This Merchant Services Agreement (“Agreement”) documents the merchant services terms and conditions (“Terms and Conditions”) for card payment processing services by and among you, the business enterprise (“Sub-Merchant”), Swivel Transactions, LLC (fka SWBC Payments, LLC) (“Merchant” or “Payment Facilitator”) and JPMorgan Chase Bank, N.A. (with offices at 8181 Communications Pkwy Bldg. B, Floor 5, Plano, Texas 75024) (“Member Bank”). Payment Facilitator and Member Bank are hereinafter collectively referred to as the “Service Provider”. Subject to the requirements of the rules of the various card brands, Payment Facilitator and Member Bank reserve the right to allocate Service Provider’s duties and obligations amongst themselves as they agree appropriate in their sole discretion, and Member Bank or Payment Facilitator may jointly or individually assert or exercise any rights or remedies provided to Service Provider hereunder. For clarity, any rights, remedies, benefits, limitations of liability and disclaimers of, or other provisions applicable to, “Service Provider” apply to Member Bank and Payment Facilitator individually. If Sub-Merchant wishes to address any act or omission by, or make or bring any claim or action against Service Provider, relating to these Terms and Conditions, it shall first discuss such issue with Payment Facilitator prior to making or bringing any claim or action against Member Bank (in which case Payment Facilitator shall address the issue as agreed with Member Bank).
Member Bank, as a member of Visa Inc. (“Visa”), Mastercard International, Inc. (“Mastercard”), and Discover Financial Services, LLC (“Discover”) provides transaction processing and other services and products in connection with financial services provided by Visa and Mastercard. Payment Facilitator provides transaction processing and other services and products in connection with financial services provided by Discover. Visa, Mastercard, and Discover are collectively defined as the “Card Brands” and their cards are each a “Card”.
Merchant, as an agent of Member Bank, provides payment card processing services. Sub-Merchant is engaged in the business of selling goods and/or services, and desires that Service Provider provide the services described in these Terms and Conditions (the “Services”).
Sub-Merchant acknowledges and agrees that for the Term of this Agreement, Merchant is acting as Sub-Merchant’s authorized agent for the limited purpose of accepting payments on Sub-Merchant’s behalf from Sub-Merchant’s customers for products and/or services provided by Sub-Merchant, and Sub-Merchant appoints Merchant as its agent, and expressly authorizes Merchant to receive such customer payments on Sub-Merchant’s behalf. Debit entries by Merchant to a customer’s account shall be considered payment to Sub-Merchant, satisfying and extinguishing the payment obligation of the customer to the Sub-Merchant (in the amount debited to the customer’s account) as if the customer had paid Sub-Merchant directly.
Service Provider hereby grants Sub-Merchant use of the Services according to the terms found herein.
1. SUB-MERCHANT’S APPLICATION AND INFORMATION. By executing a Merchant Services Agreement Application (“Application”), Sub-Merchant applies for the Services. In their sole and absolute discretion, Merchant and/or Member Bank may accept or reject Sub-Merchant. Sub-Merchant may present or submit Transactions to Service Provider only as permitted herein. “Transaction” means a purchase by Card of goods or services from Sub-Merchant or a refund by Sub-Merchant to a Card done through Services.
2. TERMS AND CONDITIONS; INCORPORATION OF ADDITIONAL TERMS AND PROVISIONS.
2.1 The schedules to these Terms and Conditions, as may be provided by Merchant from time to time and as may be amended from time to time by Merchant, are part of Merchant Services Agreement, as are the fee schedule provided to Sub-Merchant by Merchant, and the Card Brand Rules, and are hereinafter individually and collectively referred to as the Agreement. For the avoidance of doubt, this Agreement includes the provisions required by the Card Brand Rules. “Card Brand Rules” means the by-laws, operating regulations, rules, policies, and procedures of the Card Brands, as in effect from time to time. Without limiting the foregoing, the Card Brand Rules include the provisions required by: (a) the Visa Core Rules and Visa Product and Service Rules relating to the Visa Dispute Monitoring Program, and Card acceptance (the “Visa Regulations”); and (b) section 5.1 and sections 5.6 through 5.12 of the Mastercard Rules (the “Mastercard Rules”). Additional information and links to locations where Sub-Merchant can see or obtain copies of the Visa Regulations and the Mastercard Rules are respectively located at: http://corporate.visa.com/about-visa/our-business/operating-regulations.shtml and http://www.Mastercard.com/us/Client/pdf/BM-Entire Manual public.pdf. Sub-Merchant shall periodically review the contents of the Card Brand Rules to ensure it remains in compliance with them.
3. PROCEDURES FOR CARD TRANSACTIONS.
3.1 In accepting Cards for the purchase of Sub-Merchant’s goods or services, Sub-Merchant shall comply with this Merchant Services Agreement and the requirements of the Terms and Conditions, including but not limited to the Card Brand Rules for the Card program services to which Sub-Merchant subscribes, which may vary among Card types and as the same are revised from time to time.
3.2 Submission of Valid Transactions.
3.2.1 Sub-Merchant will submit to Service Provider a Transaction only if the Transaction is made or approved by the cardholder who is issued the Card used for the Transaction. Sub-Merchant will not submit directly or indirectly: (a) any Transaction that Sub-Merchant knows or should have known to be fraudulent or not authorized by the cardholder; (b) any Transaction that results from a transaction outside of Sub-Merchant’s normal course of business, as described on the Application; or (c) any Transaction using a Card issued to Sub-Merchant or Sub-Merchant’s business owners, family members, or principals.
If at any time Service Provider suspects fraud, money laundering or violations of the Card Brand Rules, Service Provider may, in its sole and absolute discretion and in addition to other remedies that the Service Provider may have: (a) refuse to process the excessive or suspect Transactions; (b) process the Transactions and retain the funds received from processing until such time as the excess or suspect Transactions are found to be valid or invalid and processed in accordance with the Card Brand Rules; (c) suspend processing and/or terminate the Agreement; or (d) amend the Terms and Conditions to protect the interests of Service Provider.
3.3 Payments to Sub-Merchant for Valid Transactions.
3.3.1 Member Bank will provide provisional credit from the Card Brands for each undisputed and valid Transaction Sub-Merchant submits to Service Provider by crediting Merchant, which accepts the provisional credit on Sub-Merchant’s behalf, provided Member Bank has received settlement for the valid Transaction through the interchange procedures specified by the relevant Card Brand. Sub-Merchant agrees to designate Merchant as Sub-Merchant’s agent, and Sub-Merchant agrees that Member Bank’s obligations to settle funds to Sub-Merchant are satisfied upon transfer of the credit to Sub-Merchant’s designated agent, Merchant, per Sub-Merchant’s explicit request and authorization. Sub-Merchant may not submit transactions that violate Card Brand Rules related to charged off debt.
