as among the Parties, our exclusive property.
22.7. Client agrees that we may obtain relevant information from any applicable
telecommunications provider utilized by Client, as necessary to investigate any allegation
of fraud, suspected fraud or other actual or alleged wrongful act by Client in connection
with the Services.
23. Assignments
23.1. Any transfer or assignment of this Agreement by you, without our prior written
consent, by operation of law or otherwise, is voidable by us. Any transfer of voting control
of you or your parent shall be considered an assignment or transfer of this Agreement.
Furthermore, you shall indemnify and hold us harmless from all liabilities, Chargebacks,
expenses, costs, fees and fines arising from such transferees or assignees Submission of
Card transactions to us for processing. For purposes of this Section 23, any transfer of
voting control shall be considered an assignment or transfer of this Agreement.
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23.2. The payment Services provided by us require access to a single bank account in which
we may initiate both credits and debits. You may not enter into any agreement that would
require, in any circumstance or event, the transfer of any payments or proceeds from Card
transactions covered by this Agreement to the custody or control of any Person. You may
not assign any rights, including the right of payment under this Agreement, to any other
person. In the event that you make an assignment (or provide a security interest) of
receivables covered by this Agreement, then we may, at our option, elect to (a) refuse to
acknowledge such assignment unless accompanied by an Authorization to both initiate
debits or credits to the bank account of the assignee, (b) terminate this Agreement
immediately, or (c) charge for any transfers that we are called upon to make manually to
fulfill such an assignment at the rate of $100 per transfer.
23.3. Another Visa and MasterCard member may be substituted for Bank under whose
sponsorship this Agreement is performed with respect to Visa and MasterCard transactions.
Upon substitution, such other Visa and MasterCard member shall be responsible for all
obligations required of Bank for Visa and MasterCard transactions, including without
limitation, full responsibility for its Card program and such other obligations as may be
expressly required by applicable Card Organization Rules.
Subject to Card Organization Rules, we may assign or transfer this Agreement and our
rights, duties and obligations hereunder and/or may delegate or subcontract our rights,
duties and obligations hereunder, in whole or in part, to any Person, whether in connection
with a change in sponsorship, as set forth in the preceding paragraph, or otherwise, without
notice to you or your consent.
23.4. Except as set forth elsewhere in this Section and as provided in the following
sentence, this Agreement shall be binding upon successors and assigns and shall inure to
the benefit of the parties and their respective permitted successors and assigns. No assignee
for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession,
or other person charged with taking custody of a partys assets or business, shall have any
right to continue, assume or assign this Agreement.
24. Term; Events of Default
24.1. This Agreement shall become effective upon the date this Agreement is approved by
our Credit Department. You acknowledge that our Credit Department maintains a list of
business types that are unqualified for our Services. We reserve the right to immediately
terminate your account if it has been inadvertently boarded notwithstanding such Credit
policies.
24.2. The initial term of this Agreement shall commence and shall continue in force for
three years after it becomes effective. Thereafter, it shall continue until we or you terminate
this Agreement upon written notice to the other, or as otherwise authorized by this
Agreement. Should you fail to notify us in writing of your request to terminate you
acknowledge and agree you will continue to be charged fees pursuant to this Agreement
notwithstanding non- use of your account. If you have an equipment lease, termination of
this Agreement does not terminate that equipment lease.
24.3. Notwithstanding the above or any other provisions of this Agreement, we may
terminate this Agreement at any time and for any reason by providing 30 days advance
notice to you. We may terminate this Agreement immediately or with shorter notice upon
an Event of Default as provided under Section 24.4 of this Agreement. In the event we
provide notice to you of any new fees or increases in existing fees for Services, pursuant to
Section 19.5, you may terminate this Agreement without further cause or penalty by
notifying us that you are terminating this Agreement prior to the effective date of such new
fees or increases. However, maintaining your merchant account, or your continued use of
the Services after the effective date of any such fee changes shall be deemed your acceptance
of such fee changes for the Services, throughout the term of this Agreement.
24.4. If any of the following events shall occur (each an Event of Default):
24.4.1. a material adverse change in your business, financial condition, or business prospects;
or
24.4.2. any assignment or transfer of voting control of you or your parent; or
24.4.3. a sale of all or a substantial portion of your assets; or
24.4.4. irregular Card sales by you, excessive Chargebacks, noncompliance with any
applicable data security standards, as determined by Servicers, or any Card Organization,
or any other Person, or an actual or suspected data security breach, or any other
circumstances which, in our sole discretion, may increase our exposure for your
Chargebacks or otherwise present a financial or security risk to us; or
24.4.5. any of your representations, warranties or covenants in this Agreement are breached
in any respect; or
24.4.6. you default in any material respect in the performance or observance of any term,
condition or agreement contained in this Agreement, including, without limitation, the
establishment or maintenance of funds in a Reserve Account, as detailed in Section 25; or
24.4.7. you default in any material respect in the performance or observance of any term,
covenant or condition contained in any agreement with any of our respective Affiliates; or
24.4.8. you default in the payment when due, of any material indebtedness for borrowed
money; or
24.4.9. you file a petition or have a petition filed by another party under the U.S.
bankruptcy code or any other laws relating to bankruptcy, insolvency or similar
arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate
manner any petition filed against you in an involuntary case under such laws; apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of you or of a substantial
part of your property; or make a general assignment for the benefit of creditors; or take any
action for the purpose of authorizing any of the foregoing; or
24.4.10. your independent certified accountants shall refuse to deliver an unqualified
opinion with respect to your annual financial statements and your consolidated subsidiaries;
or
24.4.11. a violation by you of any applicable law or Card Organization Rule or our
reasonable belief that termination of this Agreement or suspension of Services is necessary
to comply with any law including without limitation the rules and regulations promulgated
by the Office of Foreign Assets Control of the U.S. Department of the Treasury or your
breach, as determined by Servicers, of Section 35.2 (Compliance with Laws), then, upon
the occurrence of (1) an Event of Default specified in subsections 24.4.4, 24.4.9 or 24.4.11,
we may consider this Agreement to be terminated immediately, without notice, and all
amounts payable hereunder shall be immediately due and payable in full without demand
or other notice of any kind, all of which are expressly waived by you, and (2) any other
Event of Default, this Agreement may be terminated by us giving not less than 10 days
notice to you, and upon such notice all amounts payable hereunder shall be due and payable
on demand.
24.5. Neither the expiration nor termination of this Agreement shall terminate the
obligations and rights of the parties pursuant to provisions of this Agreement which by
their terms are intended to survive or be perpetual or irrevocable. Such provisions shall
survive the expiration or termination of this Agreement. All obligations by you to pay or
reimburse us for any obligations associated with transactions you have submitted to us will
survive termination of this Agreement until finally and irrevocably paid in full and settled.
24.6. If any Event of Default occurs, regardless of whether such Event of Default has been
cured, we may, in our sole discretion, exercise all of our rights and remedies under
applicable law, and this Agreement including, without limitation, exercising our rights
under Section 25.
24.7. In the event you file for protection under the U.S. bankruptcy code or any other laws
relating to bankruptcy, insolvency, assignment for the benefit of creditors or similar laws,
and you continue to use our Services, it is your responsibility to open new accounts to
distinguish pre and post filing obligations. You acknowledge that as long as you utilize the
accounts you established prior to such filing, we will not be able to systematically segregate
your post-filing transactions or prevent set-off of the pre-existing obligations. In that event,
you will be responsible for submitting an accounting supporting any adjustments that you
may claim.
24.8. The Card Organizations often maintain merchant lists such as the Member Alert To
Control High-risk (Merchants) (MATCH) who have had their merchant agreements or Card
Acceptance rights terminated for cause. If this Agreement is terminated for cause, you
acknowledge that we may be required to report your business name and the names and other
information regarding its principals to the Card Organizations for inclusion on such list(s).
You expressly agree and consent to such reporting if you are terminated as a result of the
occurrence of an Event of Default or for any reason specified as cause by Visa, MasterCard,
Discover Network or American Express. Furthermore, you agree to waive and hold us
harmless from and against any and all claims which you may have as a result of such reporting.
24.9. After termination of this Agreement for any reason whatsoever, you shall continue
to bear total responsibility for all Chargebacks, fees, Card Organization fines imposed on
us as a result of your acts or omissions, Credits and adjustments resulting from Card
transactions processed pursuant to this Agreement and all other amounts then due or which
thereafter may become due under this Agreement.
25. Reserve Account; Security Interest
25.1. You expressly authorize us to establish a Reserve Account pursuant to the terms and
conditions set forth in this Section 25. The amount of such Reserve Account shall be set by
us, in our sole discretion, based upon your processing history and the potential risk of loss
to us as we may determine from time to time.
25.2. The Reserve Account shall be fully funded upon three (3) days notice to you, or in
instances of fraud or suspected fraud or an Event of Default, Reserve Account funding may
be immediate. Such Reserve Account may be funded by all or any combination of the
following: (i) one or more debits to your Settlement Account or any other accounts held by
Bank or any of its Affiliates, at any financial institution maintained in the name of Client,
any of its principals, or any of its guarantors, or if any of same are authorized signers on
such account; (ii) any payments otherwise due to you, including any amount due from
TeleCheck; (iii) your delivery to us of a letter of credit; or (iv) if we so agree, your pledge
to us of a freely transferable and negotiable certificate of deposit. Any such letter of credit
or certificate of deposit shall be issued or established by a financial institution acceptable
to us and shall be in a form satisfactory to us. In the event of termination of this Agreement
by any party, an immediate Reserve Account may be established without notice in the
manner provided above. Any Reserve Account will be held by us for the greater of ten (10)
months after termination of this Agreement or for such longer period of time as is consistent
with our liability for your Card transactions and Chargebacks in accordance with Card
Organization Rules. We will hold funds pursuant to this Section 25 in master account(s)
with your funds allocated to separate sub accounts. Unless specifically required by law, you
shall not be entitled to interest on any funds held by us in a Reserve Account.
25.3. If your funds in the Reserve Account are not sufficient to cover the Chargebacks,
adjustments, fees and other charges and amounts due from you, or if the funds in the
Reserve Account have been released, you agree to promptly pay us such sums upon request.
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25.4.1. To secure your obligations to us and our respective Affiliates under this Agreement
and any other agreement for the provision of equipment, products or services (including
any obligations for which payments on account of such obligations are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under any bankruptcy act, state or federal law, common
law or equitable cause), you grant to us a first priority lien and security interest in and to
(i) the Reserve Account and (ii) any of your funds pertaining to the Card transactions
contemplated by this Agreement now or hereafter in our possession, whether now or
hereafter due or to become due to you from us. Any such funds, money or amounts now
or hereafter in our possession may be commingled with other funds of ours, or, in the case
of any funds held pursuant to the foregoing paragraphs, with any other funds of other
customers of ours. In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, we are hereby authorized by you at any time
and from time to time, without notice or demand to you or to any other Person (any such
notice and demand being hereby expressly waived), to set off, recoup and to appropriate and
to apply any and all such funds against and on account of your obligations to us and our
respective Affiliates under this Agreement and any other agreement with us our respective
Affiliates for any related equipment or related services (including any check services),
whether such obligations are liquidated, unliquidated, fixed, contingent, matured or
unmatured. You agree to duly execute and deliver to us such instruments and documents
as we may reasonably request to perfect and confirm the lien, security interest, right of set
off, recoupment and subordination set forth in this Agreement.
25.4.2. For sake of clarification and notwithstanding anything in the Agreement to the
contrary, in the event Servicers deduct, holdback, suspend, off set or set off any settlement
monies or amounts otherwise due you pursuant to the terms of this Agreement (collectively
Set Off Funds), you acknowledge that such Set Off Funds will be held in a commingled
Reserve Account(s) of Servicers.
25.4.3. If in replacement of or in addition to the first priority lien and security interest in
the Reserve Account, you grant to Servicers a first priority lien and security interest in and
to one or more certificates of deposit, the certificates of deposit shall be uncertificated and
shall be subject to an Acknowledgement of Pledge of Certificate of Deposit and Control
Agreement (the Certificate of Deposit Control Agreement) by, between and among
Customers, Servicers and the financial institution that has established and issued the
certificate of deposit. The form of the Certificate of Deposit Control Agreement and the
financial institution that will establish and issue the certificate of deposit shall be satisfactory
and acceptable to Servicers.
26. Financial and Other Information
26.1. Upon request, you will provide us and our Affiliates, quarterly financial statements
within 45 days after the end of each fiscal quarter and annual audited financial statements
within 90 days after the end of each fiscal year. Such financial statements shall be prepared
in accordance with generally accepted accounting principles. You will also provide such
other financial statements and other information concerning your business and your
compliance with the terms and provisions of this Agreement as we may reasonably request.
You authorize us and our Affiliates to obtain from third parties financial and credit
information relating to you in connection with our determination whether to accept this
Agreement and our continuing evaluation of your financial and credit status. We may also
access and use information which you have provided to Bank for any other reason. Upon
request, you shall provide, and/or cause to be provided, to us and our Affiliates, or our
representatives or regulators (as well as those of the Card Organizations) reasonable access
to your or your providers facilities and records for the purpose of performing any inspection
and/or copying of books and/or records deemed appropriate. In such event, you shall pay
the costs incurred by us or our Affiliates for such inspection, including, but not limited to,
costs incurred for airfare and hotel accommodations.
26.2. You will provide us with written notice of any judgment, writ, warrant of attachment,
execution or levy against any substantial part (25% or more in value) of your total assets
not later than three (3) days after you become aware of same.
27. Indemnification
27.1. You agree to indemnify and hold us and the Card Organizations harmless from and
against all losses, liabilities, damages and expenses: (a) resulting from the inaccuracy or
untruthfulness of any representation or warranty, breach of any covenant or agreement or
any misrepresentation by you under this Agreement; (b) arising out of your or your
employees or your agents negligence or willful misconduct, in connection with Card
transactions or otherwise arising from your provision of goods and services to Cardholders;
(c) arising out of your use of the Services; or (d) arising out of any third party
indemnifications we are obligated to make as a result of your actions (including
indemnification of any Card Organization or Issuer).
27.2. Subject to the limitations set forth in Section 21.4, we agree to indemnify and hold
you harmless from and against all losses, liabilities, damages and expenses resulting from
any breach of any warranty, covenant or agreement or any misrepresentation by us under
this Agreement or arising out of our or our employees gross negligence or willful
misconduct in connection with this Agreement; provided that this indemnity obligation
shall not apply to Bank with respect to Non-Bank Services.
28. Special Provisions Regarding Non-Bank Cards
28.1. Non-Bank Card transactions are provided to you by Processor and not by Bank and
include transactions made using Discover Network, American Express, Voyager and WEX
Card types. The Services provided, transactions processed and other matters contemplated
under this Section 28 are subject to the rest of this Agreement, as applicable, except to the
extent the terms of this Section 28 directly conflict with another provision of this
Agreement, in which case the terms of this Section 28 will control; provided, however, that
(i) Bank is not a party to this Agreement insofar as it relates to Non-Bank Card services, and
Bank is not liable to you in any way with respect to such Services and (ii) you agree to pay
Processor any per item processing, authorization and other fees described in the Application
for any non-acquired transaction services you receive from Processor. For the purposes of
this section, the words we, our and us refer only to the Processor and not to the Bank.
You authorize us to share information from your Application with American Express,
Discover Network and any other Non-Bank Card Organization.
28.2. You understand that if, based upon your anticipated Card transaction volume you do
not qualify for our full service program but have otherwise been approved for accepting
American Express transactions, your authorizations will be obtained from and funded by
American Express. American Express will provide you with its own agreement that governs
those transactions. You understand and agree that we are not responsible and assume
absolutely no liability with regard to any such transactions, including but not limited to the
funding and settlement of American Express transactions, and that American Express will
charge additional fees for the services they provide.
28.3. If you accept JCB, Diners Club International, UnionPay, BCcard, and
Dinacard, you agree to be bound by the Discover Network provisions of this Agreement.
You also acknowledge and agree that JCB, Diners Club International, UnionPay, BCcard, and
Dinacard transactions will be processed under and subject to Discover Network Card
Organization Rules.
28.4. If you accept Voyager and/or WEX Cards, you agree to be bound by the WEX
and/or Voyager rules. You also agree to be bound by all other provisions of this Agreement
which are applicable to WEX and/or Voyager.
28.5. If you execute a separate WEX Merchant Agreement (WEX Non Full Service
Program), you understand that we will provide such agreement to WEX, but that neither
we nor WEX shall have any obligation whatsoever to you with respect to processing WEX
Cards unless and until WEX executes your WEX Merchant Agreement. If WEX executes
your WEX Merchant Agreement and you accept WEX Cards, you understand that WEX
transactions are processed, authorized and funded by WEX. You understand that WEX is
solely responsible for all agreements that govern WEX transactions and that we are not
responsible and assume absolutely no liability with regard to any such agreements or WEX
transactions, including but not limited to the funding and settlement of WEX transactions.
You understand that WEX will charge additional fees for the services that it provides.
28.6. If you elect to participate in the WEX Full Service Program, the following
terms and conditions shall apply:
a) You shall provide, at your own expense, all equipment necessary to permit the electronic
acceptance of the WEX Cards, including the operation and maintenance of the
equipment, telecommunication link, and provision of all networking services;
b) All authorization request data for WEX Card sales must include WEX Cardholder
account number, vehicle number, Card expiration date, driver identification number;
and the amount of the transaction, date and time of the transaction, quantity of goods
sold, unit price, and product code (the Authorization Request Data). All manual WEX
Card sales (i.e., sales facilitated by a card imprinter) must include an Authorization
number or other approval code from WEX along with the aforementioned
Authorization Request Data. The type of goods sold, quantity of goods sold, unit
price/price per gallon (if applicable), taxes, and any coupons presented within the
product detail of a transaction must be accurate. Product detail presented must also
equal the total amount of the sale when calculated (i.e., Product qty x unit price must
equal product amount. Sum of all product amounts including taxes minus any coupons
must equal total transaction amount.);
c) You shall not submit a WEX Card sale for processing when a WEX Card is not presented
at the time of the WEX Card sale;
d) You shall complete a WEX Card sale only upon the receipt of an Authorization approval
message and not accept a WEX Card when an expired Card/decline message is received;
e) You shall not submit a WEX Card sale for processing until the goods have been
delivered or services performed;
f) You shall not accept a WEX Card where the WEX Card appears to be invalid or expired
or there is reasonable belief that the WEX Card is counterfeit or stolen;
g) You shall provide a copy of the receipt for a WEX Card sale, upon the request of the
Cardholder, to the extent permitted by applicable law, which shall not include the full
account number or driver identification number;
h) You shall require the Cardholder to sign a receipt when a WEX Card sale is not
completed by an island Card reader;
i) You shall take all commercially reasonable efforts to protect manual WEX Card sales
data from fraud or misuse;
j) You shall not divide the price of goods and services purchased in a single WEX Card sale
among two or more sales receipts or permit a WEX Card sale when only partial payment
is made by use of the WEX Card and the balance is made with another bank Card;
k) Client acknowledges that fuel tax removal at the point of sale is not permitted. For all
payment system product codes that are taxable, transaction dollar amount and price
per gallon (PPG) must contain the sum of the fuel cost and PPG inclusive of all
applicable Federal, State, County, Local and other fuel taxes.
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l) You shall securely maintain a record of all WEX Card sales, including the Authorization
Request Data, for a period of one year and produce such records upon the reasonable
request of WEX;
m) You shall notify Processor of any errors contained within a settlement report within
forty-five (45) days of receipt of such report. Processor will not accept reprocessing
requests for WEX transactions older than 90 days;
n) You shall allow WEX to audit records, upon reasonable advance notice, related to the
WEX Full Service; and
o) You shall retransmit WEX Card sales data when reasonably requested to do so.
p) Client acknowledges and agrees that its sole remedies with respect to the WEX Full
Acquiring services shall be against Processor for the WEX Full Acquiring Services and
not WEX, except to the extent that WEX knows of any fraud related to the WEX Cards
and fails to provide notice of such fraud or WEX commits fraud in respect to the WEX
Full Acquiring Services.
28.7. If you accept Voyager Cards:
In addition to the information stated in Section 1 (MasterCard, Visa, Discover Network,
and American Express Acceptance) of the Operating Procedures, you should check Fleet
Cards for any printed restrictions at the point of sale.
In addition to the information provided under Section 1.5 (Special Terms) of the
Operating Procedures, you shall establish a fair policy for the exchange and return of
merchandise. You shall promptly submit credits to us for any returns that are to be
credited to a Voyager Cardholders account. Unless required by law, you shall not give
any cash refunds to any Voyager Card holder in connection with a sale.
In addition to the information required under Section 3.1 (Information Required) of the
Operating Procedures, the following information must be contained on the single page
document constituting the Sales Draft for Voyager transactions:
All authorization request data for Voyager Card sales must include Voyager Cardholder
account number, Card expiration date, driver identification number; and the amount of
the transaction, date and time of the transaction, quantity of goods sold, unit price, and
product code (the Authorization Request Data). All manual Voyager Card sales (i.e.,
sales facilitated by a card imprinter) must include an Authorization number or other
approval code from Voyager along with the aforementioned Authorization Request Data.
The type of goods sold, quantity of goods sold, unit price/price per gallon (if applicable),
taxes, and any coupons presented within the product detail of a transaction must be
accurate. Product detail presented must also equal the total amount of the sale when
calculated (i.e., Product qty x unit price must equal product amount. Sum of all product
amounts including taxes minus any coupons must equal total transaction amount.)
Client acknowledges that fuel tax removal at the point of sale is not permitted. For all
payment system product codes that are taxable, transaction dollar amount and price per
gallon (PPG) must contain the sum of the fuel cost and PPG inclusive of all applicable
Federal, State, County, Local and other fuel taxes
If an increase in the number of Voyager transaction authorization calls from you not due
to our or Voyager system outages in excess of 15% for a given month as compared to the
previous month occurs, we may, in our discretion, deduct telephone charges, not to
exceed $.25 (25 cents) per call, for the increased calls, from your settlement of your
Voyager transactions.
In addition to the information provided under Section 7 (Settlement) of the Operating
Procedures, settlement of Voyager transactions will generally occur by the fourth banking
day after we process the applicable card transactions. We shall reimburse you for the
dollar amount of sales submitted for a given day by you, reduced by the amount of
Chargebacks, tax exemptions, discounts, credits, and the fees set forth in the Application.
Notify processor of any errors contained with the Settlement Reports within thirty (30)
calendar days of receipt of such report. Neither we nor Voyager shall be required to
reimburse you for sales submitted more than sixty (60) calendar days from the date of
purchase.
For daily transmission of sales data, you shall securely maintain true and complete records
in connection with the information required to be provided under this paragraph for a
period of not less than thirty-six (36) months from the date of the generation of the data.
You may store records on electronic media, if secure. You are responsible for the expense
of retaining sales data records and Sales Drafts.
