Merchant Services Agreement

This Merchant Services Agreement (Agreement) documents the merchant services terms and conditions (“Terms and Conditions”) for card payment processing services by and between you (“Client”), Swivel Transactions, LLC (fka SWBC Payments, LLC) and Wells Fargo Bank, N.A. (“Member Bank”). Swivel Transactions, LLC and Member Bank are hereinafter collectively referred to as the “Service Provider”. Subject to the requirements of the rules of the various card brands, Swivel Transactions, LLC 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 Swivel Transactions, LLC 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 Swivel Transactions, LLC individually. If Client 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 Swivel Transactions, LLC prior to making or bringing any claim or action against Member Bank (in which case Swivel Transactions, LLC shall address the issue as agreed with Member Bank).

Member Bank, as a member of Visa U.S.A. Inc. (“Visa”), Mastercard International Incorporated (“Mastercard”), and DFS Services LLC (“Discover”) provides transaction processing and other services and products in connection with financial services provided by Visa and Mastercard. Swivel Transactions, LLC provides transaction processing and other services and products in connection with financial services provided by DFS Services LLC (“Discover”). Visa, Mastercard, and Discover are collectively defined as the “Card Brands” and their cards are each a “Card”.

Swivel Transactions, LLC, as an agent of Member Bank, provides payment card processing services. Client 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”). Service Provider hereby grants Client use of the Services according to the terms found herein.

1.
CLIENT’S APPLICATION AND INFORMATION. By submitting a Merchant Services Application, Client applies for the Services. In their sole and absolute discretion, Swivel Transactions, LLC and/or Member Bank may accept or reject Client. Client may present Transactions to Service Provider only as permitted herein. “Transaction” means a purchase by Card of goods or services from Client or a refund by Client to a Card done through Services. The earlier date of the presentation of the first Transaction, including any test Transaction, by Client to Service Provider or the date Service Provider approves the Client Application signifies the effective date of the Terms and Conditions (“Effective Date”). By either Client’s signature on the Merchant Services Application or Client’s processing a Transaction (including a test Transaction) with Service Provider, Client affirmatively accepts and agrees to be bound by the Merchant Services Agreement and all of the Terms and Conditions therein.

 

2.

TERMS AND CONDITIONS; INCORPORATION OF ADDITIONAL TERMS AND PROVISIONS.

2.1.
The schedules to these Terms and Conditions, as amended from time to time, are part of Merchant Services Agreement, as are the fee schedule provided to Client by Swivel Transactions, LLC, and the Card Brand Rules, and are hereinafter individually and collectively referred to as the Agreement. “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, this Agreement includes the provisions required by: (a) the Visa International Operating Regulations relating to the Client Chargeback Monitoring Program, the Terms and Conditions Requirements, and Client Card Acceptance (the “Visa Regulations”); and (b) section 5.1 and sections 5.6 through 5.12 of the Mastercard Rules (the “Mastercard Rules”). Copies of the Visa Regulations https://usa.visa.com/support/small-business/regulations-fees.html#3 and the Mastercard Rules (http://www.Mastercard.com/us/Client/pdf/BM-Entire_Manual_public.pdf) are available for review online. Client shall periodically review the contents of the Card Brand Rules to ensure it remains in compliance with them.
2.2.
The following documents as found at www.getswivel.io/documents as the same may be amended from time to time by Swivel Transactions, LLC with or without prior notice to Client are incorporated into the Agreement: (a) the Privacy Policy; (b) the Electronic Communication Agreement and (c) High Risk Transactions Acceptable Use Policy. Violation of any of the foregoing may result in any one or more of the following: (i) refusal of an authorization to process Transactions; (ii) suspension of the Services; and/or (iii) immediate termination of the Agreement.

 

3.

PROCEDURES FOR CARD TRANSACTIONS.

3.1.
In accepting Cards for the purchase of Client’s goods or services, Client 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 Client 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.
Client 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. Client will not submit directly or indirectly: (a) any Transaction that Client knows or should have known to be fraudulent or not authorized by the cardholder; (b) any Transaction that results from a transaction outside of Client’s normal course of business, as described on the Application; or (c) any Transaction using a Card issued to Client or Client’s business owners, family members, or principals.
3.2.2.
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 Client for Valid Transactions.

