Terms & Conditions

This Merchant Processing Agreement (this “Agreement”) is for merchant card payment processing services among the MERCHANT (“Merchant”) that signed the Merchant Application, the sponsoring bank that is settling Transactions for Merchant as identified in the Merchant Application or Merchant’s onboarding record, whether Commercial Bank of California, Chesapeake Bank, or another sponsor bank designated by ISO from time to time (“Bank”), and Frame Payments, Inc. (“ISO”). Bank and ISO are collectively referred to as “Acquirer,” except where this Agreement assigns a responsibility specifically to Bank or ISO. The parties agree as follows. Bank is the principal party to this Agreement, and Merchant’s acceptance of Card Brand products is extended by Bank. Bank has delegated the provision of the Services to ISO, except as expressly set forth in this Agreement, and Bank remains responsible for and in control of ISO’s performance of the Services. 

DEFINITIONS

1.01 “ACH” means the Automated Clearing House paperless electronic funds transfer (EFT) system controlled by the Federal Reserve Board and governed by the National Automated Clearing House Association (“Nacha”).

1.02 “Affiliate” means a Person that, directly or indirectly, (i) owns or controls a party to this Agreement or (ii) is under common ownership or control with a party to this Agreement.

1.03 “Agreement” means the Merchant Application and these Terms and Conditions, and any supplementary documents referenced herein, and schedules, exhibits and amendments to the foregoing.

1.04 “American Express” means the Cards bearing the Marks of, and Card Brand operated by, American Express Travel Related Services Company, Inc., or its Affiliates.

1.05 “Authorization” means a computerized function or a direct phone call to a designated number to obtain approval from the Card Issuer to charge the Card for the amount of the sale in accordance with the terms of this Agreement and the Rules.

1.06 “Card” means (i) a Credit Card, (ii) a Debit Card; or (iii) any other valid credit card or debit card; such as but not limited to a prepaid card, gift card or stored value card, or other payment device approved by Acquirer and accepted by Merchant.

1.07 “Card Brand” means Visa U.S.A., Inc., Mastercard International, Inc., American Express Travel Related Services Company, Inc., DFS Services LLC (the owner of Discover) and their Affiliates, or any other payment networks issuing Credit Cards or Debit Cards, approved by Acquirer that provide Cards accepted by Merchant.

1.08 “Card Issuer” means the financial institution or company which has provided a Card to a Cardholder.

1.09 “Card Not Present” or “CNP” means that an Imprint of the Card is not obtained at the point-of-sale or it is an eCommerce transaction.

1.10 “Cardholder” (sometimes referred to as “Card Member” in certain Card Brand materials) shall mean any person authorized to use the Cards or the accounts established in connection with the Cards.

1.11 “Cardholder Information” means any non-public, sensitive information about a Cardholder or related to a Card, including, but not limited to, any combination of Cardholder name plus the Cardholder’s social security number, driver’s license or other identification number, or credit or debit card number, or other Bank account number, Card Verification Value (CVV) code, track data contained in the magnetic stripe, Personal Identification Number (PIN), PIN Block, and Europay, MasterCard, and Visa (EMV) chip data.

1.12 “Chargeback” means the procedure by which a Transaction (or Disputed portion thereof) is returned to Bank by a Card Issuer for any reason, including, but not limited to, cases where such item does not comply with the applicable Rules.

1.13 “Credit Card” means any card validly issued by a Card Brand, other than Debit Cards.

1.14 “Credit Voucher” means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account.

1.15 “Debit Card” means a debit card validly issued by the debit card networks and a card in the form validly issued under license from a Card Brand that accesses a consumer’s asset; i.e., checking account within 14 days of purchase, including but not limited to stored value, prepaid, payroll, EBT, gift, and Visa consumer check cards.

1.16 “Discover Card” means a Card bearing the Discover Marks and accepted as part of the DFS Services Network.

1.17 “Dispute” is the process by which a Cardholder does not recognize a charge on their account and requests a chargeback, which may be granted by their issuing Bank.

1.18 “Imprint” means (i) an impression on a Transaction Record manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal and electronically capturing Card data and printing a Transaction Record.

1.19 “Law” means all applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding laws, as the same may be enacted or amended from time to time.

1.20 “Merchant Application” means the Application for Merchant Card Processing (which may take the form of, and includes, each Order Form executed or electronically accepted by Merchant).

1.21 “Operating Account” means a commercial checking or demand deposit account maintained by Merchant for the crediting of collected funds and the debiting of fees and charges under this Agreement.

1.22 “Order Form” means the Frame Payments Order Form and Merchant Application (or similar ordering document identified as such by Acquirer) executed or electronically accepted by Merchant that references and is governed by this Agreement, together with each subsequent Order Form entered into by Merchant and Acquirer.

1.23 “Person” means an individual, corporation, partnership, sole proprietorship, trust, association or any other legally recognized entity or organization, other than Merchant or Bank.

1.24 “Rules” means all rules, regulations, by-laws, standards, and procedures adopted and/or amended from time to time by the Card Brands (including, without limitation, the Payment Card Industry Data Security Standard), Acquirer and each relevant Card Issuer and Nacha, when applicable.

1.25 “Services” means the activities undertaken by Acquirer or third-party processor to authorize, process and settle Card transactions undertaken by Cardholders at Merchant’s location(s), and all other services provided by Acquirer under this Agreement.

1.26 “Transaction” means any sale of products or services, or credit for such, from a Merchant for which the Cardholder makes payment through the use of any Card and which is presented to Acquirer for collection.

1.27 “Transaction Record” means evidence of a purchase, rental or lease of goods or services by a Cardholder from, and other payments to, Merchant using a Card, including preauthorized orders and Recurring Transactions (unless the context requires otherwise), regardless of whether the form of such evidence is in paper or electronic form or otherwise.

1.28 “Voice Authorization” means a direct phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems.

2. CARD ACCEPTANCE

2.01 Acquiring Bank: Merchant acknowledges and agrees that the Services require the sponsorship and participation of Bank, which is a member of, and licensed by, the Card Brands to provide transaction processing and settlement services to merchants. Merchant agrees to enter into, and maintain in effect during the Term, this Agreement and any additional terms and conditions of the Bank, and Merchant’s right to participate in the Card Brands and to accept Cards is subject to and conditioned upon the continued effectiveness of that arrangement and Bank’s continued membership in good standing with the applicable Card Brands. Bank, independently or together with ISO, may (a) audit Merchant’s compliance with the Rules and applicable Law; (b) access the Operating Account to debit or credit amounts owed under this Agreement; (c) suspend or terminate Merchant’s ability to accept Cards if Bank reasonably determines that Merchant’s continued participation presents a risk to Bank; and (d) receive and review information relating to Merchant’s Transactions, financial condition, and PCI DSS compliance. In the event Bank’s sponsorship terminates for any reason, Acquirer may, in its sole discretion, designate a successor Bank and require Merchant to enter into a new or amended agreement, or terminate this Agreement upon written notice to Merchant.

2.02 Honoring Cards: Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to applicable Rules requiring Merchant to elect whether it will accept credit only, debit only or both debit and credit cards also referred to as limited acceptance. Merchant’s election is set forth in the Merchant Application. Except to the extent explicitly provided by the Rules, Merchant may not establish minimum or maximum amounts for Card sales as a condition for accepting any Card. Merchant shall not engage in any acceptance practice that discriminates against or discourages the use of a Card Brand’s Cards in favor of any other Card Brand’s Cards, or favor any particular Card Issuer over any other Card Issuers.

(a) Except to the extent permitted by both Law and the Rules, and as authorized in writing by Acquirer, Merchant shall not apply an additional charge for accepting Cards as an alternative to other payment methods (referred to at times as a “surcharge”). It is a material breach of this Agreement to assess surcharges in violation of Rules or Law. Merchant is advised to consult with its own legal counsel regarding the implementation of a surcharging program. Acquirer expressly disclaims any liability arising out of or relating to the implementation of any surcharge program by Merchant. If Merchant wishes to assess surcharges, as that term is used in the Rules of Visa and Mastercard, then Merchant must abide by the following requirements, which are contractual, and do not excuse or supersede compliance with Rules or Law: (i) at least 30 days prior to implementing any surcharge program, Merchant must inform Acquirer of the intent to surcharge; (ii) Merchant may assess surcharges only on credit cards; (iii) the surcharge may not be greater than 3% of the transaction value or the cost of card acceptance, whichever is lower; (iv) the surcharge must be clearly and conspicuously disclosed at the point of sale and at the point of entry. For physical merchant outlets, the point of entry is where customers enter the store, and the point of sale is where the customer checks out or pays. For e-commerce transactions, the point of entry is the first page of your website that references the credit card brands accepted, and the point of sale is the checkout page. For mail order transactions, the point of entry is the first page of the catalog that references the card brands accepted, and point of sale is the mail order form; (v) the disclosure must (1) state that the surcharge is being assessed by Merchant on credit cards only, (2) identify the amount of the surcharge; and (3) state that the surcharge is not greater than the cost of accepting the card; (vi) the Cardholder who has been notified of a surcharge must be given the opportunity to cancel the transaction prior to being assessed the surcharge and to pay by another means that does not result in a surcharge; (vii) Merchant must not assess a surcharge in any jurisdiction that prohibits surcharging payment cards; (viii) Merchant must prominently display and disclose to Cardholders at all times the name of the Merchant and Merchant’s physical address; (ix) Merchant shall maintain a written refund policy and shall disclose such policy to Acquirer and all its customers (including customers making purchases online by displaying such policy on the website), which policy and disclosure shall be consistent with Law and the Rules. The amount of any refund shall not exceed the original Transaction except to the extent a Merchant agrees to reimburse a Cardholder for return shipping; (x) subject to Law and the Rules, Merchant agrees to preserve receipts, credit vouchers, or other written evidence related to Transactions for not less than two (2) years following such Transaction and to provide such records to Acquirer and/or other regulatory body upon request; (xi) Acquirer reserves the right to block, discontinue, or otherwise require modifications to any surcharge program Merchant has implemented if necessary to comply with Rules or Law.

2.03 Advertising: Subject to the Rules, Merchant will prominently display the promotional materials provided by Acquirer in its place(s) of business. Merchant’s use of promotional materials and use of any trade name, trademark, service mark or logo type (collectively, the “Marks”) associated with a Card is limited to informing the public that the Card will be accepted at Merchant’s place(s) of business. During the term of this Agreement, Merchant may use promotional materials and Marks pursuant to and in strict compliance with the terms of this Agreement and the Rules. Upon notification by any Card Brand or Acquirer, or upon termination of this Agreement, Merchant shall discontinue the use of such Card Brand’s Marks and return any inventory or promotional materials to Acquirer. Merchant may not use any promotional materials or Marks associated with the Card Association in any way which suggests or implies that a Card Brand endorses any goods or services other than Card payment services. Merchant’s website, if any, must prominently display the name of the Merchant and the name that will appear on the Cardholder statement.

