Terms & Conditions
- I. Principal/Owner Guarantee
- II. Credit Report Consent
- III. Merchant Agreement
- IV. IPS Electronic Communications Policy (E-sign Disclosure and consent)
- V. American Express Credit Report Consent and Terms
- VI. GoPayment Terms & Agreement
I understand that IPS (as defined in the Merchant Agreement) requires that the duties and obligations of Merchant (as defined in the Merchant Agreement) be guaranteed and that IPS would not enter into the Merchant Agreement absent such a guarantee. As a primary inducement to IPS and its Bank (as defined in the Merchant Agreement) to enter into the Merchant Agreement, I agree that in addition to obligating Merchant (if a different entity from me) to abide by all of the terms of the Merchant Agreement, I unconditionally and irrevocably guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to IPS and its Bank pursuant to the Merchant Agreement, as it now exists or is amended from time to time, and whether or not I have received notice. I understand further that IPS and its Bank may proceed directly against me without first exhausting their remedies against any other person or entity responsible therefore to either of them or against any security held by IPS, its Bank or Merchant. This guarantee will not be discharged or affected by my death, will bind all my heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any successor of IPS and/or its Bank. I understand that the inducement to IPS and its Bank to enter into the Merchant Agreement is consideration for this guarantee, and that this guarantee remains in full force and effect even if I receive no additional benefit from the guarantee.
Credit Report Consent
As principal/owner individually and as an authorized agent of Merchant (as defined in the Merchant Agreement), I hereby (a) authorize Bank and IPS (each as defined in the Merchant Agreement) to investigate the information contained in this Merchant Application, (b) certify that all of the information provided, including Merchant's legal status, is true, correct, and complete, (c) authorize Bank or IPS to utilize credit reporting agencies and other sources (including their agents) for purposes of verifying the accuracy of any information provided by Merchant and/or any principal/owner or officer of Merchant and for purposes of assessing and monitoring Merchant's, any principal/owner's and/or any officer's financial condition and credit status, (d) authorize that such credit reporting agencies and other sources to release any information they may have pertaining to Merchant or any principal/owner or officer of Merchant to Bank and/or IPS, and (e) consent to receive notices and communications regarding such credit status via the service's website or email. This agreement may only be modified as approved in writing by an authorized officer of Bank and the corporate office of IPS. No other representative of Bank or IPS is authorized to make any oral or written modification to this agreement. I declare under penalty of perjury under the laws of the state of California and under the laws of the state in which Merchant is located that all the information contained in this Merchant Application is and all attachments thereto are true, correct, and complete.
American Express Credit Report Consent and Terms
By submitting this application, I represent that I have read and am authorized to sign and submit this application for the above entity which agrees to be bound by the American Express® Card Acceptance Agreement (“Agreement”), and that all information provided herein is true, complete, and accurate. I authorize Intuit Payment Solutions ("IPS") and American Express Travel Related Services Company, Inc. (“AXP”) and AXP's agents and Affiliates to verify the information in this application and receive and exchange information about me personally, including by requesting reports from consumer reporting agencies, and disclose such information to their agent, subcontractors, Affiliates and other parties for any purpose permitted by law. I authorize and direct IPS and AXP and AXP agents and Affiliates to inform me directly, or through the entity above, of reports about me that they have requested from consumer reporting agencies. Such information will include the name and address of the agency furnishing the report. I also authorize AXP to use the reports from consumer reporting agencies for marketing and administrative purposes. I understand that upon AXP's approval of the application, the entity will be sent the Agreement and materials welcoming it, either to AXP's program for IPS to perform services for AXP or in AXP's standard Card acceptance program which has different servicing terms (e.g.different speeds of pay). I understand that if the entity does not qualify for the IPS servicing program, which the entity may be enrolled in AXP's standard Card acceptance program,and the entity may terminate the Agreement. By accepting the American Express Card for the purchase of goods and/or services, or otherwise indicating its intention to be bound, the entity agrees to be bound by the Agreement.IPS ELECTRONIC COMMUNICATIONS POLICY (E SIGN DISCLOSURE AND CONSENT).
1. Consenting to Do Business Electronically. The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities described below. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Services for as long as you remain a customer of the Services.
2. Necessary Equipment. To access and retain an electronic record of Communications, you will need: a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an e-mail address. By selecting the “I AGREE” button or otherwise becoming legally bound to the terms of this consent, you are confirming to us that you have the means to access, and to print or download, Communications. We do not provide ISP services. You must have your own Internet service provider.
3. Consent to Electronic Communications. As part of the service or as required by law Intuit may send Communications to you that may pertain to the Services, the use of information you may submit to Intuit and the services you choose. You agree that Intuit, on behalf of itself, and others who administer such services (as applicable), may send Communications to you by sms text, email and/or may make Communications available to you by posting them at one or more of our sponsored websites, such as https://merchantcenter.intuit.com. You consent to receive these Communications electronically. The term Communications means: • Account statements • Communications about account transactions requiring your attention or action; • changes in laws or Rules impacting the service; • amendments to the Merchant Agreement or Policies; • Federal and state Tax statements we are required to provide you (including 1099-K); and • Other notices and types of information that is made available to you or received from you in connection with the Services and Third Party Services.
4. Keeping Information Current. You agree to keep your email information current so that we may communicate with you effectively. You may do so at https://merchantcenter.intuit.com. If you fail to update your email information or if our communications are blocked by filters that you or your service provider has put into place, or you are otherwise unable to receive electronic Communications, IPS will be deemed to have provided the Communication to you.
5. Withdrawal of Consent. If you decide that you do not want to receive future Communications electronically, write to us at Intuit Payment Solutions, 21215 Burbank Blvd., Suite 100, Woodland Hills, CA 91367, Attn: Customer Care Director or by contacting customer care through https://merchantcenter.intuit.com. Please note that if you do not provide your consent or withdraw your consent to receive Communications, other than tax statements, electronically, IPS reserves the right to not provide you Services or, close your Account, or charge you additional fees for paper copies as provided in the Merchant Agreement. You may withdraw your consent to receive tax statements electronically, including IRS Form 1099-K, at any time by contacting us as described above. In such case we will send your Form 1099-Ks to you by U.S. mail. We will send you all your other Communications electronically.
6. Requesting paper copies of electronic Communications. If you have consented to receive electronic communications but wish to receive copies of a communication you may request copies by contacting us as described above. We will provide you with copies via US mail to the address associated with your account. You may be charged a Documentation Fee at the rates provided in the Merchant Agreement for such records. No documentation Fee will apply to required tax disclosures, including Form 1099-K disclosures.
Intuit® Payment Solutions Merchant Agreement
Registered Agent of Westamerica Bank, Santa Rosa, CA and JPMorgan Chase Bank, Columbus, OH
ARTICLE I. GENERAL PROVISIONS 1
1.01 Compliance with Laws, Rules, Permitted Use Policy and IPS Guidelines 1
1.02 Enforcement of Bank Rights by IPS 2
1.03 Warranties of Merchant 2
1.04 Notifications Regarding Changes in Merchant’s Business or Application Information. 2
1.05 Credit and Financial Inquiries: Additional Locations: Inspections. 3
1.06 Guarantor Notifications and Authorizations 3
1.07 Account. 4
1.08 Reserve Account 5
1.09 Recoupment and Set-Off 6
1.10 Security Interest 6
1.11 Fiduciary Relationship 6
1.12 Guarantors 7
1.13 General Fees 7
1.14 Payment of Fees and Other Amounts Owed. 7
1.15 Term: Termination. 8
1.16 Effect of Termination 9
1.17 Third Parties. 9
1.18 Limitation of Liability. 9
1.19 Indemnification by Merchant 10
1.20 Confidential Information. 10
1.21 Safeguarding of Information 11
1.22 Account Access Password. 12
1.23 Privacy 12
1.24 Feedback 12
1.25 Equipment. 12
1.26 Modifications to Agreement 13
1.27 Additional Services Offered by IPS 13
1.28 Merchant Dispute Notification 13
1.29 Notices; Consent to Electronic Communications 13
1.30 Further Assurances 14
1.31 Force Majeure 14
1.32 Choice of Law, Jurisdiction 14
1.33 Jury Waiver 14
1.34 Costs 14
1.35 Publicity 14
1.36 Intellectual Property 14
1.37 Taxes 15
1.38 Rights Cumulative 15
1.39 Headings 15
1.40 Waiver 15
1.41 Entire Agreement 15
1.42 Severability 15
1.43 Assignment 15
1.44 Authorization of Agreement 15
1.45 Relationship of the Parties 15
1.46 Export Restrictions 15
1.47 Counterparts 15
1.48 General 16
1.49 Survival 16
ARTICLE II. CARD TRANSACTION SERVICES. 16
2.01 Advertising. 16
2.02 Warranties of Merchant Regarding Card Transactions 16
2.03 Honoring Cards. 16
2.04 Card Acceptance 17
2.05 Authorization. 17
2.06 Account Monitoring. 18
2.07 Forms 18
2.08 Retention and Retrieval of Cards 18
2.09 Personal Information 18
2.10 Records; Requests for Copies 19
2.11 Multiple Transaction Records; Partial Payments 19
2.12 Telephone Orders “TO”, Mail Orders “MO”, Preauthorized Orders “PO” and Installment Orders “IO”. 19
2.13 Lodging and Vehicle Rental Transactions. 20
2.14 Returns and Adjustments: Credit Vouchers. 20
2.15 Cash Payments 20
2.16 Cash Advances. 20
2.17 Duplicate Transactions 21
2.18 Deposit of Fraudulent Transactions 21
2.19 Collection of Pre-Existing Debt 21
2.20 E-Commerce Address Notification 21
2.21 Automatic Payment Plan Card Sales. 21
2.22 Settlement of Transactions 22
2.23 Processing Limits 22
2.24 Endorsement 22
2.25 Transmission Method 22
2.26 Prohibited Payments 22
2.27 Chargebacks 23
2.28 American Express; Additional Cards 23
2.29 Fees and Discount Percentages 24
2.30 Effect of Termination. 25
ARTICLE III. DEBIT CARD SERVICES 26
3.01 Services 26
3.02 Debit Fees 26
3.03 Merchant Obligations 26
3.04 PIN Security 26
ARTICLE IV. ELECTRONIC CHECK SERVICES 27
4.01 Description of Service 27
4.02 Fees 27
4.03 Establishing Service 27
4.04 Eligible Checks 27
4.05 Additional Requirements for Intuit Check Solution for QuickBooks 27
4.06 Settlement 28
4.07 Merchant Account 27
4.08 Transaction Risk Assumed by Merchant 28
4.09 Compliance with Laws, Rules and IPS Guidelines 27
4.10 Acknowledgments and Warranties of Merchant 27
4.11 Terms for Use of Scanner Software 28
4.12 Implied Termination 29
ARTICLE V. CHECK VERIFICATION SERVICES 28
5.01 Description of Service 29
5.02 Fees 29
5.03 Verification Information 29
5.04 Merchant Bears Payment Risk 29
5.05 Denial Notices 29
5.06 Use of Verification Information 29
5.07 Submission of Checkwriter Information 29
5.08 Special Indemnification Applicable to Verification Services 30
5.09 Posting of NCN Decal 30
5.10 Non-guarantee of Accuracy 30
ARTICLE VI. CHECK GUARANTEE SERVICES 30
6.01 Description of Services 30
6.02 Payments by IPS 30
6.03 Fees 30
6.04 Guarantee Conditions 30
6.05 No Attempted Circumvention 32
6.06 Assignment and Transfer of Ownership of Returns 32
6.07 Chargeback of Guarantee Amount 32
6.08 Merchant Bears Payment Risk for Transactions that are Not Eligible Check Guarantee Transactions 32
6.09 Forwarding of Ineligible Returns 32
6.10 Risk Management Settings 33
6.11 Checkwriter Information 33
6.12 Compliance with Guarantee Conditions 33
6.13 Returned Check Service Charges 33
ARTICLE VII. ACH REPRESENTMENT SERVICES 33
7.01 Description of Services 33
7.02 Not a Guarantee of Payment 33
ARTICLE VIII. COLLECTION SERVICES 33
8.01 Description of Services 33
8.02 Fees 33
8.03 Types of Checks Eligible for Collection Services 34
8.04 Merchant will Not Independently Pursue Collection of Checks Submitted to IPS for Collection 34
8.05 Merchant Cooperation in Collection Activities 34
8.06 Assignment of Collection Activities 34
8.07 Special Indemnification Applicable to Collection Services 34
8.08 Right to Cease Collection Activity 34
ARTICLE IX. INTERNET GATEWAY SERVICES 34
9.01 Description of Services 34
9.02 Fees 34
9.03 IPS Obligations 34
9.04 Service for Merchant Only 34
9.05 Information Submitted by Merchant 35
9.06 Data Privacy and Security 35
9.07 License to Use Innovative Gateway Solutions Marks 35
9.08 Special Limited Remedy for Internet Gateway Services 35
9.09 Third Party Programs 35
9.10 Disclaimer 35
ARTICLE X. GIFT CARD SERVICES 35
10.01 Description of Services 35
10.02 Fees 36
10.03 IPS Obligations 36
10.04 Merchant’s Duties 36
10.05 No Surcharge 37
10.06 Limit on Gift Card Liabilities 37
10.07 Termination: 37
10.08 Gift Card System Downtime 37
10.09 Merchant Comply with Bankcard Obligations 38
ARTICLE XI. ACCOUNT UPDATER SERVICE 38
11.01 Description of Services 38
11.02 Fees 38
11.03 IPS Obligations 38
11.04 Merchant Eligibility 38
11.05 Merchants Obligations 38
ARTICLE XII. ELECTRONIC BENEFITS TRANSFER (EBT) SERVICES 39
12.01 Applicability of Quest Rules 39
12.02 EBT Fees 39
Parties to Agreement:
“Merchant” The Merchant identified on the Merchant Application that applied for IPS services.
