HomeMy WebLinkAboutResolution - 2012-R0454 - Contract - Wells Fargo Merchant Services LLS - Merchant Card Services - 11_29_2012Resolution NO. 2012-RO454
November 29, 2012
Item No. 5.4
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, Contract No. 10949 for Merchant Card
Services, by and between the City of Lubbock and Wells Fargo Merchants Services, LLC,
and related documents. Said Contract is attached hereto and incorporated in this
resolution as if fully set forth herein and shall be included in the minutes of the City
Council.
Passed by the City Council on November 29, 2012
GLEN . ROBE SON, MAYOR
ATTEST:
S�'
Rebec a Garza, City Secretary ('�
APPROVED AS TO CONTENT:
Pam Moon, Director of Finance
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vwxcdocs/RES.Contract-Wells Fargo
October 22, 2012
Resolution No. 2012--RO454
CITY OF LUBBOCK, TX
Merchant Card Services
SERVICE AGREEMENT
CONTRACT 10949
This Service Agreement (this "Agreement') is entered into as of the 29th day of November
2012, ("Effective Date") by and between Wells Fargo Bank, N.A. and Wells Fargo Merchant Services,
L.L.C., (collectively, the Contractor),and the City of Lubbock (the "City").
RECITALS
WHEREAS, the City has issued a Request for Proposals 12-10949-DT, Merchant Card Services.
WHEREAS, the proposal submitted by the Contractor has been selected as the proposal which
best meets the needs of the City for this service; and
WHEREAS, Contractor desires to perform as an independent contractor to provide Merchant
Card Services, upon terms and conditions maintained in this Agreement; and
NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City
and Contractor agree as follows:
City and Contractor acknowledge the Agreement consists of the following exhibits which are
attached hereto and incorporated herein by reference, listed in their order of priority in the event of
inconsistent or contradictory provisions:
1. This Agreement
2. Wells Fargo Merchant Services Program Guide form WFB 1405
3. Exhibit A — General Requirements
4. Exhibit B -- Pricing Terms
5. Exhibit C — Retail Locations
6. Exhibit D — Online Payment Locations
7. Exhibit E — Insurance
8. Exhibit F — Proposal
Scope of Work
Contractor shall provide the services that are specified in Exhibit A. The Contractor and the City, as
applicable, shall comply with all the applicable requirements set forth in Exhibit B through F attached
hereto.
Article 1 Services
1.1 The initial term of this Agreement shall commence on January 1, 2013 and shall continue
in force for three years after it becomes effective. Thereafter, it agreed upon by both
parties, this Agreement shall renew for two additional one year terms.
1.2 Contractor agrees to perform services for the City that are specified under the General
Requirements set forth in Exhibit A. The City agrees to pay the amounts stated in Exhibit
B to Contractor for performing services.
1.3 Contractor shall use its commercially reasonable efforts to render Services under this
Agreement in a professional and business -like manner and in accordance with the
standards and practices recognized in the industry pursuant to the terms and conditions of
Wells Fargo Merchant Services Program Guide form WFB1405.
Nonappropriation clause. All funds for payment by the City under this Agreement are
subject to the availability of an annual appropriation for this purpose by the City. In the
event of nonappropriation of funds by the City Council of the City of Lubbock for the
goods or services provided under the Agreement, the City will terminate the Agreement,
without termination charge, on the last day of the then -current fiscal year or when the
appropriation made for the then -current year for the goods or services covered by this
Agreement is spent, whichever event occurs first. If at any time funds are not
appropriated for the continuance of this Agreement, cancellation shall be accepted by the
contractor on thirty (30) days prior written notice, but failure to give such notice shall be
of no effect and the City shall not be obligated under this Agreement beyond the date of
termination.
Article 2 Miscellaneous.
2.1 This Agreement is made in the State of Texas and shall for all purposes be construed in
accordance with the laws of said State, without reference to choice of law provisions.
2.2 This Agreement is performable in, and venue of any action related or pertaining to this
Agreement shall lie in, Lubbock, Texas.
2.3 This Agreement and its Exhibits (A through F) contain the entire agreement between the
City and Contractor and supersedes any and all previous agreements, written or oral,
between the parties relating to the subject matter hereof. No amendment or modification
of the terms of this Agreement shall be binding upon the parties unless reduced to writing
and signed by both parties.
2.4 This Agreement may be executed in counterparts, each of which shall be deemed an
original.
2.5 In the event any provision of this Agreement is held illegal or invalid, the remaining
provisions of this Agreement shall not be affected thereby.
2.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of
any parties otherwise to insist upon strict performance of any provision hereof shall not
constitute a waiver of any subsequent breach or of any subsequent failure to perform.
2.7 This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, representatives and successors and may be assigned by Contractor or the
City to any successor only on the written approval of the other party as further set forth in
the Wells Fargo Merchant Services Program Guide form WFB 1405.
2.8 All claims, disputes, and other matters in question between the Parties arising out of or
relating to this Agreement or the breach thereof, shall be formally discussed and
negotiated between the Parties for resolution. In the event that the Parties are unable to
resolve the claims, disputes, or other matters in question within sixty (60) days of written
notification from the aggrieved Party to the other Party, the aggrieved Party shall be free
to pursue all remedies available at law or in equity.
2.9 Contractor agrees to cooperate with City to reasonably provide information to City
concerning practices and procedures used in performing the Services; general controls
and security practices and procedures; supporting information and calculations regarding
fees and Merchant reports; and compliance with the terms of this Agreement.
Information will be provided to City via email, mail or conference calls and City auditors
will not be provided with physical access to Contractor's facilities, or any facilities of
WFMS's Subcontractors, unless the Parties agree otherwise with respect to any specific
audit request. Contractor shall maintain complete and accurate records, in order for City
to verify the information provided by Contractor. In the event an audit by the City
reveals any errors or overpayments by the City, Contractor shall refund the City the full
amount of such overpayments within thirty (30) days of such audit findings, or the City,
at its option, reserves the right to deduct such amounts owing the City from any payments
due Contractor.
2.10 The City reserves the right to exercise any right or remedy to it by law, contract, equity,
or otherwise, including without limitation, the right to seek any and all forms of relief in a
court of competent jurisdiction. Further, the City shall not be subject to any arbitration
process prior to exercising its unrestricted right to seek judicial remedy. The remedies set
forth herein are cumulative and not exclusive, and may be exercised concurrently. To the
extent of any conflict between this provision and another provision in, or related to, this
document, this provision shall control.
2.11 Notwithstanding any provision to the contrary, City and Contractor acknowledge and
agree that City is a home rule municipal corporation and is prohibited by Article III,
Section 52 and Article XI, Section 7 of the Texas Constitution from indemnifying
Contractor for the acts or omissions of a third party or of the Contractor. City is bound by
all applicable provisons of the Texas Constitution and to the extent any provision of this
Agreement is in violation of the Texas Constitution, said provision shall be void.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date.
CITY OF LUBBOCK, TX:
Glen
A T-4 T:
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT -
Pamela Moon, Director of Finance
A72�
AST FORM:
Chad Weaver, Assistant City Attorney
WELLS FARGO BANK, N.A. AND ,WELLS
FARGO /� HANDSER ES,L L.0
Contractor's Signature
Printed Name
Title
CITY OF LUBBOCK, Tx
RFP 12-10949-DT
Merchant Card Services
II. GENERAL REQUIREMENTS
I INTENT
EXHIBIT A
a) The City of Lubbock (hereinafter called "City") is seeking proposals from interested firms and
individuals, (hereinafter called "Proposer") Merchant Card Services. The selected firm will
provide the City with a comprehensive program. Such program shall include, but not be limited
to utilizing advanced technology to provide a system that will serve the City's present and
anticipated needs. The City is interested in receiving responses from qualified firms who can
provide the technology required to efficiently process and reconcile credit and debit card
activities only (no ACH processing) used to pay for various City services.
b) Offeror's are invited to submit demonstrated competence and qualifications of their firm for
providing these services.
2 PROJECT DESCRIPTION
a) Lubbock, Texas, with a metro area approaching 250,000 and a market area of 1,000,000, is the
entertainment and convention destination for West Texas and Eastern New Mexico. Lubbock is
the home to Texas Tech University, Lubbock Christian University, and branch campuses of South
Plains College and Wayland Baptist University. Ranked as a major center for oil/gas, medicine
and wholesale/retail trade, Lubbock serves as the "hub" for an area larger than many states.
Lubbock is also the center of the vast West Texas cotton industry.
b) Bank of America currently handles the City's merchant card services. The City receives
approximately 17,000 Visa payments, 9,300 Master Card payments, 60 Discover payments, and 5
American Express payments per month which approximate $5 million per month.
c) The City has over 20 terminal locations as described in Exhibit C. The City also has online
payment sites as described in Exhibit D. Each terminal location will set its own minimum and
maximum dollar amounts accepted.