2.04 Transaction Requirements. As to each Transaction you tender to us for processing, you represent and warrant that: 

(a) The Transaction represents payment or refund of payment, for the bona fide sale or lease of the goods, services or both, which you have provided in the ordinary course of your business, and the Transaction is not submitted on behalf of a third party.

(b) The Transaction does not involve any element of credit for any purpose other than payment for a current Transaction (including payment of a previously-dishonored check) and, except in the case of approved installment or pre-payment plans, the goods have been shipped or services actually rendered to the Cardholder.

(c) The Transaction is free from any alteration not authorized by the Cardholder.

(d) Neither you nor your employee has advanced any cash to the Cardholder or to yourself or to any of your representatives, agents or employees in connection with the Card transaction, nor have you accepted payment for effecting credits to a Cardholder's account.

(e) To the best of your knowledge, the goods described in each Transaction are your sole property and you are free to sell them.

(f) You have made no representations or agreements for the issuance of refunds except as it states in your return/cancellation policy.

(g) You have no knowledge or notice of information that would lead you to believe that the enforceability or collectability of the subject Transaction is in any manner impaired, and the Transaction is in compliance with all applicable laws, ordinances and regulations; and you have originated the Transaction in compliance with this Agreement and the Rules.

(h) For a Card sale where the Cardholder pays in installments or on a deferred payment plan, a Transaction record has been prepared separately for each installment or deferred payment on the date(s) the Cardholder agreed to be charged. All installments and deferred payments, whether or not they have been submitted to us for processing, shall be deemed to be a part of the original sale.

2.05 Card Acceptance: Merchant may only accept transactions within the United States in which the Acquirer is licensed to operate. When accepting a Card, Merchant will follow the steps and guidelines set forth in the Rules or otherwise provided by Acquirer from time to time for accepting Cards and in particular, will: (a) determine in good faith and to the best of its ability that the Card is valid on its face; (b) obtain Authorization from the Card Issuer to charge the Cardholder’s account; (c) comply with the additional terms set forth in this Agreement with respect to Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Installment Orders and with respect to any Card Not Present Transactions; (d) document the approved Transaction in accordance with this Agreement and the Rules; and (e) deliver a true and completed copy of the Transaction Record to the Cardholder at the time the goods are delivered or services performed or, if the Transaction Record is prepared by a point-of-sale terminal, at the time of the sale. Except to the extent otherwise provided for in this Agreement, each Transaction Record must contain the following information: (i) Merchant’s legal name and/or registered trade name, Merchant’s location, and the Merchant’s merchant identification number designated by the Acquirer; (ii) the truncated version of the Card number as provided in the Rules; (iii) a brief description of the goods or services involved in the Transaction; (iv) the selling price, together with applicable taxes, other charges or gratuities, and the total amount of the Transaction; (v) signature of the Cardholder or authorized user as described in this Agreement, if applicable, date of the Transaction and the Transaction approval number; (vi) any additional requirements of the Card Brands that may be applicable to specific merchant or transaction types, as amended from time to time; and (vii) such additional information which may from time to time be required by Acquirer, the Card Brands, or Card Issuers. Merchant will not transmit a Transaction Record to Bank until such time as: (i) the Transaction is completed; (ii) the goods or services have been shipped or provided, except as set forth in this Agreement and the Rules; or (iii) a Cardholder consent is obtained for a Recurring Transaction in accordance with terms of this Agreement and the Rules.

2.06 Authorization: Merchant will obtain an Authorization for all Transactions using a means approved by Acquirer. If Merchant cannot, for any reason, obtain an electronic Authorization through the use of a terminal, Merchant will request a Voice Authorization from Acquirer’s designated authorization center and will legibly print the authorization number on the Transaction Record. Merchant will not obtain or attempt to obtain Authorization from Acquirer’s authorization center unless Merchant intends to submit to Acquirer a Transaction for the authorized amount if Authorization for the Transaction is given. Merchant may not divide a single Transaction between two or more Transaction Records on a single Card to avoid Authorization limits that may be set by the Card Issuer. Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available at the time of Authorization to cover the amount of the current sale and that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback and does not warranty the Cardholder’s identity. Merchant may not attempt to obtain an authorization by successively decreasing the sale amount. Acquirer may refuse to process any Transaction Record presented by Merchant: (a) unless a proper authorization number or approval code has been recorded on the Transaction Record; (b) if Acquirer determines that the Transaction Record is or is likely to become uncollectible from the Cardholder to which the Transaction would otherwise be charged; or (c) if Acquirer has reason to believe that the Transaction Record was prepared in violation of any provision of this Agreement or the Rules. Merchant will use, and may not circumvent, fraud identification tools requested by Acquirer, including address verification system processing and CVV2 processing, and acknowledges that the use of these tools may prevent Merchant from accepting certain Cards as payment. Merchant acknowledges that its use of fraud identification tools may not prevent fraudulent Card usage, and agrees that any fraudulent Transaction may ultimately result in a Chargeback, for which Merchant retains full liability under this Agreement.

2.07 Multiple Transaction Records; Partial Consideration: Merchant may not prepare more than one Transaction Record for a single sale or for a single item, but will include all goods and services purchased in a single Transaction in the total amount on a single Transaction Record except under the following circumstances: (a) for purchases in separate departments of a multiple department store; (b) for partial payment, installment payment, delayed delivery or an advance deposit; or (c) for delayed or amended charges governed by Rules for travel and entertainment merchants and related Transactions.

2.08 Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Installment Orders:Unless Merchant has been approved by Acquirer to accept mail, internet or telephone orders, Merchant warrants that it is a walk-in trade business, located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If Merchant is not approved by Acquirer for Card Not Present Transactions and Acquirer determines Merchant has accepted unapproved Card Transactions which are placed by telephone, generated through telephone solicitation, mail order, internet sales or other means that is not a card present Transaction, this Agreement may be immediately terminated by Acquirer and the value of all Transaction Records collected from the first day of processing may be charged back to Merchant and all funds therefrom held as provided in Article IV of this Agreement. Unless approved by Acquirer, this Agreement does not contemplate regular acceptance of Cards for sales accepted by mail, internet, or telephone nor through preauthorized orders. Regardless of whether Merchant has been approved by Acquirer for Card Not Present Transactions, Merchant assumes all responsibility for identification of the Cardholder and the validity of the Card information for Card Not Present Transactions.

2.09 Lodging and Vehicle Rental Transactions: For lodging and vehicle rental Transactions, Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder’s intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. Regardless of the terms and conditions of any written preauthorization form, the Transaction Record amount for any lodging or vehicle rental Transaction must include only that portion of the sale, including any applicable taxes, evidencing a bona fide rental of real or personal property by Merchant to the Cardholder and may not include any consequential charges. Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Transaction.

2.10 Returns and Adjustments; Credit Vouchers: Merchant’s policy for the exchange or return of goods sold and the adjustment for services rendered will be established and posted in accordance with the Rules of the applicable Card Brands. Merchant will disclose, if applicable, to a Cardholder before a Transaction is made, that if merchandise is returned: (a) no refund, or less than a full refund, will be given; (b) returned merchandise will only be exchanged for similar merchandise of comparable value; (c) only a credit toward purchases will be given; or (d) special conditions or circumstances apply to the sale (e.g., late delivery, delivery charges, or other non-credit terms). If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholder’s Card account must be given. Merchant must not refund the customer with cash or a different Card than the one used in the original Transaction. Merchant will ensure its return policy is clearly disclosed on the Transaction Record or on Merchant’s website. Any change in Merchant’s return or cancellation policy must be submitted in writing to Acquirer not less than 14 days prior to the change. Bank may refuse to process any Transaction Record made subject to a revised return or cancellation policy of which Acquirer has not been notified as required herein.

2.11 Cash Payment: Merchant may not receive any payments from a Cardholder for charges included in any Transaction resulting from the use of any Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of effecting a deposit to the Cardholder’s account.

2.12 Cash Advances; Scrip Purchases: Unless otherwise approved in advance by Acquirer, Merchant may not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant’s Card or the Card of any other party and may not accept any Card at a scrip terminal, and either action will be grounds for Acquirer’s immediate termination of this Agreement.

2.13 Duplicate Transactions: Merchant may not deposit duplicate Transactions. Bank may debit Merchant for any adjustments for duplicate Transactions and Merchant is liable for any Chargebacks resulting therefrom.

2.14 Card Recovery: For a Card-present Transaction, Merchant will use its best efforts, by reasonable and peaceful means, to retain the Card while making an Authorization request if the Card Issuer or applicable Card Brand directs Merchant to do so through Acquirer or the authorization system. Merchant will promptly notify Acquirer, follow any cancellation, recovery, or pick-up instructions transmitted through Acquirer, and deliver any recovered Card to Acquirer or as otherwise directed.

2.15 PIN Debit Processing: If Merchant accepts Debit Cards through PIN-based (online) debit networks, Merchant will honor all valid Debit Cards properly presented, will extend to Debit Card Cardholders the same services and return privileges Merchant extends to other customers, and will not impose any special condition or require personal information as a condition of a Debit Card sale except as permitted by the Rules or needed to deliver goods or services. Merchant will transmit Debit Card and related credit Transactions to Acquirer in a form acceptable to Acquirer, generally within one business day of the Transaction date, and will initiate credits for returns or reversals only in accordance with the Rules and to the same Debit Card used in the original Transaction. Debit Card Transactions are subject to the rules of the applicable debit networks in addition to this Agreement.

2.16 Deposit of Fraudulent Transactions: Merchant may not knowingly accept or deposit any fraudulent or unauthorized Transactions and may not under any circumstances present for processing or credit, directly or indirectly, a Transaction which originated with any other merchant or any other source other than Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved under this Agreement. If Merchant deposits any such fraudulent or unauthorized Transaction, Acquirer may: (a) immediately terminate this Agreement; (b) withhold funds and demand an escrow as provided in this Agreement; or (c) report Merchant to the applicable Card Brand. Merchant’s employees’ and agents’ actions are chargeable to Merchant under this Agreement.