“Guarantor(s)” The Guarantor(s) of Merchants obligations under the Agreement, as set forth in the Merchant Application.
“IPS” Intuit Payment Solutions, LLC (formerly named Innovative Merchant Solutions, LLC) is an Independent Sales Organization and Merchant Services Provider for Bank, with headquarters in Woodland Hills, California and it subsidiaries
“Bank” The Member FDIC insured Bank designated by IPS that settles your transactions under this Agreement
“ODFI” The Originating Depository Financial Institution designated by IPS on behalf of which debit and credit transactions are submitted to the Federal Reserve or other check and ACH settlement systems.
Acceptance of Terms by Merchant and Guarantor(s):
Merchant and Guarantor(s), as applicable, have completed and submitted to IPS and Bank an application for services that provides information about Merchant’s business and processing needs (the “Merchant Application”). As part of the Merchant Application, Merchant and Guarantor(s) have certified that they have read, understand and agree that the terms of this Agreement (the “Agreement”) will be binding upon them when and if IPS and Bank approve Merchant’s application to receive requested services.
ARTICLE I. GENERAL PROVISIONS.
The General Provisions set out in Article I govern the relationship between IPS, Bank and Merchant for all services provided by IPS. The subsequent sections of the Agreement define the terms of service for different IPS service offerings and shall apply to Merchant at such time that the Merchant commences receiving such services. From time to time IPS may offer bundled services as part of a branded offering. The Agreement sections applicable to such branded service offerings are set forth on Exhibit A. All Capitalized Terms not defined within the body of the Agreement have the meanings set forth on Exhibit B to this Agreement.
1.01 Compliance with Laws, Rules, Permitted Use Policy and IPS Guidelines.
(a) Compliance with Law. Merchant agrees to comply with all laws, rules and regulations applicable to Merchant, Merchant’s business and the transactions and services contemplated under this Agreement, including without limitation, state and federal banking laws, payments systems laws, OFAC and Bank Secrecy laws, consumer protection laws, uniform commercial codes, foreign exchange regulation, postal regulations.
(b) Rules. Merchant agrees to comply with and be subject to all applicable rules, regulations and guidelines of any third party, as they may exist from time to time and as applicable to the services under this Agreement, including without limitation: MasterCard International, Inc., (“MasterCard”), Visa U.S.A., Inc. (“VISA”), JCB, International (“JCB”), Discover® Network (“Discover Network”), American Express OnePointSM program (AXP), the national and regional automated clearing house networks (“NACHA”) and any other network or clearing system through which transactions hereunder may be processed.
(c) Permitted Use Policy. Merchant agrees that it will not conduct business in furtherance of any of the following businesses or business activities: illegal products or services of any kind; adult oriented products or services including video streaming, audio text; airlines; annual billing / sales; auto performance chips (fuel economy, etc.); bail bonds; bankruptcy attorneys; cable box de-scramblers; collection agencies or collection attorneys; credit repair / credit card protection; credit counseling, restoration or repair; dating services; drug paraphernalia; escort services; freight forwarders; gambling, gaming, lottery sales, grab bags, raffles, or sweepstakes; hair growth and or replacement products; import / export; internet “fulfillment houses” (aggregator, multiple merchants with same mid); lifetime guarantee products or lifetime memberships; loan modification or mortgage reduction services; mailing lists and personal information; pharmaceuticals non-face to face (including business to business); occult materials; online auctions; outbound telemarketing; personal enhancement products (teeth whitening, acai berry, etc); precious metal or stamps; pyramid sales; racism, violence, abuse, discrimination, or other immoral activities; rebate, refund or prize-based businesses; securities brokers; sports forecasting or odds making; telephone service, rechargeable, phone cards, VOIP; timeshares or future delivered services; travel, travel clubs, cruise lines; and any of the following business types where payment is made via the internet, mail order, telephone order or other card not present method: coin dealers / sales; firearms, weapons or fireworks; psychic readings; tobacco products or sales. Intuit maintains full discretion in determining whether or not to provide services to a Merchant irrespective of the underlying nature of the goods or services provided by such party.
(d) IPS Guidelines and Policies. Merchant agrees to comply with the IPS Electronic Communications Policy and all other rules, guidelines, policies and procedures applicable to the services provided under this Agreement provided to Merchant by IPS from time to time. Merchant understands and agrees that IPS may change these rules, guidelines, policies and procedures at any time, with or without notice to Merchant. Merchant agrees to check IPS’ customer service portal https://merchantcenter.intuit.com/welcome periodically for account information and notices regarding any such changes.
(e) Links to Information. Additional information and links to locations where Merchant can see or obtain copies of the Rules and IPS guidelines is located at http://usa.visa.com/merchants/index.html and
http://www.mastercard.com/us/merchant/support/rules.html, http://nacha.org and
(f) Verification Obligation. Upon request, Merchant will provide IPS and Bank with information necessary to verify Merchant’s compliance with its obligations.
1.02 Enforcement of Bank Rights by IPS. To the maximum degree permitted by law and by the rules and regulations of MasterCard, VISA, AXP, JCB, Discover Network, and NACHA, it is the intention of the parties that the rights of Bank set forth in this Agreement or arising from this Agreement, may be exercised by IPS.
1.03 Warranties of Merchant. Merchant hereby represents and warrants to IPS and Bank at the time of submission of the Merchant Application and during the term of this Agreement that:
(a) All information contained in the Merchant Application or any other documents delivered to IPS and/or its Bank in connection therewith is true and complete and accurately reflects Merchant’s business, financial condition and principal partners, owners or officers.
(b) Merchant is duly organized and in good standing under the laws of the jurisdiction of its organization, and is duly qualified to conduct business in each jurisdiction where failure to do so would have a material adverse effect on the business.
(c) Merchant has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, constitutes a valid and binding obligation of Merchant and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject.
(d) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so.
(e) There is no action, suit or proceeding at law or in equity now pending or to Merchant’s knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations.
(f) Unless Merchant notifies IPS in writing and is approved (either on the Merchant Application or otherwise) and is approved by IPS, no other processing relationship for any of the services offered by IPS under this Agreement may exist between Merchant and another Card processing institution, for any business run or owned by Merchant.
1.04 Notifications Regarding Changes in Merchant’s Business or Application Information.
(a) Change of business or ownership: The approval of Merchant’s application is based upon the information supplied by Merchant in the application process. If the nature, ownership, or volume of Merchant’s business will change substantially, Merchant must notify us in advance of that fact, and, in such an event, Company reserves the right to discontinue the relationship and terminate the contract, or to require that Merchant submit a new application and enter into a new and different contract. A failure to provide Company with at least thirty (30) days’ advance written notice of (i) any transfer , sale, or liquidation of any substantial part of Merchant’s total assets; (ii) any change in the basic nature of Merchant’s business, including selling different products or services not related to its current business; (iii) any change in ownership or transfer of control of Merchant’s business; (iv) Merchant’s forming any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any substantial interest in Merchant’s business; or (v) a change in business operations that will likely cause account activity to exceed Merchant’s approved monthly volume, is grounds for immediate termination for cause.
(b) Merchant must immediately notify IPS of any Bankruptcy, receivership, insolvency, levy or similar action initiated by or against Merchant or any of its principals. Merchant will include IPS and/or its Bank on the list of creditors filed with the Bankruptcy Court, whether or not a claim exists at the time of filing.
(c) Merchant must notify IPS in writing of any changes to the information in the Merchant Application, including but not limited to a material change to Merchant’s financial condition (within three days of such occurrence), any additional location or new business, a change in the business location or contact information, both physical and email addresses, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and how sales are completed. Merchant must also notify IPS in writing if Merchant sells or closes its business. Except for a change to the financial condition, all such notices must be received by IPS seven days before the change. Merchant will also provide updated information to IPS upon request.
(d) Merchant must immediately notify IPS in writing if Merchant is threatened with or becomes party to any action, suit or proceeding at law or in equity that could substantially impair its right to carry on its business or adversely affect its financial condition or operations.
(e) Merchant must provide separate notification regarding changes to service providers used by Merchant in connection with IPS-provided services, including but not limited to American Express, and equipment leasing companies.
1.05 Credit and Financial Inquiries: Additional Locations: Inspections.
(a) Merchant authorizes Bank and IPS to make, at any time during which Merchant owes any obligation to IPS and/or Bank, any credit inquiries which, in their discretion, may be necessary or prudent. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, principal owners or officers. If requested to do so by Bank or IPS, Merchant shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Bank or IPS may consider necessary to perform initial or periodic reviews of Merchant’s financial stability and business practices.
(b) Merchant agrees to permit Bank or IPS at any time from time to time, to inspect locations to confirm that Merchant has adhered or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and licenses or permits (where necessary) to conduct its business. However, nothing in this paragraph shall be deemed to waive Merchant’s obligation to comply in all respects with the terms of this Agreement.
(c) Merchant may process transactions only at locations and websites approved by IPS. Additional locations may be added, subject to IPS’ approval. Either Merchant or IPS may delete any location by providing notice as provided in this Agreement.