3 SCOPE OF WORK
a) The selected firm will provide the City with a comprehensive program for three years with the
option to renew for two one year periods subject to the terms and conditions of the Wells Fargo
Merchant Services Program Guide form WFB1405. Such program shall include, but not be
limited to utilizing advanced technology to provide a system that will serve present and
anticipated needs. The City is interested in receiving responses from qualified firms who can
provide the technology required to efficiently process and reconcile credit and debit card
activities used to pay for services.
b) The City appreciates the Offeror's expertise and capabilities and does not intend to write a
detailed specification to address every feature and component of the Merchant Card Services.
However, the intent of this Request for Proposal (RFP) is to allow vendors to provide the best
solution given the requirements set forth by the City. This approach enables the City to take
advantage of the most beneficial system available while allowing fair evaluation of all responses
and remaining within standard purchasing procedures established by the City.
EXHIBIT B
PRICING TERMS
****FOR INFORMATIONAL PURPOSES ONLY****
Wells Fargo Merchant Services, L.L.C,- (WFMS - Pricing Terms)
City of Lubbock
Proposal Date: 10106/12
Business Sales Consultant: Heather Wick
Assumptions
Credit Card Volume
$52,000,000
Average Transaction Size
$144
Number of Locations
24
Anticipated Interchange Levels
Public Sector: 032 020I038
MCC Code
9399
MCC Description
GOVERNMENT SERVICES, NOT ELSEWHERE
Communications Method
line charges quoted separately Frame Relay $ Dial
Gateway
Authorize.net
Pricing Option
Interchange + Assessments + Rate + Authorizations
Credit Card Processing Fees 1
Interchange Plus the Fallowing Fees:
0.047% On Gross Visa, MasterCard® and Discover® Network Card Sales
$0.03 On each AuthorizationlEDC attempt (as defined below) 3
PIN Debit 8r Electronic Benefits Transfer (EBT) Processing Fees
$0.05 Per PIN Debit Transaction (applies to completed and declined transactions)
EBT NOT ENTITLED
Applicable PIN Debit Network, Switch, Service and Administrative fees are passed through on all PIN Debit transactions (completed and
declined). Applicable PIN Debit Network Interchange fees are passed through on completed PIN Debit transactions only.
American Express® - See table below for American Express Pass -Through Fees and footnote 1 for any applicable Credit Card Processing Fees
Applicable Fee Schedules: Is
Payment Networks Qualification Matrix https:Nwww.wellsfargo.comlbirlcreditinterchangeptua
Payment Networks Pass -Through Fees https:/Iwww.wellsfargo.comdbizlmerchantpassthroughfees
Visa® Fixed Acquirer Network Fee Schedule https:ilwww.welisfargo.comfvisanetworkfee
PIN Debit Networks Fee Schedule (if applicable) https:Uwww.welisfargo.com/bizlmorchantdobitfoes
If you do not have internet access, please contact your Merchant Card Representative and request that a copy of the
applicable fee schedule be mailed or faxed to you.
Other Processing Fees
Set -Up Fee
$
one time fee per location
_ _ � i
Monthly Minimum Processing Fee 14�
$
per month
Chargeback Fee z
$
5.00 r chargeback _
Mo_nlhl Service FeeI aeE loca_tion
_
_ � per month
Internet Monthly Service Fee er location[ _�__ __ �__
$
_ 20.000er month
Statement Biili Fee (Paper Statements
$
er month
Voice Authorization Fee ,
$
_ _ 0.50 per atteTMmpt._ .___
Annual Fse
$
- per location
_ _
Authorization/EDC Fee -Visa Credit and Non -PIN Debit
_ $
0.003 yET after!! t
A_uthorization/EDC Fee - MasterCard® Credit and Non -PIN Debit 3
_ $
_ 0.03er attempt
Authorization/EDC Fee - DiscoverQD Network Card Credit and Non -PIN Debit) a.s
�
$
_ 0_03 par attempt
Authorization/EDC Fee - American Express OnePoint sn Credit ' 10
Interchange Clearing Feet
Ap lies to Visa, MasterCard, Discover Network Card (Credit and Non -PIN Debit
N —
NIA or attempt
N/A on gross sales volume
Wireless Activation Fee (perlerminalt ._�.v
$
25_00 one time
Wireless Monthly Access Fee er_terminal __ _
$
15.00 per month
Electronic Address Verification Service Fee_ _ _
$
_ 0.0. 1_�er attempt
Voice (Manual) Address Verification Fee _
_$
2.0q_per attempt
Annual Compliance Support Fees
$
per location
_
PCI Com liance Service Program Fee 13
$
- der month, per location
Non -validation PCI Compliance Fee 13
$25.00
per month, per location
Equipment Installation Fee
$
- one time fee
Foreign HandlingCa Fee on VisalMasterrd (oral n card transactions)
_
_
Y 0.10% on tcxe' n card sales
WFB 1405
1116/2012; 3:45 PM Page 1 of 4 Copy of City of Lubbock Pricing Terms 10-05-12.xis
****FOR INFORMATIONAL PURPOSES ONLY****
Wells Fargo Merchant Services, L.L.C.- (WFMS - Pricing Terms)
City of Lubbock
Proposal Data: 10I05I12
Business Sales Consultant: Heather Wick
Credit Card Volume
$52,000.000
Average Transaction Size
$144
Number of Locations
24
Anticipated Interchange Levels
Public Sector: 032 0201038
MCC Code
9399
MCC Description
GOVERNMENT SERVICES, NOT ELSEWHERE
Communications Method
line charges quoted separately Frame Relay & Dial
Gateway
Authorize.net
Pricing Option
Interchange + Assessments + Rate + Authorizations
Other Processina Fees Continued
TeleCheck ECAIWarranty Processing _ _ �— $0.2er check tran.
_ 1.60% on sales__
TeleCheck ECAIWaq my Monthly Minimum _ �
$
25.00 per month
TeleCheck E_CWWaTan ACH Processing_Fee _ _
$
5.OQer occurrence
TeleCheck ECAIWarrpr ty Customer Requested. Operator Call � __—
$
2.50 yer occurrence _
TeleCheck ECAIW "Ety Char eg back Fee — �
$
5.00 per occurrence
TeleCheck ECA/Warr; Research Fee
$�
7.50 per occurrence
Non Bank Card Authorization 7
Applies only to American Express (ESAIEDC), Discover EDC (Discover EDC not
appjiS2.ble on Discover Network Card Sales
$
0.10 per attempt_______
Non Bank Card Capture Fee r
Applies only to American Express (ESAIEDC), American Express - split dial, Discover EDC
Discover EDC not applicable on Discover Network Card Sales) _
$
_ -_�er attest _
Terminal Reprogramming Fee Tenmina—AApplies to Customer Owned Terminals On„yly
$
75.00 per unit
- _
Terminal Reprogramming Fee - Integrated Terminal - Applies to Customer Owned Integrated
Terminals OnI+_ _
$y
150.00per unit— -
S_ecuritty SwaFee for PIN Debit- to Customer Owned PIN Pads 0QUI _
T._
$
Card Imprinter0Qtion _._ _.._— _
no imprinter��_
Rush Shipping Option
NIA
American Express Pass -Through Fees 9
'InqRLq TY2e_ _ _. _ _ _._
__.._ _ _ NIA
American Express Discount Rate tt.1e,17
onGrossAmerican Express
N/A sales_
American Express Transaction Fee Fee to be a lied by American Ex ress 's _
NIA er transaction
American Express Monthly Processing Fee(per location 'a — _
NIA per month
American Express CAPN Non -Compliance Transaction Fee if applicable)
N/A per transaction
1) The Credit Card Processing Fees will apply to American Express OnePoint Clients that are priced using the Interchange + Assessments +
Authorizations; Interchange + Assessments + Rate + Authorizations; Interchange + Assessments + Authorizations + Debit (PIN and Non -PIN);
and Interchange + Assessments + Rate + Authorizations + Debit (PIN and Non -PIN) pricing methods. "Discover Network Cards'as used herein
refers to the authorization, processing and settlement of Discover Network Cards. "Discover EDC" as used herein refers to the use of our services
for authorization andlor capture of Discover Network Cards only.
2) Client acknowledges and understands that an authorization only Indicates the availability of the Cardholder's credit at the time the authorization
is requested. It does not warrant that the person presenting the card is the rightful Cardholder, nor is it an unconditional promise or guarantee
that Client will not be subject to a chargeback or debit.
3) Authorizatlon/EDC Fee applies to all Visa, MasterCard, Discover Network Card and American Express OnePoint approval (pre -authorizations,
authorizations and authorization reversals), denials, batch inquiries, batch entry transactions and includes any transaction fees and capture fees.
5) The Annual Compliance Support Fee will be assessed and deducted from Client's Settlement Account at each anniversary date after the
effective date.