In addition to the scenarios identified in Section 10.1.4 of this Program Guide that could
cause an authorization related Chargeback to occur, with respect to Voyager transactions,
Chargebacks shall be made in accordance with any other Voyager rules. Notwithstanding
termination or expiration of this paragraph or the Agreement, you shall remain liable for
all outstanding Chargebacks on Voyager transactions.
In addition to the information provided under Section 21 (Representations; Warranties;
Covenants; Limitations of Liability; Exclusion of Consequential Damages) of the General
Terms, in no event shall our cumulative liability to you for losses, claims, suits,
controversies, breaches or damages for any cause whatsoever in connection with Voyager
transactions exceed the lesser of $10,000.00 or the Voyager transaction fees paid by you
to us for the two months prior to the action giving arise to the claim.
Notwithstanding anything in this Agreement to the contrary, our obligation to provide
services to you relating to any Fleet Card will terminate automatically without penalty to
us or the related Card Organization upon the earlier of (i) the termination or expiration
of our agreement with such Card Organization, (ii) at least twenty (20) days prior written
notice by us to you; (iii) your failure to comply with material terms relating to such Fleet
Card transactions, or (iv) written notice, if a Card Organization discontinues its Card.
29. Special Provisions for Debit Card
The special provisions outlined in this Section 29 apply only to those Debit Card
transactions that are processed by a Cardholder entering a PIN unless the transaction is a
network supported PINless transaction. A PINless transaction is a Debit card transaction
that a merchant submits to us for settlement/funding transactions with neither a PIN nor
Signature. The Services provided, transactions processed and other matters contemplated
under this Section 29 are subject to the rest of this Agreement, as applicable, except to the
extent the terms of this Section 29 directly conflict with another provision of this
Agreement, in which case the terms of this Section 29 will control.
29.1. Debit Card Acceptance. Most, but not all, ATM Cards (Debit Cards) can be
accepted at the point of sale at participating locations. Examine the back of the Debit Card
to determine if the Card participates in a PIN Debit network that you are authorized to
accept. PIN Debit network Mark(s) are usually printed on the back of the Card. If the Debit
Card is valid and issued by a financial institution Issuer participating in a PIN Debit
network, you must comply with the following general requirements for all participating
PIN Debit networks, in addition to the specific requirements of that PIN Debit network:
You must honor all valid Debit Cards when presented that bear authorized PIN Debit
network Marks.
You must treat transactions by Cardholders from all Issuers in the same manner.
You may not establish a minimum or maximum transaction amount for Debit Card
acceptance.
You may not require additional information, besides the PIN, for the completion of the
transaction unless the circumstances appear suspicious. A signature is not required for
Debit Card transactions.
You shall not disclose transaction related information to any party other than your agent,
a PIN Debit network, or Issuer and then only for the purpose of settlement or error
resolution.
You may not process a Credit Card transaction in order to provide a refund on a Debit
Card transaction.
29.2. Transaction Processing. The following general requirements apply to all Debit
Card transactions:
All Debit Card transactions must be authorized and processed electronically. There is no
Voice Authorization or Imprinter procedure for Debit Card transactions.
You may not complete a Debit Card transaction that has not been authorized. If you
cannot obtain an Authorization at the time of sale, you should request another form of
payment from the Cardholder or process the transaction as a Store and Forward or
Resubmission, in which case you assume the risk that the transaction fails to authorize
or otherwise declines. The Cardholder should be instructed to contact the Issuer to find
out why a transaction has been declined.
Unless the transaction is a network supported PINless transaction, you may not complete
a Debit Card transaction without entry of the PIN by the Cardholder. The PIN must be
entered into the PIN pad only by the Cardholder. You cannot accept the PIN from the
Cardholder verbally or in written form.
The PIN Debit network used to process your transaction will depend upon, among other
things, our own business considerations, the availability of the PIN Debit network at the
time of the transaction and whether a particular Debit Card is enabled for a particular PIN
Debit network. The PIN Debit network utilized to route your transaction may or may
not be the lowest cost network available. We may, in our sole discretion (i) utilize any PIN
Debit network available to us for a given transaction (including a PIN Debit network
affiliated with Processor) and (ii) add and/or remove PIN Debit networks available to you
based on a variety of factors including availability, features, functionality and our own
business considerations.
You must issue a receipt to the Cardholder upon successful completion of a transaction
and effect PAN Truncation on it.
You may not manually enter the account number. The account number must be read
electronically from the Magnetic Stripe. If the Magnetic Stripe is unreadable, you must
request another form of payment from the Cardholder.
Any applicable tax must be included in the total transaction amount for which
Authorization is requested. Tax may not be collected separately in cash.
YOU ARE RESPONSIBLE TO SECURE YOUR TERMINALS AND TO INSTITUTE
APPROPRIATE CONTROLS TO PREVENT EMPLOYEES OR OTHERS FROM
SUBMITTING CREDITS AND VOIDS THAT DO NOT REFLECT BONA FIDE
RETURNS OR REIMBURSEMENTS OF PRIOR TRANSACTIONS.
29.3. Cash Back From Purchase. You have the option of offering cash back to your
customers when they make a PIN Debit Card purchase. You may set a minimum and
maximum amount of cash back that you will allow. If you are not now offering this service,
your terminal may require additional programming to begin offering cash back as long as
it is supported by the PIN Debit Network.
29.4. Settlement. Within one Business Day of the original transaction, you must balance
each location to our system for each Business Day that each location is open.
29.5. Adjustments. An adjustment is a transaction that is initiated to correct a Debit Card
transaction that has been processed in error. You will be responsible for all applicable
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adjustment fees that may be charged by a Debit Card network. Some PIN Debit networks
may have established minimum amounts for adjustments.
There are several reasons for adjustments being initiated:
The Cardholder was charged an incorrect amount, either too little or too much.
The Cardholder was charged more than once for the same transaction.
A processing error may have occurred that caused the Cardholder to be charged even
though the transaction did not complete normally at the point of sale.
All parties involved in processing adjustments are regulated by time frames that are specified
in the operating rules of the applicable PIN Debit network, The Electronic Funds Transfer
Act, Regulation E, and other applicable law.
30. Special Provisions Regarding EBT Transactions
If you elect to accept EBT Cards and engage in EBT transactions, the terms and con ditions
of this Section 30 shall apply.
EBT transactions are provided to you by Processor and not by Bank. The Services provided,
transactions processed and other matters contemplated under this Section 30 are subject to
the rest of this Agreement, as applicable, except to the extent the terms of this Section 30
directly conflict with another section of this Agreement, in which case the terms of this
Section 30 will control; provided, however, that Bank is not a party to this Agreement insofar
as it relates to EBT transactions, and Bank is not liable to you in any way with respect to
such Services. For the purposes of this section, the words we, our and us refer only
to the Processor and not to the Bank.
We offer electronic interfaces to EBT networks for the processing, settlement and switching
of EBT transactions initiated through the use of a state-issued EBT card (EBT Card) at
your POS Terminal(s) for the provision of United States Department of Agriculture, Food
and Nutrition Service (FNS), Supplemental Nutrition Assistance Program (SNAP) and
Women, Infants and Children Benefits (WIC Benefits) and/or government delivered Cash
Benefits (Cash Benefits, together with FNS, SNAP and WIC Benefits, collectively are referred
to as the EBT benefits) to EBT benefit recipients (EBT customers), subject to the terms
below.
30.1. Acceptance of EBT Benefits. You agree to accept EBT Cards and provide EBT
benefits to EBT customers through the use of a POS Terminals, PIN pad and printer or
other equipment that meet standards set forth in the EBT Rules (Authorized Terminal)
applicable to such EBT benefits during your normal business hours, in a manner consistent
with your normal business practices and in accordance with the EBT Rules.
The EBT Rules means (i) all procedures that we establish and provide to you from time-
to-time regarding your acceptance of EBT Cards and provision of EBT benefits to EBT
customers; (ii) the Quest Rules, as amended from time-to-time, issued by the National
Automated Clearing House Association and as approved by the Financial Management
Service of the U.S. Treasury Department, as necessary (and any rules that succeed or replace
the Quest Rules); and (iii) other such laws, rules, regulations and procedures that are
applicable to the acceptance of EBT Cards and the provision of EBT benefits by you under
this Section 30, including without limitation, laws pertaining to delivery of services to EBT
customers and EBT customer confidentiality, the federal Civil Rights Act of 1964,
Rehabilitation Act of 1973, Americans with Disabilities Act of 1990, Clean Air Act, Clean
Water Act, Energy Policy and Conservation Act, Immigration Reform and Control Act of
1986, regulations issued by the Department of Agriculture pertaining to Food Stamp
Program, and, any additional procedures specified by the state regarding lost EBT Cards,
forgotten PINs, discrepancies in benefits authorized and similar matters by providing EBT
customers with information such as telephone numbers and addresses of the state or other
appropriate agencies. The Food Stamp Program is the government benefits program
operated under the authority of the Food Stamp Act of 1964.
You will provide EBT benefits to EBT customers, in accordance with the procedures set
forth in the EBT Rules, in the amount authorized through your Authorized Terminal upon
presentation by an EBT customer of an EBT Card and such EBT customers entry of a valid
PIN. If the Authorized Terminal fails to print EBT benefit issuance information as approved
and validated as a legitimate transaction, you will comply with the procedures set forth in
the EBT Rules for authorization of EBT benefits in such instance. You are solely responsible
for your provision of EBT benefits other than in accordance with authorizations timely
received from EBT service provider. You will not resubmit any EBT Card transaction except
as specifically permitted by the EBT Rules and procedures applicable to such EBT Card
transaction. You must provide a receipt for each EBT transaction to the applicable EBT
customer.
You will not accept any EBT Card for any purpose other than providing EBT Benefits,
including without limitation accepting an EBT Card as security for repayment of any EBT
customer obligation to you. In the event of any violation of this provision, you will be
obligated to reimburse the state or us for any EBT benefits unlawfully received by either you
or an EBT customer to the extent permitted by law. Cash should never be dispensed for
FNS, SNAP and WIC Benefits.
30.2. Manual EBT Vouchers. In accordance with the procedures set forth in this Section
30 and the EBT Rules, you will manually accept EBT Cards during periods of time when your
Authorized Terminal is not working or the EBT system in not available; you will manually
provide EBT benefits in the amount authorized through the applicable EBT service provider
to the EBT customers at no cost to the EBT customers upon presentation by an EBT customer
of his/her EBT Card. All manual voucher authorizations must be cleared on your POS
terminal for payment of voucher to be made to you. In addition to any procedures set forth
in the EBT Rules, the following limitations will apply to manual issuance of FS Benefits by
merchant:
i. An authorization number for the amount of the purchase must be received by you from
the applicable EBT service provider while the respective EBT customer is present and
before you provide such EBT customer with any FNS, SNAP and WIC Benefits, or Cash
Benefits, as applicable. You must not attempt to voice authorize a manual EBT
transaction if the EBT customer is not present to sign the voucher. The EBT customer
must sign the voucher. A copy of the voucher should be given to the EBT customer at
the time of authorization and you should retain one copy for your records.
ii. Specified EBT customer, clerk and sales information, including the telephone
authorization number, must be entered properly and legibly on the manual sales draft.
iii. All manual voucher authorizations must be cleared on your Authorized Terminal before
payment of voucher will be made to you. Vouchers must be cleared within 10 Business
Days after the date of applicable voice authorization. Vouchers cannot be cleared by
any manner except by your Authorized Terminal therefore you should never mail
vouchers requesting payment. If a voucher expires before it has been cleared by your
Authorized Terminal for payment, no further action can be taken to obtain payment
for the voucher.
iv. In the event that, due to EBT host failure, EBT benefit availability for an EBT customer
cannot be determined at the time you request authorization, the maximum authorized
manual transaction and benefit encumbrance will be $40.00 or such other state specific
floor limit as set forth in the most current version of the applicable EBT Rules.
v. Except as specifically provided in the applicable EBT Rules, you will not be reimbursed
and will be solely responsible for a manual transaction when you fail to obtain an
authorization number from the applicable EBT service provider as set forth in this
Section 30 or otherwise fail to process the manual transaction in accordance with the
EBT Rules.
vi. If you have not received an authorization number in accordance with paragraph 30.1
above, you may not re-submit a manual sales draft for payment for the same
transaction.
30.3. Acceptance of Cash Benefits. If you agree to accept EBT Cards and to provide
Cash Benefits, you agree to maintain adequate cash on hand to issue EBT service provider
authorized Cash Benefits and will issue such Cash Benefits to EBT customers in the same
manner and to the same extent cash is provided to your other customers. You may not
require, and may not in your advertising suggest, that any EBT customers must purchase
goods or services from you as a condition to receiving Cash Benefits, unless such condition
applies to other customers as well. You may not designate and direct EBT customers to
special checkout lanes restricted to use by EBT customers unless you also designate and
direct other customers to special checkout lanes for Debit Cards or Credit Cards and/or
other payment methods such as checks other than cash.
30.4. Interoperability. If you accept EBT Cards and provide EBT benefits (FNS, SNAP
and WIC Benefits and/or Cash Benefits), you must do so for EBT customers from all states.
If you provide FNS, SNAP and WIC Benefits under this Agreement, you represent and
warrant to us that you are a FNS authorized merchant and are not currently disqualified or
withdrawn from redeeming food stamp coupons or otherwise disqualified or withdrawn
by FNS. You agree to secure and maintain at your own expense all necessary licenses,
permits, franchises, or other authorities required to lawfully effect the issuance and
distribution of EBT benefits under this Agreement, including without limitation, any
applicable franchise tax certificate and non-governmental contractors certificate, and
covenant that you will not accept EBT Cards or provide EBT benefits at any time during
which you are not in compliance with the requirements of any EBT Rules.
30.5. Required Licenses. If you provide FNS, SNAP and WIC Benefits under this
Agreement, you represent and warrant to us that you are a FNS authorized merchant and
are not currently disqualified or withdrawn from redeeming food stamp coupons or
otherwise disqualified or withdrawn by FNS. You agree to secure and maintain at your own
expense all necessary licenses, permits, franchises, or other authorities required to lawfully
effect the issuance and distribution of EBT benefits under this Agreement, including without
limitation, any applicable franchise tax certificate and non-governmental contractors
certificate, and covenant that you will not accept EBT Cards or provide EBT benefits at any
time during which you are not in compliance with the requirements of any EBT Rules.
30.6. Term and Termination. If you are disqualified or withdrawn from the Food Stamp
Program, your authority to issue benefits will be terminated concurrently therewith. Such
disqualification or withdrawal will be deemed a breach of this Agreement with respect to
your authority to issue Cash Benefits and, in the event of such disqualification, we have the
right to immediately terminate the provision of service under this Section 30 or the
Agreement in its entirety. With respect to the issuance of Cash Benefits only, your authority
to issue Cash Benefits may be suspended or terminated immediately at the sole discretion
of us, the state or its EBT service provider, effective upon delivery of a notice of suspension
or termination specifying the reasons for such suspension or termination if there will be (i)
any suspension, injunction, cessation, or termination of the EBT service providers authority
to provide EBT services to the state; (ii) failure by you, upon not less than thirty (30) days
prior written notice, to cure any breach by you of these terms and conditions, including
without limitation, your failure to support the issuance of EBT benefits during your normal
business hours consistent with your normal business practices, your failure to comply with
EBT benefit issuance procedures, your impermissible acceptance of an EBT Card, or your
disqualification or withdrawal from the Food Stamp Program; or (iii) based on a states or
its EBT service providers investigation of the relevant facts, evidence that you or any of
your agents or employees are committing, participating in, or have knowledge of fraud or
theft in connection with the dispensing of EBT benefits. If you fail to cure any breach as set
forth above, you may appeal such suspension of termination to the applicable state for
determination in its sole discretion.
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In the event that your authority to accept benefits is suspended or terminated by a state or
its EBT service provider, and you successfully appeal such suspension or termination to
the state or its EBT service provider, we shall be under no obligation to reinstate the services
previously provided under this Section 30 or the Agreement, as applicable.
The provision of services under this Section 30 shall terminate automatically if our
agreement or our service providers agreement with any applicable states EBT service
provider terminates for any reason.
You will give prompt notice to us if you plan to stop accepting EBT Cards and providing
EBT benefits or if you are unable to comply with the terms of this Section 30.
30.7. Confidentiality of EBT System Information. All information related to EBT
customers and/or the issuance of EBT benefits shall be considered confidential information.
Individually identifiable information relating to an EBT customer or applicant for EBT
benefits will be held confidential and will not be disclosed by you or your directors, officers,
employees or agents, without prior written approval of the applicable state.
You will: (a) implement appropriate measures designed to: (1) ensure the security and
confidentiality of all non-public personal information or materials regarding customers
(NPPI); (2) protect against any anticipated threats or hazards to the security or integrity
of NPPI; (3) protect against unauthorized access to or use of NPPI that could result in
substantial harm or inconvenience to any customer and (4) ensure the proper disposal of
NPPI; and (b) take appropriate actions to address incidents of unauthorized access to NPPI,
including notification to us as soon as possible.
The use of information obtained by you in the performance of your duties under this
Section 30 will be limited to purposes directly connected with such duties.
30.8. EBT Service Marks. You will adequately display any applicable states service Marks
or other licensed marks, including the Quest Marks, and other materials supplied by us
(collectively the Protected Marks) in accordance with the standards set by the applicable
state. You will use the Protected Marks only to indicate that EBT benefits are issued at your
location(s) and will not indicate that we, any state or its EBT service provider endorse your
goods or services. Your right to use such Protected Marks pursuant to this Agreement will
continue only so long as this Section 30 remains in effect or until you are notified by us,
any state or its EBT service provider to cease their use or display. You will not use the Marks
of any EBT service provider without prior written approval from such EBT service provider.
30.9. Miscellaneous.
30.9.1. Errors. You will fully cooperate with us and any other participants in the EBT
system in the resolution of errors and disputes regarding EBT transactions processed
pursuant to this Section 30. You will promptly notify us of any such errors or disputes.
30.9.2. Issuance Records.
i. You agree to make available such informational materials as may be required by the
state, its EBT service provider or any applicable regulations pertaining to the issuance
of Benefits.
ii. You will retain all EBT-related records (including but not limited to manual sales drafts
or vouchers) in the manner required by the EBT Rules or otherwise reasonably
requested by us for three (3) years following the date of the applicable EBT transaction,
or for such additional period as may be required by the EBT Rules. Records involving
matters in litigation will be kept by you for a period of not less than three (3) years
following the termination of the applicable litigation. Copies of any documents in media
other than paper (e.g., microfilm, etc.) related to this Section 30 may be substituted for
the originals to the extent permitted under applicable EBT Rules and provided that
legible paper copies can be reproduced within a reasonable time after such records are
requested.
iii. You will make all EBT-related records available for audit upon request to representatives
of the state or its EBT service provider, or other authorized state or federal government
agency during normal business hours.
iv. To assure compliance with this Agreement, including without limitation this Section 30,
the state, its EBT service provider, or other authorized state or federal government
agency, will at all times, upon advance notice except in the case of suspected fraud or
other similar activity, have the right to enter, during normal business hours, your
premises to inspect or evaluate any work performed under this Agreement, or to obtain
any other information required to be provided by you or otherwise related to this
Agreement.
30.9.3. Training. You will train and permit your employees to receive training regarding
the issuance of EBT benefits.
30.9.4. Amendments. Notwithstanding anything to the contrary in this Agreement, if
any of these terms and conditions are found to conflict with the EBT Rules or federal or state
policy, these terms and conditions are subject to reasonable amendment by us, a state or its
EBT service provider to address such conflict upon written notice to you and such
amendment shall become effective upon such notice.
30.9.5. State Action. Nothing contained herein shall preclude a state from commencing
appropriate administrative or legal action against you or for making any referral for such
action to any appropriate federal, state, or local agency.
30.9.6. Reference to State. Any references to state herein will mean the state in which
you accept EBT benefits pursuant to this Section 30. If you accept EBT benefit in more than
one state pursuant this Section 30, then the reference will mean each such state severally,
not jointly.
30.9.7. Third Party Beneficiaries. These terms and conditions, do not create, and will
not be construed as creating, any rights enforceable by any person not having any rights
directly under this Agreement, except that the state and its Issuer, as defined in the Quest
Rules, will be deemed third party beneficiaries of the representations, warranties, covenants
and agreements made by you under the Agreement, including without limitation this
Section 30.
31. Special Provisions Regarding Wireless Service
If you elect to purchase the Wireless Services from us as indicated on the Application, then
the following terms and conditions of this Section 31, referred to as the Wireless Services
Terms, shall apply. THE WIRELESS SERVICES ARE BEING SOLD TO YOU FOR USE IN
BUSINESS AND ARE NOT BEING SOLD TO YOU FOR HOUSEHOLD OR PERSONAL
USE. Sale of Wireless Services is made by Processor and not the Bank. The Services
provided, transactions processed and other matters contemplated under this Section 31 are
subject to the rest of this Agreement, as applicable, except to the extent the terms of this
Section 31 directly conflict with another section of this Agreement, in which case the terms
of this Section 31 will control; provided, however, that Bank is not a party to this Agreement
insofar as it relates to Wireless Services, and Bank is not liable to you in any way with
respect to such services. For the purposes of this section, the words we, our and us
refer only to the Processor and not to the Bank.
Through one or more third party vendors (Wireless Vendor(s)) selected by us in our sole
discretion, we have acquired the right to resell certain wireless data communication services
that use radio base stations and switching offered by certain cellular telephone and data
networks throughout the country (the Wireless Networks) in order to allow you to
capture and transmit to Processor and Bank certain wireless Card Authorization
transactions or to transmit other communications to our system (Wireless Services).
If you elect to purchase voice and/or data services directly from a third party provider for
use with the Wireless Equipment as permitted by Processor, you acknowledge and agree
that this Agreement does not address or govern those voice and/or data services or your
relationship with that third party provider, and Servicers are in no way responsible for
providing, maintaining, servicing or supporting such third party voice and/or data services.
31.1. Purchase of Wireless Services. The prices that you will pay for the Wireless
Services are set forth on the Application. In connection with your purchase of Wireless
Services, you will receive access to a certain Wireless Network(s).
Licenses. You agree to obtain any and all licenses, permits or other authorizations required
by the Federal Communications Commission (FCC) or any other regulatory authority,
if any, for the lawful operation of Wireless Equipment used by you in connection with
your receipt of Wireless Services. You will promptly provide us with all such information
as we may reasonably request with respect to matters relating to the rules and regulations
of the FCC.
Wireless Equipment. You agree that in order to access the Wireless Services, you must use
wireless POS Terminals and accessories approved for use with the Wireless Services by
Processor from time to time in its sole discretion (the Wireless Equipment). If Wireless
Equipment is purchased by you from us as indicated on the Application, then the terms
of this Agreement apply to your use of such Wireless Equipment.
