PROVIDER MERCHANT AGREEMENT
ANY SIGNATURE (INCLUDING ANY ELECTRONIC SYMBOL OR PROCESS (I) ATTACHED TO, OR ASSOCIATED WITH, A CONTRACT OR OTHER RECORD AND (II) ADOPTED BY A PERSON WITH THE INTENT TO SIGN, AUTHENTICATE, OR ACCEPT SUCH CONTRACT OR RECORD) HERETO OR TO ANY OTHER CERTIFICATE, AGREEMENT, OR DOCUMENT RELATED TO THIS TRANSACTION, AND ANY CONTRACT FORMATION OR RECORD-KEEPING THROUGH ELECTRONIC MEANS WILL HAVE THE SAME LEGAL VALIDITY AND ENFORCEABILITY AS A MANUALLY EXECUTED SIGNATURE OR USE OF A PAPER-BASED RECORDKEEPING SYSTEM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING THE FEDERAL ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, THE NEW YORK STATE ELECTRONIC SIGNATURES AND RECORDS ACT, OR ANY SIMILAR STATE LAW BASED ON THE UNIFORM ELECTRONIC TRANSACTIONS ACT, AND THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE CONTRARY.
Thank you for selecting RoyalPay, Inc. (“Royal”, “we”, or “us”) to act as payment facilitator to the person, legal entity, or organization (“you”, “your”, or “Sub-merchant”) identified on the application that you completed and signed (including, for the avoidance of doubt, by electronic signature or otherwise electronically indicating acceptance of this Agreement (as defined below) as described above) (the “Sub-merchant Application”) and that we accepted by either by signature or by providing Payment Services (defined below).
The terms and conditions of this Provider Merchant Agreement (the “Provider Merchant Agreement”), along with the Merchant Services Agreement for Sub-merchants attached hereto as Addendum A (the “Sub-merchant Agreement”) and any other agreed upon addenda (each an “Addendum” and collectively, “Addenda”), and the Sub-merchant Application (collectively and as amended from time to time, this “Agreement”), will govern the relationship between you and Acquirer (as defined below) (including all aspects of the Payments Services).
1. Payment Services and Background Information
We are entering into this Agreement with you so that you may accept certain Cards (defined below) from a person or entity to whom a Card is issued or who is authorized to use a Card (a “Cardholder”). In our role as your payment facilitator, we agree to (or to direct our agents, contractors, or designated representatives to) provide you with the services (the “Payment Services”) we view as necessary for the authorization, processing, and settling of transactions (“Transactions”) between you and a Cardholder in which a Cardholder uses a Card to purchase your goods or services and that results in activity on the Cardholder’s account. However, our providing the Payment Services is subject to the terms of this Agreement, the terms of the underlying Product Agreement, Enterprise Care Management Customer Agreement, or other agreement for the purchase of Royal services, as applicable (in each case, including any signed quotes or purchase orders), entered into between you and us or you and one of our distributors (the “Underlying Agreement”), the terms of any business associate agreement between you and us, and all applicable federal, state, and local laws, statutes, ordinances, case law, regulations, and regulatory guidance including, but not limited to, those of the National Automated Clearing House Association and the Federal Trade Commission, as any or all of the foregoing may be amended and in effect from time to time (collectively, “Applicable Law”), and the Operating Regulations (defined below). You agree to abide by, and to use the Payment Services in strict compliance with, Applicable Law, the Security Standards (defined below), and the Operating Regulations.
To serve as your payment facilitator, you understand that we had to enter into agreements with WorldPay, LLC f/k/a Vantiv, LLC (“Processor”) and Fifth Third Bank, an Ohio banking corporation (“Member Bank”). When we say “Acquirer” in this Agreement, it means us, Processor, and/or Member Bank, any of which may exercise rights belonging to Acquirer hereunder. You agree that we may, without amending this Agreement, from time to time contract with another payment processor to provide payment processing functionality and to serve as “Processor” hereunder or another financial institution to provide sponsorship with the Payment Networks and to serve as “Member Bank” hereunder. We discuss our agreements with Processor and/or Member Bank (all such agreements, the “Processing Agreements”) in more detail below.
When we refer to a “Card” in this Agreement, it means an account (or evidence of an account) that you accept as payment for a good or service that you provide, which account (or evidence thereof) is authorized and established between a Cardholder and one of the following: (a) American Express Travel Related Services Company, Inc. and its successors or assigns (“American Express”), (b) Discover Financial Services, LLC and its successors or assigns (“Discover”), (c) Mastercard International Inc. or its successors or assigns (“Mastercard”), (d) Visa USA Inc. and its successors or assigns (“Visa”), (e) and any other card network issuing credit or debit cards in which Royal participates under the Processing Agreements (the parties in (a)- (e), collectively, the “Payment Networks”).
By providing us with advance written notice, Sub-merchant may elect to be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub-merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
By providing us with advance written notice, you may also opt-out of receiving future commercial marketing communications from American Express. Note, however, that you may continue to receive marketing communications while American Express updates its records to reflect your choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
2. Operating Regulations and Related Obligations
This Agreement is subject to all of the Payment Networks’ respective rules, bylaws, programs, and regulations, as the same are amended from time to time, including, without limitation, the provisions thereof governing and/or otherwise applicable to “Merchants,” “Sub-merchants,” and/or “Submerchants” and all other applicable rules, regulations and requirements of Processor, Member Bank, providers, banks, institutions, organizations, associations, or networks which govern or affect any services provided under this Agreement or the Processing Agreements (collectively, the “Operating Regulations”). The Payment Networks have the right to enforce the Operating Regulations. Some of the Operating Regulations for Visa and Mastercard are presently available online at usa.visa.com, www.mastercard.us, respectively. The American Express Merchant Operating Guide is available at: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf. The Operating Regulations, including the American Express Merchant Operating Guide, are included herein by reference. Without limiting the foregoing:
2.1. You may not take any action that could interfere with, or prevent the exercise of, action by any Payment Networks to (a) enforce any of the Operating Regulations, (b) prohibit you and/or us from engaging in any activity such Payment Network deems could injure or create a risk of injury to the Payment Networks, Processor and/or their respective affiliates, including reputational injury, or that could adversely affect such Payment Network or the confidential information thereof.