3.3.1.
Service Provider will provide provisional credit to Client’s account for each undisputed and valid Transaction Client submits to Service Provider by crediting Client’s Designated Account, provided Service Provider has received settlement for the valid Transaction through the interchange procedures specified by the relevant Card Brand. Client may not submit transactions that violate Card Brand Rules related to charged off debt. Service Provider is not obligated to provide provisional credit to Client for Transactions submitted that are not valid Transactions, and 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 from Service Provider to Client will be subject to adjustment, including revocation, upon Service Provider’s further review and verification. Credit to Client for a Transaction disputed by a cardholder for any reason is not final.
3.3.2.
Client may utilize multiple Designated Accounts to allow for easier reporting of Transactions. Such additional Designated Accounts require a separate Merchant Services Application and require approval by Service Provider and are subject to the terms of these Terms and Conditions. Client is responsible for any additional fees or costs associated with having multiple Designated Accounts. These additional Designated Accounts collectively count toward underwriting limits for Client, as such collective limits are established by Service Provider.
3.3.3.
Client 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, Client must maintain records and follow business practices that are in accordance with the Card Brand Rules.
3.3.4.
Chargeback” means a Transaction returned by a Card issuer to Member Bank. Client must not reenter or reprocess any Card Transaction that has been charged back. Instead Client must allow the Chargeback process to proceed to its conclusion. If Client disagrees with a Chargeback, Client may make a reversal request pursuant to applicable Card Brand Rules. Client acknowledges that regardless of its refund or return policy, Chargebacks will be handled in accordance with these Terms and Conditions and Card Brand Rules. Client is liable to Service Provider for the amount of all Chargebacks, Card Brand fines, and associated fees. Client authorizes Service Provider to deduct, recoup, or offset from incoming Transactions and to debit Client’s Designated Account, the Client 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 Client until Client reimburses Service Provider for all unpaid Chargebacks.
3.3.5.
Client 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 Client in the same manner as it would a Chargeback. Client acknowledges that all payments and credits provided to Client are provisional and subject to suspension, to Chargebacks and to adjustments in accordance with this Agreement and the Card Brand Rules.
3.4.
Restrictions. Client may not (a) indicate or imply that the Card Brands or Service Provider endorses any Client goods or services, (b) refer to a Card Brand or Service Provider in stating eligibility for Client’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. Client acknowledges that Member Bank and Swivel Transactions, LLC 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.

Authorizations.

3.5.1.
Client must obtain the CVV2, CVC2 or CID information, as applicable, from each Card when processing a transaction in their environment. However, Client must never store this value permanently.
3.5.2.
Client 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.
Client shall not submit an authorization on behalf of any third party.
3.5.4.
When a Client runs Transactions through Swivel Transactions, LLC’s service, Client is responsible to ensure access is only granted to valid users who are authorized customers of Client. Client 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 Client uses Swivel Transactions, LLC’s service, Swivel Transactions, LLC 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 Swivel Transactions, LLC’s service, Client must obtain the Card expiration date and forward it to Swivel Transactions, LLC as part of the authorization request.

 

4.

CLIENT’S WARRANTIES. Upon signing the Merchant Services Application and this Merchant Services Agreement, and each time Client submits a Transaction, Client represents and warrants that:

4.1.
Client has abided by the Terms and Conditions, and all applicable laws and the Card Brand Rules;
4.2.
Each statement made on the Merchant Services Application was true as of the date Client 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 Client in the Merchant Services Application or in Client’s financial condition, or management;
4.4.
Client 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 Client’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 Client, 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.
Client has title to the Transaction and Transaction receipt, there are no liens or other encumbrances on it, and Client 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 for processing unless allowed by the Card Brand Rules;
4.9.
Each statement on the Transaction receipt is true, and Client 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 Merchant Services Application and the Merchant Services Agreement on behalf of Client has the full power and authority to execute the Merchant Services 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 Client enforceable against Client in accordance with its terms;
4.12.
Client shall submit Transactions only in accordance with the information contained in the Merchant Services Application and the Agreement;
4.13.
Client 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 Client, 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 Client Reserve Account and Billing Reserve (as described below) are in effect;
4.15.
Client 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.
Client will immediately notify Member Bank and Swivel Transactions, LLC in writing of any material changes to any information provided herein including but not limited to a change in Client’s legal entity, location, business type, or the types of goods and/or services offered for sale by Client;
4.17.
There are no Federal or state enforcement actions pending against Client or its principals (including Federal Trade Commission (FTC) or state Attorney General actions).
4.18.
There is no action, suit or proceeding pending or, to Client’s knowledge, threatened that, if decided adversely, would materially impair Client’s financial condition or operations, or its ability to perform its obligations under these Terms and Conditions, or pay its debts;
4.19.
Client complies fully with the High Risk Acceptable Use Policy;
4.20.
Client shall ensure that only authorized individuals access Client’s Designated Account to, among other things, effect transfers of funds to and/or from such account. Client shall be solely responsible for any loss that arises out of any unauthorized individual gaining access to Client’s Designated Account using Client’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.

