MERCHANT PROCESSING AGREEMENT
This Merchant Processing Agreement (this “Agreement”) comprised of (i) the Merchant Application attached hereto (the “Merchant Application”) and (ii) the Terms and Conditions set forth below (the “Terms and Conditions”), is by and among EVO Merchant Services, LLC (“Processor” or “us”), the merchant identified on the Merchant Application (the “Merchant” or “you”) and Deutsche
Bank Trust Company Americas (the “Bank”).
WHEREAS Processor and the Bank provide electronic transaction processing services and related services (the “Services”);
WHEREAS the Merchant desires the Services set forth in the Merchant Application;
NOW THEREFORE, Processor, the Bank and the Merchant agree as follows:
TERMS AND CONDITIONS
1. Defined Terms.
1.1. “Applicable Laws” means all applicable federal, state, and local laws, rules, regulations and ordinances, as amended from time to time.
1.2. “Business Day” means Monday through Friday, excluding holidays observed by the Federal Reserve Bank of New York.
1.3. “Cards” means, as the context requires, any form of credit card, debit card, charge card, stored value card, loyalty card, or any virtual card which permits or enables transactions on a customer’s account.
1.4. “Cardholder” means, with respect to a Card, the a person rightfully possessing such Card to whom such Card is issued.
1.5. “Chargebacks” means any transactions returned for whatever reason.
1.6. “Debit Networks” means Accel, AFFN, CU24, Interlink, Maestro, NYCE, Pulse, Shazam, and Star, as such list may be changed from time-to-time by Debit Sponsor or Processor without notice. As applicable, “Debit Networks” also includes Electronic Benefit Transactions (EBT) or withdrawals.
1.7. “Payment Card Network” means Visa, Mastercard, Discover, JCB, Diners Club, UnionPay, American Express and any other payment network listed on the Merchant Application.
1.8. “Payment Card Industry Data Security Standards” or “PCI DSS” means the Payment Card Industry’s Data Security Standards, as in effect from time to time.
1.9. “Rules” means the by-laws, regulations, rules, and operating guidelines issued from time to time by the Payment Card Networks and Debit Networks, including, without limitation the standards issued by the Payment Card Industry Security Standards Counsel, Visa’s Cardholder Information Security Program (CISP), Mastercard’s Site Data Protection Program (SDP), American Express’
DSR, and any successor thereto, each as amended from time to time.
1.10. “Transaction Receipt” means a record, electronic or physical, indicating a Cardholder has made a purchase with a Card.
2. Introductory Disclosures.
2.1. The Bank is a member of Visa Inc. (“Visa”) and Mastercard International, Inc. (“Mastercard”);
2.2. Processor is a registered independent sales organization of Visa and a member service provider of Mastercard.
2.3. Merchant and Processor agree that the rights and obligations contained in this Agreement do not apply to Bank with respect to Discover and American Express transactions, except to the extent Merchant qualifies and participates in the OptBlue or Discover Merchant Acquiring Program programs.
2.4. To the extent Merchant accepts Discover cards, the provisions in this Agreement with respect to Discover apply if Merchant does not have a separate agreement with Discover. In such case, Merchant will also be enabled to accept JCB, Diners Club International (“Diners Club”), and UnionPay International (“UnionPay”) cards under the Discover network and such transactions will be processed at the same fee rate as Merchant’s Discover transactions are processed.
3. Card Acceptance.
3.1. You will honor, without discrimination, any Card properly tendered by a Cardholder, subject to exceptions allowed for registered merchants under 3.13 below.
3.2. You may establish a minimum amount of $10 per transaction as a condition for honoring Cards. In each case, expect to the extent permitted by applicable Law and the Rules, you will not establish a maximum transaction amount as a condition for honoring Cards, and you will not establish a minimum or maximum amount for debit card transactions.
3.3. For card present transactions, to the extent required by the Rules, you will identify the Cardholder and check the expiration date and signature on each Card.
3.4. You must promptly notify Processor and Bank in advance in writing in accordance with Section 35.6 if you choose to accept transactions using new forms of acceptance or a materially different mix of acceptance methods other than those specified on your Merchant Application. Any changes to your acceptance methods may increase your fees.
3.5. You will not honor any Card if: (i) the Card has expired, (ii) for card present magnetic stripe read transactions, the signature on the transaction receipt does not correspond with the signature on the Card, or (iii) for card present transactions, the account number embossed on the Card does not match the account number on the Card’s magnetic strip (as printed in electronic form) or the account number is listed on a current Electronic Warning Bulletin file.
3.6. You will use your best efforts to retain any Card: (i) if you are advised by Processor or Bank (or a designee) or the issuer of the Card or the designated voice authorization center to retain it; (ii) if you have reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or (iii) other circumstances as documented by Processor or as appear in applicable payment network rules that exist in the public domain.
3.7. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card, except for “Convenience Fees”, “Service Fees,” and “Surcharges” as permitted by the Rules and Applicable Law. This paragraph does not prohibit you from offering a discount from the standard price to induce a person to pay by cash, check or similar means rather than by using a
3.8. You will properly disclose to the Cardholder, at the time you accept payment by Card and in accordance with the Rules, any limitation you have on accepting returned merchandise, including restocking fee.
3.9. You will not have any claim against or right to receive payment directly from a Cardholder for any transaction unless (i) Processor or Bank refuses to accept the Transaction Receipt for such transaction or (ii) Processor or Bank revokes a previously accepted Transaction Receipt after receipt or a chargeback or otherwise.
3.10. You will not accept any direct payments from a Cardholder relating to previous charges for merchandise or services included in a Transaction Receipt, and if you receive any such payments you promptly will remit them to Processor and Bank.
3.11. You may not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address, or a driver’s license number as a condition for honoring a Card unless permitted under the Applicable Laws and Rules.
3.12. All disputes between you and any Cardholder relating to any Card transaction will be settled between you and the Cardholder. Neither Processor nor Bank bear any responsibility for such transactions.