2.2. If you process, or expect to process, more than $1,000,000 in Mastercard Transactions per year or $100,000 in Visa or Discover Transactions per year (in each case or such other amount identified in the Operating Regulations), you shall immediately inform us and shall, upon Acquirer’s request, enter into a separate agreement or addendum with Processor and Member Bank, in a form satisfactory to Acquirer, as required by the Operating Regulations and/or the Processing Agreements. If you fail to enter into such separate agreement or addendum, Acquirer may immediately terminate this Agreement, with or without notice.
2.3. Subject to Applicable Law and the Operating Regulations, you agree to accept all categories of Visa and Mastercard Cards. You may not engage in, and shall maintain a policy against engaging in, any practice that discriminates against or discourages the use of any Card in favor of another Card.
2.4. Except to the extent permitted by Applicable Law, the Operating Regulations and us, you may not (a) apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”); or (b) set minimum or maximum transaction amounts.
2.5. You must prominently display and disclose to Cardholders at all times (a) your name; and (b) your physical address.
2.6. You must maintain a written refund policy and must disclose such policy to us and your customers at the time of purchase (including customers making purchases online by displaying such policy on your website) consistent with Applicable Law and the Operating Regulations. Any proposed changes to the refund policy must be submitted to us at least thirty (30) days prior to making such change. The amount of any refund may not exceed the original Transaction except to the extent you agree to reimburse a Cardholder for return shipping. Your refund policies for purchases on Cards must be at least as favorable as your refund policy for purchases on any other payment products.
2.7. Subject to Applicable Law, the Operating Regulations, and the Security Standards, you agree to preserve receipts, credit vouchers, and other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer upon request from time to time.
2.8. To the extent that you accept American Express Cards, you agree that you may be converted from the American Express OptBlue Program to a direct Card acceptance relationship with American Express if and when you become a High CV Merchant in accordance with Section 10.5 “High CV Merchant Conversions” of the American Express OptBlue Program Operating Regulations. Upon such conversion, you agree that (i) you will be bound by American Express’ then-current Card Acceptance Agreement and (ii) American Express will set pricing and other fees payable by you for Card acceptance.
3. Processing Agreements
This Agreement is also subject to the terms of each of the Processing Agreements. Without limiting the foregoing, this Agreement does not, and may not, restrict or interfere with the right of Processor and/or Member Bank to terminate this Agreement at any time and/or our right to terminate this Agreement at any time as required by the Processing Agreements. All obligations in or under any of the Processing Agreements that are intended to apply to you (including, without limitation, any obligations of a merchant and/or sub-merchant thereunder) are hereby incorporated into this Agreement and shall apply to you and be your obligations as well. Notwithstanding anything herein to the contrary, you are not a third-party beneficiary of, have no rights under, and may not bring any claim against Processor and/or Member Bank relating to, any of the Processing Agreements.
4. Additional Representations and Responsibilities Applicable to You
4.1. At the time of signing the Sub-merchant Application, and each time you submit a Transaction, you agree with, and represent and warrant to, us, Processor, and Member Bank that: (a) the person signing the Sub-merchant Application has full legal power and authority to enter into this Agreement; (b) you meet the definition of, and have satisfied the requirements applicable to, “Merchants” (taking into account the fact that you are authorized to accept Cards pursuant to this Agreement rather than a merchant agreement), “Sub-merchants”, and/or “Submerchants” under the Operating Regulations; (c) each statement you and/or your principals made on the Sub-merchant Application is and remains true, except as has been disclosed in writing to, and approved by, us; (d) your principal place of business in, is located in, and you have been formed (if you are an entity or organization) under the laws of, the United States; (e) the Transaction is legal and genuine, was conducted in accordance with this Agreement, and arises from a bona fide sale of goods and/or services by you in the United States for which, to the extent required by the Operating Regulations, authorization was obtained; (f) except as otherwise permitted by the Operating Regulations, the goods have been shipped and/or delivered and/or the services performed; (g) and the Transaction represents a valid obligation for the amount submitted and does not involve the use of the Card for any other purpose; (h) the Transaction is not one that you know or should have known to be fraudulent, unauthorized, the product of collusion between the Cardholder and you, or that is otherwise unlawful or impermissible under this Agreement, Applicable Law or the Operating Regulations; (i) all information and data you provided in connection with the Transaction is true, correct, and accurate; (j) you have taken reasonable steps to ensure the validity of the Card and the identity of the Cardholder; (k) the Transaction is not subject to liens, encumbrances, disputes, set-off, and/or counterclaim; (l) the Transaction has not been previously submitted for processing and has not been previously the subject of a Chargeback (as defined below) (in each case, except as the same may be permitted under the Operating Regulations); (m) you have not disbursed or advanced any cash or quasi cash (including, without limitation, gaming chips or money orders) to the Cardholder in connection with the Transaction; (n) the Transaction is not a refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible; (o) the Transaction does not arise from the dishonor of a Cardholder’s personal check; (p) you have the legal right to sell the goods and/or services purchased by Cardholder via the Transaction and are providing, and will continue to provide, high-quality customer service to the Cardholder with respect to such goods and/or services; (q) you have included your “doing business as” name, country location (which name and country is the same as you disclose to Cardholders in connection with a Transaction), the appropriate category code/Card acceptor business code (“MCC”), and your unique merchant identification number (“MID”) in the authorization request/message and clearing record/message for such Transaction; (r) you are not conducting a business prohibited under any of the Operating Regulations and have correctly identified for us the MCC that most closely reflects your primary business in accordance with applicable MCC guidance from the Payment Networks; (s) you have made no representation or agreement for the issuance of refunds except as stated in your refund policy; (t) you are responsible and financially liable for any dispute or customer service-related issue with a Cardholder, for each Transaction submitted to us, and/or for any disputed Transaction or credit; (u) you have made clear to each Cardholder that you are responsible for the Transaction (including the delivery of goods or provision and/or services that are the subject of the Transaction), customer service and/or dispute resolution related thereto; (v) you are not an internet pharmacy, an internet pharmacy referral site, and/or an outbound telemarketer; (w) you have not had a contract to accept Transactions terminated at the direction of a Payment Network or governmental authority; (x) we have the right to set your Card acceptance policies; (y) any Transaction submitted to us to credit a Cardholder’s account represents a refund for a Transaction previously submitted to us; (z) you will not add any tax to Transactions, unless applicable law expressly requires that you impose a tax (any tax amount, if allowed, must be included in the Transaction amount and not collected separately); and (aa) you will not require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed.