5) Discover Authorization/EDC Fee applies to Clients that process transactions using Discover Network Cards,
7) Non Bank Card Authorization and/or Capture Fee applies to those merchants that process transactions using American Express (ESAlEDC),
American Express - split dial and Discover EDC.
8) The monthly Statement Billing Fee ran be waived if Client elects to access the monthly statement online instead of receiving a paper copy
by mail. Please visit myclientline.net to enroll. After ClientLine has been activated, please contact Customer Service at 1-800-451-5817 to
request that paper statements no longer be mailed. If ClientLine access is terminated by Client or as a result of inactivity, paper statements
will be reinstated with the applicable monthly Statement Billing Fee.
9) American Express Processing Fees are listed separately in the American Express Pass -Through Fees table and will be
billed as separate line items. These fees are defined according to American Express criteria as set by industry type (MCC). Changes to the
American Express Discount Rate are at the discretion of American Express, including changes to industry type criteria based on MCC -
'American Express OnePoint' refers to the authorization, processing and settlement of American Express Cards. "American Express (ESA/EDC)
and Split Dial" refer to the use of our services for authorization and/or capture of American Express Cards only.
10) American Express OnePoint Authorization/EDC Fee applies to Clients that process transactions using American Express OnsPoint.
11) Retail and Restaurant Clients processing under the American Express OnePoint Program or the American Express ESA Program will be charged
a 0.30% downgrade fee whenever a Card Not Present transaction occurs.
WFH 1405
11/612012; 3:45 PM Page 2 of 4 Copy of City of Lubbock Pricing Terms 10-05-12.xis
****FOR INFORMATIONAL PURPOSES ONLY****
Wells Fargo Merchant Services, L.L.C.- (WFMS - Pricing Terms)
City of Lubbock
Proposal Date: 10105112
Business Sales Consultant: Heather Wick
Credit Card Volume $52,000,000
Average Transaction Size $144
Number of Locations 24
Anticipated Interchange Levels Public Sector: 032 020/038
MCC Code 9399
MCC Description GOVERNMENT SERVICES, NOT ELSEWHERE
Communications Method line charges quoted separately Frame Relay & Dial
Gateway Authorize.net
+ Assessments + Rate + Authorizations
12) Client will be charged the Monthly Processing Fee if Client meets the monthly processing fee criteria set forth by American Express.
Should Client no longer meet the monthly processing fee criteria, Client's pricing will be automatically adjusted from the Monthly Processing Fee
to the applicable industry discount rate and transaction fee (if applicable) as provided to the Client by American Express. Please note that Client
will only be charged (1) the monthly processing fee; (2) the applicable industry discount rate; or (3) the applicable industry discount rate and
transaction fee.
13) The monthly PCI Compliance Service Program Fee and Non -validation PCI Compliance Fee are part of the mandatory PCI Compliance
Service Program. These fees apply to level 4 Clients who utilize a gateway or value added reseller (VAR). The program includes access to
TrustKeeper, a Trustwave PCI Compliance solution to help Client comply with the Payment Card Industry Data Security Standards (PCI DSS)
requirements. Clients are required to register and complete a PCI DSS certification process by visiting https://pef.trustweve.ccmlvmllsfargo.
If Client does not comply or fails the PCI DSS certification process, Client will be charged a monthly Non -validation PCI Compliance Fee until the
account becomes compliant.
14) If the total discount fee for Visa, MasterCard and Discover Network Card transactions in a given month is less than the Monthly Minimum
Processing Fee, then in addition to the total discount fee Client will be charged an amount equal to the Monthly Minimum Processing Fee minus
the total discount fee.
15) Dues, assessments and pass -through fees are disclosed in the schedules referenced under the "Applicable Fee Schedules" section
and the related footnote.
16) For Clients processing under the American Express OnePoint Program or the American Express ESA Program, American Express will charge
a Prepaid/Gift Card rate of $0.20 per transaction to Supermarket Clients and 1.95% on gross sales volume to non -Supermarket Clients.
17) For Clients processing under the American Express OnePoint Program or the American Express ESA Program, an Inbound Fee of 0.40% will
be applied to any transaction using an American Express Card issued by an issuer located outside of the United States. This fee will not apply to
international PrepaWGift Card transactions and Clients in the Education industry within the following categories: Sporting & Recreation Camps (MCC 7032).
Elementary & Secondary Schools (MCC 8211), Colleges, Universities, Professional Schools (MCC 8220), and Child Care Services (MCC 8351).
18) The Interchange Clearing Fee (ICF) will be charged on transactions that may be considered higher risk and/or are processed at a higher
expense level. These types of transactions can be identified on Client's Payment Networks Qualification Matrix by looking at the'ICF applies' column.
If the interchange program level has been identified by a "YES" in this Column, then the ICF will apply to that type of transaction.
If Client has selected to accept TeleCheck Services, see Part II - Section 1 of the Program Guide for the terms and conditions. If applicable, the
Additional Services page will contain the fees and rates billed to Client by TeleCheck.
If Client does not follow proper authorization procedures, a $50 chargeback handling fee will be assessed on MasterCard transactions.
American Express may charge Client an excessive disputes fee in the amount of $5 for each Disputed Charge if Client is in American Express' Immediate
Chargeback Program or $15 for each Disputed Charge if Client is not in the Immediate Chargeback Program.
Client is responsible for any charges assessed by outside third parties that are not disclosed on the proposal. To the extent that this pricing
proposal includes pricing for third party products and services, WFMS disclaims legal liability and responsibility for said products and
services. Client's agreement with the third party provider shall govern Client's relationship with the third party provider. In the event that
WFMS is billed for the third party s services, Client will reimburse WFMS for such services.
Client acknowledges and understands that WFMS shall have no responsibility or liability for any third party hardware or software procured and
used by Client. To the extent Client has any issues, concerns or liability related to such hardware or software, Client must deal directly with
the third party provider from whom Client procured the hardware or software. In no event will WFMS be responsible for any indirect,
incidental or consequential damages that Client may incur as a result of using any third party hardware or software.
WFMS' proposal and associated pricing is based on the information provided. Any difference to our stated understanding may affect the
proposed pricing. Without a signed agreement, this proposal expires 60 days from the proposal date stated above.
See Section 39.3 of the Program Guide for early termination fees.
Rounding. In the event the amount being billed to Client for any line item on this pricing proposal includes a total ending in less than a full cent,
WFMS will either round such amount up or down to the nearest cent.
Fees for supplies, shipping, handling, and applicable sales tax may apply and are subject to change without notice. Additional information is
available upon request.
WFB 1405
1116/2012; 3:45 PM Page 3 of 4 Copy of City of Lubbock Pricing Terms 10-05-12.xls
***"FOR INFORMATIONAL PURPOSES ONLY****
Wells Fargo Merchant Services, L.L.C.- (WFMS - Pricing Terms)
City of Lubbock
Proposal Date: 10105112
Business Sales Consultant: Heather Wick
Credit Card Volume
$52,000,000
Average Transaction Size
$144
Number of Locations
24
Anticipated Interchange Levels
Public Sector: 032 020/038
MCC Code
9399
MCC Description
GOVERNMENT SERVICES, NOT ELSEWHERE
Communications Method
line charges quoted separately Frame Relay & Dial
Gateway
Authorize.net
Pricing Option
Interchange + Assessments + Rate + Authorizations
Additional Notes:
Terms and Conditions of WFMS - Pricing Terms:
1) Pricing assumes no material change from the pricing parameters provided to WFMS. Pricing may require a re-evaluatlon if
the pricing parameters change.
Annual Net
Card Type Annual Net Sales Volume Transactions Average Ticket
Visa / MasterCard 1 Discover - Dial $4,000,000 54,795 $73.00
Visa 1 MasterCard /disccver - Internet $48,000,000 305,732 $157.00
2) Should any terminal require a reprogramming for credit card, non-bankcards or debit cards, the reprogramming charge is $75 per terminal and
$150 per terminal with an integrated PIN Pad. This price includes download and telephone training. Customer owned PIN Pads
require encryption and are charged a security swap fee of $125 per PIN Pad.
3) This pricing proposal assumes that the City of Lubbock will utilize First Data Merchant Services' North authorization
network and First Data Merchant Services' North settiementlreporting platform.
4) Should the City of Lubbock require development needs of unique functionalities outside of certification,
the City of Lubbock will be billed $85 per hour of programming needed.
5) On -site service, outside of training provided by the Relationship Manager, will be billed at a rate of $70 per hour. Travel related
costs will be passed through to the City of Lubbock.