3.13. You hereby elect to accept all Card types set forth on the Merchant Application. You may, to the extent permitted by and in each case in accordance with the Rules, elect to disallow any types of US issued Card by providing Processor and Bank 30 days’ prior written notice specifying which limited set of Card types you elect to accept and subject to your registration as a Limited Acceptance Merchant with Bank and Card Networks.
4.1. For each transaction, prior to accepting a Card for payment, you must obtain authorization for the total amount of such transaction to be paid by such Card. Upon receipt of an authorization for a transaction, you may only consummate the transaction exactly as authorized. You will follow any instructions received from Processor or Bank during the authorization process. Failure to do so may result in the assessment of a transaction surcharge on non-qualifying transactions and/or additional fees, including authorization integrity fees and transaction integrity fees, and, at Processor’s reasonable discretion, the deposit of funds receives for such transactions into the Reserve Account.
4.2. For each transaction you must generate a Transaction Receipt and such Transaction Receipt must include the authorization number for the transaction.
4.3. By requesting authorization for a transaction to be paid by a Card, you represent and warrant to Processor and Bank that the customer tendering such Card as payment for such transaction is the rightful Cardholder and that the amount of the authorization is the full and unaltered amount of the transaction as appears on the Transaction Receipt.
4.4. Authorizations are not a guarantee of acceptance or payment of the Transaction Receipt. Authorizations do not waive any provisions of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card or counterfeit magnetic stripe read transaction.
4.5. When you request authorization for a transaction electronically using a physical terminal, and your terminal is unable to read the chip (or magnetic stripe if the chip is not functioning) on the Card, you will obtain an imprint of the Card and the Cardholder’s signature on the imprinted Transaction Receipt before presenting such Transaction Receipt to Processor and Bank for processing. Failure to do so may result in the assessment of a transaction surcharge.
5. Transaction Receipts.
5.1. You will document each authorized transaction with a Transaction Receipt. Each Transaction Receipt will be include (legibly imprinted if a physical copy): (i) Merchant’s name, location and account number; (ii) the information embossed on the Card presented by the Cardholder (either electronically or manually); (iii) the date of the transaction; (iv) a brief description of the goods or services involved; (v) the transaction authorization number; (vi) the total amount of the sale including any applicable taxes, or credit transaction; and (vii) adjacent to the signature line, a notation that all sales are final, if applicable.
5.2. Each Transaction Receipt must be signed or otherwise authenticated by the Cardholder unless the Card transaction is a valid mail/telephone order Card transaction which fully complies with the requirements set forth in this Agreement. You may not require the Cardholder to sign the Transaction Receipt before you enter the final transaction amount in the Transaction Receipt.
5.3. For a physical Transaction Receipt, if any of the following information is not legibly imprinted on a Transaction Receipt, you will legibly inscribe it thereon before submitting it to Processor and Bank: (i) the Cardholder’s name: (ii) account number (iii) expiration date of the Card and (iv) the Merchant’s name and place of business. Additionally, for Mastercard transactions you will legibly inscribe the name of the bank issuing the Card as it appears on the face of the Card.
5.4. You will deliver or otherwise make available a complete copy of each Transaction Receipt to the Cardholder at the time of the transaction. You will retain the “merchant copy” of the Transaction Receipt or credit memorandum for at least 2 years following the date of completion of the Card transaction (or such longer period as the Rules require).
5.5. In using electronic authorization and/or data capture services, you will enter the data related to a transaction into a computer/virtual terminal or chip/magnetic stripe reading terminal no later than the close of business on the date the transaction is completed (unless otherwise permitted by the Rules). Failure to do so may result in the assessment of a transaction surcharge on non-qualifying
transactions and, at Processor’s sole discretion, the deposit of the funds received for such sales or credit transaction into the Reserve Account. If you provide your own electronic terminal or similar device, such terminal must meet Processor and Bank’s requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer/virtual terminal or chip/magnetic stripe reading terminal will be transmitted by you to Processor and Bank or their agent in the form Processor and Bank from time to time specify or as required by the Rules. If Processor or Bank requests a copy of a Transaction Receipt or other transaction evidence, you must provide it within 24 hours of request.
5.6. Processor or Bank may refuse to accept any Transaction Receipt, and Processor and Bank may revoke prior acceptance of a Transaction Receipt in the following circumstances: (i) the transaction giving rise to the Transaction Receipt was not made in compliance with this Agreement, the Applicable Laws or the Rules; (ii) the Cardholder disputes his liability to Processor and Bank for any reason, including but not limited to a contention that the Cardholder did not receive the goods or services, that the goods or services provided were not as ordered, or those chargeback rights enumerated in the Rules; or (iii) the transaction giving rise to the Transaction Receipt was not directly between you and the Cardholder. You will pay Processor and Bank any amount previously credited to you for a Transaction Receipt not accepted by Processor and Bank or where accepted, is revoked by Processor and Bank.
5.7. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of performing your obligations under this Agreement.
6. Deposit of Funds and Provisional Credits.
6.1. Deposit of Funds.
6.1.1. Deposits. You agree that this Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. § 365 as amended from time to time. Subject to this Section 6, Bank will deposit funds for transactions, as evidenced by Transaction Receipts, complying with the terms of this Agreement and the Rules, to the Designated Account and will provide you
provisional credit for such funds (less recoupment of any credit(s), adjustments, fines, chargebacks, or fees) .
6.1.2. You shall not be entitled to credit for any indebtedness that arises out of a transaction not processed in accordance with the terms of this Agreement or the rules and regulations of the Card Payment Networks.
6.1.3. You acknowledge that your obligation to Processor and Bank for all amounts owed under this Agreement arises out of the same transaction as Processor and Bank’s obligation to deposit funds to the Designated Account.
6.2. Provisional Credit.
6.2.1. Notwithstanding the previous sentences, under no circumstance will Processor or Bank be responsible for processing credits or adjustments related to Transaction Receipts not originally processed by Processor and Bank.
6.2.2. All Transaction Receipts and deposits are subject to audit and final checking by Processor and Bank and may be adjusted for inaccuracies.