4.2. We reserve the right to refuse to process any Transaction if we believe it has been submitted in violation of this Agreement, Applicable Law and/or the Operating Regulations, may be uncollectible from the Cardholder, and/or is likely to result in a reversal of such Transaction pursuant to the Operating Regulations for any reason (a “Chargeback”).
5. Term; Termination
5.1. This Agreement goes into effect commencing on the date this Agreement is accepted by Acquirer either by signature or by the processing of presented Transactions. This Agreement will continue in effect for the duration of the term specified in the Underlying Agreement; provided, however, if the Underlying Agreement does not specify a term, this Agreement will commence with a (1) year term (the “Initial Term”) and will automatically renew for successive one year periods unless we provide you or you provide us with notice at least thirty (30) days prior to the end of the applicable term. If you present, and we elect to process, Transactions beyond the term of this Agreement, then this Agreement will continue to govern such processing activity.
5.2. Notwithstanding the foregoing, we may terminate this Agreement any time by giving at least thirty (30) days’ notice to you.
5.3. Any Payment Network may terminate or limit this Agreement as permitted by the Operating Regulations of such Payment Network.
5.4. In addition to any other termination rights, Acquirer may terminate this Agreement (or, under clause (i) of this Section 5.4, may terminate this Agreement as to any Payment Network) and/or any Addendum, and/or may suspend Payment Services and/or decline to process particular Transactions, immediately and with or without notice, if (a) you fail to strictly comply with any term hereof; (b) Acquirer, in its sole discretion, determines that you and/or any affiliated entity and/or individual are violating the Operating Regulations and/or Applicable Law and/or are engaging in suspicious, wrongful, fraudulent and/or deceptive conduct and/or other conduct creating a risk of harm and/or loss to Acquirer and/or the Payment Networks (and/or we may suspend Payment Services and/or decline to process particular Transactions, with or without notice, during the investigation of any such alleged conduct); (c) you, any guarantor, or any affiliated entity or individual become involved in voluntary or involuntary bankruptcy or insolvency proceedings; (d) Acquirer deems you to be financially insecure; (e) you materially alter your business; (f) there is a material change in your processing activity, either from historical processing activity or the activity projected in the Sub-merchant Application, or you processes a greater concentration of Cards (e.g., American Express, corporate Cards, and/or international cards) than anticipated; (g) Acquirer receives direction from any Payment Network to terminate this Agreement; (h) Acquirer, in its reasonable discretion, determines that circumstances otherwise warrant immediate termination or suspension; (i) any Payment Network takes any action adverse to our registration or re-registration with such Payment Network; (j) any of the Processing Agreements are terminated; or (k) we determine we are required to terminate this Agreement by any of the Processing Agreements or Operating Regulations.
5.5. Your obligations regarding Transactions processed hereunder survive any termination hereof (including any termination by virtue of a non-renewal), including, without limitation, your obligation to pay refunds, Chargebacks, Processing Fees (defined below), indemnified losses, and other amounts payable to Acquirer or the Payment Networks.
6. Procedures for Transactions
6.1. You agree to submit to us for processing all data or information resulting from a Transaction (including any Card Information (defined below)) (collectively “Transaction Information”) you believe to be authorized by a Cardholder. You must submit this Transaction Information to us contemporaneously with the completion of the related Transaction. You must submit such information to us, along with any other information that may reasonably be requested in connection with a Transaction, in such form as we may specify from time to time. You understand that your failure to submit such Transactions on a timely basis may (a) result in increased fees associated with the Transaction(s) (such as higher interchange fees), and you agree to pay any such fees if assessed; and/or (b) compromise your ability to be paid for the Transaction(s). You agree to submit Transactions to us in such a way as to enable us to comply with Chapter 2, Paragraph 2 (Deposits) of Processor’s Operating Guide (as amended) and any similar successor provisions.
6.2. You may not submit for processing: (a) any Transaction that does not involve you and/or that does not originate from an interaction between you and a Cardholder intending to make a purchase from you; (b) any Transaction for which you do not receive an authorization code from us; or (c) any Transaction that results in a transaction outside of your normal course of business as reflected on the Sub-merchant Application. We reserve the right to refuse to process any Transaction if there is reason for Acquirer to believe that it has been submitted in violation of this Agreement.
6.3. Acquirer may impose a cap, either per transaction or on an aggregate basis, on the dollar amount of the Transactions it will process for you that aligns with your projected sales volume, as indicated on the Sub-merchant Application.
7. Settlement Account
7.1. You must maintain an account acceptable to us (the “Settlement Account”) at a bank or depository institution acceptable to us, and you must inform us of the name of such bank or depository institution in writing prior to entering into this Agreement. You may change the Settlement Account only if you give us at least fifteen (15) days’ prior written notice of the proposed change and we approve the change in writing. If you make a change other than in accordance with this Agreement, Acquirer may not be able to settle Transaction proceeds or may misdirect and/or lose such proceeds. You will be solely responsible for the same.
7.2. The Settlement Account is for credits and debits related to Transactions, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to (or permitted to be withheld by) Acquirer and/or the Payment Networks. You authorize Acquirer to initiate debit and/or credit entries to the Settlement Account, including through the Automated Clearing House (“ACH”) settlement process and/or via wire transfer, for any of the foregoing. Such authorization shall remain in place until the later of termination of this Agreement or your satisfaction of all obligations to Acquirer hereunder, as reasonably determined by Acquirer. You must maintain sufficient funds in the Settlement Account to prevent the occurrence of insufficient funds. You are solely liable for all fees, costs, and overdrafts associated with the Settlement Account.
8.1. Except as elsewhere provided herein, after receiving funds for approved Transactions, we will direct Processor and/or Member Bank to provisionally fund the Settlement Account. You agree that settlements under this Agreement will generally be on a net basis (i.e., the Settlement Account will be funded with the settlement funds, if any, that remain after subtracting (a) refunds, Chargebacks, Processing Fees, indemnified losses, and other amounts payable to Acquirer; and (b) any amounts authorized to be retained under this Agreement). But if we fail to subtract such amounts, it does not relieve you of any liability or responsibility for them. You acknowledge that all payments and credits provided to you are provisional and subject to suspension, revocation, Chargebacks, and/or other adjustments in accordance with this Agreement and the Operating Regulations. Acquirer may maintain funds associated with your Transactions in a commingled account. You have no right to such account, the funds therein, and/or interest, if any, obtained thereon.