Processing Solutions
Type
Quantity Financing Method
Total w/o TAX
Authonze_net
Purchase
NIA
FD100Ti
Purchase
$207 per terminal
FD2001 i
Purchase
$406 per terminal
FD40OGT GPRS
Purchase
$584 per terminal
FD35 EMV PIN Pad
Purchase
$135 per PIN Pad
FD100Ti
tease 46
$18 per month per terminal
F0200Ti
Lease 48
$22 per month per terminal
F040OGT GPRS
Lease 48
$27 per month per terminal
F035 PIN Pad
Lease 48
$ 8 per month per PIN Pad
WFB 1405
11/612012; 3:45 PM Page 4 of 4 Copy of City of Lubbock Pricing Terms 10-05-12.xts
Department
Animal Services
Buddy Holly Center
Building Inspection
City of Lubbock Accounting
City of Lubbock Landfill
City of Lubbock Landfill
City of Lubbock Library
Civic Center
Environmental Inspection
Services
Fine Arts Center
Health Department
Health Department
Lake Alan Henry Kiosk
Lake Alan Henry Permits
Municipal Court
Office of the City Secretary
Parks Department
Police Administration
Silent Wings Museum
Water Treatment Plant
Department
LP&L Online
Municipal Court
Buddy Holly Center
Airport
Location
401 N. Ash, Lubbock TX
1801 Crickets Ave, Lubbock TX
1625 13t' St, Lubbock, TX
1625 13'` St, Lubbock TX
17304 North FM 2528,
Abernathy TX
8425 N Ave P, Lubbock TX
1306 9`s St, Lubbock TX
1501 Mac Davis Lane, Lubbock
TX
1902 Texas Ave, Lubbock TX
4215 University Ave, Lubbock
TX
1902 Texas Ave, Lubbock TX
Mobile Unit
2706 Boat Ramp Rd, Justiceburg
TX
1611 10'h St, Lubbock, TX
915 Ave J, Lubbock TX
1625 13t' St, Lubbock TX
1611 10`s St, Lubbock TX
916 Texas Ave, Lubbock TX
6202 N I-27, Lubbock TX
6001 North Guava, Lubbock TX
Location
1301 Broadway, Lubbock TX
915 Ave J, Lubbock TX
1801 Crickets Ave, Lubbock TX
5401 N MLK Blvd, Lubbock TX
EXHIBIT C
Terminal Locations
Cards Accepted
Visa, MasterCard, Discover
Visa, MasterCard, Discover,
American Express
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover,
American Express
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
Visa, MasterCard, Discover
EXHIBIT D
Online Payment Locations
System(s) Used
CDS Global
Authorize.net
Authorize.net
Republic Parking Services
EXHIBIT E
INSURANCE
SECTION A. Prior to the approval of this contract by the City, the Contractor shall furnish a completed
Insurance Certificate to the City, which shall be completed by an agent authorized to bind the named
underwriter(s) to the coverages, limits, and termination provisions shown thereon, and which shall furnish
and contain all required information referenced or indicated thereon. THE CITY SHALL HAVE NO
DUTY TO PAY OR PERFORM UNDER THIS CONTRACT UNTIL SUCH CERTIFICATE SHALL
HAVE BEEN DELIVERED TO THE CITY.
INSURANCE COVERAGE REQUIRED
SECTION B. The City reserves the right to review the insurance requirements of this section during the
effective period of the contract and to require adjustment of insurance coverages and their limits when
deemed necessary and prudent by the City based upon changes in statutory law, court decisions, or the
claims history of the industry as well as the Contractor.
SECTION C. Subject to the Contractor's right to maintain reasonable deductibles in such amounts as are
approved by the City, the Contractor shall obtain and maintain in full force and effect for the duration of
this contract, and any extension hereof, at Contractor's sole expense, insurance coverage written by
companies approved by the State of Texas and acceptable to the City, in the following type(s) and
amount(s):
Tyne
Worker's Compensation or
Employers Liability
Commercial General Liability per Occurrence
Endorsements
General Aggregate
Products/Op AGG
Personal & Adv. Injury
Contractual Liability
Automobile Liability
a. Any Auto
Amount
Statutory
Combined single limit for bodily
injury and property damage of
$1,000,000 per occurrence or its
equivalent.
Combined single limit for bodily
injury and of $500,000 per
occurrence or its equivalent
The City of Lubbock shall be named as primary additional insured on auto/general liability with a
waiver of subrogation in favor of the City on all coverage's and include products of completed
operations endorsement. All copies of the Certificates of Insurance shall reference the RFP or proposal
number for which the insurance is being supplied. Copies of all endorsements are required.
ADDITIONAL POLICY ENDORSEMENTS
The City shall be entitled, upon request, and without expense, to receive copies of the policies and all
endorsements thereto and may make any reasonable request for deletion, revision, or modification of
particular policy terms, conditions, limitations, or exclusions (except where policy provisions are
established by law or regulation binding upon either of the parties hereto or the underwriter of any of such
policies). Upon such request by the City, the Contractor shall exercise reasonable efforts to accomplish
such changes in policy coverages, and shall pay the cost thereof.
REQUIRED PROVISIONS
The Contractor agrees that with respect to the above required insurance, all insurance contracts and
certificate(s) of insurance will contain and state, in writing, on the certificate or its attachment, the
following required provisions:
a. Name the City of Lubbock and its officers, employees, and elected representatives as additional
insureds, (as the interest of each insured may appear) as to all applicable coverage;
b. Provide for 30 days notice to the City for cancellation, nonrenewal, or material change;
c. Provide for notice to the City at the address shown below by registered mail;
d. The Contractor agrees to waive subrogation against the City of Lubbock, its officers, employees,
and elected representatives for injuries, including death, property damage, or any other loss to the
extent same may be covered by the proceeds of insurance;
e. Provide that all provisions of this contract concerning liability, duty, and standard of care together
with the indemnification provision, shall be underwritten by contractual liability coverage
sufficient to include such obligations within applicable policies.
f. All copies of the Certificates of insurance shall reference the project name or proposal number for
which the insurance is being supplied.
NOTICES
The Contractor shall notify the City in the event of any change in coverage and shall give such notices not
less than 30 days prior the change, which notice must be accompanied by a replacement CERTIFICATE
OF INSURANCE.
All notices shall be given to the City at the following address:
Marta Alvarez, Director of Purchasing & Contract Management
City of Lubbock
1625 13`s Street, Room 204
Lubbock, Texas 79401
SECTION D. Approval, disapproval, or failure to act by the City regarding any insurance supplied by
the Contractor shall not relieve the Contractor of full responsibility or liability for damages and accidents
as set forth in the contract documents. Neither shall the bankruptcy, insolvency, or denial of liability by
the insurance company exonerate the Contractor from liability.
EXHIBIT F
WELLS FARGO PROPOSAL
EXHIBIT F
Appendix A
General Information
Name of Organization
Wells Fargo Merchant Services LLC
Address
Wells Fargo Bank, NA
150o Broadway
Lubbock, TX 79401
Contact Name:
Raine Young
Sr. Business Relationship Manager, Business Banking
Vice President
Phone/Fax Numbers:
8o6-767-7473(office)
8o6-548-0279(cell)
806-767-7465(fax)
E-mail Address:
Raine.l.young@weRsfargo.com
Years in Business:
36 Years of Merchant Services Business
Please provide a copy of your Federal and/or State Certification and F.E.I.N.
Wells Fargo Merchant Services LLC. Tax Id #68-0338392.
Please see Exhibit VII
Executive Summary
Provide an overview of the firm's merchant service experience:
For over 30 years, Wells Fargo has been leading the Payment Processing Industry with
innovative payment solutions and the superior service and support that businesses need to
efficiently process card payments while protecting cardholder information.
In 1976, Wells Fargo was the first bank to offer electronic authorization of Visa@ and
MasterCard@ transactions. And in 1995, Wells Fargo became the first bank to process secure
Mk credit card transactions of the Internet, when it was still in its infancy.
UY
October 2ou J Wells Fargo Merchant Services, LLC
In 1993, Wells Fargo and First Data, a global technology leader in information commerce,
created a joint venture called Wells Fargo Merchant Services, L.L.C. Today, Wells Fargo
Merchant Services, L.L.C. ranks as one of the largest credit card processors in the country,
serving more than 158,000 businesses in every state in the U.S. and processing over $16o billon
in transactions annually.
The City of Lubbock `vill have access to ClientLine, the Wells Fargo Merchant Services online
reporting tool. From any Internet -based PC, you can access and analyze transaction detail for
all card types, conduct sales audits, manage processing fees, reconcile your checking account,
investigate chargebacks, protect against losses, view historical information for analysis and
manage cash flow.
Municipal/Governmental Experience
How many years have you served municipal and public sector clients?
Wells Fargo Merchant Services has served municipal clients throughout our 36 year history. For
the past 36 years, we have provided our municipal and public sector clients with a dedicated line
of business. With our experience in this sector, we know the products and processes used and
the governmental codes required for processing.
