HomeMy WebLinkAbout2025-02-03 I01E_02 Triumph Park_First Data Merchant Services AgreementAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: February 3, 2025
AGENDA ITEM:Consideration of approval of a resolution approving Agreement between the
City of Waukee, Iowa, and First Data Merchant Services LLC for Clover
Network processing at Triumph Park in the amount of $9,120.00.
FORMAT:Consent Agenda
SYNOPSIS INCLUDING PRO & CON: Parks & Recreation, Finance and IT recommend moving
forward with an agreement with First Data Merchant Services LLC for Clover
Network merchant processing at Triumph Park. Clover and the software
provided will further streamline the ease of use for customers and staff at
Triumph Park concessions. This agreement with Clover services will also
significantly reduce the amount of credit card processing fees the City was
paying with the old provider. The cost of $9,120.00 is the upfront equipment
cost in which the City will own. There will be minimal monthly fees for
software but only charged April – October when Triumph Park’s concessions
are open. Staff recommend approval of the agreement to move forward with
Clover Network merchant processing.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: Approve Payment & Agreement
RECOMMENDATION: Approve the resolution and issue payment.
ATTACHMENTS: I. Agreement
PREPARED BY: Josh VandeKamp
REVIEWED BY: Matt Jermier, Rachel Downing and Son Le.
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
I1E2
THE CITY OF WAUKEE, IOWA
RESOLUTION 2025-
APPROVING A MERCHANT PROCESSING AGREEMENT WITH FIRST DATA
MERCHANT SERVICES LLC FOR CLOVER NETWORK, LLC SOFTWARE AND
SERVICES AT TRIUMPH PARK CONCESSIONS [WAUKEE PARKS &
RECREATION DEPARTMENT]
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized
Municipal Organization; AND,
WHEREAS, the City of Waukee Parks & Recreation Department wishes to engage the
services with First Data Merchant Services LLC for Clover Network, LLC software and
services at the Triumph Park Concessions; AND,
WHEREAS, First Data Merchant Services LLC. has provided an agreement for such services
at Triumph Park Concessions.
NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council that the
merchant processing agreement [Waukee Parks & Recreation Department] is hereby
approved.
Passed by the City Council of the City of Waukee, Iowa, and approved this 3rd day of
February, 2025.
____________________________
Courtney Clarke, Mayor
Attest:
_______________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
R. Charles Bottenberg
Chris Crone
Rob Grove
Anna Bergman Pierce
Ben Sinclair
Legal Business Name
City of Waukee
Tax Filing Name
City of Waukee
DBA/Outlet Name
City of Waukee
TIN Type
EIN (Fed Tax ID #)
Fed Tax ID #
Foreign Entity/Nonresident Alien
PENDING
Business Address
230 W Hickman Rd
City
Waukee
State
IA
State Organized
IA
Mo/Yr The Business Started
07-1878
Organization Type
Government
Method of Receiving Notice of Chargebacks and
Retrievals
Dispute Manager Online
Product/service fulfillment
Direct
Third party to store, process or transmit
cardholder data
NO
Software used for storing, transmitting, or
processing card transactions or authorization
requests
N/A
Merchant Processing Agreement
Please review the information below and sign where required.
1. Business Information
ZIP
50263
Business Phone
5159780007
Business Website URL
https://waukee.org
Owner/Partner/Officer Name
Rachel Downing
D.O.B
Social Security Number
Ownership %
0%
Title
Treasurer
Home Address
City
State
IA
ZIP
50072
Home Phone
5159787900
Email
rdowning@waukee.org
Mobile Phone
5159787900
2. Owner Information
Owner 1
DBA/Outlet Name
City of Waukee
Location Address
700 NW Douglas Parkway
City
Waukee
State
IA
Location Zip
50263
Products/Services you sell
Fast Food Restaurants
Location Phone
5159780007
Contact First & Last Name
Josh Vandekamp
Contact Email address
jvandekamp@Waukee.org
0 days
100%
1-7 days
0%
8-14 days
0%
15-30 days
0%
31+ days
0%
TOTAL ANNUAL VOLUME
Average Sale Amount $7.00
Credit Card Volume $80,000.00
TRANSACTION TYPE
Card Present 100%
Internet 0%
3. Locations
Location 1
Time frame from transaction to delivery
Financial Data
Mail Order / Direct Marketing /
Phone Order
0%
SWIPED VS. KEYED
Swiped 100%
Keyed 0%
ABA #
DDA #
Deduct Fees
Monthly
Bank Will Fund
Outlet
Processing Rates & Fees
The discount rates (the percentage rates reflected below) for your credit, signature, and PINless debit transactions are charged on the gross
sales transactions that you submit (without reduction for returns or chargebacks). The transaction fee (the fixed charge per transaction reflected
below) will be charged on all transactions that you submit for authorization as well as refunds. In addition to these charges, for each sale or
authorization you will also reimburse us for all amounts charged to us by the Payment Organizations including all interchange expenses,
assessments, network fees, access charges or other expenses incurred. Interchange rates are variable and determined by how your transactions
clear. Please see the Interchange Rate Schedule for interchange rates and dues/assessments, as well as the Interchange Qualification Matrix
and Card Organization Pass Through Fee Schedule.
DISCOUNT RATE + TRANSACTION FEE
Qualified Credit 0.30% + $0.05
Qualified Signature and PINless Debit 0.30% + $0.05
American Express OptBlue®0.35% + $0.05
Interchange Rates are variable and are determined by how your transactions clear. Please see your Interchange Rate Schedule, Interchange
Qualification Matrix and American Express OptBlue® Guide for Interchange Rates & Dues/Assessments and qualification criteria as of the date of
this Application. The Interchange Rates and Dues/Assessments are subject to change. American Express OptBlue® has Program Pricing which
is not Interchange and which is subject to change.
Banking & Funding Information
Equipment Details
Clover Software Plan
CLOVER SOFTWARE PLAN
Clover software plans are billed
separately through the Clover
App Market. If you move to a
new software plan in the Clover
Dashboard, your monthly billing
may change. See the Clover
Dashboard for any applicable
fees.
Counter Service Restaurant
$59.95/month for 1 device. Additional devices
$19.95/month.
$79.90
Shipping & Handling
$41.29
Enable EMV
YES
Address
805 University Ave
City
Waukee
State
IA
Zip
Shipping Address
MODEL CODE AND
NAME
UNIT PRICE W/O
TAX AND S&H
QTY PURCHASE
TYPE
EQUIPMENT
TYPE
INDUSTRY
TYPE
Clover Station
Duo 2 with CD
2300.00 1 Purchased IBUNDLE QSR
Clover Flex 4 740.00 1 Purchased IBUNDLE QSR
See the Equipment Section below for the Terms and Conditions governing Clover Care.
50263
Shipping Method
FedEx Ground
DBA/Outlet Name
City of Waukee
Store Number
2
Location Address
700 NW Douglas Pkwy
City
Waukee
State
IA
Location Zip
50263
Products/Services you sell
Fast Food Restaurants
Location Phone
5154195140
Contact First & Last Name
Josh Vandekamp
Contact Email address
jvandekamp@Waukee.org
0 days
100%
1-7 days
0%
8-14 days
0%
15-30 days
0%
31+ days
0%
TOTAL ANNUAL VOLUME TRANSACTION TYPE
Location 2
Time frame from transaction to delivery
Financial Data
Average Sale Amount $7.00
Credit Card Volume $80,000.00
Card Present 100%
Internet 0%
Mail Order / Direct Marketing /
Phone Order
0%
SWIPED VS. KEYED
Swiped 100%
Keyed 0%
ABA #
DDA #
Deduct Fees
Bank Will Fund
Outlet
Processing Rates & Fees
The discount rates (the percentage rates reflected below) for your credit, signature, and PINless debit transactions are charged on the gross
sales transactions that you submit (without reduction for returns or chargebacks). The transaction fee (the fixed charge per transaction reflected
below) will be charged on all transactions that you submit for authorization as well as refunds. In addition to these charges, for each sale or
authorization you will also reimburse us for all amounts charged to us by the Payment Organizations including all interchange expenses,
assessments, network fees, access charges or other expenses incurred. Interchange rates are variable and determined by how your transactions
clear. Please see the Interchange Rate Schedule for interchange rates and dues/assessments, as well as the Interchange Qualification Matrix
and Card Organization Pass Through Fee Schedule.
DISCOUNT RATE + TRANSACTION FEE
Qualified Credit 0.30% + $0.05
Qualified Signature and PINless Debit 0.30% + $0.05
American Express OptBlue®0.35% + $0.05
Interchange Rates are variable and are determined by how your transactions clear. Please see your Interchange Rate Schedule, Interchange
Qualification Matrix and American Express OptBlue® Guide for Interchange Rates & Dues/Assessments and qualification criteria as of the date of
this Application. The Interchange Rates and Dues/Assessments are subject to change. American Express OptBlue® has Program Pricing which
is not Interchange and which is subject to change.
Banking & Funding Information
Equipment Details
Clover Software Plan
CLOVER SOFTWARE PLAN
Clover software plans are billed
separately through the Clover
App Market. If you move to a
new software plan in the Clover
Dashboard, your monthly billing
may change. See the Clover
Dashboard for any applicable
fees.
Counter Service Restaurant
$59.95/month for 1 device. Additional devices
$19.95/month.
$79.90
Shipping & Handling
$41.29
Enable EMV
YES
Address
805 University Ave
City
Waukee
State
IA
Zip
Shipping Address
MODEL CODE AND
NAME
UNIT PRICE W/O
TAX AND S&H
QTY PURCHASE
TYPE
EQUIPMENT
TYPE
INDUSTRY
TYPE
Clover Station
Duo 2 with CD
2300.00 1 Purchased IBUNDLE QSR
Clover Flex 4 740.00 1 Purchased IBUNDLE QSR
See the Equipment Section below for the Terms and Conditions governing Clover Care.
50263
Shipping Method
FedEx Ground
DBA/Outlet Name
City of Waukee
Location Address
700 NW Douglas Parkway
City
Waukee
State
IA
Location Zip
50263
Products/Services you sell
Fast Food Restaurants
Location Phone
5159780007
Contact First & Last Name
Josh VandeKamp
Contact Email address
jvandekamp@Waukee.org
0 days
100%
1-7 days
0%
8-14 days
0%
15-30 days
0%
31+ days
0%
TOTAL ANNUAL VOLUME TRANSACTION TYPE
Location 3
Time frame from transaction to delivery
Financial Data
Average Sale Amount $7.00
Credit Card Volume $80,000.00
Card Present 100%
Internet 0%
Mail Order / Direct Marketing /
Phone Order
0%
SWIPED VS. KEYED
Swiped 100%
Keyed 0%
ABA #
DDA #
Deduct Fees
Bank Will Fund
Outlet
Processing Rates & Fees
The discount rates (the percentage rates reflected below) for your credit, signature, and PINless debit transactions are charged on the gross
sales transactions that you submit (without reduction for returns or chargebacks). The transaction fee (the fixed charge per transaction reflected
below) will be charged on all transactions that you submit for authorization as well as refunds. In addition to these charges, for each sale or
authorization you will also reimburse us for all amounts charged to us by the Payment Organizations including all interchange expenses,
assessments, network fees, access charges or other expenses incurred. Interchange rates are variable and determined by how your transactions
clear. Please see the Interchange Rate Schedule for interchange rates and dues/assessments, as well as the Interchange Qualification Matrix
and Card Organization Pass Through Fee Schedule.
DISCOUNT RATE + TRANSACTION FEE
Qualified Credit 0.30% + $0.05
Qualified Signature and PINless Debit 0.30% + $0.05
American Express OptBlue®0.35% + $0.05
Interchange Rates are variable and are determined by how your transactions clear. Please see your Interchange Rate Schedule, Interchange
Qualification Matrix and American Express OptBlue® Guide for Interchange Rates & Dues/Assessments and qualification criteria as of the date of
this Application. The Interchange Rates and Dues/Assessments are subject to change. American Express OptBlue® has Program Pricing which
is not Interchange and which is subject to change.
Banking & Funding Information
Equipment Details
Clover Software Plan
CLOVER SOFTWARE PLAN
Clover software plans are billed
separately through the Clover
App Market. If you move to a
new software plan in the Clover
Dashboard, your monthly billing
may change. See the Clover
Dashboard for any applicable
fees.