6.2.3. You acknowledge that all credits provided to you are provisional and subject to chargebacks, recoupment, adjustments, fines and fees: (i) in accordance with the Rules; (ii) for any of your obligations to Processor or Bank; and (iii) in any other situation constituting suspected fraud or a breach of this Agreement, whether or not a transaction is charged back by the Card issuer. Processor and Bank may elect, but are not required, to grant conditional credit for individual or groups of any funds evidenced by Transaction Receipts. Final credit for those conditional funds will be granted within Processor and Bank’s sole discretion.
6.2.4. In connection with the review and acceptance (if applicable) of your Merchant Application, Processor and Bank may impose a cap on the volume and ticket amount of Transaction Receipts that they will process for you, as indicated to you by Processor or Bank. This limit may be changed by Processor or Bank upon written notice to you in the event that Processor or Bank reasonably believe that such caps are not appropriate for your account.
7.1. You are fully responsible for all Chargebacks.
7.2. Processor may debit the Designated Account to collect payment of Chargebacks.
7.3. You will pay Processor and Bank an amount equal to each Chargeback, on demand.
7.4. You will fully cooperate with Processor and the Bank with respect to each Chargeback, including formulating responses to the Payment Card Networks, and will comply with all Rules regarding Chargebacks.
7.5. You hereby irrevocably authorize Processor and Bank to offset from incoming transactions and/or the Reserve Account the amount of all outstanding, unpaid Chargebacks.
7.6. Notwithstanding any authorization or request from a Cardholder, you will not re-enter or reprocess any transaction which has been subject to a Chargeback.
8. Excessive Activity and Excessive Reversals.
For any month, in the event that either (i) the dollar amount of Chargebacks and/or retrieval requests for such month is in excess of one percent of the average monthly dollar amount of your Card transactions for such month, (ii) the dollar amount of returns equals 20% of the average monthly dollar amount of your Card transactions for such month, Processor may either immediately suspend your ability to process transactions or deposit 100% of your revenue from Card transactions into the Reserve Account (defined below). You will provide Processor with all information and documentation reasonably requested by Processor to investigate the causes of such Chargebacks, retrieval requests and returns. Upon conclusion of the investigation, Processor shall either (i) reinstate your ability to process Card transactions, (ii) permit you to continue to process Card transactions, or (iii) terminate this Agreement. In the event you are permitted to continue to process Card transactions, Processor may adjust the amount deposited into the Reserve Account in accordance with Section 18.
9. Credit Memoranda.
9.1. You will issue a credit memorandum in an approved form instead of making a cash advance, a disbursement or a refund on any Card transaction. Processor or Bank will debit the Designated Account for the total face amount of each credit memorandum submitted to Processor and Bank.
9.2. You may only submit a credit memorandum that relates to a Transaction Receipt between you and a Cardholder, and each such credit memorandum must be in an amount that does not exceed the amount of the original Transaction Receipt. If a transaction using a non-reloadable prepaid card is reversed, you may submit a credit memorandum for the refund of funds to be made to a different card or you may issue a cash refund.
9.3. You will within the time period specified by the Rules, provide a credit memorandum or credit statement for every return of goods or forgiveness of debt for services which were the subject of a Card transaction.
10. Debit Card Processing Services
10.1. This Section 10 is only applicable if you have elected to accept debit cards on your Merchant Application.
10.2. Wells Fargo, N.A. or any successor sponsor, as selected by Processor in its sole discretion (the “Debit Sponsor”) shall act as your sponsor for your participation in the Debit Networks. You may also have access to other debit networks that do not require a sponsor.
10.3. Processor will provide you with the ability to access the Debit Networks for the purpose of authorizing Card transactions using Cards issued by the members of the respective Debit Networks, and Processor will provide connection to such Debit Networks, terminal applications, settlement, and reporting activities (collectively, the “Debit Services”).
10.4. You will execute and deliver any application, participation, or membership agreement or other document necessary to enable Debit Sponsor to act as sponsor for you in each Debit Network or EBT Network, and you shall obtain all consents, approvals, authorizations, or orders of any governmental agency or body required for the execution, delivery, and performance of this Agreement.
10.5. You agree to utilize the Debit Services in accordance with this Agreement, its exhibits and attachments, and Processor’s instructions and specifications, and to provide Processor with the necessary data in the proper format to enable Processor to properly furnish the Debit Services. Copies of the relevant agreements or operating regulations shall be made available to you upon request.
10.6. Processor may terminate or suspend in its discretion Debit Sponsor’s sponsorship of you in any Debit Network or modify the provision of Services to you:
10.6.1. Immediately upon notice to you of the occurrence of any of the conditions set forth in Section 23.6.1 through 23.6.5 or if Debit Sponsor’s authority to participate in such Debit Network or act as your sponsor in such Debit Network is terminated by such Debit Network;
10.6.2. Thirty days after written notice by Processor to you of the occurrence of any of the conditions set forth in items Section 23.6.6, 23.6.7 or 23.6.8 or if Debit Sponsor terminated its membership or participation in such Debit Network;
10.6.3. Immediately upon notice to you in the event any financial statement, representation, warranty, statement or certificate furnished is materially false or misleading; or
10.6.4. Immediately upon notice to you of the occurrence of any other circumstance with respect to this Section that may reasonably be expected to have an adverse effect on Processor.
10.7. The parties hereto acknowledge and agree that Processor shall pay Debit Sponsor any and all fees related to Debit Sponsor’s sponsorship of you in the Debit Networks; provided, however, that in the event Processor fails to pay such amounts, Debit Sponsor shall be entitled to recover all such amounts directly from you and you agree to pay all such amounts.
10.8. You shall not in any way indicate that Debit Sponsor endorses your activities, products, or services. Debit Sponsor and you are and shall remain independent contractors of one another, and neither they, nor their respective individual employees, shall have or hold themselves out as having any power to bind the other to any third party.
10.9. Nothing contained in this section shall be construed to create or constitute a partnership, joint venture, employer-employee, or agency relationship between Debit Sponsor and you.