(d) Representatives of IPS and/or its Bank may, during normal business hours, inspect, audit and make copies of Merchant’s books, accounts, records and files pertaining to any payment transactions processed by IPS.
(e) IPS may use device-printing technology on the computer or mobile device that you use to connect to the service to recognize the device to detect and prevent fraudulent activity.
1.06 Guarantor Notifications and Authorizations. The decision of IPS to enter into and continue processing payment transactions for Merchant is based on the financial condition of Guarantor and the ability of Guarantor to guarantee Merchant’s obligations. Accordingly, Guarantor must provide IPS with information regarding changes in his or her contact information and financial circumstances. Guarantor agrees to take the actions required under Section 1.04(b) through (e). Guarantor also authorizes IPS to make ongoing inquiries about Guarantor as detailed in Section 1.5. For purposes of understanding Guarantors obligations and authorizations under this Section, Guarantor will apply the provisions of Section 1.04 and 1.05 to Guarantor by substituting the term Guarantor in place of Merchant where it appears in such sections.
(a) Merchant will establish and maintain an Account at a depository institution approved by IPS and/or Bank. Merchant will maintain sufficient funds in the Account to satisfy all obligations, including the fees, Chargebacks and Returns contemplated by this Agreement. Merchant irrevocably authorizes IPS and/or its Bank to debit the Account for fees, Chargebacks, Returns, fines and any other penalties or amounts owed under this Agreement. In the event the Account lacks sufficient funds Merchant and Guarantors authorize IPS and/or Bank, without notice, to debit any bank account in their name(s) or the name of any affiliated entity. Merchant must obtain prior consent from IPS and/or its Bank to change the Account. If Merchant does not obtain such consent, IPS and/or its Bank may immediately terminate this Agreement and may take other action necessary to protect their interests.
(b) IPS and/or its Bank will settle all transactions to the Account subject to the terms of this Agreement. Merchant authorizes IPS and/or its Bank to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant conditional credit for any entry.
(c) IPS or Bank, in its sole discretion shall grant Merchant provisional credit for Transaction amounts, subject to receipt of final payment by IPS and/or its Bank and subject to all Chargebacks and other amounts owed to IPS and/or its Bank under this Agreement.
(d) Merchant will promptly examine all merchant statements relating to the Account and immediately notify IPS and/or its Bank in writing of any errors. The standard delivery method for Monthly Statements is in an electronic, online version. A hard copy version is available upon request for which additional fees may apply. Merchant’s written notice must include: (i) Merchant name and Account number, (ii) the dollar amount of the asserted error, (iii) a description of the asserted error, and an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by IPS within 30 days after Merchant received the periodic statement containing the asserted error. Merchant may not make any claim against IPS and/or its Bank for any loss or expense relating to any asserted error for 60 days immediately following receipt of Merchant’s written notice. During that 60 day period, IPS and/or its Bank will be entitled to investigate the asserted error and Merchant will not incur any cost or expense in connection with the asserted error without notifying IPS.
(e) Merchant authorizes IPS and/or Bank to initiate debit/credit entries to the Account, as the Account may be changed from time to time and to any other account maintained by Merchant at any institution that is a receiving Bank of ACH, all in accordance with this Agreement. In the event Merchant changes the Account, this authorization will apply to the new Account. This authorization will be effective until both: (i) IPS has received written notification from Merchant terminating this authorization, and (ii) all obligations of Merchant to IPS and/or Bank have been paid in full. Merchant will provide to IPS and its Bank a voided Account check and will fill in the Account numbers on the Merchant’s ACH Business Application.
(f) If the Account is closed or is otherwise unavailable to IPS and/or Bank for ACH debit, Merchant and/or Guarantors consent to IPS locating additional deposit accounts or assets by using any means legally available. In this event Merchant and/or Guarantors waive all rights to their privacy in favor of IPS and/or Bank until such time as all unpaid Chargebacks and fees owed to IPS and/or Bank have been paid in full.
1.08 Reserve Account. In addition to any other rights granted to IPS and/or Bank under this Agreement, Merchant hereby authorizes IPS and/or Bank to establish a Reserve Account, with or without prior notice to Merchant, at any time prior to, or after termination of this Agreement, to ensure the recovery of any liabilities owed them or reasonably anticipated by IPS and/or Bank in their sole discretion to be owed by Merchant pursuant to this Agreement. IPS or Bank may also require as a condition of providing continued Services, that Merchant fund and maintain an interest bearing account with Bank (hereinafter called “Bank Reserve Account”) as security against any costs, losses or expenses incurred by Bank or IPS in connection with the provision of Services to Merchant. Merchant’s obligation to maintain such Bank Reserve Account shall survive the termination of this Agreement by a period of 270 days (or longer depending on Merchant’s product and business practices) during which time Bank’s or IPS’ security interest shall continue. Unless the context clearly indicates otherwise, all references in this Agreement to “Reserve Account” apply to both the “Reserve Account” and “Bank Reserve Account.” In addition Merchant further agrees:
(a) Liabilities to be paid from the Reserve Account include, but are not limited to those arising out of actual and/or potential post termination Chargebacks, as well as any and all post-termination fees, charges and expenses due or anticipated to be due IPS and/or Bank from Merchant.
(b) The Reserve Account shall be in such amount IPS and/or Bank deem reasonable under the circumstances. The Reserve Account may be funded and/or replenished by IPS and/or Bank by withholding or withdrawing from, or freezing all or any part of, the Account and/or any other deposit accounts maintained by Merchant and/or Guarantor at any Bank wherever found by any means available. Unless IPS and/or Bank agree(s) otherwise in writing with Merchant, the Reserve Account shall not bear interest.
(c) IPS and/or Bank may enforce its security interest in the Reserve Account without notice or demand being first made to Merchant. IPS’ and/or Banks right to sums owed it by Merchant pursuant to this Agreement, shall in no way be limited by the balance or existence of the Reserve Account. IPS’ rights with respect to the Reserve Account, as well as the security interest granted IPS and/or Bank under this Agreement, shall survive the termination of this Agreement.
(d) IPS and/or Bank may exercise their rights under this Agreement to collect any amounts due to IPS and/or Bank including, without limitation, rights of set-off and recoupment. Merchant shall have no right to withdraw funds or debit the Reserve Account.
(e) It is stipulated and agreed that the funds placed in the Account, or the Reserve Account are trust fund monies held and “earmarked” for the benefit of IPS and/or Bank as that term has been defined by case law as applied within the United States Bankruptcy Courts. In the event of Bankruptcy proceedings IPS and/or Bank may exercise their rights under this Agreement to debit the Account or the Reserve Account for amounts due IPS and/or Bank regardless of the pre-petition or post petition nature of the amount due IPS and/or Bank. In the event of a Bankruptcy proceeding Merchant also agrees that it will not contest any Motion For Relief From the Automatic Stay which IPS and/or Bank may file to debit the Account and/or Reserve Account.
(f) IPS and/or Bank may retain funds in the Reserve Account for as long as Merchant may be liable to make payments under the Agreement. Funds are typically retained in the Reserve Account for a minimum of 270 days from the date of the oldest transaction in question or the date of termination, whichever is longer, and may be retained longer depending on the nature of the Merchant’s transaction activity. IPS and/or Bank will have sole control of the Reserve Account. In the event of a Bankruptcy proceeding IPS and/or Bank do not consent to the assumption of this Agreement. Nevertheless if this Agreement is assumed Merchant agrees that in order to establish assurance of future performance within the meaning of 11 U.S.C. Sec 365, as amended from time to time, Merchant must establish a Reserve Account in an amount satisfactory to IPS and/or Bank.
1.09 Recoupment and Set-Off. IPS and/or Bank have the right of recoupment and set-off. This means that they may offset any outstanding/uncollected amounts owed to them from: (i) any amounts they would otherwise be obligated to deposit into the Account, and (ii) any other amounts merchant may owe Bank and/or IPS under this Agreement or any reporting, or any other agreement.
1.10 Security Interest. To secure Merchant’s performance under this Agreement, including without limitation Merchant’s obligations arising out of Chargebacks or Returns, Merchant hereby grants pursuant to the California Uniform Commercial Code, to IPS and Bank a security interest in Merchant’s electronic terminal, printer, imprinter and imprinter plate. Further, Merchant and/or Guarantor(s) grants to IPS and/or Bank, a security interest in all Sales Drafts, ACH deposits, credit drafts, and in all deposit accounts and Reserve Accounts, regardless of source, wherever found, standing in the name of Merchant and/or Guarantor’(s), including any affiliated companies of Merchant and/or Guarantor, whether established or designated and maintained pursuant to this Agreement or not, as well as in the proceeds of those deposits. In the event of Merchant’s default in payment of Chargebacks or Returns, Merchant and Guarantor(s) stipulate: (i) that all personal Bank accounts standing in their names shall be subject to this Agreement and ACH debit, and (ii) all ACH debits, whether made against Merchant’s Account or a Guarantor’s personal account shall bear a commercial account code designation (CCD) for purposes of electronic collection via the ACH system, and (iii) Merchant and/or Guarantor irrevocably consent to IPS and/or Bank’s using any means available to locate such deposit accounts until such time as all amounts due have been paid. IPS and/or Bank may enforce this security interest as applicable by:
(a) Making an immediate debit/charge via the ACH system to any deposit account standing in the name or names of Merchant and/or Guarantor(s), without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the Automated Clearing House (ACH) system;
(b) Freezing the entire Account, without notice or demand of any kind, upon IPS and/or Bank’s and IPS’ determination that Merchant has breached any term of this Agreement;
(c) Taking possession of any or all of Merchant’s Sales Drafts, verification and confirmation of Transactions;
(d) Taking possession of any and/or all of Merchant’s electronic terminals, printers, imprinters and imprinter plates.
(e) By placing a receiver within Merchant’s place of business without notice or bond to intercept and collect all income derived from Merchant’s operations until such time as any indebtedness owed to IPS and/or Bank arising under this Agreement has been satisfied in full;
(f) By obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant and/or Guarantor’s personal property upon a showing of a presumption that Merchant has committed an act of fraud or is about to misappropriate funds to which it is not entitled. Merchant shall provide any statement or notice that IPS and/or Bank determines to be necessary to preserve and protect this security interest. Merchant’s and/or Guarantor’s granting of this security interest in no way limits Merchant’s liabilities to IPS and/or Bank under this Agreement.
1.11 Fiduciary Relationship. As provided in California Financial Code Section 952 as it now exists and as it may be amended from time to time, whenever Merchant and/or Guarantor has a deposit held with any Bank that arose from or is subject to this Agreement, to which, pursuant to this Agreement, Merchant is not entitled, Merchant’s entitlement to such deposit shall be as a fiduciary of IPS and/or Bank until any claim by IPS and/or Bank against Merchant has been resolved. Merchant agrees that its failure to repay, within five (5) calendar days of notification by IPS and/or Bank, funds to which Merchant is not entitled to, shall result in a presumption that Merchant intends to misappropriate such funds. Merchant further agrees that in the event IPS and/or Bank seeks to enforce its rights herein in a court of competent jurisdiction, that any Receivership, Temporary Restraining Order, Preliminary Injunction, Writ of Attachment or Writ of Possession may be issued against Merchant without bond.