Improvements/General Administration. We and the Wireless Vendor(s) reserve the right
to make changes, from time to time, in the configuration of the Wireless Services, Wireless
Networks, Wireless Equipment, Wireless Software, rules of operation, accessibility
periods, identification procedures, type and location of equipment, allocation and
quantity of resources utilized, programming languages, administrative and operational
algorithms and designation of the control center serving you at the particular address. In
addition, we reserve the right to schedule, from time to time, interruptions of service for
maintenance activities.
Suspension of Wireless Services. We or a Wireless Network may suspend the Wireless
Services to: (a) prevent damages to, or degradation of, our or a Wireless Networks network
integrity that may be caused by a third party; (b) comply with any law, regulation, court
order or other governmental request which requires immediate action; or (c) otherwise
protect us or a Wireless Network from potential legal liability. To the extent commercially
reasonable, we shall give notice to you before suspending the Wireless Services to you. If
not commercially reasonable to give prior notice, we will give notice to you as soon as
commercially practicable thereafter. Availability of the Wireless Services may vary due to
events beyond the control of us or our Wireless Vendors. In the event of a suspension of
the Wireless Services, we or the applicable Wireless Vendor will promptly restore the
Wireless Services after the event giving rise to the suspension has been resolved.
31.2. Software Licenses. Processor hereby grants to you a non-exclusive, non-
transferable, revocable limited sublicense to use any wireless software (including any
documentation relating to or describing the wireless software) downloaded by you or your
designee from Processors systems onto the Wireless Equipment in connection with your
purchase and use of the Wireless Services in accordance with the terms of this Agreement,
including this Section 31. Anything in this Agreement to the contrary notwithstanding, we
or certain third parties retain all ownership and copyright interest in and to all Wireless
Software, related documentation, technology, know-how and processes embodied in or
provided in connection with the Wireless Software, and you shall have only a nonexclusive,
non-transferable license to use the Wireless Software in your operation of the Wireless
Equipment for the purposes set forth in this Agreement. Nothing in this Agreement confers
any title or ownership of any such Wireless Software to you or shall be construed as a sale
of any rights in any such Wireless Software to you. You agree to accept, agree to and be
bound by all applicable terms and conditions of use and other license terms applicable to
AGL1704(ia)
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such Wireless Software. You shall not reverse engineer, disassemble or decompile the
Wireless Software. You shall not give any Person access to the Wireless Software without our
prior written consent. Your obligations under this Section 31.2 shall survive the termination
of this Agreement. You acknowledge that the only right you obtain to the Wireless Software
is the right to use the Wireless Software in accordance with the terms in this Section.
31.3. Limitation on Liability. We shall have no liability for any warranties by any party
with respect to uninterrupted Wireless Services, as set forth in Section 31.10, or for any
Persons unauthorized access to Clients data transmitted through either the Wireless
Equipment or Wireless Services (including the Wireless Software), or Wireless Networks,
regardless of the form of action (whether in contract, tort (including negligence), strict
liability or otherwise). The foregoing notwithstanding, for any other liability arising out of
or in any way connected with these Wireless Services terms, including liability resulting
solely from loss or damage caused by partial or total failure, delay or nonperformance of the
Wireless Services or relating to or arising from your use of or inability to use the Wireless
Services, Processors, Banks, and Wireless Vendor(s) liability shall be limited to your direct
damages, if any, and, in any event, shall not exceed the lesser of the amount paid by you
for the particular Wireless Services during any period of failure, delay, or nonperformance
of the Wireless Services or $50,000.00. In no event shall Servicers, Wireless Vendor(s) or
our respective Affiliates be liable for any indirect incidental, special, consequential or
punitive damages. The remedies available to you under these Wireless Services Terms will
be your sole and exclusive remedies with respect to the Wireless Services.
31.4. Indemnification. In addition to any other indemnifications as set forth in this
Agreement, you will indemnify and hold Servicers, Wireless Vendor(s) and our respective
officers, directors, employees, and Affiliates harmless from and against any and all losses,
claims, liabilities, damages, costs or expenses arising from or related to: (a) the purchase,
delivery, acceptance, rejection, ownership, possession, use condition, liens against, or return
of the Wireless Equipment or the Wireless Equipment (including the Wireless Software),
as applicable; (b) your negligent acts or omissions; (c) any breach by you of any of your
obligations under this Section 31; or (d) any Persons unauthorized access to Clients data
and/or unauthorized financial activity occurring on your Merchant Account Number
hereunder, except to the extent any losses, liabilities, damages or expenses result from our
gross negligence or willful misconduct.
31.5. Confidentiality. All information or materials which could reasonably be considered
confidential or competitively sensitive that you access from or relate to either Wireless
Vendor(s) or Servicers related to the subject matter of these Wireless Services Terms will be
considered confidential information. You will safeguard our confidential information with
at least the same degree of care and security that you use for your confidential information,
but not less than reasonable care.
31.6. Termination. In addition to any other provision in this Agreement, the Wireless
Services being provided under this Section 31 may terminate:
a) Immediately upon termination of the agreement between us (or our Affiliates) and
Wireless Vendor(s), provided that we will notify you promptly upon our notice or
knowledge of termination of such agreement, provided further that if Wireless
Vendor(s) loses its authority to operate less than all of the Wireless Services or if the
suspension of any authority or non-renewal of any license relates to less than all of the
Wireless Services, then these Wireless Services Terms will terminate only as to the
portion of the Wireless Services affected by such loss of authority, suspension or non-
renewal; or
b) Immediately if either we or our Affiliates or Wireless Vendor(s) are prevented from
providing the Wireless Services by any law, regulation, requirement, ruling or notice
issued in any form whatsoever by judicial or governmental authority (including without
limitation the FCC).
31.7. Effect of Termination. Upon termination of these Wireless Services Terms for any
reason, you will immediately pay to us all fees due and owing to us hereunder. If these
Wireless Services terms terminate due to a termination of the agreement between us or our
Affiliates and Wireless Vendor(s), then we may, in our sole discretion, continue to provide
the Wireless Services through Wireless Vendor(s) to you for a period of time to be
determined as long as you continue to make timely payment of fees due under these
Wireless Services Terms.
31.8. Third Party Beneficiaries. Wireless Vendor(s) are third party beneficiaries of these
Wireless Services Terms and may enforce its provisions as if a party hereto.
31.9. Other Applicable Provisions. You also agree to be bound by all other terms and
conditions of this Agreement.
31.10. Disclaimer. Wireless Services use radio transmissions, so Wireless Services cant be
provided unless your Wireless Equipment is in the range of one of the available Wireless
Networks transmission sites and there is sufficient network capacity available at that
moment. There are places, particularly in remote areas, with no service at all. Weather,
topography, buildings, your Wireless Equipment, and other conditions we dont control
may also cause failed transmissions or other problems. PROCESSOR, BANK, AND
WIRELESS VENDOR(S) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES
RELATING TO WIRELESS SERVICES. WE CANNOT PROMISE UNINTERRUPTED OR
ERROR-FREE WIRELESS SERVICE AND DO NOT AUTHORIZE ANYONE TO MAKE
ANY WARRANTIES ON OUR BEHALF..
32. Special Provisions Regarding TransArmor
SM
Services
If you elect to utilize the TransArmor Service, the following additional terms and conditions
of this Section 32 shall apply.
The TransArmor Service is provided to you by Processor and not Bank. Bank is not a party
to this Agreement insofar as it applies to the TransArmor Service, and Bank is not liable to
you in any way with respect to such services. For the purposes of this section, the words
we, our and us refer only to the Processor and not the Bank.
The TransArmor Service provided, transactions processed and other matters contemplated
under this Section 32 are subject to the rest of this Agreement, as applicable, except to the
extent the terms of this Section 32 directly conflict with another provision of this
Agreement, in which case the terms of this Section 32 will control.
32.1. Definitions. Capitalized terms used in this Section 32 shall have the meaning given
as defined in this Section or as defined in the Glossary or elsewhere in this Agreement.
Multi-PayToken means the option to support businesses that need to submit a financial
transaction in a card-not-present situation. These tokens are unique to each merchant that
uses them and are stored in place of the primary account number (PAN). With these tokens,
merchants can initiate new or recurring payments within their own environment instead of
using the original card number.
Multi-Pay Token allows a Token Registration process a non-financial transaction to
request a token to be placed in their payment page or e-wallet for future or recurring
payments. It is common for eCommerce merchants to ask their customers to register by
providing profile information such as name, address, and phone number to the merchant
website before or upon checkout.
Registered PAN means the processing of creating a Client specific Token for a PAN.
Token/Tokenization means a form of data substitution replacing sensitive payment card
values with non-sensitive token, or random-number, values. Post-authorization transactions
are handled via Processors SafeProxy tokenization technology, which returns a token with
the transactions authorization to the merchant. Tokens are shared universally with other
merchants and cannot be used to initiate a financial transaction.
Token Request means your ability to obtain a Muti-Pay Token for credit card information
only without an immediate authorization required which permits you to store a Multi-Pay
Token for future transactions involving its customer.
TransArmor Service means those services described below and may be either
TransArmor VeriFone Edition Service or TransArmor Base Service as described below.
32.2. Grant of License. Processor grants to you a non-transferable, non-assignable, non-
exclusive, revocable sub-license during the term of this Section 32 to use the TransArmor
Service and the TransArmor Service Marks (as identified in the TransArmor Rules and
Procedures) in the United States in accordance with this Section 32, including without
limitation the TransArmor Rules and Procedures. Any rights with respect to the TransArmor
Service not expressly granted by Processor in this Section 32 are deemed withheld.
32.3. Services. The TransArmor Service applies only to Card transactions sent from you
to us for authorization and settlement pursuant to the Agreement, and specifically excludes
electronic check transactions. Processor will provide an encryption key to you to be used
to encrypt (make unreadable) Card data during transport of the authorization request from
your point of sale to Processors systems. During the period when the transaction is being
transmitted to Processor for authorization processing, all historical transaction data,
including Card number and full magnetic stripe data (track data and expiration date), will
be encrypted. Processor will then generate or retrieve a unique, randomly generated token
assigned to the Card number that will be returned to you in the authorization response
(the Token). You must select one of the two options for the TransArmor Service as
indicated on the Merchant Processing Application:
TransArmor VeriFone(VF) Edition. This service option is limited to those clients
which have an eligible VeriFone point of sale (POS) device and desire the software or
hardware based encryption and Tokenization to be activated through the VeriFone device.
TransArmor Base Service. This service option provides software based encryption
and Tokenization that is available to clients to integrate into their POS or the point of sale
device.
32.4. Responsibilities of Client. You are responsible to comply with the following
regarding your use of the TransArmor Service:
a) You are required to comply with the Card Organization Rules, including taking all steps
required to comply with the Payment Card Industry Data Security Standards (PCI DSS).
You must ensure that all third parties and software use by you in connection with your
payment processing are compliant with PCI DSS. Use of the TransArmor Service will
not, on its own, cause you to be compliant or eliminate your obligations to comply
with PCI DSS or any other Card Organization Rule. You must demonstrate and maintain
your current PCI DSS compliance certification. Compliance must be validated either by
a Qualified Security Assessor (QSA) with corresponding Report on Compliance (ROC)
or by successful completion of the applicable PCI DSS Self-Assessment Questionnaire
(SAQ) or Report on Compliance (ROC), as applicable, and if applicable to your
business, passing quarterly network scans performed by an Approved Scan Vendor, all
in accordance with Card Organization Rules and PCI DSS.
b) Use of the TransArmor Service is not a guarantee against an unauthorized breach of
your point of sale systems or any facility where you process and/or store transaction data
(collectively, Merchant Systems).
AGL1704(ia)
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c) You must deploy the TransArmor Service (including implementing any upgrades to
such service within a commercially reasonable period of time after receipt of such
upgrades) throughout your Merchant Systems including replacing existing Card
numbers on your Merchant Systems with Tokens. Full Card numbers must never be
retained, whether in electronic form or hard copy.
d) You must use the Token in lieu of the Card number for ALL activities subsequent to
receipt of the authorization response associated with the transaction, including without
limitation, settlement processing, retrieval processing, chargeback and adjustment
processing and transaction reviews.
e) Any POS device, gateway and/or VAR you use in connection with the TransArmor
Service must be certified by FDMS for use with the TransArmor Service.
f) If you send or receive batch files containing completed Card transaction information
to/from Processor, you must use the service provided by Processor to enable such files
to contain only Tokens or truncated information.
g) You must use truncated report viewing and data extract creation within reporting tools
provided by Processor.
h) You are required to follow rules or procedures we may provide to you from time to time
related to your use of the TransArmor Service (TransArmor Rules and Procedures).
We will provide you with advance written notice of any such rules or procedures or
changes to such rules or procedures.
i) You have no right, title or interest in or to the TransArmor Service, any related software,
materials or documentation, or any derivative works thereof, and nothing in this
Agreement assigns or transfers any such right, title or interest to you. You shall not take
any action inconsistent with the stated title and ownership in this Section 32. You will
not file any action, in any forum that challenges the ownership of the TransArmor
Service, any related software, materials or documentation. Failure to comply with this
provision will constitute a material breach of this Agreement. We have the right to
immediately terminate this Section 32 and your access to and use of the TransArmor
Service in the event of a challenge by you. No additional rights are granted by
implication, estoppel or otherwise.
j) You will not: (i) distribute, lease, license, sublicense or otherwise disseminate the
TransArmor Service or any portion of it to any third party; (ii) modify, enhance,
translate, supplement, create derivative works from, reverse engineer, decompile or
otherwise reduce to human-readable form the TransArmor Service or any portion of it;
or (iii) sell, license or otherwise distribute the TransArmor Service or any portion of it;
(iv) make any copies, or permit any copying, of the TransArmor Service or any portion
of it; or (v) use any portion of the TransArmor Service as a standalone program or in
any way independently from the TransArmor Service. If any portion of the TransArmor
Service contains any copyright notice or any other legend denoting the proprietary
interest of Processor or any third party, you will not remove, alter, modify, relocate or
erase such notice or legend on such item.
k) You will only use the TransArmor Service for your internal business purposes in a
manner consistent with this Agreement.
l) You will use only unaltered version(s) of the TransArmor Service and will not use,
operate or combine the TransArmor Service or any related software, materials or
documentation, or any derivative works thereof with other products, materials or
services in a manner inconsistent with the uses contemplated in this Section 32.
m) You will promptly notify us of a breach of any terms of this Section 32.
32.5. Modification and Termination. Unless prohibited by applicable law, we may
modify this Section 32 by providing written notice of such modifications to you. You may
choose not to accept the requirements of any such modifications by notifying us in writing
within thirty (30) days after receiving such notice that you are terminating this Section 32.
32.6. Fees. You shall pay Processor the fees for TransArmor Service as set forth on the
Application.
32.7. TransArmor Limited Warranty. Processor warrants that the Token returned to
you, as a result of using the TransArmor Service, cannot be used to initiate a financial sale
transaction by an unauthorized entity/person outside the Merchant Systems. This warranty
by Processor is referred to herein as the Limited Warranty and is subject to the terms and
conditions set forth in this Section 32. To be eligible for the Limited Warranty, you must
maintain a processing relationship with Processor and be in compliance with all the terms
of the Agreement, including this Section 32, and any other agreement relating to Cards
eligible for the TransArmor Service. Subject to the terms, conditions and limitations set
forth in the Agreement, including the limitation of liability provisions, Processor agrees to
indemnify and hold you harmless from direct damages, including third party claims,
resulting from Processors breach of the Limited Warranty. The express remedy for
Processors breach of the Limited Warranty set forth in this paragraph constitutes Processors
entire liability and your sole and exclusive remedy for Processors breach of the Limited
Warranty. The Limited Warranty is void if (i) you use the TransArmor Service in a manner
not contemplated by, or in violation of, the Agreement, including this Section 32, or any
other agreement relating to Cards eligible for the TransArmor Service or (ii) you are grossly
negligent or engage in intentional misconduct.
32.8. TransArmor Disclaimer. IN ADDITION TO THE DISCLAIMERS SET FORTH IN
THE AGREEMENT, THE FOLLOWING DISCLAIMER APPLIES TO THE TRANSARMOR
SERVICE: EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 32, PROCESSOR
MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR
IMPLIED WITH REGARD TO THE TRANSARMOR SERVICE INCLUDING THE
UNINTERRUPTED OR ERROR-FREE OPERATION OF THE TRANSARMOR SERVICE.
33. Special Provisions Regarding
Global Gateway e4 Services
If you elect to utilize the Global Gateway e4 Services, the following additional terms and
conditions of this Section 33 shall apply.
The Global Gateway e4 Services are provided to you by Processor and not Bank. Bank is not
a party to this Agreement insofar as it applies to the Global Gateway e4 Services, and Bank
is not liable to you in any way with respect to such services. For the purposes of this Section
33, the words we, our and us refer only to the Processor and not the Bank.
The Global Gateway e4 Services provided and other matters contemplated under this
Section 33 are subject to the rest of this Agreement, as applicable, except to the extent the
terms of this Section 33 directly conflict with another provision of this Agreement, in which
case the terms of this Section 33 will control.
33.1. Definitions. Capitalized terms used in this Section 33 shall have the meaning given
as defined in this Section or as defined in the Glossary or elsewhere in this Agreement.
Claimmeans any arbitration award, assessment, charge, citation, claim, damage, demand,
directive, expense, fine, interest, joint or several liability, lawsuit or other litigation, notice,
infringement or misappropriation of any Intellectual Property Right or violation of any law,
and any consequential, indirect, special, incidental or punitive damages and any attorneys
fees and expenses incurred in connection therewith. For purposes of the foregoing Claim
definition, a Claim shall be considered to exist even though it may be conditional,
contingent, indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated,
or unmatured.
Confidential Information means the Global Gateway e4 Services, Documentation,
operational procedures, the terms and conditions of this Section 33 (including any schedule,
exhibit or addendum), pricing or other proprietary business information, and any other
information provided to you by us, whether or not such information is marked as
confidential; provided, however, that Confidential Information will not include information
that: (a) is or becomes generally known to the public through no fault of yours; (b) was
lawfully obtained by you from a third party free of any obligation of confidentiality; (c) was
already in your lawful possession prior to receipt thereof, directly or indirectly, from the
disclosing party; (d) is independently developed by you without the use of the Confidential
Information; (e) is disclosed with our express written permission; or (f) is disclosed
pursuant to a lawful court or governmental order, provided you provide us with prompt
prior written notice of any proceeding that may involve such an order, and an opportunity
to contest any disclosure at such proceeding.
Customer means your customer who would like to provide payment for your goods or
Services.
Documentation means any and all manuals and other written materials in any form
provided for use with the Software, as amended by us from time to time, the terms of which
are incorporated in this Section 33 as if fully set forth herein.
Global Gateway e4 Services means the Global Gateway e4, payment processing services
offered through the Global Gateway e4 (including, but, not limited to authorization of
transactions, routing transactions to the appropriate payment processing network or third
party service provider, transaction responses (approved, declined), and the detailed
reporting of those transactions) and Software, as applicable. Global Gateway e4 Services do
not include alternative payment products or services that are supported by or may be
accessed through the Global Gateway e4 Services and with respect to which you enter into
an agreement: (i) with us(which agreement may consist of an amendment to this Agreement
or specific terms in this Agreement expressly covering such alternative payment products
or services)(such alternative payment products or services, Separate Products),or(ii) a
third party service provider regarding your participation in such alternative payment
products or services (together with Separate Products, the Excluded Products).
Intellectual Property Rights means any and all patents, copyrights, trademarks, trade
secrets, service marks, and any other intellectual property rights, and any applications for
any of the foregoing, in all countries in the world.
Merchant Account means an account set up for a merchant that requires a card processor,
bank, merchant i.d., terminal i.d., merchant account number, or otherwise named unique
merchant number. Multiple physical or virtual storefronts that process transactions under
the same unique merchant number shall be deemed as one (1) Merchant Account.
Operational Procedures means our published policies and procedures contained in the
various documents provided to you, as amended from time to time, concerning the Services
provided pursuant to this Addendum, the terms of which are incorporated in this
Addendum as if fully set forth herein.
Platform means our operated, or approved, electronic payment platform(s) and/or
gateway(s) through which the payment services contemplated under this Section 33 are
provided.
Software means all protocols, software components and other interfaces and software
provided by us to you pursuant to this Section 32, and any and all Updates to such Software.
Updates means an embodiment of the Software that provides enhancements and/or
improvements.
Your Systems means any web site(s) or interface(s) to the Global Gateway e4 Services that
are operated or maintained by you or on your behalf through which transactions are
submitted for processing, and all of your other associated systems.
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33.2. Fees. Client shall pay Processor the fees for the Global Gateway e4 Services as set
forth on the Application. A separate account with us for Global Gateway e4 Services shall
be required for each separate Merchant Account held by you.
33.3. Term; Termination. The Global Gateway e4 Services shall commence as of the
effective date of this Agreement and shall remain in effect until terminated by either party
as provided herein. Either party may terminate these Services upon giving the other party
at least thirty (30) days prior written notice. We may suspend or terminate your access to
Global Gateway e4 without prior notice, with or without cause. Regardless of the reason for
termination, you shall be responsible for the payment of all fees due up to and including
the effective date of termination.
33.4. License Grant.
33.4.1. License. Subject to the terms and conditions of this Agreement, Processor grants
to you a royalty free, non-exclusive, nontransferable limited license to use the Global
Gateway e4 Services, during the term of this Agreement for the sole and limited purpose of
submitting payment transactions to us for processing, and otherwise using our Global
Gateway e4 Services as set forth herein.
33.4.2. Documentation License. Subject to the terms and conditions of this Agreement,
Processor grants to you, and you hereby accept, a royalty free, non-exclusive, non-
transferable limited license, without right of sublicense, to use the Documentation during
the term of this Agreement for the sole and limited purpose of supporting your use of the
Software and Global Gateway e4. You shall strictly follow all Documentation provided to
you, as it may be amended from time to time by us, in our discretion. To the extent that
there is any conflict between the Documentation and the terms of this Agreement, the terms
of this Section 33 shall govern and control.
33.4.3. Use Restrictions. You shall not, and shall not cause or permit any third party to:
(i) use the Software in any way, other than in accordance with this Agreement, the
Documentation or as otherwise instructed by us in writing; (ii) use the Software or
Documentation, either directly or indirectly, to develop any product or service that
competes with the products and services provided under this Section 33; (iii) disassemble,
decompile, decrypt, extract, reverse engineer or modify the Software, or otherwise apply any
procedure or process to the Software in order to ascertain, derive, and/or appropriate for any
reason or purpose, the source code or source listings for the Software or any algorithm,
process, procedure or other information contained in the Software, except as otherwise
specifically authorized in accordance with this Section 33; (iv) provide the Software or
Documentation to any third party, other than to your authorized employees and contractors
who are subject to a written confidentiality agreement, the terms of which are no less
restrictive than the confidentiality provisions of this Section 33; (v) make any copies of the
Software or Documentation, except as is incidental to the purposes of this Section 33, or
for archival purposes (any copies made hereunder shall contain all appropriate proprietary
notices); (vi) rent, lease, assign, sublicense, transfer, distribute, allow access to, or timeshare
the Software or Documentation; (vii) circumvent or attempt to circumvent any applicable
security measures of the Software; (ix) attempt to access or actually access portions of
Global Gateway e4 Services not authorized for your use; or (x) use the Global Gateway e4
Services or documentation for any unlawful purpose.