8.2. For settlement funds that Member Bank and/or Processor intends, or is required by the Processing Agreements, to fund the Settlement Account, you hereby irrevocably authorize us to deliver instructions to Member Bank and/or Processor for the disposition of settlement funds and/or the amount and timing of payments to be made to the Settlement Account, including, without limitation, instructions to (a) withhold from settlement funds any amount that Acquirer determines are entitled to be withheld hereunder (including amounts for the Processing Fees) and (b) pay remaining settlement funds, if any, to the Settlement Account. You also irrevocably authorize us to act as your agent for the purposes of receiving, holding, disbursing, and/or otherwise disposing of settlement funds in accordance with this Agreement.
8.3. Subject to the terms of this Agreement, we will use commercially reasonable efforts to ensure that settlement funds from a Transaction are funded to the Settlement Account on the first business day after you submit the related Transaction Information to us.
8.4. You acknowledge and agree that: (a) Royal, Processor, and Member Bank shall have no liability or responsibility for delays in the transmission and/or deposit of funds and/or your failure to receive funds where that delay or failure is in any way attributable to you or any third party, including third-party banks, depository institutions, or the Payment Networks; (b) this Agreement (and not marketing and/or other materials) governs the transmission and/or deposit of funds, including the time thereof; (c) any fixed timelines with respect to the same are subject to the other terms hereof; and (d) we are not liable or responsible for any delays in the transmission or deposit of funds due or your failure to receive funds where that delay or failure is in any way attributable to Processor or Member Bank.
8.5. You agree to reimburse Acquirer upon demand for any misdirected deposits, duplicate deposits, and/or inadvertent overpayments into any of your bank accounts. In addition, Acquirer may deduct such amounts by ACH debit and/or other means from your Settlement Account and/or the Reserve Funds.
9. Marks and Intellectual Property
9.1. You shall display the Payment Networks’ respective logos, marks, advertising and promotional materials only in accordance with the Operating Regulations and cease displaying such logos, marks, advertising and promotional materials in accordance with the Operating Regulations, including upon termination of this Agreement or at the direction of any Payment Network. You acknowledge that all such logos, marks, advertising, and promotional materials used by any Payment Network are the sole and exclusive property of such Payment Network. You agree not to challenge their ownership of such property and that they may prohibit your use of such property at any time and for any reason, with or without notice. Further, from time to time, we may provide you with materials that include our name, logo, trademarks, and/or service marks. You shall only use such materials as expressly permitted by us, and shall return to us such materials upon the termination of this Agreement for any reason and/or upon our earlier request at any time. You shall not at any time represent, directly and/or by implication, that your goods and/or services are endorsed, sponsored, and/or guaranteed by Acquirer or any Payment Network. This Agreement shall not confer on you any license or proprietary rights regarding any patent, trademark, copyright, trade secret, and/or intellectual property of Acquirer or any Payment Network.
9.2. Acquirer may require any changes to your website that it deems necessary and/or appropriate to ensure that you remain in compliance with the Operating Regulations governing the use of the intellectual property described in Section 9.1.
9.3. All of our computer programs, trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Payment Services are and will remain our sole and exclusive property. We own all rights, title, and interest, including all intellectual property rights, in and to any refinements or improvements to the same, even when such refinements or improvements result from your request.
10. Assignment; Successor Responsibility
Without your consent and/or the consent of any guarantor: (a) Member Bank may assign this Agreement; (b) Processor may assign this Agreement to another transaction processor approved by Member Bank; and/or (c) we may assign this Agreement to another payment facilitator or to Processor. You may not assign this Agreement without our express written consent, except as otherwise provided in the Processing Agreements. For purposes of this Agreement, it shall be deemed an assignment of this Agreement by you if there is any issuance, sale and/or transfer of your equity interests (in a single transaction or series of transactions) such that the equity holders listed in the Sub-merchant Application collectively hold less than 50% of your equity after such transaction(s). This Agreement will be binding on each party’s successor(s) and/or permitted assigns.
11. Data Security
11.1. You acknowledge that it is your responsibility to abide, and you agree to abide, by the following (collectively the “Security Standards”): rules, regulations, and/or standards adopted or required by the Payment Networks relating to data security and the protection of Card Information, including, without limitation, Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security Program and Payment Application Best Practices, Mastercard’s Site Data Protection Program and POS Terminal Security Program, American Express’s Data Security Operating Policy, Discover’s Information Security & Compliance Program, and/or any successor rules, regulations and/or standards, in each case, as any of the same may be amended from time to time. You also agree to provide proof of compliance to Acquirer or any Payment Networks as required and/or upon request, including, without limitation, by attestation and/or an examination of your systems to validate such compliance. The costs of any such attestation and/or examination shall be your sole responsibility.
11.2. Without in any way limiting the obligations imposed by Section 11.1, you will (a) secure and keep confidential Card Information and Transaction Information in strict compliance with the Security Standards and Applicable Law, and will not use, disclose, or distribute any such information except as permitted by the Security Standards or Applicable Law and, further, may not disclose or distribute such information to any third party other than a third-party service provider described in Section 11.3; and (b) maintain systems and media containing any Card Information or Transaction Information in a secure manner that prevents unauthorized access to or disclosure of any such information.
11.3. To the extent you use any third party to process, store, receive, transmit, and/or otherwise have access to Card Information and/or Transaction Information, you assume full responsibility and liability for such third-party’s compliance with this Agreement, the Security Standards, and Applicable Law. We, Processor, and Member Bank shall have no liability for the acts or omissions of such third parties, which are your sole responsibility and liability. You further agree to notify us of the identity of all such third parties and to ensure that such third parties are properly registered, if required to be so, with the Payment Networks and are compliant with all applicable Security Standards. Acquirer further reserves the right to require any such third parties to undergo testing, approval, and certification by Acquirer, and to terminate any such third parties’ access to or ability to integrate with any of Acquirer’s respective systems at any time.