1.12 Guarantors. As a primary inducement to IPS and its Bank to enter into this Agreement with Principal and/or the signed Guarantor(s), whether by signing the Merchant Application Agreement form or by acknowledging consent by electronic means, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to IPS and its Bank pursuant to this Agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s) understands further that IPS and its Bank may proceed directly against Guarantor(s) without first exhausting its remedies against any other person or entity responsible therefore to it or any security held by IPS, its Bank or Merchant. This guarantee will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any successor of IPS and/or Bank. Guarantor(s) understand that the inducement to IPS and its Bank to enter into this Agreement is consideration for this guaranty, and that this guarantee remains in full force and effect even if the Guarantor(s) receives no additional benefit from the guaranty.
1.13 Payment of Fees and Other Amounts Owed.
(a) Merchant shall pay to IPS and/or Bank the fees and charges set forth on the Merchant Application, Schedule of Fees and fee provisions of this Agreement. Merchant agrees that IPS may collect its fees and other amounts owed under this Agreement by netting against the proceeds of Merchant’s processing activity. The Account will be debited through ACH for such amounts and for any other fees, charges or adjustments incurred by Merchant and associated with processing services. Merchant is obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. IPS and/or Bank have the right to change fees as set forth in this Agreement.
(b) Merchant will immediately pay IPS and/or Bank any amount incurred by IPS attributable to this Agreement or any other agreement between Merchant and IPS or any subsidiary or affiliate of IPS, including but not limited to equipment fees, Chargebacks, Returns, fines imposed by a third party, non-sufficient fund fees and ACH debits that overdraw the Account, Reserve Account, or are otherwise dishonored. Merchant authorizes IPS and/or Bank to debit via ACH the Account, the Reserve Account any other Account Merchant has with IPS, an affiliate or subsidiary of IPS, its Bank or at any other financial institution for any amount Merchant owes under this Agreement or under any other contract, note, guaranty, or dealing of any kind now existing or later entered into between Merchant and IPS or any subsidiary or affiliate, whether Merchant’s obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such ACH does not fully reimburse IPS and/or Bank for the amount owed, Merchant will immediately pay IPS and/or Bank such amount.
(c) In addition to IPS and Bank’s other remedies under this Agreement, if any amounts owed by Merchant under this Agreement and not paid when due, Merchant shall pay IPS and Bank a Late Payment Fee, as set forth in the Merchant Application or Schedule of Fees, plus a finance charge equal to one and one-half percent (1.5%) per month on the unpaid amount, or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such Late Payment Fee and finance charges will not excuse or cure any breach or default for late payment.
1.14 General Fees. If fees are not listed on the Merchant Application or Schedule of Fees to the contrary, the following fees are applicable. Additional fees specific to each service offering are set forth in the Fee sections of the Article of this Agreement defining the terms of that service offering. For your convenience Exhibit “D” of this Agreement contains a cross reference to fees and charges applicable to services provided under this Agreement.
Providing Any Documentation$2.00 per page
Checking Account (DDA) Change$25.00 per change
Business Name Change Fee$75.00 each
Bank Return Fee$25.00 per item
Third Party Payment Admin Fee$150*
Voice Authorizations$0.95 each
Voice Authorizations (w/ live operator)$1.75 each
Referral Authorizations$2.00 each
* IPS may charge a fee to implement legally enforceable requests for payment of Merchant funds to parties other than Merchant, such as tax levies, payments to secured parties or other legally enforceable payment requests of a similar nature.
As set forth above, IPS may modify all fees payable by Merchant under the Agreement, including those detailed in the Merchant Application, Schedule of Fees or the body of the Agreement, by providing notice to Merchant of changes to such fees.
1.15 Term: Termination.
(a) Termination Generally. This Agreement shall become effective upon acceptance by IPS and Bank. Any party may terminate this Agreement or one or more services delivered under this Agreement at any time with or without cause by providing written notice to the other parties and such termination will become effective on the date specified by such notice. If Merchant terminates this Agreement, Bank and IPS shall have thirty (30) days from date of receipt of the notice to close Merchant’s account. IPS or Bank may terminate this Agreement immediately without prior notice if Bank’s Merchant Acceptance Criteria changes. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement.
Note: The following applies only for Merchants that initiated service under an Innovative Merchant Solutions branded relationship: If Merchant has applied for credit card processing and the Merchant Account is approved by Bank, and if Merchant exercises its option to terminate this Agreement, then Merchant will pay to IPS a termination fee in the amount set forth in the Merchant Application. If your Merchant Application references a “standard termination fee,” a fee of $295 will apply upon your termination of services
(b) Termination for Merchant Misconduct. IPS or Bank may also terminate this Agreement immediately without prior notice if (i) they have reason to believe that fraudulent Card Transactions or other activity prohibited by this Agreement is occurring at any Merchant location; (ii) such action is taken to prevent loss to Bank, IPS or Card Issuers, (iii) Merchant appears on any Card Association’s or Payment Network’s security reporting. An administrative account closure fee of $500 will be charged to Merchants who are terminated for the reasons set forth in this subsection.
(c) IPS or Bank may terminate this Agreement immediately without prior notice if (i) they have reason to believe that fraudulent Card Transactions or other activity prohibited by this Agreement is occurring at any Merchant location; (ii) such action is taken to prevent loss to Bank, IPS or Card Issuers, (iii) Merchant appears on any Card Association’s or Payment Network’s security reporting, or (iv) Bank’s Merchant Acceptance Criteria changes. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement. An administrative account closure fee of $500 will be charged to Merchants who are terminated for the reasons set forth in subparts (i) through (iii) of this section.
(d) Merchant will be assessed a software recovery fee if it: (i) received a free promotional copy of QuickBooks or Quicken software upon entering in this Agreement, and (ii) terminated this Agreement, in its sole discretion, within two years of acceptance by Bank. Such software recovery fee shall be determined by IPS in its sole discretion, but will be no greater than the then current direct price charged by Intuit to the public to purchase the QuickBooks or Quicken software. This software recovery fee shall be in addition to any termination fee set forth in the Merchant Application.
(e) If any case or proceeding is commenced by or against Merchant under any federal or state law dealing with insolvency, Bankruptcy, receivership or other debt relief, this Agreement shall simultaneously therewith automatically terminate, and any amounts due to Bank and IPS under this Agreement shall become immediately due and payable, without the necessity of any notice, declaration or other act by Bank or IPS. Notwithstanding such termination, Bank at its sole discretion, may determine that consent to Merchant’s subsequent assumption of this Agreement is in Bank’s and IPS’ best interests. In such event, the assumption will be made under terms and conditions that are acceptable to Bank and comply with the applicable federal or state laws governing such assumption.
1.16 Effect of Termination: All of Merchant’s obligations under this Agreement which arise or are incurred prior to the effective date of termination, shall survive the expiration or termination of this Agreement.
1.17 Third Parties.
(a) Merchant may be using special services or software provided by a third party to assist Merchant in processing transactions, including authorizations and settlements, or accounting functions. Merchant is responsible for insuring compliance with the requirements of any third party in using their products. This includes making sure Merchant has and complies with any software updates and ensuring that such software satisfies all security standards required under the Rules (including PA DSS and PCI DSS), as set forth more fully below. IPS has no responsibility for any transaction until that point in time IPS receives data about the transaction.
(b) Merchant will notify IPS prior to the use of any electronic authorization or data capture terminal or software provided by any entity other than IPS or its authorized designee (“third party terminals”) to process transactions. If Merchant elects to use such third party terminals, Merchant agrees that the third party provider of the terminal is Merchant’s agent and Merchant is liable for the acts and omission of its agent and the terminals for failing to comply with the Rules, this Agreement and any applicable federal and state law.
(c) IPS may provide Merchant with reference links to websites operated by third parties (“Third Party Websites”). These links are provided as a convenience only. Such Third Party Websites are not under the control of IPS. IPS is not responsible for the content of any Third Party Website or any link contained in a Third Party Website. IPS does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by IPS of any information contained in any Third Party Website. Access to any Third Party Website is at Merchant’s own risk, and Merchant acknowledges and understands that linked Third Party Websites may contain terms and privacy policies that are different from those of IPS. IPS is not responsible for such provisions, and expressly disclaims any liability for them.
1.18 Limitation of Liability.
(a) MERCHANT AGREES AND ACKNOWLEDGES THAT NEITHER IPS, BANK NOR THE ODFI, AS APPLICABLE SHALL HAVE LIABILITY, EITHER IN TORT, CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING FROM TRANSACTIONS PROCESSED UNDER THIS AGREEMENT EXCEPT IN THE CASE OF GROSS OR WILLFUL MISCONDUCT ON THE PART OF IPS, BANK OR ODFI. ANY SUCH CLAIMS ARE SUBJECT TO LIMITATIONS SET FORTH BELOW AND IN NO EVENT SHALL IPS, BANK OR ODFI BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES OR LOST BUSINESS OPPORTUNITIES.
(b) THE LIABILITY, IF ANY, OF IPS AND/OR BANK, UNDER THIS AGREEMENT WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE DIFFERENCE BETWEEN (I) THE AMOUNT OF FEES PAID BY MERCHANT TO IPS AND/OR BANK DURING THE MONTH IN WHICH THE TRANSACTION OUT OF WHICH THE LIABILITY AROSE OCCURRED, AND (II) ASSESSMENTS, CHARGEBACKS, RETURNS AND ANY OFFSETS AUTHORIZED UNDER THIS AGREEMENT AGAINST SUCH FEES WHICH AROSE DURING SUCH MONTH. IN THE EVENT MORE THAN ONE MONTH WAS INVOLVED, THE AGGREGATE AMOUNT OF IPS AND/OR BANK’S LIABILITY SHALL NOT EXCEED THE LOWEST AMOUNT DETERMINED IN ACCORD WITH THE FOREGOING CALCULATION FOR ANY ONE MONTH INVOLVED. IN NO EVENT WILL THE LIABILITY OF IPS AND OR BANK UNDER THE AGREEMENT EXCEED $50,000.
(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, IPS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES, AND NOTHING CONTAINED IN THE AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. IPS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. IPS FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. IPS FURTHER EXPRESSLY DISCLAIMS ANY LIABILITY FOR UNAUTHORIZED ACCESS OF FACILITIES OR TO MERCHANT’S DATA OR PROGRAMS DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND IPS’ REASONABLE CONTROL.
(a) any dispute between Merchant and a Cardholder or Checkwriter or customer, or any Sales Draft or ACH deposit paid for by Bank or ODFI;
(b) any actual or alleged action or omission by Merchant that would constitute a breach of any representation, warranty, or obligation of Merchant set forth in this Agreement;
(c) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Merchant or any of its employees, agents or customers;
(d) the reliability, accuracy, or legitimacy of payment data submitted by Merchant;
(e) any alleged infringement of another party’s intellectual property rights by Merchant;
(f) a failure of Merchant to maintain the confidentiality of Cardholder or Checkwriter information;
(g) any action IPS or Bank takes against the Account under the Agreement. Merchant will also indemnify and hold harmless the institution at which Merchant maintains the Account for acting in accordance with any instruction from IPS and/or Bank regarding the Account.
If Merchant is an agency or instrumentality of a state of the United States and is precluded by the law of Merchant’s state from entering into indemnification obligations, then the obligations under this Section shall apply only to the extent permitted by such state law. This section will survive termination of this Agreement.
1.20 Confidential Information.
(a) Obligations of IPS: IPS shall comply with the Rules in how it treats Merchant transaction information. IPS may disclose information relating to Merchant’s sales to financial institutions, Networks and third parties that need the information for a purpose relating to this Agreement and to the IPS agent or referral source, if any, that played a role in establishing Merchant’s relationship with IPS solely for the purpose of computing payment due to such persons. IPS may also disclose information regarding the Merchant as part of an investigation by IPS into Merchant’s compliance with its obligations under this Agreement if IPS determines there is cause to make such an inquiry, or to the extent required by a court or governmental authority, or otherwise as required by law.