33.4.4. Updates. From time to time we may, at our discretion, release Updates. In the
event we notify you of any such Update, you shall integrate and install such Update into
your Systems within thirty (30) days of your receipt of such notice. You acknowledge that
failure to install Updates in a timely fashion may impair the functionality of the Platform
or any of our Services provided hereunder. We will have no liability for your failure to
properly install the most current version of the Global Gateway e4 Services or any Update,
and we will have no obligation to provide support or services for any outdated versions.
33.4.5. Licensors. The licenses granted hereunder may be subject to other licenses
currently held by us. Should any license held by us to certain technology or software be
terminated or suspended, the corresponding license(s) granted to you hereunder may also
be terminated or suspended in our sole and absolute discretion. You acknowledge and agree
to such potential termination or suspension and hereby waive any and all damages, whether
actual, incidental or consequential resulting therefrom.
33.4.6. Export Compliance. You agree not to export or re-export the Global Gateway e4
Services or any underlying information or technology except in full compliance with all
applicable laws and regulations. In particular, but without limitation, none of the Global
Gateway e4 Services or underlying information or technology may be downloaded or
otherwise exported or re-exported (i) to any country to which the United States has
embargoed goods (or any national or resident thereof); (ii) to anyone on the United States
Treasury Departments list of Specially Designated Nationals or the United States Commerce
Departments Table of Deny Orders; or (iii) in any manner not in full compliance with the
requirements of the United States Bureau of Industry and Security and all applicable Export
Administration Regulations. If you have rightfully obtained the Global Gateway e4 Services
outside of the United States, you agree not to re-export the Global Gateway e4 Services
except as permitted by the laws and regulations of the United States and the laws and
regulations of the jurisdiction in which you obtained the Global Gateway e4 Services. You
warrant that you are not located in, under the control of, or a national or resident of any
such country or on any such list.
33.4.7. Federal Acquisition Regulations. If you are acquiring the Global Gateway e4
Services on behalf of any part of the United States Government (the Government), the
following provisions apply: Any use, duplication, or disclosure by the Government is
subject to the restrictions set forth in subparagraphs (a) through (d) of the Commercial
Computer Software-Restricted Rights clause at FAR 52.227-19 when applicable, or in
subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. We are the
contractor/manufacturer, with the address set forth below. Any use, modification,
reproduction, release, performance, display or disclosure of the Global Gateway e4 Services
and/or the accompanying documentation by the Government or any of its agencies shall be
governed solely by the terms of this Addendum and shall be prohibited except to the extent
expressly permitted by the terms of this Section 33.
33.4.8. Return/Destruction. Upon termination or expiration of the Global Gateway e4
Services, all licenses granted hereunder shall immediately terminate, and within five (5)
days thereof, you shall either return to us or destroy the Global Gateway e4 Services and
the Documentation, and shall so certify to us in writing.
33.4.9. No other Licenses. Except as expressly provided above, no license for any patents,
copyrights, trademarks, trade secrets or any other intellectual property rights, express or
implied, are granted hereunder.
33.4.10. Use of Transaction Data. As permitted by applicable law and regulations, we
reserve the right to copy and distribute to third parties any information associated with
your use of the Global Gateway e4 Services or your activities on Global Gateway e4.
33.5. Platform Matters
33.5.1. Integration with Your Systems. While we provide Global Gateway e4 Services
to you, you acknowledge that the Global Gateway e4 Services itself is insufficient to allow
your Systems to function with the Platform. Programming, development and maintenance
of your Systems and their functionality are your sole responsibility. You have the sole
responsibility to select and employ any competent programming agent(s) to accomplish
the programming required to make your Systems function correctly with the Platform and
the payment services contemplated hereunder (Integration). You shall be responsible for
all technical support for your Systems and Integration related issues. You agree that you will
use commercially reasonable efforts to complete the Integration as soon as possible. You will
be responsible for all of your own development and implementation costs associated with
such Integration. Notwithstanding any other provision of this Section 33, you acknowledge
that unless and until you complete the Integration, no services need be provided by us to
you pursuant to Section, except as otherwise specifically provided in Section 33.5.2 below.
In addition, you acknowledge and agree that, even if you have completed Integration, if
you have not entered into a valid merchant processing agreement with an authorized bank
card processor, you cannot receive payment processing services through Global Gateway e4.
33.5.2. Set-Up Assistance Services. Subject to Section 33.5.1 above, upon your request
to us, and upon payment of any applicable fees, we will provide you with set-up services
to assist with the Integration.
33.5.3. Shut Downs. We reserve the right, from time to time, without prior notice, to shut
down and restart the Platform for maintenance and/or software upgrades for reasonable
time periods of one minute or more.
33.5.4. Orders by Customers. You are solely responsible for accepting, processing, and
filling any orders for purchases by your Customers, and for handling any inquiries arising
therefrom. You shall use the highest standards in the industry in responding to complaints
by Customers. We are not responsible or liable for any unauthorized access to your data or
your Systems by any means or device.
33.6. Security of Information. We will use commercially reasonable efforts to maintain
the security of the Global Gateway e4 Services and the Platform. You will use commercially
reasonable efforts to maintain the security of your Systems. Such steps by you will be taken
at your sole cost and expense, and shall include, without limitation: (i) creating firewalls
to protect against unauthorized access to your Systems by your employees, contractors,
Customers, or by any other person; and (ii) implementing reasonable protective techniques
suggested by us. You further agree that you will be bound by and comply with all of our and
all Card Organization security rules and regulations as they now exist or as each may be
amended or supplemented from time to time. Notwithstanding the foregoing, the parties
recognize that there is no guarantee or absolute security of information that is
communicated over the Internet.
33. 7. Privacy. We have adopted an online Privacy Statement for the Global Gateway e4
Services to inform individuals as to our online collection and use of personal information.
You agree that, during the term of this Agreement, you will adequately communicate and
comply with an appropriate privacy policy explaining your online collection and use of the
personal information of your Customers. Unless required by law, Card Organization Rules,
or done pursuant to this Agreement, you shall not, under any circumstances, sell, purchase,
provide, or otherwise disclose any customers account information, transaction information,
or other personal information to any third party. You shall store all data securely. We may
advise potential users of the services that we have a relationship with you.
33.8. Audit Rights. Upon notice to you, we may audit your usage, records and security of
the Global Gateway e4 Services, your Customers payment processing information, and the
services provided hereunder to ensure (i) that you are using the Global Gateway e4 Services
and the services in full compliance with the provisions of this Section 33; (ii) that all
applicable fees have been paid; (iii) that you are adhering to your Privacy Policy; and; (iv)
that you are in full compliance with all applicable laws, regulations and rules (including but
not limited to Card Organization Rules). Any such audit shall be conducted during regular
business hours at your offices and shall not interfere unreasonably with your business.
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33.9. Indemnification. You shall indemnify, defend, and hold us, our subsidiaries and
affiliates and our and their officers, directors, employees, shareholders, agents and attorneys
from any Claim(s) arising from the conduct of your business, any transactions submitted
through Global Gateway e4 hereunder for payment processing, any false or inaccurate
representation made by you or the negligence, fraud, dishonesty or willful behavior of any
of your employees or agents, or from your failure to strictly comply, in whole or in part, with
any: (i) terms and conditions pursuant to this Agreement and any addenda hereto or
Documentation; or (ii) applicable law, regulations or Card Organization Rules. Upon written
notice from us to you, you shall immediately undertake the defense of such Claim by
representatives of your own choosing, subject to our reasonable approval.
33.10. Limitation of Liability.
33.10.1. Processor is not liable for the merit and legitimacy of the orders forwarded by
you. All liability for validity of orders remains with you. We are not responsible for any
data entry errors, Customer misrepresentations, or reporting errors resulting from your
actions. We shall not be liable to you or your Customer for the accuracy of the information
provided by Global Gateway e4 or our Services.
33.10.2. In no event shall we be liable to you, or to any other person or entity, under this
Section 33, or otherwise, for any punitive, exemplary, special, incidental or consequential
damages, including, without limitation, any loss or injury to earnings, profits or goodwill.
33.10.3. Notwithstanding any provision in this Agreement to the contrary, in no event shall
our liability under this Section 33 for all Claims arising under, or related to, this Section 33
exceed, in the aggregate (inclusive of any and all Claims made by you against us, whether
related or unrelated), the lesser of: (i) the total amount of fees paid by you for the our
Services during the 12-month period immediately preceding the date the event giving rise
to such Claim(s) occurred; or (ii) $50,000.00.
33.10.4. Notwithstanding provisions set forth herein, we will not be liable for any Claims
under this Agreement arising directly or indirectly from or otherwise concerning: (a) any
termination, suspension, delay or disruption of service (including billing for a service) by
the Internet, any common carrier or any third party service provider; (b) any failure,
disruption or malfunction of the Global Gateway e4 Services, the services provided
hereunder or the Internet, or any communications network, facility or equipment beyond
our reasonable control, whether or not attributable to one or more common carriers or
third party service providers; (c) any failed attempts by you or your Customers to access
any Systems or to complete processing transactions; or (d) any failure to transmit, obtain
or collect data from Customers or for human, machine or software errors or faulty or your
or your Customers erroneous input. Except as expressly agreed to by us in writing with
respect to any Separate Product, we are not liable for any Excluded Products.
33.11. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT
THE USE OF THE GLOBAL GATEWAY E4 SERVICES AND DOCUMENTATION ARE AT
YOUR SOLE RISK WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AND NO IMPLIED AT LAW WARRANTY SHALL ARISE FROM THIS SECTION,
GLOBAL GATEWAY E4 SERVICES, DOCUMENTATION, OUR PROCEDURES, OTHER
SERVICES PROVIDED OR PERFORMED BY US HEREUNDER, INCLUDING, WITHOUT
LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF NONINTERFERENCE OR
NON-INFRINGEMENT; OR (C) ANY WARRANTIES THAT ANY PRODUCT OR SERVICE
PROVIDED HEREUNDER (INCLUDING BUT NOT LIMITED TO THE SOFTWARE)
WILL (1) MEET YOUR REQUIREMENTS; (2) OPERATE ACCORDING TO YOUR
EXPECTATIONS; (3) PROVIDE ACCURATE DATA; OR (4) OPERATE UNINTERRUPTED
OR ERROR FREE. ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED
BY US AND WAIVED BY YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE
CORRECTED. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE
GLOBAL GATEWAY E4 SERVICES, (INCLUDING WITHOUT LIMITATION THE GLOBAL
GATEWAY E4 AND SOFTWARE), DOCUMENTATION AND OTHER SERVICES
PROVIDED HEREUNDER ARE PROVIDED ON AN AS-IS, WITH ALL FAULTS BASIS.
THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS
AGREEMENT. All decisions to reject any processing transaction or payment for your
products or services are solely your responsibility.
33.12. Notices. You agree to notify us of any change in your name, type of business, or any
other information required on your Merchant Processing Application at least thirty (30)
business days prior to the effective date of change. Any notice or other communication
required or permitted to be given hereunder shall be in writing, addressed or transmitted
to the party to be notified at such partys address or number at such partys last known
address or number, and shall be: (i) if sent by us, hand delivered or delivered by facsimile
transmission, overnight courier or certified, registered, regular mail or e-mail; or (ii) if sent
by you, certified or registered mail, postage prepaid return receipt requested to 3975 N.W.
120th Avenue, Coral Springs, FL 33065. Any notice delivered hereunder shall be deemed
effective, as applicable, upon delivery, if hand delivered or sent by overnight courier; upon
receipt as evidenced by the date of transmission indicated on the transmitted material, if by
facsimile transmission or e-mail; on the date of delivery indicated on the return receipt, if
mailed by certified or registered mail; or ten (10) days after mailing, if by regular mail (or
as otherwise required by applicable law). The parties addresses may be changed by written
notice to the other party as provided herein.
33.13. Subcontractors. Processor may subcontract all or part of the Global Gateway e4
Services using a variety of providers globally, but, notwithstanding any such subcontract,
Processor shall remain fully responsible for performance of the Services, including ensuring
the compliance of subcontractors with the terms of this Agreement applicable to such
subcontractors.
33.14. Survival. Upon termination or expiration of this Section 33 or the Agreement, a
partys obligations shall cease except for those remaining or required to be performed
following such termination. For the avoidance of doubt, the parties agree that those
provisions of this Section that logically should survive its termination or expiration in order
to accomplish its fundamental purposes will do so. All representations, warranties,
indemnities and covenants made herein shall survive the termination of this Section and
shall remain enforceable after such termination.
34. Choice of Law; Venue; Waiver of Jury Trial
34.1. Choice of Law. Our Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without regard to its choice of law provisions).
34.2. Venue. We have substantial facilities in the State of New York and many of the
services provided under this Agreement are provided from these facilities. The exclusive
venue for any actions or claims arising under or related to this Agreement shall be in the
appropriate state or federal court located in Suffolk County, New York.
34.3. Waiver of Jury Trial. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.
35. Other Terms
35.1. Force Majeure. No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay is caused, directly
or indirectly, by (i) fire, flood, earthquake, elements of nature or other acts of God; (ii) any
terrorist attacks or outbreak or escalation of hostilities, war, riots or civil disorders in any
country; (iii) any act or omission of the other party or any government authority; (iv) any
labor disputes (whether or not employees demands are reasonable or within the partys power
to satisfy); or (v) the nonperformance by a Person for any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing party shall be
excused from any further performance and observance of the obligations so affected only for
as long as such circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable. Notwithstanding
anything to the contrary in this paragraph, your failure to receive payment or funds from a
Person shall not excuse the performance of your obligations to us under this Agreement.
35.2. Compliance with Laws. In performing its obligations under this Agreement, each
party agrees to comply with all laws and regulations applicable to it. You further agree to
cooperate and provide information requested by Servicers, as Servicers determine necessary,
to facilitate Servicers compliance with any applicable law including without limitation the
rules and regulations promulgated by the Office of Foreign Assets Control of the US
Department of the Treasury. You further acknowledge and agree that you will not use your
merchant account and/or the Services for illegal transactions, for example, those prohibited
by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq, as may
be amended from time to time, those involving any Person listed on the U.S. Department
of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked
Persons List (available at www.treas.gov/ofac) or the U.S. Department of States Terrorist
Exclusion List (available at www.state.gov), or for the processing and acceptance of
transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other laws
enforced by the Office of Foreign Assets Control (OFAC) or in connection with illegal
activity of any kind.
35.3. Notices. Except as otherwise specifically provided, all notices and other
communications required or permitted hereunder (other than those involving normal
operational matters relating to the processing of Card transactions) shall be in writing, if
to you at your address appearing in the Application or by any electronic means, including
but not limited to the e-mail address you have provided on the Application. If to us at our
address appearing in Section A.5 of Part IV of this Agreement, with a copy to Attention:
General Counsels Office, 3975 N.W. 120th Avenue, Coral Springs, FL 33065, and Notices
shall be deemed to have been given (i) if sent by mail or courier, upon the earlier of five (5)
days after mailing or when actually received or, in the case of courier, when delivered, and
(ii) if sent by facsimile machine, when the courier confirmation copy is actually received.
Notice given in any other manner shall be effective when actually received. Notices sent to
the your last known address (including e-mail address), as indicated in our records, shall
constitute effective notice to the Merchant under this Agreement. If you change your
address (including your e-mail address), you must notify us at least 30 days prior of the
effective date of any such change. Failure to provide us with a valid address (including e-
mail address) may result in the termination of the Agreement. Notwithstanding the above,
all bankruptcy or collection related notices must be sent to the following address Merchant
Services Department, 5251 Westheimer Road, Fourth Floor, Houston, Texas 77056, Attn:
Bankruptcy and Collection Notifications. All such notices must include the related
merchant name and merchant number. Failure to provide Notice to this address or include
this pertinent merchant information will be deemed ineffective. All notices must include
your merchant name(s) and merchant number(s). Failure to provide notice in the manner
described in this Section will be deemed ineffective.
35.4. Headings. The headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or construction of any provision
of this Agreement.
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35.5. Severability. The parties intend every provision of this Agreement to be severable.
If any part of this Agreement is not enforceable, the remaining provisions shall remain valid
and enforceable.
35.6. Entire Agreement; Waiver. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter thereof, and supersedes any previous
agreements and understandings. A partys waiver of a breach of any term or condition of this
Agreement shall not be deemed a waiver of any subsequent breach of the same or another
term or condition.
35.7. Amendment. We may modify any provision of this Agreement by providing written
notice to you. You may choose not to accept the requirements of any such change by
terminating the Agreement within twenty (20) days of receiving notice. If you choose to do
so, notify us that you are terminating for this reason so that we may waive any early
termination fee that might otherwise apply. For purposes of this section, an electronic or
click-wrap notice intended to modify or amend this Agreement and which you check I
Accept or I Agree or otherwise accept through an electronic process, shall constitute in
writing as required herein. This Section 35.7 does not apply to fee changes, which are
governed by Sections 19.4 and 19.5.
35.8. Third Party Beneficiaries. Our respective Affiliates and any Persons we use in
providing the Services are third party beneficiaries of this Agreement and each of them may
enforce its provisions as it was a party hereto. Except as expressly provided in this
Agreement, nothing in this Agreement is intended to confer upon any Person any rights or
remedies, and the parties do not intend for any Persons to be third-party beneficiaries of this
Agreement.
35.9. Card Organization Rules. The parties acknowledge that the Visa, MasterCard and
Discover Network Card Organization Rules give Visa, MasterCard and Discover Network
certain rights to require termination or modification of this Agreement with respect to
transactions involving Visa, MasterCard and Discover Network Cards and the Visa,
MasterCard, and Discover Network Card systems and to investigate you. The parties also
acknowledge that issuers of other Cards, for which we perform services on your behalf,
may have similar rights under their applicable Card Organization Rules with respect to this
Agreements applicability to transactions involving such other Cards.
35.10. Publicity. Client may not use the logo, name, trademark, or service mark of
Processor and/or Bank in any manner, including without limitation, in any advertisements,
displays, or press releases, without the prior written consent of Processor and Bank.
36. Glossary
As used in this Agreement, the following terms mean as follows:
Acquirer: Bank in the case of MasterCard, Visa and certain debit transactions or Processor
in the case of Discover Network transactions that acquire Card sale transactions from
merchants such as yourself.
Address Verification Service (AVS): A service provided through which the merchant
verifies the Cardholders address, in whole or in part. Primarily used by Mail/Telephone/
Internet order merchants, Address verification is intended to deter fraudulent transactions
however, an AVS Match does not guarantee that a transaction is valid. An AVS request
should generally be submitted with an authorization request. The AVS response, if available,
however will not impact whether any associated authorization request is approved or
denied. You may be charged an AVS fee for any AVS request you submit even if we are not
able to provide a response to the request.
Affiliate: Affiliate of a Person means another Person that, directly or indirectly, (i) owns
or controls such Person or (ii) is under common ownership or control with such Person.
Agreement: The Agreements among Client, Processor, and Bank, contained in the
Application, the Program Guide and the Schedules thereto and documents incorporated
therein, each as amended from time to time, which collectively constitute the Agreement
among the parties.
Application: See Merchant Processing Application
Authorization: Approval by, or on behalf of, the Issuer to validate a transaction. An
Authorization indicates only the availability of the Cardholders Credit Limit or funds at the
time the Authorization is requested. An Authorization Fee (see Fee Schedule) can be
charged for each Authorization, whether approved or declined.
Authorization Approval Code: A number issued to a participating merchant by the
Authorization Center which confirms the Authorization for a sale or service.
Authorization and Capture: Refers to the communication of instructions from your POS
device or other systems to our computer systems, whether the communications are for
authorization requests or any other capture of information. If your Service fee Schedule
reflects and authorization and capture fee it may be applied to each communication you
transmit to us.
Authorization Center: A department that electronically communicates a merchants
request for Authorization on Credit Card transactions to the Cardholders bank and
transmits such Authorization to the merchant via electronic equipment or by voice
Authorization.
Bank: The bank identified on the Application signed by you.
Bankruptcy Code: Title 11 of the United States Code, as amended from time to time.
Batch: A single Submission to us of a group of transactions (sales and Credits) for
settlement. A Batch usually represents a days worth of transactions.
Business Day: Monday through Friday, excluding Bank holidays.
Card: See either Credit Card or Debit Card.
Cardholder: Means the Person whose name is embossed on a Card and any authorized
user of such Card, including the Person that has entered into an agreement establishing a
Card account with an Issuer.
Card Not Present Sale/Transaction: A transaction that occurs when the Card is not
present at the point-of-sale, including Internet, mail-order and telephone-order Card sales.
Card Organization: Any entity formed to administer and promote Cards, including
without limitation MasterCard Worldwide (MasterCard), Visa U.S.A., Inc.(Visa), DFS
Services LLC (Discover Network), American Express Company, Inc. (American
Express) and any applicable debit networks.
Card Organization Rules: The rules, regulations, releases, interpretations and other
requirements (whether contractual or otherwise) imposed or adopted by any Card
Organization and related authorities, including without limitation, those of the PCI Security
Standards Council, LLC and the National Automated Clearing House Association
(including, with respect to EBTs, the Quest Operating Rules).
Card Validation Codes: A three-digit value printed in the signature panel of most Cards
and a four-digit value printed on the front of an American Express Card. Visas Card
Validation Code is known as CVV2; MasterCards Card Validation Code is known as CVC2;
the Card Validation Codes for Discover Network and American Express are known as a
Card Identification Numbers (CID). Card Validation Codes are used to deter fraudulent
use of an account number in a non-face-to-face environment, (e.g., mail orders, telephone
orders and Internet orders).
Card Verification Value (CVV)/Card Validation Code (CVC)/Card Identification
Data (CID): A unique value encoded on the Magnetic Stripe of a Card used to validate
Card information during the Authorization process.
Cardholder Verification Method (CVM): A method used to confirm the identity of a
Cardholder and to signify Cardholder acceptance of a transaction, such as signature, Offline
PIN, and Online PIN.
Cash Benefits: An EBT account maintained by an Issuer that represents pre-funded or
day-of-draw benefits, or both, administered by one or more government entities, and for
which the Issuer has agreed to provide access under the EBT program. Multiple benefits may
be combined in a single cash benefit account.
Cash Over Transaction: Dispensing of cash by a merchant in connection with a Card
sale, other than a PIN Debit Card transaction, for the purchase of goods or services.
Charge or Charges: The total price, including all applicable taxes and gratuities, for the
purchase of goods or services at a merchant for which a Cardholder has signed a Sales Draft
or otherwise indicated intent to pay with a Card.