CONFIDENTIALITY.

5.1.
Client 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 Client in connection with the Terms and Conditions; (b) Swivel Transactions, LLC’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 Client in connection with the Terms and Conditions (individually and collectively, “Confidential Information”). Client shall not use or disclose Confidential Information without Service Provider’s prior written consent. Client may only disclose Confidential Information to Client employees who have a need to know such information in connection with Client’s performance hereunder and who are bound to confidentiality restrictions no less restrictive than those herein. Client 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 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 Client 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), Client will provide prior notice thereof and cooperate with Service Provider to limit disclosure. Upon Service Provider’s request, and upon termination or expiration of the Agreement, Client shall return or, only if requested by Service Provider, destroy all Confidential Information in its possession or control. Client acknowledges that a breach of this section 5 may cause Service Provider 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.
Client Servicer” means a third-party agent that: (a) is engaged by a Client; (b) is not a member of the Card Brands; and (c) has access to cardholder data, or processes, stores, or transmits Transaction data. Client must notify Service Provider and receive Service Provider’s approval prior to engaging any Client Servicer in connection with Client’s acceptance of Cards or the submission of Transactions to Service Provider. Client shall provide Service Provider at least 60 days’ advance written notice of Client’s election to use a Client Servicer. Member Bank and/or Swivel Transactions, LLC may individually approve or deny the use of a Client Servicer in their sole and absolute discretion and at any time. If a Client Servicer is required to certify, register, or act in any fashion pursuant to the Card Brand Rules, Client shall cause such Client Servicer to cooperate with Member Bank in completing any steps required for registration, certification and/or action. Client is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration, certification and/or action. Service Provider shall in no event be liable to Client or any third party for any actions or inactions of Client Servicer(s) used by Client, and Client expressly assumes all such liability.

 

6.

DATA SECURITY.

6.1.
The use of a Client Servicer or software or systems provided by a Client Servicer that has connectivity to the Internet poses an increased risk, and Client assumes all liability for such increased risks. If Client 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, Client is solely liable without limitation for any and all consequences of such interaction.
6.2.
Client agrees and shall ensure that Client Servicers utilized by Client provide the same levels of security as those required of Client, and that such Client 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. Client must have a written contract between itself and its Client Servicers that stipulates adherence to the provisions of such information security requirements. Client’s written contract with any such third party must contain provisions obligating the third party to comply with (to the extent applicable); (i) law, CISP, SDP, DISC, PCIDSS, 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. Client will only allow Client 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 Client. Client shall indemnify and hold Member Bank and Swivel Transactions, LLC harmless against losses or damages arising from the acts or omissions of Client Servicers engaged by Client.
6.3.
Client must immediately notify Member Bank and Swivel Transactions, LLC 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 Client 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 Swivel Transactions, LLC in their individual sole discretion. Client shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur. Client 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 your use of the Services and you hereby grant 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 Client’s use of the Services; and (e) any other purpose for which you provide consent. Client 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.
Client will never (even in the event of including Client’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 Client’s servicers or agents for the purpose of assisting Client 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 Client’s business fails or ceases to exist, Client is required to return to Service Provider all such information or provide proof of destruction of this information to Service Provider.
6.6.
Client agrees to establish security procedures to protect cardholder information and comply with the Visa Cardholder Information Security Program (CISP), Mastercard’s Site Data Protection (SDP) Program, Discover Information Security Compliance (DISC), and the Payment Card Industry (PCI) Data Security Standards. 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 Client or any servicer or agent engaged by Client for compliance with security requirements. Client acknowledges that any failure to comply with security requirements may result in the imposition of restrictions on Client or the permanent prohibition of Client’s participation in Card acceptance programs by the Card Brands. Client shall indemnify and hold Service Provider harmless against any losses or damages arising from Client’s failure to comply with security procedures and any losses or damages arising from or related to Client’s acts or omissions that result in a breach of data security, including but not limited to Client’s non- participation in any breach security program Swivel Transactions, LLC may offer.
6.7.
Swivel Transactions, LLC 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 Swivel Transactions, LLC has relationships to verify the identity of every person who seeks to open an account with a financial institution. Client shall provide documentary verification of Client’s identity in manner acceptable to Service Provider. Service Provider reserves the right to verify Client’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 Client’s identity with the financial institution.