(b) Obligations of Merchant: Except to the extent specifically permitted by the Rules, the operating rules of NACHA or this Agreement, Merchant shall not disclose any information relating to any Card or POS Transaction , or any Cardholder or Checkwriter, to any person or entity other than IPS, IPS’ employees, agents and independent contractors, and those of Merchant’s employees who have a specific need to know such information except to complete the transaction or as otherwise required or authorized under this Agreement or by law. Merchant shall treat all documents provided by IPS relating to this Agreement as confidential and proprietary and protect them with the same degree of care as Merchant would protect its own confidential and proprietary information, and not less than reasonable care.
(c) Proprietary IPS Information. Merchant agrees that this Agreement, and all other user information provided by IPS, the process utilized by IPS for providing services, and all written communications concerning services hereunder are confidential and proprietary information of IPS. Merchant agrees that neither it nor any of its employees, agents, representatives, or independent contractors will disclose any such confidential, proprietary information to any person or entity that is not a party to this Agreement without the express written consent of IPS.
1.21 Safeguarding of Information.
(a) Merchant shall be in full compliance with rules, regulations, guidelines and procedures adopted by any Card Association or Payment Network relating to the privacy and security of Cardholder and Card transaction data, including without limitation PA DSS and the PCI DSS, as they may be amended from time to time. Information pertaining to such requirements may be found at https://www.pcisecuritystandards.org. Additional information regarding security requirements is located at http://payments.intuit.com/support/pci-resources.jsp.
(b) Merchant shall be liable for all fines, charges and penalties that may be assessed by any Card Association or Payment Network as a result of Transactions made by Merchant or Merchant’s noncompliance with the preceding requirements. Merchant also acknowledges that it may be prohibited from participating in payment network programs if it is determined that Merchant is non-compliant. Merchant acknowledges that it may be subject to, and IPS and/or Bank retain the right, to conduct or cause to be conducted an audit to verify Merchant’s compliance with the foregoing security requirements. Merchant must notify IPS and/or Bank within twenty-four (24) hours after becoming aware of (i) any suspected or actual data security breach or (ii) any noncompliance by Merchant with the security requirements set forth herein. Merchant shall, at its own expense, (i) perform or cause to be performed an independent investigation of any data security breach of Card or Transaction data by an authorized assessor acceptable to IPS and Bank; (ii) take all such remedial actions recommended by such investigation or by IPS, Bank or Visa or MasterCard; and (iii) cooperate with IPS and Bank in the investigation and resolution of any security breach.
(c) Merchant will not, under any circumstances, disclose any Cardholder’s account number nor any information relating to any Cardholder’s account number or any Sales Drafts or Credit Vouchers which may have been imprinted with any Card to any person other than IPS or its Bank, or as required by law. Merchant agrees not to store, distribute, copy or otherwise manipulate card account numbers or PINs that appear, are encoded or are otherwise associated with Cards. All electronic commerce Merchants must provide Cardholders with a secure transaction method, such as Secure Sockets Layer (SSL) or 3-D Secure. Further, Merchant agrees to store any material containing Cardholder account information in a secure manner or destroy such information at the proper time in a fashion that renders the data unreadable, and unrecoverable. Neither Merchant nor any of its agents shall retain or store the full contents of any track on the Magnetic-Stripe, or equivalent data on the Contactless Payment chip, subsequent to Authorization of a Transaction.
(d) Merchant must notify IPS of any third party agent of Merchant that will have any access to Cardholder data.
(e) Merchant understands and agrees that due to requirements of law, Card receipts may not contain (i) more than the last five digits of the credit card account number; and (ii) that the Card receipt may not contain the expiration date.
1.22 Account Access Password.
(a) If Merchant receives a user identification name or password from IPS to access IPS’ database or use services offered by IPS, Merchant will: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to IPS’ database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify IPS if Merchant believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through their use has been compromised.
(b) Merchant agrees that any loss incurred as a result of any party gaining access to Merchant’s bank account or IPS’ website using information which that party was not authorized to obtain or using such information in a manner not permitted by this Agreement (including but not limited to improper or unauthorized use of the Merchant’s ID number and PIN) shall be the responsibility of Merchant.
1.23 Privacy. IPS and its parent company, Intuit Inc., will have access to the data associated with your use of the service. IPS and Intuit will handle this information in accordance with their privacy policies. For details about IPS's privacy policies, please refer to the IPS Privacy Statement, accessible via http://security.intuit.com/privacy/.
1.24 Feedback. IPS may provide you with a mechanism to provide feedback, suggestions and ideas about IPS products and services (“Feedback”). Merchant agrees that IPS may, in its sole discretion, use the Feedback in any way, including in future modifications of the products and services and any related advertising and promotional materials. Merchant grants IPS a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, reproduce, modify, create derivative works from, perform, distribute and display for any purpose any information Merchant provides to IPS in the Feedback.
(a) Sale of Equipment by IPS. IPS may sell equipment to Merchant or provide equipment to Merchant as part of promotional offers that require Merchant to process merchant services for a specified period of time. Merchant agrees to pay the purchase price and related sales tax for any equipment supplied by IPS as provided under the terms of the offer made by IPS to Merchant. If Merchant accepts a promotional offer from IPS that includes free or discounted processing equipment conditioned upon Merchant maintaining services with IPS for a specified period, and Merchant terminates its services with IPS prior to the stated time, Merchant will pay to IPS the full purchase price of the equipment provided by IPS together with all applicable shipping, handling and sales taxes.
(b) Leased Equipment. IPS does not lease equipment. Any equipment lease entered into by Merchant is between the Merchant and an independent leasing company. However, Merchant is required to verify with IPS the terms of any equipment lease it has entered into in connection with equipment it has obtained for processing transactions under this Agreement. IPS will make reasonable attempts to contact the Merchant and complete the verification. If the lease cannot be successfully verified after these attempts, IPS will debit via ACH the Merchant’s Account for the purchase price of the equipment along with shipping and handling fees and sales tax.
(c) Equipment Returns. Merchant may return equipment for a period of 30 days from the date of receipt. Equipment returns may be subject to a 20% restocking fee.
(d) Equipment Support. From time to time at Merchant’s request IPS may provide assistance to Merchant to facilitate the exchange of inoperable equipment. IPS may charge shipping or other fees for such services. Merchant is responsible for any repair or equipment replacement costs for the equipment being serviced.
(e) Disclaimer of Equipment Warranties. Merchant understands that IPS is not manufacturer of equipment used to process electronic payment transactions. Merchant agrees that any representations or warranties regarding such equipment are between Merchant and the manufacturer of such equipment. IPS EXPRESSLY DISCLAIMS ANY WARRANTIES REGARDING SUCH EQUIPMENT.
(f) Equipment Swaps. Occasionally to meet specific programming requirements, especially in the case of debit card processing, IPS will be required to swap a Merchant’s pre-existing piece of equipment with one provided by IPS. In return for the IPS equipment, Merchant must send to IPS Merchant’s existing equipment of same type and function. This swap must be completed within 30 calendar days from the date Merchant receives IPS’ equipment or the price of equipment, shipping and handling will be debited from Merchant Account. Equipment cannot be returned for a refund after 90 days from date of this debit. Returns after 90 days will be refused.
(g) Loaner Equipment. Merchant may be offered equipment as a loan from IPS, to use exclusively while processing with IPS. Merchant agrees to return the equipment in good and working condition upon termination. This return must be completed within 14 business days from the date Merchant terminates the account or the price of equipment, shipping and handling will be debited from Merchant Account. Equipment cannot be returned for a refund after 90 days from date of this debit. Returns after 90 days will be refused.
1.26 Modifications to Agreement. IPS or Bank may from time-to-time amend any provision of this Agreement, including those relating discount rates or other fees and charges payable by Merchant, whether such amounts are set forth in the Merchant Application, Schedule of Fees or Fee sections of the Agreement. IPS will provide notice to Merchant of the amendment, and unless specified otherwise, the amended agreement shall become effective at the start of the first billing cycle after IPS has provided notice. Amendments due to changes in either a Card Association’s or Payment Network’s fees, interchange, assessments, Rules, gift card systems or any law or judicial decision will become effective at such time that IPS may specify, which may be sooner than the beginning of the next billing cycle following the date of notice.
1.27 Additional Services Offered by IPS. From time to time, IPS may offer to Merchant additional products and services which may or may not be related to the processing of credit card Transactions. In the event of such offers, Merchant shall indicate its desire to IPS to decline such offers or be deemed to have accepted the offers and be liable for payment therefore.
1.28 Merchant Dispute Notification. Merchant is responsible for the timely reconciliation of all issues related to Services provided under this Agreement. Merchant must submit any dispute to IPS in writing within 60 days of the initial posting of the disputed item to the Merchant Account or appearance of the disputed item on the Merchant’s statement.
1.29 Notices; Consent to Electronic Communications. IPS relies on electronic means of communications in delivering services and Merchant must agree to the IPS Electronic Communications Policy as a condition of receiving services. Any electronic communications will be considered to be received by Merchant within 24 hours of the time we post it to our one of our sponsored websites, such as https://merchantcenter.intuit.com/welcome or email it to you. Any communications sent to you by postal mail will be considered to be received by you 3 business days after we send it. In addition, all notices and other communications required or permitted under this Agreement by IPS or Bank to Merchant may also be delivered by IPS or its Bank to Merchant either by FAX, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under this Agreement by Merchant to IPS and/or Bank shall be delivered by Merchant to IPS by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or e-mail shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section:
(a) If to IPS and/or Bank, addressed and transmitted as follows:
Intuit Payment Solutions
21215 Burbank Blvd., Suite 100
Woodland Hills, CA 91367
Attn: Merchant Services
(b) If to Merchant, at the address provided as the billing address, or the FAX number or e-mail address and to the contact listed on the Merchant Application.
1.30 Further Assurances. At any time or from time to time upon the request of Bank or IPS, Merchant will execute and deliver such further documents and do such other on, acts as Bank or IPS may reasonably request in order to effectuate fully the purposes of this Agreement.
1.31 Force Majeure. Any delay in or failure of performance by IPS or Bank under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond their reasonable control, including, but not limited to, acts of God, power outages, failures of the Internet, failures of banking or ACH networks.
1.32 Choice of Law, Jurisdiction. The parties agree that all performances and transactions under this Agreement will be deemed to have occurred in California and that Merchant’s entry into and performance of this Agreement will be deemed to be the transaction of business within the State of California. This Agreement will be governed by California law, without regard to its conflicts-of-law principles, and applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue for any action relating to the subject matter of this Agreement in California Superior Court in Santa Clara County, California and/or United States District Court for the Northern District of California. The parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of the State of California or United States federal law.
1.33 Jury Waiver. In the event any controversy or claim between or among the parties, their agents, employees, representatives, or affiliates shall arise in any judicial or legal proceeding, each party hereby waives its respective right to trial by jury of such controversy or claim.
1.34 Costs. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, or any part thereof, the prevailing party shall be entitled to recover its reasonable attorneys’ and experts’ fees and costs in addition to any other legal and/or equitable remedies to which it is entitled.