Chargeback: A Card transaction (or disputed portion) that is returned to us by the Issuer.
Client is responsible for payment to us for all Chargebacks.
Claim: Means any claim (including initial claims, counterclaims, cross-claims, and third
party claims), dispute, or controversy between you and us arising from or relating to the
Agreement or prior Card acceptance agreements, or the relationship resulting therefrom,
whether based in contract, tort (including negligence, strict liability, fraud, or otherwise),
statutes, regulations, or any other theory, including any question relating to the existence,
validity, performance, construction, interpretation, enforcement, or termination of the
Agreement or prior Card acceptance agreements or the relationship resulting therefrom.
Client: The party identified as Client on the Application. The words Subscriber, you
and your refer to Client. Also, sometimes referred to as Merchant.
Credit: A refund or price adjustment given for a previous purchase transaction.
Credit Card: A device bearing a valid Organization Mark of Visa, MasterCard, Discover
Network or American Express and authorizing the Cardholder to buy goods or services on
credit and, to the extent the Schedules so provide, a valid device authorizing the Cardholder
to buy goods or services on credit and issued by any other Card Organization specified on
such Schedules.
Credit Draft: A document evidencing the return of merchandise by a Cardholder to a
Client, or other refund or price adjustment made by the Client to the Cardholder, whether
electronic, paper or some other form, all of which must conform to Card Organization
Rules and applicable law.
Credit Limit: The credit line set by the Issuer for the Cardholders Credit Card account.
Customer Activated Terminal (CAT): A magnetic stripe terminal or chip-reading device
(such as an automatic dispensing machine, Limited Amount Terminal, or Self-Service
Terminal) that is not an ATM.
Data Usage Charge: Charged to you for our processing of Sales Data sent to us.
Debit Card: See either PIN Debit Card or Non-PIN Debit Card.
Dial-Up Terminal: An Authorization device which, like a telephone, dials an Authorization
Center for validation of transactions.
Discount Rate: A percentage rate and/or amount charged a merchant for processing its
qualifying daily Credit Card and Non-PIN Debit Card transactions, as set forth in the
Application. Transactions that fail to meet applicable interchange requirements will be
charged additional amounts as set forth in Section 19.1.
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Electronic Benefit Transfer (EBT): An Electronic Benefits Transfer system used to deliver
certain government delivered benefits, including without limitation Cash Benefits and FNS,
SNAP and WIC Benefits, to EBT customers.
Electronic Draft Capture (EDC): A process which allows a merchants Dial-Up Terminal
to receive Authorization and capture transactions, and electronically transmit them to the
Processor. This eliminates the need to submit paper for processing.
EMV: Developed by Europay, MasterCard, and Visa. It is the global standard for chip based
payments.
Entity: Means a corporation, partnership, sole proprietorship, trust, association, or any
other legally recognized entity or organization.
Factoring: The submission of authorization requests and/or Sales Drafts by a merchant for
Card sales or cash advances transacted by another business. Factoring is prohibited.
Fixed Acquirer Network Fee (FANF): Fee that applies to the acceptance of all Visa
branded products and is based on both the size and the number of merchant locations. The
fee will be assessed per merchant Taxpayer ID, based on the number of merchant locations,
Merchant Category Code (MCC), and monthly Total Gross merchant Sales Volume
associated with each Taxpayer ID.
General Terms: Section of the Program Guide, including any amendments or
modifications.
Gross: When referred to in connection with transaction amounts or fees, refers to the total
amount of Card sales, without set-off for any refunds or Credits.
Imprinter: A manual or electric machine used to physically imprint the merchants name
and ID number as well as the Cardholders name and Card number on Sales Drafts.
Issuer: The financial institution or Card Organization (or other Entity authorized by a
Card Organization) which has issued a Card to a Person.
Limited Amount Terminal: A Customer Activated Terminal that has data capture only
capability, and accepts payment for items such as parking garage fees, road tolls, motion
picture theater entrance, or magnetic-stripe telephones.
Magnetic Stripe: A stripe of magnetic information affixed to the back of a plastic Credit
or Debit Card. The Magnetic Stripe contains essential Cardholder and account information.
Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines
or other proprietary designations.
MasterCard Processing Integrity Fee: The MasterCard Processing Integrity Fee is
assessed in the event MasterCard cannot match an approved authorization to a settled
transaction (within 120 days from the date the authorization was granted) or a reversal
request (within a specific time frame). The Processing Integrity Fee can be avoided by
settling transactions only with an approved authorization. If an authorization approval is
no longer needed, it must be electronically reversed within 24 hours for a card-present
transaction or within 72 hours for card not present transaction.
MC Cross Border Fee (USD): Assessed on any MasterCard1 settled sale processed in
USD Currency in which the country code of the merchant differs from the country code of
the Cardholder (i.e., U.S. Merchant, Non U.S. Issued Card).
Media: The documentation of monetary transactions (i.e., Sales Drafts, Credit Drafts,
computer printouts, etc.)
Merchant Account Number: A number that numerically identifies each merchant
location, outlet, or line of business to the Processor for accounting and billing purposes.
Merchant Identification Card: A plastic embossed card supplied to each merchant to be
used for imprinting information to be submitted with each Batch of paper Sales Drafts.
Embossed data includes Merchant Account Number, name and sometimes merchant ID
code and terminal number.
Merchant Processing Application: The Merchant Processing Application and Agreement
executed by Client, which is one of the documents comprising the Agreement.
Merchant Provider: Any Person engaged by you to provide services to you involving or
relating to (i) access to Cardholder data, transaction data or information related to either
Cardholder data or transaction data or (ii) PIN encryption, including without limitation,
Encryption Service Organizations (ESOs).
Non-Bank Services: Products and/or Services for which Bank is not responsible or a party
to including American Express, PIN Debit Card, and Electronic Benefits Transfer
Transactions, TeleCheck Check Services, and Transactions Involving Cards from other Non-
Bank Card Organizations, such as Voyager Fleet Systems, Inc., Wright Express Corporation
and Wright Express Financial Services Corporation, Discover, Leasing, TransArmor,
Wireless, Global Gateway e4 Services, and other items as may be indicated in this Program
Guide.
Non-PIN Debit Card: A device with a Visa, MasterCard or Discover Network Mark that
is tied to a Cardholders bank account or a prepaid account and which is processed without
the use of a PIN.
Non-Qualified Interchange Fee: The difference between the interchange fee associated
with the Anticipated Interchange Level and the interchange fee associated with the more
costly interchange level at which the transaction actually processed.
Non-Qualified Surcharge: A surcharge applied to any transaction that fails to qualify for
the Anticipated Interchange Level and is therefore downgraded to a more costly interchange
level. The Non-Qualified Surcharge (the amount of which is set forth on the Service Fee
Schedule) is in addition to the Non-Qualified Interchange Fee, which is also your
responsibility (see above, Section 19.1)
Operating Procedures: The information prepared by Processor, containing operational
procedures, instructions and other directives relating to Card transactions. The current
Operating Procedures are set forth in Part A of the Program Guide.
PAN Truncation: A procedure by which a Cardholders copy of a Sales Draft or Credit
Draft, or as required by applicable law, the Sales Draft or Credit Draft you retain, will only
reflect the last four digits of the Card account number.
Person: A third party individual or Entity, other than the Client, Processor or Bank.
PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit
Card transaction.
PIN Debit Card: A device bearing the Marks of ATM networks (such as NYCE or Star)
used at a merchant location by means of a Cardholder-entered PIN in the merchant PIN Pad.
PIN Debit Sponsor Bank: The PIN Debit Sponsor Bank(s) identified on the Application
signed by you that is/are the sponsoring or acquiring bank(s) for certain PIN Debit
networks.
Point of Sale (POS) Terminal: A device placed in a merchant location which is connected
to the Processors system via telephone lines and is designed to authorize, record and
transmit settlement data by electronic means for all sales transactions with Processor.
Processor: The entity identified on the Application (other than the Bank) which provides
certain services under the Agreement.
Program Guide (also known as the Merchant Services Program Terms and
Conditions): The booklet which contains Operating Procedures, General Terms, Third
Party Agreements and Confirmation Page, which together with the Application and the
Schedules thereto and documents incorporated therein, constitute your Agreement with
Processor and Bank.
Recurring Payment Indicator: A value used to identify transactions for which a Cardholder
provides permission to a merchant to bill the Cardholders Card account at either a
predetermined interval or as agreed by the Cardholder for recurring goods or services.
Referral: A message received from an Issuer when an attempt for Authorization requires
a call to the Voice Authorization Center or Voice Response Unit (VRU).
Reserve Account: An account established and funded at our request or on your behalf,
pursuant to Section 25 of the Agreement.
Resubmission: A transaction that the Client originally processed as a Store and Forward
transaction but received a soft denial from the respective debit network or Card
Organization. The resubmission transaction allows the merchant to attempt to obtain an
approval for the soft denial, in which case Client assumes the risk that the transaction fails.
Retrieval Request/Transaction Documentation Request: A request for
documentation related to a Card transaction such as a copy of a Sales Draft or other
transaction source documents.
Sales/Credit Summary: The identifying form used by a paper Submission merchant to
indicate a Batch of Sales Drafts and Credit Drafts (usually one days work). Not a Batch
header, which is used by electronic merchants.
Sales Draft: Evidence of a purchase, rental or lease of goods or services by a Cardholder
from, and other payments to, Client using a Card, including preauthorized orders and
recurring transactions (unless the context requires otherwise); regardless of whether the
form of such evidence is in paper or electronic form or otherwise, all of which must conform
to Card Organization Rules and applicable law.
Schedules: The attachments, addenda and other documents, including revisions thereto,
which may be incorporated into and made part of this Agreement concurrently with or
after the date of this Agreement.
Self-Service Terminal: A Customer Activated Terminal that accepts payment of goods or
services such as prepaid cards or video rental, has electronic capability, and does not accept
PINs.
Servicers: Bank and Processor collectively. The words we, us and our refer to
Servicers, unless otherwise indicated in this Program Guide.
Services: The activities undertaken by Processor and/or Bank, as applicable, to authorize,
process and settle all United States Dollar denominated Visa, MasterCard, Discover Network
and American Express transactions undertaken by Cardholders at Clients location(s) in
the United States, and all other activities necessary for Processor to perform the functions
required by this Agreement for all other Cards covered by this Agreement.
Settlement Account: An account or account(s) at a financial institution designated by
Client as the account to be debited and credited by Processor or Bank for Card transactions,
fees, Chargebacks and other amounts due under the Agreement or in connection with the
Agreement.
Split Dial: A process which allows the Authorization terminal to dial directly to different
Card processors (e.g., American Express) for Authorization. In this instance, the merchant
cannot be both EDC and Split Dial. Split Dial is also utilized for Check Guarantee
companies.
1
MasterCard Credit or Debit Card, Cirrus Card, or Maestro Card.
AGL1704(ia)
38
Split Dial/Capture: Process which allows the Authorization terminal to dial directly to
different Card processors (e.g., American Express) for Authorization and Electronic Draft
Capture.
Store and Forward: A transaction that has been authorized by a merchant when the
merchant cannot obtain an Authorization while the customer is present, typically due to a
communications failure. The merchant will store the transaction electronically in their host
system and retransmit the transaction when communications have been restored.
Submission: The process of sending Batch deposits to Processor for processing. This may
be done electronically or by mail.
Summary Adjustment: An adjustment to your Submission and/or Settlement Accounts
in order to correct errors. (See Sections 10.3 and 10.4).
Telecommunication Card Sale: Individual local or long-distance telephone calls, for
which the telephone service provider is paid directly by use of a Card. These do not include,
however, calls paid for with pre-paid telephone service cards. Telecommunication Card
Sales are considered Card Not Present Sales.
Transaction Fees: Service costs charged to a merchant on a per transaction basis.
Transaction Integrity Fee: Fee assessed on Visa Debit Card and prepaid Card purchase
transactions that either fail or do not request CPS qualification.
Us, We and Our: See Servicers.
Visa International Service Fee: Assessed on any Visa settled sale where the merchant is
located in the U.S. and the Card is issued outside of the U.S. (i.e., U.S. Merchant, Non U.S.
Issued Card).
Visa Misuse of Auth: Charged to Visa authorized transactions that are not followed by a
matching Visa settled transaction (or in the case of a canceled transaction, not properly
reversed). The fee can be avoided by settling your transactions within 10 days for Non
Travel and Entertainment (T&E) Merchants Segments and 20 days for T&E merchants. If
an authorization is not needed, the authorization must be electronically reversed within
24 hours for face to face authorizations and reversed within 72 hours for Card Absent
authorizations.
Visa Zero $ Verification: Charged for Visa Card verification requests (without an actual
dollar authorization). This fee can be avoided by obtaining an authorization request for the
amount of the sale. If the authorization is not needed, the authorization request must be
electronically reversed within 24 hours for face to face authorizations and reversed within 72
hours for Card Absent authorizations (to avoid the Visa Misuse of Authorization System fee).
Visa Zero Floor Limit: Charged when a Visa sale is settled without the required
authorization (transaction ID is used to match the authorization to settled sale). All
transactions above zero dollars require an authorization approval. This fee can be avoided
by only settling transactions that have been approved. If an authorization is declined, the
merchant must request another form of payment.
You, Your: See Client
AGL1704(ia)
Equipment Lease Agreement
39
This Equipment Lease Agreement (Lease Agreement) is being entered into by and
between First Data Merchant Services Corporation (through its business unit First Data
Global Leasing), and the Lessee identified on the signature panel of this Merchant
Processing Application (MPA). In this Lease Agreement, the words we, our and us
refer to First Data Merchant Services Corporation and its successors and assigns and the
words you and your refer to Lessee and its permitted successors and assigns.
Lessee hereby authorizes us or our designees, successors or assigns (hereinafter Lessor)
to withdraw any amounts including any and all sales taxes now due or hereinafter imposed,
owed by Lessee in conjunction with this Lease Agreement by initiating debit entries to the
bank account designated by Lessee on the MPA (the Settlement Account). In the event
of default of Lessees obligation hereunder, Lessee authorizes debit of its account for the full
amount due under this Lease Agreement. Further, Lessee authorizes its financial institution
to accept and to charge any debit entries initiated by Lessor to Lessees account. In the event
that Lessor withdraws funds erroneously from Lessees account, Lessee authorizes Lessor
to credit Lessees account for an amount not to exceed the original amount of the debit. This
authorization is to remain in full force and effect until Lessor has received written notice
from Lessee of its termination in such time and in such manner as to afford Lessor a
reasonable opportunity to act. Lessee also authorizes Lessor from time to time to obtain
investigative credit reports from a credit bureau or a credit agency concerning Lessee.
1.1. Equipment. We agree to lease to you and you agree to lease from us the equipment
identified on the MPA or such other comparable equipment we provide you (the
Equipment), according to the terms and conditions of this Lease Agreement. We are
providing the Equipment to you as is and make no representations or warranties of any
kind as to the suitability of the Equipment for any particular purpose. The term Equipment
includes the Equipment initially deployed under the Lease Agreement and/or any additions,
replacements, substitutions, or additions thereto.
1.2. Effective Date, Term and Interim Rent.
a) This Lease Agreement becomes effective on the earlier of the date we deliver any piece
of Equipment to you (the Delivery Date) or acceptance by us. This Lease Agreement
remains in effect until all of your obligations and all of our obligations under it have
been satisfied. We will deliver the Equipment to the site designated by you.
b) The term of this Lease Agreement begins on a date designated by us after receipt of all
required documentation and acceptance by us (the Commencement Date), and
continues for the number of months indicated on the MPA. THIS IS A NON-
CANCELABLE LEASE FOR THE TERM INDICATED.
c) You agree to pay an Interim Lease Payment in the amount of one-thirtieth (1/30th) of
the monthly lease charge for each day from and including the Delivery Date until the
date preceding the Commencement Date.
d) YOU ACKNOWLEDGE THAT THE EQUIPMENT AND/OR SOFTWARE YOU LEASE
UNDER THIS LEASE AGREEMENT MAY NOT BE COMPATIBLE WITH ANOTHER
PROCESSORS SYSTEMS AND THAT WE DO NOT HAVE ANY OBLIGATION TO
MAKE SUCH SOFTWARE AND/OR EQUIPMENT COMPATIBLE IN THE EVENT
THAT YOU ELECT TO USE ANOTHER SERVICE PROVIDER. UPON TERMINATION
OF YOUR MERCHANT PROCESSING AGREEMENT, YOU ACKNOWLEDGE THAT
YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE LEASED
UNDER THIS LEASE AGREEMENT WITH SAID SERVICE PROVIDER.
1.3. Site Preparation. You will prepare the installation site(s) for the Equipment,
including but not limited to the power supply circuits and phone lines, in conformance
with the manufacturers and our specifications and will make the site(s) available to us by
the confirmed shipping date.
1.4. Payment of Amounts Due.
a) The monthly lease charge is due and payable monthly, in advance. You agree to pay all
assessed costs for delivery and installation of Equipment.
b) In addition to the monthly lease charge, you shall pay, or reimburse us for, amounts
equal to any taxes, assessments on or arising out of this Lease Agreement or the
Equipment, and related supplies or any services, use or activities hereunder, including
without limitation, state and local sales, use, property, privilege and excise tax, tax
preparation, compliance expenses, but exclusive of taxes based on our net income.
Property taxes are calculated and charged based on the average of the estimated annual
property taxes over the course of the term of the lease. You will also be charged an
annual Tax Handling Fee, as set forth in the MPA and/or applicable Fee Schedule.
c) Your lease payments will be due despite dissatisfaction with the Equipment for any
reason.
d) Whenever any payment is not made by you in full when due, you shall pay us as a late
charge, an amount equal to ten percent of the amount due but no less than $5.00 for
each month during which it remains unpaid (prorated for any partial month), but in no
event more than the maximum amount permitted by law. You shall also pay to us an
administrative charge of $10.00 for any debit we attempt to make against your
Settlement Account that is rejected, but in no event more than the maximum amount
permitted by law.
e) In the event your account is placed into collections for past due lease amounts, you
agree that we can recover a collection expense charge of $50.00 for each aggregate
payment requiring a collection effort, but in no event more than the maximum amount
permitted by law.
1.5. Use and Return of Equipment; Insurance.
a) You shall cause the Equipment to be operated by competent and qualified personnel in
accordance with any operating instructions furnished by us or the manufacturer. You
shall maintain the Equipment in good operating condition and protect it from
deterioration, normal wear and tear excepted.
b) You shall not permit any physical alteration or modification of the Equipment, or
change the installation site of the Equipment, without our prior written consent.
c) You shall not create, incur, assume or allow to exist any consensually or judicially
imposed liens or encumbrances on, or part with possession of, or sublease the
Equipment without our prior written consent.
d) You shall comply with all governmental laws, rules and regulations relating to the use
of the Equipment. You are also responsible for obtaining all permits required to operate
the Equipment at your facility.
e) We or our representatives may, at any time, enter your premises for purposes of
inspecting, examining or repairing the Equipment.
f) The Equipment shall remain our personal property and shall not under any
circumstances be considered to be a fixture affixed to your real estate. You shall permit
us to affix suitable labels or stencils to the Equipment evidencing our ownership.
g) You shall keep the Equipment adequately insured against loss by fire, theft, and all other
hazards.
h) You shall provide proof of insurance as evidenced by a certificate naming First Data
Merchant Services Corporation as a loss payee under your insurance policy. The loss,
destruction, theft, or damage of or to the Equipment shall not relieve you from
your obligation to pay the full purchase price or total monthly leases charges
hereunder.
i) If you do not provide such proof of insurance, you may be charged a fee, on which we
may make a profit, as set forth on your fee schedule in connection with insuring the
Equipment.
1.6. Title to Equipment. The Equipment is, and shall at all times be and remain, our
sole and exclusive property, and you shall have no right, title or interest in or to the
Equipment except as expressly set forth in this Lease Agreement or otherwise agreed in
writing. Except as expressly provided in Section 8, no transference of intellectual property
rights is intended by or conferred in this Lease Agreement. You agree to execute and deliver
to us any statement or instrument that we may request to confirm or evidence our
ownership of the Equipment, and you irrevocably appoint us as your attorney-in-fact to
execute and file the same in your name and on your behalf. If a court determines that the
leasing transaction contemplated by this Lease Agreement does not constitute a financing
and is not a lease of the Equipment, then we shall be deemed to have a first lien security
interest on the Equipment as of the date of this Lease Agreement, and you will execute
such documentation as we may request to evidence such security interest. If this Lease
Agreement is deemed a loan despite the intention of the parties, then in no contingency or
event whatsoever shall interest deemed charged hereunder, however such interest may be
characterized or computed, exceed the highest rate permissible under any law which a
court of competent jurisdiction shall, in a final determination, deem applicable hereto.
1.7. Return or Purchase of Equipment at End of Lease Period. Upon the
completion of your lease term or any extension thereof, you will have the option to (a)
return the Equipment to us; (b) purchase the Equipment from us for its then fair market
value, calculated as a percentage of the aggregate lease payments in accordance with the
following: If the term of this Lease is forty-eight (48) months or more, the buyout option
as a percentage of the aggregate lease payments shall be ten percent (10%). If the term of
this lease is thirty-six (36) to forty-seven (47) months, the buyout option as a percentage
of the aggregate lease payments shall be fifteen percent (15%). If the term of this lease is
PART III: THIRD PARTY AGREEMENTS
The following Agreements are Third Party Agreements entered into between Client and the Third Parties identified in the Third Party Agreements.
If Client desires to receive the products and/or services offered under a Third Party Agreement, Client must check the appropriate box or otherwise indicate
such desire in the Merchant Processing Application, in which case the terms and conditions of the Third Party Agreement shall be binding upon Client. The
Signature page in the Merchant Processing Application or any Schedule thereto shall also serve as a signature page to the Third Party Agreements.
Client acknowledges that the Third Parties are relying upon the information contained on the Merchant Processing Application and the Schedules thereto,
all of which are incorporated by reference into the Third Party Agreements.
AGL1704(ia)
40
twenty-four (24) to thirty-five (35) months, the buyout option as a percentage of the
aggregate lease payments shall be twenty percent (20%); or (c) after the final lease payment
has been received by FDGL, the Agreement will revert to a month by month rental at the
existing monthly lease payment. If Client does not want to continue to rent the Equipment,
then Client will be obligated to provide FDGL with 30 day written notice to terminate and
return the equipment to FDGL. If we terminate the lease pursuant to Section 1.11(b) due
to a default by you, then you shall immediately return the Equipment to us no later than
the tenth business day after termination, or remit to us the fair market value of the
Equipment as determined in good faith by us. We may collect any amounts due to us under
this Section 1.7 by debiting your bank account, and to the extent we are unable to obtain
full satisfaction in this manner, you agree to pay the amounts owed to us promptly upon
our request.