3.3.2 Sub-Merchant agrees that it is not entitled to access the provisional credit prior to the provisional credit being credited to Sub-Merchant’s Designated Account. Sub-Merchant authorizes Service Provider to credit Sub-Merchant’s Designated Account. “Designated Account” means a bank or other financial institution account Sub-Merchant identifies to Merchant.
3.3.3 Sub-Merchant further agrees that Sub-Merchant is not entitled to any interest or other compensation associated with the provisional credit held by Service Provider, has no right to direct Member Bank to distribute the provisional credit, and may not assign any interest in the provisional credit held by Service Provider. Service Provider may periodically make information available to Sub-Merchant regarding anticipated funds settlement from Card Brands. This settlement information does not constitute a deposit or other obligation by Service Provider to Sub-Merchant. Any settlement information communicated to Sub-Merchant is for reporting and informational purposes only.
Sub-Merchant authorizes Merchant, as Sub-Merchant’s designated agent, to instruct Member Bank on Sub-Merchant’s behalf on how and when to make transfers of provisional credit to Merchant, including the initiation of holds, receipts, and disbursements of provisional credit. Provisional credit will be held in pooled merchant funds accounts pending disbursement to Sub-Merchant in accordance with the terms of this Agreement.
Notwithstanding the above, Member Bank and Merchant, may elect, upon their agreement, to settle Transaction funds in an alternative manner, such as, for example, by Member Bank settling Transaction funds directly to Sub-Merchant.
3.3.4 There is no obligation to provide provisional credit to Sub-Merchant for Transactions submitted that are not valid Transactions and Service Provider may suspend or discontinue any provisional credit in Service Provider’s sole and absolute discretion, including for any reason that would justify termination of the Agreement. Each credit to Sub-Merchant will be subject to adjustment, including revocation, upon Service Provider’s further review and verification. Credit to Sub-Merchant for a Transaction disputed by a cardholder for any reason is not final.
3.3.5 Sub-Merchant may utilize multiple Designated Accounts to allow for easier reporting of Transactions. Such additional Designated Accounts require a separate Application and require approval by Service Provider and are subject to the terms of these Terms and Conditions. Sub-Merchant is responsible for any additional fees or costs associated with having multiple Designated Accounts. These additional Designated Accounts collectively count toward underwriting limits for Sub-Merchant, as such collective limits are established by Service Provider.
3.3.6 Sub-Merchant will promptly provide Service Provider with any information it requests in response to an inquiry from a Card Brand. A Card Brand may make an inquiry when it requires information about a disputed Transaction. In order to be able to respond to an inquiry, Sub-Merchant must maintain records and follow business practices that are in accordance with the Card Brand Rules.
3.3.7 “Chargeback” means a Transaction returned by a Card issuer to Member Bank. Sub-Merchant must not reenter or reprocess any Card Transaction that has been returned or become a Chargeback. Instead Sub-Merchant must allow the Chargeback process to proceed to its conclusion. If Sub-Merchant disagrees with a Chargeback, Sub-Merchant may make a reversal request pursuant to applicable Card Brand Rules. Sub-Merchant acknowledges that regardless of its refund or return policy, Chargebacks will be handled in accordance with these Terms and Conditions and Card Brand Rules. Sub-Merchant is liable to Service Provider for the amount of all Chargebacks, Card Brand fines, and associated fees. Sub-Merchant authorizes Service Provider to deduct, recoup, or offset from incoming Transactions and to debit Sub-Merchant’s Designated Account, the Sub-Merchant Reserve Account, and the Billing Reserve described below to recover any Chargeback. Service Provider may suspend accepting Transactions or releasing funds represented by Transactions to Sub-Merchant until Sub-Merchant reimburses Service Provider for all unpaid Chargebacks.
3.3.8 Sub-Merchant is liable to Service Provider for the amount by which credit Transactions processed on any day exceed valid Transactions submitted on that day. Service Provider may deduct the amount of any credit Transaction processed for Sub-Merchant in the same manner as it would a Chargeback. Sub-Merchant acknowledges that all payments and credits provided to Sub-Merchant are provisional and subject to suspension, to Chargebacks and to adjustments in accordance with this Agreement and the Card Brand Rules.
3.4 Restrictions. Sub-Merchant may not (a) indicate or imply that the Card Brands or Service Provider endorses any Sub-Merchant goods or services, (b) refer to a Card Brand or Service Provider in stating eligibility for Sub-Merchant’s products, services or membership, or (c) use any marks, symbols or logos owned by any Card Brand or Service Provider for any purpose other than those permitted in the Card Brand Rules, provided that any use of Service Provider’s marks, symbols or logos shall be in accordance with and subject to any branding guidelines provided by Service Provider. Sub-Merchant acknowledges that Member Bank and Merchant shall remain the sole and exclusive owners of their respective intellectual property and Confidential Information (defined below). Except to the extent expressly provided herein, no rights to Service Provider’s intellectual property or Confidential Information are granted hereunder, and all rights therein are expressly reserved.
3.5.1 Sub-Merchant must obtain the CVV2, CVC2 or CID information, as applicable, from each Card when processing a transaction in their environment. However, Sub-Merchant must never store this value permanently.
3.5.2 Sub-Merchant will not attempt to obtain authorization on an expired Card. Transactions will be deemed invalid on Cards that are expired, whether or not authorization has been obtained.
3.5.3 Sub-Merchant shall not submit an authorization on behalf of any third party.
3.5.4 When a Sub-Merchant runs Transactions through Merchant’s service, Sub-Merchant is responsible to ensure access is only granted to valid users who are authorized customers of Sub-Merchant. Sub-Merchant is responsible to perform due diligence on customers or members who it authorizes to utilize the payments system and to disable access for customers or members who it terminates from access to its services.
3.5.5 When Sub-Merchant uses Merchant’s service, Merchant will provide a means to collect and utilize the expiration date, and zip code or postal code from the cardholder’s billing address for the purpose of transaction authorization. If the expiration date is not stored in Merchant’s service, Sub-Merchant must obtain the Card expiration date and forward it to Merchant as part of the authorization request.