Municipal Clients
Please list the municipalities that you currently provide merchant card services or
have in the past:
Wells Fargo Merchant Services maintains confidentiality agreements with all of our customers.
do In our efforts to protect client confidentiality, Wells Fargo Merchant Services does not supply
vast reference information during the initial RFP response process. With the consent of our
clients, we would be glad to provide reference information upon our selection as a finalist. We
would extend to you, as our client, the same consideration. However we have provided 3
references for you to contact as an exception.
Customer Service
Is customer service available 24/71 How is it provided (phone or email)? Are there
any charges for technical or customer support services?
The City can obtain client services, technical support, and terminal support from Wells Fargo
Merchant Services 24 hours a day, 365 days a year at no charge. Our commitment to service
excellence is one of the primary reasons customers do business with us. Your relationship
manager will be available to assist you as well.
Describe the promotional support you provide (e.g., signs, supplies, funds for
specific purposes, advertising allowance). Is there any additional cost for this
support?
Wells Fargo Merchant Services supplies Visa, MasterCard, and Debit network signage at no
charge. We are happy to discuss this in a more detailed discovery conversation. Please feel free
to call Kimberly Rotto at 817-334-7192 for a more in depth discussion around the City's specific
, promotional needs.
October 2012 1 Wells Fargo Merchant Services, LLC
r..
Will a specific customer service representative be assigned to handle this
business? Describe the responsibilities of the customer service personnel,
including the chain of command for problem resolution.
Wells Fargo Merchant Services will assign the City a merchant services relationship manager
who is responsible for providing proactive account management and superior ongoing support.
In his/her absence, there will be a dedicated backup relationship manager assigned to your
account as well. Duties your Relationship Manager will assist you with will include, but are not
limited to:
Information Securb Conssiting -- Cardholder information security is extremely important.
Wells Fargo Merchant Services will work with you and our preferred vendors to ensure that the
City meets all requirements for Payment Card Industry (PCI) Data Security Standards.
Association Compliance Reviews and Updates — All merchants must comply with Visa and
MasterCard operating regulations. From time to time the Associations introduce new rules and
your Merchant Relationship Manager will help ensure that you are kept up to date and work
with you as needed, if variances or extensions are warranted.
Interchange Management — Your Merchant Relationship Manager can review your transaction
activity with you to help ensure that your business is achieving the best possible interchange
qualification rate and will provide guidance and suggestions for optimizing transaction
processing.
Chargeback Analysis — Customer Service can provide you with a detailed analysis of your
chargeback activity, by chargeback reason code and will suggest ways that you can reduce
chargebacks.
Chargeback Triage — Visa and MasterCard require that chargeback to sales ratios are not
excessive. Wells Fargo Merchant services will proactively monitor your merchant account to
identify trends that may indicate a growing problem with Chargeback and recommend strategies
and tactics to reduce chargebacks. If chargeback volumes exceed Association parameters, Wells
Fargo Merchant Services will partner with you to develop a Chargeback Reduction Plan and will
work with the Associations to communicate your plans and progress.
Does the firm have scheduled periodic meetings with customers or client advisory
groups to review the service?
Yes. Wells Fargo Merchant Services conducts annual meetings with our customers to perform a
merchant business review. The main topics that are covered are processing sales, chargebacks,
Interchange qualification, trends or patterns, and new products and services. We cater these
meetings to our customers and can schedule them as often as needed.
Wells Fargo Merchant Services also offers various customer focused events including, but not
limited to, Customer Advisory Councils, Global Payment Conferences, PCI Conferences, and RM
Meetings, etc.:
October 2= 1 Wells Fargo Merchant services, LLC 10
• Global Payments Conference: Wells Fargo Bank hosts an annual Global Payments
Conference exclusively for our customers, at no charge. Particular emphasis is placed on
the use of technology — electronic products and services enhancements that will help
reduce costs and increase efficiencies.
Is PCI Annual Conference: The Merchant Relationship Management Team host an annual
conference for clients to keep updated on PCI compliance updates and changes in the
industry that is being regulated to help in the fight against fraud.
• Relationship Management Meetings: Scheduled on a frequent basis (either by phone or
in person) to discuss the merchant's overall card processing performance experience.
Also, our Merchant Relationship Managers will work with you to schedule meetings to
discuss interchange qualification, chargeback reduction, compliance, industry change
and other topics as the needs arise.
What are the hours of operation for the customer service unit in the Central Time
Zone?
Wells Fargo client services, technical support, and terminal support are available to the City 24
hours a day, 365 days a year. Upon implementation, you will be provided with an array of
technical and customer support contacts in addition to your dedicated relationship manager
contact information.
Are there established turnaround times for research items? If so, specify.
Wells Fargo Merchant Services makes every effort to adhere to a 48-hour turnaround for
research items. The City's Merchant Services relationship manager will notify you should a
research item require more than 48 hours for resolution.
Do you offer technical support for the software you provide? If so, provide the
hours of support operations.
Yes. Wells Fargo client services, technical support, and terminal support are available to the City
24 hours a day, 365 days a year. Upon implementation, you will be provided with an array of
technical and customer support contacts in addition to your dedicated merchant relationship
manager contact information.
How will you help the City to reduce merchant services costs and manage
downgrades? What reporting and tools does the firm have to assist in this process?
Your dedicated Merchant Services Relationship Manager will provide interchange management
and chargeback consulting by reviewing your transaction activity to identify preventable
downgrades. The City of Lubbock will also have access to ClientLine, the Wells Fargo Merchant
Services online reporting database.
We have robust online reporting tools to help you understand and analyze your processing. Our
free ClientLine system, available through our Business Track portal is incredibly flexible and
reliable. The rates and analysis module within ClientLine allows merchants to easily identify
October 2012 1 Wells Fargo Merchant Services, LLC it
locations with higher processing costs. Users are able to effectively manage expenses by drilling
down on a specific clearing plan to identify the locations contributing to the total. The module
also identifies outlets that are processing transaction that are not qualifying at the priced
interchange level, and in the process can potentially decrease expenses. Re-education and
dissemination of best practices will be provided as a resolution. These factors will continue to be
monitored to ensure that you are operating as efficiently as possible. The frequency of the
account monitoring will be determined by the client. We have provided information for you as
Exhibit II at the end of this proposal to show you examples of Clientl ine.
Describe the dispute process and procedures for both cardholders and merchants.
Once Wells Fargo Merchant Services sends a chargeback request, the merchant has 12 calendar
days from the date on the request to fax a clear and legible copy of the sales record. It is
important to gather as much information about the transaction as possible and to provide a
comprehensive response to the request. If the merchant has already issued a credit, a copy of the
credit record, including the date and the amount that the cardholder account was credited, must
be provided to Wells Fargo Merchant Semites. Merchants should always respond to chargeback
notices, even if a credit has already been issued.
To dispute a chargeback, the merchant must provide a clear copy of the sales order within 12
business days showing:
• Date of original sale or credit
• Cardholder's account number and name
• Description of goods and services
• Total amount of the sale
Total amount of the chargeback
Date of authorization and approval code
Dated cover letter detailing the reasons for requesting a review of the chargeback, including
information about the steps taken to prevent the chargeback and documentation to support the
dispute (it is important to clearly explain why the customer's complaint is not valid)
Any other supporting documentation such as an AVS code, delivery confirmation (preferably by
cardholder), and the correspondence with the cardholder should be included
Merchants should retain a copy of all correspondence and documentation for record keeping
purposes. If the documentation is received within reversal timeframes and the dispute warrants
a reversal of the chargeback to the card issuer, Wells Fargo Merchant Services will reverse the
item back to the card issuer and the merchant account will be credited.
It is important to note that the reversal is contingent upon acceptance of the defense by the card
issuer and/or the cardholder. The item may be re -presented a second time and in some cases a
third time and the merchant account will be debited accordingly. A reversal is not a guarantee
that the chargeback has been resolved in the merchant's favor.
What are the procedures to correct duplicate transactions? Does your system
identify and eliminate duplicate transactions automatically? Describe process.
Transactions suspected as duplicates are rejected to our Integrated Suspense Processing System.
Wells Fargo Merchant Services then reviews these items and, when we determine a transaction
is a duplicate, we send a letter to the merchant containing the transaction detail as supporting
documentation. Our letter instructs the merchant to take no further action if the transaction is a
true duplicate. If the merchant believes the transaction was valid, the letter also contains
October 2012 1 wells Fargo Merchant Sentiees, LLC 12
instructions for contacting the Wells Fargo Merchant Services client services team, who will
then submit the transaction to our Funding Investigation Unit for reprocessing.
Does the firm offer processing solutions to perform (a) deferred billing, (b)
installment billing and (c) recurring billing?
Yes. We offer all of the above.
Describe maintenance and replacement services for leased equipment.
Purchased equipment has a one-year full replacement agreement and after that year, Wells
Fargo Merchant Services would offer the City an equipment swap out for a charge. Rental
equipment is swapped out at no cost if it malfunctions and leased equipment is swapped out at
no charge during the term of the lease. A new lease may be required if the same equipment the
City has is no longer available.