Counter Service Restaurant
$59.95/month for 1 device. Additional devices
$19.95/month.
$79.90
Shipping & Handling
$41.29
Enable EMV
YES
Address
805 University Ave
City
Waukee
State
IA
Zip
Shipping Address
MODEL CODE AND
NAME
UNIT PRICE W/O
TAX AND S&H
QTY PURCHASE
TYPE
EQUIPMENT
TYPE
INDUSTRY
TYPE
Clover Station
Duo 2 with CD
2300.00 1 Purchased IBUNDLE QSR
Clover Flex 4 740.00 1 Purchased IBUNDLE QSR
See the Equipment Section below for the Terms and Conditions governing Clover Care.
50263
Shipping Method
FedEx Ground
Total Shipping and Handling
$123.87
American Express (OptBlue)Discover Card (Discover Network Full
Processing)
Mastercard/Visa Signature Debit
Debit (PIN and PINless)
MISCELLANEOUS FEES (IF APPLICABLE)
ACH Reject Fee $25.00
AVS $0.10
Monthly Account Minimum Fee $0.00
Batch Settlement Fee $0.00
Voice Authorization $0.75
DEBIT FEES
PIN Debit Transaction Fee $0.10
MONTHLY PRODUCT FEES
Clover Security Plus Fee $0.00
Transarmor Monthly Fee $0.00
Platform Access Monthly Fee $27.95
START-UP FEES
4. Payments Accepted
5. Fee Schedule
In addition to the fees described in this Fee Schedule, you must pay us all Card Organization Charges, which
include but are not limited to all fees, charges, liabilities, or obligations that a Card Organization imposes on us
(1) in connection with your acceptance of its payment types, (2) in connection with the transactions processed
under your MID, (3) as a result of your acts or omissions, or (4) as a result of the acts or omissions of others that
act on your behalf or that provide services to you. Card Organization Charges are not subject to the
consequential damages exclusion of your agreement, and include but are not limited to interchange;
assessments (including but not limited to dues, issuer reimbursements, fines, penalties, and fraud recovery
losses); fees established by the Card Organizations (including but not limited to access fees, switch fees, and file
fees); adjustments; and Chargebacks. See the Interchange Qualification Matrix, Card Organization Pass-
Through Fee Schedule, and American Express OptBlue Guide, available at www.businesstrack.com.
MasterCard/Visa/Discover
Network Access Fee
$0.034
TransArmor-Token & Encrypt
Transaction Fee
$0.00
MasterCard License Volume
Fee
0.0217%
Pin Debit Adjustment Fee $25.00
Annual Maintenance Fee $119.00
Mastercard Commercial Card
IC SVC Fee
(See Terms and Condition for description of
this Service)
75.00%
Visa Commercial Card IC SVC
Fee
(See Terms and Condition for description of
this Service)
75.00%
Retrieval Fee $5.00
Incoming Retrieval Sms $5.00
Incoming Chargeback All $30.00
Incoming Chargeback Sms $30.00
Pre-Arb/Pre-Comp Fee $30.00
Incoming/Out Going Except
Sms
$30.00
Clover Managed Security $49.95
CLVR MNGED Security
Validated
$9.95
Debit Card Setup $0.00
Application Fee $0.00
Equipment Purchase $9120.00
Installation Fee $0.00
Total Amount
Without tax.
$9120.00
6.Agreement Approval
Rachel Downing
(Treasurer)
Merchant Business Principal:
On behalf of myself as an individual, the entity on whose behalf I am signing and its principals,
members, and guarantors (whether individuals or other entities, collectively, the “Merchant Parties”),
(A) I authorize Processor, Servicers, the applicable Payment Networks, and its and their Affiliates, third
party subcontractors and/or agents: (i) to use, disclose, and exchange amongst them and externally with
other third-parties, the information in the Agreement and information about each of the Merchant Parties,
(including by requesting and sharing, personal and business consumer reports, bank references, and other
information as necessary from time to time), for marketing and administrative purposes, verification purposes,
purposes under the Merchant Processing Application and Agreement (MPA), if approved, product
improvement, fraud, analytics and any other purposes permitted by law (and to continue to use and share
such information following the termination of this Agreement); (ii) to inform me directly about the contents of
requested consumer reports (including the name and address of the agency furnishing the report), and (ii) to
receive any and all personal and business credit financial information from all references, including banks and
consumer reporting agencies, which are hereby released to provide that information; and (B) I certify that: (i)
The federal taxpayer identification number and corresponding filing name provided herein are correct; (ii) The
statements made and agreed to in this MPA, to which I have not made any alterations or stricken out any
language, are true, complete and accurate, and may be relied upon as current unless changed or updated per
the Notice provisions of Agreement; (iii) I can read and understand the English language; (iv) I have received
and read a copy of the (a) Merchant Processing Application, (b) General Terms and Conditions, (c)
Confirmation Page, and (d) Interchange Rate Schedule. I understand that the Interchange Qualification Matrix
and American Express OptBlue® Guide and Your Payments Acceptance Guide are available at
www.businesstrack.com and the signature below is for the entire contents of the listed documents; v) I have
authority to bind the entity on whose behalf I am signing below and have the appropriate consents and
authority from each of the Merchant Parties (whether individuals or other entities) to authorize the use and
sharing of data described above. Processor’s privacy notice is available at www.fiserv.com/privacy. I further
acknowledge and agree that I will not use my 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 or for 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).
To help the government fight the funding of terrorism and money laundering activities, Servicers obtain, verify,
and record certain information including your full name, physical address, and any other information needed
for identify verification purposes while this MPA, as described in the USA Patriot Act.
7.General Terms & Conditions
1 Your Payments Acceptance Guide and Payment Network Rules
1.1 The General Terms & Conditions (General Terms), together with your Application, the Interchange Rate
Schedule and the Your Payments Acceptance Guide constitute the agreement for Card Transaction acceptance
and other related Services (this Agreement).
1.2 You agree to comply with the Your Payments Acceptance Guide and the Payment Network Rules relevant to
you, as they may change over time. The current Your Payments Acceptance Guide is available at
www.businesstrack.com.
1.3 If there are any inconsistencies between the General Terms and the Your Payments Acceptance Guide, the
General Terms will govern.
1.4 You may not alter this Agreement.2 Services
2.1 Your Application and this Agreement will identify the Services you will receive. Certain Services referred to in
this Agreement may not be available to you. Certain Services may require additional terms.
2.2 Subject to Payment Network Rules, Services may be performed by us, our Affiliates, our agents, or other
third parties we may designate. References to "we", "our", and "us" shall be deemed to be references to Bank
and Processor except for the purposes of Sections 2.1, 2.3, 2.4, 4.6, 4.7, 6.9, 11.2, 11.5, 11.6, 11.7, 13.1, 20, 24,
25, 33, 37 and 38. Bank shall not be a party to the aforementioned Sections nor shall Bank have any
responsibility or liability pursuant to such Sections. Third Party Services, including products, promotions, any
apps available in an application marketplace, or voice, or data services you purchase directly from a third party
provider, are not governed by this Agreement and we are not responsible for providing, maintaining, servicing or
supporting such services. If you decide to use Third Party Services, you will be responsible for reviewing and
understanding the terms and conditions associated with Third Party Services. Any third party content
downloaded or otherwise obtained through the use of the Services is downloaded at your own risk. We will not
be responsible for any actions or any failures to act of any third party, and we expressly disclaim any
liability related to all Third Party Services. We do not warrant, endorse, guarantee, or assume
responsibility for any third party service or product, advertised or offered, through the Services or any
hyperlinked website or service, or featured in any banner or other advertising, and we will not be a party
to or in any way monitor any transaction between you and providers of Third Party Services or products.
2.3 If you do not qualify for our full service program but have otherwise been approved for accepting American
Express or WEX, your American Express and WEX transactions will be processed through and funded by
American Express or WEX (as applicable). American Express and WEX will provide you their own agreements
governing those transactions. You agree that (a) we are not responsible and assume no liability for any such
transactions; and (b) American Express and WEX may charge additional fees for the services they provide.
2.4 Rather than accepting all categories of Cards, you have the option to elect to accept only certain categories
of Cards (Limited Acceptance). If you wish to elect Limited Acceptance, you must complete the Limited
Acceptance Form and agree to be bound by the additional terms and conditions set out in that document.
2.5 If we process your Debit Card transactions, the debit network used to process your debit transaction will
depend upon, among other things, our own business considerations and the debit networks available to us at the
time we process the transaction. We may, in our sole discretion, use any debit network available to us for a given
transaction (including any of our affiliated debit networks) and we may, in our sole discretion, route your
transactions through such debit networks. The debit network used to route your transaction may not be the
lowest cost network available.3 Access and Use of Services
3.1 Except as specified in the Your Payments Acceptance Guide, or otherwise agreed in writing, the Services
shall be for your internal business use in the United States only.
3.2 You shall not and shall not permit any third party to: (a) access or attempt to access any Service that is not
intended to be available to you; (b) access or use (in any format) the Services (or any part) through any time-
sharing service, service bureau, network, consortium, or other means; (c) without our advanced written consent,
use, ship or access Services (or any part) outside or from outside of the United States; (d) perform or attempt to
perform any actions that would interfere with the proper working of any Service, prevent access to or use of any
Service by other users, or in our reasonable judgment, impose a large load on our infrastructure, network
capability, or bandwidth; or (e) use the Services (or any part) except as permitted in this Agreement.
3.3 You may use the eligible TransArmor services and portals only to scan IP addresses, URLs, and domain
names owned by and registered to you.
3.4 You are responsible for maintaining the confidentiality of the user names, passwords, account numbers,
security questions and answers, login details, and other sign on credentials/access controls
(collectively, Credentials) to access or use the Services, hardware, Clover Services, or any Software. We will
rely on your Credentials to authenticate your access, and you must notify us if you become aware of any loss,
theft, or unauthorized access to your Credentials. We may deny you access to or use of your account in the
event of any actual or suspected misuse of your Credentials.
3.5 If you access or use Clover Services you agree to comply with and be governed by Clover ’s Terms and
Conditions of Use, which are available at https://clover.com/terms and Clover’s Privacy Policy available at
https://www.clover.com/privacypolicy (both as amended and updated from time to time). You may be required to
agree to certain updated Clover Terms or applications to access or to continue accessing the Clover account or
using the applicable Clover Services.4 Settlement
4.1 As part of the Services, we will process Transaction Data received from you and facilitate the transfer of
funds for your Card sales to your Settlement Account. 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.
4.2 We may debit your Settlement Account for any amounts owed to us, including any amounts paid to you in
error. We may also offset any amounts owed to us or our Affiliates related to activity in other accounts maintained
in your name or which you, any of your principals, guarantors, or authorized signors guarantee.
4.3 You are responsible for providing us with accurate information regarding your Settlement Account. If you
change the Settlement Account in which you receive the proceeds of your transactions, you must notify us
immediately. If you accept payment types other than Visa, Mastercard, American Express, Discover Network and
PayPal, such as TeleCheck Services, you are also responsible for contacting the Payment Networks or
companies governing those Cards, or payment types, to notify them of this change. We shall not be liable for
delays in receipt of funds, or errors in debit and credit entries caused by you or any other Person, including any
delays or errors resulting from errors in Settlement Account information you provide.
4.4 If a Default occurs, you agree we may without notice change processing or payment terms and/or suspend
credits or other payments of any amounts due, or which become due to you.
4.5 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 fund
rights are being applied to claims that are liquidated, unliquidated, fixed, contingent, matured or unmatured.
4.6 If you accept Alipay, you non-exclusively appoint First Data Merchant Services LLC (FDMS) as your agent
solely for the limited purpose of receiving settlement funds from Alipay on your behalf for the transactions
submitted from your participating locations. You acknowledge that payment of settlement funds to FDMS by
Alipay constitutes full and final settlement of such amounts payable to you by Alipay. Alipay is provided to you by
Processor and not Bank.
4.7 If you accept PayPal and Venmo QR Codes, you non-exclusively appoint FDMS as your agent solely for the
limited purpose of receiving settlement funds from PayPal and Venmo on your behalf for the transactions
submitted from your participating locations. You acknowledge that payment of settlement funds to FDMS by
PayPal and Venmo for PayPal and Venmo QR Codes transactions constitute full and final settlement of such
amounts payable to you by PayPal and Venmo for PayPal and Venmo QR Codes transactions. PayPal and
Venmo QR Codes is being provided to you by Processor and not Bank.5 Exclusivity
5.1 You will use us as your exclusive provider of all Services during the Term of this Agreement.6 Fees; Adjustment; Collection of Amounts Due
6.1 You agree to pay us all fees, discounts, charges, and any other amounts set out on your Fee Schedule or
elsewhere in this Agreement.