4. CLIENT’S WARRANTIES. Upon signing the Application, and each time Sub-Merchant submits a Transaction, Sub-Merchant represents and warrants that:
4.1 Sub-Merchant has abided by the Terms and Conditions, and all applicable laws and the Card Brand Rules and has not submitted a Transaction that is knows or has reason to believe is illegal;
4.2 Each statement made on the Application was true as of the date Sub-Merchant signed such document agreeing to be bound by the Merchant Services Agreement including the Terms and Conditions;
4.3 There have been no materially adverse changes in information provided by Sub-Merchant in the Application or in Sub-Merchant’s financial condition, or management;
4.4 Sub-Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Sub-Merchant’s business or product lines that have not been previously disclosed to Service Provider;
4.5 Each Transaction is genuine and arises from a bona fide sale of merchandise or services by Sub-Merchant, represents a valid obligation for the amount shown on the Transaction receipt, and does not involve the use of the Card for any other purpose;
4.6 Sub-Merchant has title to the Transaction and Transaction receipt, there are no liens or other encumbrances on it, and Sub-Merchant has the authority to convey the Transaction for processing;
4.7 No Transaction is subject to any set-off or counterclaim;
4.8 No Transaction has been previously presented or submitted for processing unless allowed by the Card Brand Rules;
4.9 Each statement on the Transaction receipt is true, and Sub-Merchant has no knowledge of facts that would impair the validity or collectability of the amount of the Transaction;
4.10 The person who executes the Application, and thus this Merchant Services Agreement, on behalf of Sub-Merchant has the full power and authority to execute the Application and the Merchant Services Agreement and to enter into the Terms and Conditions;
4.11 The Agreement is a legal, valid, and binding obligation of Sub-Merchant enforceable against Sub-Merchant in accordance with its terms;
4.12 Sub-Merchant shall submit Transactions only in accordance with the information contained in the Application and the Agreement;
4.13 Sub-Merchant has the power and authority to authorize the automatic funds transfer provided for in the Agreement;
4.14 The Designated Account is owned and controlled by Sub-Merchant, is a valid account for processing debit and credit transactions under this Agreement and will be open at all times during the Term and as long as the Sub-Merchant Reserve Account and Billing Reserve (as described below) are in effect;
4.15 Sub-Merchant is not (a) a sanctioned person, (b) located in or operating under a license issued by a jurisdiction whose government has been identified by the U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j), (c) located in or operating under a license issued by a jurisdiction that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the U.S. is a member, or (d) located in or operating under a license issued by a jurisdiction that has been designated by the U.S. Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns;
4.16 Sub-Merchant will immediately notify Member Bank and Merchant in writing of any material changes to any information provided herein including but not limited to a change in Sub-Merchant’s legal entity, location, business type, or the types of goods and/or services offered for sale by Sub-Merchant;
4.17 There are no Federal or state enforcement actions pending against Sub-Merchant or its principals (including any enforcement actions by the Federal Trade Commission (“FTC”) or state Attorney General actions).
4.18 There is no action, suit or proceeding pending or, to Sub-Merchant’s knowledge, threatened that, if decided adversely, would materially impair Sub-Merchant’s financial condition or operations, or its ability to perform its obligations under these Terms and Conditions, or pay its debts;
4.19 Sub-Merchant complies fully with the High Risk Acceptable Use Policy;
4.20 Sub-Merchant shall ensure that only authorized individuals access Sub-Merchant’s Designated Account to, among other things, effect transfers of funds to and/or from such account. Sub-Merchant shall be solely responsible for any loss that arises out of any unauthorized individual gaining access to Sub-Merchant’s Designated Account (including by using Sub-Merchant’s ID number and PIN), and shall indemnify, defend and hold Service Provider harmless from and against any such loss, unless such unauthorized access is solely the fault of Service Provider.
5.1 Sub-Merchant will treat as confidential: (a) the terms of the Agreement; (b) all information or data, of whatever nature, relating to Service Provider (including its operations, policies, procedures, accounts and personnel) accessed or used by or disclosed to Sub-Merchant in connection with the Terms and Conditions; (c) Merchant’s IRS W-9 form; and (d) all information or data that is proprietary to a third party (including Service Provider’s customers and contractors) and that Service Provider is obligated to treat as confidential, accessed or used by or disclosed to Sub-Merchant in connection with the Terms and Conditions (individually and collectively, “Confidential Information”). Sub-Merchant shall not use or disclose Confidential Information without Service Provider’s prior written consent. Sub-Merchant may only disclose Confidential Information to Sub-Merchant employees who have a need to know such information in connection with Sub-Merchant’s performance hereunder and who are bound to confidentiality restrictions no less restrictive than those herein. Sub-Merchant shall exercise at least the same degree of care to maintain the confidentiality of Confidential Information that it uses for its own similar information, but in no event less than a commercially reasonable degree of care. The foregoing obligations shall not apply to any information that (i) is received from any third party source that is properly authorized to disclose it without restriction, (ii) is or becomes generally known to the public by publication or some other means other than a breach by Sub-Merchant or its employees of any agreement or confidentiality obligations, or (iii) is required by law to be divulged, provided that the request is proper and the disclosure does not exceed that which is required. In the case of (iii), Sub-Merchant will provide prior notice thereof, if legally permissible, and cooperate with Service Provider to limit disclosure. Sub-Merchant warrants that it, its officers, employees and agents will: (a) hold in strictest confidence all Confidential Information; (b) not use Confidential Information for any purposes other than providing the products and/or services described in the Agreement; (c) not provide Confidential Information to any officer, employee or agent unless such officer, employee or agent has reason to know such information in order to effect the purposes of the Agreement; and (d) not provide Confidential Information to any third party without the disclosing party’s prior written consent, except as required by applicable federal and state law and regulations, as amended from time to time. Sub-Merchant will use commercially reasonable means to implement appropriate administrative, technical, and physical safeguards to (i) ensure the confidentiality of the Confidential Information, (ii) protect against threats or hazards to the security or integrity of the Confidential Information, (iii) protect against unauthorized access to or use of the Confidential Information, and (iv) ensure the proper disposal of Confidential Information. In the event of any breach of the above-described safeguards, Sub-Merchant shall immediately notify Merchant, disclose the effect of the breach on the Confidential Information, the Confidential Information that may have been compromised as a result of the breach, and any corrective and responsive actions taken in response to such breach. Upon Service Provider’s request, and upon termination or expiration of the Agreement, Sub-Merchant shall return or, only if requested by Service Provider, destroy all Confidential Information in its possession or control. Sub-Merchant acknowledges that a breach of this Section 5 may cause Service Provider material and irreparable injury and that Service Provider may have no adequate remedy at law. Accordingly, Service Provider may seek provisional or injunctive relief in addition to any other rights or remedies.
5.2 “Sub-Merchant Servicer” means a third-party agent that: (a) is engaged by a Sub-Merchant; (b) is not a member of the Card Brands; and (c) has access to cardholder data, or processes, stores, or transmits Transaction data. Sub-Merchant must notify Service Provider and receive Service Provider’s approval prior to engaging any Sub-Merchant Servicer in connection with Sub-Merchant’s acceptance of Cards or the submission of Transactions to Service Provider. Sub-Merchant shall provide Service Provider at least 60 days’ advance written notice of Sub-Merchant’s election to use a Sub-Merchant Servicer. Member Bank and/or Merchant may individually approve or deny the use of a Sub-Merchant Servicer in their sole and absolute discretion and at any time. If a Sub-Merchant Servicer is required to certify, register, or act in any fashion pursuant to the Card Brand Rules, Sub-Merchant shall cause such Sub-Merchant Servicer to cooperate with Member Bank in completing any steps required for registration, certification and/or action. Sub-Merchant is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration, certification and/or action. Sub-Merchant Servicer shall be subject to at least the same degree of confidentiality obligations as contained in this Agreement. Service Provider shall in no event be liable to Sub-Merchant or any third party for any actions or inactions of Sub-Merchant Servicer(s) used by Sub-Merchant, and Sub-Merchant expressly assumes all such liability.