2.17 Data Security/Personal Cardholder Information: Except as otherwise provided by the Rules, Merchant may not, as a condition of sale, impose a requirement on Cardholders to provide any personal information as a condition for honoring Cards unless such information is required to provide delivery of goods or services or Merchant has reason to believe the identity of the person presenting the Card may be different than that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise disclose any Cardholder Information to any person other than Acquirer or the applicable Card Brand, except as expressly authorized in writing by the Cardholder, or as required by Law or the Rules.

(a) Safeguards. Merchant will maintain appropriate administrative, technical and physical safeguards for all Cardholder Information. These safeguards will (i) ensure the confidentiality of Cardholder Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (iii) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder; and (iv) properly dispose of all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant will maintain all such safeguards applicable to Merchant in accordance with applicable Laws and the Rules including Privacy Laws.

(b) Compliance with Rules. Merchant represents, warrants and covenants that it is and will remain throughout the Term of this Agreement in compliance with (i) Rules related to data security, data integrity and the safeguarding of Cardholder Information, including the Payment Card Industry Data Security Standard (“PCI DSS”) including, Discover Information Security Compliance (“DISC”), MasterCard’s Site Data Protection Program (“SDP”), the American Express Data Security Requirements (“DSR”), and Visa’s Customer Information Security Program (“CISP”), in effect and as may be amended, supplemented or replaced from time to time, and (ii) any data security guidelines or operating guide that Acquirer may provide to Merchant, as the same may be amended, supplemented or replaced from time to time. Merchant will cause all of its service providers, subcontractors, and agents to comply with PCI DSS SDP, DISC, DSR and CISP requirements and any data security guidelines or operating guide provided by Acquirer at all times. Merchant will report any non-compliance immediately to Acquirer. To accomplish the foregoing, Merchant will encrypt all debit, credit, or stored value card numbers whether in storage, transport or backup and will not store data security codes on its systems, network, or software. Merchant may not store in any system or in any manner discretionary Card read data including without limitation CVV data, PIN data, address verification data or any other information prohibited by Rules.

(c) Payment Account Reference: Merchant may use Payment Account Reference (PAR) data, if received, solely for the purposes permitted by the Rules, including refund processing, chargeback and dispute processing, fraud prevention, compliance with anti-money-laundering obligations, and services expressly approved by the Cardholder, and for no other purpose. Merchant will not use PAR data for marketing, sell or disclose PAR data to any third party, track Cardholders across merchants, or use PAR data for any other purpose without Mastercard’s prior written consent.

(d) Annual Certification. Merchant will provide an annual certification to Acquirer (in a form acceptable to Acquirer) certifying compliance with the data security provisions of this Agreement, including compliance with applicable Card Brand requirements such as PCI DSS, SDP, DSR and CISP. Merchant will provide annual certifications for Merchant’s service providers, subcontractors, and agents upon request.

(e) Information Use Limitations. Merchant may not sell, disclose, or otherwise make Cardholder Information available, in whole or in part, in a manner not provided for in this Agreement, without Acquirer’s prior written consent. Merchant may, however, disclose Cardholder Information to its service providers, subcontractors and agents who have a need to know such information to provide the services described in this Agreement, provided that those individuals or entities have assumed confidentiality obligations in accordance with this Agreement, or when such disclosure is required by legal process or applicable Law, and Merchant and its relevant service provider, subcontractor, or agent have entered into a written agreement containing Merchant’s and such individual’s or entity’s agreement to the foregoing data security provisions, including compliance with the Rules.

(f) Response to Unauthorized Access. Merchant will notify Acquirer within twenty-four (24) hours after becoming aware of any actual or suspected unauthorized access to Cardholder Information in any system or environment operated by Merchant or a service provider acting on Merchant’s behalf. Merchant will provide the assistance reasonably requested by Acquirer, a Card Issuer, a regulator, a governmental authority, or a Card Brand to contain, investigate, and remediate the incident and prevent further unauthorized access to or use of Cardholder Information. To the extent Merchant or a service provider acting on Merchant’s behalf stores, processes, transmits, or otherwise has access to Cardholder Information, Merchant will maintain a written incident response plan covering detection, containment, investigation, remediation, and reporting and will provide a copy to Acquirer upon request. If an actual or suspected compromise involves Cardholder Information in such a system or environment, Merchant will, at Merchant’s sole expense and at Acquirer’s or a Card Brand’s direction, engage a PCI Forensic Investigator (PFI) or other qualified forensic firm acceptable to Acquirer, provide the complete forensic report to Acquirer and, as required, to the Card Brands, and remediate all identified vulnerabilities. Merchant’s assistance will include preserving records and evidence and compiling information reasonably necessary for Acquirer, the issuing bank, or a Card Brand to investigate, file any required suspicious activity reports, notify regulators, and notify affected Cardholders. Unless the unauthorized access was caused by Acquirer’s acts or omissions, Merchant will bear the cost of any required Cardholder notification.

(g) Miscellaneous. Merchant may not make a claim against Acquirer or hold Acquirer liable for the acts or omissions of other merchants, service providers, Card Issuers, Card Brands, financial institutions, or others that do not have a written contractual relationship with Acquirer or over which Acquirer has no control. These provisions supplement, augment and are in addition to obligations of indemnification, audit, confidentiality, and other similar provisions contained in this Agreement. This Section and each of its subsections will survive this Agreement’s termination. Merchant agrees that Acquirer may disclose to any Card Brand information regarding Merchant and Merchant’s Transactions to any Card Brand, and that such Card Brand may use such information to perform its responsibilities in connection with its duties as a Card Brand, promote the Card Brand, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of Card Brand Card acceptance, and transactional or relationship communications from a Card Brand. A Card Brand may use the information about Merchant obtained in this Agreement at the time of setup to screen and/or monitor Merchant in connection with the Card Brand marketing and administrative purposes. Merchant agrees it may receive messages from a Card Brand, including important information about Card Brand products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of Merchant. Merchant may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. Merchant agrees that it may be sent fax communications.

2.18 Merchant Obligations

(a) Compliance with Laws and Rules. Merchant will comply with and conduct its Card activities in accordance with all Laws and Rules including rules regarding usage of card brand marks, acceptance, risk management, transaction processing, products, programs, or services the Merchant is required to or chooses to participate. Merchant may not: (a) accept Cardholder payments for previous Card charges incurred at the Merchant location; (b) 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; (c) add any tax to transactions, unless applicable Law expressly requires that Merchant be permitted to impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately); (d) enter into interchange any Transaction Record for a Transaction that was previously the subject of a Chargeback to Acquirer and subsequently returned to Merchant, irrespective of Cardholder approval (Merchant may pursue payment from the Cardholder outside the Card Brand system); (e) request or use an account number for any purpose other than as payment for its goods or services; (f) disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant; (g) disburse funds in the form of cash, unless: (i) Merchant is a lodging or cruise line merchant disbursing cash to a Cardholder, (ii) Merchant is dispensing funds in the form of travelers cheques, Cards, or foreign currency, or (iii) Merchant is participating in the Card Brand cash back service; (h) accept a Card for manual cash disbursement; (i) accept a Card to collect or refinance existing debt that has been deemed uncollectible by Merchant providing the associated goods or services; (j) enter into a Transaction that represents collection of a dishonored check; (k) accept a Card for an unlawful Internet gambling transaction (Reg GG); (l) accept a transaction that does not result from an act between the Cardholder and the Merchant known as Transaction Laundering; or (m) accept Cardholder payments for debt repayment that do not comply with the Rules. Merchant will pay all Card Brand fines, fees, penalties and all other assessments or indebtedness levied by Card Brand to Acquirer which are attributable, at Acquirer’s discretion, to Merchant’s Transaction processing or business. The Card Brand may require that Bank limit Merchant’s participation in the applicable Card Brand and/or terminate this Agreement.

(b) Employees. Merchant is responsible for the actions of all of its employees while in Merchant’s employ.

2.19 Merchant’s Business: Merchant will notify Acquirer immediately if it intends to (a) transfer or sell any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change ownership or transfer control of its business; (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant or Merchant’s business; (e) alter in any way Merchant’s approved monthly volume, average, or maximum ticket; (f) change its return policies or use a fulfillment house different from the one identified in the Merchant Application; or (g) change its Operating Account; (h) begin accepting Card Not Present Transactions or otherwise change its approved method of Card acceptance; or (i) change its processing method, terminal, gateway, software integration, or other means by which Transactions are submitted to Acquirer. Merchant will notify Acquirer promptly in writing if it becomes subject to any voluntary or involuntary Bankruptcy or insolvency petition or proceeding. Merchant’s failure to provide notice as required above may be deemed a material breach and will be sufficient grounds for termination of the Agreement and for Acquirer’s exercise of all its rights and remedies provided by this Agreement. If any change listed above occurs, Acquirer may immediately terminate this Agreement.

2.20 Merchant’s Representations and Warranties: Merchant represents and warrants that:

(a) Merchant has full power and authority to execute, deliver, and perform this Agreement; (b) this Agreement has been duly authorized and constitutes a valid and binding obligation of Merchant, and the individual signing or accepting this Agreement on Merchant's behalf is duly authorized to bind Merchant; (c) the execution, delivery, and performance of this Agreement will not violate any provision of Law or conflict with any other agreement to which Merchant is subject; (d) all information contained in the Merchant Application or any other documents delivered to Acquirer in connection therewith is true and complete and properly reflects Merchant’s business, financial condition and principals, partners, owners or officers (as applicable); (e) Merchant holds all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (f) there is no action, suit or proceeding at law or in equity now pending or, to Merchant’s knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (g) neither Merchant, nor any of its principals, owners, officers, or Affiliates, is currently listed on, and Merchant has disclosed to Acquirer in writing any prior listing on, the Mastercard Alert To Control High-risk Merchants system (“MATCH”), the Terminated Merchant File, or any successor or similar Card Brand or industry database; and (h) Merchant is and will remain in compliance in all material respects with all Laws and the Rules, including the rules of each Card Brand.

2.21 Merchant’s Covenants: Merchant covenants that: (a) each Transaction Record presented to Acquirer for collection is genuine and is not the result of any fraudulent activity, or a Transaction prohibited by a Card Brand, or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement; (b) each Transaction Record is the result of a bona fide purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Transaction Record; (c) Merchant will perform all of its obligations to the Cardholder in connection with the Transaction evidenced thereby; (d) Merchant will comply with Acquirer’s procedures for accepting Cards, and the Transaction itself will not involve any element of credit for any other purposes other than as set forth in this Agreement, and will not be subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder under the Rules, the Consumer Credit Protection Act (15 USC §1601) or other Law; and any Credit Voucher which Merchant issues represents a bona fide refund or adjustment on a Transaction by Merchant with respect to which a Transaction Record has been accepted by Acquirer.