1.8. Software License. We retain all ownership and copyright interest in and to all
computer software, related documentation, technology, know-how and processes embodied
in or provided in connection with the Equipment other than those owned or licensed by
the manufacturer of the Equipment (collectively Software), and you shall have only a
nonexclusive license to use the Software in your operation of the Equipment.
1.9. Limitation on Liability. We are not liable for any loss, damage or expense of any
kind or nature caused directly or indirectly by the Equipment, including any damage or
injury to persons or property caused by the Equipment. We are not liable for the use or
maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any
interruption of service or loss of use of the Equipment or resulting loss of business. Our
liability arising out of or in any way connected with this Lease Agreement shall not exceed
the aggregate lease amount paid to us for the particular Equipment involved. In no event
shall we be liable for any indirect, incidental, special or consequential damages. The
remedies available to you under this Lease Agreement are your sole and exclusive remedies.
1.10. Warranties.
a) Leased equipment is warranted against material defects for the life of the lease. This
warranty does not include damage to the equipment resulting from accident or misuse or
any other breach of the Lease Agreement. If the equipment should become defective within
the warranty period, First Data Merchant Services Corporation will replace it free of charge
(except that appropriate shipping charges may apply).
b) All warranties, express or implied, made to you or any other person are hereby
disclaimed, including without limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement.
c) You warrant that you will only use the Equipment for commercial purposes and will not
use the Equipment for any household or personal purposes.
1.11. Indemnification. You shall indemnify and hold us harmless from and against any
and all losses, liabilities, damages and expenses resulting from (a) the operation, use,
condition, liens against, or return of the Equipment or (b) any breach by you of any of your
obligations hereunder, except to the extent any losses, liabilities, damages or expenses result
from our gross negligence or willful misconduct.
1.12. Default; Remedies.
a) If any debit of your Settlement Account initiated by us is rejected when due, or if you
otherwise fail to pay us any amounts due hereunder when due, or if you default in any
material respect in the performance or observance of any obligation or provision of this
Lease Agreement or any agreement with any of our affiliates or joint ventures, any such
event shall be a default hereunder. Without limiting the foregoing, any default by you under
a processing agreement with us or with an affiliate or joint venture to which we are a party
will be treated as a default under this Lease Agreement. Such a default would include a
default resulting from early termination of the MPA.
b) Upon the occurrence of any default, we may at our option, effective immediately
without notice, either (i) terminate this lease and our future obligations under this Lease
Agreement, repossess the Equipment and proceed in any lawful manner against you for
collection of all charges that have accrued and are due and payable, or (ii) accelerate and
declare immediately due and payable all monthly lease charges for the remainder of the
applicable lease period together with the fair market value of the Equipment (as determined
by us), not as a penalty but as liquidated damages for our loss of the bargain. Upon any such
termination for default, we may proceed in any lawful manner to obtain satisfaction of the
amounts owed to us and, if applicable, our recovery of the Equipment, including entering
onto your premises to recover the Equipment. In any case, you shall also be responsible for
our costs of collection, court costs, as well as applicable shipping, repair and refurbishing
costs of recovered Equipment. You agree that we shall be entitled to recover any amounts
due to us under this Lease Agreement by charging your Settlement Account or any other
funds of yours that come into our possession or control, or within the possession or control
of our affiliates or joint ventures, or by setting off amounts that you owe to us against any
amounts we may owe to you, in any case without notifying you prior to doing so. Without
limiting the foregoing, you agree that we are entitled to recover amounts owed to us under
this Lease Agreement by obtaining directly from an affiliate or joint venture to which we are
a party and with which you have entered into an MPA any funds held or available as security
for payment under the terms of the MPA, including funds available under the Reserve
Account; Security Interest section of the MPA, if applicable.
1.13. Assignment. You may not assign or transfer this Lease Agreement, by operation of
law or otherwise, without our prior written consent. For purposes of this Lease Agreement,
any transfer of voting control of you or your parent shall be considered an assignment or
transfer of this Lease Agreement. We may assign or transfer this Lease Agreement and our
rights and obligations hereunder, in whole or in part, to any third party without the
necessity of obtaining your consent.
1.14. Lease Guaranty. No guarantor shall have any right of subrogation to any of our
rights in the Equipment or this Lease Agreement or against you, and any such right of
subrogation is hereby waived and released. All indebtedness that exists now or arises after
the execution of this Lease Agreement between you and any guarantor is hereby
subordinated to all of your present and future obligations, and those of your guarantor, to
us, and no payment shall be made or accepted on such indebtedness due to you from a
guarantor until the obligations due to us are paid and satisfied in full.
1.15. Governing Law; Venue; Miscellaneous. This Lease Agreement shall be governed
by and will be construed in accordance with the laws of the State of New York (without
applying its conflicts of laws principles). The exclusive venue for any actions or claims
arising under or related to this Lease Agreement shall be in the appropriate state of federal
court located in Suffolk County, New York. If any part of this Lease Agreement is not
enforceable, the remaining provisions will remain valid and enforceable.
1.16. Notices. All notices must be in writing, and shall be given (a) if sent by mail, when
received, and (b) if sent by courier, when delivered; if to you at the address appearing on
the MPA, and if to us at 4000 Coral Ridge Drive, Coral Springs, Florida 33065. Attn: Lease
Department. Customer Service toll free number 1-877-257-2094.
1.17. Entire Agreement. This Lease Agreement constitutes the entire Agreement
between the parties with respect to the Equipment, supersedes any previous agreements
and understandings and can be changed only by a written agreement signed by all parties.
This Lease Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed counterpart of a signature page of this Lease Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this Lease Agreement.
AGL1704(ia)
41
TELECHECK SERVICES AGREEMENT
This TeleCheck Services Terms and Conditions (the Agreement) is entered by and
between TeleCheck Services, Inc. (TeleCheck) and Subscriber (Subscriber) as
indicated on the Merchant Processing Application and Agreement. TeleCheck will provide
one of the following services (TeleCheck Services) as selected on the Merchant
Processing Application and Agreement: TeleCheck Electronic Check Acceptance

(ECA

)
warranty service (ECA Warranty Service) or paper warranty service (Paper Warranty
Service). Upon processing Subscribers first check through any of the TeleCheck

services
or from the date Subscriber is entered into the TeleCheck system as a subscriber, whichever
is earlier (the Effective Date), the terms and conditions of this Agreement, including
payment and the Minimum Monthly Fee, shall apply from that point forward. Any of the
TeleCheck services, including, without limitation, funds settlement, billing and customer
service, may be performed by one or more of TeleChecks affiliates.
1. Term, Termination and Amendment. This Agreement shall be effective for an initial
term of 12 months, from the Effective Date; provided, however, that Subscriber may
terminate this Agreement if Subscriber gives and TeleCheck receives written notice of
termination within the first 30 days of the Agreement. Thereafter, this Agreement shall
automatically continue until terminated as provided for herein. Subscriber may terminate
this Agreement at the end of the initial term or thereafter upon at least 30 days prior written
notice to TeleCheck. TeleCheck reserves the right to amend, at its discretion, this
Agreement, including, without limitation, any rates, fees, addenda and/or the TeleCheck
Operational Procedures, by providing Subscriber notice and such amendments shall be
effective 30 days from the date notice is mailed to Subscriber. In the event TeleCheck
changes the rates, fees or warranty limits hereunder, Subscriber may terminate this
Agreement upon written notice received by TeleCheck within such 30 day period.
TeleCheck may terminate this Agreement at any time upon notice to Subscriber. Subscriber
may terminate this Agreement at anytime upon written notice if TeleCheck has failed to cure
a material breach of this Agreement within 30 days following written notice of that breach
given by Subscriber.
2. Definitions. As used in this Agreement, the following definitions apply: ACH
Network means the Automated Clearing House Network, a processing and delivery
system that provides for the distribution and settlement of electronic credits and debits.
Authorization Receipt means the written authorization receipt, in the form approved by
TeleCheck, signed by Consumer for each ECA Warranty Transaction or ECA Verification
Transaction, as applicable. Batch means a collection of saved transactions transmitted to
TeleCheck for settlement processing. Claim means any claim, demand, directive, suit or
other proceeding, notice, damage, expense (including reasonable attorneys fees),
assessment, fine or liability of any kind. Consumer means a person or entity that
authorizes an Item. Consumer Authorization Format means the required format
(including, without limitation, all verbiage for payment authorization, return item fees,
check approvals and declines, etc.), provided by TeleCheck to Subscriber, as amended from
time to time, for processing Consumer payments to Subscriber by an Electronic Item. ECA
Warranty Transaction means a transaction processed by TeleCheck under the ECA
Warranty Service, as an electronic funds transfer, a remotely created check or a paper check
for the contemporaneous purchase of goods or service by a Consumer at Subscribers
physical location. Electronic Item Warranty Transaction means a payment transaction
which is processed as an Electronic Item under the warranty service, for the purchase of
goods or services by a Consumer. Item means an outstanding financial obligation
pursuant to a paper check, electronic funds transfer or remotely created check processed
under this Agreement. NACHA Rules means the National Automated Clearing House
Association Operating Rules and Guidelines, as amended from time to time, that govern the
ACH Network. Paper Warranty Transaction means a transaction for the
contemporaneous purchase of goods or services pursuant to TeleChecks Paper Warranty
Service program. Return Item Fee means any fee or exemplary damages allowed by law
that may be assessed on a Return Item. Return Items mean any Items that are dishonored,
returned, reversed, charged back or otherwise unpaid by a Consumers financial institution
upon presentment for payment, regardless of the reason or timing. Returned Payment
means any financial obligation pursuant to this Agreement not paid by Subscribers financial
institution. Subscribers Account means Subscribers financial institution account.
TeleCheck Approval Code means that TeleCheck has authorized an Item for warranty
coverage under this Agreement. TeleCheck Operational Procedures means TeleChecks
published policies and procedures contained in various documents provided to Subscriber
concerning the services, equipment and maintenance provided pursuant to this Agreement.
TeleCheck Parties means TeleCheck, its affiliates, officers, directors, employees,
shareholders, agents and attorneys. Warranty Maximum (a) for an Item processed as an
ECA Warranty Transaction means the lower of (i) the face amount of the Item, (ii) the
amount set forth on the TeleCheck Service Application; or (iii) $25,000.00; (b) for an Item
processed as a Paper Warranty Transaction means the lower of (i) the face amount of the
Item; (ii) the amount set forth on the TeleCheck Service Application; or (iii) $99,999.99.
TERMS APPLICABLE ONLY TO
TELECHECK ECA WARRANTY SERVICE
3. ECA Warranty Service.
3.1. Description. The TeleCheck ECA Warranty Service provides Subscriber with: (a)
coded information to assist Subscriber in deciding whether or not to accept an Item; (b)
processing services; and (c) warranty services for ECA Warranty Transactions that comply
with the warranty requirements of Section 3.3, all in accordance with this Agreement.
3.2. Processing Services. For each ECA Warranty Transaction that TeleCheck issues a
TeleCheck Approval Code that is processed by TeleCheck as an electronic funds transfer or
remotely created check, TeleCheck shall, via an electronic funds transfer, effect a credit to
Subscribers Account for the amount of such transaction as part of a batch credit. Such credit
shall typically occur within 2 banking days following Subscribers regular close-out of the
point of sale terminal and transmission of the saved ECA Warranty Transactions to TeleCheck
for settlement processing, provided that the Batch is closed and received by TeleCheck by
9:00 p.m. Central Time. Subscriber authorizes TeleCheck on its behalf to initiate debits to
the Consumers accounts for each such ECA Warranty Transaction. TeleCheck may reduce
such credit, or initiate a debit, by the amount of any necessary adjustments for ECA Warranty
Transactions, including, without limitation, chargebacks or partial adjustments, to Subscribers
Account. TeleCheck reserves the right to decline to process any transaction as an ECA
Warranty Transaction. As required by the NACHA Rules, TeleChecks Originating Depository
Financial Institution (as defined by the NACHA Rules) shall have the right to audit
Subscribers compliance with this Agreement and the NACHA Rules.
TeleCheck shall not be liable for any delays in receipt of funds or errors in debit and credit
entries caused by third parties, including, without limitation, any ACH Network participant
or Subscribers financial institution. Notwithstanding anything contained herein to the
contrary, TeleCheck shall be entitled without notice to place a hold on or suspend payment
of any amounts now due or hereafter to become due (Funds Hold) should any
questionable activity occur as determined by TeleCheck is its sole discretion including,
without limitation, an excessive amount of Return Items or a breach of the NACHA Rules,
or as otherwise required by the Originating Financial Depositary Institution or by law. In
addition to the right to place a Funds Hold with respect to any payment, TeleCheck is also
entitled without notice to freeze or terminate all processing activities. In addition to any
other remedies available to TeleCheck under this Agreement, Subscriber agrees that, if
Subscriber breaches or fails to comply with this Agreement, TeleCheck may, with notice to
be provided within 3 business days following such action, change processing or payment
terms, suspend settlement or other payments of any amounts now due, or hereafter to
become due, until TeleCheck has had reasonable opportunity to investigate such event.
Continuance of service and payment processing during any period of delinquency shall not
constitute a waiver of TeleChecks rights of suspension or termination. In the event
TeleCheck makes a partial adjustment to an Item or a credit to a Consumers account at the
request of Subscriber or as a result of a Subscriber error, and the Item becomes a Return
Item, TeleCheck may recover all such amounts from Subscriber. TeleCheck may also recover
from Subscriber the amount of any fees paid by a Consumer to Consumers financial
institution which resulted from a Subscriber error.
3.3. Warranty Requirements. TTeleCheck warrants the accuracy of its information
provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to
purchase from Subscriber one Item per ECA Warranty Transaction for which a TeleCheck
Approval Code was inaccurate; provided, however, that TeleChecks liability shall be limited
by the Warranty Maximum and warranty requirements, and shall not exceed the amount
of the Item. Subscribers sole and exclusive remedy for breach of warranty shall be the right
to require TeleCheck to purchase such Item subject to the terms and conditions contained
in this Agreement. Subscriber represents and warrants with respect to each ECA Warranty
Transaction submitted to TeleCheck for processing under this Agreement that:
a) The check is a first party check drawn on Consumers deposit account at a United States
financial institution, completely and properly filled out and made payable to Subscriber.
The name of the Consumer is imprinted or typed on the check by the check
manufacturer;
b) Subscriber made an inquiry to TeleCheck in strict accordance with TeleCheck
Operational Procedures and obtained a single TeleCheck Approval Code. The
transaction was not performed in an attempt to avoid the warranty requirements or
Warranty Maximum (as more fully described in 3.6(f)), including through split sales;
c) The transaction represents an obligation of Consumer at the point of sale (no phone,
mail or internet orders) for goods sold or rented or services rendered for the price of
such goods or services, and the transaction is not for credit, cash or payment on an
account, debt or check already due Subscriber;
d) The signature of Consumer on the Authorization Receipt is not substantially different
from the name imprinted on the check;
e) The date of the check and the ECA Warranty Transaction accurately coincides within
1 calendar day of (i) the date of the inquiry call to TeleCheck, and (ii) the date the
transaction actually occurred. (Checks may not pre-date or post-date by more than 1
calendar day the date of the inquiry call and the transaction date);
f) Subscriber has no reason to question or have notice of any fact, circumstance or defense
which would impair the validity or collectability of Consumers obligation or relieve
Consumer from liability;
g) The transaction is not subject to any stop payment, dispute or set-off;
h) Subscriber has complied with and shall comply with all applicable laws, rules,
regulations, and NACHA Rules including, without limitation, its obligations as an
Originator under the NACHA Rules, posting notice to authorize the ECA Warranty
Transaction and the Return Item Fee in a prominent and conspicuous location, and
providing a copy of the notice to the Consumer, all in accordance with Regulation E (12
C.F.R. Part 205);
i) Consumer authorized the debiting of Consumers account and the debit entry is in an
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amount agreed to by Consumer. Subscriber received a separate signed and completed
Authorization Receipt from Consumer for each ECA Warranty Transaction;
j) The paper check to which the ECA Warranty Transaction relates: (i) has not been used
in any other transaction, (ii) is voided on the front by Consumer or Subscriber, and
(iii) is returned to Consumer;
k) The amount entered into the TeleCheck system and on the Authorization Receipt match
exactly and does not exceed the Warranty Maximum; and
l) If the ECA Warranty Transaction is approved as a paper check not eligible for processing
as an electronic funds transfer, each representation and warranty set forth in Section 4.2
shall be applicable to such ECA Warranty Transaction.
3.4. Authorization Receipts. Subscriber shall (a) maintain the signed Authorization
Receipt for a minimum period of 2 years from the date of the transaction or for the period
specified by the NACHA Rules, whichever is longer, (b) physically deliver either the original
or a legible copy of the signed Authorization Receipt to TeleCheck within 7 days of
TeleChecks request, and (c) permit TeleCheck to audit Subscriber (upon reasonable notice
and during normal business hours) for compliance with this requirement.
3.5. Assignment of ECA Warranty Transactions. By electing to subscribe to the
TeleCheck ECA Warranty Service, Subscriber ASSIGNS, TRANSFERS AND CONVEYS to
TeleCheck all of Subscribers rights, title and interest in any ECA Warranty Transaction
submitted by Subscriber to TeleCheck under this Agreement. Subscriber shall, at
TeleChecks request, endorse such check and take any action reasonably deemed necessary
by TeleCheck to aid in the enforcement of TeleChecks rights hereunder.
3.6. Chargeback and Reassignment. TeleCheck may chargeback to Subscriber any ECA
Warranty Transaction processed by TeleCheck, or reassign to Subscriber any ECA Warranty
Transaction which has been approved as a paper check and purchased by TeleCheck, in
any of the following circumstances:
a) The goods or services, in whole or in part, for which the ECA Warranty Transaction was
submitted, have been returned to Subscriber, have not been delivered by Subscriber,
are claimed by Consumer to have been unsatisfactory, or are subject to any stop
payment, dispute or set-off;
b) Subscriber has received full or partial payment or security in any form to secure
payment of the Item, or the goods or services for which the Item was issued or
authorized were initially delivered on credit or under a lease;
c) The transaction is for any reason illegal, void or invalid; or purchase by or transfer to
TeleCheck of the Item is not permitted by applicable law; or a court of law determines
that the Item is, in whole or in part, not due and payable by Consumer, unless such
determination results from Consumers bankruptcy proceeding;
d) Any of the representations made by Subscriber as set forth in Section 3.3 are or become
false or inaccurate;
e) Subscriber failed to comply with this Agreement;
f) Subscriber, or any of Subscribers owners, agents or employees: (i) materially altered
either the check or the Authorization Receipt; or (ii) processed the transaction with
reason to know that the Item was likely to be dishonored (including failure to receive
a TeleCheck Approval Code) or that the identification used was forged, altered or did
not belong to Consumer; or (iii) processed the transaction in a manner which was an
attempt to avoid the warranty requirements or Warranty Maximum. Knowledge shall
be presumed in the presence of facts or circumstances which, if known, would cause a
non-subscribing merchant, using commercially reasonable judgment, to independently
refuse to accept a check. Knowledge is also presumed where there is evidence of
Subscribers attempt to avoid warranty limitations through manipulation of transactions,
including, but not limited to the splitting of a single transaction into smaller
components or resubmission of a previously denied transaction;
g) The Authorization Receipt was incomplete or unsigned, or a legible copy of the
Authorization Receipt was not received by TeleCheck within 7 days of a request by
TeleCheck;
h) A duplicate ECA Warranty Transaction relating to the same transaction was received
and processed, or the original paper check was deposited, thereby creating a duplicate
entry against Consumers financial institution account;
i) Consumer disputes authorizing the ECA Warranty Transaction or the validity or
accuracy of the transaction;
j) Subscriber received notice that Consumer filed bankruptcy and Subscriber failed to
notify TeleCheck of the bankruptcy within 3 business days of Subscribers receipt of
such notice; or
k) The closeout of the Batch and transmission of the ECA Warranty Transaction to
TeleCheck for settlement processing did not occur within 7 days from the date the
TeleCheck Approval Code was issued for the transaction.
Subscriber shall immediately notify TeleCheck upon the happening of any of the above
circumstances. If the Item is charged back or reassigned as provided herein, (a) TeleCheck
may debit Subscribers Account in the amount paid by TeleCheck for the Item, (b)
TeleCheck may deduct or offset such Item against any amounts to be paid to Subscriber for
ECA Warranty Transactions, or (c) upon request, Subscriber shall remit the amount of the
Item to TeleCheck. TeleCheck may also chargeback to Subscriber any amount over the
Warranty Maximum on any ECA Warranty Transaction where TeleCheck has not received
payment for such transaction within 60 days of the date of the ECA Warranty Transaction.
Upon charging back or reassigning an Item, TeleCheck shall have no further liability to
Subscriber on such Item. Following termination of this Agreement, Subscriber shall
continue to bear total responsibility for any reassignments, chargebacks and adjustments
made under this Section.
3.7. Account Reconciliation. Payments processed by TeleCheck will be reflected on
settlement reports made available to Subscriber by TeleCheck. Subscriber agrees to notify
TeleCheck promptly of any discrepancy between Subscribers records and the information
provided in the reports, or of any funding failures or errors. In the event any ECA Warranty
Transaction is not funded or otherwise paid by TeleCheck in accordance with Section 3.2,
Subscriber is required to notify TeleCheck in writing within 30 days from the date of such
transaction. If Subscriber fails to notify TeleCheck within such 30 day period of the
discrepancy, funding failure or error, TeleCheck shall have no liability and Subscriber is
precluded from asserting any claims, damages or losses arising from such discrepancy,
funding failure or error.
3.8. Goodwill of a Non-Compliance Item. TeleCheck, in its sole discretion, may
voluntarily elect not to chargeback or reassign to Subscriber a specific non-compliance Item
which fails to comply with the warranty requirements set forth in Section 3.3. Such
discretionary election by TeleCheck shall not (a) constitute a course of dealing or a waiver
of TeleChecks right to chargeback or reassign any other Return Item, or (b) relate to any
other past or subsequent Return Item, or (c) act as a waiver of TeleChecks right to decline
to pay any other Return Item.