6.2 The fees specified on your Fee Schedule are based on the assumption that your transactions will qualify at
the Anticipated Interchange and Program Pricing Levels associated with your account. If a transaction fails to
qualify at the Anticipated Interchange Program Pricing Levels, you will be charged a Non-Qualified Fee, plus a
Non-Qualified Surcharge for each such non-qualifying transaction.
6.3 If you accept a Card or transaction other than the type anticipated for your account, we will charge you our
then-current transaction fee(s) for the Card or transaction and you will be responsible for the transaction to the
same extent as you would be if it were of a Card or transaction type elected and approved. If your fees are not
paid through our automatic debiting process, and we are required to pursue collection efforts, you will reimburse
us for our costs in an amount of not less than $100.
6.4 The fees, discounts, and charges specified on your Fee Schedule are based on (a) estimated annual volume
and average transaction size for all Services provided under this Agreement; and (b) 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 the discounts charged to you or our fees charged to you without prior
notice to you. It is your responsibility to notify us of any such changes to your business.
6.5 We may (a) adjust our discounts, fees, and charges to reflect new or increased Pass-Through Fees related to
the Services, which may be billed to you retroactively, or (b) upon 30 days’ notice to you and no more than once
per calendar year during the Term, increase your fees by a percentage equal to the increase in the U.S.
Department of Labor Consumer Price Index for All Urban Consumers over the most current published 12 month
period (or equal to the increase in the nearest comparable data on changes in the cost of living over the same
time period if such index is no longer published). It is your responsibility to pay all such adjusted fees effective
from the date specified in our notice to you.
6.6 Any Account Minimum Fee set out in your Application will be charged monthly (beginning in the calendar
month after your Application is approved) for each location and will be calculated as the Account Minimum Fee
set forth in your Application less the Discount Rates and other applicable fees and charges that you incur for that
month. The Account Minimum Fee shall never be less than zero.
6.7 An Equipment rental fee will be charged each month for each piece of Equipment rented from us, plus tax as
applicable. You will also be charged for shipping and supplies.
6.8 An Authorization fee will be charged for each Authorization requested, whether the response is approved or
declined. If you are being charged a combined fee for both Authorization and Capture we may charge this fee on
the communication of all instructions that you transmit to us from your point of sale (POS) Device or other
systems to our systems, whether the communications are for Authorization requests or any other capture of
information, whether or not related to any individual transaction.
6.9 A fee will be charged for each Address Verification Service (AVS) request submitted, whether or not we are
able to provide a response to the request.
6.10 In the event the State of Washington charges us business and occupation tax on Pass-Through Fees, any
other amounts passed through to us, or offset from settlement proceeds associated with or charged to us related
to your transactions (Washington Fees), you will pay us an additional monthly fee equal to the then-current rate
of that tax multiplied by all Washington Fees for all of your locations in Washington State for that month.
6.11 You agree to promptly and carefully review your merchant 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 to your
Settlement Account, you must notify us in writing within 60 days after any debit or credit is, or should have been,
effected. If you notify us after 60 days, you agree we have no obligation to investigate or effect any adjustments.
Any voluntary efforts by us to assist you in investigating such matters do not obligate us to continue such
investigation or to conduct any future investigation.7 Electronic Funding Authorization
7.1 All payments to you shall be made through the Automated Clearing House system (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 your transactions pursuant to this Agreement. You agree that any
Settlement Account designated by you will be an account primarily used for business purposes. We cannot
guarantee the timeframe in which payment may be credited by your financial institution.
7.2 You agree to be bound by the operating rules of the ACH and you authorize us to (a) access information from
the Settlement Account; (b) initiate credit and/or debit entries by wire or ACH transfer; (c) instruct your financial
institution to (i) block or to initiate, if necessary, reversing entries and adjustments for any original entries made to
the Settlement Account; and (ii) provide such access and to credit and/or debit, or to block the Settlement
Account.
7.3 If we cannot process an ACH payment, we may (a) charge you the applicable fee set out in the Fee
Schedule; and (b) suspend all subsequent funding until a new electronic funding agreement is signed by you, or
you notify us that ACH payments can be processed.8 Chargebacks, Fines, and Penalties
8.1 Cardholders and Issuers are authorized by Payment Network Rules and by law to reverse and Chargeback
transactions that you submit to us. Further details are set out in the Your Payments Acceptance Guide and in the
Payment Network Rules.
8.2 You are obligated to reimburse us (and authorize us to debit your Settlement Account) for (a) all refunds,
credits, Chargebacks, and adjustments relating to transactions that you submit for processing; and (b) any fees,
fines, assessments, obligations or other charges a Payment Network imposes on us in relation to your acts or
omissions, or the acts or omissions of your agents or those acting on your behalf.9 Your Representations and Warranties
9.1 By submitting a transaction to us, you represent and warrant that the transaction:
(a) is genuine and arises from a genuine sale or service that you directly sold or provided as described on your
Application. (The submission of Authorization requests and/or Card transaction by you for Card sales or cash
advances transacted by another business is considered laundering or factoring and is prohibited);
(b) represents the correct amount of the goods or services purchased by the Cardholder from your business as
identified on your Application;
(c) is not subject to any dispute, set-off, or counterclaim;
(d) to your knowledge, is not the result of fraud and has been authorized by the Cardholder;
(e) does not violate the law of any applicable jurisdiction, including the jurisdiction where you are located, where
the Cardholder is located, or where we are located;
(f) except for any delayed delivery or advance deposit Card transactions expressly authorized under this
Agreement, includes your simultaneous delivery of the goods or services to the Cardholder; and
(g) complies with this Agreement and Payment Network Rules.
9.2 You further represent and warrant, as of the date of this Agreement and at the time of submission of each
transaction, that:
(a) you are validly existing, in good standing and free to enter into this Agreement;
(b) you have not changed the nature of your business or practices in a way not previously disclosed to us;
(c) each statement made on the Application or other information provided to us in support of this Agreement is
true, accurate and complete, and you have maintained and updated this information to keep it true, accurate,
current and complete;
(d) you have not filed a bankruptcy petition not previously disclosed to us;
(e) you will not process any credit transactions that do not correspond to a previous transaction on the original
sales draft;
(f) you will not at any time during the Term of this Agreement, or until all amounts have been paid in full under this
Agreement, grant or pledge any security interest or lien of any type in any Reserve Account, Settlement Account
or in any of the transaction proceeds to any Person without our consent; and
(g) where you provide FNS, SNAP or WIC Benefits (as described in the Your Payments Acceptance Guide), you
are an FNS authorized merchant and are not disqualified or withdrawn from redeeming food stamp coupons or
otherwise disqualified or withdrawn by FNS.10 Limitations of Liability; Exclusion of Consequential Damages
10.1 This Agreement is a service agreement. Use of the Services, Software, or any Equipment (including
any Services, Software or Equipment provided by or through a third party) is at your own risk and to the
maximum extent permitted by applicable law, the Services, Equipment, and any Software is provided "as
is" and we disclaim all representations or warranties, express or implied, made to you or any other
person, including any warranties regarding quality, suitability, merchantability, fitness for a particular
purpose or that Services, Equipment, or any Software will operate uninterrupted or error free or that the
Services, Equipment, or Software are secure, free of viruses or other harmful components, or do not
infringe the rights of any person.
10.2 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 excluded by agreement of the parties, regardless of
whether such damages were foreseeable or whether any person has been advised of the possibility of
such damages.
10.3 Notwithstanding anything in this Agreement to the contrary (including Section 27):
(a) Our cumulative liability for all losses, claims, suits, controversies, breaches or damages for any
cause whatsoever (including those arising out of or related to this Agreement and any indemnities),
regardless of the form of action or legal theory, shall not exceed, (i) $50,000; or (ii) the amount of fees
received by us under this Agreement for Services performed in the immediately preceding 12 months,
whichever is less;
(b) Any liability that we may have to you for any delay in funding transactions 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, less 1%; and
(c) Our liability arising out of or in any way connected with any Equipment or Software shall not exceed
the purchase price or prior 12 month's rent or fees, as applicable, paid to us for the particular Equipment
or Software involved.11 Communicating with Customers Through the Services
11.1 You shall provide and obtain any disclosures and consents related to the E-SIGN Act that may be required
in connection with your communications and agreements with your customers through the Services.
11.2 If you are able to discern any information about a particular entity or individual from the information available
through any Service, either alone or with other information in your possession, you agree that the information
may be subject to certain privacy, marketing, insider trading, or other applicable laws and you shall limit your use
and disclosure of that information in accordance with all applicable laws.
11.3 With respect to each customer who desires to receive marketing material, transaction receipts, or other
communications from you via text message or email, such customer must give the appropriate consent in writing;
you are NOT permitted to add or modify a customer's consent indication on behalf of the customer.
11.4 You (or your agents acting on your behalf) shall only send marketing materials or other communications to a
customer's provided phone number, street address, and/or email address if the customer has specifically
consented in writing executed by the customer.
11.5 If you offer any loyalty program to customers through the Services or otherwise, you are solely responsible
for any and all offerings made available to customers in connection with your loyalty program (each, an Offer).
The Offer and all of the related information, including branding (trademarks and logos) and images (collectively,
the Content) are provided and determined by you. You are solely responsible for ensuring the accuracy of the
Offer and Content.
11.6 By providing Content to us as part of our Services, you grant us the right and license to use, modify (e.g. for
formatting and display purposes), publicly perform, publicly display, reproduce and distribute such Content on
and through the Services, including any Software we make available to you. This license includes the right for us
to make Content available to other users who may access and use your Content.
11.7 You are solely responsible for (a) fulfilling the terms of your Offers and determining the criteria for your
customers to earn and redeem perks, rewards, stamps, credits or incentives (Rewards); and (b) honoring
Rewards for eligible customers who earn those Rewards and you agree not to withdraw or terminate any Offer
after it has been made publicly available to your customers without offering a reasonable alternative method for
customers to redeem any Rewards related to the Offer.
11.8 You are solely liable for, and we shall have no liability in relation to, any costs or expenses (including
refunds) associated with your Offers or Rewards or your failure to issue, accept, fulfill or redeem any Rewards.12 Confidentiality
12.1 You shall safeguard all confidential information we supply or otherwise make accessible to you (including
the terms of this Agreement) using a reasonable degree of care. You shall only use our confidential information
for the purposes of this Agreement and shall not disclose our confidential information to any person, except as
we may agree in advance and in writing. At our request, you shall return to us or destroy all of our confidential
information in your possession or control.
12.2 You agree that breach of the restrictions on use or disclosure of 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.
12.3 You may submit comments or ideas about our Services, including about how to improve our Services. By
submitting any idea, you agree that: (a) we expressly disclaim any confidentiality obligations or use restrictions,
express or implied, with respect to any idea; (b) your submission will be non-confidential; and (c) we are free to
use and disclose any idea on an unrestricted basis without notifying or compensating you. You release us from
all liability and obligations that may arise from our receipt, review, use or disclosure of any portion of any idea.
13 Use of Data
13.1 You consent to us retaining, using, combining, disclosing or sharing Data: (a) to provide, develop, improve,
modify or offer the Services or other services for you, other clients, or other Persons, (b) for analytics and
reporting, or (c) for fraud prevention (collectively, Permitted Purposes). We may continue to use or share the
Data for the Permitted Purposes following termination of this Agreement. We will also use a consumer's Data as
agreed by consumers. Data means information about you, your merchant account and MIDs, your customers
(including device data, consumer data, and personally identifiable information), their transactions (including
Transaction Data), the Services, or financial information covered by this Agreement. We will not identify you to
another client except as instructed by you or as permitted under Section 13.4.
13.2 In the course of providing Services, we may collect information relating to activities on your network,
including network configuration, TCP/IP packet headers and contents, log files, malicious codes, and Trojan
horses. We retain the right to use this information or aggregations of this information, in addition to the
Transaction Data, for any reasonable purpose.
13.3 You agree that we may obtain relevant information from any applicable telecommunications provider you
utilize, as necessary to investigate any allegation of fraud, suspected fraud or other actual or alleged wrongful act
by you in connection with the Services.