11.4. If you discover and/or any time have reason to suspect that an event has occurred that results, or could result, directly or indirectly, in the unauthorized access or disclosure of Transaction Information and/or Card Information (each a “Data Compromise Event”), you must immediately notify us and fully cooperate, at your expense, with all forensic examinations and remediation and mitigation procedures requested by any Payment Network or Acquirer. Furthermore, if you are undergoing a forensic investigation at the time you sign the Sub-merchant Application, you must fully cooperate with the investigation until completed. The costs of such examinations, processes, and any notification of Cardholders pursuant to Applicable Law or the Operating Regulations are exclusively your responsibility.
11.5. You acknowledge that failure to comply with the Security Standards or the occurrence of any Data Compromise Event on your systems or those of any third party referenced in Section 11.3 may result in liability assessments (sometimes referred to as “penalties” or “fines”) by the Payment Networks, legal liability, and expenses (including consultant, examiner, and/or attorney fees). Without limiting your liabilities under any other provision hereof, you agree to fully indemnify us, Processor, and Member Bank and their respective officers, directors, employees, and agents, and to hold them harmless from any such costs, liability assessments, legal liabilities, and expenses, as well as the costs and fees associated with any claims or demands made by Cardholders, card issuers, Payment Networks, governmental agencies, and/or any third parties associated with your failure, and/or the failure of any third party referenced in Section 11.3, to comply with the Security Standards or the occurrence of any Data Compromise Event.
12. Authorized Users
12.1. To the extent you are granted electronic access to any of Acquirer’s systems or portals, you are responsible for (a) ensuring that only authorized users of such systems or portals access the same; (b) keeping all logins, user names, and passwords confidential; and (c) promptly notifying us of any unauthorized access of such logins, user names, or passwords; and (d) all actions taken by anyone using such access, logins, user names, or passwords, even if such you did not authorize such actions.
12.2. Without limiting Section 12.1, you may not, and shall ensure that none of your authorized users: (a) access or use the Payment Services, or any services provided by Processor, for any purpose other than your internal business purposes and as permitted hereby, (b) modify, reverse engineer, disassemble, and/or decompile any part of the Payment Services, or any services or materials provided by Processor, (c) knowingly transmit any data that contains software viruses, time bombs, worms, Trojan horses, spyware, disabling devices, malicious code, or other harmful or deleterious computer code, files and/or programs to or through the Payment Services, or any services provided by Processor, (d) knowingly interfere with or disrupt the servers or networks connected to or providing the Payment Services, or the services of Processor, (e) remove, change or obliterate the copyright, trademark or other proprietary protection legends or notices that appear in connection with access to or use of Payment Services, or services or materials provided by Processor, and/or (f) copy, re-sell, transfer, republish, download, frame or transmit the Payment Services, or any services or materials provided by Processor, including in order to act as a consultant for any third party, or otherwise allow any third party to use or access the Payment Services and/or any services provided by Processor.
12.3. You are responsible for the acts and omissions of your owners, employees, consultants, contractors, agents, officers, and directors, including any unauthorized access to or use of the Payment Services. Without limiting the preceding sentence, such acts and omissions will be viewed as your acts and omissions for purposes of determining if you have breached this Agreement and/or a violated the Operating Regulations and the availability of any related right or remedy available to Acquirer.
13. Pricing and Payment
13.1. You agree to pay (i) any and all fees and charges associated with Transactions between you and any Cardholder irrespective of (a) whether such fees and charges originate from Processor, Member Bank, any Payment Network, or any third-parties or (b) whether such fees and charges are directly attributable to Transactions involving you or whether such fees and charges are billed to Royal on a consolidated basis in our role as your payment facilitator and then allocated to you based on your share of the total transaction volume for all sub-merchants of Royal and (ii) any and all additional fees and charges set forth in the Underlying Agreement, as they may be modified or amended from time to time as permitted hereunder (the “Processing Fees”). The Processing Fees are qualified by the other terms of this Agreement. You agree that the foregoing and such Underlying Agreement, taken together, constitutes an adequate fee disclosure for purposes of the Operating Regulations and Applicable Law.
13.2. You are responsible for fines and indemnified losses charged by or payable to third parties (including Member Bank, Processor, and/or any Payment Network), in either case related to or associated with your use of the Payment Services, your Transactions, and/or your processing activity. Acquirer may at any time, with or without notice, may collect such amounts (i) pursuant to an invoice we deliver to you; (ii) by demanding immediate payment; (iii) by debiting the Settlement Account and/or any Reserve Funds (defined below); and/or (iv) by subtracting such amounts from future settlements. If you do not pay an amount payable to Acquirer or the Payment Networks when due, such amount will accrue interest at the percentage specified in the Underlying Agreement, as applicable; provided, however, that if no percentage is specified in the Underlying Agreement, such amount will accrue interest at the lesser of 1.5% per month or the highest amount permitted by Applicable Law.
13.3. The Processing Fees are based upon assumptions (a) regarding your anticipated volume, average transaction size, card acceptance, and method of doing business and (b) that the rates and amounts of Third-Party Charges remain the same. If any of these assumptions prove inaccurate, we may adjust your Processing Fees without prior notice. Any such adjustments shall be in addition to, and not in lieu of, any other remedies available to Acquirer hereunder. Even if this Agreement does not require that we give you advance notice of an amendment and/or other change to the Processing Fees, we still plan to give you notice (though it may come after such amendment and/or other change).
13.4. Processing Fees may be amended at any time by Acquirer, with or without notice, as a result of amendments or changes made by the Payment Networks or parties other than us. In addition, Acquirer may amend or otherwise change the Processing Fees by giving you thirty (30) days’ notice of any such amendment and/or change (including notice via your processing statement); provided, however, that you may terminate this Agreement, without penalty, in response to such amendment and/or change (not attributable to the Payment Networks and/or other third parties) by providing us with written notice between the date of receiving notice of such amendment and/or change and the date on which it is effective.
You are solely responsible for the calculation, collection, and remittance of any sales tax imposed by any government authority in connection with the provision of your goods and/or services. Unless you are otherwise exempt (and can prove such exemption to Acquirer’s satisfaction), you agree to pay all taxes imposed on the Payment Services, equipment, and/or other property provided to you pursuant to this Agreement.
You have full liability and responsibility for, and must immediately pay, all Chargebacks and any and all fees, charges, and liability assessments related to Chargeback(s) associated with your Transactions. If you have reason to dispute or respond to a Chargeback, then you must do so by the date provided on the applicable Chargeback notice. We, Processor, and Member Bank have no independent obligation to investigate or attempt to obtain a reversal or adjustment of any Chargeback. If Acquirer, in its sole discretion, determines that you are experiencing excessive Chargebacks, then it may (a) with notice, increase the Processing Fees; (b) without notice, establish or increase the Reserve Funds; (c) without notice, suspend the Payment Services; and/or (d) without notice, terminate this Agreement. You may not ask or require that a Cardholder waive a right to dispute a transaction.