10.10. In the event that Debit Sponsor’s sponsorship of you in any Debit Network is terminated prior to the termination of this Agreement, Processor may assign Debit Sponsor’s rights and obligations hereunder to a third party. All provisions in this section necessary to enforce the rights and obligations of the parties contained in this section shall survive the termination of Debit Sponsor’s
debit sponsorship of you under this Agreement.
11. Card Not Present Transactions.
11.1. This Section 11 is only applicable if you have elected to accept Cardholder is not present (“CNP”) transactions.
11.2. Processor and Bank hereby notify you that CNP transactions are generally subject to higher rates of customer incidents than card present transactions.
11.3. For card not present transactions, you will identify the Cardholder and check the expiration date and CVV2 number on each Card, except to the extent not required by the Rules.
11.4. For mail/telephone order transactions, you will type, key, print or otherwise indicate the following as applicable: telephone order or “TO” or mail order or “MO”.
11.5. Bank will release funds to Merchant up to five business days after the transaction date for transactions.
11.6. Merchant agrees to use and retain proof of a traceable delivery system as means of shipment of product to Cardholders.
11.7. Merchant agrees not to settle CNP transactions until products are shipped to the Cardholder, except to the extent permitted by the Rules.
12. Card on File Transactions.
12.1. For card on file transactions, you must obtain a written request from the Cardholder for the goods and services to be charged to the Cardholders Card, the frequency of the recurring charge, and the duration of time during which such charges may be made. If recurring charges do not have both a set transaction amount and frequency, you must identify such transactions as “card on file”.
12.2. You will not complete any recurring or credentials on file transaction after receiving: (i) a cancellation notice from the Cardholder, (ii) notice from Processor or Bank, or (iii) a response that the Card is not to be honored.
12.3. You must mark each applicable Transaction Receipt, whether physical or electronic, the words “Recurring Transaction” or “Card on File Transaction”.
13. Multiple Transaction Receipts.
You will include a description and total amount of goods and services purchased in a single transaction on a single Transaction Receipt, unless (i) partial payment is entered on the Transaction Receipt and the balance of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Transaction Receipt represents an advance deposit in a Card transaction completed in accordance with this Agreement and the Rules.
14. Partial Completion.
14.1. You will not accept for payment by Card any amount representing a deposit or partial payment for goods or services to be delivered in the future without the prior written consent of Processor or Bank unless otherwise indicated on your Merchant Application. Such consent will be subject to Bank’s final approval, which may be conditioned. Failure to do so shall constitute a breach of this Agreement.
14.2. You will complete each Card transaction made by deposit or partial payments in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one Transaction Receipt when making a deposit or partial payment with a Card and a second Transaction Receipt when paying the balance or paying in installments. You will note upon the Transaction Receipt the words “deposit” or “balance” or “installment # of #” as appropriate. You will not deposit the Transaction Receipt labeled “balance” until the goods have been delivered to Cardholder or you have fully performed the services.
15. Electronic Commerce Transactions.
15.1. This Section 15 is only applicable if you have elected to accept electronic transactions (“EC transactions”) on your Merchant Application. If you submit EC transactions without our consent, we may immediately terminate this Agreement.
15.2. You acknowledge that you have reviewed the Payment Card Industry Data Security Standards (PCI DSS), Visa’s Cardholder Information Security Program (CISP), Mastercard’s Site Data Protection Program (SDP), and American Express’ DSR and to the extent that they apply to you, you agree to comply with, and ensure that all EC transactions comply with the terms of each and with Applicable Law and the Rules.
15.3. You understand that EC transactions are high risk and you are liable for all chargebacks and losses related to EC transactions.
15.4. Encryption is not a guarantee of payment and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction.
15.5. All EC transactions will be settled by Bank into the Designated Account, as defined below, in U.S. currency.
15.6. For goods to be shipped on EC transactions, you may obtain authorization up to 30 calendar days prior to the shipment date or such shorter period as permitted by the Rules.
15.7. Your web site must contain all of the following information: (i) complete description of the goods or services offered, (ii) returned merchandise and refund policy, (iii) customer service contact, including electronic mail address and/or telephone number, (iv) transaction currency, (v) export or legal restrictions, if known, and (vi) your delivery policy.
15.8. If you store Cardholder account numbers, expiration dates, and other personal Cardholder data in the database, you must follow all Applicable Law and the Rules governing the security of such data If you accept EC transactions, you must: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up-to-date; (iii) encrypt stored data and data sent over open networks; (iv) use and update anti-virus software; restrict access to data by business “need-to-know”; (v) assign a unique ID to each person with computer access to data; (vi) not use vendor-supplied defaults for system passwords and other security parameters; track access to data by unique ID; (vii) regularly test security systems and processes; maintain a policy that addresses information security for employees and contractors; and (viii) restrict physical access to Cardholder information. When outsourcing administration of information assets, networks, or data you must require your third party service providers to protect Cardholder information in compliance with Applicable Laws and the Rules. You understand that failure to comply with this Section may result in fines and you agree to indemnify and reimburse Processor and Bank immediately for any fine imposed due to your breach of this Section.
16. Designated Account.
16.1. You will establish and maintain one or more accounts at an ACH receiving depository institution located and headquartered in the United States (as set forth on your Merchant Application, collectively, the “Designated Account”). Merchant will maintain sufficient funds in the Designated Account to satisfy all obligations, including fees, contemplated by this Agreement.
16.2. You must provide 3 Business Days prior written notice to Bank and Processor in the event you decide to change the Designated Account.
16.3. Processor will endeavor to deposit the proceeds of transactions processed by Processor hereunder to the Designated Account as promptly as practicable following receipt of the applicable Transaction Receipt. Funds will be deposited within 3 Business Days following Processor’s receipt of the applicable Transaction Receipt, except for mail order/telephone order and electronic commerce transactions, which may require additional time for deposit.
16.4. You authorize Bank and Processor to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant you provisional credit for any entry. You authorize and appoint Bank and Processor to act as your agent to collect Card transaction amounts from the Card issuing bank.
16.5. As the collecting agent, Bank and Processor in their sole discretion, may grant you provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by Bank and subject to all chargebacks.