13.4 You have or will get proper rights from each consumer and you will grant rights for you, us, and certain
Persons to receive, disclose, and use the Data (including personally identifiable information) and Transaction
Data, for any lawful purpose. More specifically, we may disclose and transfer the Data to certain Persons, and we
and certain Persons may use the Data as set forth in Section 13.1, as you and certain Persons direct, and for
any other lawful purpose. You consent to the disclosure, transfer, and use of Data as set forth in this Agreement.
Such disclosure, use, and transfer must be stated in a legally adequate manner in your privacy policy governing
the use of consumer data.14 Intellectual Property Rights
14.1 All right, title, and interest in and to all confidential information and intellectual property related to the
Services (including, without limitation, the Marks, all Software, the content of any materials, web screens,
layouts, processing techniques, procedures, algorithms, and methods and any updates, changes, alterations, or
modifications to or derivative works from such intellectual property), owned, developed or licensed by us prior to,
during the Term of, or after this Agreement, or employed by us in connection with the Services, shall be and
remain, as among the parties, our or our Affiliates', our vendors' or our licensors' (as applicable) sole and
exclusive property and all right, title and interest associated with the Services, Equipment, and Software not
expressly granted by us in this Agreement are deemed withheld. You may not use our Marks in any manner,
including in any advertisements, displays, or press releases, without our prior written consent.
14.2 You may not, nor may you permit any third party to do any of the following: (a) decompile, disassemble,
reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying
ideas or algorithms of the Service (or any part), Software or Equipment, except to the extent that such restriction
is expressly prohibited by law; (b) modify, translate, or alter in any manner, the Service (or any part), Software,
Equipment, or the Marks; (c) create derivative works of or based on the Service (or any part), Software or the
Marks; (d) except for backup and archival purposes, directly or indirectly copy the Service (or any part) or any
Software; (e) republish, upload, post, transmit, disclose, or distribute (in any format) the Service (or any part) or
Software except as permitted in this Agreement; or (f) remove, relocate, or otherwise alter any proprietary rights
notices from the Service (or any part), Software or documentation or the Marks.
14.3 If we provide you with copies of or access to any Software or documentation, unless otherwise expressly
stated in writing, that Software and documentation is provided on a personal, non-exclusive, non-transferable,
non-assignable, revocable limited license for the period of your subscription to the applicable Service and solely
for you to access and use the Software and documentation to receive the relevant Services for its intended
purpose on systems owned or licensed by you. Software can only be used with certain computer operating
systems and it is your responsibility to ensure that you have the appropriate hardware and software to use the
Software.
14.4 You shall not take any action inconsistent with the stated title and ownership in this Section 14. You will not
file any action, in any forum that challenges the ownership of any part of the Service or any 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 your access to and use of the Service in the event of a challenge by you.
14.5 If you are acquiring any Services on behalf of any part of the United States Government (Government): (a)
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 of 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; and (b) we are the contractor/manufacturer, with the
address set forth in this Agreement.15 Assignment
15.1 Any attempt to transfer or assign this Agreement in whole or part, or rent, lease, sell, sublicense, or
otherwise transfer any licensed rights, without our prior written consent, including by operation of law, transfer of
voting control of you or your parent or otherwise, is prohibited and voidable by us and, in such event we may: (a)
suspend Services at any time and without notice, (b) hold you and your guarantors liable for all obligations
incurred by such purchaser or transferee, and (c) offset funding and obligations incurred on your accounts
without regard to whether such funding or obligations relate to activities of you or of such purchaser or
transferee.
15.2 If 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.
15.3 Subject to Payment Network Rules, and without providing notice to you or obtaining your consent, we may
assign or transfer this Agreement and our rights, duties and obligations under this Agreement, and may delegate
or subcontract our rights, duties and obligations, in whole or in part, to any Person. In addition, 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 such substitution, such other Visa and Mastercard member
shall be responsible for all obligations required of Bank, including full responsibility for its Card program and such
other obligations as may be expressly required by applicable Payment Network Rules.
15.4 If this Agreement is assigned with our permission or by operation of law, the restriction against assignment
shall continue to apply to the assignee, who will not be authorized to further assign this Agreement except as
described in this Section.16 Term; Cancellation; Events of Default
16.1 This Agreement shall become effective upon the later of the date this Agreement is approved by us or the
date this Agreement has been accepted by Processor and Bank. Acceptance by Processor and Bank will occur
upon the earlier of execution of this Agreement by Processor and Bank, or the commencement of the provision of
the Services by Processor and Bank. You acknowledge that we maintain 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 or if you fail to meet our credit policies even if your account has been activated.
16.2 The initial term of this Agreement is 3 years from the date of your approval by our Credit Department
(the Initial Term). After the Initial Term, subject to Section 16.3, this Agreement shall automatically extend for
successive additional periods of 30 days each (each an Extended Term). The Initial Term and all Extended
Terms are the Term of this Agreement.
16.3 A party may give written notice to the other party, not later than 30 days before the end of the Initial Term or
the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended
Term, as the case may be. Should you fail to notify us in writing that you wish to terminate this Agreement under
this Section 16.3, you agree that you will continue to be charged certain fees pursuant to this Agreement even if
you are not using your account, and that you may be subject to an Early Termination Fee as described in your
Agreement. If you have another agreement with us or our Affiliates, termination of this Agreement does not
terminate that agreement.
16.4 Notwithstanding any provision of this Agreement, we may terminate this Agreement at any time and for any
reason, without penalty, by providing you with at least 30 days’ advance notice.
16.5 We may terminate this Agreement or suspend any or all of the Services immediately and without notice in
the following circumstances (each, a Default):
(a) a material adverse change in your business, financial condition, or business prospects;
(b) any assignment or transfer of voting control of you or your parent or sale of all or a substantial portion of your
assets;
(c) irregular Card sales by you, excessive Chargebacks or disputes, noncompliance with any applicable data
security standards, as determined by us, or any Payment Network, 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;
(d) you breach any of your representations, warranties or covenants in this Agreement or you default in any
material respect in the performance or observance of this Agreement, or in any agreement with any of our
respective Affiliates, including the establishment or maintenance of funds in a Reserve Account, failure to pay
any amount due under this Agreement, or any failure to notify us of any change to the information in your
business profile;
(e) your actions come under investigation by any Payment Network resulting in the Payment Network directing us
to terminate or suspend our Services or this Agreement with you;
(f) we reasonably believe you engaged in fraud, misrepresentation, or misconduct related to your performance
under this Agreement;
(g) you are disqualified or withdraw from accepting Card transactions or otherwise become ineligible to accept
Card transactions;
(h) you or your employees’ or agents’ conduct pose a risk to (a) your business operations, (b) our branding or
business, including but not limited to hate speech and disparagement, and (c) us, any Person, or the viability of
this Agreement; or
(i) you violate any applicable law or Payment Network Rule or we reasonably believe that termination of this
Agreement or suspension of Services is necessary to comply with any law, including the rules and regulations
promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
16.6 We may suspend or terminate this Agreement or our provision of one or more Services to you without
penalty if: (a) the Service is generally discontinued; (b) our arrangement with the Payment Network or third party
vendor in relation to the Service expires or terminates; (c) we are directed to end the Service to you by any
Payment Network; (d) we are prevented from providing the Service by any law, regulation, requirement, ruling or
notice issued in any form whatsoever by judicial or governmental authority; or (e) we are for any other reason no
longer able to provide the Service.
16.7 We may also suspend Services to: (a) prevent damages to, or degradation of, our or a third party vendor’s
or network's system or network integrity (even if 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 third
party vendor from potential legal liability. To the extent commercially reasonable, we shall give notice to you
before suspending any Services in these circumstances. If not commercially reasonable to give prior notice, we
shall give notice to you as soon as commercially practicable thereafter. Availability of Services may vary due to
events beyond the control of us or our third party vendors. In the event of a suspension of a Service under this
Section, we or the applicable third party vendor shall promptly restore the Services after the event giving rise to
the suspension has been resolved.
16.8 Subject to Section 16.9, you can terminate this Agreement without the imposition of an early termination fee,
if we notify you of an increase to your fees or add new fees, and you notify us that you are terminating this
Agreement within 30 days of our notice. If you do not notify us in the required period, you are deemed to have
accepted the fee changes.
16.9 Your right to terminate without the imposition of an early termination fee, under Section 16.8 does not apply
to fee adjustments we pass on to you due to increases in rates or any other charges or new fees imposed on us
by third parties (including the Payment Networks), Section 6.10, or where we adjust your fees in accordance with
Section 6.4 or Section 6.5. Any termination in these circumstances shall be considered a breach of this
Agreement.
16.10 The expiration or termination of this Agreement shall not affect the obligations and rights of the parties
pursuant to provisions of this Agreement, which by their nature are intended to survive, including Sections 6, 8,
10, 12, 14, 17, 19, 27, and 28. After expiration or termination of this Agreement, or your subscription to a
particular Service for any reason,: (a) your right and license to access and use the Software and documentation
associated with the Service shall immediately cease and, within 5 days after such event, you shall either return to
us or destroy all Software and documentation provided to you by us and shall so certify to us in writing; and (b)
you shall continue to bear total responsibility for all transactions you have submitted to us and all Chargebacks,
fees, Payment Network 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
may become due under this Agreement. On termination due to a Default, all amounts owing to us shall be
immediately due and payable.
16.11 If 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 record supporting any adjustments that you may claim.
16.12 The Payment Networks 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 (a) agree that we may report your business name, and the names and
other information regarding your principals, to the Payment Networks for inclusion on such list(s); and (b) waive
and hold us harmless from and against any and all claims which you may have as a result of such reporting.17 Reserve; Security Interest
17.1 You agree that in addition to any other rights we have under this Agreement, we may establish a Reserve
consisting of cash or other assets that we will hold to satisfy your obligations, or potential obligations, under this
Agreement or any other agreement with us or our Affiliates.
17.2 The amount of the Reserve shall be set by us in our sole discretion based upon your application or
processing history and the potential risk of loss to us, as we may determine.
17.3 In our discretion, the Reserve shall be fully funded upon 3 days' notice to you, immediately in instances of
suspected fraud or a Default, or through systematic redirection of your settlement.
17.4 The Reserve may be funded by all or any combination of: (a) 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 your
name or in the name of any of your principals, or any of your guarantors, or if any of same are authorized signers
on such account; (b) any payments otherwise due to you from us or our Affiliates, including settlement funds; or
(c) any other collateral that you agree to provide and we agree to accept in our mutual discretion.
17.5 If this Agreement is terminated by any party, an immediate Reserve may be established without notice in the
manner provided above. In these circumstances, the Reserve will be held by us for 10 months after termination
of this Agreement, or for such longer period as is consistent with resolution of all liability from your Card
acceptance including Chargebacks, fines, fees, or obligations of any other kind.
17.6 Any funds we hold in Reserve represent general payment obligations to you which do not become due until
all potential contingent liabilities arising from your Card transactions have expired or lapsed. We may set-off any
obligations that you owe to us before returning the balance of the Reserve. Unless specifically required by law,
you shall not be entitled to interest on any funds held by us in the Reserve, and we shall be entitled to accrued
interest in such funds.
17.7 Notwithstanding Section 17.6, you agree that we have a security interest in all funds or other assets that we
hold in Reserve, and to provide us with any documentation we may request to perfect our security interest in the
Reserve.
17.8 If any funds we hold in Reserve are not sufficient to cover the Chargebacks, adjustments, fees, and other
charges and amounts due from you, or if the funds in Reserve have been released, you agree to immediately
pay us such sums upon request.18 Account Information
18.1 You are solely responsible for: (a) ensuring the accuracy of all information and data regarding your business
that you provide to us or our service providers in connection with the Services, including any menus loaded onto
a Device; (b) verifying that all information and data loaded onto a Device by us, or our service providers at your
request, are accurate prior to your business use of such Device; and (c) immediately notifying us should any
information you have provided to us become inaccurate or misleading. We and our service providers disclaim
any and all liability arising out of any inaccuracies with respect to such information or data.
18.2 Upon request, you will provide us and our Affiliates quarterly financial statements within 45 days of the end
of each fiscal quarter and annual audited financial statements within 90 days of the end of each fiscal year. Any
financial statements provided must be prepared in accordance with generally accepted accounting principles.
You will also provide other information concerning your business and your compliance with the terms and
provisions of this Agreement as we may reasonably request.