16. Indemnification and Attorneys’ Fees
16.1. You must indemnify and hold us, Processor, and Member Bank, along with each of its or their respective agents, officers, directors, employees, and affiliates, harmless from and against any and all claims, demands, damages, judgments, liability assessments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred by any of them arising out of: (a) your acts and/or omissions, and/or those of your owners, employees, consultants, contractors, agents, officers, and directors, whether or not you authorized those acts or omissions (including, without limitation, any obligation we have to indemnify Processor and/or Member Bank in respect of any such acts or omissions, whether such obligation arises under the Processing Agreements or otherwise); (b) your Transactions or use of the Payment Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Payment Networks); (c) your breach of this Agreement or violation of Applicable Law or Operating Regulations; (d) the state or configuration of your equipment or software and/or equipment or software we make available to you (but only to the extent not used in accordance with this Agreement and our other agreements with you); and/or (e) your use of third-party equipment, software, services and/or service providers (including software of a third party you access through equipment we make available to you and including gateways, value added resellers, and/or independent software vendors). Without limiting the foregoing, if we, Processor, and/or Member Bank are named as a party to any claims, litigation, proceeding, arbitration, and/or other legal process commenced by a third party arising out of or relating to any act or omission by you, you must indemnify, protect, and hold harmless us, Processor, and Member Bank with respect to such any and all liability associated with such claims, litigation, proceeding, arbitration, and/or other legal process, and shall pay all costs, expenses, and attorneys’ fees incurred or paid in connection therewith.
16.2. You agree to reimburse us for all attorneys’ fees and/or other costs incurred by us in enforcing any provision of this Agreement against you, or in obtaining any sums due under this Agreement from you, regardless of whether those fees in connection with a court proceeding, private dispute resolution, and/or outside a formal dispute resolution proceeding.
17. Obligation to Report Statement Discrepancies
17.1. You shall be solely responsible for reviewing your statements from Acquirer (including statements provided online) and for reporting to us in writing, within thirty (30) days of your receipt of any statement, any problems and/or irregularities with your statements—including, without limitation, underpayments, overpayments, and/or other discrepancies of any items, fees, charges, and/or liability assessments reflected on such statements and/or related to the period covered by such statement, including, without limitation, discrepancies between the volume and/or value of Transactions that you actually processed during the period indicated by the statement. Statements provided online shall be deemed received the first day they are available online.
17.2. YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE, PROCESSOR, NOR BANK SHALL BE LIABLE AND/OR OTHERWISE RESPONSIBLE TO YOU, AND SHALL HAVE NO OBLIGATION TO REIMBURSE YOU, FOR ANY UNDERPAYMENT TO YOU OR OTHER DISCREPANCY THAT IS NOT REPORTED TO US IN WRITING WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE APPLICABLE STATEMENT.
18. Limitation of Liability
WITHOUT LIMITING LIMITATION OF LIABILITY SET FORTH IN THE TERMS, WE, PROCESSOR, AND BANK SHALL NOT BE LIABLE FOR (A) THE DECLINE OF A TRANSACTION, EVEN IF SUCH DECLINE WAS WRONGFUL; (B) ANY LOSS CAUSED BY A TRANSACTION DOWNGRADE, REGARDLESS OF THE CAUSE; AND/OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION.
19. Underwriting, Monitoring, and Auditing Rights
19.1. You, on behalf of yourself and your principals and beneficial owners, acknowledge and agree that Acquirer may request and obtain external reports, including but not limited to credit reports from credit reporting agencies and any other background information relating to banking relationship and financial history, in connection with the consideration of the Sub-merchant Application or at any time thereafter. You further acknowledge that the Sub-merchant Application may be rejected by Acquirer and that Acquirer shall not have any liability associated with such rejection.
19.2. You agree to promptly furnish Acquirer with information and documents reasonably necessary to evaluate your financial condition and/or business practices upon request. Furthermore, with notice and during your normal business hours, any of Acquirer’s respective representatives may visit your business premises to examine your operations, activities, and/or books and records to the extent necessary to evaluate your compliance with this Agreement and/or to the extent necessary for us to meet our obligations under the Processing Agreements and/or for Acquirer to meet its obligations under the Operating Regulations.
19.3. You agree to provide us advance written notice of any actual or anticipated (a) material change in your products and/or services, business practices, and/or the manner in which you accept Cards; (b) change to your legal form, legal name, trade name, and/or mailing address; and/or (c) changes to anticipated Transaction amounts and/or volume.
19.4. You agree to provide any information (a) Acquirer believes is necessary to meet its obligations under, inter alia, United States anti-terrorism or anti-money laundering laws (including “know your customer” information) or (b) we believe we are required to diligence, obtain and/or verify under any the Processing Agreements and/or under the Operating Regulations (including the names and country of domicile of each of your principals and reports of all Transactions). You must provide such information to the requesting party within twenty-four (24) hours of a request for the same. You must also, on an ongoing basis (and at least quarterly), provide us with the each of your office addresses, uniform resource locaters, and/or “doing business as” names, as well as complete descriptions of all goods and/or services you provide.
You acknowledge that, under the Operating Regulations of the Payment Networks, some of your activity and/or terminations of Sub-merchant processing agreements may result in Acquirer’s reporting Sub-merchants and their principals to the Payment Networks for inclusion on a terminated merchant file (e.g., the “MATCH” list). You, on behalf of yourself and your principals, hereby consent to such reporting and any other action by us that we believe is required by the Operating Regulations and waive any claim related to the same, even in instances where you or your principals believe that reporting to have been improper or in error.
20. Reserve Funds and Security Interest
Acquirer may require at any time (including at the time of termination of this Agreement) that funds be placed in one or more non-segregated, non-interest bearing accounts established by Acquirer in accordance with this Agreement (the “Reserve Funds”). The purpose of the Reserve Funds is to ensure that you satisfy your obligations or anticipated obligations hereunder. That includes, without limitation, your obligations for refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer or the Payment Networks. Acquirer may increase at any time at any time (including at the time of termination of this Agreement) the amount of Reserve Funds. Acquirer has complete discretion regarding Reserve Funds-related decisions.