16.6. You authorize Processor and Bank to initiate ACH credit and debit entries to the Designated Account, in accordance with this Agreement and the ACH Debit/Credit Authorization set forth in the attached Merchant Application. The ACH Authorization cannot be revoked until all of your obligations under this Agreement are satisfied.
17. Asserted Errors.
17.1. You must promptly examine all statements relating to the Designated Account, and immediately notify Processor and Bank in writing in accordance with Section 35.6 of any errors. Your 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 (iv) an explanation of why you believe an error exists and the cause of it, if known.
17.2. That written notice must be received by Processor and Bank within 90 days after you received the periodic statement containing the asserted error. Your failure to notify Processor and Bank of any error in writing in accordance with Section 35.6 within the 90 days window constitutes a waiver of any claim relating to that error.
17.3. You may not make any claim against Processor or Bank for any loss or expense relating to any asserted error for 90 calendar days immediately following our receipt of your written notice. During that 90 day period, Processor and Bank will be entitled to investigate the asserted error.
18. Reserve Account.
18.1. A non-interest bearing deposit account (“Reserve Account”) has been established and is maintained at Bank or one of its affiliates in the name of Processor. Processor and Bank may apply deposits in the Reserve Account against any outstanding amounts you owe under this Agreement.
18.2. Processor and Bank may fund the Reserve Account in an amount reasonably calculated to be sufficient to satisfy your current and future merchant obligations as determined by Processor and Bank.
18.3. You acknowledge that the Reserve Account contains funds that are commingled with the reserve funds of other merchants and, once deposited in the Reserve Account, are not maintained in a separate account designated in your name.
18.4. Processor or Bank may fund the Reserve Account with funds it would otherwise be obligated to pay you for the purpose of establishing, maintaining or increasing the Reserve Account in accordance with this Section 18, if it determines such action is reasonably necessary to protect its interests under this Agreement.
18.5. Also, Processor and Bank may exercise their rights under this Agreement against the Reserve Account to collect any amounts due to Processor or Bank including, without limitation, rights of set-off and recoupment.
18.6. Funds in the Reserve Account may be held in the Reserve Account for up to 270 calendar days following the later of termination of this Agreement (or such longer or shorter period corresponding to Chargeback-window Rules).
18.7. Following termination of this Agreement, at your written request, and if you do not have any liabilities to Processor or Bank, Processor shall work with you to assess Processor’s and Bank’s remaining exposure under this Agreement and may release funds prior to expiration of the 270-day window if funds are in excess of exposure or any liability.
18.8. The funds you have in the Reserve Account are the property of Processor and may not be accessed or used by you for any purpose, including but not limited to paying chargebacks, fees, fines, or other amounts you owe to any third party or Processor and/or Bank under this Agreement.
18.9. Processor (and not Merchant) shall have ownership and control of the Reserve Account and all funds therein.
18.10. In the event of a bankruptcy proceeding and the determination by the court that this Agreement is assumable under Bankruptcy Code § 365, as amended from time to time, you must maintain funds in the Reserve Account in an amount satisfactory to Processor and Bank.
19. Security Interests
19.1. This Agreement is a security agreement under the Uniform Commercial Code. You grant to Processor and Bank a security interest in and lien upon all funds at any time in the Reserve Account (defined above), regardless of the source of such funds (the “Collateral”).
19.2. This security interests and liens will secure all of your obligations under this Agreement.
19.3. You agree that this is a contract of recoupment and Processor and Bank are not required to file a motion for relief from the automatic stay in any bankruptcy proceeding in order for Processor or Bank to realize on any of the Collateral.
20. Recoupment and Set Off.
Processor and Bank have the right of recoupment and set-off. This means that they may offset or recoup any outstanding/uncollected amounts owed by you from: (i) any other amounts Bank or Processor may owe you under this Agreement; or (ii) any funds in the Reserve Account.
21. Remedies Cumulative.
You acknowledge that in the event of a bankruptcy proceeding, in order for you to provide adequate protection under Bankruptcy Code § 362 to Processor and Bank, you must create or maintain the Reserve Account as required by Processor and Bank, and Processor and Bank must have the right to offset against the Reserve Account for any and all obligations which you may owe to Processor and Bank, without regard to whether the obligations relate to Transaction Receipts initiated or created before or after the filing of the bankruptcy petition. The rights and remedies conferred upon you, Processor and Bank in this Agreement, at law or in equity, are not intended to be exclusive of each other. Rather, each and every right of you, Processor and Bank under this Agreement, at law or in equity, will be cumulative and concurrent and in addition to every other right.
22. Fees and Other Amounts Owed Processor and Bank.
22.1. You will pay Processor fees for services, forms and equipment in accordance with the rates set forth on the Merchant Application.
22.2. All fees will may be netted out from the funds due you attributable to Transaction Receipts presented to Processor and Bank. Processor or Bank may also submit an invoice for payment. Payment of each invoice must occur within 30 Business Days of your receipt thereof, after which it shall accrue interest at the rate of LIBOR plus 5.00% per annum, as calculated by Processor in its reasonable discretion.
22.3. You are also obligated to pay all taxes, and other charges imposed by any governmental authority on the services provided under this Agreement.
22.4. You agree to pay and your account(s) will be charged for any additional fees incurred as a result of your subsequent acceptance of transactions with any Visa, Mastercard, Discover, or American Express product that you have elected not to accept.
22.5. You will immediately pay Processor and Bank any amount incurred by Processor and Bank attributable to this Agreement including but not limited to chargebacks, and fines and penalties imposed by Visa, Mastercard, Discover, or American Express (including but not limited to fines and penalties related to PCI DSS), non-sufficient fund fees, and ACH debits that overdraw the Designated Account or Reserve Account, or are otherwise dishonored except to the extent arising from Processor or Bank’s gross negligence or willful misconduct.
23.1. You represent and warrant to Processor and Bank that all information in the Merchant Application is true, complete and correct.
23.2. You acknowledge that Processor has underwritten your merchant account and entered into this Agreement upon reliance on the information you provided in the Merchant Application.