3.9. Reserve Account Establishment and Funding. Subscriber expressly authorizes
TeleCheck to establish a reserve account for ECA Warranty Transactions. The amount of the
reserve account shall be set by TeleCheck, in its sole discretion, based upon Subscribers
processing history and the anticipated risk of loss to TeleCheck. The reserve account shall
be fully funded upon 3 days notice to Subscriber or in instances of fraud or breach of this
Agreement, the reserve account may be funded immediately at TeleChecks election. The
reserve account may be funded by all or any combination of the following: (a) one or more
debits to Subscribers Account (and TeleCheck is hereby authorized to make such debits);
(b) one or more deductions or offsets to any payments otherwise due to Subscriber from
TeleCheck or any of its affiliates; or (c) Subscribers delivery to TeleCheck of a letter of
credit issued or established by a financial institution acceptable to, and in a form satisfactory
to, TeleCheck. In the event of termination of this Agreement by either TeleCheck or
Subscriber, an immediate reserve account may be established without notice in the manner
provided above. Any reserve account will be held by TeleCheck for 10 months after
termination of this Agreement. Subscribers funds may be held in a commingled reserve
account for the reserve funds of TeleChecks subscribers without involvement by an
independent escrow agent, and shall not accrue interest. If Subscribers funds in the reserve
account are not sufficient to cover the delinquent fees, chargebacks or rejected and
reassigned warranty Items, or any other fees and charges due from Subscriber to TeleCheck
or its affiliates, or if the funds in the reserve account have been released, Subscriber shall
immediately pay TeleCheck such sums upon request. In the event of a failure by Subscriber
to fund the reserve account, TeleCheck may fund such reserve account in the manner set
forth above.
3.10. Fees and Rates. Subscriber shall pay TeleCheck the fees and rates set forth on the
TeleCheck Service Application and addenda, if any, or in this Agreement, as changed from
time to time by TeleCheck, plus all applicable taxes. The Inquiry Rate is the percentage
rate which shall apply to the face amount of each Item (up to the Warranty Maximum), for
which an authorization inquiry is made to TeleCheck by telephone, electronically or
otherwise, whether or not a TeleCheck Approval Code is issued. The Transaction Fee is
the additional per transaction charge for each ECA Warranty Transaction inquiry, whether
or not a TeleCheck Approval Code is issued. The Monthly Minimum Fee is the minimum
aggregate amount of Inquiry Rate fees that Subscriber shall pay on a monthly basis. If the
total Inquiry Rate fees for Subscribers inquiries for any month are less than the Monthly
Minimum Fee, then the Monthly Minimum Fee shall apply. The CROC or Customer
Requested Operator Call Fee is an additional fee of $2.50 per operator or Interactive
Voice Response (IVR)-assisted call not requested by TeleCheck. The December Risk
Surcharge is an additional percentage charge added to the Inquiry Rate for each
authorization inquiry in December. The Monthly Statement/Processing Fee is a monthly
fee for handling Subscribers account.
The following additional fees may be also be charged by TeleCheck: The Funding Report
Fee is a $15.00 monthly fee to receive daily funding reports or $10.00 monthly fee to receive
weekly funding reports. The Chargeback Fee is a $5.00 handling fee for each chargeback
of an ECA Warranty Transaction. The Correction Fee is a $5.00 fee payable on each Item
that must be corrected due to Subscribers error or at Subscribers request. The Recovery
Processing Fee is a $5.00 fee for each Item that fails to meet warranty requirements for
which TeleCheck elects, in its discretion, to reimburse Subscriber as a Goodwill Item for
a specific Return Item. A Terminal Application Update Fee of $25.00 per terminal shall
be charged for each occasion that a terminal application update is made available for
additional features, different information or regulatory compliance. Any additional requests
or other services not included in this Agreement may be subject to additional fees. Fees for
these items may be obtained by contacting TeleCheck. The above fees are in addition to any
fees charged by TeleCheck to Subscriber under any other agreement.
TERMS APPLICABLE ONLY TO
TELECHECK PAPER WARRANTY SERVICE
4. Paper Warranty Service.
4.1. Description. The TeleCheck Paper Warranty Service provide Subscriber with: (a)
coded information to assist Subscriber in deciding whether or not to accept a check; and
(b) warranty services for checks that meet the warranty requirements of Section 4.2, all in
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43
accordance with this Agreement.
4.2. Warranty Requirements. TeleCheck warrants the accuracy of its information
provided that all requirements set forth in this Section are strictly met. TeleCheck agrees to
purchase from Subscriber one check per Paper Warranty Transaction for which a TeleCheck
Approval Code was inaccurate; provided, however, that TeleChecks liability shall be limited
by the Warranty Maximum and warranty requirements, and shall not exceed the amount
of the check. Subscribers sole and exclusive remedy for breach of warranty shall be the
right to require TeleCheck to purchase such check subject to the terms and conditions
contained in this Agreement. Subscriber represents and warrants with respect to each Paper
Warranty Transaction submitted to TeleCheck for processing under this Agreement that:
a) The check is a first party check drawn on Consumers deposit account at a United States
or Canadian financial institution, completely and properly filled out, and made payable
to Subscriber. The name of the Consumer is imprinted or typed on the check by the
check manufacturer. If a P.O. Box is used or an address is not imprinted by the check
manufacturer, a physical address description is written on the check according to
TeleCheck Operational Procedures;
b) Subscriber made an inquiry to TeleCheck in strict accordance with TeleCheck
Operational Procedures and obtained a single TeleCheck Approval Code. The transaction
was not performed in an attempt to avoid the warranty requirements or Warranty
Maximum (as more fully described in Section 4.4(f)), including through split sales;
c) The transaction represents an obligation of Consumer at the point of sale (no phone,
mail or internet orders) for goods sold or rented or services rendered for the price of
such goods or services, and the transaction is not for credit, cash or payment on an
account, debt or check already due Subscriber;
d) The signature in the signature block on the check is not substantially different from
the name imprinted on the check;
e) The date of the check accurately coincides within 1 calendar day of (i) the date of the
inquiry call to TeleCheck, and (ii) the date the transaction actually occurred. (Checks
may not pre-date or post-date by more than 1 calendar day the date of the inquiry call
and the transaction date);
f) Subscriber has no reason to question or have notice of any fact, circumstance or defense
which would impair the validity or collectability of Consumers obligation or relieve
Consumer from liability;
g) The TeleCheck Subscriber Number, Consumers telephone number (including area
code), identification type and number and TeleCheck Approval Code are printed or
written on the check;
h) The amount shown in words and figures on the check is (i) less than or equal to the
amount entered into the TeleCheck system, or (ii) no more than $1.00 over the amount
entered into the TeleCheck system;
i) The check is deposited in Subscribers Account and received by TeleCheck for purchase
within 30 days of the date of the check. Such check has been sent directly from
Subscribers financial institution after being presented for payment only once (no
representments shall be allowed, whether paper or electronic); and
j) The transaction is not subject to any stop payment, dispute or set-off.
4.3. Assignment of Checks. By electing to subscribe to the Paper Warranty Service,
Subscriber ASSIGNS, TRANSFERS AND CONVEYS to TeleCheck all of Subscribers rights,
title and interest in any check submitted to TeleCheck for coverage under this Agreement.
Subscriber shall, at TeleChecks request, endorse such check and take any action reasonably
deemed necessary by TeleCheck to aid in the enforcement of TeleChecks rights hereunder.
4.4. Reassignment. TeleCheck may reassign to Subscriber any check purchased by
TeleCheck pursuant to the Paper Warranty Service provisions of this Agreement, in any of
the following circumstances:
a) The goods or Service, in whole or in part, for which the check was issued have been
returned to Subscriber, have not been delivered by Subscriber, claimed by Consumer to
have been unsatisfactory, or are subject to any stop payment, dispute or set-off;
b) Subscriber has received full or partial payment or security in any form to secure
payment of the check, or the goods or services for which the check was issued were
initially delivered on credit or under a lease;
c) The transaction is for any reason illegal, void or invalid; or purchase by or transfer to
TeleCheck of the check is not permitted by applicable law; or a court of law determines
that the check is, in whole or in part, not due and payable by Consumer, unless such
determination results from Consumers bankruptcy proceeding;
d) Any of the representations made by Subscriber as set forth in Section 4.2 are or become
false or inaccurate;
e) Subscriber failed to comply with this Agreement;
f) Subscriber, or any of Subscribers owners, agents or employees: (i) materially altered
the check; or (ii) accepted the check with reason to know that it was likely to be
dishonored (including failure to receive a TeleCheck Approval Code) or that the
identification used was forged, altered or did not belong to Consumer; or (iii) processed
the transaction in a manner which was an attempt to avoid the warranty requirements
or Warranty Maximum. Knowledge shall be presumed in the presence of facts or
circumstances which, if known, would cause a non- subscribing merchant, using
commercially reasonable judgment, to independently refuse to accept a check.
Knowledge is also presumed where there is evidence of Subscribers attempt to avoid
warranty limitations through manipulation of transactions, including, but not limited
to the splitting of a single transaction into smaller components or resubmission of a
previously denied transaction; or
g) Subscriber received notice that Consumer filed bankruptcy and Subscriber failed to notify
TeleCheck of the bankruptcy within 3 business days of Subscribers receipt of such notice.
Subscriber shall immediately notify TeleCheck upon the happening of any of the above
circumstances. If the check is reassigned as provided herein, TeleCheck may debit
Subscribers Account in the amount paid by TeleCheck for the check, or upon request,
Subscriber shall remit the amount of the check to TeleCheck. Upon reassignment of a check,
TeleCheck shall have no further liability to Subscriber on such check. Following
termination of this Agreement, Subscriber shall continue to bear total responsibility for any
reassignments, chargebacks and adjustments made under this Section.
4.5. Goodwill of a Non-Compliance Item. TeleCheck, in its sole discretion, may
voluntarily elect not to reassign to Subscriber a specific non-compliance Item which fails
to comply with the warranty requirements set forth in Section 4.2. Such discretionary
election by TeleCheck shall not (a) constitute a course of dealing or a waiver of TeleChecks
right to reassign any other Return Item, or (b) relate to any other past or subsequent Return
Item, or (c) act as a waiver of TeleChecks right to decline to pay any other Return Item.
4.6. Fees and Rates. Subscriber shall pay TeleCheck the fees and rates set forth on the
TeleCheck Service Application and addenda, if any, or in this Agreement, as changed from
time to time by TeleCheck, plus all applicable taxes. The Inquiry Rate is the percentage
rate which shall apply to the face amount of each Item (up to the Warranty Maximum), for
which an authorization inquiry is made to TeleCheck by telephone, electronically or
otherwise, whether or not a TeleCheck Approval Code is issued. The Transaction Fee is
the additional per transaction charge for each transaction inquiry, whether or not a
TeleCheck Approval Code is issued. The Monthly Minimum Fee is the minimum
aggregate amount of Inquiry Rate fees that Subscriber shall pay on a monthly basis. If the
total Inquiry Rate fees for Subscribers inquiries for any month are less than the Monthly
Minimum Fee, then the Monthly Minimum Fee shall apply. The CROC or Customer
Requested Operator Call Fee is an additional fee per operator or Interactive Voice
Response (IVR)-assisted call not requested by TeleCheck. The December Risk Surcharge
is an additional percentage charge added to the Inquiry Rate for each authorization inquiry
in December. The Monthly Statement/Processing Fee is a monthly fee for handling
Subscribers account.
The following additional fees may be also be charged by TeleCheck: The Recovery
Processing Fee is a $5.00 fee for each Item that fails to meet warranty requirements for
which TeleCheck elects, in its discretion, to reimburse Subscriber as a Goodwill Item for
a specific Return Item. A Terminal Application Update Fee of $25.00 per terminal shall
be charged for each occasion that a terminal application update is made available for
additional features, different information or regulatory compliance. Any additional requests
or other services not included in this Agreement may be subject to additional fees. Fees for
these items may be obtained by contacting TeleCheck. The above fees are in addition to
any fees charged by TeleCheck to Subscriber under any other agreement.
GENERAL TERMS APPLICABLE TO
ALL TELECHECK SERVICES
13. Payment. All fees and charges are due upon receipt of invoice. Subscriber authorizes
TeleCheck to debit from Subscribers Account, all payments and other amounts owed
(including, without limitation, all Return Items, Returned Payments, chargebacks,
adjustments, fees and charges, and delinquency charges) under this Agreement or any other
agreement between Subscriber and TeleCheck or its affiliates, and to credit all amounts
owing to Subscriber under this Agreement to Subscribers Account. If there are insufficient
funds in Subscribers Account to pay amounts owed to TeleCheck or its affiliates, or if debits
to Subscribers account are rejected due to ACH debit blocks, or if there are any amounts
otherwise not paid by Subscriber when due, including, without limitation, delinquency
charges, chargebacks or rejected and reassigned warranty Items, Subscriber shall
immediately reimburse TeleCheck or its affiliates upon demand, or at TeleChecks option,
TeleCheck may offset or recoup such amounts against any amounts due Subscriber under
this Agreement or any other agreement between Subscriber and TeleCheck or its affiliates.
A delinquency charge of 1-1/2% per month or the highest amount permitted by law,
whichever is lower, shall be added to the outstanding balance of any account over 15 days
delinquent. TeleCheck shall have the right to suspend all services and obligations to
Subscriber, including the payment of all warranties due and all transactions previously
authorized, during any period in which Subscribers account is delinquent. Subscriber agrees
to pay to TeleCheck a fee of $25.00 or the highest amount permitted by law, whichever is
lower, for any Returned Payment. Subscriber shall also be responsible for paying for all of
the point of sale supplies related to the TeleCheck services (i.e., paper and ink for terminals,
rubber stamps, if applicable).
14. Security Interest. To secure Subscribers obligations to TeleCheck and its affiliates
under this Agreement and any other agreement (including any check or credit card
processing services), Subscriber grants to TeleCheck a lien and security interest in and to
any of Subscribers funds pertaining to the transactions contemplated by this Agreement
now or hereafter in the possession of TeleCheck or its affiliates, whether now or hereafter
due or to become due to Subscriber from TeleCheck. Any such funds may be commingled
with other funds of TeleCheck, or, in the case of any funds held in a reserve account, with
any other funds of other subscribers of TeleCheck. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights, TeleCheck is
hereby authorized by Subscriber at any time and from time to time, without notice or
demand to Subscriber or to any other person (any such notice and demand being hereby
expressly waived), to set off, recoup and to appropriate and to apply any and all such funds
AGL1704(ia)
44
against and on account of Subscribers obligations to TeleCheck and its affiliates under this
Agreement and any other agreement, including, without limitation, fees for any other
services (including any check or credit card processing services), whether such obligations
are liquidated, unliquidated, fixed, contingent, matured or unmatured. Subscriber agrees to
duly execute and deliver to TeleCheck such instruments and documents as TeleCheck may
reasonably request to perfect and confirm the lien, security interest, right of set off,
recoupment and subordination set forth in this Agreement.
15. Point of Sale Notices; Return Item Fees. Subscriber agrees to follow procedures
and post and provide at TeleChecks direction any notices (including any updates to such
notices) which in TeleChecks opinion may be required for TeleCheck to process the Item
and/or the Return Item Fee, as an electronic funds transfer, draft or otherwise. Subscriber
also agrees to assess a Return Item Fee on all Return Items, and that TeleCheck shall be
entitled to collect and retain the Return Item Fee from Consumer.
16. TeleCheck Approval Code. Subscriber acknowledges that TeleCheck will use its
internal and proprietary risk management systems to evaluate the risk associated with any
particular Item and to assist in its decision whether or not to issue a TeleCheck Approval
Code. The decision to issue a TeleCheck Approval Code shall be within the discretion of
TeleCheck.
17. Credit Law Compliance. Subscriber certifies that: (a) Subscriber has a legitimate
business need, in connection with a business transaction initiated by Consumer, for the
information provided by TeleCheck under this Agreement regarding such Consumer; and
(b) the information provided by TeleCheck shall only be used for permissible purposes as
defined in the Fair Credit Reporting Act, and applicable state and federal laws, with the
exception that the information shall not be used for employment purposes, and shall not
be used by Subscriber for any purpose other than a single business transaction between
Consumer and Subscriber occurring on the date of the inquiry call to TeleCheck. Neither
Subscriber, nor Subscribers agents or employees, shall disclose the results of any inquiry
made to TeleCheck except to Consumer about whom such inquiry is made and in no case
to any other person outside Subscribers organization. If Subscriber decides to reject any
transaction, in whole or in part, because of information obtained from TeleCheck,
Subscriber agrees to provide Consumer with all information required by law and TeleCheck.
18. Use of TeleCheck Materials and Marks. Pursuant to authorization granted to
TeleCheck by TeleCheck International, Inc., the owner of the trademarks referenced in this
section, TeleCheck grants to Subscriber, and Subscriber accepts, a nonexclusive,
nonassignable and nontransferable limited license, uncoupled with any right or interest, to
use the TELECHECK and the TELECHECK logo service marks, and for those Subscribers
who are receiving ECA Warranty Service or ECA Verification Service, the TELECHECK
ELECTRONIC CHECK ACCEPTANCE and ECA Service marks (collectively, the
TeleCheck Marks) as follows. Subscriber may use and display decals, identification data
and other materials provided by TeleCheck during the term of this Agreement at Subscribers
location solely in connection with the offering of TeleCheck services as authorized under
this Agreement. Subscriber shall not permit any persons other than its own officers or
employees at Subscribers locations to use the TeleCheck Subscriber number assigned by
TeleCheck. Subscriber agrees that upon termination of this Agreement it will, at its own
expense, either return or destroy all TeleCheck materials (including the prompt removal of
any TeleCheck decals, electronic files, logos or other materials or references to TeleCheck
that are displayed to the public, including those affixed to equipment, doors or windows).
The monthly fees payable by Subscriber will apply for all months or fractions of a month
that any materials or TeleCheck-owned equipment remain in use. Subscriber shall not create
any print, electronic or Internet-based materials including but not limited to any advertising
or promotional materials using any TeleCheck Marks without the prior written consent of
TeleCheck. Subscriber acknowledges TeleCheck International, Inc.s ownership of the
TeleCheck Marks and will not contest the validity of the marks or the ownership thereof.
Subscriber further agrees to refrain from performing any acts that might discredit, disparage,
dilute, infringe or negatively affect the value of the TeleCheck Marks or constitute unfair
competition to TeleCheck or TeleCheck International, Inc. Subscriber agrees promptly to
bring to TeleChecks attention any unauthorized use of the TeleCheck Marks by third parties
of which Subscriber becomes aware. Subscriber shall use the TeleCheck Marks pursuant to
any guidelines provided by TeleCheck, as may be amended from time to time. The following
shall appear at least once on every piece of advertising or promotional material created by
Subscriber which uses the TeleCheck Marks and has received prior written approval from
TeleCheck: The [Applicable Mark] trademark is owned by TeleCheck International, Inc.
and is licensed for use by [Subscriber Name].
19. Use of Information. Subscriber agrees that: (a) any data and other information
relating to an Item or Consumer obtained by TeleCheck in connection with any service
provided hereunder (including any electronic or other image of all or any portion of any
check or drivers license or other identification) shall be owned by TeleCheck, with all right,
title, and interest thereto; (b) TeleCheck may use any credit information provided to a
TeleCheck affiliate for TeleChecks credit review; and (c) TeleCheck may provide or receive
any experiential information regarding Subscriber or Subscribers customers to or from any
TeleCheck affiliate.
20. TeleCheck Operational Procedures. Subscriber shall strictly follow all TeleCheck
Operational Procedures provided to Subscriber, as may be amended from time to time by
TeleCheck, in its discretion.
21. Equipment.
21.1. General. Subscriber may purchase point-of-sale equipment or Subscriber may rent
equipment from TeleCheck as indicated on the TeleCheck Service Application. Title to all
rental or loaned equipment, if any, is retained by TeleCheck. Monthly rental fees will apply
to all months or fractions of a month any equipment remains in use by or in the actual or
constructive possession of Subscriber. Upon termination of this Agreement, Subscriber, at
Subscribers expense, shall return all equipment to TeleCheck in good repair, ordinary wear
and tear excepted. TeleCheck will replace or repair terminal equipment rented or purchased
from TeleCheck; provided, however that a swap fee of $129.00 shall be charged per POS
terminal replaced. Subscriber bears the entire risk of loss, theft or damage of or to
equipment, whether or not owned by Subscriber. If TeleCheck provides replacement
equipment to Subscriber via mail or other delivery service, Subscriber must return replaced
equipment to TeleCheck within thirty (30) business days or Subscriber will be deemed to
have purchased the equipment and will be billed for it. Subscriber will not permit anyone
other than authorized representatives of TeleCheck to adjust, maintain, program or repair
equipment. A reprogramming fee of $25.00 rate will be charged for each occasion that a
piece of equipment is reprogrammed for additional features or different information.
Subscriber will install all product updates to the equipment, its software or firmware, within
thirty (30) days of receiving the updates from TeleCheck. There is a 30-day manufacturers
warranty on purchased equipment. A fee for the shipping and handling of equipment and
parts will be charged to the Subscriber.
21.2. Equipment Software, Firmware License. TeleCheck grants to Subscriber, and
Subscriber accepts, a nonexclusive, non-assignable and nontransferable limited license to
use the software and firmware provided with the equipment; provided, Subscriber will not:
(i) export the equipment, software or firmware outside the US; (ii) copy or use the software,
firmware or documentation provided by TeleCheck with the equipment; (iii) sublicense or
otherwise transfer any portion of such software, firmware, documentation or the equipment;
(iv) alter, change, reverse engineer, decompile, disassemble, modify or otherwise create
derivative works of such software, firmware, documentation or the equipment; or (v)
remove or alter any intellectual property or proprietary notices, markings, legends, symbols,
or labels appearing on, in or displayed by such software, firmware, documentation or the
equipment.
22. Limitation of Liability. In no event shall either TeleCheck or Subscriber be liable to
the other party, or to any other person or entity, under this Agreement, or otherwise, for any
punitive, exemplary, special, incidental, indirect or consequential damages, including,
without limitation, any loss or injury to earnings, profits or goodwill, regardless of whether
such damages were foreseeable or whether such party has been advised of the possibility
of such damages. Notwithstanding anything to the contrary contained in this Agreement,
in no event shall TeleChecks liability under this Agreement for all Claims arising under, or
related to, this Agreement exceed, in the aggregate (inclusive of any and all Claims made
by Subscriber against TeleCheck, whether related or unrelated), the lesser of: (a) the total
amount of fees paid to TeleCheck by Subscriber pursuant to this Agreement during the 12
month period immediately preceding the date the event giving rise to such Claims occurred;
or (b) $75,000.00.
23. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TELECHECK MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED AT
LAW WARRANTY SHALL ARISE FROM THIS AGREEMENT OR FROM PERFORMANCE
BY TELECHECK, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, ALL OF WHICH ARE
EXPRESSLY WAIVED BY SUBSCRIBER. All decisions to reject any Item, drivers license or
other form of identification or payment for Subscribers products or services are solely
Subscribers responsibility.
24. Changes in Law or NACHA Rules. Notwithstanding anything to the contrary in
this Agreement, if the continued performance of all or any portion of the obligations of
TeleCheck becomes impossible or illegal due to changes in applicable federal, state or local
laws or regulations, or by NACHA Rules, as determined by TeleCheck in its reasonable
discretion, TeleCheck may, upon 30 days written notice to Subscriber, modify or discontinue
TeleChecks performance of its obligations to the extent necessary to avoid a violation of law
or NACHA Rules or, if TeleCheck chooses in its sole discretion to incur additional expenses
to comply, increase its fees to cover the additional cost of compliance. Additionally, if any fees
or charges to TeleCheck increase for processing transactions through the ACH Network,
TeleCheck may increase its fees by providing Subscriber 30 days written notice. Any notice
under this section to increase fees or modify obligations will be effective 30 days from the
date notice is mailed to Subscriber, and in such event Subscriber may terminate this
Agreement upon written notice received by TeleCheck within such 30 day period.