2.22 Compliance with Anti-Money Laundering and Sanctions Laws: Merchant represents, warrants, and covenants that (a) neither Merchant, nor any of its owners, officers, directors, or Affiliates, is a person or entity with whom dealings are prohibited or restricted under the sanctions programs administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or is located in, organized under the laws of, or a resident of any country or territory that is the subject of comprehensive OFAC sanctions; (b) Merchant will comply with all applicable anti-money laundering laws and regulations, including the Bank Secrecy Act (31 U.S.C. § 5311 et seq.) and its implementing regulations, and will maintain an anti-money laundering program reasonably designed to prevent the use of Merchant’s business for money laundering or terrorist financing; and (c) Merchant will not knowingly process any Transaction that violates applicable sanctions or anti-money laundering laws. Merchant will promptly notify Acquirer if Merchant becomes aware of any investigation, inquiry, or enforcement action by any governmental authority related to money laundering, terrorist financing, or sanctions violations involving Merchant or its Transactions.

2.23 Third Parties: Merchant may desire to use a third-party service provider to assist Merchant with its Transactions. Merchant shall not utilize any such third parties unless Merchant has disclosed such use to Acquirer previously in writing, and unless such third party is fully compliant with all Laws and Rules and certified as compliant with the PCI DSS or a similarly established data security standard. Any third party used by Merchant must be registered with the Card Brand prior to the performance of any contracted services on behalf of Merchant. Further, as between the parties to the Agreement, Merchant will be bound by the acts and omissions of any third-party service provider, and Merchant will be responsible for compliance by such third-party service provider with this Agreement, all Laws and Rules. Merchant will indemnify and hold harmless Acquirer from and against any loss, cost, or expense incurred in connection with or by reason of Merchant’s use of any third parties, including third-party service providers. Acquirer is not responsible for any third-party service provider used by Merchant, nor is Acquirer required to process any Transaction which Acquirer receives from Merchant or its service providers in any format not approved by Acquirer. Acquirer has no responsibility for, and shall have no liability to Merchant in connection with, any hardware, software or services Merchant receives subject to a direct agreement (including any sale, warranty, or end-user license agreement) between Merchant and a third party. Without limiting the foregoing, Merchant will ensure that each such third party validates and maintains compliance with the PCI DSS and, where applicable, the Payment Application Data Security Standard (PA-DSS), and completes any registration, certification, or listing required by the Card Brands, and Merchant will bear all risk and responsibility for its selection and use of any such third party. Acquirer will not be liable for any act or omission of any third party selected by Merchant.

2.24 Recurring Transactions: If Merchant agrees to accept a recurring transaction from a Cardholder for the purchase of goods or services which are delivered or performed periodically (a “Recurring Transaction”), the Cardholder shall complete and deliver to Merchant a paper or online order form containing a written request for such goods or services to be charged to the Cardholder’s account, the frequency of the recurring charges and the duration of time for which such Cardholder’s permission is granted. In the event a Recurring Transaction is renewed, the Cardholder shall complete and deliver to Merchant a subsequent order form for continuation of such goods or services to be charged to the Cardholder’s account. A Recurring Transaction may not include partial payments made to Merchant for goods or services purchased in a single Transaction, nor may it be used for periodic payments of goods or services on which Merchant assesses additional finance charges. A copy of the order form must be retained for the duration of the recurring charges and provided in response to Acquirer’s request. In addition, Merchant must record, retain, and promptly produce upon request the “ship to address” and address verification service code (where applicable) for each transaction. Merchant must not complete an initial or subsequent Recurring Transaction after receiving a cancellation notice from the Cardholder, the Card Issuer, Acquirer or other party or a response that the Card is not to be honored.

2.25 Forensic Investigations: Merchant will fully cooperate, at Merchant's sole expense, with any forensic investigation relating to Merchant, its Transactions, or Cardholder Information, whether commenced before or after the date of this Agreement and whether initiated by Acquirer, a Card Brand, a Card Issuer, or a governmental authority, until such investigation is completed, and will provide Acquirer with all reports and findings.

2.26 Merchant Prohibitions: (a) Illegal Transactions. Submitting any transaction into the payment system that is illegal or that the merchant knows or should have known was illegal. Transactions must be legal in both the cardholder’s and merchant jurisdiction. (b) Written Cardholder Information. A merchant or its agent may not request or store the Card Verification Value (CVV) data on any paper order form.

2.27 Visa-specific Rules:

(a) Right to Terminate. Visa has the right to require Acquirer to limit or terminate this Agreement with the Merchant.

(b) Use of Competitors. The Acquirer will not prohibit a merchant from using terminal processing services offered by competitors to deliver Visa transactions captured at the point-of-transaction directly to VisaNet for clearing and settlement (only applicable in the United States).

(c) Use of Third-Party Processors. Merchant may designate a third-party processor as its agent for the direct delivery of transactions to VisaNet for clearing and settlement. In order to designate such a third-party processor, Merchant: (1) must advise the Acquirer that it will use a third-party processor; (2) acknowledges and agrees that the Acquirer must reimburse the Merchant only for the Visa transactions delivered by that third party processor to VisaNet; and (3) assumes responsibility for any failure by its third party processor to comply with the Visa rules.

3. PRESENTMENT; PAYMENT; CHARGEBACKS

3.01 Acceptance: Acquirer will accept from Merchant all Transaction Records deposited by Merchant under the terms of this Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts. Merchant must transmit Transaction Records and Credit Vouchers to Acquirer or its processing vendor on the same or next business day immediately following the day that such Transaction Records and Credit Vouchers have been originated. All presentment and assignment of Transaction Records, collection therefor and reassignment or rejection of such Transaction Records are subject to the terms of this Agreement and the Rules. Acquirer will only provisionally credit the value of collected Transaction Records to Merchant’s Operating Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges, reserve deposits, negative Transaction Record batch deposits and items for which Acquirer did not receive final payment. The Bank will hold and control all funds related to Merchant acceptance, including settlement funds, reserves, suspended settlement, and other funds. No other entity is permitted to directly access or hold Merchant funds, whether from settlement or reserves. The Bank will provide settlement funds directly to the Merchant.

3.02 Endorsement: By presenting Transaction Records to Acquirer for collection and payment, Merchant agrees to sell and assign all its right, title and interest in each Transaction Record completed in conformity with Acquirer’s acceptance procedures. Merchant’s presentment of Transaction Records to Acquirer constitutes an endorsement by Merchant to Acquirer of such Transaction Records. Acquirer may supply such endorsement on Merchant’s behalf.

3.03 Prohibited Payments: Acquirer may receive payment of any Transaction Record presented by Merchant and paid by Bank unless and until there is a Chargeback. Unless specifically authorized in writing by Acquirer, Merchant may not collect or attempt to collect any Transaction Record, including Chargebacks, and will hold in trust for Acquirer and promptly deliver in kind to Acquirer any payment Merchant receives, in whole or in part, of the amount of any accepted Transaction, together with the Cardholder’s name and account number and any corresponding accompanying payment.

3.04 Chargebacks: Merchant is responsible for maintaining fraud, disputes, Chargebacks, and other risk metrics at levels that do not exceed applicable Card Brand thresholds, monitoring programs, or requirements. Merchant will accept responsibility for all Chargebacks related to Merchant’s Transactions. Accordingly, Merchant will be liable to Acquirer in the amount of any Transaction disputed by the Cardholder or Card Issuer for any reason under the Rules, including, without limitation and by way of illustration only, Chargebacks arising from Transactions on expired, cancelled, or invalid Cards; duplicate processing; goods or services not received or not as described; counterfeit or defective goods; Transactions processed in the wrong currency or amount; Cardholder disputes or claims of non-authorization; delayed presentment or processing; unauthorized, cancelled, or improperly billed Recurring Transactions; and Transactions that fail to comply with the Rules. Merchant authorizes Acquirer to offset from funds due to Merchant or to debit the Operating Account or, if applicable, the Reserve Account for the amount of all Chargebacks. Merchant agrees to fully cooperate with Acquirer in complying with the Rules regarding all Chargebacks. Merchant may not initiate a sale Transaction in an attempt to collect a Chargeback. Merchant will pay the current published fees for each Chargeback as listed on the Merchant Application and any other fines, fees, or assessments imposed by any Card Brand or Card Issuer as a result of Chargeback activity.

Reserve Account: Notwithstanding anything to the contrary in this Agreement and in addition to any other legal rights or remedies available to Acquirer, Bank may, at any time and with or without notice to Merchant, establish a non-interest-bearing reserve account at Bank (the “Reserve Account”) to secure all existing or future indebtedness and obligations of Merchant to Acquirer, its Affiliates, or the Card Brands, including Chargebacks, refunds, fees, fines, penalties, losses, and other amounts arising from or relating to this Agreement. Bank alone will hold and control the Reserve Account and may establish or increase its required amount in Bank’s sole discretion based on actual or anticipated risk or exposure. Bank may fund or increase the Reserve Account by withholding or deducting settlement funds or other amounts otherwise payable to Merchant, initiating an ACH debit to the Operating Account or any other account Merchant has authorized, transferring or debiting funds from any Merchant account at Bank, accepting deposits, or demanding payment from Merchant, which Merchant will make within three (3) days after receipt of the demand. The Reserve Account will be maintained for at least two hundred seventy (270) days after this Agreement terminates and for any longer period until Bank determines that all applicable Chargeback and refund periods have expired, all actual and anticipated obligations have been paid or adequately provided for, and Merchant’s account with Acquirer is fully resolved. Merchant has no right to withdraw, direct, pledge, or control funds in the Reserve Account. Merchant’s sole interest is a contingent right to any balance remaining after Bank determines that the release conditions in the preceding sentence have been satisfied. Merchant will not receive interest on Reserve Account funds. The provisions of this Agreement relating to account debits and credits apply to the Reserve Account and survive termination until Bank closes the Reserve Account. Bank will disburse any remaining balance to Merchant after the release conditions have been satisfied.