1.35 Publicity. Merchant agrees that IPS may issue a press release or similar public announcement referencing Merchant as a customer of IPS. Merchant also grants to IPS a limited license to use Merchant’s and its affiliates’ names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for IPS or its affiliates’ services.
1.36 Intellectual Property. IPS retains all right, title and interest in and to the services and any related technology utilized by it under or in connection with this Agreement, including but not limited to all associated intellectual property rights. No title to or ownership of any of the foregoing is granted to Merchant or any other entity or person under this Agreement. Merchant will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the IPS services or related technology.
1.37 Taxes. Merchant shall promptly pay when due any and all liability or expense relating to the payment of federal, state, and local taxes (other than taxes based in whole or in part upon income attributable to IPS).
1.38 Rights Cumulative. All rights and remedies existing in this Agreement are cumulative to, and not exclusive of, any other rights or remedies available under contract or applicable law.
1.39 Headings. The headings listed after each section number in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and are not to be considered in connection with the interpretation or enforcement of this Agreement.
1.40 Waiver. Failure by Bank or IPS to enforce one or more of the provisions of this Agreement shall not constitute a waiver of the right to enforce the same or other provision in the future. All waivers must be signed by the waiving party.
1.41 Entire Agreement. This Agreement, including the Merchant Application, the Schedule of Fees, the Rules, and Exhibits to this Agreement expresses the entire understanding of the parties with respect to its subject matter and except as provided herein. Reference to “this Agreement” also includes all documents incorporated into this Agreement by reference.
1.42 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
1.43 Assignment. This Agreement may be assigned by IPS, but may not be assigned by Merchant, directly or by operation of law, without the prior written consent of IPS and/or Bank. If Merchant nevertheless assigns this Agreement without such consent, the Agreement will be binding upon the assignee. This Agreement shall be binding upon and inure to the benefit of the parties’ respective heirs, and personal representatives for an individual, otherwise its permitted successors and assigns. If Merchant sells its business and the new owners incur Chargebacks or Returns, absent notification and consent by IPS, both the new owner and the original owner and all Guarantors will be held personally liable for all liabilities of the Merchant before and after the sale of the business.
1.44 Authorization of Agreement. Merchant represents and warrants that the person signing or electronically authorizing the Agreement is duly authorized to bind Merchant to all provisions of this Agreement and that such person is authorized to execute any documents and to take any action on behalf of Merchant which may be required by IPS now or in the future. Merchant will execute a separate Entity Certification if requested to do so by IPS. Merchant, by its signature, upon its first transmission of Transactions, or first payment of fees acknowledges that it agrees to be bound by this Merchant Agreement as it may be modified from time to time.
1.45 Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other party.
1.46 Export Restrictions. Merchant acknowledges that any software provided to it by IPS in connection with delivering services is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII). These laws include restrictions on destinations, end users and end use.
1.47 Counterparts. If copies of this Agreement or any amendments are to be physically signed, this Agreement may be executed and delivered in several counterparts and transmitted by facsimile, a copy of which will constitute an original and all of which taken together will constitute a single agreement.
1.48 General. Merchant is responsible for its employee’s actions while in its employ. The parties do not intend to confer any benefits on any person or entity other than Merchant, IPS and/or Bank. Merchant is also responsible for procuring, maintaining and servicing all equipment and software necessary to allow it to engage with IPS systems to process transactions through IPS, as well as for all related Internet, telecommunication, mobile phone (including sms charges and mobile data plan fees) and other similar fees.
1.49 Survival. All Sections of this Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, indemnification obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
ARTICLE II. CARD TRANSACTION SERVICES.
The following terms and conditions govern card processing services provided by IPS to Merchant.
(a) Merchant will prominently display the promotional materials provided by IPS and its Bank in its place(s) of business. Use of promotional materials and use of any trade name, trademark, service mark or logo type (“Marks”) associated with Card(s) shall be limited to informing the public that Card(s) will be accepted at Merchant’s place(s) of business. Merchant’s use of promotional materials and Marks is subject to the direction of IPS and its Bank.
(b) Merchant may use promotional materials and Marks during the term of this Agreement and shall immediately cease their use and return any inventory to IPS and its Bank upon termination of this Agreement.
(c) Merchant shall not use any promotional materials or Marks associated with Visa, MasterCard, AXP, Discover Network or JCB in any way which implies that Visa, MasterCard, AXP, Discover Network or JCB endorses any goods or services other than Card services.
2.02 Warranties of Merchant Regarding Card Transactions. Merchant hereby represents and warrants to IPS and Bank at the time of execution and during the term of this Agreement that:
(a) Each Sales Draft presented to IPS’ Bank for collection is genuine and is not the result of any fraudulent transaction and is not being deposited on behalf of any business other than Merchant. Further, Merchant warrants that each Sales Draft is the result of a Card Transaction for the bona fide purchase of goods or services by the Cardholder in the total amount stated on the Sales Draft.
(b) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby.
(c) Merchant has complied with IPS and its Bank’s procedures accepting Cards, and the Card Transaction itself shall not involve any element of credit for any other purposes other than as set forth in this Agreement and shall not be subject to any defense, dispute, offset or counter claim which may be raised by any Cardholder under the Rules, the Consumer Credit Protection Act (15 USC 1601), or other relevant state or federal statutes or regulations.
(d) Any Credit Voucher which it issues represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted.
2.03 Honoring Cards.
(a) If Merchant elects to accept Card payments, Merchant will accept without discrimination, all valid Cards properly presented by Cardholders for payment for goods or services.
(b) Merchant may establish a minimum transaction size for accepting Card transactions so long as such amount does not exceed $10, or such other amount established by law, and such minimum transaction size requirement does not discriminate between card issuers or between payment card networks.
(c) Merchant may offer discounts or in-kind incentives for payment by the use of cash, checks, debit cards, or credit cards, provided that the terms of the discount or in-kind incentives do not differentiate on the basis of the issuer of the card or payment network.
(d) Merchant shall not accept a Card as payment (other than for a mail order, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the person seeking to use the Card does not present the Card to permit Merchant to examine it and obtain an imprint or otherwise use the physical Card to complete the Transaction.
2.04 Card Acceptance. When accepting a Card, Merchant will follow the steps provided by IPS and its Bank for accepting Cards and will:
(a) Determine in good faith and to the best of its ability that the Card is valid on its face.
(b) Obtain Authorization before completing any Transaction. Where Authorization is obtained, Merchant will be deemed to warrant the true identity of the customer as the Cardholder.
(c) Obtain an Imprint of the Card unless the Sales Draft is electronically generated from a swiped transaction or is the result of an Internet, mail, phone or preauthorized order.
(d) If your terminal is unable to read the magnetic stripe on the card, you will obtain an imprint of the card and the cardholder’s signature on the imprinted draft before processing the sales draft.
(e) Enter a description of the goods or services sold and the price thereof (including any applicable taxes).
(f) Obtain the Cardholder’s signature on the Sales Draft and compare that signature to the signature on the Card.
(g) Deliver a true and completed copy of the Sales Draft to the Cardholder at the time of delivery of the goods or performance of the services, or if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale.
(h) Offer the Sales Draft to IPS’ Bank for purchase according to the Bank’s procedures and the terms of this Agreement.
(i) Legibly reproduce without alteration of the original transaction receipt, the Cardholder’s name, account number, expiration date and the Merchant’s name and place of business if that information is not legibly imprinted on the Sales Draft. Also, for MasterCard transactions, Merchant will legibly reproduce the name of the Card Issuer as it appears on the face of the Card.
(a) Merchant will obtain an Authorization for all Card sales. If Merchant cannot, for any reason, obtain an electronic Authorization, Merchant will request a Voice Authorization from the designated authorization center, and will legibly print the authorization number on the Sales Draft. Fees for voice authorizations are as set forth in the schedule of fees.
(b) Merchant shall not request Authorization for a Transaction unless Merchant intends to submit a Transaction for the authorized amount.
(c) Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale and that an Authorization is not a guarantee of payment.
(d) 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.
2.06 Unusual and Suspicious Transactions; Account Monitoring.
(a) Merchant acknowledges that IPS and/or Bank will monitor Merchant’s daily deposit activity for purposes of monitoring compliance with this Agreement. Merchant agrees that Merchant’s deposit activity will remain consistent with the “approved” monthly volume and average ticket amount approved on the Merchant Application and/or by IPS. IPS may require additional documentation if the Merchant should exceed “approved” monthly volume or average ticket, and Merchant agrees promptly to provide such documentation upon request. Merchant agrees that IPS may, in its sole discretion, elect not to process volumes over the approved monthly volume or overlimit transactions, and/or to close the account for cause in the event of overlimit or excessive activity. Merchant further agrees that IPS may, in its sole discretion suspend the disbursement of Merchant’s funds for any reasonable period of time required to investigate suspicious or unusual deposit activity and that such suspension may subject Merchant to additional suspension fees as set forth herein. IPS and/or Bank will make good faith efforts to notify Merchant as promptly as is commercially reasonable. IPS and/or Bank shall have no liability for any losses, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement.
(b) In the event of suspension arising from a suspicious or unusual Transaction, Merchant agrees that Merchant’s account may be charged a Security Processing Fee of $100 per suspended Transaction, and, if the suspended Transaction or unusual or suspicious activity exceeds $3,000, an additional $100 Investigative Fee may be assessed for each such event.
(c) If a batch is suspended by IPS, Merchant acknowledges that the consumer’s product or service must be delivered just as if the Merchant has been paid. Further, if a batch or a transaction is suspended, Merchant acknowledges that fees associated with the transactions will be charged including security fees.
(d) Merchant’s presentation to IPS of Excessive Activity will be a breach of the Agreement and a cause for immediate termination of this Agreement. “Excessive Activity” means, during any monthly period and for any one of Merchant’s terminal identification numbers or merchant identification numbers, Chargebacks and/or retrieval requests in excess of 1% of the average monthly dollar amount of Transactions or returns in excess of 3% of the average monthly dollar amount of Transactions or (ii) processing an Average Ticket above the amount approved by IPS. Merchant authorizes, upon the occurrence of Excessive Activity, IPS and/or Bank to take additional actions as either of them may deem necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a Reserve Account in accordance with this Agreement.
2.07 Forms. Merchant shall use only such forms or modes of transmission of Sales Drafts and Credit Vouchers as are provided or approved in advance by IPS.
2.08 Retention and Retrieval of Cards. Merchant shall use its best efforts, by reasonable and peaceful means, to retain or recover a Card when receiving such instructions upon making a request for Authorization. In carrying out such obligation Merchant will not breach the peace or cause any injury to any person or property.
2.09 Personal Information. Merchant may not require Cardholders to provide any personal information as a condition of honoring a Card unless such information is required for delivery of the goods or services or Merchant has reason to believe that the person presenting the Card may not be the actual Cardholder.
2.10 Records; Requests for Copies. Merchant shall retain a paper or microfilm copy of all Sales Drafts and Credit Vouchers and if a mail, phone order or preauthorized order is involved, the Cardholder’s signed Authorization for the Transaction for at least three (3) years after the date of the Transaction. Within three (3) business days of receipt of any written or verbal request by IPS and/or Bank, Merchant shall provide either the actual paper Sales Draft or a legible copy thereof and any other documentary evidence reasonably requested by IPS and/or Bank. A failure of Merchant to deliver the requested documentation in the required time frame may result in the transaction in question being charged back to the Merchant Account and the Merchant losing further representment rights.