 

7.

CARD BRAND RULES.

7.1.
Client 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 Client will be bound by all such changes. If Client 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 Client’s online debit Card Transactions, regardless of Card type.

 

8.

ADVERTISING AND PROMOTION.

8.1.
Unless waived by a Card Association or Service Provider, Client 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 Operating Regulations. Client shall only indicate that Cards are accepted and shall not indicate that any Card Association endorses the Clients products or services. While this Agreement is in effect, Client shall make no other use of the emblems or marks of any Card Association or the Service Provider without prior written consent. Any use of these emblems or marks will be in compliance with the Operating Regulations and specifications of the Card Associations and/or Service Provider. Client will immediately discontinue use thereof upon direction of the Service Provider, or any Card Association and upon termination of the Agreement.

 

9.

APPLICABLE LAW; CLIENT’S BUSINESS; OTHER PROCESSORS.

9.1.
Client 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.
Client will give Service Provider at least 30 days’ prior written notice before any change in Client’s name or location, any change in ownership or management of Client’s business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Cards, or any material change in information concerning Client in the Client Application, and material change in the type or nature of the business carried out by Client or otherwise required to be provided to Service Provider.
9.3.
To the extent permitted by applicable law, Client 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 Client, owners and officers of Client, and any and all personal guarantors of Client, from others (such as customers and suppliers of Client, lenders and credit reporting agencies), and furnish information on Client’s relationship with Service Provider and Service Provider’s experience with Client to others seeking the information.
10.2.
Client will provide Service Provider with updated business and financial information concerning Client, including financial statements, tax returns, evidence of required licenses and other information and documents Service Provider may reasonably request from time to time. Client 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 Client’s activity pursuant to this Agreement. All material marked “confidential” which Service Provider receives from Client 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 Client’s records relating to these Terms and Conditions. Client 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, Client understands and agrees that if, at the time of signing the Agreement Client is undergoing a forensic investigation, Client must notify Service Provider and fully cooperate with the investigation until it is completed.
10.3.
Client 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 Client 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. By either Client’s signature on the Merchant Services Application or Client’s processing a Transaction with Service Provider, Client confirms acceptance of the Agreement, which shall apply to all future Transactions (“Term”).
11.2.

Termination.

11.2.1.
Termination without Cause. Service Provider or Service Provider’s designated representative 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 or Service Provider’s designated representative 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 Client if Service Provider reasonably determines that any of the following conditions exists:

(a)
Client has violated any provision of the Terms and Conditions.
(b)
There is a material adverse change in Client’s financial condition, material change in Client’s processing activity, processing activity inconsistent with the Client Application, or Service Provider determines in its sole discretion that Client’s processing activity could result in a loss to Service Provider.
(c)
A petition in bankruptcy has been filed by or against Client, Client 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 Client’s business, there is a general assignment for the benefit creditors, or the business terminates.
(d)
Any information which Client provided to Service Provider, including Client Application information, was false, incomplete or misleading when received, or has materially changed since Client provided such information.
(e)
At any time during the term of the Agreement, Client 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)
Client or any of Client’s officers or employees has been involved in processing Transactions with Service Provider or other parties arising from fraudulent or otherwise unauthorized transactions.
(g)
Client is or will be unable or unwilling to perform its obligations under the Terms and Conditions, the Card Rules or any applicable laws.
(h)
Client has failed to pay Service Provider any amount when due.
(i)
Client has failed to promptly perform or discharge any obligation under the Terms and Conditions, the Client Reserve Account or the Billing Reserve.
(j)
Any of Client’s representations or warranties made in connection with the Terms and Conditions was not true or accurate when given.
(k)
Client 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, Client’s funds or property in Service Provider’s possession.
(m)
The Card Brand Rules are amended in any way so that the continued existence of the Terms and Conditions would cause Service Provider to be in breach of such Card Brand Rules.
(n)
Any guaranty supporting Client’s obligations is revoked, withdrawn or terminated or altered in any way.
(o)
Any governmental entity initiates proceedings against Client, or Service Provider reasonably believes that a governmental entity may do so.
(p)
If any circumstances arise regarding Client or its business that create harm or loss of goodwill to Service Provider or any Card Association.
11.2.3.
Termination for Cause by Client. Client may terminate the Agreement in the event of a material breach of the terms of the Agreement by Service Provider, provided Client 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.
Service Provider’s or Swivel Transactions, LLC’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, Client’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 Client 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 Client by Service Provider (whether before or after termination), Client’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 Clients 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. Client acknowledges that Service Provider is required to report Client 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 Associations. Client 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 Client’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 Client’s use of the Services. If Service Provider does establish a Reserve, Service Provider will provide Client with notice specifying the terms of the Reserve, which terms Service Provider may change at any time on notice to Client. Client 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 “Client Reserve Account”). The Client Reserve Account will be under the sole control of Member Bank. Client will have no right of withdrawal from the Client Reserve Account, and Swivel Transactions, LLC will not have access to or hold funds in the Client Reserve Account. Service Provider will reasonably determine the amount of funds in the Client Reserve Account based on the level of risk Client presents. Service Provider may fund the Reserve in any of the following ways: pulling funds directly from Client’s Designated Account; withholding a portion of transactions; requiring a payment directly from Client; and/or debiting the Designated Account. Member Bank may continue to deposit funds in the Client Reserve Account after termination of the Agreement.