3.05 Merchant Statement: At least once each month, Acquirer shall provide a statement (the“Merchant Statement”) to Merchant, which may be made available online. Merchant shall be solely responsible for reviewing each Merchant Statement and for reporting to ISO in writing, within thirty (30) days of receipt of the Merchant Statement, any problems or irregularities appearing on such Merchant Statement, including, without limitation, underpayments, overpayments, or other discrepancies of any items, fees, charges, or liability assessments reflected thereon or related to the period covered by such Merchant Statement, including, without limitation, discrepancies between the volume and/or value of transactions that Merchant actually processed during the period indicated by the Merchant Statement. Merchant Statements provided online shall be deemed received the first day they are available online. Merchant shall be deemed to have accepted each Merchant Statement if Merchant does not report a problem or irregularity to ISO in writing within such thirty (30) day period. MERCHANT ACKNOWLEDGES AND AGREES THAT ACQUIRER SHALL NOT BE LIABLE OR OTHERWISE RESPONSIBLE TO MERCHANT, AND SHALL HAVE NO OBLIGATION TO REIMBURSE MERCHANT, FOR ANY UNDERPAYMENT TO MERCHANT OR OTHER DISCREPANCY THAT IS NOT REPORTED TO ISO IN WRITING WITHIN THIRTY (30) DAYS OF MERCHANT’S RECEIPT OF THE APPLICABLE MERCHANT STATEMENT.

4. TERMINATION; EFFECT OF TERMINATION

4.01 Term: This Agreement is effective upon Merchant's execution or electronic acceptance of this Agreement (provided that Acquirer shall have no obligation to provide the Services, and Merchant may not submit any Transaction to Acquirer, unless and until Acquirer accepts Merchant's application, as evidenced by Acquirer's written or electronic notice of approval to Merchant) and, unless otherwise terminated, will continue for a period of 3 years (the “Initial Term”) with automatic 3-year renewal terms thereafter (each a “Renewal Term,” and together with the Initial Term, the “Term”) unless and until Merchant provides written notice of non-renewal to Acquirer not less than 90 days before the end of the then-current Term. ​Notwithstanding the foregoing, if an Order Form specifies a different Initial Term, Renewal Term, or non-renewal notice period, the terms of such Order Form regarding such term, renewal, or termination shall control with respect to the Merchant that executed it. All existing obligations, warranties, indemnities, and agreements with respect to Transactions processed before such termination shall remain in full force and effect, and, regardless of any such termination, Merchant shall remain liable for all obligations to Cardholders and Acquirer that are arising out of, relating to, or resulting from, either directly or indirectly from this Agreement.

4.02 Termination:

(a) Without Cause. Acquirer may terminate this Agreement, without cause, upon 30 days’ advance written notice to Merchant.

(b) For Cause. Acquirer may terminate this Agreement in its sole discretion, effective immediately, upon written or verbal notice, or by closing Merchant’s account, if Acquirer reasonably determines that any of the following conditions exists: (i) Merchant has violated any provision of this Agreement or Acquirer is otherwise entitled to terminate this Agreement pursuant to any provision of this Agreement; (ii) there is a material adverse change in Merchant’s financial condition; (iii) if any case or proceeding is commenced by or against Merchant, its Affiliates or principals under any Law dealing with insolvency, Bankruptcy, receivership or other debt relief; (iv) any information which Merchant provided to Acquirer, including in the Merchant Application, was false, incomplete or misleading when received; (v) at any time during the Term, Merchant has had a monthly ratio of Chargebacks to total Transactions and/or reported fraud exceeding Card Brand requirements; (vi) an overdraft in the Operating Account exists for more than 3 days; (vii) Merchant or any of Merchant’s officers or employees has been involved in processing Transactions arising from fraudulent or otherwise unauthorized Transactions; (viii) Merchant is or will be unable or unwilling to perform its obligations under this Agreement or applicable Laws or the Rules; (ix) Merchant has failed to timely pay Acquirer any amount due; (x) Merchant has failed to promptly perform or discharge any obligation under its Operating Account or the Reserve Account; (xi) any of Merchant’s representations or warranties made in connection with this Agreement was not true or accurate when given; (xii) Merchant has defaulted on any agreement it has with Acquirer; (xiii) Acquirer is served with legal process seeking to attach or garnish any of Merchant’s funds or property in Acquirer’s possession, and Merchant does not satisfy or appeal the legal process within 15 days of such service; (xiv) any Rules are amended in any way so that the continued existence of this Agreement would cause Acquirer to be in breach of those Rules; (xv) any guaranty supporting Merchant’s obligations is revoked, withdrawn, terminated or altered in any way; (xvi) if any circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Brand; (xvii) termination is necessary to prevent loss to Acquirer or Card Issuers; (xviii) Merchant’s type of business indicated on the Merchant Application or as conducted by Merchant could endanger Acquirer’s safety or soundness; (xix) Merchant’s owner, officer, or corporate entity has a separate relationship with Acquirer and that relationship is terminated; (xx) Merchant appears on any Card Brand’s security reporting; or (xxi) Acquirer’s security for repayment becomes impaired.

4.03 Effect of Termination; Early Termination Fee. If this Agreement is terminated, regardless of cause, Acquirer may withhold and discontinue the disbursement for all Cards and other Transactions in the process of being collected and deposited. If this Agreement is terminated for cause, Merchant acknowledges that Acquirer may be required to report Merchant’s business name and the names and other identification of its principals to various Card Brand and industry databases, including the Mastercard Alert To Control High-risk Merchants system (“MATCH”), the Terminated Merchant File, and any successor or similar Card Brand or industry database. Merchant expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring such listing. Merchant waives and will hold harmless Acquirer from any claims that Merchant may raise as a result of such reporting. Upon termination of the Agreement, Merchant will immediately cease requesting Authorizations. If Merchant obtains any Authorization after termination, the fact that any Authorization was requested or obtained will not reinstate this Agreement. Further, Merchant will return all Acquirer property, forms, or equipment. All obligations for Transactions prior to termination (including payment for Chargebacks and Acquirer’s expenses relating to Chargebacks) survive termination. Acquirer is not liable to Merchant for damages (including prospective sales or profits) due to termination. The parties agree that if this Agreement is terminated before completion of the Term for any reason other than a material uncured breach by Acquirer, Merchant will pay Acquirer an early termination fee in the amount set forth in the Merchant Application as liquidated damages. Merchant agrees that the early termination fee is not a penalty but a reasonable computation of the financial harm caused by the early termination of this Agreement, which amount would otherwise be difficult to calculate. The early termination fee is in addition to, and not in lieu of, any other damages or sums to which Acquirer may be entitled unrelated to the early termination of this Agreement. Upon termination, any amounts due to Acquirer will accelerate and be immediately due and payable, without any notice, declaration, or other act whatsoever by Acquirer.

4.04 Effect of Bankruptcy: To the fullest extent permitted by Law, any account or security held by Bank will not be subject to any preference, claim or stay by reason of Bankruptcy or similar Law. The parties expressly agree that the acquisition of Transactions hereunder is a financial accommodation and if Merchant becomes a debtor in any Bankruptcy or similar proceeding, this Agreement may not be assumed or enforced by any other person and Acquirer will be excused from performance hereunder. To the fullest extent permitted by Law, Merchant waives any right to oppose, and consents to, any motion by Acquirer for relief from the automatic stay or any similar injunction in any Bankruptcy or similar proceeding, and agrees that Acquirer's rights in the Reserve Account and in the collateral described in this Agreement shall be protected in any such proceeding.

5. MISCELLANEOUS

5.01 Account Monitoring: Merchant acknowledges that Acquirer will monitor Merchant’s Transaction activity. In addition to Acquirer ’s right to fund a Reserve Account as set forth in Section 3.05, Acquirer may upon reasonable grounds suspend disbursement of Merchant’s funds for any reasonable period of time required to investigate suspicious or unusual Transaction activity. Acquirer will make good faith efforts to notify Merchant promptly following such suspension. Acquirer is not liable to Merchant for any loss, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement.

5.02 Right to Cease Services: If Merchant does not process any Transactions through the Services for a period of one year or more, Acquirer may, without liability and without relieving Merchant of any obligation under this Agreement, cease providing the Services to Merchant and remove or deregister Merchant from Acquirer's and the applicable Card Brands' systems. Reactivation of the Services thereafter is subject to Acquirer's then-current onboarding and underwriting requirements.

5.03 Forms: Merchant will use only the forms or modes of transmission of Transaction Records and Credit Vouchers that are provided or approved in advance by Acquirer, and Merchant may not use such forms other than in connection with Transactions.

5.04 Indemnification: Merchant will defend, indemnify and hold Acquirer, its Affiliates and each of its/their officers, directors, members, shareholders, partners, employees, agents, subcontractors and representatives (collectively, the “Indemnified Parties”) harmless from and against any and all fines, penalties, claims, damages, expenses, judgments, liability assessments, costs, liabilities or fees of any nature whatsoever, including attorneys’ fees and costs (collectively, “Damages”), asserted against or incurred by any of the Indemnified Parties arising out of, relating to or resulting from, either directly or indirectly: (a) a breach of the security of the system safeguarding Cardholder Information resulting in unauthorized access to Cardholder Information; (b) Merchant’s Transactions, performance of its obligations under this Agreement, or use of the Services (including, without limitation, for refunds, Chargebacks, or liability assessments imposed by the Card Brands); (c) breach of this Agreement, including, but not limited to, the data security provisions, by Merchant, or any service provider, subcontractor or agent of Merchant; (d) any violation of Law or Rules by Merchant; (e) the state or configuration of Merchant’s equipment, including, without limitation, Merchant’s failure to maintain all point of sale equipment, download equipment, and point of sale software updates or to use EMV enabled equipment supported by Acquirer; (f) Merchant’s use of third-party services or service providers, including gateways, value added resellers, and independent software vendors; (g) any proceeding, litigation, or arbitration commenced by a third party arising out of or relating to any actual or alleged act or omission by Merchant; (h) any demands, investigations, or subpoenas (or similar process) received related to Merchant or its Transactions, whether initiated by regulators, law enforcement, civil litigants, or lienholders under the Uniform Commercial Code; and (i) all third-party claims arising from the foregoing.

Notwithstanding the preceding, Merchant is not liable to Acquirer to the extent Damages are caused by, related to or arise out of Acquirer’s gross negligence or willful misconduct. Acquirer shall have the right to select and retain counsel of its choosing to represent it in connection with any of the foregoing events, and nothing in this Section shall entitle Merchant to select counsel or assume the defense of any such matter.

5.05 Records: In addition to any records Merchant routinely furnishes to Acquirer under this Agreement, Merchant will preserve Transaction Records and Credit Vouchers and any written authorization of the Cardholder for twenty-four (24) months, or longer if required by Law, the Rules, or valid legal process.