25. Data Security. Subscriber shall implement commercially reasonable and prudent
policies and procedures, including administrative, physical and technical safeguards which
are designed to meet the following objectives: (a) ensure the security and confidentiality of
Customer Information, (b) protect against any reasonably anticipated threats or hazards to
the security or integrity of such Customer Information, and (c) protect against unauthorized
access to or use of Customer Information that could result in substantial harm or
inconvenience to Subscribers customer. Customer Information means all Subscriber
customer information received by Subscriber in connection with any transaction
contemplated by this Agreement. Subscriber agrees to comply with all provisions of
applicable federal and state laws and regulations and NACHA Rules, as amended from time
to time, related to the protection of Customer Information.
26. Updating Information. With regard to any Return Items submitted to TeleCheck,
Subscriber shall promptly notify TeleCheck if: (a) a Consumer makes any payment to
Subscriber; (b) there is a return of goods or services, in whole or in part; or (c) there is a
dispute of any amount, notice of bankruptcy or any other matter.
27. Confidentiality. Subscriber shall maintain the confidentiality of this Agreement and
AGL1704(ia)
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any information provided to Subscriber by either TeleCheck, including, without limitation,
TeleCheck Operational Procedures, pricing or other proprietary business information,
whether or not such information is marked confidential. Such information shall not be
used except as required in connection with the performance of this Agreement or disclosed
to third parties.
28. No Resale, Assignment of Agreement. This Agreement is solely between TeleCheck
and Subscriber. Subscriber shall not provide or resell directly or indirectly, the services
provided by TeleCheck to any other third party. This Agreement may be assigned by
Subscriber only with the prior written consent of TeleCheck. TeleCheck may freely assign
this Agreement, its rights, benefits or duties hereunder. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the successors and assigns of
TeleCheck and Subscribers heirs, executors, administrators, successors and assigns.
29. Indemnification. In the event Subscriber (a) fails to strictly comply, in whole or in
part, with any: (i) terms and conditions of this Agreement and any addenda hereto or
TeleCheck Operational Procedures; or (ii) applicable law, rules, regulations and NACHA
Rules, or (b) makes any false or inaccurate representation, Subscriber shall indemnify,
defend and hold harmless the TeleCheck Parties from and against any and all Claims arising
therefrom, including payment of all costs and reasonable attorneys fees for actions taken
by TeleCheck, whether by suit or otherwise, to defend the TeleCheck Parties from any Claim
related thereto or to preserve or enforce TeleChecks rights under this Agreement. In the
event of any legal action with third parties or regulatory agencies concerning any transaction
or event arising under this Agreement, Subscriber shall: (a) promptly notify TeleCheck of
the Claims or legal action; (b) reasonably cooperate with TeleCheck in the making of any
Claims or defenses; and (c) provide information, assist in the resolution of the Claims and
make available at least one employee or agent who can testify regarding such Claims or
defenses. Upon written notice from TeleCheck to Subscriber, Subscriber shall immediately
undertake the defense of such Claim by representatives of its own choosing, subject to
TeleChecks reasonable approval; provided, however, that TeleCheck shall have the right to
control and undertake such defense by representatives of its own choosing, but at
Subscribers cost and expense, if the Claim arises out of patent, trademark, or other
intellectual property rights or laws.
30. Notices. Any notice or other communication required or permitted to be given
hereunder in writing if to Subscriber at Subscribers address appearing in the Merchant
Processing Application and Agreement or by any electronic means including not limited to
the email address you have provided on the Merchant Processing Application and
Agreement or if to TeleCheck, at TeleCheck Merchant Services, Mail Stop A-12, 7301 Pacific
Street, Omaha, NE 68114, with a copy to General Counsels Office, 3975 N.W. 120th
Avenue, Coral Springs, FL 33065, and shall be deemed to have been properly given (a)
upon receipt if by facsimile transmission, as evidenced by the date of transmission indicated
on the transmitted material, (b) upon receipt if deposited on a prepaid basis with a
nationally recognized overnight courier for next business day delivery, or (c) on the date
of delivery indicated on the return receipt, if mailed by certified or registered mail. Notices
sent to Subscribers last known address (including email address) as indicated in our
records, shall constitute effective notice to the Subscriber under this Agreement. TeleCheck
shall also be permitted to provide notice by regular mail and such notice shall be deemed
effective 10 days after mailing, unless otherwise provided in this Agreement. The parties
addresses may be changed by written notice to the other party as provided herein.
31. Force Majeure. TeleCheck shall not be held responsible for any delays in or failure
or suspension of service caused by mechanical or power failure, computer malfunctions
(including, without limitation, software, hardware and firmware malfunctions),
transmission link failures, communication failures, failure, delay or error in clearing or
processing a transaction through the ACH Network or Federal Reserve system, failure,
delay or error by any third party or any other third party system, strikes, labor difficulties,
fire, inability to operate or obtain service for its equipment, unusual delays in
transportation, act of God or other causes reasonably beyond the control of TeleCheck.
32. Compliance with Laws, Governing Law, Integration and Waiver of Jury Trial.
Subscriber agrees to comply with all federal and state laws, regulations and rules, including
NACHA Rules, each as amended, relating to the services provided hereunder. Subscriber
further acknowledges and agrees that it will not use Subscribers Account and/or TeleCheck
Services for illegal transactions, for example, those prohibited by the Unlawful Internet
Gambling Enforcement Act, 31 U.S.C. Section 5361 et seq., as may be amended from time
to time, or processing and acceptance of transactions in certain jurisdictions pursuant to 31
CFR Part 500 et seq. and other laws enforced by the Office of Foreign Assets Control
(OFAC). Subscriber certifies that it has not been suspended by NACHA or any credit card
association, or cancelled by an ODFI or Third Party Sender (as defined in the NACHA
Rules). This Agreement, plus any addenda attached hereto, constitutes the entire Agreement
between the parties concerning subject matter hereof and supersedes all prior and
contemporaneous understandings, representations and agreements in relation to its subject
matter. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF.
ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING
TO OR ARISING UNDER THIS AGREEMENT.
33. Severability and Interpretation, Third Party Beneficiaries. If any provision, in
whole or in part, of this Agreement is held invalid or unenforceable for any reason, the
invalidity shall not affect the validity of the remaining provisions of this Agreement, and the
parties shall substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision. Neither this
Agreement, nor any addenda or TeleCheck Operational Procedures, shall be interpreted in
favor or against any party because such party or its counsel drafted such document. No
course of dealing, usage, custom of trade or communication between the parties shall
modify or alter any of the rights or obligations of the parties under this Agreement. This
Agreement is solely for the benefit of TeleCheck (and its affiliates) and Subscriber and no
other person or entity shall have any right, interest or claim under this Agreement.
34. Amendment and Waiver. No modification, amendment or waiver of any of the terms
and conditions of this Agreement shall be binding upon TeleCheck unless made in writing
and approved and signed by TeleCheck. No waiver of any rights hereunder shall be deemed
effective unless in writing executed by the waiving party. No waiver by any party of a breach
or any provision of this Agreement shall constitute a waiver of any prior or subsequent
breach of the same or any other provision of this Agreement. The parties agree that no
failure or delay in exercising any right hereunder shall operate as a waiver of any such right.
All of TeleChecks rights are cumulative, and no single or partial exercise of any right
hereunder shall preclude further exercise of such right or any other right.
35. Damages. Upon Subscribers breach of this Agreement, including any unauthorized
termination, TeleCheck shall be entitled to recover from Subscriber liquidated damages in
an amount equal to ninety percent (90%) of the aggregate Monthly Minimum Fees and
Monthly Statement/ Processing Fees payable for the unexpired portion of the then current
term of this Agreement. TeleCheck and Subscriber hereby acknowledge and agree that, after
giving due consideration to the costs TeleCheck may incur by reason of Subscribers breach
of this Agreement, to the possibility that TeleCheck will not be able to mitigate its damages,
and to the expense savings that TeleCheck may obtain by not having to provide services or
maintenance, the liquidated damages specified herein constitute a realistic pre-estimate of
the loss to TeleCheck in the event of such breach.
36. Financial and Other Information
36.1. Upon request, you will provide us and our affiliates, quarterly financial statements
within 45 days after the end of each fiscal quarter and annual audited financial statements
within 90 days after the end of each fiscal year. Such financial statements shall be prepared
in accordance with generally accepted accounting principles. You will also provide such
other financial statements and other information concerning your business and your
compliance with the terms and provisions of this Agreement as we may reasonably request.
You authorize us and our affiliates to obtain from third parties financial and credit
information relating to you in connection with our determination whether to accept this
Agreement and our continuing evaluation of your financial and credit status. Upon request,
you shall provide, and/or cause to be provided, to us and our affiliates, or our representatives
or regulators reasonable access to your or your service providers facilities and records for
the purpose of performing any inspection and/or copying of books and/or records deemed
appropriate. In such event, you shall pay the costs incurred by us or our affiliates for such
inspection, including, but not limited to, costs incurred or airfare and hotel
accommodations.
36.2. Subscriber will provide TeleCheck written notice of any judgment, writ, warrant, or
attachment, execution or levy against any substantial part (25% or more in value) of your
total assets not later than three (3) days after you become aware of the same.
37. Survivability. All representations, warranties, indemnities, limitations of liability and
covenants made herein shall survive the termination of this Agreement and shall remain
enforceable after such termination.
38. IRS Reporting. Pursuant to Section 6050W of the Internal Revenue Code, merchant
acquiring entities and third party settlement organizations are required to file an
information return for each calendar year beginning January 1, 2011 reporting all payment
card transactions and third party network transactions with payees occurring in that
calendar year. Accordingly, you will receive a Form 1099 reporting your gross transaction
amounts for each calendar year beginning with transactions processed in calendar year
2011. In addition, amounts reportable under Section 6050W are subject to backup
withholding requirements. Payors are required to perform backup with holding by
deducting and withholding income tax from reportable transactions if (a) the payee fails to
provide the payees taxpayer identification number (TIN) to the payor, or (b) if the IRS
notifies the payor that the TIN (when matched with the name) provided by the payee is
incorrect. Accordingly, to avoid backup withholding, it is very important that you provide
us with the correct name and TIN that you use when filing your tax return that includes
the transactions for your business.
ADDENDA TO TELECHECK SERVICES AGREEMENT
41. MAIL ORDER WARRANTY SERVICE ADDENDUM
If you elect to subscribe to the Mail Order Warranty Service, the terms and conditions of
this Section shall apply, and the Agreement is amended to include the Mail Order Warranty
Service for the warranty of paper checks issued in mail order transactions. TeleCheck and
Subscriber agree as follows:
41.1. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in Section 4.2 of the Agreement shall apply to the Mail Order Warranty Service
except for the additions and modifications to the requirements as follows:
a) The date of the check and the date of the inquiry call to TeleCheck are no later than the
date of the deposit of the check;
b) The goods purchased through mail order are not mailed to a P.O. Box address unless the
AGL1704(ia)
46
order is mailed to a post office box located in Alaska;
c) The date of the inquiry is written on the check; and
d) The check is received by TeleCheck for purchase within 45 days from the date of the
inquiry call. A copy of the invoice must accompany each warranty request.
41.2. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleChecks management.
Except as expressly modified by this Mail Order Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCheck Paper
Warranty Services shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
42. C.O.D. WARRANTY SERVICE ADDENDUM
If you elect to subscribe to the C.O.D. Warranty Service, the terms and conditions of this
Section shall apply, and the Agreement is amended include the C.O.D. Warranty Service for
the warranty of paper checks issued in a C.O.D. transaction that meet the warranty
requirements. TeleCheck and Subscriber agree as follows:
42.1. Check Approval Amount. To obtain an authorization, Subscriber may need to
estimate the amount of the check to include freight and handling charges. TeleCheck will
honor the warranty on the check in accordance with the warranty requirements up to the
Warranty Maximum if the amount of the check differs from the check approval amount by
no more than 10%.
42.2. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in Section 4.2 of the Agreement shall apply to the C.O.D. Warranty Service
except for the additions and modifications to the requirements as follows:
a) The date of the inquiry call to TeleCheck is no later than 10 days of the date of the
check;
b) The date of inquiry call and TeleCheck Approval Code are written on the check; and
c) The check is received by TeleCheck for purchase within 45 days from the date of the
inquiry call. A copy of the invoice must accompany each warranty request.
42.3. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleChecks management.
Except as expressly modified by this C.O.D. Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCheck Paper
Warranty Service shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
43. HOLD CHECK WARRANTY SERVICE ADDENDUM
If you elect to subscribe to the Hold Check Warranty Service, the terms and conditions of
this Section shall apply, and the Agreement is amended to include the Hold Check Warranty
Service for the warranty of paper checks issued for the down payment of a vehicle purchase
which meet the paper warranty requirements. TeleCheck and Subscriber agree as follows:
43.1. Definition. The following definition shall be applicable to the Hold Check Warranty
Service: Hold Check means any check written towards the purchase of a vehicle which
is held prior to deposit in Subscribers Account. Single Hold Check means the Hold Check
services as selected on the TeleCheck Service Application for the warranty of one Hold
Check. Multiple Hold Check means the Hold Check services as selected on the TeleCheck
Service Application for the warranty of up to four (4) Hold Checks.
43.2. Warranty Requirements. The warranty requirements for Paper Warranty Service
as set forth in 4.2 of the Agreement shall apply to the Hold Warranty Service except for the
additions and modifications to the requirements as follows:
a) If Single Hold Check, Subscriber may accept a maximum of one (1) Hold Check for
each vehicle purchase transaction.
b) If Multiple Hold Check, Subscriber may accept a maximum of four (4) Hold Checks for
each vehicle purchase transaction. The first such Hold Check must be deposited within
two business days of the purchase.
c) The aggregate dollar amount of TeleChecks warranty for the Hold Checks and the
aggregate dollar amount of Hold Checks accepted by the Subscriber shall be the lesser of
(i) the amount of the Hold Checks accepted by Subscriber for the purchase, (ii) the
Warranty Maximum noted on the TeleCheck Service Application or (iii) 25% of the total
purchase price of the vehicle.
d) The Hold Checks must be dated the same date as the purchase agreement and coincide
with the date of inquiry to TeleCheck. The inquiry to TeleCheck must be made using
Subscribers Hold Check subscriber number.
e) The check writer must be (i) the purchaser of the vehicle, (ii) the person whose name
is to be on the title of the vehicle, and (iii) if the vehicle is being financed, the person listed
on the finance papers.
For California Subscribers only: A Check Writer Hold Check Agreement, as provided
by TeleCheck, outlining the Hold Check amounts and deposit dates (i) must be completed
and agreed upon by Subscriber and the check writer, (ii) shall not be executed by Subscriber
and the check writer, (iii) shall have the following or substantially similar provision printed
or written on the agreement: Incorporated by Reference into Sales Contract; and (iv) shall
be stapled to the sales contract for the vehicle. In addition, the sales contract for the
purchase of the vehicle shall (i) include total amount of the Hold Checks, and (ii) have the
following or substantially similar provision printed or written on the contract: See attached
Check Writer Hold Check Agreement incorporated by this reference.
f) A Check Writer Hold Check Agreement, as provided by TeleCheck, outlining the Hold
Check amounts and deposit dates must be completed and agreed upon by Subscriber and
the check writer.
g) Warranty requests must reach TeleCheck within 45 days from the date of the Hold
Check and must be accompanied by (i) a copy of the purchase agreement, (ii) a copy of the
Check Writer Hold Check Agreement described above, (iii) a copy of the credit application,
(iv) proof of purchaser insurance and (v) a TeleCheck Warranty Request form.
h) In addition to all other terms and conditions to the TeleCheck Paper Warranty Service
program, the parties agree that the warranty shall not be applicable if any of the following
has occurred: (i) the vehicle has not left Subscribers possession, (ii) the vehicle has been
returned to Subscribers possession, (iii) an attempt has been made to return the vehicle to
Subscriber, but Subscriber has not accepted the return of the vehicle, or (iv) the purchaser
has attempted to rescind the purchase.
43.3. Termination. This Addendum may be terminated by either party at any time by
providing 30 days written notice to the other party and is not valid until accepted by
TeleChecks management.
Except as expressly modified by this Hold Check Warranty Service Addendum, all
provisions contained in the Agreement and applicable to the TeleCheck Paper
Warranty Service shall remain in full force and effect. In the event of any conflict or
any inconsistency between the Agreement and this Addendum, the provisions of this
Addendum shall govern and control.
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47
PART IV: ADDITIONAL IMPORTANT INFORMATION FOR CARDS
A.1. Electronic Funding Authorization
All payments to Client shall be through the Automated Clearing House (ACH)
and shall normally be electronically transmitted directly to the Settlement Account
you have designated or any successor account designated to receive provisional
funding of Clients Card sales pursuant to the Agreement. Client agrees that any
Settlement Account designated pursuant to the preceding sentence will be an
account primarily used for business purposes. Neither Wells Fargo Bank, N.A. nor
First Data Merchant Services Corporation can guarantee the time frame in which
payment may be credited by Clients financial institution where the Settlement
Account is maintained.
Client hereby authorizes Wells Fargo Bank, N.A. and its authorized representative,
including First Data Merchant Services Corporation, to access information from
the Settlement Account and to initiate credit and/or debit entries by bankwire or
ACH transfer and to authorize your financial institution to block or to initiate, if
necessary, reversing entries and adjustments for any original entries made to the
Settlement Account and to authorize your financial institution to provide such
access and to credit and/or debit or to block the same to such account. This
authorization is without respect to the source of any funds in the Settlement
Account, is irrevocable and coupled with an interest. This authority extends to any
equipment rental or purchase agreements which may exist with Client as well as
to any fees, fines and assessments and Chargeback amounts of whatever kind or
nature due to First Data Merchant Services Corporation or Wells Fargo Bank, N.A.
under terms of this Agreement whether arising during or after termination of the
Agreement. This authority is to remain in full force and effect at all times unless
and until First Data Merchant Services Corporation and Wells Fargo Bank, N.A.
have consented to its termination at such time and in such a manner as to afford
them a reasonable opportunity to act on it. In addition, Client shall be charged
twenty-five dollars ($25.00) for each ACH which cannot be processed, and all
subsequent funding may be suspended until Client either (i) notifies First Data
Merchant Services Corporation that ACHs can be processed or (ii) a new
electronic funding agreement is signed by Client. Clients Settlement Account
must be able to process or accept electronic transfers via ACH.
A.2. Funding Acknowledgement
Automated Clearing House (ACH). Your funds for MasterCard, Visa,
Discover Network and American Express transactions will ordinarily be processed
and transferred to your financial institution within two (2) Business Days from the
time a batch is received by Processor if your financial institution is the Bank. If
your financial institution is not the Bank, your MasterCard, Visa, Discover
Network and American Express transactions will ordinarily be processed via the
Federal Reserve within two (2) Business Days from the time a batch is received
by Processor. The Federal Reserve will transfer such amounts to your financial
institution.
A.3. Additional Fees and Early Termination
If Clients MasterCard, Visa and Discover Network transaction(s) fail to qualify for
the discount level contemplated in the rates set forth in the Application, Client
will be billed the fee indicated in the Mid-Qualified Discount field or Non-
Qualified Discount field. If you are utilizing the Enhanced Recovery Reduced
Discount option, the Client will be charged the Enhanced Recovery Reduced Rate
on the volume of said transaction that failed to qualify, in addition to the difference
between the MasterCard/ Visa/Discover Network Qualified Rate agreed to on the
Service Fee Schedule and the actual interchange rate assessed to the downgraded
transaction.
a. Any increases or decreases in the interchange and/or assessment portion of
the fees;
b. The appropriate interchange level as is consistent with the qualifying criteria
of each transaction submitted by Client;
c. Increases in any applicable sales or telecommunications charges or taxes levied
by any state, federal or local authority related to the delivery of the services
provided by First Data Merchant Services Corporation when such costs are
included in the Service or other fixed fees.
The discount fees shown on the Service Fee Schedule shall be calculated based on
the gross sales volume of all Visa, MasterCard and Discover volume.
A Monthly Minimum Processing Fee will be assessed immediately after the date
Clients Application is approved. (Refer to Service Fee Schedule, if applicable.)
In addition to the PIN Debit Card transaction fees set forth on the Application,
Client shall be responsible for the amount of any fees imposed upon a transaction
by the applicable debit network.
The parties further agree and acknowledge that, in addition to any remedies
contained herein or otherwise available under applicable law and, if (a) Client
breaches this Agreement by improperly terminating it prior to the expiration of
the initial term of the Agreement, or (b) this Agreement is terminated prior to the
expiration of the initial term of the Agreement due to an Event of Default, then
Servicers will suffer a substantial injury that is difficult or impossible to accurately
estimate. Accordingly, the parties have agreed that the amount described below is
a reasonable pre-estimate of Servicers probable loss.
In the event that Client terminates this Agreement within three (3) years from
the date of approval by First Data Merchant Services Corporation and Wells Fargo
Bank, N.A. or this Agreement is terminated by Servicers within 3 years from the
date of approval due to an Event of Default, Client will be charged a fee for such
early termination, if so indicated on the Application on the Service Fee Schedule.
Clients obligation with respect to the Monthly Minimum Processing Fee will end
simultaneously with First Data Merchant Services receipt of Termination Fee.
A.4. 6050W of the Internal Revenue Code
Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring
entities and third party settlement organizations are required to file an information
return for each calendar year reporting all payment card transactions and third
party network transactions with payees occurring in that calendar year.
Accordingly, you will receive a Form 1099-K reporting your gross transaction
amounts for each calendar year. Your gross transaction amount refers to the gross
dollar amount of the card transactions processed through your merchant account
with us. In addition, amounts reportable under Section 6050W are subject to
backup withholding requirements. Payors will be required to perform backup
withholding by deducting and withholding income tax from reportable
transactions if (a) the payee fails to provide the payees taxpayer identification
number (TIN) to the payor, or (b) if the IRS notifies the payor that the TIN (when
matched with the name) provided by the payee is incorrect. Accordingly, to avoid
backup withholding, it is very important that you provide us with the correct
name and TIN that you use when filing your tax return that includes the
transactions for your business.
A.5. Addresses For Notices
Important Phone Numbers:
(see also Sections 3.3 and 5.4)
Customer Service
1-800-858-1166
PROCESSOR:
First Data Merchant Services:
1307 Walt Whitman Road
Melville, NY 11747
Attn: Merchant Services
BANK:
Wells Fargo Bank N.A.:
1200 Montego
Walnut Creek, CA 94598
Attn: Merchant Services
(925) 746-4143
AGL1704(ia)