23.3. You must promptly notify Processor in writing in accordance with Section 35.6 of any changes to the information set forth in the Merchant Application including your use of any service provider with access to merchant systems (i.e. QIR) or Cardholder data (gateway, hosting provider, shopping cart, or wallet). You must also notify Processor in writing in accordance with Section 35.6 if any change in ownership results in any person owning 25% or more of your equity that did not own 25% or more of your equity as of the date of your execution of your completed Merchant Application. The notice must be received by Processor within 10 Business Days of the change by fax, email, or mail.
23.4. Merchant must promptly provide information, reasonably requested by Processor, concerning the Merchant’s business and performance to Processor.
23.5. Bank and/or Processor may immediately suspend this Agreement upon a change to your information in the Merchant Application that Processor or Bank determines materially impacts its exposure hereunder, whether or not such change was communicated to us. In such event, the parties shall promptly cooperate in good faith to amend this Agreement to reflect such change of information.
23.6. You will provide prompt written notice to Processor in the event that you are subject to any of the following:
23.6.1. conviction for a felony offense or any other crime involving moral turpitude;
23.6.2.restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practice on your part;
23.6.3.bankruptcy filing or petition;
23.6.4.any material adverse change in your assets, operations, or condition, financial or otherwise;
23.6.5.any disciplinary action taken by any Debit Network against you or any of your principals.
23.6.6.Federal or state tax lien;
23.6.7. the threat or filing of any litigation against you, the outcome of which reasonably could have a material adverse effect on your continuing operations; or
23.6.8.administrative or enforcement proceeding commenced by any state or federal regulatory agency, including any banking or securities agency or entity operating an EBT Network, that reasonably could have a material adverse effect on your continuing operations.
Merchant shall indemnify Processor, Bank and the Debit Sponsor and their respective affiliates and their respective directors, officers, employees and agents (collectively, in such capacity, the “Indemnitees”) and hold the Indemnitees harmless from any and all claims, liabilities, costs, fees, and expenses, including without limitation attorneys’ fees whatsoever (“Losses”) suffered or incurred by it to the extent such Losses result from or arise out of (i) claims arising out of this Agreement, (ii) the Merchant’s violation of any Applicable Laws or Rules including any fines or penalties issued by any Payment Card Network, and (iii) the processing of transactions at your location.
25. Limitation of Liability.
Any liability of Processor or Bank under this Agreement, whether to you or any other party, whatever the basis of the liability, shall not exceed in the aggregate the difference between (i) the amount of fees paid by you to Processor and Bank during the month in which the transaction out of which the liability arose occurred, and (ii) assessments, chargebacks, and offsets against such fees which arose during such month. In the event more than one month is involved, the aggregate amount of Processor and Bank’s liability shall not exceed the lowest amount determined in accord with the foregoing calculation for anyone month involved. Neither Processor, Bank nor their agents, officers, directors, or employees shall be jointly liable to you under this Agreement or liable for any indirect, special, or consequential damages. Neither Processor nor Bank will be responsible or liable for any damages you incur that arise from a terminal that has been downloaded by a third party.
Processor and Bank will perform all services in accordance with this Agreement. Processor and Bank make no warranty, express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. Processor and Bank disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. No party will be liable to the others for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control and without the, fault or negligence of such party. Neither Processor nor Bank shall be liable for the acts or omissions of any third party.
27. Representations and Warranties.
27.1. You represent and warrant to Processor and Bank at the time of execution and during the term of this Agreement the following:
27.1.1. You are a corporation, limited liability company, partnership or sole proprietorship validly existing and organized in the United States. All information contained on the Merchant Application or any other document submitted to Processor or Bank is true and complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Merchant. You are not engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Merchant Application, unless you obtain the prior written consent of Processor and Bank.
27.1.2. You have never entered into an agreement with a third party to perform credit or debit card processing which has been terminated by that third party.
27.1.3. You will comply with all Applicable Laws and Rules, including without limitation Applicable Laws and Rules regarding the acceptance of a Card in sales transactions submitted hereunder
27.2. Processor represents and warrants to you and you represent and warrant to Processor and the Bank at the time of execution and during the term of this Agreement the following:
27.2.1. It and the person signing this Agreement on its behalf have the power to execute and perform this Agreement.
27.2.2.This Agreement and its performance hereunder will not violate any Applicable Law, or conflict with any other agreement to which it is subject.
27.2.3.There is no action, suit or proceeding pending or to its knowledge threatened which if decided adversely would impair its ability to carry on your business substantially as now conducted or which would adversely affect its financial condition or operations.
28. Third Parties.
28.1. You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions.
28.2. You are responsible for ensuring compliance with the requirements of any third party in using their products. This includes making sure you have and comply with any software updates.
28.3. Processor and Bank have no responsibility for any transaction until that point in time Processor or Bank receive data about the transaction.
28.4. You will notify Processor and Bank immediately in accordance with Section 35.6 if you decide to use electronic authorization or data capture terminals or software provided by any entity other than Processor and Bank or its authorized designee (“Third Party Terminals”) to process transactions.
28.5. If you elect to use Third Party Terminals or payment software provided by others you agree (i) the third party providing the terminals will be your agent in the delivery of Card transactions to Processor and Bank; and (ii) to assume full responsibility and liability for any failure of that third party to comply with the Rules and this Agreement.
28.6. Neither Processor nor Bank will be responsible for any losses or additional fees incurred by you as result of any error by a third party agent, or a malfunction of your credit card terminal, including but not limited to Third Party Terminals.
29. Term and Termination.
29.1. This Agreement shall become effective as of the Effective Date and shall, unless otherwise terminated, expire on the third anniversary thereof (such term, the “Initial Term”). Unless a party provides notice to the other party that it does not wish to renew the Initial Term or any Renewal Term within 60 days of the expiration of the Initial Term or any such Renewal Term, this Agreement shall extend for an additional one year term (each such extension, a “Renewal Term”).
29.2. After the expiration of the Initial Term, this Agreement may be terminated by Merchant immediately upon 60 days’ prior written notice to Processor and Bank.