 

13.
BILLING RESERVE. If Swivel Transactions, LLC believes there is a high level of risk that Client will be unable to pay the fees owing under these Terms and Conditions, Swivel Transactions, LLC may require the establishment of a billing reserve (“Billing Reserve”). Swivel Transactions, LLC will hold funds in the Billing Reserve for as long as it deems necessary to mitigate risks associated with Client’s ability to pay fees. If Swivel Transactions, LLC does establish a Billing Reserve, it will provide Client with notice specifying the terms of the Billing Reserve, which terms Swivel Transactions, LLC may change at any time on notice to Client. Client 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 Swivel Transactions, LLC, in its sole discretion. Swivel Transactions, LLC will reasonably determine the amount of funds in the Billing Reserve based on the level of risk Client presents. Swivel Transactions, LLC may fund the Billing Reserve in any of the following ways: instructing Member Bank to pull funds from Client’s Designated Account; instructing Member Bank to withhold a portion of transactions; requiring a payment directly from Client; and/or debiting the Designated Account. Swivel Transactions, LLC may instruct Member Bank to continue to deposit funds in the Billing Reserve after termination of the Agreement. At its sole discretion, Swivel Transactions, LLC may return some or all of the funds in the Billing Reserve to Client.

 

14.

SECURITY INTEREST.

14.1.
Client hereby grants to Service Provider a security interest in any funds held in Client’s Designated Account and in the Client Reserve Account, to secure the performance by Client 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, Client 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 Client grants Service Provider a security interest in and lien upon: (a) all funds owing Client under the Agreement, regardless of the source of such funds; (b) all funds in the Client Reserve Account; (c) present and future Transactions; (d) any amount which may be due to Client 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 Client’s obligations under the Agreement (collectively, the “Secured Assets“). Client agrees to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of Client’s obligations under the Agreement and any other agreements now existing or later entered into between Client 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 Client’s Secured Assets. Client warrants that no other person or entity has a security interest in the Secured Assets and Client 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, Client will be obligated to reimburse Service Provider for any sums Service Provider pays. If Client 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. Client will pay the fees in the amount specified in the fee schedule provided by Swivel Transactions, LLC or as otherwise provided for in the Agreement or an addendum thereto. Monthly recurring fees will be assessed upon approval of the Client Application. Service Provider may increase the fees, including, without limitation, introducing new products or services, by giving Client 15 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 Client with 15 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 15 days. In such cases, Service Provider shall make reasonable efforts to notify Client but failure to provide notice of will not affect Client’s obligation to pay the increased fees.
16.3.
Government and Regulatory Actions. Service Provider will not be required to provide Client 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 Client’s funds. Service Provider shall make reasonable efforts to notify Client but failure to provide notice of will not affect Client’s obligation to pay the increased fees.
16.4.
Payment and Authorization to Debit Designated Account. Client authorizes Service Provider to deduct fees and other service charges, fines, obligations, liabilities, or any other amounts owed by Client to Service Provider from amounts due Client, from the Designated Account, or from the Client Reserve Account or Billing Reserve. This authorization will remain in effect until the Client Reserve Account and Billing Reserve are closed. If Client changes the Designated Account, this authorization will apply to Client’s subsequent Designated Account. Client 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 Designated Account funds to Client until Client 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, NON- INFRINGEMENT, CLIENT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, 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.
Client 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 Client, Client’s employees, Client’s designated representatives, servicers, or agents, in connection with or arising out of these Terms and Conditions, the duties to be performed by Client pursuant to the Terms and Conditions, any Transactions which Client submits to Service Provider (including Chargebacks), or Client’s violation of the Card Brand Rules or any requirements of applicable law. 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, Client 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. Client shall indemnify, defend, and hold harmless Service Provider from and against any hacking, infiltration, or compromise of Client’s systems or the systems of Client, Client servicers or Client’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, Client 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 Client 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 Client, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed of $10,000.
18.3.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS 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.