5.06 Cost Recovery: In addition to all other fees and amounts payable under this Agreement, Merchant will reimburse Acquirer, upon demand, for Acquirer's reasonable costs and expenses (including reasonable attorneys', accountants', and consultants' fees, and internal costs at Acquirer's then-current rates) incurred in connection with (a) excessive customer support or account servicing attributable to Merchant; (b) any fraud, security, or compliance investigation relating to Merchant, its Transactions, or its Cardholder Information; (c) any actual or suspected breach or compromise of Cardholder Information; (d) excessive Chargebacks, disputes, or Card Brand monitoring-program activity; (e) establishing, maintaining, and administering the Reserve Account or any other security; and (f) responding to legal process, regulatory inquiries, or third-party claims relating to Merchant. Acquirer may collect such amounts by any means provided in this Agreement.

5.07 Request for Copies: Immediately after Merchant receives the request by Acquirer, Merchant will provide to Acquirer either the original or a legible copy (in a size comparable to the actual Transaction Record) of the paper Transaction Record, digital Transaction Record, and any other documentary evidence available to Merchant that Acquirer reasonably requests to meet Acquirer’s obligations under Law (including its obligations under the Fair Credit Billing Act) or otherwise to respond to questions concerning Cardholder accounts.

5.08 Exclusivity: Merchant agrees that during the Term, Merchant will use Acquirer as its exclusive provider of all Services.

5.09 Fees and Charges: Merchant will pay to Acquirer the fees and charges set forth on the Merchant Application, Order Form, this Agreement or any Addenda thereto, as same may be amended from time to time pursuant to this Agreement, including any additional charges applied to transactions that fail to meet Card Brand requirements for the lowest interchange levels. Merchant is responsible for payment of refunds, Chargebacks, fines, fees, indemnified losses, and other amounts payable to Acquirer or the Card Brands related to or associated with its use of the Services, its Transactions, and/or its processing activity. Acquirer at any time, with or without notice, may collect such amounts due pursuant to this Agreement by demanding immediate payment, by debiting the Operating Account or the Reserve Account, or by subtracting such amounts from future settlements. Fees appearing on the Merchant Application are based upon assumptions regarding Merchant’s anticipated volume, average transaction size, and method of doing business. If these assumptions prove materially inaccurate, Acquirer may adjust Merchant’s fees without prior notice. Any such adjustments shall be in addition to, and not in lieu of, any other remedies available to Acquirer hereunder. We will pass through to you, and you agree to pay, the legal fees and costs we incur in seeking legal advice in matters not in the ordinary course of our relationship to you, as described in this Agreement. This includes, but is not limited to, contract disputes, legal procedures, bankruptcy, or other similar events, whether the fees or costs are incurred during or after the term of this Agreement. 

5.10 Pricing Schedule: Merchant will pay Acquirer the fees, rates, and charges set forth in the pricing schedule presented to and accepted by Merchant through the application process (the “Pricing Schedule”), which is incorporated into and made a part of this Agreement. By executing or electronically accepting this Agreement, Merchant acknowledges that it has reviewed and agrees to the Pricing Schedule. In addition to the fees set forth in the Pricing Schedule, Merchant is responsible for all interchange, assessments, Card Brand fees, and other pass-through costs, and for any fees, fines, penalties, or assessments imposed by a Card Brand or Card Issuer as a result of Merchant’s Transactions or its acts or omissions. Acquirer may amend the Pricing Schedule in accordance with the Modifications to Agreement section of this Agreement. In the event of a conflict between the Pricing Schedule and these Terms and Conditions, these Terms and Conditions control except as to the specific fees, rates, and charges stated in the Pricing Schedule. Acquirer may offer standard default pricing through the online application and separately agree with Merchant to modified pricing, in which case the modified Pricing Schedule presented to and accepted by Merchant will govern.

5.11 Accuracy of Information: Merchant represents and warrants that all information it submits to Acquirer, whether in the Merchant Application, the Pricing Schedule, or otherwise, including its beneficial ownership, ownership structure, merchant category, business description, and anticipated and actual transaction volumes and average ticket, is true, accurate, and complete, and Merchant will promptly notify Acquirer of any material change. Merchant acknowledges that Acquirer and Bank rely on these representations in approving and continuing to provide the Services.

5.12 Security Interest: To secure payment of Merchant’s obligations under this Agreement, Merchant grants to Acquirer a security interest in all now existing or hereafter acquired: (a) Transactions, Transaction Records, Credit Vouchers and other items submitted to Acquirer for processing by or for Merchant; (b) accounts receivable and payment rights relating to or arising from this Agreement, including all amounts due Merchant (including any rights to receive credits or payments hereunder) or funds withheld by Acquirer for security monitoring; (c) accounts maintained with Bank or any institution other than Bank, including without limitation the Operating Account and the Reserve Account, in the name of or for the benefit of, Merchant of Merchant’s obligations under this Agreement; and (d) proceeds of the foregoing. With respect to any security interests granted herein, Acquirer will have all rights afforded under the Uniform Commercial Code, including Article 9, as the same may, from time to time, be in effect in the State of California; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of California, then Acquirer will have all rights afforded under the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law. Acquirer may fully or partially prohibit withdrawal by Merchant of funds from Merchant’s Operating Account with Bank or financial institutions other than Bank, pending Acquirer’s determination from time to time to exercise its rights as a secured party against such accounts in partial or full payment of Merchant’s obligations to Acquirer. Merchant will execute any documents and take any actions required to comply with and perfect any security interest under this paragraph, at Merchant’s cost. Merchant irrevocably appoints Acquirer as Merchant's attorney-in-fact, with full power of substitution, to execute, deliver, and file, in Merchant's name and on Merchant's behalf, any financing statement, amendment, continuation, or other document, and to take any other action, that Acquirer deems necessary or desirable to perfect, protect, or enforce the security interests granted herein. Merchant authorizes Acquirer to file financing statements describing the collateral without Merchant's signature, and ratifies any such filing made before the date of this Agreement. Merchant represents and warrants that no other party has a security interest or lien in any of the collateral pledged above, and Merchant will obtain Acquirer’s written consent before it grants a lien or security interest in that pledged collateral to any other person. Acquirer prohibits Merchant from selling or assigning future Transaction receivables to any third party without Acquirer’s prior written consent.

5.13 Right of Set Off: If Acquirer reasonably determines that Merchant has breached any obligation under this Agreement, or that proceeds of Merchant’s future Transactions are unlikely to cover anticipated Chargebacks, credits, fees and adjustments, as reasonably determined by Acquirer (whether because this Agreement has been terminated or for any other reason), Acquirer may setoff or otherwise exercise its security interest without notice or demand by immediately withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under the Rules, applicable Laws, or in equity.

5.14 Modifications to Agreement: From time to time Acquirer may amend any provision or provisions of this Agreement, including, without limitation, those relating to the discount rate or to other fees and charges payable by Merchant by providing written notice to Merchant of the amendment at least 30 days prior to the effective date of the amendment, and the amendment will become effective unless Acquirer receives Merchant’s written notice of termination of this Agreement before such effective date. If Merchant continues to submit Transaction Records to Acquirer or otherwise continues to process Transactions with Acquirer after such 30-day period (even if notice of objection was provided to Acquirer), then Merchant shall be deemed to have accepted and agreed to such amendment. In addition, Merchant acknowledges and agrees that this Agreement is subject to amendment by Acquirer to conform to the Rules and Law and that amendments required due to changes in either the Rules, Law or judicial decision may become effective on such shorter period of time as Acquirer may specify, if necessary, to comply with the applicable Rule, Law, or decision. As a matter of clarification, Merchant may not terminate this Agreement if Acquirer amends the Agreement as necessary to comply with applicable Rules, Law, or a judicial decision.

5.15 Warranty Disclaimer: ACQUIRER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THE USE, OPERATION OR PERFORMANCE OR NON- PERFORMANCE OF SOFTWARE OR SYSTEMS UTILIZED FOR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, AND ACQUIRER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ACQUIRER DOES NOT GUARANTEE OR WARRANT THAT (A) THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT ANY SOFTWARE WILL BE VIRUS-, DEFECT-, OR ERROR-FREE; OR (C) THAT DATA, REPORTS, OR ANALYSES WILL BE FREE FROM ALL BUGS AND ERRORS.

5.16 Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE FINANCIAL RESPONSIBILITY OF ACQUIRER OR ITS AFFILIATES FOR ANY BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION UNDER THIS AGREEMENT EXCEED THE FEES OR CHARGES PAID TO ACQUIRER BY MERCHANT FOR THE TRANSACTION OR ACTIVITY THAT IS OR WAS THE SUBJECT OF THE ALLEGED BREACH, FAILURE OF PERFORMANCE, ACT, OR OMISSION. IN NO EVENT WILL ACQUIRER, ITS AFFILIATES OR ITS/THEIR AGENTS, OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE TO MERCHANT FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF REVENUE, OR CLAIMS BY MERCHANT OR ANY THIRD PARTY RELATIVE TO THE TRANSACTIONS OR ACTIVITIES HEREUNDER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, ACQUIRER 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; OR (C) THE FAILURE TO PROCESS, AUTHORIZE, OR CAPTURE A TRANSACTION. WITHOUT LIMITING THE FOREGOING, ACQUIRER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM (I) THE FAILURE, DELAY, OR ERROR OF ANY PROCESSOR OR THIRD-PARTY SERVICE PROVIDER; (II) ANY INTERRUPTION, SUSPENSION, OR UNAVAILABILITY OF THE SERVICES; (III) ANY COMMUNICATIONS, TELECOMMUNICATIONS, OR INTERNET OUTAGE; (IV) ANY HARDWARE, SOFTWARE, OR EQUIPMENT FAILURE; OR (V) ANY INTERRUPTION, DELAY, OR FAILURE OF ANY CARD BRAND, CARD ISSUER, OR PAYMENT NETWORK. MERCHANT WAIVES ALL CLAIMS AGAINST ACQUIRER AND ITS AFFILIATES FOR ANY LOSS, CLAIM, DEMAND, PENALTY, ACTION, DELAY, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY KIND UNLESS MERCHANT PROVIDES WRITTEN NOTICE TO ACQUIRER OF THE OCCURRENCE THAT GAVE RISE TO THE ALLEGED LIABILITY WITHIN 30 DAYS AFTER MERCHANT KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE. MERCHANT ACKNOWLEDGES THAT THE FEES FOR THE SERVICES PROVIDED TO MERCHANT BY ACQUIRER ARE VERY SMALL IN RELATION TO THE FUNDS ADVANCED TO MERCHANT FOR TRANSACTIONS AND CONSEQUENTLY ACQUIRER’S WILLINGNESS TO PROVIDE THESE SERVICES IS BASED ON THE LIABILITY LIMITATIONS CONTAINED IN THIS AGREEMENT. THEREFORE, IN ADDITION TO GREATER LIMITATIONS ON ACQUIRER’S LIABILITY THAT MAY BE PROVIDED ELSEWHERE (INCLUDING THE PER TRANSACTION RECORD LIMITATION ABOVE), ANY LIABILITY OF ACQUIRER OR ANY OF ITS AFFILIATES UNDER THIS AGREEMENT, WHETHER TO MERCHANT OR ANY OTHER PARTY, WHATEVER THE BASIS OF THE LIABILITY, WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE LESSER OF (A) THE FEES PAID BY MERCHANT TO ACQUIRER DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY, EXCLUSIVE OF FEES AND VARIABLE COSTS INCURRED BY ACQUIRER TO PROCESS TRANSACTIONS, SUCH AS INTERCHANGE COSTS, ASSESSMENTS AND FEES IMPOSED BY A THIRD PARTY; OR (B) $25,000.