29.3. Processor and Bank may each terminate this Agreement immediately, with notice to you.
29.4. Visa may limit or terminate this Agreement at any time.
29.5. You acknowledge that Bank is required to report your business name and the name of Merchant’s principals and/or owners to Visa, Mastercard, Discover, and American Express when Merchant is terminated due to the reasons listed in the Rules.
29.6. All your obligations regarding accepted Transaction Receipts will survive termination. You must maintain in the Designated Account and the Reserve Account enough funds to cover all chargebacks, deposit charges, refunds and fees incurred by you for a reasonable time, but in any event not less than the time specified in this agreement. You authorize Processor and Bank to charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Designated Account or Reserve Account is not adequate, you will pay Processor and Bank the amount you owe it upon demand, together with all costs and expenses incurred to collect that amount, including reasonable attorneys’ fees.
30. Compliance with Applicable Laws and Rules.
30.1. You agree to comply with all Applicable Laws and Rules.
30.2. You agree to cooperate at your sole expense with any request for an audit or investigation by Processor, Bank, a Payment Card Network in connection with Cardholder and transaction information security.
30.3. Without limiting the generality of the foregoing, you agree to use information obtained from a Cardholder in connection with a Card transaction solely for the purpose of processing a transaction with that Cardholder or attempting to re-present a Chargeback with respect to such transaction.
30.4. You also agree that you will comply with all Applicable Laws, rules and regulations related to the truncation or masking of Cardholder numbers and expiration dates on Transaction Receipts from transactions processed at your location(s), including without limitation the Fair and Accurate Credit Transactions Act and applicable state laws (“Truncation Laws”). As between you, on the one hand, and Processor and Bank, on the other hand, you shall be solely responsible for complying with all Truncation Laws.
31. Prohibited Transactions.
31.1. You will not accept or deposit any fraudulent or illegal transaction and you may not, under any circumstances, present for deposit directly or indirectly, a transaction which originated with any other merchant or any other source.
31.2. You will not accept a Card to collect a dishonored check, for the purchase of script, or to refinance an existing debt that has been deemed uncollectible. You will not, under any circumstances, deposit telemarketing transactions unless you obtain Bank and Processor’s prior written consent. Such consent will be subject to Bank’s final approval.
31.3. You will not require the completion of any postal instrument on which the Card account number, card expiry date, Cardholder signature, or any other Card account data is in plain view when mailed. You will not add sales or use tax to transactions unless permitted by Applicable Law. If added, it must be included in the transaction amount and not collected separately.
31.4. You will not deposit any transaction for purposes of obtaining or providing a cash advance.
31.5. You will not accept a Card to purchase travelers checks, script, Foreign Currency, Visa Travel/Money Cards, or other prepaid cards redeemable for cash or cash equivalent.
31.6. Money Service Businesses that charge a service fee or commission must include such fee or commission in the transaction amount and not collect it separately.
31.7. Financial institutions performing manual cash disbursement services are subject to all membership requirements, core rules, and operating regulations applicable to manual cash disbursement services, including, but not limited to the Visa prohibition against accepting Visa Electron or Travel/Money Cards for manual cash disbursements.
32. Use of Trademarks
32.1. Your use of Visa, Mastercard, Discover, and American Express trademarks must fully comply with the Rules.
32.2. Your use of Visa, Mastercard, Discover, American Express, or other cards’ promotional materials will not indicate directly or indirectly that Visa, Mastercard, Discover, American Express, or others endorse any goods or services other than their own and you may not refer to Visa, Mastercard, Discover, American Express, or others in stating eligibility for your products or services.
32.3. Merchant is hereby granted a limited non-exclusive, non-transferable revocable license to use Discover brands, emblems, trademarks, and/or logos that identify Discover cards (“Discover Program Marks”).
32.4. You are prohibited from using the Discover Program Marks other than as expressly authorized in writing. You shall not use the Discover Program Marks other than to display decals, signage, advertising and other forms depicting the Discover Program Marks that are provided to you pursuant to this Agreement or otherwise approved in advance in writing. You may use the Discover Program marks only to promote the services covered by the Discover Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that all such uses by you must be approved in advance in writing. You shall not use the Discover Program Marks in such a way that customers could believe that the products or services offered by you are sponsored or guaranteed by the owners of the Discover Program Marks. You recognize that you have no ownership rights in the Discover Program Marks and shall not assign to any third party any of the rights to use the Discover Program Marks.
33.1. You will not disclose to any third party Cardholders’ account information or other personal information except to an agent of yours assisting in completing a Card transaction, or as required by Applicable Law.
33.2. You must destroy all material containing Cardholders’ account numbers, Card imprints, Transaction Receipts, and credit vouchers (except for Transaction Receipts maintained in accordance with this Agreement, Laws. and the Rules).
33.3. Further, you must take all steps reasonably necessary to ensure Cardholder information is not disclosed or otherwise misused.
33.4. You will not use for your own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of Processor and Bank (including without limitation the terms of this Agreement), and will safeguard such information and data by using the same degree of care that you use to protect your own confidential information.
33.5. You authorize Processor and Bank to disclose your name and address to any third party who has a reason to know such information in connection with this Agreement or the transactions contemplated hereunder.
33.6. All promotional materials, advertising displays, emblems, Transaction Receipts, credit memoranda and other forms supplied to you and not purchased by you or consumed in use will remain the property of Processor and Bank and will be immediately returned to Processor upon termination of this Agreement. You will be fully liable for all loss, cost, and expense suffered or incurred by Processor and Bank arising out of the failure to return or destroy such materials following termination.
34. E-Statements and Form 1099
34.1. Upon opening a merchant processing account you will automatically have access to your monthly merchant account statement electronically (an “E-statement”) by viewing it on line.
34.2. Your annual IRS Form 1099K (“Form 1099K”) will be provided in the same manner as your monthly statement.
34.3. This Agreement governs the electronic availability of your E-statement and Form 1099K. You agree to abide by the terms and conditions stated herein, and to access E-statements, Form 1099K’s, as well as all notices and initial and future disclosures regarding your E-statement and Form 1099K online.