2.11 Multiple Transaction Records; Partial Payments: Merchant shall include all goods and services purchased in a single Transaction at one time on a single Sales Draft, except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payment; or (iii) for delayed or amended charges governed by rules for travel and entertainment merchants and transactions.
2.12 Telephone Orders “TO”, Mail Orders “MO”, Preauthorized Orders “PO” and Installment Orders “IO”.
(a) Unless Merchant has been approved by IPS or its Bank to accept Internet, mail and phone orders, Merchant warrants that it is a walk-in trade business, located in a retail business place. If Merchant is found to be accepting mail orders, telephone orders, or Internet Transactions without such consent, such charges are subject to chargeback, as provided in this Agreement. When allowed, telephone and Internet orders are permitted only to the extent that the contact is initiated by the Cardholder.
(b) If authorized to accept payment by Internet, mail, phone or pre- authorized order, the Sales Draft may be completed without the Cardholder’s signature or an imprint, but in such case Merchant shall create a Sales Draft containing Cardholder account number, expiration date, transaction date, an authorization number, the sale amount and the letters “MO”, “TO”, “PO”, or “IO” as appropriate. In addition, the Merchant’s business name, city and state must be included. Receiving an Authorization shall not relieve the Merchant of liability for Chargeback on any Transaction for which the Merchant did not obtain an imprint and the Cardholders signature.
(c) For Approved MO, TO, PO, and IO Merchants, the Merchant must use reasonable procedures to verify that each Card sale is made to a purchaser who actually is the Cardholder or the authorized user of the Card. AVS is recommended and in some cases required. AVS is not a guarantee for payment, and the use of AVS will not waive any provision of this Agreement or otherwise validate a fraudulent transaction.
(d) Unless approved in writing by IPS and acknowledged by Bank, Merchant shall not process sales prior to delivery of product or service. If the product is being shipped, the customer must be given the shipping date of the product once the sale is processed.
(e) Merchant may limit acceptance of returned merchandise or establish a policy to make price adjustments for any transactions. If a Merchant refund policy prohibits returns under certain circumstances, the Merchant may still receive a Chargeback relating to such sales pursuant to Association rules and regulations.
(f) Merchant must not accept credit card sales via “electronic mail” over the Internet.
(g) For any recurring transactions, Merchant must obtain a written, or other form of request from Cardholder for such goods and services to be charged to the Cardholder’s account, which request must specify the transaction amounts to be charged to the Cardholder’s account, the frequency of the recurring charge and the duration of time during which such charges may be made. Merchant shall not complete any recurring transaction after receiving a cancellation notice from the Cardholder, the Bank, or a response to an Authorization request, which indicates that the Card is not to be honored. Merchant shall type or legibly print the words “Recurring Transaction” on the signature line of the Sales Draft. Merchant shall provide a copy of written request to Cardholder’s Bank upon request, and shall retain a copy of written request for one year after the agreement between Merchant and Cardholder is terminated. For multi-year agreements, Merchant shall renew written request with Cardholder annually during the 12th month of the current agreement.
2.13 Lodging and Vehicle Rental Transactions.
(a) Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder’s intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. Some lodging Merchants are eligible to participate in Visa’s Advanced Deposit Service Program. Merchants participating in this service must adhere to the Advanced Deposit Service Program rules as set forth by Visa.
(b) Regardless of the terms and conditions of any written preauthorization form, the Sales Draft amount for any lodging or vehicle rental Transaction shall include only that portion of the sale, including any applicable taxes, evidencing a bona fide rental of personal property by Merchant to the Cardholder and shall not include any consequential charges. Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Card Transaction.
2.14 Returns and Adjustments: Credit Vouchers.
(a) Merchant’s policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted in accordance with the Rules. If applicable, Merchant must disclose to a Cardholder before a Card sale is made, that if merchandise is returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g., late delivery, charges, or other noncredit terms).
(b) Disclosures must be made on all copies of Sales Drafts in letters approximately 1/4” high in close proximity to the space provided for the Cardholder’s signature on the sales draft and issued at the time of sale.
(c) If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholder’s Card account must be given. Merchant will not refund cash to a Cardholder who paid for the item by Card.
(d) Credits must be made to the same Card account number on which the original sale Transaction was processed.
(e) If Merchant accepts any goods for return or terminates or cancels any services, in conjunction with each such transaction, Merchant shall have sufficient funds in its account available to IPS and/or bank to cover the amount of the transaction and any related fees.
2.15 Cash Payments. Merchant shall not receive any payments from a Cardholder for charges included in any Transaction resulting from the use of a Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of affecting a deposit to the Cardholder’s Card account.
2.16 Cash Advances.
(a) Merchant shall not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant’s Card or the Card of any other party. Merchant agrees that any such deposit shall be grounds for immediate termination.
(b) Merchant, shall not under any circumstances obtain Authorization for, nor process a sale on any card that Merchant is not authorized to use. Processing Merchant’s own card is grounds for immediate termination.
2.17 Duplicate Transactions. Merchant shall not deposit duplicate Transactions. Merchant shall be debited for any duplicate Transactions and shall be liable for any Chargebacks which may result therefrom.
2.18 Deposit of Fraudulent Transactions. Merchant shall not accept or deposit any fraudulent Transaction and may not present for processing or credit, directly or indirectly, a Transaction which originated with any other merchant or any other source. Merchant shall not deposit Transactions evidencing sales that were solicited by outbound telemarketing activities. If Merchant deposits any such transactions IPS and/or Bank may hold funds and/or demand a Reserve Account. Perpetrators of fraudulent transactions will be referred to law enforcement officials and may be subject to Card Association penalties.
2.19 Collection of Pre-Existing Debt. Merchant shall not present any Transaction representing the refinancing of an existing obligation of a Cardholder including, but not limited to obligations (i) previously owed to Merchant, (ii) arising from the dishonor of a Cardholder’s personal check, and/or (iii) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.
2.20 E-Commerce Address Notification. Merchant must display the address of its permanent establishment on its Website. This address should include the country of domicile and should be located either on the checkout screen used to present the total purchase amount to the Cardholder, or within the sequence of Web pages the cardholder accesses during the checkout process.
2.21 Automatic Payment Plan Card Sales.
(a) Merchant must be approved by IPS to charge customers via an Automatic Payment Plan. Any transactions in violation of this provision are subject to Chargeback to Merchant.
(b) If a Merchant uses the Internet or another electronic process to receive a Cardholder approval of the Automatic Payment Plan, the Merchant must retain all electronic evidence of the Cardholder’s approval of the Automatic Payment Plan. The Cardholder’s approval, whether written or electronic, must include all of the following information:
(i) Cardholder’s name, address and Card Number;
(ii) Amount of each Automatic Payment Plan Card Sale, unless the amount can vary;
(iii) Timing or frequency of payments;
(iv) Length of time over which the Cardholder permits the Merchant to bill Automatic Payments to the Card Account;
(v) Merchant’s Merchant Number;
(vi) Card expiration date;
(vii) Total amount of Automatic Payments to be billed to Card Account, including taxes and tip(s), if an installation agreement;
(viii) A general description of the transaction
(ix) Merchant’s business name and customer service telephone number that the Cardholder may call to obtain customer assistance from the Merchant or to revoke approval of the Automatic Payment Plan.
(c) The first Automatic Payment Plan Card Sale must contain a positive response from the Address Verification System (AVS). If the first payment does not contain this information, all subsequent payments are subject to Chargeback to the Merchant.
2.22 Settlement of Transactions. Bank shall accept from Merchant all valid Sales Drafts deposited by Merchant under the terms of this Agreement and shall present the same to the appropriate Card issuers for collection against Cardholder accounts. Settlement of all Sales Drafts is subject to this Agreement and the Rules. IPS and/or Bank shall provisionally credit the value of collected Sales Drafts to Merchant’s Account and reserve the right to adjust amounts so credited to reflect the value of Chargebacks, fees, penalties, late submission charges, the difference in currency exchange if the Chargeback amount is greater than the original sale, issuer claims, and items for which Bank did not receive final payment for any reason. IPS and/or Bank may refuse to accept any Sales Draft or revoke its prior acceptance of a Sales Draft in the following circumstances: (a) the transaction giving rise to the Sales Draft was not made in compliance with all the terms and conditions of this Agreement; (b) the Cardholder disputes his liability to IPS and/or Bank for any reason, including but not limited to those Chargeback rights enumerated in the Rules; © the transaction giving rise to the Sales Draft was not directly between Merchant and Cardholder, or (d) the transaction is outside the parameters indicated on the Merchant Application. Merchant will pay IPS and Bank for any amount previously credited to Merchant for a Sales Draft not accepted or later revoked by them.
2.23 Processing Limits. IPS may limit the dollar amount of Sales Drafts that it will process for Merchant. This limit may be changed by IPS from time to time with or without notice to Merchant. If Merchant exceeds the limit established by this Agreement, IPS may suspend processing, charge overlimit fees, hold the funds over the cap and/or return to Merchant all Sales Drafts evidencing funds over the cap.
2.24 Endorsement. The presentment of Sales Drafts to Bank for collection and payment is Merchant’s agreement to sell and assign its right, title and interest in each Sales Draft completed in conformity with IPS and/or Bank’s acceptance procedures and shall constitute an endorsement by Merchant to IPS and/or Bank of such Sales Drafts. Merchant hereby authorizes Bank to supply such endorsement on Merchant’s behalf. Merchant agrees that this Agreement is a contract of financial accommodation within the meaning of Bankruptcy Code 11 U.S.C. Section 365, as amended from time to time. Merchant acknowledges that its obligation to IPS and/or Bank for all amounts owed under this Agreement arise out of the same transaction as IPS Bank’s obligation to deposit funds to the Account.
2.25 Transmission Method. If Merchant utilizes electronic authorization and/or data capture services, Merchant will enter data related to a sales or credit transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the transaction is completed. If Merchant provides its own electronic terminal or similar device, such terminals must meet IPS requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by Merchant to IPS or its Bank in the form IPS from time to time specifies or is required under the Rules. The means of transmission indicated in the Merchant Application shall be the exclusive means utilized by Merchant until Merchant has provided IPS and/or Bank with at least 30 days prior written notice of Merchant’s intention to change the means of such delivery or otherwise to alter in any material respect Merchant’s medium of transmission of data to IPS.
2.26 Prohibited Payments. Unless specifically authorized in writing by IPS and/or Bank, Merchant shall not collect or attempt to collect from a Cardholder amounts owed for any Transaction and shall promptly deliver to Bank any payment Merchant receives, in whole or in part from a Cardholder for any Transaction, together with the Cardholder’s name and account number and any correspondence accompanying the payment.
2.27 Chargebacks. All Chargebacks are due upon presentation to Merchant. In the case of a failure to pay a Chargeback upon such presentment, in addition to any other remedies which may be exercised by IPS and/or Bank, Merchant agrees to pay a late charge of one and one half percent (1.5%) per month or portion thereof, or the highest amount allowable by law, whichever is less, on all unpaid Chargebacks. IPS and/or Bank are authorized to deduct the amount of any Chargebacks and fees from any settlement amounts due to Merchant or from the Reserve Account, if any, or collect by any other means. Merchant understands and agrees that Sales Transactions are subject to Chargeback for a variety of reasons under the Rules, or if Merchant has breached this Agreement, including without limitation, for the following reasons:
(a) The Sales Draft is illegible, not signed by the Cardholder or has not been presented to Bank within the required time-frames.
(b) The Sales Draft does not contain the Imprint of a valid unexpired Card.
(c) A valid Authorization number has not been correctly and legibly recorded on the Sales Draft.