6. DATA SECURITY.
6.1 The use of a Sub-Merchant Servicer or software or systems provided by a Sub-Merchant Servicer that has connectivity to the Internet poses an increased risk, and Sub-Merchant assumes all liability for such increased risks. If Sub-Merchant utilizes software or hardware with a connection to the Internet such hardware or software interacts in any capacity with the provision of services contemplated pursuant to these Terms and Conditions, Sub-Merchant is solely liable without limitation for any and all consequences of such interaction.
6.2 Sub-Merchant agrees and shall ensure that Sub-Merchant Servicers utilized by Sub-Merchant provide the same levels of security as those required of Sub-Merchant, and that such Sub-Merchant Servicers transmit data in accordance with: (a) the required format(s) of the Card Brands; (b) the Card Brand Rules; and (c) the requirements of Service Provider. Sub-Merchant must have a written contract between itself and its Sub-Merchant Servicers that stipulates adherence to the provisions of such information security requirements. Sub-Merchant’s written contract with any such third party must contain provisions obligating the third party to comply with (to the extent applicable); (i) law, AISP, SDP, DISC, PCI DSS, PA-DSS, PIN and PED security requirements; (ii) all other Card Brand requirements pertaining to confidentiality and security and integrity of cardholder and Card transaction data; (iii) all rules prohibiting storage of certain Card transaction data; and (iii) all other applicable Card Brand Rules. Sub-Merchant will only allow Sub-Merchant Servicers to have access to cardholder data for the purposes that are authorized by the Card Brand Rules. Any fees, fines or penalties from noncompliance will be passed to the Sub-Merchant. Sub-Merchant shall indemnify and hold Member Bank and Merchant harmless against losses or damages arising from the acts or omissions of Sub-Merchant Servicers engaged by Sub-Merchant.
6.3 Sub-Merchant must immediately notify Member Bank and Merchant of any suspected or confirmed loss or theft of materials or records that contain cardholder account numbers or Transaction information. In the event of a suspected or confirmed loss or theft Sub-Merchant shall provide immediate access to all facilities, systems, procedures, equipment, and documents as may be deemed appropriate by Service Provider or its designated representatives, regulators or auditors for inspection, audit, and copying as deemed appropriate by both Member Bank and Merchant in their individual sole discretion. Sub-Merchant shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur. Sub-Merchant shall make reasonable efforts to address and remedy the cause of the breach, intrusion, compromise or otherwise unauthorized access to cardholder account information.
6.4 Service Provider will own all data associated with Sub-Merchant’s use of the Services and Sub-Merchant hereby grants Service Provider a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display this data for the following purposes: (a) providing and improving the Services; (b) internal usage, including but not limited to, data analytics so long as such data is anonymous and aggregated with other customer data; (c) complying with applicable legal requirements and assisting law enforcement agencies; (d) sharing data about Sub-Merchant’s use of the Services; and (e) any other purpose for which Sub-Merchant provide consent. Sub-Merchant authorizes Service Provider to release its name and address to any third party whom the Service Provider determines needs to know such information in order for Service Provider to perform the Services and who has requested such information.
6.5 Sub-Merchant will never (even in the event of including Sub-Merchant’s failure, bankruptcy, insolvency, or other suspension of business operations): (a) provide cardholder account numbers, personal cardholder information or Transaction information to anyone except Service Provider, the Card Brands, or Sub-Merchant’s servicers or agents for the purpose of assisting Sub-Merchant in completing Transactions, or as specifically consented to by cardholder or required by law or in response to valid legal process; (b) retain or store Card magnetic stripe, CVV, CVV2, CVC2 or CID data (including track data) subsequent to authorization for a Transaction; or (c) release any cardholder information over the telephone under any circumstances. If Sub-Merchant’s business fails or ceases to exist, Sub-Merchant is required to return to Service Provider all such information or provide proof of destruction of this information to Service Provider.
6.6 Sub-Merchant agrees to establish security procedures to protect cardholder information and comply with the Visa Account Information Security Program (“AISP”), Mastercard’s Site Data Protection (“SDP”) Program, Discover Information Security Compliance (“DISC”), and the Payment Card Industry (“PCI”) Data Security Standards (“DSS”). Detailed information about PCI DSS can be found at the PCI DSS Council’s Website: www.pcisecuritystandards.org. The Card Brands or Service Provider, and the respective representatives, may inspect the premises of Sub-Merchant or any servicer or agent engaged by Sub-Merchant for compliance with security requirements. Sub-Merchant acknowledges that any failure to comply with security requirements may result in the imposition of restrictions on Sub-Merchant or the permanent prohibition of Sub-Merchant’s participation in Card acceptance programs by the Card Brands. Sub-Merchant shall indemnify and hold Service Provider harmless against any losses or damages arising from Sub-Merchant’s failure to comply with security procedures and any losses or damages arising from or related to Sub-Merchant’s acts or omissions that result in a breach of data security, including but not limited to Sub-Merchant’s non- participation in any breach security program Merchant may offer.
6.7 Merchant acknowledges that it will maintain compliance with all applicable Card Brand Rules, including, without limitation, the PCI DSS requirements.
6.8 Federal regulations enacted pursuant to the USA PATRIOT Act and other applicable laws require financial institutions with which Merchant has relationships to verify the identity of every person who seeks to open an account with a financial institution. Sub-Merchant shall provide documentary verification of Sub-Merchant’s identity in manner acceptable to Service Provider. Service Provider reserves the right to verify Sub-Merchant’s identity through other non-documentary methods as Service Provider deems appropriate in its sole discretion. Service Provider may retain a copy of any document it obtains to verify Sub-Merchant’s identity with the financial institution.
7. CARD BRAND RULES.
7.1 Sub-Merchant must comply with the Card Brand Rules, as the same may be amended from time to time. The Card Brand Rules may change with little or no advance notice and Sub-Merchant will be bound by all such changes. If Sub-Merchant objects to any change in the Card Brand Rules, it must immediately stop accepting new Transactions for Cards governed by the change. The Card Brand Rules will govern if there is any inconsistency between the Agreement and the Card Brand Rules. If there is an inconsistency between the Agreement (including the Card Brand Rules) and applicable law, applicable law will govern, but only to the extent necessary to resolve the inconsistency.