5.17 Waiver: Acquirer’s failure to enforce one or more of the provisions of this Agreement will not constitute a waiver of the right to enforce the same or other provision in the future.

Notices: Notices and communications given under this Agreement to Acquirer must be in writing and given by (a) deposit in the United States mail, addressed to the Acquirer at the address designated in the Merchant Agreement, postage prepaid and registered or certified with return receipt requested, or (b) delivery in person, or by courier service, providing evidence of delivery and will be deemed effective upon receipt. Acquirer may provide Merchant with effective notice under this Agreement, including, without limitation, of any amendment to this Agreement or to the fees, by any of the following means: (a) via mail at the address designated in the Merchant Application (or such other address as Merchant may provide), including by statement messages appearing on any Merchant Statement; (b) through electronically available Merchant Statement(s), or through any other means of electronic communication maintained by Acquirer which Merchant may access; or (c) electronically, via any email address designated by Merchant. Merchant expressly consents to receive documents and notices electronically and agrees to maintain access to the internet for so long as this Agreement is in effect.

5.18 Choice of Law; Jurisdiction; Waiver of Jury Trial:

Any dispute, claim, or controversy arising from or relating to this Agreement, the Services will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute, claim, or controversy arising from or relating to this Agreement, the Services that is not subject to arbitration or cannot be heard in small claims court will be resolved exclusively in the state or federal courts of the State of Delaware and the United States. The parties agree to waive any objection to venue in any such courts.TO THE EXTENT PERMITTED BY APPLICABLE LAW, MERCHANT AND ACQUIRER WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDINGS REGARDING ANY LITIGATION RELATED TO THIS AGREEMENT AND EACH AGREE THAT ANY SUCH ACTIONS OR PROCEEDINGS WILL BE TRIED BY A JUDGE WITHOUT A JURY.

5.19 Arbitration: ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT.

ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY THAN A COURT PROCEEDING. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED.

Notwithstanding the foregoing, nothing in this Section prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other preliminary equitable relief. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration provisions of this Section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. For claims equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time the arbitration is commenced will apply. Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in State of Delaware (although, for the convenience of the parties, any party or its counsel may participate telephonically or by video conference, and the hearing time(s) may be adjusted to accommodate the schedules of the parties and the witnesses); (ii) the arbitrator(s) will oversee limited discovery, taking into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient; (iii) absent compelling circumstances, each party shall be entitled to take no more than two depositions, although one such deposition may proceed in accordance with Federal Rule of Civil Procedure 30(b)(6), and each party shall be limited to ten (10) requests for production and ten (10) interrogatories; and (iv) the claimant(s) and respondent(s) will bear the cost of arbitration, including the cost of any filing fee, equally, subject to the discretion of the arbitrator(s) to alternatively allocate costs pursuant to the applicable rules in any final award; provided, however, that for claims equal to or less than $25,000, Acquirer shall not be responsible to pay any case initiation or similar fee greater than that of the filing fee in the Wilmington, Delaware at the time arbitration is filed unless the arbitrator(s) determine that such claims are frivolous. The arbitrator(s) shall have no authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement or to award sanctions or punitive damages. Any decision rendered in such arbitration proceedings shall be final and binding on each of the parties to the arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to comply with Law. If any part of this Section 5.17 is found invalid or unenforceable or to render this Section 5.17 invalid or unenforceable, the other parts of this Section 5.17 shall still apply with such term or terms stricken. For any dispute not subject to compulsory arbitration hereunder (e.g., motions seeking preliminary injunctive relief), the parties irrevocably submit themselves to the exclusive jurisdiction of the courts located in or having jurisdiction over Wilmington, Delaware.

5.20 Entire Agreement; Assignability: This Agreement expresses the entire understanding of the parties with respect to the subject matter hereof. This Agreement may be assigned by Acquirer without Merchant’s consent. This Agreement may not be assigned, directly or by operation of law by Merchant, without Acquirer’s prior written consent. This Agreement will be binding upon and inure to the benefit of the parties’ respective heirs, personal representatives, successors, and assigns.

5.21 Order Form; Incorporation; Order of Precedence: Each Order Form executed or electronically accepted by Merchant is incorporated into and forms a part of this Agreement, and each Order Form is subject to and governed by this Agreement. In the event of any conflict between this Agreement and an Order Form, this Agreement will control, except that the Order Form will control solely with respect to (a) the specific pricing, fees and rates identified in the Order Form; (b) the initial term, renewal and non-renewal notice period identified in the Order Form; (c) the volume, transaction, average ticket, MCC and business model assumptions identified in the Order Form; and (d) the specific capabilities selected by Merchant in the Order Form. For the avoidance of doubt, all other terms of this Agreement, including provisions regarding reserves, chargebacks, limitations of liability, indemnification, termination rights, governing law and dispute resolution, apply to each Order Form and, in the event of any inconsistency with the foregoing categories, are supplementary to, and not displaced by, the Order Form.

5.22 Operating Account: Merchant will at all times maintain an Operating Account at a Bank that is a member of the Federal Reserve ACH system. Merchant authorizes Acquirer to initiate debit and credit entries to the Operating Account through the ACH settlement process and agrees that Acquirer may debit the Operating Account for any amounts owed hereunder or to which Acquirer may otherwise be entitled for any reason. Such authorization shall remain in place until the later of termination of this Agreement or Merchant’s satisfaction of all obligations to Acquirer hereunder. All credits for collected funds and debits for fees, payments and Chargebacks and other amounts for which Merchant is liable under the terms of this Agreement will be made to the Operating Account. During the term of this Agreement and for a period of one year after the termination of this Agreement, Merchant may not close or change the Operating Account without prior written approval by Acquirer, which approval may not be unreasonably withheld. Merchant will be solely liable for all fees and costs associated with the Operating Account and for all overdrafts. Merchant will maintain sufficient funds in the Operating Account to accommodate all Transactions contemplated by this Agreement and all other fees, charges, credits, or other payments or amounts due under this Agreement.

5.23 Credit and Financial Inquiries; Additional Locations; Inspections: Acquirer may make, at any time, any credit inquires which it may consider necessary to accept or review acceptance of this Agreement or investigate Merchant’s deposit or Card acceptance activities subsequent to acceptance of this Agreement. Such inquiries may include, but are not limited to, a credit and/or criminal check of Merchant and business including its proprietor, partners, principals, owners or shareholders or officers. Upon Acquirer’s request, Merchant will provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Acquirer may consider necessary to perform initial or periodic reviews of Merchant’s financial stability and business practices. Merchant may accept Cards only at locations approved by Acquirer. Additional locations may be added, subject to Acquirer’s prior consent. Acquirer or Merchant may remove locations by providing notice as provided herein. Merchant will permit Acquirer, at any time and from time to time, to inspect locations to confirm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records, and license or permits (where necessary) to conduct its business. However, nothing in this paragraph may be deemed to waive Merchant’s obligation to comply in all respects with the terms of this Agreement or the Rules. Acquirer, its internal and external auditors, and its regulators may audit compliance with this Agreement, compliance with Laws and Rules, including, but not limited to, relating to Card acceptance and Transaction processing, data security provisions and Card Brand compliance. Merchant will make available its records maintained and produced under this Agreement, and Merchant’s facilities will be made accessible, upon notice during normal business hours for examination and audit and shall cooperate with such audits or examinations. Nothing in this section may be construed to require Merchant to give access to its facilities, personnel or records in a manner that unreasonably interferes with its business operations. Each party will bear its own expenses of any audit.

5.24 Force Majeure: The parties will be released from liability hereunder if they fail to perform any obligation where the failure occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, communications failure, sabotage, war, military operation, terrorism, national emergency, mechanical or electronic breakdown, civil commotion or the order, requisition, request or recommendation of any governmental authority, or either party’s compliance therewith, or governmental regulation, or priority, or any other similar cause beyond either party’s reasonable control.

5.25 Counterparts: This Agreement and any Order Form may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by electronic means (including by email, facsimile, or electronic signature platform) shall be equally effective as delivery of a manually executed counterpart.

5.26 Services: Subject to the Rules, Services may be performed by Acquirer, its Affiliates, its agents or other third parties Acquirer may designate from time to time in connection with this Agreement. Information related to Merchant’s Transaction activity or any credit or financial information of Merchant may be disclosed to any such third-party servicers or any referral Acquirer partner.

5.27 System Changes: Merchant acknowledges that the Services are provided in accordance with Acquirer's then-current systems, standards, and procedures, and that Acquirer is not required to perform any custom programming or to provide any special hardware, software, system, or procedure for Merchant. Acquirer may modify the Services based on technological developments, legislative or regulatory changes, Card Brand requirements, or the introduction of new services. Any changes or upgrades required to enable Merchant to continue to use the Services will be at Merchant's sole cost and expense.

5.28 Third Party Beneficiary: Acquirer’s respective Affiliates and any Persons Acquirer uses in providing the Services are third party beneficiaries of this Agreement and each of them may enforce its provisions as if it were a party hereto. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any Person any rights or remedies, and the parties do not intend for any Persons to be third-party beneficiaries of this Agreement.

5.29 Severability; Conflict with Rules: If any provision in this Agreement is for any reason held to be invalid or unenforceable, no other provision shall be affected thereby, and this Agreement shall be construed as if the invalid or unenforceable provision had never been a part of it. In the event of a conflict between this Agreement and the Rules, the Rules shall govern and control.