Do you periodically provide cost -of -acceptance analyses for clients to ensure the
best application and advantage?
Yes. Your merchant relationship manager will work with you regularly to ensure the lowest cost
and application. Wells Fargo Merchant Services will work with you to gain the most advantage
with regard to cost of acceptance.
Information Reporting
Complete and timely online reporting is a critical factor for the City. The City
requires full online reporting, and download capabilities at each location,
including the ability to define and sort information at various levels. Reporting
should be comprehensive and allow for customization.
The transaction information should include the following information:
• Operator identification number
• Last four digits of cardholder number
• Date and time of transactions
• Unique trace or reference number
• Card type, for example, MasterCard or VISA
• Accepted/declined status
• Sale/return code
• Authorization/approval code
• Dollar amount of transaction
October 2012 1 wells Fargo Merchant Services, LLC 13
All of the above are included through our ClientLine reporting suite. The chart below is an
Rpillustration of how we report.
ClientUne allows you to access and manage your accounts 24 hours a day, 7 days a week, giving
you instant access to transaction reports and all four major credit cards on one statement. No
set up fees, no monthly fees.
Please see our online demo at: www.myclieutline.net
Improve your cash management capabilities:
• Review bank deposits, reconcile activity, research transactions, and more
• Get a quick snapshot of your processing information such as recently settled transactions
and bank deposits.
Reduce costs and save time
• Eliminate the storage and cost of paper statements with easy access to online statements
• Investigate and track chargebacks and retrieval requests efficiently
• Perform analysis and generate reports
Access and build customized reports
• Run and schedule reports for the location or group of locations of your choice and get
therm delivered to you by email or fax
• Identify sources of transactions with higher processing costs with the "rate analysis tool."
Describe and illustrate your reporting capabilities:
Describe all reports available and the software used to receive and view reports.
Provide an overview of reporting cycles, procedures, and capabilities. Provide a
sample of each detail and summary report available or a link to sample reports
online. Are all information and all reports available on the Internet? Define the
download capabilities, level of customization, and drill down capabilities
available on online reporting and reports. Describe the daily and/or monthly
reconciliation reports available to the merchant. Define:
• standard reports (transaction reports, funding reports, etc.)
• special reporting capabilities
• level of detail available
• retrieval capabilities
• imaging capabilities
• access mode
• reporting frequency
0
October 2oi2 I Wells Fargo Merchant services, LLC 14
Please see full reporting description below as well as samples provided as Exhibit 11 attached to
this proposal.
The City of Lubbock will have access to C1ienLine, the Wells Fargo Merchant services online
reporting tool. From any Internet -based PC, you can access and analyze transaction detail for
all card types, conduct sales audits, manage processing fees, reconcile your checking account,
investigate chargebacks, protect against losses, view historical information for analysis and
manage cash flow.
Reports available through ClientLine include:
• Sales Audit — Reconcile the amount submitted with the amount processed.
• Checking Account Reconciliation —Reconcile the amount processed with the amount
funded in the deposit account.
• Chargeback Inveigation — Most chargebacks are caused by the procedure failure at the
time when a transaction is first processed. The ability to investigate chargebacks and
identify root causes can help your reduce the frequency and cost of future chargebacks.
• Media Retrieval 'Lacking -- Merchants must respond to all media retrieval requests
within 12 days or waive requested rights to the resulting chargeback. Reporting and
tracking will help you stay in compliance.
• Interchange Rate .Analysis — Allows merchants to identify transactions with higher
processing costs.
• Historical Trend Analysis — Measures financial and operational performance
• Cardholder/Customer Inquiries — Allows for easy access to cardholder transaction
information when cardholders initiate inquiries about sales or credit transactions.
• Fraud Investigation — Allows the merchant to research suspicious cardholder activity.
The flexibility of the ClientLine reporting database enables the creation of many types of reports
containing merchant specific, chosen information. For the best experience, we suggest you log
on to the online tutorial at www.MyClientLine.neA.
What is the standard delivery time frame for reports and statements? What
alternatives are available?
The ClientLine reporting database is updated every 24 hours. Paper statements are available
monthly.
Please see full reporting description below as well as samples provided as Exhibit II attached to
this proposal.
What delivery methods are used for reports (e.g., mail, email, and fax) on reports
and statements?
The Report Scheduler feature can deliver all reports directly to the Merchant's email box or fax
40 machine in PDF, Doc, XLS, or CSV format. They can be scheduled to arrive daily, weekly,
monthly, quarterly, or annually. Merchant can view all of this information online or have it
October 2012 1 Wells Fargo Merchant services, LLC 15
delivered via the scheduler. Because of the level of details and options, we suggest that the City
of Lubbock log on to the online tutorial at www.MyClientiine.net.
Please see full reporting description below as well as samples provided as Exhibit II attached to
this proposal.
Does the firm retain or archive reports for clients? Can all reports be downloaded?
Is historical information regarding sales, refunds, and chargebacks maintained in
a database for access by the merchant? If a merchant needs historical reports
(from a previous reporting period) or a specific time frame how are they made
available? How far back are reports available? How long is reporting data stored in
your system? How much time does it take to retrieve historical reports or data?
ClientLine, the Wells Fargo Merchant Services online reporting database, will allow you to
access historical detailed information for up to 6 months and summary reports for up to 18
., ,
Batch Summaries 6 months + current month
Cardholder detail _s 6 months + current month
Authorization list and detail 3 months + current month
Chargeback lists 5 months + current month
E Chargeback detail 6 months + current month
Checking account transfer 5 months + current month
Online outlet statement 6 months + current month
Financial history 18 months
Historical information not accessible on ClientLine is achieved for time periods mandated by the
Card Networks. The amount of time required for retrieval is contingent on the specific
information being requested.
Please see full reporting description below as well as samples provided as an Exhibit II attached
to this proposal.
Describe how multiple merchant numbers are reported and the flexibility afforded
the merchant for customizing the reports. Can the merchant "roll up" specific
groups for reporting independent of other groups?
Multiple merchant numbers are reported and the merchant can "roll up" specific groups for
reporting, independent of other groups. ClientLine supports hierarchy methodology to access
and group locations by their relationship to each other, to banks, and to external business
entities. Merchants can have access to view their information at the lead corporate, corporate,
or location level. Please see full reporting description below as well as samples provided as
Exhibit Il attached to this proposal.
October 2012 1 Wells Fargo Merchant Servims, LLC 16
Lead -Corporate Level (corporate)
Identifies if multiple chaining instructions are
(Non -Mandatory)
part of a large corporation. Allows entitled
users to view reporting from Lead Corporate
Level down to Location Level.
Corporate Level (chain)
Identifies if the merchant structure is a single
chain or part of a corporation. Allows entitled
(Mandatory for multiple outlets of same
users to grew reporting from Corporate Level
company)
down to Location Level.
Location Level (outlet)
Identifies that the merchant structures is at
the location level only and is not part of a
(Mandatory for single -location merchants)
chain or corporation. Allows entitled users to
view Location Level reporting only.
Can reports be tailored to send specific sections, for example, report groups
comprising a subset of merchant numbers, to different locations? Is there an
additional cast for this service? What charges are involved in customized reports?
Yes. ClientLine offers the opportunity to create unique "groups" of your locations by selecting
the locations of your choice and running scheduled reports based on those unique groups. The
unique group names can easily identify each segment of your portfolio and can be continually
applied to scheduled reports in the future.
Once groups have been created, The City can easily go back into the system and add or delete
locations to or from a specific group. The group selection can only be used if your access is set at
the corporate level or higher and multiple locations are rolling up to your corporate level access.
Reporting is free of charge.
Can reports be tailored to specific financial accounting time schedules?
Yes. Data within ClientLine can be sorted by calendar days or months or can be exported to an
Excel document for sorting. Please see full reporting description below as well as samples
provided as Exhibit lI attached to this proposal.
Describe ad hoc reporting capabilities.
There are many options for the types of reports that the City can generate. Custom reporting/ad
hoc needs will be discussed and identified during our initial discovery call. We would be able to
provide specific reports that meet your needs at that time.
Do reports encompass/include AMEX and Discover transactions for reconciliation
and research purposes?
Yes. Please see full reporting description below as well as samples provided as Exhibit II
attached to this proposal.
October 2oiz f Wells Fargo Menhwit Services, LLC 17
Describe the training and re-training available for the firm's reports.
Training is available from implementation and throughout your relationship with Wells Fargo.
Provide a sample statement.
Please see full reporting description below as well as samples provided as Exhibit II attached to
this proposal.