7.2 Card Brand Rules of the debit networks may differ among them with respect to the Transactions they allow. Service Provider, at its discretion, may require that the most restrictive requirements of one debit network apply to all of Sub-Merchant’s online debit Card Transactions, regardless of Card type.
8. ADVERTISING AND PROMOTION.
8.1 Unless waived by a Card Brand or Service Provider, Sub-Merchant agrees to adequately display the most current Card emblems, decals and other materials to inform customers or members that the Card(s) will be honored as required by the Card Brand Rules. Sub-Merchant shall only indicate that Cards are accepted and shall not indicate that any Card Brand endorses the Sub-Merchants products or services. While this Agreement is in effect, Sub-Merchant shall make no other use of the emblems or marks of any Card Brand or the Service Provider without prior written consent. Any use of these emblems or marks will be in compliance with the Card Brand Rules and specifications of the Card Brands and/or Service Provider. Sub-Merchant will immediately discontinue use thereof upon direction of the Service Provider, or any Card Brand and upon termination of the Agreement.
9. APPLICABLE LAW; CLIENT’S BUSINESS; OTHER PROCESSORS.
9.1 Sub-Merchant will comply with all applicable law, including but not limited to laws and regulations regarding anti-money laundering compliance, in completing Transactions, submitting them to Service Provider, performing its obligations under the Agreement, and otherwise conducting its business.
9.2 Sub-Merchant will give Service Provider at least 30 days’ prior written notice before any change in Sub-Merchant’s name or location, any change in ownership or management of Sub-Merchant’s business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Cards, or any material change in information concerning Sub-Merchant in the Application, and material change in the type or nature of the business carried out by Sub-Merchant or otherwise required to be provided to Service Provider.
9.3 To the extent permitted by applicable law, Sub-Merchant agrees that it will not participate in a Card processing program with another financial institution or processor without Service Provider’s written approval.
10. CREDIT REPORTS AND OTHER INFORMATION.
10.1 From time to time, Service Provider may obtain credit and other information on Sub-Merchant, owners and officers of Sub-Merchant, and any and all personal guarantors of Sub-Merchant, from others (such as customers and suppliers of Sub-Merchant, lenders and credit reporting agencies), and furnish information on Sub-Merchant’s relationship with Service Provider and Service Provider’s experience with Sub-Merchant to others seeking the information.
10.2 Sub-Merchant will provide Service Provider with updated business and financial information concerning Sub-Merchant, including financial statements, tax returns, evidence of required licenses and other information and documents Service Provider may reasonably request from time to time. Sub-Merchant shall further provide Service Provider such information as it may request for the making of insurance claims, or to complete regulatory or other filings related to Sub-Merchant’s activity pursuant to this Agreement. All material marked “confidential” which Service Provider receives from Sub-Merchant will be used only by Service Provider or the Card Brands in performing the Services under these Terms and Conditions or related services and reporting. Service Provider and any Card Brand, regulator, auditor or any other entity having authority may audit Sub-Merchant’s records relating to these Terms and Conditions. Sub-Merchant shall provide all documentation, information or other inspection rights requested by Service Provider’s regulators or auditors or otherwise to enable Service Provider to meet the requirements of applicable law. Without limiting the generality of the foregoing, Sub-Merchant understands and agrees that if, at the time of signing the Agreement Sub-Merchant is undergoing a forensic investigation, Sub-Merchant must notify Service Provider and fully cooperate with the investigation until it is completed.
10.3 Sub-Merchant authorizes Service Provider to release and use information collected in connection with Service Provider’s provision of the Services to third parties that provide services to Service Provider or Sub-Merchant or to any third party that requests and has a reason to know such information, including but not limited to the Card Brands, and any third party having regulatory control over the parties.
11. TERM; TERMINATION.
11.1 Term. The earlier date of the presentation or submission of the first Transaction, including any test Transaction, by Sub-Merchant to Service Provider or the date Service Provider approves the Application signifies the effective date of the Terms and Conditions (“Effective Date”), and this Agreement shall thereafter remain effective until two (2) years after the Effective Date (the “Initial Term”), and thereafter shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless and until a party provides written notice of at least ninety (90) days’ prior to the expiry of the then-current term to the other parties of its intention to terminate this Agreement; provided, however, that this Agreement may be terminated earlier as otherwise stipulated in this Agreement. The Initial Term and Renewal Term may be referred to herein as “Term”.
11.2.1 Termination without Cause. Service Provider may terminate the Agreement as to all Card types or individually specified Card types, without cause, upon 30 days’ advance written notice.
11.2.2 Termination for Cause by Service Provider. Service Provider may terminate the Agreement in its sole and absolute discretion, effective immediately, upon written, electronic or oral notice, except as otherwise stated in the Agreement, to Sub-Merchant if Service Provider reasonably determines that any of the following conditions exists:
(a) Sub-Merchant has violated any provision of the Terms and Conditions.
(b) There is a material adverse change in Sub-Merchant’s financial condition, material change in Sub-Merchant’s processing activity, processing activity inconsistent with the Application, or Service Provider determines in its sole discretion that Sub-Merchant’s processing activity could result in a loss to Service Provider.
(c) A petition in bankruptcy has been filed by or against Sub-Merchant, Sub-Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar official is appointed for a substantial portion of Sub-Merchant’s business, there is a general assignment for the benefit creditors, or the business terminates.
(d) Any information which Sub-Merchant provided to Service Provider, including Application information, was false, incomplete or misleading when received, or has materially changed since Sub-Merchant provided such information.
(e) At any time during the Term of the Agreement, Sub-Merchant has had a monthly ratio of Chargebacks to Transactions exceeding one percent, or Chargebacks are in excess of three percent of any monthly dollar amount of Transactions.
(f) Sub-Merchant or any of Sub-Merchant’s officers or employees has been involved in processing Transactions with Service Provider or other parties arising from fraudulent or otherwise unauthorized transactions.
(g) Sub-Merchant is or will be unable or unwilling to perform its obligations under the Terms and Conditions, the Card Rules or any applicable laws.
(h) Sub-Merchant has failed to pay Service Provider any amount when due.
(i) Sub-Merchant has failed to promptly perform or discharge any obligation under the Terms and Conditions, the Sub-Merchant Reserve Account or the Billing Reserve.
(j) Any of Sub-Merchant’s representations or warranties made in connection with the Terms and Conditions was not true or accurate when given.
(k) Sub-Merchant has defaulted on any agreement it has with Service Provider.
(l) Service Provider is served with legal demand, order or process seeking to attach or garnish any of the provisional credits arising out of or relating to the Terms and Conditions, Sub-Merchant’s funds or property in Service Provider’s possession.
(m) The Card Brand Rules or applicable law are amended in any way so that the continued existence of the Terms and Conditions would (i) cause Service Provider to be in breach of such Card Brand Rules or applicable law, (ii) significantly increase Service Provider’s costs, or (iii) materially affect Service Provider’s business.