5.30 IRS Reporting Information: Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring entities such as Acquirer and third-party settlement organizations are required to file an information return reflecting all payment card transactions and third-party network transactions occurring in a calendar year. This requirement applies to returns for all calendar years after December 31, 2010, and Merchant will receive a form 1099-K reporting Merchant’s gross transaction amounts for each calendar year. In addition, amounts payable under Section 6050W are subject to backup withholding requirements. Merchant acquirers such as Bank, either itself or through third parties, are required to perform backup withholding by deducting and withholding income tax from reportable transactions if (a) the payee fails to provide the payee’s taxpayer identification number (TIN) to the merchant acquirer; or (b) if the IRS notifies the merchant acquirer that the TIN (when matched with the name) provided by the payee is incorrect. Accordingly, to avoid backup withholding, it is very important that Merchant provides Acquirer with the correct name and TIN that Merchant uses when filing its income tax return that includes the transactions for Merchant’s business. In addition to the fees set forth on the Merchant Application, if Merchant fails to comply with the obligations set forth in this section, Acquirer may charge Merchant additional amounts determined by Acquirer and may pass through any additional fines, costs or expenses incurred by Acquirer to Merchant.

5.31 Confidentiality: Merchant shall protect all information or other items proprietary to Acquirer that Merchant obtains knowledge of or access to as a result of Acquirer’s provision of the services pursuant to this Agreement (collectively, “Confidential Information”) from unauthorized disclosure, publication, or dissemination with the same standard of care and discretion Merchant uses to protect similar confidential information of Merchant’s own, but in no event less than reasonable care. Furthermore, Merchant shall not use, reproduce, distribute, disclose, or otherwise disseminate Acquirer Confidential Information, except in connection with the performance of Merchant’s obligations under this Agreement. The obligations of non-disclosure provided hereunder shall continue during the Term and for a period of five years thereafter.

5.32 Survival: The following provisions shall survive the expiration or termination of this Agreement for any reason: Sections 1 (Definitions, to the extent necessary to interpret surviving provisions), 2.16(Data Security/Cardholder Information), 3.03 (Chargebacks), 3.05 (Reserve Account), 5.03 (Indemnification), 5.04 (Cost Recovery), 5.07 (Security Interest), 5.08 (Right of Set Off), 5.12 (Warranty Disclaimer), 5.13 (Limitation of Liability), 5.15 (Choice of Law; Jurisdiction; Waiver of Jury Trial), 5.16 (Arbitration), 5.25 (Confidentiality), and any other provision that by its nature is intended to survive termination.

5.33 E-Sign Consent Agreement: By accessing and using the Services, Merchant hereby consents and agrees that:

(a) Acquirer can provide disclosures required by Law and other information about Merchant’s legal rights and duties to Merchant electronically.

(b) Where required or requested, Merchant’s electronic signature (via “click-through” or other method) on agreements and documents relating to use of the Services has the same effect as if Merchant signed them in ink.

(c) Acquirer can send all communications, billing statements, amendments to the Services or this Agreement, notices, and other disclosures or information regarding the Services or Merchant’s access to and use of the Services (collectively, “Disclosures”) to Merchant electronically (1) via e-mail, (2) by access to a website that Acquirer designates in an e-mail notice that the Acquirer sends to Merchant at the time the information is available, or (3) to the extent permissible by Law, by access to a website that Acquirer will generally designate in advance for such purpose.

(d) If Merchant wants a paper copy, Merchant can print a copy of the Disclosure or download the information for Merchant’s records.

(e) This consent applies to all future Disclosures sent to Merchant in connection with the Services or this Agreement.

5.34 Legal Effect. By consent, Merchant agrees that electronic Disclosures have the same meaning and effect as if Acquirer provided paper Disclosures to Merchant. When Acquirer sends Merchant an email or other electronic notification alerting Merchant that the Disclosure is available electronically and makes it available online, that shall have the same meaning and effect as if Acquirer provided a paper Disclosure to Merchant, whether or not Merchant chooses to view or print or download the Disclosure.

5.35 Requests for Information. (a) Within three business days of receipt of any request by Acquirer, or sooner as may be required by Acquirer’s regulatory authorities, Merchant shall provide a copy of all Transaction Records and any other documentary evidence available to Merchant; (b) Acquirer may require additional information about Merchant or Merchant’s procedures for accepting Cards.

6. SPECIAL PROVISIONS FOR AMERICAN EXPRESS

Terms Below Are Additional Terms Applicable Specifically to American Express Card Acceptance (capitalized terms below not defined elsewhere in the Agreement shall have the meanings assigned in the American Express Network Rules). With respect to participation in an American Express acceptance program, in the event of a conflict between the terms below and other terms of this Agreement, the terms below shall control with respect to American Express transactions only. Merchant shall be bound by American Express Network Rules, including the Merchant Operating Guide: www.americanexpress.com/merchantopguide.

A) Transaction Data. Merchant authorizes Acquirer and/or its affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express on behalf of Merchant. Merchants shall ensure data quality and shall process transactional data and customer information promptly, accurately, and completely to comply with American Express specifications.

B) Merchant agrees that Acquirer may disclose to American Express information regarding Merchant and Transactions to American Express, and that American Express may use such information: (i) to perform its responsibilities in connection with American Express Card Acceptance; (ii) to promote American Express; (iii) to perform analytics and create reports; and (iv) for any other lawful business purposes, including commercial marketing communications purposes within the parameters of American Express Card Acceptance, and important transactional or relationship communications from American Express. American Express may use the information about Merchant obtained in this Agreement at the time of setup to screen and/or monitor Merchant in connection with American Express marketing and administrative purposes. Merchant agrees it may receive messages from American Express, including important information about American Express products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of Merchant. Merchant may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. Merchant agrees that it may be sent fax communications.

C) Marketing Message Opt-Out. Merchant may opt-out of receiving future commercial marketing communications from American Express by contacting ISO; however, Merchant may continue to receive marketing communications while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude Merchant from receiving important transactional or relationship messages from American Express. The opt-out election is set forth in the Merchant Application.

D) Merchant acknowledges it may be converted from the OptBlue to a direct Card acceptance relationship with American Express if and when it becomes a High Charge Volume Merchant in accordance with AXP rules for “High CV Merchant Conversions”. High CV Merchant is a OptBlue Merchant with either (i) greater than USD $1,000,000 in Charge Volume in a rolling twelve (12) month period or (ii) greater than USD $100,000 in Charge Volume in any three (3) consecutive months. For clarification, if an OptBlue Merchant has multiple Establishments under the same tax identification number (TIN), the Charge Volume from all Establishments shall be summed together when determining whether the Program Merchant has exceeded the thresholds above in American Express’ sole discretion. This acknowledgment is accepted by merchant signature on application and includes express agreement that, upon conversion, (i) the Merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the merchant for Card acceptance.

E) OptBlue accepting Merchants shall not assign to any third party any payments due to it under their respective Merchant Agreements, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Participant, its affiliated entities and/or any other cash advance funding source that partners with Participant or its affiliated entities, without consent of American Express.

F) American Express retains a third-party beneficiary provision, conferring on American Express third- party beneficiary rights but not obligations, to this Merchant Agreement which fully provides American Express with the ability to enforce the terms of the Merchant Agreement against the Program Merchant at its own option.

G) American Express Opt-Out. Merchant may opt out of accepting American Express at any time without directly or indirectly affecting its rights to accept other Cards.

H) Termination of American Express Card Acceptance. Acquirer may terminate Merchant’s participation in American Express Card Acceptance immediately upon written notice if (i) Merchant breaches these Special Provisions, any other term of this Agreement applicable to American Express Card Acceptance, the Card Acceptance provisions of this Agreement, or the American Express Merchant Operating Guide; (ii) Merchant engages in fraudulent activity or other conduct constituting cause; or (iii) American Express requests termination. Upon termination, Merchant must immediately stop accepting American Express Cards and remove all American Express branding and Marks from its website and all other locations.

I) Refund Policies. Merchant’s refund policies for American Express-related Transactions must be at least as favorable as its refund policy for purchase with any Non-Credit Payment Forms, and the refund policy must be disclosed to Cardmembers at the time of purchase and in compliance with applicable Law. For the purpose of this subsection, Non-Credit Payment Forms means any forms of payment other than a (i) general purpose credit or charge card; or (ii) payment card brand name that references both general purpose credit or charge cards and debit cards, such as “Visa” or “MasterCard”. Merchant may not bill or attempt to collect from any Cardmember for any American Express-related Transaction unless a Chargeback has been exercised, Merchant has fully paid for such Chargeback, and it otherwise has the right to do so.

J) Merchant must accept American Express as payment for goods and services (other than those goods and services prohibited by this Agreement or applicable Law) sold, or (if applicable) for charitable contributions made at all of its business locations and websites, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant’s business locations and websites under this Agreement.

K) Merchant or American Express may elect to resolve any claim against each other, or against Acquirer or ISO with respect to American Express-related Transactions, by individual, binding arbitration, decided by a neutral arbitrator.

L) Merchant will comply in full with the American Express Merchant Operating Guide (as the same may be amended from time to time) which can be obtained online at www.americanexpress.com/merchantopguide.

M) American Express has the right to modify the terms of this Section and to terminate Merchant’s acceptance of American Express-related Transactions and to require an investigation of Merchant’s activities with respect to American Express-related transactions.

N) Establishment Closing. If Merchant closes any of its Establishments, Merchant must follow these guidelines: (i) notify ISO immediately; (ii) policies must be conveyed to the Cardmember prior to completion of the Transaction and printed on the copy of a receipt or Transaction record the Cardmember signs; (iii) if not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the Transaction record and on websites and catalogs); (iv) return and cancellation policies must be clearly disclosed at the time of sale; and (v) for Advance Payment Charges or Delayed Delivery Charges, Merchant must either deliver the goods or services for which Merchant has already charged the Cardmember or issue Credit for any portion of the Transaction for which Merchant has not delivered the goods or services.

Acquiring Bank Disclosure: Bank is the sponsor and acquiring bank under this Agreement. Bank is responsible for extending Merchant’s acceptance of Card Brand products and for holding, controlling, and settling funds arising from Merchant’s Transactions. ISO provides program administration and merchant support services on Bank’s behalf, subject to the allocation of responsibilities in this Agreement.

Chesapeake Bank Contact Information: Bank Name: Chesapeake Bank | Address: 97 North Main Street, P.O. Box 1419, Kilmarnock, Virginia 22482 | Telephone: 877-436-9032 Email Address: help@chespay.com

Commercial Bank of California Contact Information: Bank Name: Commercial Bank of California |Address: 19752 MacArthur Blvd., Suite 100, Irvine, CA 92612 | Telephone: 310-882-4866 | Email: bankcard@cbcal.com