Reserve Funds may be funded by (a) debiting the amount of Transactions that would otherwise be payable to you under this Agreement; (b) demanding funds from you; and/or (c) debiting the Settlement Account. If we, Processor, and/or Member Bank makes a demand for funds pursuant to this Section 21.2, you must transfer the amount of funds demanded within eight (8) business hours of receipt of such demand. Reserve Funds may be used at any time to satisfy your obligations to Acquirer under this Agreement, including, without limitation, refunds, Chargebacks, Processing Fees, indemnified losses, and/or other amounts payable to Acquirer and/or the Payment Networks. Acquirer may continue to hold Reserve Funds until the one-year anniversary of the later of termination of this Agreement or the last processing activity that occurs on your account (including any Transaction or Chargeback) or for such longer time as Acquirer reasonably determines is necessary to satisfy your current or anticipated obligations under this Agreement, the Operating Regulations, and/or Applicable Law. Until the expiration of that period, you have no ownership interest in and/or right to the Reserve Fund, which are the exclusive property of Acquirer. You also have no right to receive interest on any funds maintained in any of the Reserve Funds, which is also the exclusive property of Acquirer. Without in any way limiting the previous two sentences, and merely as an additional form of security, you hereby further grant us a security interest in (i) the Reserve Funds and all funds therein; and (ii) the proceeds associated with any Transaction. We may enforce our security interest(s) without notice or demand. The security interest(s) granted under this Agreement will continue after termination of this Agreement until you satisfy all your obligations to Acquirer, as reasonably determined by us. You further agree to execute and deliver such instruments and documents as may be reasonably requested to confirm and perfect the security interest(s) granted by this Agreement.
21. Holdback Rights
This section allows us to withhold funds from you in some situations. If Acquirer, at any time during the term of this Agreement, determines in its commercially reasonable discretion that it may be prudent or necessary to do so (a) as a result of any unusual, suspicious, and/or risk-exposing activity (including, without limitation, money laundering, invalid sales transactions, counterfeit transactions, altered and/or duplicate transactions, activity related to a suspected Data Compromise Event or other breach of Security Standards, and/or excessive Chargebacks) and/or (b) to enable us and/or Processor to exercise our or its rights under, and in accordance with, any of the Processing Agreements, then Acquirer may, without notice, hold funds otherwise payable to you for such period as Acquirer, in its commercially reasonable discretion, deems necessary, to provide security against liability for such activity, plus other costs or liabilities reasonably anticipated to be due to Acquirer related to the same. Without limiting any other term hereof, Acquirer may use funds held pursuant to this Section 22 to fund the Reserve Funds.
22.1. Acquirer makes no representations or warranties regarding the compatibility of third-party products and/or services with Acquirer’s systems. To the extent that you use any third-party gateway or similar software, services, and/or hardware to connect to Acquirer’s systems, you understand that a separate agreement may be required with the third-party provider in order to obtain such software, services, and/or hardware, and additional fees may be charged by the third-party provider in addition to the fees charged by Acquirer.
22.2. You are responsible for any fines, penalties, claims, demands, and/or new and/or increased fees (including interchange) that result from your (a) use of value added reseller, independent software vendor, gateway, point of sale systems, and/or any other software, hardware, or service not provided by us; (b) failure to maintain the most current version of software that has been certified by us, Processor, and Member Bank as being compatible with their respective systems; and/or (c) misuse of software that has been certified as compatible with Acquirer’s systems. Notwithstanding anything in this Section 23.2, you may not use any third-party point of sale systems, and/or any other device and/or method used for the purpose of obtaining credit and/or debiting a designated account (including any Card), without our the prior written consent.
22.3. If we make any equipment, other services, and/or software available to you, you agree pay the stated charges therefor, along with all applicable taxes and shipping costs. You also and agree that Acquirer may, without limitation, deduct such sums from the Transaction proceeds settled to the Settlement Account.
23. Confidentiality and Use of Data
23.1. You shall use information related to a Cardholder or Card in connection with a Transaction (including, without limitation, customer names, addresses, zip codes, card numbers, expiration dates, security codes, PIN numbers, credit limits, and/or account balances) (“Card Information”) and Transaction Information solely to receive Payment Services under this Agreement. Under no circumstances may you sell Card Information or use it for any purpose other than as expressly contemplated by this Agreement.
23.2. Except in response to a validly served subpoena, you will not provide Card Information and/or Transaction Information to anyone except to Acquirer, Payment Networks, and/or your agents that have been approved by Processor and are properly registered with Payment Networks for purposes of assisting you in completing Transactions. If you receive a subpoena that encompasses Card Information and/or Transaction Information, you will notify us in writing of your receipt of such a subpoena as soon as practicable.
23.3. You agree to keep confidential and not to disclose: (a) the terms and conditions of this Agreement; (b) the Processing Fees; (c) Card Information and/or Transaction Information; (d) any other non-public information regarding any aspect of Acquirer’s businesses made available to, or encountered by, you under the auspices of this Agreement (“Acquirer Confidential Information”); and/or (e) other information we are required to keep confidential. Acquirer Confidential Information shall include, but shall not be limited to, information regarding pricing techniques, fees, equipment, services, processes, procedures, marketing, and/or business development plans, technical information, personnel information, and/or trade secrets.
23.4. Should you receive any Acquirer Confidential Information, you agree to protect such confidential information equally to your own confidential information and to take no less than reasonable care to prevent its misuse or disclosure. You agree to return Acquirer Confidential Information either upon the termination of this Agreement for any reason, and/or upon request from Acquirer.
23.5. You must keep confidential your MID. As a security measure, you may be requested to identify yourself by your MID when contacting Acquirer. Any person correctly identifying your MID is presumed by Acquirer to have authority to make changes to your account. You are solely liable for any damages you sustain as a result of the disclosure of your MID to any unauthorized persons.
23.6. To the extent permitted by Applicable Law and the Operating Regulations, you authorize Acquirer to disclose information regarding you to any third party who has asked for such information, and whom Acquirer determines has a legitimate business need to know such information to facilitate the purpose of this Agreement. You authorize Acquirer to disclose Card Information to the Payment Networks as necessary to facilitate the provisions of Payment Services under this Agreement. You further authorize Acquirer to provide information about you in response to requests from any government body or regulatory authority.