18.3 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 us for any other
reason.
18.4 Upon request, you shall provide to us and our Affiliates or our representatives or regulators (as well as those
of the Payment Networks) reasonable access to your facilities and records for the purpose of performing any
inspection (including of Equipment) and copying of books and records deemed appropriate. You shall pay the
costs incurred by us or our Affiliates for such inspection, including costs incurred for airfare and hotel
accommodation.
18.5 You authorize us to share information provided by you in your Application or otherwise with other relevant
organizations, including those involved in the provision of the Services.19 Audit Rights
19.1 Upon notice to you, we may audit your usage, records and security, your customer's payment processing
information, and the Services to ensure that (a) you are using the Services in full compliance with this
Agreement; (b) all applicable fees have been paid; and (c) you are in full compliance with all applicable laws,
regulations and rules (including Payment Network Rules). Any such audit shall be conducted during regular
business hours at your offices and shall not interfere unreasonably with your business.
19.2 You shall cooperate fully with any investigation or audit we or any Payment Network may undertake in
relation to data security and you authorize us to share the details of any questionnaire or compliance report with
the Payment Networks.20 Software Updates and Maintenance
20.1 We may perform maintenance on Software or Services which may result in service interruptions, delays, or
errors. We will not be liable for any such interruptions, delays, errors, or bugs. You agree that we may contact
you in order to assist you with the Software or Services and obtain information needed to identify and fix any
errors.
20.2 We may, at our discretion, release enhancements, improvements, or other updates to any Software. If we
notify you of any such update, you shall integrate and install such update into your systems within 30 days of
your receipt of such notice. You acknowledge that failure to install any updates in a timely fashion may impair the
functionality of the Software or Services. We shall have no liability for your failure to properly install the most
current version of any Software or any update, and we shall have no obligation to provide support or services for
any outdated versions.
20.3 You acknowledge and understand that certain Software can automatically install, download, and/or deploy
updated and/or new components, which may include a new version of the Software itself. You shall not, in any
event or in any manner, impede the update process. You agree to assume full responsibility and indemnify us for
all damages and losses, of any nature, for all adverse results or third party claims arising from your impeding the
update process.
20.4 We and our Wireless Vendor(s) reserve the right to make changes in the configuration of 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.
20.5 The default version and functionality of Clover Software applications that are accessible at the time you
acquire a Clover Device may vary.
21 Accessing Services via Wireless Service, the Internet or ThirdParties
21.1 You may access certain of our Services through a Device using a wired (Ethernet) or wireless (Wi-
Fi or cellular) connection to the internet. You are solely responsible for the payment of any fees that may be
imposed by your internet/data provider. Your use of any Services accessed wirelessly or through the internet is
subject to: (a) the terms of any agreements you have with your internet/data provider; and (b) availability,
transmission range, and uptime of the Services and any wireless Equipment. You agree that we shall not be
liable to you for any claims, damages, losses, obligations, costs or expenses or other liability 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 any of the Services, the internet, or any communications network, facility, or
Equipment beyond our or a third party's reasonable control, whether or not attributable to one or more common
carriers; (c) your failed attempts to access any Services or to complete transactions via any of the Services; or
(d) any failure to transmit, obtain or collect data or for human, machine, or software errors or faulty or erroneous
input by you.
21.2 We may alter which Devices and browsers are approved as compatible with particular Services in our
discretion.
21.3 If a Service relies on online connectivity to provide up-to-date data, you assume all risk, responsibility and
liability associated with any transaction that you choose to conduct while the Service is offline.22 Service Integration
22.1 Unless otherwise agreed in writing, you have the sole responsibility to select and employ any competent
programming agent(s) to accomplish any programming required to make your systems function correctly with our
platforms (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 any Integration as soon as
possible. You will be responsible for all of your own development and implementation costs associated with such
Integration.
22.2 You acknowledge that unless and until you complete any Integration, no Services which require such
Integration shall need be provided by us to you pursuant to this Agreement.
22.3 Upon your request to us, and upon payment of any applicable fees, we may provide you with set-up
services to assist with any Integration.23 Security
23.1 You are solely responsible for establishing and maintaining Payment Network Rule compliant security
policies and procedures to prevent unauthorized access to and use of Cardholder Information or any other data,
including by implementing: (a) all steps required to comply with the PCI DSS, including ensuring all third parties
and software use by you in connection with your payment processing are compliant with PCI DSS; (b)
appropriate controls to limit access to, and render unreadable prior to discarding, all Cardholder Information and
other data; (c) firewalls, passwords and other appropriate security features to protect against unauthorized
access to your terminals, systems, the Services and any Software by your employees, contractors, customers, or
by any other Person (including instituting appropriate controls to prevent employees or others from submitting
credits that do not reflect bona fide returns or reimbursements of earlier transactions); and (d) any other
reasonable protective techniques suggested by us. You are required to provide information to us regarding your
PCI-DSS compliance when requested, including but not limited to an annual questionnaire that we will make
available to you
23.2 If you become aware of any loss, theft or unauthorized use of any data and/or any suspected breach of your
systems or any suspicious transactions or fraudulent activity or if any other Data Security Event occurs, you shall
(a) immediately notify us (and, as required under the Payment Network Rules, each Payment Network); (b)
cooperate fully with any investigation into such matter by us or any Payment Network; (c) investigate the matter
and perform all remedial actions reasonably specified by us; (d) not, without our prior written consent, take any
action, or fail to take any action, which prejudices our rights under this Agreement; (e) not admit any liability,
assume any financial obligation, pay any money, or incur any expense in connection with any Data Security
Event without our prior written consent. If you do so, it will be at your own expense; and (f) grant us and our
vendors the right to access and perform a scan of the IP addresses identified within your profile (and you agree
and authorize payment for the additional scan). We reserve the right to deny you access to the Services, in
whole or in part, if we believe that any loss, theft or unauthorized use of any data or access information has
occurred.
23.3 You are responsible for all electronic communications sent to us or to any third party. When we receive
communications from you we will assume you sent it to us.
23.4 You will not obtain ownership rights in any Cardholder Information. You must not use, disclose, store, sell or
disseminate any Cardholder Information except for purposes of authorizing, completing and settling Card
transactions and resolving any Chargebacks, retrieval requests, or similar issues involving Card transaction.24 Supply of Equipment
24.1 We will sell to you, and you will buy from us equipment identified in Equipment Documents as being sold to
you (individually and collectively, the Purchased Equipment). We will rent to you and you agree to accept and
rent from us Equipment identified in Equipment Documents as being rented to you (individually and collectively,
the Rental Equipment).
24.2 Any Equipment sold or rented to you is being sold or rented to you solely for business use and not for
household or personal use.
24.3 Warranties, if any, for the Equipment or any related Software will be contained within the packaging and
originate from the applicable third party provider or manufacturer (Vendor) not us.
24.4 You acknowledge that any Equipment and/or Software you purchase or rent from us may not be
compatible with another processor's systems. We do not have any obligation to make such Software
and/or Equipment compatible with any other processing systems. If you elect to use another processing
service provider on termination of this Agreement, you acknowledge that you may not be able to use the
Equipment and/or Software rented or purchased under this Agreement.
24.5 We will provide you supplies as requested by you. You shall pay the purchase price for such supplies, plus
shipping and handling charges, including all applicable tax, prior to delivery of the supplies or upon invoice, as
specified by us, or at our option, such amounts will be collected by us by debits or deductions pursuant to this
Agreement.
24.6 We will deliver the Equipment to the site you designate. You are deemed to have accepted each piece of
Equipment at the earlier of: (a) your actual acceptance after installation; (b) delivery to you if your site is not
prepared and ready for installation; or (c) for Equipment that we have not agreed to install for you, 7 days after
shipment of each such piece of Equipment. The rental period for each piece of Rental Equipment starts on the
date the Equipment is deemed accepted and terminates at the scheduled termination date in the Equipment
Documents.
24.7 You will prepare the installation site(s) for the Equipment, including the power supply circuits and phone
lines, in conformance with the manufacturer's and our specifications and will make the site(s) available to us by
the confirmed shipping date. Any alterations required for installation of Equipment will be done at your expense.
24.8 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 not use the Equipment, or permit the
Equipment to be used, in any manner or for any purpose for which the Equipment is not designed or reasonably
suited.
24.9 You may not relocate, remove, disconnect, modify or in any way alter any Equipment without our prior
consent.
24.10 You are responsible for safeguarding Equipment from (and shall immediately notify us of any) loss,
damage, unauthorized use, misuse or theft.
24.11 You shall keep the Rental Equipment adequately insured against loss by fire, theft and all other hazards
(Comprehensive Coverage). The loss, destruction, theft of or damage to the Rental Equipment does not relieve
you of your obligation to pay the full purchase price or rent payable under this Agreement.
24.12 If Equipment is defective, you must immediately call the POS Help Desk. If necessary, we will assist you in
obtaining replacement Equipment. If you fail to return any defective Equipment, you may be responsible for its
replacement value and for any legal and/or collection costs incurred by the Equipment owner in connection with
recovering Equipment.
24.13 Rented Equipment may not be subleased at any time and you must keep all Equipment free of any claims,
liens and legal processes initiated by creditors.
24.14 Promptly upon termination of all applicable rental periods, or promptly following any action by us following
a Default, you shall deliver possession of all Rental Equipment (including all attachments and parts) to us at your
cost in the same operating order, repair, condition and appearance that the Rental Equipment had at the time of
its delivery to you, except for reasonable wear and tear. For each item of Rental Equipment not so returned 14
calendar days after (a) termination of the applicable rental period, or (b) any action by us following a Default, you
agree to pay us the greater of $250, or the fair market value of such item of Equipment if it were in the condition
described above, as determined by us.
24.15 Except for Purchased Equipment that has been paid for in full, 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 indicating our ownership.
24.16 You shall return Equipment in accordance with the procedure set out in the Your Payments Acceptance
Guide. Rental fees may be continued until Equipment is returned.
24.17 You hereby grant to us a security interest in (a) all Purchased Equipment and the related Software to
secure payment of the purchase price; and (b) all Rental Equipment and the related Software to secure payment
of the monthly payments and authorize us to file financing statements with respect to the Equipment and the
Software in accordance with the Uniform Commercial Code, signed only by us or signed by us as your attorney-
in-fact.
24.18 You agree that in order to access any Wireless Services, you must use wireless POS Terminals and
accessories approved for use with the Wireless Services by us in our sole discretion (Wireless Equipment).
24.19 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 any
Wireless Equipment used by you. You shall 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.
24.20 We may stop supporting or sunset certain Equipment and/or Software used on or with Equipment. You
agree and acknowledge that continued use of such Software and/or Equipment is at your own risk and that we
are not liable for any claims that arise due to continued use.25 Clover Care
25.1 If you purchase Clover Care, Included Equipment means equipment listed in the Equipment Details
section of this Agreement. Clover Care replaces, at no additional charge to you, Included Equipment that has
failed during the Clover Care Term due to manufacturer defects in materials or workmanship, normal wear and
tear from use in your business, and accidental damage from handling. Merchants with Included Equipment
located in New York: see below for material limitations on Clover Care protection.
25.2 Clover Care protection begins when we ship you the Included Equipment and continues for three years from
that date, (the Clover Care Term). Clover Care protection extends to replacement devices for the remainder of
the original unit's Clover Care Term.
(a) During the Clover Care Term, Clover Care protection is limited to 3 replacements per device listed in this
Agreement.
(b) We reserve the right to replace Included Equipment with refurbished units. You acknowledge that Clover Care
protection extends only to the functionality of devices, and not to cosmetic appearance or other non-functional
matters.
(c) If the model of unit to be replaced is no longer in inventory, we reserve the right to replace that unit with a
model of the same or better functionality. Under no circumstances will we pay or credit you with cash in lieu of a
replaced unit.
25.3 For assistance with a failed unit, contact Customer Service. If we confirm that the unit is eligible for
replacement, we will ship you a replacement unit at no additional cost. We reserve the right to replace each failed
unit of your Included Equipment with refurbished equipment. You may elect to purchase a new unit at our then-
current rates if you do not want a refurbished unit, but we will not apply any credit to the purchase price of a new
unit.
25.4 You must return each failed unit and its related accessories to us within 45 days after receiving the
replacement unit. The package containing the replacement unit will include a prepaid shipping label for returning
the failed unit. You must ship the failed unit (including any related unit accessories) in the same container we
used to ship you the replacement unit. If you do not return a failed unit (or any related accessories) to us within
45 days, we will charge you our then-current rate for that unit or accessory.