BANKRUPTCY.

19.1.
Client will notify Service Provider immediately if any bankruptcy, insolvency or similar petition is filed by or against Client. Client 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 Client’s bankruptcy, Service Provider shall be entitled to suspend further performance under the Agreement.
19.2.
In the event of a bankruptcy proceeding, Client must establish a Client Reserve Account and/or Billing Reserve, or maintain a previously established and then-current Client Reserve Account and/or Billing Reserve in amounts required by Service Provider. Service Provider will have the right to set-off against the Client Reserve Account and Billing Reserve for any and all obligations which Client 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.

 

20.

GENERAL PROVISIONS.

20.1.
Amendments. Unless otherwise provided for in the Agreement, Service Provider may amend these Terms and Conditions at any time by providing Client with 15 days’ prior notice by: (a) sending Client written notice of such amendment as per clause 19.2 below, or (b) posting such amendment to Swivel Transactions, LLC’s website as provided in section 2. The amendment will become effective unless Service Provider receives Client’s notice terminating the Agreement before the effective date of such amendment. Service Provider may amend these Terms and Conditions upon less than 15 days’ prior notice if Service Provider reasonably determines immediate modification is required by requirements of Law, Card Brand Rules or any adverse change in Client’s financial condition. Amendments submitted by Client will bind Service Provider only if in writing and approved and signed by Service Provider’s authorized officer(s).
20.2.
Notices. Client must keep Swivel Transactions, LLC 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 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.
20.3.
Assignment. The Agreement is binding upon the successors and assigns of Service Provider and Client. Client 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.
20.4.
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.
20.5.
Agency Relationship. Client authorizes Service Provider with respect to the Services to act as Client’s agent for the limited purposes of holding, receiving, and disbursing funds on Client’s behalf. Client’s authorization permits Service Provider to generate an electronic funds transfer to process each Transaction. This authorization will continue until Client’s Designated Account is closed or terminated. Client agrees that Service Provider’s receipt of Transaction proceeds satisfies Client’s customers’ obligations to Client. Service Provider will remit to Client funds actually received by Service Provider on Client’s behalf, less amounts owed to Service Provider, subject to any Chargebacks or reserve withheld or applied as per this agreement.
20.6.
Survival. Sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, and clauses 19.1, 19.2, 19.3, 19.4, 19.9, 19.10, and 19.11 will survive termination of the Agreement.
20.7.
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.
20.8.
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.
20.9.
Governing Law and Venue. The laws of State of Texas (without regard to its conflicts of law provisions) govern all matters arising out of or relating to the Agreement. The parties consent to the exclusive jurisdiction and venue of the federal or state courts located in Bexar County, Texas for any legal proceeding pertaining to the Agreement. All performances due and Transactions undertaken pursuant to the Agreement are deemed to be due or to have occurred in the City of San Antonio, and the use of the Services by Client is the transaction of business within the State of Texas.
20.10.
Jury Trial Waiver. The parties waive any right to trial by jury in any action arising out of, in connection with, or in any way related to the Agreement.
20.11.
Attorney’s Fees. The prevailing party in an action brought against the other to enforce the terms of the Agreement or any rights or obligations hereunder, will be entitled to receive its reasonable costs and expenses of bringing such action including its reasonable attorney’s fees in addition to any other recoverable damages.
20.12.
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.
20.13.
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.
20.14.
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.
20.15.
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 Client, to review those books and records of Client that pertain to the performance by Client 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 Client.
20.16.
Consent to do Business Electronically. Client consents to do business electronically, which means that Client agrees that all Swivel Transactions, LLC 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 Client’s agreements with Swivel Transactions, LLC and Member Bank (all of which are referred to herein as the “Communications“) may be presented, delivered, stored, retrieved, signed, and transmitted electronically.