(n) Any guaranty supporting Sub-Merchant’s obligations is revoked, withdrawn or terminated or altered in any way.
(o) Any governmental entity initiates proceedings against Sub-Merchant, or Service Provider reasonably believes that a governmental entity may do so.
(p) If any circumstances arise regarding Sub-Merchant or its business that create harm or loss of goodwill to Service Provider or any Card Brand.
11.2.3 Termination for Cause by Sub-Merchant. Sub-Merchant may terminate the Agreement in the event of a material breach of the terms of the Agreement by Service Provider, provided Sub-Merchant gives Service Provider written notice of any alleged breach and such breach remains uncured for a period of 30 days following receipt of written notice by the Service Provider.
11.2.4 Member Bank’s or Merchant’s rights of termination under the Agreement are cumulative. A specific right of termination shall not limit any other right of Service Provider to terminate the Terms and Conditions expressed elsewhere in the Agreement. Notice of termination may be given orally or in writing, if given orally, shall be confirmed in writing, except as otherwise stated in the Terms and Conditions.
11.2.5 Upon termination, Sub-Merchant’s rights to complete Transactions and submit them to Service Provider will cease. Termination of the Agreement will not terminate the rights and obligations of Sub-Merchant and Service Provider relating to acts or omissions occurring before termination, including for example, any fees or other service fees owed to Service Provider, any Transactions processed for Sub-Merchant by Service Provider (whether before or after termination), Sub-Merchant’s Chargeback and indemnity obligations, and the security interest granted to Service Provider in the Agreement.
11.2.6 It is understood that a file for terminated Sub-Merchants referred to as Member Alert to Control High-Risk Clients (“MATCH”), formerly known as the Terminated Client File or “TMF”, is managed and maintained by Mastercard and utilized by the Card Brands and acquiring Service Provider’s to identify the names of any business (and its principals) that have been terminated for certain reasons, including fraud, depositing excessive counterfeit paper, excessive unauthorized transactions, excessive chargebacks, depositing paper for others (laundering), bankruptcy or breach of a Terms and Conditions. Sub-Merchant acknowledges that Service Provider is required to report Sub-Merchant to the MATCH (and/or on the Consortium Client Negative File or “CMNF” published by Discover® Network) if the Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Brands. Sub-Merchant agrees and consents to such reporting in the event of the termination of the Agreement for any of the foregoing reasons.
12. CLIENT RESERVE. If Service Provider believes there is a high level of risk associated with Sub-Merchant’s use of the Services, Service Provider may require the establishment of a reserve (“Reserve”). Factors Service Provider may consider in requiring a reserve are chargebacks, returns, unfulfilled orders, or credit risk. Service Provider will hold funds in Reserve for as long as it deems necessary to mitigate risks associated with Sub-Merchant’s use of the Services. If Service Provider does establish a Reserve, Service Provider will provide Sub-Merchant with notice specifying the terms of the Reserve, which terms Service Provider may change at any time on notice to Sub-Merchant. Sub-Merchant will remain liable for all obligations related to its use of the Services even after the release of any Reserve. The Reserve may be raised, reduced or removed at any time by Service Provider, in its sole discretion. Funds in reserve will be held in an account maintained by Member Bank (the “Sub-Merchant Reserve Account”). The Sub-Merchant Reserve Account will be under the sole control of Member Bank. Sub-Merchant will have no right of withdrawal from the Sub-Merchant Reserve Account, and Merchant will not have access to or hold funds in the Sub-Merchant Reserve Account. Service Provider will reasonably determine the amount of funds in the Sub-Merchant Reserve Account based on the level of risk Sub-Merchant presents. Service Provider may fund the Reserve in any of the following ways: pulling funds directly from or debiting the Sub-Merchant’s Designated Account; withholding a portion of transactions; and/or requiring a payment directly from Sub-Merchant. Member Bank may continue to deposit funds in the Sub-Merchant Reserve Account after termination of the Agreement.
13. BILLING RESERVE. If Merchant believes there is a high level of risk that Sub-Merchant will be unable to pay the fees owing under these Terms and Conditions, Merchant may require the establishment of a billing reserve (“Billing Reserve”). Merchant will hold funds in the Billing Reserve for as long as it deems necessary to mitigate risks associated with Sub-Merchant’s ability to pay fees. If Merchant does establish a Billing Reserve, it will provide Sub-Merchant with notice specifying the terms of the Billing Reserve, which terms Merchant may change at any time on notice to Sub-Merchant. Sub-Merchant will remain liable for all obligations related to its use of the Services even after the release of any Billing Reserve. The Billing Reserve may be raised, reduced or removed at any time by Merchant, in its sole discretion. Merchant will reasonably determine the amount of funds in the Billing Reserve based on the level of risk Sub-Merchant presents. Merchant may fund the Billing Reserve in any of the following ways: instructing Member Bank to pull funds from Sub-Merchant’s Designated Account; instructing Member Bank to withhold a portion of transactions; requiring a payment directly from Sub-Merchant; and/or debiting the Designated Account. Merchant may instruct Member Bank to continue to deposit funds in the Billing Reserve after termination of the Agreement. At its sole discretion, Merchant may return some or all of the funds in the Billing Reserve to Sub-Merchant.
14. SECURITY INTEREST.
14.1 Sub-Merchant hereby grants to Service Provider a security interest in any funds held in Sub-Merchant’s Designated Account and in the Sub-Merchant Reserve Account, to secure the performance by Sub-Merchant of its obligations to Service Provider under these Terms and Conditions. Service Provider may enforce such security interest without notice or demand. Upon request of Service Provider, Sub-Merchant will execute one or more financing statements or other documents to perfect this security interest.
14.2 These Terms and Conditions will constitute a security agreement under the Uniform Commercial Code under which Sub-Merchant grants Service Provider a security interest in and lien upon: (a) all funds owing Sub-Merchant under the Agreement, regardless of the source of such funds; (b) all funds in the Sub-Merchant Reserve Account; (c) present and future Transactions; (d) any amount which may be due to Sub-Merchant under these Agreement, including, without limitation all rights to receive any payments or credits under the Agreement; and (e) upon Service Provider’s request, any other security to secure Sub-Merchant’s obligations under the Agreement (collectively, the “Secured Assets”). Sub-Merchant agrees to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of Sub-Merchant’s obligations under the Agreement and any other agreements now existing or later entered into between Sub-Merchant and Service Provider will have all rights afforded under the Uniform Commercial Code, law, and in equity. Service Provider may exercise this security interest without notice or demand by making an immediate withdrawal or freezing of Sub-Merchant’s Secured Assets. Sub-Merchant warrants that no other person or entity has a security interest in the Secured Assets and Sub-Merchant agrees to obtain from Service Provider written consent prior to granting a security interest of any kind in the Secured Assets to a third party.