25.5 Exclusions. Clover Care does not:
(a) Replace or otherwise protect Included Equipment in cases of loss, theft, intentional damage, or damage to
units incurred incidentally to fire or flood damage to your business premises. Clover Care is void if you breach
this Agreement or your merchant processing agreement. Clover Care is not insurance nor a substitute for
insurance; or
(b) Apply to defects or damage resulting from software, interfaces, or supplies we do not provide; loss or damage
in transit between your locations; your or your vendors’ or users’ improper site preparation; or failure to follow
written instructions on proper use of the Included Equipment.
(c) Merchants with Included Equipment located in New York: see Section 25.7 for material additional exclusions.
25.6 We may charge you our then-current rate for any returned unit that: (1) the Agreement excludes from Clover
Care, (2) has an expired Clover Care Term, (3) does not match the serial number of a unit for which you
purchased Clover Care, or (4) results in a no-problem found claim (an NPF Claim). An NPF Claim will result if a
factory technician could not reproduce your reported defect in the returned unit or the returned unit performs to
specifications within the factory's automated quality assurance testing program.
25.7 New York Merchants. For Included Equipment located in New York, Clover Care protection does not include
damage arising from normal wear and tear (except as arising from product defect) or accidental damage from
handling.
(a) Subject to the conditions and exclusions set forth in this Agreement, Clover Care replaces, at no additional
charge to you, Included Equipment that has failed due to manufacturer defects in materials or workmanship.
(b) In addition to the exclusions above, Clover Care does not replace or otherwise protect Included Equipment
arising from causes other than manufacturer defects in material or workmanship, including without limitation:
damage resulting from smashed or cracked units or screens; extraneous materials in the interior of the unit;
contact with liquids; missing unit covers; melted or burnt units; cosmetic damage; your or your vendors’ or users’
improper or inadequate maintenance; or other visible damage. Clover Care is void if you breach this Agreement.
Clover Care is not insurance nor a substitute for insurance.
(c) You acknowledge that the Fees charged by us are not reduced for Included Equipment located in New York,
even though there are lesser protections provided and broader exclusions.26 Compliance of Laws
26.1 You shall comply fully with the requirements of all applicable federal, state, and local laws and regulations
related to your use of Software, Equipment, and each Service, and provision and use of any Cardholder
Information, customer information and other POS data in connection with the Services. You shall not use the
Services for illegal purposes.
26.2 You are solely responsible for obtaining all required permits and monitoring legal developments applicable
to the Services and the operation of your business, interpreting applicable laws and regulations, determining the
requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance
program.
26.3 Notwithstanding the capability of certain Services to collect and store customer information and to
allow your customers to elect to receive marketing materials from you, some states may limit your use of
such information once collected, even if the customer has provided his consent, and/or your disclosure
of such information to third parties. You acknowledge and agree that (a) your use of any customer
information obtained in connection with the Services may be subject to local, state, and/or federal laws,
rules, and regulations, (b) you are solely responsible for knowing such laws, rules, and regulations, and
(c) you will at all times strictly comply with all such laws, rules, and regulations.27 Indemnification
27.1 You agree to indemnify and hold us, our Affiliates, agents, and third party service providers harmless from
and against all losses, liabilities, damages and expenses arising from: (a) any breach or misrepresentation by
you under this Agreement; (b) 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) your use of the Services, including any Software or Equipment provided under this Agreement; (d) any third
party indemnifications we are obligated to make as a result of your actions (including indemnification of any
Payment Network or Issuer); (e) your use of any Cardholder Information or other customer information obtained
in connection with your use of the Services; (f) our and any Person’s disclosing, transferring, or using Data in
connection with the Agreement; (g) the content or delivery of any marketing messages that you send or cause to
be sent to any customer; or (h) any other persons authorized or unauthorized access and/or use of any Service,
Software, or Equipment, whether or not using your unique username, password, or other security features.
27.2 Subject to the limitations set forth in Section 10.3, we agree to indemnify and hold you harmless from and
against all losses, liabilities, damages and expenses directly resulting from any breach or misrepresentation by
us under this Agreement or directly arising out of our or our employees' gross negligence or willful misconduct in
connection with this Agreement; provided that this indemnity obligation shall only apply to Bank in relation to the
Services provided by it hereunder.28 Arbitration; Waiver of Jury Trial; Choice of Law
28.1 This arbitration provision shall be broadly interpreted. If you have a Dispute with us that cannot be resolved
informally, you or we may elect to arbitrate that Dispute in accordance with the terms of this arbitration provision
rather than litigate the Dispute in court. In arbitration, there is no judge or jury, and there is less discovery and
appellate review than in court.
28.2 Notwithstanding Section 28.1, you and we agree that the following will not be subject to arbitration: (a)
disputes relating to the scope, validity, or enforceability of this arbitration provision; (b) any claim filed by you or
us in which the amount in controversy is properly within the jurisdiction of a small claims court; and (c) any
dispute related to the validity of any party's intellectual property rights.
28.3 If you or we elect to resolve your Dispute through arbitration pursuant to this arbitration provision, the party
initiating the arbitration proceeding shall open a case with the American Arbitration Association - Case Filing
Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, 877-495-4185, www.adr.org.
28.4 Because the Services provided to you under this Agreement concern interstate commerce, the Federal
Arbitration Act (FAA) will govern this arbitration provision, including the issue of whether the Dispute is subject to
arbitration. Any arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration
Association (AAA). If there is a conflict between this arbitration provision and the AAA Rules, this arbitration
provision shall govern. If the AAA will not administer a proceeding under this arbitration provision as written, it
cannot serve as the arbitration organization to resolve your Dispute. If this situation arises, the parties shall agree
on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a
court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this
arbitration provision as written. If there is a conflict between this arbitration provision and the rest of this
Agreement, this arbitration provision shall govern.
28.5 A single arbitrator will resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and
will take reasonable steps to protect your information and other confidential or proprietary information. If the claim
alleged in the Dispute is for $10,000 or less, and the Dispute is not excluded based on Section 28.2 above, 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.
The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a
party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for
purposes of enforcement.
28.6 If an award granted by the arbitrator exceeds $50,000, either party can appeal that award to a three-
arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within 30
days from the date of entry of the written arbitration award. The arbitration organization will then notify the other
party that the award has been appealed. The members of the three-arbitrator panel will be selected according to
the AAA's Commercial Arbitration Rules. The three- arbitrator panel will issue its decision within 120 days of the
date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and
binding, except for any appellate right which exists under the FAA.
28.7 All parties to an arbitration must be individually named. There shall be no right or authority for any
claims to be arbitrated or litigated on a class action, joint, or consolidated basis or on a basis involving
claims brought in a purported representative capacity on behalf of the general public (such as a private
attorney general), other clients, or other persons.
28.8 The arbitrator may award injunctive or similar relief only in favor of the individually named party and only to
the extent necessary to provide relief warranted by that individual party's claim. The arbitrator may not award
injunctive relief applicable to any class or similarly situated individual or groups.
28.9 The arbitration will take place in New York, NY.
28.10 We will reimburse you for filing fees and arbitrator's costs and expenses you notify to us after bringing the
claim at the time the demand or claim is filed with the AAA, as noted in the AAA’s Commercial Arbitration Rules
and Mediation Procedures (amended and effective May 1, 2018). You are responsible for all additional costs that
you incur in the arbitration, including, but not limited to, fees for attorneys or expert witnesses. If the arbitration is
resolved in our favor, you shall reimburse us for the filing fees and costs paid up to the extent awardable in a
judicial proceeding. If the arbitration is resolved in your favor, you will not be required to reimburse us for any of
the fees and costs paid by us. Notwithstanding anything to the contrary in this arbitration provision, we will pay all
fees and costs that we are required by law to pay.
28.11 If you do not wish to arbitrate disputes, you must notify us in writing within 30 days of the date that
you first receive this Agreement by writing your name, address and account number as well as a clear
statement that you do not wish to resolve disputes through arbitration and sending that notice either (a)
by e-mail to arbitrationoptout@firstdata.com; or (b) by mailing to Arbitration Opt Out Notice, 4000 N.W.
120th Avenue, MS/CON-SMB, Coral Springs, FL 33065 (these addresses are only for submitting the
notice described in this section). Your decision to opt out of arbitration will have no adverse effect on
your relationship with us or the Services provided by us.
28.12 If any part of Section 28.7 is found to be illegal or unenforceable, the entire arbitration provision will be
unenforceable, and the Dispute will be decided by a court. If any other clause in this arbitration provision is found
to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this
arbitration provision will be given full force and effect.
28.13 Our Agreement will be governed by and construed in accordance with the laws of the State of New York
(without regard to its choice of law provisions).
28.14 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 will be in the appropriate state or federal court located in New York, New York.
28.15 You and we have agreed to waive the right to trial by jury.29 Notices
29.1 All notices and other communications required or permitted under this Agreement (other than those
involving normal operational matters relating to the processing of Card transactions) shall be in writing and sent:
(a) if to you, to your email address or postal address appearing on the Application or, will otherwise be made in
accordance with Section 29.3;
(b) if to Processor, to its address appearing on the confirmation page, with a copy to Attention: General Counsel's
Office, 4000 N.W. 120th Avenue, MS/CON-SMB Coral Springs, FL 33065 or legalpapers@fiserv.com; and
(c) if to Bank, to the address appearing on the confirmation page.
29.2 Notices shall be effective when actually received or, if sent by courier, when delivered. Notices sent to your
last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you
under this Agreement.
29.3 In addition, you agree that: (a) where required or requested, your electronic signature (via click-through or
other method) on agreements and documents has the same effect as if you signed them in ink; (b) we can send
you all communications, billing statements, amendments, notices, and other disclosures or information in
connection with this Agreement (Disclosures), including but not limited to any Payment Network notices to you
electronically: (1) via e-mail, (2) by access to a web site that we designate in an e-mail notice we send to you at
the time the information is available, or (3) to the extent permissible by law, by access to a website that we will
generally designate in advance for such purpose; (c) if you want a paper copy, you can print a copy of the
Disclosures or download the information for your records; and (d) this consent applies to all future Disclosures
sent to you in connection with this Agreement. You agree that electronic Disclosures have the same meaning and
effect as if we provided paper Disclosures to you.
29.4 Notices of Disputes, Credit Card and Debit Card requests for information, and notices relating to
Chargebacks will be made available to you exclusively on a web portal that we will make available to you for your
use.
29.5 You must give us 30 days prior notice of any change to your address. Failure to provide us with a valid
address may result in the termination of this Agreement.
29.6 Notwithstanding the above, all bankruptcy, credit reporting or collection related notices must be sent to the
following address: General Counsel's Office, 4000 N.W. 120th Avenue, MS/CON-SMB, Coral Springs, FL, Attn:
Bankruptcy and Collection Notifications.
29.7 All notices must include your name(s) and merchant number(s).30 Communications
30.1 You agree that we, our Affiliates, and our third party service providers and/or agents, may use, in addition to
any live agent calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact
you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable
to be reached, even if the number provided is a cellular or wireless number, or if you have previously registered
on a Do Not Call list or requested not to be contacted for solicitation purposes.
30.2 You consent to receiving Disclosures via commercial electronic messages, including email messages, SMS
and text messages, and telephone calls, from us, our Affiliates, and our third party service providers and/or
agents.31 Whole Agreement; Waiver; Severability
31.1 This Agreement constitutes the entire Agreement between the parties with respect to its subject matter, and
supersedes any previous agreements and understandings.
31.2 A party's 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.
31.3 Except with respect to Section 28, the parties intend every provision of this Agreement to be severable, and,
if any part of this Agreement is not enforceable, the remaining provisions shall remain valid and enforceable.32 Amendment
32.1 We may modify this Agreement (including changing the fees or adding new fees) by 20 days written notice
to you. Subject to Section
32.2, you may choose not to accept the change by terminating this Agreement by written notice within 30 days of
our notice. 32.2 Notwithstanding Section 32.1, we may at any time modify this Agreement in accordance with
Section 6.5 or to reflect changes in applicable law, the Payment Network Rules or security procedures, and your
right of termination shall not arise in such circumstances.33 Third Party Beneficiaries
33.1 Our 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 if they are a party to it. The rights of the parties to
rescind or agree to any variations, waiver or settlement under this Agreement are not subject to the consent of
any Person.