34.4. You acknowledge that by the fifth business day of each month, your E-statement will be available online. You will be notified via e-mail of the website where you can access your E-statement and Form 1099K. Your E-statement and Form 1099K will be accessible only through a secure Log In screen which requires the use of a unique User ID and Password. You understand that you will not receive a monthly merchant account statement or annual Form 1099K by U.S. postal mail, and that making your E-statement and Form 1099K available online constitutes Processor’s compliance with delivery of your monthly merchant account statement and annual Form 1099K.
34.5. Your E-statement can be accessed through the E-statement link for six consecutive months from the date the E-statement is first made available. Your Form 1099K can be accessed through the website for 3 years from the date that it is first made available.
34.6. You further agree to receive all initial and periodic account disclosure information in an electronic format. All such disclosures shall be provided in a clear, conspicuous manner that you can print and/or save using the hardware and software specified below.
34.7. You are also entitled to obtain a paper copy of all disclosures, E-statements and Form 1099Ks upon written request, however such a request does not constitute a withdrawal of consent to receive monthly E-statements and electronic disclosures and Form 1099K’s. You will be charged a fee of $2.95 per month for Processor providing paper copies of disclosures and E-statements. Paper copies of 1099K Forms will be provided upon request without charge. On condition that you have elected to obtain paper copies of all disclosures, E-statements and 1099 Forms, you may withdraw your consent to receive such documentation electronically, or change your email address, upon 30 days written notice to Processor. Please note that a withdrawal of consent does not apply to a disclosure, E-statement or electronic Form 1099K that was furnished before the date on which the withdrawal of consent becomes effective.
34.8. In the event you are unable to access any of the information that has been made available by Processor in electronic format, it is your obligation to notify Processor in accordance with Section 35.6 below.
35. General Provisions.
35.1. This Agreement, as amended from time to time, constitute the entire agreement among the four parties hereto , and all prior or other agreements to which Merchant is a party or representations, written or oral, made to Merchant are superseded.
35.2. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
35.3. Any alteration or strikeover in the text of this pre-printed Agreement will have no binding effect, and will not be deemed to amend this Agreement.
35.4. This Agreement may be signed in one or more counterparts, all of which, taken together, will constitute one agreement. This Agreement may be executed by facsimile, and facsimile copies of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals.
35.5. This Agreement may be assigned by Processor or Bank but may not be assigned by Merchant directly or by operation of law, without the prior written consent of Processor and Bank. Any such assignment in breach of this provision shall be null and void, ab initio. If Merchant nevertheless assigns this Agreement without the consent of Processor and Bank, the Agreement shall be binding upon the assignee. Processor and Bank will be immediately informed in writing of any such assignment.
35.6. Any written notice under this Agreement will be deemed received upon the earlier of: (i) actual receipt or (ii) five calendar days after being deposited in the United States mail, and addressed to the last address shown on the records of the sender. Notices to Processor or Bank should be sent (i) by fax to: 888.564.9565; (ii) by e-mail to: email@example.com ; (iii) by mail to: Processor Payments International. 4540 Cooper Road, Suite 200, Cincinnati, Ohio 45242. Notices to Merchant shall be sent to the address provided by Merchant in the Merchant Application.
35.7. You will immediately notify Processor and Bank in accordance with Section 35.6 (i) of any bankruptcy, receivership, insolvency or similar action or proceeding initiated by or against Merchant or any of its principals and (ii) if it could reasonably be expected that any such action or proceeding will be initiated by or against Merchant or any of its principals. You will include Processor and Bank on the list and matrix of creditors as filed with the Bankruptcy Court whether or not a claim may exist at the time of filing. Failure to comply with either of these requirements will be cause for immediate termination or any other action available to Processor and Bank under applicable Rules or Applicable Law.
35.8. Processor, Bank, and you each waives trial by jury with respect to any litigation arising out of, relating to, or in connection with this Agreement.
35.9. Processor, Bank, and you each agrees that any and all disputes or controversies of any nature whatsoever (whether in contract, tort or otherwise) arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from this Agreement, or (iii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement, shall be governed by the laws of the State of New York, notwithstanding any conflicts of laws rules (other than NY General Obligations Law Section 5-1401), and shall be resolved, on an individual basis without resort to any form of class action and not consolidated with the claims of any other parties.
35.10. Processor, Bank, and you agree that all actions arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from this Agreement, or (c) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement shall only be brought in either the courts of the State of New York sitting in Suffolk County or in the United States District Court for the Eastern District of New York, and you hereby irrevocably and unconditionally submit to the personal jurisdiction of those courts in any such action.
35.11. Processor will notify you on your monthly statement of any amendments to this Agreement, including any new or increased fees (collectively an “Amendment”). Except for any fee increases imposed by Applicable Law or any Payment Card Network, you may cancel the Agreement without charge if you object to any Amendment in writing within 30 days after notice thereof from Processor. If you do not object during this 30-day period, you will be deemed to assent to the Amendment.
35.12. If any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement.
35.13. Neither the failure nor delay by Processor, Bank or you to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by the waiving party.
35.14. Processor, Bank and Merchant will be deemed independent contractors and will not be considered agent, joint venture or partner of the other.
35.15. Sections 6.1, 7 (Chargebacks), 16 (Designated Accounts), 18 (Reserve Account), 19 (Security Interests), 20 (Recoupment and Set-off), 22 (Fees and Other Amounts Owed Processor and Bank), 24 (Indemnification), 25 (Limitation of Liability), 32 (Use of Trademarks), 33 (Confidentiality), and 35 (General Provisions) will survive termination of this Agreement.
35.16. Nothing in this Agreement is intended or shall be construed to give any person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy, or claim under or in respect of this Agreement or any provision contained
35.17. This Agreement, as amended from time to time constitutes the entire agreement among the parties hereto (other than any prior agreements to which Merchant is not a party), and all prior or other agreements to which Merchant is a party or representations, written or oral, made to Merchant are superseded.
35.18. By signing the Merchant Application and/or if Merchant submits a transaction hereunder, Merchant will be deemed to have accepted the Terms & Conditions of the Merchant Processing Agreement.