15. CUSTOMER CLAIMS. To the extent that Service Provider has paid or may pay a Chargeback or credit transaction receipt, Sub-Merchant will be obligated to reimburse Service Provider for any sums Service Provider pays. If Sub-Merchant does not reimburse Service Provider, Service Provider will have all of the rights and remedies of cardholders, including the cardholders’ rights under 11 U.S.C. §507(a)(6). Service Provider may assert any claim on behalf of a cardholder individually or on behalf of all cardholders as a class.
16. PROCESSING FEES.
16.1 Fee Schedule. Sub-Merchant will pay the fees in the amount specified in the fee schedule provided by Merchant or as otherwise provided for in the Agreement or an addendum thereto. Monthly recurring fees will be assessed upon approval of the Application. Service Provider may increase the fees, including, without limitation, introducing new products or services, by giving Sub-Merchant 30 days’ advance written notice effective for Transactions submitted on and after the effective date of the change.
16.2 Card Brand Actions. Service Provider will not be required to provide Sub-Merchant with 30 days’ notice of an increase in fees if any Card Brand or any other entity having such authority increases fees and the effective date for implementation of the increased fees is less than 30 days. In such cases, Service Provider shall make reasonable efforts to notify Sub-Merchant but failure to provide notice of will not affect Sub-Merchant’s obligation to pay the increased fees.
16.3 Government and Regulatory Actions. Service Provider will not be required to provide Sub-Merchant with advance notice for any increase in fees resulting from any fine, charge, fee or cost incurred in connection with any state, federal or other regulatory action, change in laws or regulations or escheatment of Sub-Merchant’s funds. Service Provider shall make reasonable efforts to notify Sub-Merchant but failure to provide notice of will not affect Sub-Merchant’s obligation to pay the increased fees.
16.4 Payment and Authorization to Debit Designated Account. Sub-Merchant authorizes Service Provider to deduct fees and other service charges, fines, obligations, liabilities, or any other amounts owed by Sub-Merchant to Service Provider from amounts due Sub-Merchant, from the Designated Account, or from the Sub-Merchant Reserve Account or Billing Reserve. This authorization will remain in effect until the Sub-Merchant Reserve Account and Billing Reserve are closed. If Sub-Merchant changes the Designated Account, this authorization will apply to Sub-Merchant’s subsequent Designated Account. Sub-Merchant will pay the amounts due by the next business day if sufficient funds are not available in any of these accounts. Service Provider may suspend accepting Transactions or releasing funds to Sub-Merchant until Sub-Merchant has paid outstanding fees.
17. NO SERVICE PROVIDER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, AVAILABILITY, NONINFRINGEMENT, CLIENT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES REGARDING QUALITY OR MERCHANTABILITY, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, DESCRIPTION, SPECIFICATION, COURSE OF DEALING, OR SAMPLE. THE SERVICES ARE OFFERED SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
18. INDEMNIFICATION; LIMITATION OF LIABILITY.
18.1 Sub-Merchant shall indemnify Service Provider, including their respective officers, directors, employees, and agents, against and hold them harmless from any and all claims, demands, settlements, losses, damages, liabilities, costs and expenses of any kind (including reasonable attorney’s fees) of any party arising from or based upon any act or omission of Sub-Merchant, Sub-Merchant’s employees, or Sub-Merchant’s designated representatives, servicers, or agents, in connection with or arising out of these Terms and Conditions, the duties to be performed by Sub-Merchant pursuant to the Terms and Conditions, any Transactions which Sub-Merchant submits to Service Provider (including Chargebacks) (including any dispute concerning a Transaction or goods or services sold by Sub-Merchant), Sub-Merchant’s violation of the Card Brand Rules or any requirements of applicable law, or Sub-Merchant’s breach of any representation, warranty, or obligation in the Application or this Agreement. If Service Provider is made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively “Actions”) commenced by any third party, Sub-Merchant shall protect and hold Service Provider harmless from and with respect to the Actions and shall indemnify such party from and against all costs, expenses, and attorney’s fees, including in-house legal fees, incurred or paid in connection with the Action, together with any judgments, settlements, losses, damages or other liabilities. Sub-Merchant shall indemnify, defend, and hold harmless Service Provider from and against any hacking, infiltration, or compromise of Sub-Merchant’s systems or the systems of Sub-Merchant, Sub-Merchant servicers or Sub-Merchant’s agent(s), or designated representatives.
18.2 Service Provider will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, Sub-Merchant servicers, agents, third party suppliers of software, equipment or services; or, banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated and/or authorized. Service Provider will not be responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Service Provider. Service Provider undertakes no duties to Sub-Merchant other than the duties expressly provided for in the Agreement, and any and all other or additional duties that may be imposed upon Service Provider in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICE PROVIDER’S AGGREGATE LIABILITY TO SUB-MERCHANT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED $10,000.
18.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER WILL NOT BE LIABLE FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, GOODWILL, DATA, BUSINESS, INVESTMENTS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
19.1 Sub-Merchant will notify Service Provider immediately if any bankruptcy, insolvency or similar petition is filed by or against Sub-Merchant. Sub-Merchant acknowledges that the Agreement constitutes an executory contract to extend credit or financial accommodations as defined in 11 U.S.C. §365(c)(2) and that the Agreement cannot be assumed or assigned in the event of bankruptcy. In the event of Sub-Merchant’s bankruptcy, Service Provider shall be entitled to suspend further performance under the Agreement.
19.2 In the event of a bankruptcy proceeding, Sub-Merchant must establish a Sub-Merchant Reserve Account and/or Billing reserve, or maintain a previously established and then-current Sub-Merchant Reserve Account and/or Billing Reserve in amounts required by Service Provider. Service Provider will have the right to set-off against the Sub-Merchant Reserve Account and Billing Reserve for any and all obligations which Sub-Merchant may owe Service Provider, without regard as to whether the obligations relate to Transactions initiated or created before or after the filing of the bankruptcy petition.
Subject to the exceptions below, the parties agree that any actions or claims concerning this Agreement or the relationship between or among the parties shall be resolved by arbitration under the Federal Arbitration Act before the American Arbitration Association (“AAA”) under the then current rules of the American Arbitration Association concerning Commercial Arbitration regardless of which party commences the claim. A link to the pertinent rules can be found at the following web site: https://www.adr.org/Rules. By confirming this agreement to arbitrate, the parties knowingly agree to waive any right to a trial by jury to the extent permitted by law, and instead agree to arbitrate any and all claims that can possibly arise between or among the parties. The parties agree that arbitration shall be their exclusive remedy for all disputes and that the results of such arbitration shall be final and binding. Judgment upon any award rendered by an arbitration panel may be entered in any state or federal court of competent jurisdiction. Unless otherwise provided by law, any controversy relating to the duty to arbitrate hereunder, or to the validity or enforceability of this arbitration clause, or to any defense to arbitration, shall also be arbitrated before AAA.