33.2 Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall have
no rights or remedies under this Agreement.34 6050W of the Internal Revenue Code
34.1 Under Section 6050W of the Internal Revenue Code, you will receive a Form 1099- K reporting the gross
dollar amount of card transactions processed through your Merchant Account with us in each year.
34.2 Amounts reportable under Section 6050W are subject to backup withholding requirements. We will be
required to perform backup withholding by deducting and withholding income tax from reportable transactions if
(a) you fail to provide your taxpayer identification number (TIN) to us, or (b) if the IRS notifies us that the TIN
(when matched with the name) provided by you 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.35 Export Compliance
35.1 You agree not to export or re-export any Software, Equipment, or any underlying information except in full
compliance with all applicable laws and regulations.
35.2 None of the Software, Equipment, or any underlying information may be downloaded or otherwise exported
or re-exported (a) to any country to which the United States has embargoed goods (or any national or resident
thereof); (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the
United States Commerce Department's Table of Deny Orders; or (c) 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. 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
35.3 If you have rightfully obtained Software, Equipment, or any underlying information outside of the United
States, you agree not to re-export the same except as permitted by the laws and regulations of the United States
and the laws and regulations of the jurisdiction in which you obtained it.36 No Investment Advice
36.1 We do not provide any business, investment or financial advice, and are not advocating any business
decision or the sale or purchase of any real property, stocks, bonds, or securities.
36.2 We expressly state, and you hereby acknowledge, that any information services are provided solely for
informational purposes and are not to be used as a substitute for independent financial investment advice nor
are they intended to be relied upon by any person or entity, including you or your customers for the purposes of
investment or other financial decisions.37 Clover Security
37.1 Clover Security consists of the TransArmor Data Protection Service, Liability Waiver, access to the Clover
Security Online Portal, and Clover Managed Security. Each of those services is described in more detail below.
Clover Security is provided to you by Processor and not by Bank. Certain tools and services within Clover
Security may be provided to you as part of an overall Clover platform fee (if applicable), while others may be
subject to an additional fee or charge as set forth in this Agreement.
37.2 The TransArmor Data Protection Service encrypts Cardholder Information at the point of transaction and
replaces it with a unique identifier (a token) that is returned with the Authorization response to be used instead of
the card number for that transaction. The TransArmor Data Protection Service can only be used with a POS
Device, gateway, or service that we have certified as being eligible for the TransArmor Data Protection Service.
37.3 We will provide you with the Liability Waiver described in this Section 37.3 if none of the exclusions below
apply. If you have a Data Incident, for each MID you have with us, we will waive (a) up to $25,000 of liability for
PCI Upgrade Costs, and (b) up to $100,000 of liability for other Data Incident Expenses. These limits are subject
to a $500,000 cap for all Data Incident Expenses. These limitations apply during each 12-month period from
January 1 through December 31, regardless of the number of Data Incidents you may experience. The Liability
Waiver applies only while you are using and paying for Clover Security. The Liability Waiver will not apply to any
of the following: (a) any Data Incident that began before you started using Clover Security or that is reported to
us after you stopped using Clover Security; (b) any fines or assessments against you that are not the direct result
of a Data Incident; (c) any repeated Data Incidents, unless between the repeated events a qualified security
assessor certified you as PCI-compliant; (d) any routine or recurring expenses for security assessments,
regulatory examinations, or compliance activities; (e) any Data Incident that occurs during any period of time that
(1) a Payment Network has categorized you as a Level 1 or Level 2 merchant, or (2) you have processed more
than 6 million transactions during the 12-month period before the Data Incident; (f) any expenses (other than
Data Incident Expenses) incurred to bring you into compliance with the PCI DSS or a similar security standard; or
(g) any Data Incident Expenses that arise out of an uncontrollable event or any intentional, reckless, or grossly
negligent misconduct on your part.
37.4 Through the Clover Security Online Portal, you will have access to tools that you can use to help meet
your PCI-DSS compliance obligations, including a PCI DSS self-assessment questionnaire (SAQ) and access to
online scans for a certain number of IP addresses. If the Payment Network Rules require you to submit to
quarterly or other periodic PCI vulnerability scans (for example, if you accept internet transactions), the online
scans we make available to you will help enable you to meet that requirement.
37.5 With Clover Managed Security, you will have access to a suite of security tools and services for your
business, which may include anti-virus and encryption software and, as applicable, scanning and monitoring for
your websites, IP addresses, URLs, domain names, email addresses, social media accounts, networks, devices,
and other business assets (your Business Assets). As part of Clover Managed Security, we may also assist you
over the phone with the components needed for PCI DSS compliance validation, including assisting you with the
SAQ and an attestation of compliance we store in our systems to serve as a record of your compliance
validation.
37.6 By completing the SAQ (whether through the portal or over the phone), you are confirming that you have
answered all questions completely and honestly and that you follow certain data security protocols. Although you
must comply with all laws and Payment Network Rules relating to data security, including the PCI DSS, you are
not required to use our tools to do so. If you (a) complete the SAQ or (using PCI-approved methods) provide us
with other written evidence of your PCI DSS compliance, (b) obtain any PCI-approved scans required by the
Payment Network Rules, and (c) remediate vulnerabilities identified by the scans in ways that enable you to
comply with the Payment Network Rules and applicable standards (including the PCI DSS) (collectively,
the Validation Requirements), then if you are enrolled in Clover Managed Security, you will be eligible for the
Clover Managed Security – Validated rate. To continue receiving the Clover Managed Security – Validated rate,
you must be enrolled in Clover Managed Security and re-complete the Validation Requirements on an annual
basis and promptly following any material changes to the systems you use to accept payments. We will waive
your fees for Clover Managed Security for the 90-day period following the date this Agreement is submitted to us
with your signature.
37.7 If you do not enroll in Clover Managed Security, you will be charged a monthly Non-Receipt of PCI
Validation fee unless, within 60 days from the date this Agreement is submitted with your signature and on an
annual basis after that, you complete the Validation Requirements. If you materially change the systems you use
to accept payments and you wish to avoid paying the monthly Non-Receipt of PCI Validation fee, you will need to
promptly complete a new SAQ or (using PCI-approved methods) promptly provide us with other written evidence
of your PCI DSS compliance.
37.8 Use of Clover Security does not (a) guarantee compliance with any laws, Payment Network Rules, or
applicable standards (including the PCI DSS), (b) affect your obligation to comply with laws, Payment Network
Rules, and applicable standards (including the PCI DSS), or (c) guarantee protection against a Data Incident. We
make no promise that use of Clover Security will detect every vulnerability on your system or within your
business, or that our vulnerability assessments, suggested solutions, or advice are error-free or complete. You
agree that we are not responsible or liable for the accuracy or completeness of any information provided by us.
Your use of Clover Security involves inherent risks, including system performance, availability, and data
corruption.
37.9 Your use of Clover Security and any scanning services (whether accessed through the portal, arranged on
your behalf, or otherwise provided by us or our vendors within or outside of the portal) will be subject to the terms
and conditions set forth herein and on the Clover Security website. You must also comply with any other rules or
procedures relating to Clover Security (or any component of Clover Security) that we or our vendors make
available from time to time.
37.10 Clover Security may require use of an Approved Scanning Vendor (ASV) to receive data and information
from you to perform the scanning of the IP addresses and/or files that you submit to us or our vendors for
scanning and other related services. Each time you avail of the ASV scanning service (if applicable) you
authorize us or our vendors to perform the ASV scanning on the IP addresses you provide in relation to such
scanning You acknowledge and confirm that it is your responsibility to accurately identify and provide all
information requested by us or our vendors as provided in the terms and conditions set forth on the Clover
Security website.
37.11 You must also implement all updates to Clover Security within a reasonable period after you receive them.
You may use Clover Security services only to scan or monitor Business Assets owned by and registered to you.
You represent that you have the necessary rights and licenses to any Business Assets submitted to us for
scanning or monitoring and that your submission to us of any Business Assets will not violate any third-party
rights, including intellectual property rights and rights to privacy. You are solely responsible for backing up and/or
otherwise protecting your data, systems, and service.
37.12 Clients that are not enrolled in or otherwise not eligible for Clover Security will be charged a Compliance
Fee. The Compliance Fee covers our costs for systems maintenance and upgrades, mandatory IRS reporting, as
well as costs associated with our required tracking and reporting of your PCI compliance. We will provide a
monthly vulnerability "scan," if required, of your IP addresses (subject to volume limits). Additional required scans
are your responsibility. Payment of the Compliance Fee does not discharge your responsibility to maintain PCI
DSS compliance at all times.38 Commercial Card Interchange Service
38.1 You agree that your merchant account may utilize the Commercial Card Interchange Service (CCIS).
38.2 Visa and Mastercard apply different interchange rates to commercial card transactions based on the level of
transaction detail you provide in your settlement files. Including the sales tax amount for your commercial card
transactions can help you qualify for lower interchange rates (although other qualification factors also apply). If
you are not collecting the sales tax amount yourself and transmitting it in your settlement file, CCIS will calculate
and transmit the sales tax amount for those commercial card transactions that will qualify for lower interchange
rates.
38.3 This service does not affect (1) the total amount of any submitted transaction, or (2) your sales tax collection
or reporting obligations under any tax laws or regulations that apply to you or your business. Our fee for CCIS is
the percentage listed on your Merchant Processing Application of the resulting interchange savings for Visa and
Mastercard transactions, as applicable.
38.4 If a transaction is fully or partially exempt, you should enter the tax amount (even if that amount is $0.00) as
CCIS applies your local tax rate to the full amount of transactions when the prompt is bypassed.39 Advantage Deposit
39.1 Advantage Deposit means a Credit ACH Entry or Debit ACH Entry (each, an Entry) that has the same
proposed settlement date to your Settlement Account as the banking day on which you submitted your payment
transactions to us for processing and settlement according to the Processing Window (as defined below). To be
eligible, your Entry must be for an aggregate amount equal to or less than $1,000,000.00 (or the then-current
maximum amount provided for a same day Entry under the Nacha Rules) (the Advantage Deposit Amount). The
Advantage Deposit Amount is subject to change without notice to you. If your Entry exceeds the then-current
Advantage Deposit Amount, your Entry is ineligible for Advantage Deposit and will be funded the next business
day. In order for your settlement funds to be otherwise eligible for the Advantage Deposit Service, you must
complete the transmission of your daily batch to us on or before the close of the Processing Window for your
platform. The Processing Window closes at 1:00 a.m. EST on Compass Front End, and at 2:00 a.m. EST on
North/Buypass Front End.
39.2 We may terminate Advantage Deposit at any time, if Bank for any reason stops providing Advantage
Deposit, if our agreement with Bank terminates, or for any other reason upon 30 days’ written notice to you.
When Advantage Deposit is terminated or expires, Advantage Deposit will no longer be available and your
settlement transactions will revert to ordinary funding timelines.
39.3 You will pay us for each Credit ACH Entry. When enrolling in Advantage Deposit, we will net fund your
processing activity (i.e., deposits, Chargebacks, Chargeback reversals, etc.). You may choose to have each of
these categories funded separately, which may increase the number of Credit ACH Entries.40 Interpretation; Definitions
40.1 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. References in this Agreement to include,
including, or in particular shall not be given a restrictive meaning and shall be interpreted without limitation.
Reference to any legislation is to such legislation as amended or supplemented in the future.
40.2 Certain terms used in this Agreement are defined below:
Affiliate: a Person that, directly or indirectly, (i) owns or controls a party to this Agreement or (ii) is under
common ownership or control with a party to this Agreement.
Anticipated Interchange and Program Pricing Level: your initial anticipated Payment Network
interchange and program pricing rates.
Application: the application for Services executed by you.
Authorization: approval by, or on behalf of, the Issuer to validate a transaction. An Authorization indicates
only that the Issuer has confirmed there is sufficient availability of funds on the Cardholder's account at the time
the Authorization is requested.
Authorization and Capture: the communication of instructions from your POS or other systems to our
computer systems, whether the communications are for authorization requests or any other capture of
information.
Batch: A single submission to us of a group of transactions (sales and credits) for settlement. A Batch usually
represents a day's worth of transactions.
Card: see either Credit Card or Debit Card.
Cardholder: the Person whose name is embossed on a Card and any authorized user of such Card, also
referred to as a Card Member by American Express.