(d) The Sales Draft is a duplicate of a prior Transaction or is the result of two or more Transactions generated for a single sale.
(e) The Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased.
(f) The price of goods or services on the Sales Draft differs from the amount which Merchant presents for payment.
(g) The Transaction results from an Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the Transaction or the Transaction has been made on an expired or non-existing account number.
(h) IPS reasonably believes in its discretion that Merchant has violated any provision of this Agreement.
(i) IPS reasonably determines that the Transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, or offset for any reason whatsoever, including without limitation, negligence, fraud or dishonesty on the part of Merchant or Merchant’s agents or employees.
(j) Merchant fails to provide a Sales Draft or legible copy thereof to IPS and/or Bank in accordance with this Agreement.
(k) Merchant shall not initiate a Transaction in an attempt to collect a Chargeback.
(a) AXP OnePoint Program. If Merchant qualifies and does not request otherwise, IPS will enroll Merchant in the American Express OnePoint program to accept AXP cards. In accepting AXP cards under this program, Merchant is agreeing to the terms of the AXP Acceptance Agreement (https://merchantcenter.intuit.com/welcome) as that agreement may be amended from time to time. Under this program IPS will provide primary support services for AXP transactions and such transactions will be reported to Merchant in a single statement with other transaction information.
(b) Direct Relationship with AXP. In some situations Merchant’s seeking to accept AXP cards may enter into a direct merchant agreement with AXP. In these situations IPS facilitates the flow of information between Merchant and AXP, but does not provide primary support for AXP transactions.
(c) Additional Cards. From time to time IPS may also notify you that you are able to accept other types of payment cards under the relationship with IPS (“Additional Cards”). The terms of this Agreement will apply to Additional Card transactions. IPS will notify Merchant orally and/or in writing of the fees applicable to Additional Card transactions. Merchant’s acceptance of Additional Cards and transmission of Additional Card transactions to IPS will constitute Merchant’s agreement to the terms of this Agreement with regard to Additional Cards.
2.29 Fees and Discount Percentages. The Schedule of Fees and/or Merchant Application set forth discount rates and other fees that apply to different types of Card Transactions. This section describes how IPS determines which transaction types qualify for the different transaction rates. Also, unless stated differently in the Schedule of Fees or the Merchant Application, the fees noted below will apply to Card Transactions. Additional charges that may occur from time to time include chargeback fees, representment fees and retrieval fees. If the relevant Schedule of Fees or Merchant Application calls for a monthly minimum fee, that fee will be deducted unless you have met your minimum processing volume. The standard delivery method for Monthly Statements is in an electronic, online version that will be generated each month and located at https://merchantcenter.intuit.com/welcome. The Qualified Discount Rate will be deducted daily. If Merchant has 2-tiered pricing with Qualified and Non-Qualified Rates only, transactions listed in the Mid-Qualified category will be charged the Qualified rate. Additional information about how we manage our rate categories is set forth on Exhibit D.
(a) Qualified Discount Rate. The rate charged on transactions that have the following attributes: swiped non-rewards consumer signature credit or debit cards where the full magnetic stripe has been read that are electronically authorized and closed in a daily batch.
(b) Mid-Qualified Discount Rate. The rate charged on transactions that have the following attributes and have not qualified to be charged the Qualified Rate: keyed debit cards with matching AVS response for “card present” transactions; keyed consumer signature debit cards with valid AVS response and order number for “card not present” transactions; and some categories of rewards signature credit cards where the full magnetic stripe has been read that are electronically authorized, and in each of the preceding cases have been closed in a daily batch; and
(c) Non-Qualified Discount Rate. The rate charged on transactions that have the following attributes and have not qualified to be charged the Qualified or Mid-Qualified Rate: Business, Corporate, Purchase, International, Government, Rewards, World cards, “High End Value” or other such rewards cards as defined by the card issuers; keyed credit cards, keyed Consumer credit or debit cards without fully matching AVS; batches not closed within one calendar day of transaction; and any Pre-Authorized sale that is not processed/captured within 7 business days.
(d) AVS Fees. Automated AVS responses obtained through a POS or similar device are charged at a rate of $0.10 each. AVS responses obtained from a live operator are charged at a rate of $2.00 each.
(e) Batch Header Fee. A Merchant is billed a batch header fee for each time a batch is transmitted to the Host for settlement. The batch header fee charged is equivalent to the transaction fee indicated on the application. If no transaction fees are indicated the batch header fee is 20¢.
(f) Transaction Fee. A Merchant is billed a transaction fee each time communication is made with the Host. This fee is assigned by the Agent or sales representative at the time the Merchant applies for an account.
(g) Visa International Assessment Fee. Visa charges an international service assessment fee of .4% for all international transactions. This fee will be passed to your account for all international transactions you process. This fee is in addition to the discount rate.
(h) MasterCard Cross Border Fee. MasterCard charges a cross border assessment fee of .40% on all cross-border transactions for non-U.S. issued MasterCard, credit or debit card transactions processed. This fee will be passed to your account for all international transactions you process. This fee is in addition to the discount rate.
(i) MasterCard Acquirer Support Fee. . MasterCard charges an acquirer support fee of .55% on all U.S. region acquired transactions for cards issued outside the U.S. region. This fee will be passed to your account for all international transactions you process. This fee is in addition to the discount rate.
(j) American Express Inbound Fee. Non-U.S. issued American Express Cards (excluding Prepaid/Gift Card products) accepted by US Merchants will be subject to an additional interchange charge of 0.40%.
(a) In the event of termination for any reason, Merchant expressly authorizes IPS and/or Bank to withhold settlement of Transactions and other payment transactions of Merchant in the process of being settled.
(b) At the discretion of IPS and/or Bank, collected funds may be placed in a Reserve Account (defined below) until Merchant pays any equipment and processing termination fees and any outstanding charges, losses or amounts for which Merchant is liable under this Agreement. Further, IPS and/or Bank reserve the right to require Merchant to deposit additional amounts in the Reserve Account based upon Merchant’s processing history and/or anticipated risk of loss to Bank into the Reserve Account. The Reserve Account shall be maintained for a minimum of 270 days after the termination date or the date of the oldest transaction, and for a reasonable time thereafter during which Cardholder disputes may remain valid under the Rules. Any balance which remains in the Reserve Account after such period will be returned to Merchant. IPS and/or Bank may debit the Reserve Account for all amounts owed by Merchant under this Agreement.
(c) Merchant expressly acknowledges that MATCH (formerly known as the Combined Terminated Merchant Files or “CTMF”) is a file maintained by MasterCard and accessed by Visa, and the Consortium Merchant Negative File, maintained by Discover Network, containing the business names and the identification of principals of Merchant which have been terminated for one or more reasons specified in the Rules. Such reasons include, but are not limited to: fraud, counterfeit paper, unauthorized transactions, excessive Chargebacks/Retrievals or highly suspect activity. Merchant acknowledges and agrees that IPS and/or Bank are required to report Merchant and the names and identification of its principals to MATCH and the Consortium Merchant Negative File if Merchant is terminated for any such reason. Merchant consents to such reporting to the Card Associations and Payment Networks by IPS and/or Bank and waives any claims which Merchant may raise against IPS or Bank as a result of such reporting. Merchant also consents to IPS reporting incidents of fraud, counterfeit paper, unauthorized transactions, excessive Chargebacks/Retrievals or highly suspect activity to the NCN.
(d) Upon termination for any reason, Merchant will immediately cease requesting Authorizations and will cease transmitting Sales Drafts to IPS and/or Bank which are made after the termination date.
(e) Following termination, Merchant shall upon request provide IPS and/or Bank with all original and microfilm copies of Sales Drafts and Credit Vouchers to be retained as of the date of termination.
(f) Effective immediately upon termination whether by Merchant, by Bank or by IPS, Merchant must cease the use of all Card Association and Payment Network signage which indicates the acceptance of those cards under this Agreement.
ARTICLE III. DEBIT CARD SERVICES
The following terms and conditions govern debit card processing services provided by IPS to Merchant, regardless of whether Merchant applies to receive such services at the time of its initial application for electronic payment services, or subsequently elects to receive such services from IPS.
3.01 Services. Bank shall sponsor Merchant for membership in the debit card network that Merchant has selected. Merchant acknowledges that sponsorship does not guarantee acceptance. IPS shall process and settle Merchant’s debit card transactions.
3.02 Debit Fees. Merchant agrees to pay IPS the fees for Debit Transactions as set forth in the Merchant Application as well as the following fees. Payment and modification of fees will be handled as set forth in Article I of the Agreement. The rates that apply to debit card transaction vary based on whether the interchange rates being charged for the card being used for payment are regulated by the U.S. Federal Reserve Bank under federal law (“Regulated Debit Cards”). Those debit cards who’s transaction rates are not regulated by federal law are referred to as “Unregulated Debit Cards.”
(a) Signature Debit Transactions. These transactions occur when a card is accepted for payment which is both linked to a checking or savings account at a financial institution (such as a bank) and authorized solely by the Cardholder’s signature.
(i) Regulated Transactions. Signature debit card transactions Regulated Debit Cards will be treated as “Qualified” for billing purposes (as that term is defined in Article II of this Agreement).
(ii) Unregulated Transactions. Signature debit transactions for Unregulated Debit Cards will be treated the same as Credit Card transactions for billing purposes as set forth in Article II of this Agreement.
(b) PIN Debit Transactions. These transactions occur when a card is accepted for payment which is both linked to a checking or savings account at a financial institution (such as a bank) and authorized by the Cardholder solely by entering a personal identification number (“PIN”). Both Regulated and Unregulated PIN debit transactions are treated the same. These transactions will incur a PIN Debit Transaction Fee (which will be shown on your billing statement as an “Authorization Fee”) plus a Network Fee that is based on the debit network over which the transaction is processed. Network Fees may change from time-to-time. A list of some of the most common network fees is located here:http://payments.intuit.com/support/debit_fee_sched/.
3.03 Merchant Obligations.
(a) Unless otherwise authorized by IPS, Merchant shall utilize IPS’ compatible terminals, PIN pads or systems capable of processing all Automatic Clearing House (ACH) debit card transactions as well as online debit card transactions.
(b) In connection with debit card transactions Merchant shall comply with all applicable laws, regulations and rules and regulations of the applicable debit card network.
(c) Merchant shall be responsible for all paper copies of debit card transactions, in accordance with the applicable debit card network rules. Within one business day of the day of the transaction, Merchant shall balance each location to the system for each business day that such location is open.
(d) Merchant shall be responsible for all telephone message unit costs, if any, which may be incurred by Merchant for the debit card services as well as expenses related to installation of and training in the use of terminals.
(e) Merchant shall be responsible for entering data correctly. If an entry is made incorrectly, IPS shall use its reasonable efforts to assist Merchant in correcting the entry, but cannot guarantee that the effort will be successful.
3.04 PIN Security.
(a) Merchant is expressly prohibited from requesting PIN numbers verbally or in writing as a condition of a sale. Merchant may not document or retain PIN numbers in any fashion at any time.
(b) POS terminals must be positioned so as to be reasonably secure from observation by third parties. Merchant’s security cameras must not be able to view the PIN pad. Pin Entry Device (PED) shielding will be considered as one of the possible prevention methods.
(c) The operational placement and use of the Tamper Resistant Security Module (TRSM) must be within its intended physical and logical environment. POS terminals designed for indoor use are not suitable for outside use. The modification of TRSMs from their original manufactured specifications must be restrained.