20.1 Disputes Not Subject to Arbitration. Notwithstanding the above, if a claim relates to a Chargeback from a transaction with respect to one of the Card Brands, the Card Brand Rules will apply and all claims arising out of the Chargebacks shall be arbitrated pursuant to the Card Brand Rules in a forum that is in accordance with the Card Brand Rules.
20.2 Location and Costs. Any arbitration hearing subject to this Agreement will take place in Bexar County, Texas. The payment of filing, administrative and arbitrators’ fees shall be governed by the administrator’s rules and applicable law. The parties shall bear the fees and expenses of their own attorneys, experts and witnesses, regardless of which party prevails, unless applicable law or this Agreement gives a right to recover any of those fees or expenses from the other party.
20.3 Law Applied. The arbitrators shall follow applicable substantive law to the extent consistent with the Federal Arbitration Act, applicable statutes of limitation and privilege rules that would apply in a court proceeding, and shall be authorized to award all remedies as may be available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive and other equitable relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim), and attorneys’ fees and costs. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties.
20.4 Survival; Conflict. This Section 20 shall survive the termination of this Agreement, any breach, default, or payment in full under this Agreement, and/or your or our bankruptcy or insolvency (to the extent permitted by applicable law). If there is a conflict or inconsistency between this Section 20 and the administrator’s rules or other provisions of this Agreement, this Section 20 will govern.
20.5 Severability. If any part of this Section 20 is deemed invalid or unenforceable, the remaining portions of this Section 20 will still apply.
21. GENERAL PROVISIONS.
21.1 Amendments. Unless otherwise provided for in the Agreement, Service Provider may amend these Terms and Conditions at any time by providing Sub-Merchant with 30 days’ prior notice by: (a) sending Sub-Merchant written notice of such amendment as per clause 21.2 below, or (b) posting such amendment to Merchant’s website as provided in clause 21.2. The amendment will become effective unless Service Provider receives Sub-Merchant’s notice terminating the Agreement before the effective date of such amendment. Service Provider may amend these Terms and Conditions upon less than 30 days’ prior notice if Service Provider reasonably determines immediate modification is required by requirements of law, Card Brand Rules or any adverse change in Sub-Merchant’s financial condition. Amendments submitted by Sub-Merchant will bind Service Provider only if in writing and approved and signed by Service Provider’s authorized officer(s).
21.2 Notices. Sub-Merchant must keep Merchant informed of any change in its electronic or mailing address or other contact information. Any notices or other communications required or permitted by the Agreement shall be in writing and shall be delivered either by personal delivery, by a nationally recognized overnight courier service, electronic mail or other electronic means, by first class mail or by certified or registered mail, return receipt requested, addressed as set forth above or in the Application or to such other address as any party shall have designated to the others by written notice given in the manner set forth above. Notices and approvals required under the Agreement shall be deemed given: one day after sent, if sent by overnight courier; when delivered and receipted for, if hand delivered; when received, if sent by facsimile, electronic mail or other electronic means or by first class mail; or when receipted for (or upon the date of attempted delivery where delivery is refused or unclaimed), if sent by certified or registered mail, return receipt requested.
21.3 Assignment. The Agreement is binding upon the successors and assigns of Service Provider and Sub-Merchant. Sub-Merchant will not assign or transfer (including by merger, change of control or operation of law) the Agreement (in whole or in part) to another person or entity without Service Provider’s prior written consent and any purported assignment made without Service Provider’s consent will be void.
21.4 Waiver. Service Provider’s failure to enforce these Terms and Conditions will not waive Service Provider’s rights under the Agreement. Waivers of any provision of these Terms and Conditions must be in writing and signed by Service Provider. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver.
21.5 Agency Relationship. Sub-Merchant authorizes Service Provider with respect to the Services to act as Sub-Merchant’s agent for the limited purposes of holding, receiving, and disbursing funds on Sub-Merchant’s behalf. Sub-Merchant’s authorization permits Service Provider to generate an electronic funds transfer to process each Transaction. This authorization will continue until Sub-Merchant’s Designated Account is closed or terminated. Sub-Merchant agrees that Service Provider’s receipt of Transaction proceeds satisfies Sub-Merchant’s customers’ obligations to Sub-Merchant. Service Provider will remit to Sub-Merchant funds actually received by Service Provider on Sub-Merchant’s behalf, less amounts owed to Service Provider, subject to any Chargebacks or reserve withheld or applied as per this agreement.
21.6 Survival. Sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20, and clauses 21.1, 21.2, 21.3, 21.4, 21.6, 21.7, 21.8, 21.9, 21.10, 21.11, and 21.12 will survive termination of the Agreement.
21.7 Severability. If any one or more of the provisions contained in the Agreement shall in any jurisdiction be held or determined by a court having jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of the Agreement, which shall continue in full force and effect.
21.8 No Remedies Exclusive. No right or remedy granted pursuant to the terms of the Agreement shall be deemed to be exclusive of any other right or remedy available at law or equity. All such rights and remedies, whether granted now or hereafter, shall be deemed to be cumulative and not alternative, and may be exercised concurrently, independently or successively.
21.9 Governing Law and Venue. This Agreement is governed by and construed under the laws of the State of Texas, without regard to conflicts of laws provision hereof.
21.10 No Third Party Beneficiaries. These Terms and Conditions are for the exclusive benefit of the parties, and no other person or entity, including any affiliate or creditor of any party, shall have any right or claim against any party by reason of the Agreement or shall be entitled to enforce any provision of the Agreement against any party.
21.11 Entire Agreement. These Terms and Conditions constitutes the entire Agreement among the parties, and supersedes all prior oral and written negotiations with respect to the subject matter hereof.
21.12 Headings. Headings listed in the Agreement are inserted for convenience only, do not constitute a part of the Agreement, and are not to be considered in connection with the interpretation or enforcement of the Agreement.
21.13 Review of Books and Records. Service Provider shall have the right, at its cost and expense and by providing not less than 30 days’ prior written notice to Sub-Merchant, to review those books and records of Sub-Merchant that pertain to the performance by Sub-Merchant of its obligations under the Agreement, for the purpose of confirming or assessing compliance with the Terms and Conditions of the Agreement. Any such review shall be conducted during normal business hours at a place reasonably designated by Sub-Merchant.
21.14 Consent to Do Business Electronically. Sub-Merchant consents to do business electronically, which means that Sub-Merchant agrees that all Merchant and Member Bank agreements and policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding transactions and Sub-Merchant’s agreements with Merchant and Member Bank may be presented, delivered, stored, retrieved, signed, and transmitted electronically.
21.15 Further Agreements. Upon request of Merchant, Merchant shall be entitled to require Sub-Merchant to execute additional agreements in a form acceptable to Merchant, in order to provide the services described in this Agreement.