October 2012 1 Wells Fargo Merchant Services, LLC iS
Reporting Summary
Our online reporting system lets you access your payments -related data quickly
and easily so you can focus on putting that information to work for you. From any
internet-based PC, you can access and analyze transaction detail for all card
types, conduct sales audits, manage processing fees, reconcile your checking
account, investigate chargebacks, protect against losses, view historical
information for analysis, and manage cash flow.
The reporting system provides access to centralized and comprehensive payment
processing information and allows you to analyze the data on a PC. Because it is a
web -based tool, the system can generate reports with data from multiple
locations and then easily share the reports you create. Data is available by
location, selected groups, or across all locations, for greater flexibility and
effectiveness in managing your business.
How it works
Rather than waiting for a report, you conduct the analysis that suits you, exactly
when you need it. The City can select from more than ioo available reports or
create your own by choosing which fields to include, from a comprehensive
database that includes the processing of gift cards, checks, and all credit, debit,
and Electronic Benefits Transfer (EBT) card transactions. Since it is internet
based, you can also easily distribute the report to a chosen location or group of
locations at any interval you choose. You decide what information you need to
manage your business. In addition, each report is designed to give you what you
need, whether it is summary information or details from specific events.
Ask
Features
■ Standardized, web -based reports that give you access virtually any time to
payment processing information
■ Dashboard view for a snapshot of essential processing information, including
the most recently posted, and for funded transactions and fees
■ Detailed reports for drilling down into specific locations, transaction types,
adjustments, and more
■ Summary information for up to 13 months
■ Query builder to construct reports based on selected fields, across selected
merchant locations
■ Reporting that can be emailed or faxed wherever you need
■ Credit, debit, and gift card activity summaries for any selected time period
■ Dispute reporting to help you manage chargeback and retrieval expenses
Reports available
■ Sales Audit: Reconcile the amount submitted with the amount processed
■ Checking Account Reconciliation: Reconcile the amount processed with
the amount funded to the deposit account
■ Chargeback Investigation: Most chargebacks are caused by a procedure
failure at the time when a transaction is first processed; the ability to
investigate chargebacks and identify root causes can help The City reduce the
frequency and cost of future chargebacks
October 2ot2 1 wells Fargo Merchant Services, LLC tg
• Media Retrieval Tracking: The City must respond to all media retrieval
requests within 12 days or waive reversal rights to the resulting chargeback;
40 reporting and tracking will help The City stay in compliance
■ Interchange Rate Analysis: Allows The City to identify transactions with
higher processing costs
■ Historical Trend Analysis: Measures financial and operational
performance
• Cardholder/Customer Inquiries: Allows for easy access to cardholder
transaction information when cardholders initiate inquiries about sales or
credit transactions
■ Fraud Investigation: Allows The City to research suspicious cardholder
activity
Help your business
■ Access payment processing information 24 hours a day, 365 days a year
■ Reduce calls to customer service departments
• Drill down into funding events and reconcile total sales
■ Create reports and schedule their distribution
October 2ot2 ( Wells Fargo Merchant Services, LLC 20
Equipment and Software Requirements
Aft
How can we process transactions through a computer, POS, and paper -based
transactions?
Wells Fargo Merchant Service has a number of robust solutions that may serve you better by
streamlining and making your business operations more efficient. one of the products you may
want to consider is SecureNet- a very robust and versatile processing solution, used by very large
entities (see Exhibit VIII). We recommend an onsite visit with each business unit to understand
and determine the best solution for the business units of The City of Lubbock.
Pending our onsite review of your current processing equipment and procedures, we would
recommend the following:
• Where you currently have terminals we are recommending replacing them with the
FD>_oo Terminal. (Exhibit VIII).
• Where a business unit currently takes a number of checks and would find electronic
conversion advantageous, we would recommend the FD2oo Terminal. (Exhibit VUI).
• Where business units are currently using Authorize.net through a vendor, we can
support this process and would be pleased to explore if SecureNet might be a «able
alternative.
Can you accommodate transactions through a personal computer with card
information input with a card reader device?
AMIL
im Yes. This may be an ideal application for SecureNet.
Please confirm that software capabilities include a unique reference number and
at least one discretionary data field per transaction.
We can provide a unique reference number and at least one discretionary data field per
transaction.
Would you be willing to update paper -based terminals at no cost? If not, please
explain terminal costs expected.
Wells Fargo Merchant Services supports a range of different PIN Pads and upon a further
technical discovery call; we can determine which solution would be best for The City In addition,
we will provide pricing and recommendations comparing purchasing verses ]case options. Based
on the quantity of PIN Pads The City decides to purchase, we can determine if quantity
discounts apply.
Purchased equipment has a one-year full replacement agreement and after that year, Wells
Fargo Merchant Services would offer The City an equipment swap out for a charge. Rental
equipment is swapped out at no cost if it malfunctions and leased equipment is swapped out at
no charge during the term of the lease. A new lease may be required if the same equipment The
City has is no longer available.
The City has several vendors that collect accounts on behalf of the City and then
remits through our credit card process. Please discuss implementation issues
with this.
October 2012 1 Wells Fargo Merchant Semites, LLC 21
El
Based on this planning effort, we will present the City with a mutually agreed upon timetable
that satisfies all of your requirements. Please note that timelines may vary depending on the
type of processing conversion, POS systems, and the method of processing communication. This
custom approach to the transition ensures that the implementation plan and schedule meet the
exact needs of your organization and will ensure a smooth transition.
Depository Arrangements
Please explain the process of collections: from merchant card transactions to
depositing funds in our bank account. The City of Lubbock is interested in a
short depository time.
Using the SecureNet authorization and data capture network, we can accept settlement files at
any time during the day. Our cutoff for dial transmission, data capture solutions (POS terminals
and ECR) is 2:oo a.m. ET/ii:oo p.m. PT.
The platform will change depending on the system, which may also affect settlement and
funding timetables. With some VARs, next day funding is not available.
We will memo post files received and processed by the cutoff time to a Wells Fargo demand
deposit account (DDA) the next business day by 12:00 p.m. ET/g:oo a.m. PT. Funding to non -
Wells Fargo accounts may be delayed due to ACH processing times.
Below is an example of how we fund data capture files received by the established cutoff times
for Visa* and MasterCard* card settlement:
October 2012 i Wells Fargo Merchant Services, LiC 22
I
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may vary and the actual time could be
longer depending on the ODA bank
status with the Federal Reserve.
Wells Fargo Merchant Services will also transmit settlement files to the following:
American Express: We transmit all American Express files at n:ooa.m. ET/S:oo a.m. PT
daily by PCID numbered batches; all files are sent at one time during the day.
Discover® Network: We send files after the respective merchant's cutoff, so it depends on
which cutoff each merchant is assigned. We generally send files at S:oo a.m. and 6:oo a.m.
ET/2:00 a.m. and 3:00 p.m. PT daily.
Non -bank card funding will depend on the contractual arrangements that the City maintains
with specific card issuers; we are happy to help you establish or review such arrangements.
Minimum/Maximum Limits
The City wishes to set minimum/maximum transaction limits by certain merchant
identification numbers in accordance with Texas Local Government Code Chapter
132. Most of the maximum limits will be $1,5oo; however, a few will be $5,000.
Please address how this can be accomplished in the merchant agreement.
The City will be able to control this with your POS application and will be set tip upon
implementation.
October 2012 ( Wells Fargo Merchant services, I.W. 23
Security
Please describe security controls and safeguards used to protect credit and debit
card transaction information and funds. The successful proposer should be
compliant with Payment Card Industry Data Security Standards.
TransArmoi 4 — Protection from Fraud; Benefits the Consumer and Merchant
The need for data protection in today's environment is an important question to consider, when
security breaches are becoming more frequent. Cybercrime increasingly threatens both
consumers and merchants.
Due to such a growing need for protection, Wells Fargo Merchant Services offers TransArmor
technology to help protect both the consumer and merchant from security breaches.
TransArmor is a combination of encryption and tokenization technologies, protecting the
consumer transaction and providing safe merchant storage of customer.
TransArmor offers a two -pronged approach to data protection;
• It secures card transaction with encryption during the authorization process
• It removes card data from the merchant environment with tokenization after the
transaction is completed
The TransArmor Token is a 16-digit number that combines a twelve digit randomly generated
number with the last four digits of the customer's card number used in the transaction. This
structure is particularly important because it facilitates customer transaction research or
merchant marketing programs without compromising the security offered by removing the
sensitive card data from the merchant's environment. On transaction receipts and daily
transaction reports, the token looks like any other truncated cardholder number to the customer
or merchant staff.
How does it work?