24. Amendments and Waiver
We may amend, revise, change, or supplement this Agreement by giving you thirty (30) days’ notice of any such amendment, revision, change, or supplementation; provided, however, that you may terminate this Agreement, without penalty, in response to such amendment, revision, change, and/or supplementation (not attributable to changes to the Operating Regulations and/or Applicable Law) by providing you with written notice between the date of receiving notice of the amendment, revision, change, and/or supplementation and the effective date of such amendment, revision, change, and/or supplementation. Any amendment, revision, change, or supplementation attributable to changes to the Operating Regulations or Applicable Law may be made on less than thirty (30) days’ notice and shall not be grounds for termination of this Agreement.
25. Notices; Electronic Notice
All notices under this Agreement to us, Processor, and/or Member Bank must be in writing and delivered via hand delivery or via a carrier that provides a tracking number and/or other proof of delivery. Notices to us, Processor, and/or Member Bank must be sent to the addresses respectively designated on the Sub-merchant Application for those entities, and will be deemed effective upon receipt. Acquirer may provide you with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to Processing Fees, by any of the following means: (a) via mail at the address designated in the Sub-merchant Application (or such other address as you may provide); (b) electronically, through a Sub-merchant portal or through any other means of electronic communication maintained by Acquirer which you may access; and/or (c) electronically, via any email address designated by you. You expressly consent to receive documents and notices electronically and agree to maintain access to the Internet for so long as this Agreement is in effect and until all of your obligations hereunder have been satisfied in full, as reasonably determined by us. Notices delivered through any of the foregoing means shall include notice provided on statement messages appearing on periodic processing statements.
While WorldPay, LLC serves as “Processor” under this Agreement, Processor’s contact information is 8500 Governors Hill Drive, Symmes Township, OH 45249-1384. You may contact Processor at such address if you have questions or concerns for Processor. We have entered into this Agreement on behalf of and as agent of Processor, in addition to on our own behalf.
26. Dispute Resolution and Claims Limitation
YOU AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. YOU AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE AND/OR ARBITRATI ON A CLASS-WIDE BASIS. YOU MAY NOT BRING A CLAIM ARISING OUT OF AND/OR RELATED TO THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER THE UNDERLYING CAUSE OF ACTION FIRST ACCRUES.
27. Continuing Guaranty
As a key inducement for our entering into this Agreement, the Guarantor(s) who signed on the Guarantor signature line of the Sub-merchant Application agree to be bound by all the terms and provisions of this Agreement the same as Sub-merchant. Guarantor understands that this Agreement may be renewed, extended, and/or modified from time to time (including with regard to fees and to Sub-merchant’s payment obligations) without notice to Guarantor, even if any of the foregoing increase Guarantor(s)’ obligations hereunder. Guarantor(s), individually and severally, also unconditionally and personally guarantee the Sub-merchant’s full performance of its obligations under this Agreement. Guarantor(s) understand and agree that Acquirer may proceed directly against Guarantor(s) without first exhausting remedies available against Sub-merchant. Moreover, in the event Guarantor(s) is or are natural person(s), this guaranty is continuing and shall survive the death of Guarantor(s) and be binding on Guarantor(s)’ heirs and estate, without any diminution of the rights of Acquirer with respect to the guaranty. To the fullest extent permitted by law, Guarantor(s) waive all rights and defenses available to Guarantor(s) respecting the enforcement of this guaranty.
The rights and remedies conferred upon Acquirer under this Agreement are not intended to be exclusive of each other or of any other rights or remedies belonging to Acquirer under this Agreement, at law, or in equity. Rather, all such rights and remedies are cumulative. Processor and Member Bank are third-party beneficiaries to this Agreement and may enforce the terms hereof, including those rights and privileges belonging to “Acquirer.” There are no other third party beneficiaries to this Agreement. We, Processor, and/or Member Bank shall not be liable for any delay or inability to perform caused by acts of God, natural disasters, wars, acts of terrorism, civil disturbances, governmental actions, strikes, telecommunications failures, equipment failures, network failures, and/or other causes beyond such person’s reasonable control. To the extent there is an irreconcilable conflict between any term of this Agreement and the Operating Regulations, the Operating Regulations shall govern. To the extent there is an irreconcilable conflict between any term of this Agreement (excluding the Sub-merchant Agreement for purposes of this sentence) and the Sub-merchant Agreement, the Sub-merchant Agreement shall govern. Except as elsewhere provided herein, this Agreement may be modified only in a writing signed by all parties hereto. If any provision of this Agreement is deemed unlawful or unenforceable, then it shall be reformed only insofar as necessary to make it lawful and enforceable, or if it cannot be so reformed, it will be severed from this Agreement without any effect on the remaining terms of this Agreement, which shall continue in full force and effect. Termination of this Agreement shall not terminate the obligations and rights of the parties that, by their nature or their terms, are intended to survive and/or be perpetual of irrevocable. References to “Agreement” or “Addenda” mean this Agreement or the Addenda hereto (respectively) as amended from time to time in accordance herewith. We may issue press releases regarding the parties’ relationship hereunder, after this Agreement becomes effective. You not make any such public disclosure without our prior written consent.
MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS
This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Agreement”) is made among WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively, “Acquirer”) and Sub-merchant (as defined in the Provider Merchant Agreement (as defined below)) in connection with the agreement between Sub-merchant and RoyalPay, Inc. (“Provider”) to which this Agreement is attached as Addendum A (the “Provider Merchant Agreement”). Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Mastercard International Inc. ("Mastercard”), VISA U.S.A. Inc. (“VISA”), Discovery (“Discover”), and certain similar entities (collectively, “Association”), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Sub-merchant Responsibilities.
Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. The websites are: https://usa.visa.com/support/small- business/regulations-fees.html and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Sub- merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade Commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC). For purposes of this section, Agents include, but are not limited to, Sub- and/or equipment providers.
If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub-merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.
2. Sub-merchant Prohibitions.
Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed; ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (Any tax amount, if allowed, must be included in the transaction amount and not collected separately); iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant; v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant directly to the Sub-merchant-Owned Designated Account. Acquirer will debit an account designated by Provider (“Provider Designated Account”) for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
4. Term and Termination.
This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Associations agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.
5. Limits of Liability.
Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then-current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub-merchant.
This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.