Cardholder Information: the data contained on a Card, or otherwise provided to you, that is required by the
Payment Network or us in order to process, approve and/or settle a Card transaction, including the names,
addresses and Card account numbers of Cardholders.
Card Replacement Costs: the costs you are obligated to pay to comply with the written demand of a
Payment Network to reproduce and distribute cards arising from a Data Incident.
Chargeback: a Card transaction (or disputed portion) that is returned to us by the Issuer. You are responsible
for payment to us for all Chargebacks.
Clover Services: The Clover Services are owned and provided by Clover Network, LLC (Clover) and include
Clover APIs, the website associated with Clover, the Clover software and software applications and gateways
(whether owned or licensed by Clover and not including third party applications you contract for directly with the
application developer), the Clover App Market, and other Clover services. Any Clover Services you receive are
provided to you by Clover pursuant to the then-current terms of use found at www.clover.com/terms
Credit Card: a card bearing a valid Mark of Visa, Mastercard, Discover Network, PayPal or American Express
(or any other Payment Network specified by us in writing) and authorizing the Cardholder to buy goods or
services on credit.
Data Compromise: the exposure of card information that compromises the security, confidentiality, or
integrity of personally identifiably information.
Data Incident: actions, omissions, unauthorized access, intrusions, or security breaches resulting in a
Security Failure and ensuing Data Compromise, as identified in a Payment Network’s formal notice. Regardless
of the number of unauthorized accesses, security breaches, or Data Compromise events, all activities resulting
from (1) common intruders or a conspiracy of intruders, (2) unauthorized software installations, or (3) continuous
or repeated actions, or exposure to the same general harmful condition, will be considered a single Data
Incident. A Data Compromise stemming from either: (i) multiple intrusions into your computer system enabled by
a worm, key logger, or the like, or (ii) the repeated use of a stolen or compromised password or access code, will
also be deemed to arise out of a single Data Incident. Data Incident Expenses: (a) any of your obligations to us for liability imposed by Payment Networks arising
from a Data Incident, including, PCI Upgrade Costs and Card Replacement Costs; and (b) the costs of a security
assessment conducted by a qualified security assessor approved by a Payment Network or PCI to determine the
cause and extent of a Data Incident. Data Incident Expenses do not include (1) any cost for Mitigation Services
or to notify consumers about a Data Incident; (2) interchange fees, Chargeback expenses or the amount of any
transaction returned to you, the Bank or us; or (3) any other damage, legal expenses, punitive or exemplary
damages, legal or regulatory fines or penalties.
Debit Card: a card bearing a valid Mark of Visa, Mastercard, Discover Network or American Express or any
debit network that is used to access funds in a Cardholder's bank account or a prepaid account.
Device: a tablet, smartphone, or other mobile or fixed form factor identified by us as compatible with and
capable of accessing and/or supporting a particular Service.
Discount Rate: a percentage rate or amount charged to a merchant for processing its qualifying daily Credit
Card and Non-PIN Debit transactions, as set forth in the Application.
Dispute: any dispute, claim, or controversy related to or arising under any aspect of your relationship with us,
whether directly with Processor and/or Bank, or indirectly with any other Person or entity related to the
relationship, and arising at any time during, before, or after that relationship.
Equipment: equipment rented to or purchased by you under this Agreement and any Equipment Documents.
Equipment Documents: documents setting out additional terms on which Equipment is rented to or
purchased by you under this Agreement.
Foreign Currency: a currency other than the Local Currency and supported by us for a particular service.
General Terms: these general terms and conditions on which the Services are provided, including any
amendments or modifications.
Issuer: the financial institution or Payment Network that has issued a Card to a Person.
Local Currency: the currency associated with your place of domicile and approved by us.
Marks: names, logos, emblems, brands, service marks, trademarks, trade names, tag lines, or other proprietary
designations.
Merchant Account: an account set up for you that requires a card processor, bank, merchant ID, terminal ID,
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 Merchant Account.
Merchant Identification Number (MID): numeric identifier for each merchant location, outlet, or line of
business to us for accounting and billing purposes.
Mitigation Service: a service provided to a Cardholder whose information is the subject of a Data Incident,
where the primary purpose of the service is to mitigate the effects of the Data Incident, including identity theft
education and assistance and credit monitoring.
Non-PIN Debit: a transaction using a Debit Card that is processed without the use of a PIN.
Non-Qualified Fee: the difference between the interchange or program pricing associated with the
Anticipated Interchange and Program Pricing Level and the interchange or program pricing associated with the
more costly interchange or program pricing level at which the transaction actually processed.
Non-Qualified Surcharge: a surcharge applied to any transaction that fails to qualify for the Anticipated
Interchange and Program Pricing Level and is therefore downgraded to a more costly interchange or program
pricing level. The Non-Qualified Surcharge (the amount of which is set out on the Fee Schedule) is in addition to
the Non-Qualified Fee, which is also your responsibility.
Pass-Through Fees: any fees, fines, penalties, charges, costs, expenses, interchange, taxes, assessments,
or any other amounts collected or charged by a Payment Network, or any Person, associated with your
transactions.
Payment Network: any entity formed to administer and promote Cards, including Mastercard Worldwide
(Mastercard), Visa U.S.A., Inc. (Visa), DFS Services LLC (Discover Network), PayPal, Inc. (PayPal), American
Express Travel Related Services Company, Inc. (American Express) and any applicable debit networks.
Payment Network Rules: the rules, regulations, releases, interpretations, and other requirements (whether
contractual or otherwise) imposed or adopted by any Payment Network and related authorities, including those of
the PCI Security Standards Council, LLC and the National Automated Clearing House Association (including,
with respect to EBTs, the Quest Operating Rules).
PCI: Payment Card Industry.
PCI DSS: Payment Card Industry Data Security Standard, as amended from time to time.
PCI Upgrade Costs: the costs you agree to incur to upgrade payment acceptance and processing hardware
and software to enable you to accept and process cards in a manner compliant with the PCI DSS.
Person: an individual, corporation, partnership, sole proprietorship, trust, association, franchisor, or any other
legally recognized entity or organization, other than you or us.
PIN: a Personal Identification Number entered by the Cardholder to submit a PIN Debit transaction.
PIN Debit: a transaction using a Debit Card where a Cardholder enters a PIN via a PIN Pad.
Reserve: funds that are otherwise payable to you which we hold to secure your obligations under this
Agreement, pursuant to Section 17 of this Agreement. The Reserve may also refer to other collateral that you
may provide to us to secure such obligations.
Reserve Account: our records and accounting of such funds or other collateral.
Security Failure: (a) a failure of your computer systems’ security to prevent computer data infiltration, (b)
theft of your hardware or firmware on which data is stored or processed, (c) theft of your passwords or access
codes, or (d) physical loss of your information.
Servicers: Bank and Processor collectively. The words “we,” “us” and “our” refer to Servicers, unless otherwise
indicated.
Services: the activities undertaken by us to authorize, process, and settle Card transactions undertaken by
Cardholders at your location(s), and all other services provided by us under this Agreement.
Settlement Account: an account or account(s) at a financial institution designated by you as the account to
be debited and credited by us for Card transactions, fees, Chargebacks and other amounts due under this
Agreement or in connection with this Agreement.
Software: all software, computer programs, related documentation, technology, know-how and processes
embodied in the Equipment (i.e. firmware) or otherwise provided to you under this Agreement. For the avoidance
of doubt, the term Software shall not include any third party software available as part of a Third Party Service or
which may be obtained by you separately from the Services (e.g. any applications downloaded by you through
an application marketplace).
Third Party Services: services, products, promotions or applications provided by someone other than us.
Transaction Data: data collected as part of performing Services for you.
Transaction Rate: the then-current Foreign Currency exchange rate used by the Payment Networks or their
designee to convert the net funding amount into the Local Currency. Wireless Networks: certain cellular telephone and data networks to which we have access though Wireless
Vendors.
Wireless Services: wireless data communication services that use radio base stations and switching offered
by Wireless Networks in order to allow you to capture and transmit to us certain wireless Card Authorization
transactions or to transmit other communications to our system.
Wireless Software: wireless software (including any documentation relating to or describing the wireless
software) downloaded by you or your designee from our systems onto the wireless equipment.
Wireless Vendors: one or more third party vendors selected by us in our sole discretion through whom we
have acquired the right to resell Wireless Services.
Name
First Data Merchant Services LLC
Address
4000 Coral Ridge Dr., Coral Springs, FL
33065
URL
www.firstdata.com
Customer Service #
1-877-273-8191
Processor Information
You, Your: the merchant signing this Agreement.
Your Payments Acceptance Guide: the information prepared by us, containing operational procedures,
instructions and other rules and requirements relating to Card transactions.
2802
8. Confirmation
Please read this entire Agreement. It describes the terms on which we will provide merchant processing
Services to you. This summary provides answers to commonly asked questions about your Agreement.
1. Your Discount Rates and other fees are calculated based on transactions qualifying for certain program
pricing and interchange rates levied by the applicable Card Organization. Transactions that fail to qualify for
these rates will be charged an additional fee. Interchange and program pricing levied by the Card Organization is
subject to change, (see Section 6 of the General Terms & Conditions).
2. We may debit your bank account (also referred to as your Settlement Account) for amounts owed to us.
3. You are liable for Chargebacks and there are many reasons why a Chargeback may occur. When they
occur we will debit your Settlement Account. See Section 8 of the General Terms & Conditions.
4. If you wish to dispute any charge or funding, you must notify us within 60 days of the date of the statement
on which the charge or funding appears.
5. This Agreement limits our liability to you. See Section 10 of the General Terms & Conditions for further
details.
6. We have assumed certain risks by agreeing to provide you with the Services. Accordingly, we may take
certain actions to mitigate our risk, including termination of this Agreement, and holding monies otherwise
payable to you (see Sections 16 and 17 of the General Terms & Conditions).
7. By executing this Agreement with us you authorize us and our Affiliates to obtain and share financial and
credit information regarding your business and the signers and guarantors of this Agreement until all your
obligations to us and our Affiliates are satisfied.
8. Arbitration: This Agreement contains a binding arbitration provision in Section 28 that affects your rights
under this Agreement with respect to all Services.
Information about Bank:
a) Your Bank, who is a Visa and MasterCard Member Bank, is Pathward, N.A., 5501 S. Broadband Lane, Sioux
Falls, SD 57108, 1-866-550-6382.
b) Bank is the entity approved to extend acceptance of Visa and MasterCard products directly to you and will be
a party to the sections of this Agreement listed in Section 2.2.
c) Bank works with Processor to provide the Services to you with respect to Visa Cards and to MasterCard
Cards.
d) Bank shall, either directly or through Processor, advise you of pertinent Card Organization Rules with which
you must comply.
Rachel Downing
(Treasurer)
Business Principal Signature:
e) Bank is responsible for and must provide settlement funds to you and will be responsible for all funds held in a
reserve.
Your Responsibilities:
a) You must comply in full at all times with this Agreement (including the Your Payments Acceptance Guide), all
Card Organization Rules and all Cardholder and customer data security and storage requirements.
b) You may view and download the Your Payments Acceptance Guide at:Your Payments Acceptance Guide.
c) You may view and download the Interchange Qualification Matrix and American Express OptBlue® Guide at:
https://www.businesstrack.com
d) You may download the Visa and MasterCard rules at:
https://usa.visa.com/support/merchant.html
http://www.mastercard.com/us/merchant/support/rules.html
e) For your account to stay operational, you must keep fraud and Chargeback levels below Card Organization
thresholds.
f) Please retain a signed copy of your Agreement.
By signing below, you:
(i) confirm that you have received and read this Merchant Processing Agreement which includes the
Confirmation Page], [Interchange Rate Schedule]; and
(ii) agree to all terms in this Agreement in your capacity as a person authorized to sign on behalf of the
business set out in the Application.
(iii) acknowledge that you have executed the Agreement using an electronic signature process and that
signature reflects your agreement to be bound to the General Terms and Conditions set forth in the
Agreement.
(iv) I further certify to the fact that I am the current majority owner or authorized signer listed on the
merchant account of the company. To the best of my knowledge the Beneficial Ownership information is
complete and accurate. I will notify processor promptly of any changes to that information.
(v) in the event that no beneficial owners are listed, I certify that there are no individuals that own,
directly or indirectly, 25 percent or more in equity interests of the legal entity.