Card Present Transaction:
1. Consumer presents card to merchant
2. Card Data is encrypted and transmitted to the front-end switch
S. The front-end decrypts the data payload
4. Card data is sent to issuing bank for authorization and, in parallel, tokenized
5. Token is paired with authorization response and sent back to the merchant
6. Merchant stores token instead of card data in their environment and uses token for all
subsequent business processes
October 2012 1 WeUs Fargo Merchant Semices, Uk 24
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is used, a Token can be used to initiate a new transaction
2. Card number is encrypted using session encryption and sent to Wells Fargo Merchant
Services
3. Encrypted session is received at datacenter
4. Card number is passed to bank for authorization and SafeProxy server for tokenization
S. Authorization and Token are returned to the merchant
6. Token is stored in place of the card number in all places
7. New financial transactions including sales, adjustments, refunds and settlement use the
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October 2012 1 Wells Fargo Merchant Scmims, LLC 25
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We welcome further conversations around your security concerns and look forward to
discussing TransArmor as an option for your business.
Wells Fargo Merchant Services response conditions
We are providing a copy of our Program Guide at the website listed below, which we request
to become the final contract, or have incorporated into the final agreement between
Wells Fargo Merchant Services and the City with Wells Fargo Merchant service first in order of
precedence. If awarded the bid, we are willing to
negotiate mutually acceptable terms and wish to clarify that the remaining terms of the
Request for Proposal will not apply to the provisions of our services. In addition, the City should
be aware that the processing of credit and debit card transactions is subject to the terms,
conditions, policies, and procedures of the Visa and MasterCard Card Associations and the non-
bankcard issuers.
All card -processing responses in this document are subject to the Wells Fargo Merchant
Services' Merchant Processing Agreement If there are conflicts with the terms and
conditions in the Wells Fargo Merchant Services' Merchant Services Agreement and the
terms and conditions in this Request for Proposal, Wells Fargo Merchant Services will
negotiate in good faith to resolve. The terms, conditions, policies, and procedures of the Visa
and MasterCard Associations and the non-bankcard issuers are independently established
and beyond the control of Wells Fargo Merchant Services. Card Association mandated fees
and assessments are governed by the Card Associations and are subject to change during the
term of the contract. A copy of our Program Guide can also be found at the following website:
www.wellsfargo.com/downloads/pdf/biz/merchant/prog,ram—guide.pdf
Information contained in this response is valid for 6o days from the date of submittal.
October 2ou I Wells Fargo Merchant Seances, LLC 26
Merchant Services
Program Guide
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Program Guide
TABLE OF CONTENTS
PART I: Card Services
A.
Card Operating Procedures
1,
MasterCard, Visa, Discover and American Express Acceptance .......... 4
I.I. Card Descriptions .............................................. 4
1.2. Effective/Expiration Dates ...................................... 5
1.3. Valid Signature ................................................. 5
1.4. Users OtherThan Cardholders .................................. 5
I.S. Special Terms ................................................... 5
1.6. Delayed Delivery or Deposit Balance ............................ 5
1.7. Recurring Transaction and Pteauthorized Order Regulations ..... 6
1.8. Certain Rules and Requirements ................................ 6
19. Card Acceptance ............................................... 6
1.10. Deposits of Principals ........................................... 7
1.11. Merchants In the Lodging Industry .............................. 7
1.12. Customer Activated Terminals and Self Service Terminals ........ 7
1.13. Displays and Advertising ........................................ 7
1,14. Cash Payments by and Cash Disbursements to Cardholders ...... 7
1,15. Discover Cash Over Transactions ................................ 7
1.16. Telecommunication Transactions ............................... 7
2.
Suspect Transactions.................................................. 8
3.
Completion of Sales and Credit Drafts .................................. 8
3.1. Information Required ........................................... 8
3.2. MaMirelephoneAntemet (Ecommerce) Orders and
Other Card Not Present Sales ................................... 9
3.3. Customer Service Telephone Numbers for Cards
OtherThan MasterCard, Visa and Discover ...................... 9
4.
Data Security......................................................... 9
4.1. Payment Card Industry Data Security Standards (PCI DSS) ........ 9
4.2. Data Security Requirements .................................... 10
4.3. Compliance Audits ............................................. 10
4.4. Immediate Notice Required ..................................... 10
4.5. Investigation................................................... 10
4.6. Required information for Discover Network Security Breaches ... 10
4.7. Merchant Providers ............................................. 10
4.8. Noncompliance Fees ........................................... 11
4.9. Costs........................................................... 11
S.
Authorizations........................................................ 11
5.1. Card Not PresentTransactions.................................. 11
52. Authorization via Telephone
(OtherThan Term final/ElectronicDevice Users) ................. 11
5.3. Authorization via Electronic Devices ............................ 11
5.4. Third Party Authorization System ............................... 12
5.5. Automated Dispensing Machines ............................... 12
5.6. Pre -Authorization forT&E (Travel & Entertainment)
and Restaurant Merchants ..................................... 12
5.7. Discover Procedure for Request for Cancellation
ofAuthorization ............................................... 12
5.8. Partial Authorization and Authorization Reversal ................ 12
6.
Submission/Deposit of Sales and Credit Drafts ......................... 12
6.1. Submission of Sales for Merchants Other Than Your Business ..... 13
6.2. Timeliness......................................................13
6.3. Mail /Branch Deposit Procedures ................................ 13
6A. Electronic Merchants: Daily Batching Requirements
& Media Submission ........................................... 13
7.
Settlement............................................................ 13
8.
Refunds/Exchanges (Credits) .......................................... 13
8.1. Refunds........................................................ 13
8.2. Exchanges..................................................... 13
9.
Retention of Records for Retrievals and Chargebacks ..................
14
9.1.
Retain Legible Copies ..........................................
14
9.2.
Provide Sales and Credit Drafts .................................
14
10.
Chargebacks, Retrievals and Other Debits .............................
14
10.1.
Chargebacks..................................................
14
10.2.
Other Debits ..................................................
16
10.3.
Summary (Deposit) Adjustments/Electronic Rejects ............
17
10.4.
Disputing Other Debits and Summary Adjustments .............
17
11.
Account Maintenance ................................................
17
11.1.
Change of Settlement Account Number ........................
17
11.2.
Change in Your Legal Name or Structure ........................
17
11.3.
Change Company DBA Name, Address or
Telephone/Facsimile Number ..................................
17
11.4.
Other Changes in Merchant Profile .............................
17
11.5.
Charges for Changes to Account Maintenance ..................
17
12.
Card
Organization Monitoring .......................................
17
13.
Supplies............................................................
17
B. Card GeneralTerms
14, Services.............................................................. 18
15.
Operating Procedures; Card Organization Rules and Compliance .......
18
16.
Settlement of Card Transactions ......................................
18
17.
Exdusivity............................................................
18
18.
Fees; Adjustments; Collection of Amounts Due ........................
18
19.
Chargebacks.........................................................
19
20.
Representations; Warranties; Covenants; Limitations an Liability;
Exclusion of Consequential Damages .................................
19
21.
Confidentiality .......................................................
20
22.
Assignments.........................................................
20
23,
Term; Events of Default ...............................................
21
24.
Reserve Account, Security Interest ....................................
21
25,
Financial and Other Information ......................................
22
26.
Indemnification......................................................
22
27.
Special Provisions Regarding Non -Bank Cards .........................
22
28.
Specal Provisions for PIN Debit Card ..................................
24
29.
Specal Provisions Regarding EBTTransactions ........................
24
30.
Special Provisions Regarding Wireless Services ........................
26
31.
Terms of Equipment Purchase or Rental ...............................
27
32.
Special Provisions Regarding Gift Card Services ........................
29
33.
Special Provisions Regarding TransArmor Services .....................
31
34.
Special Provisions Regarding Fraud Detection Services ................
32
35.
Special Provisions Regarding Buyer Initiated Payments ................
33
36.
Choice of Law, Venue; Waiver of Jury Trial .............................
34
37.
Other Terns..........................................................
34
38.
Glossary .............................................................
35
39.
Additional Important Information ..................................
37
39.1. Electronic Funding Authorization ..............................
37
39.2. Funding Acknowledgement ...................................
37
39.3. Additional Fees, Fees Related Information, and
EarlyTermination ..............................................
37
39.4. Addresses For Notices .........................................
37
Part II: Third Party Agreements ,..................................... 38
1.0. TeleCheck Services Agreement ....................................... 39
2.0. Agreement For American Express Card Acceptance -
American Express OnePoInt Program ................................. 46
3.0. Equipment Lease Agreement ......................................... 52
PART III:
Duplicate Confirmation.................................................. 54
Confirmation Page ....................................................... 55
WFB1405
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Prepaid Gift Card Security Features
The features described below are found on Prepaid Gift Cards; however, the
placement of these features may vary:
• Depending on the Issue date of the Card, the Discover Acceptance Mark or
the Discover/NOVUS Acceptance Mark will appear on the front or back of
the Card.
• The embossed, stylized "D'appears on the front of the Card.
• A valid expiration date is embossed on the front of the Card.
• Only the person whose name appears on an American Express Card is
entitled to use it. Cards are not transferable.
• The signature on the back of the Card must match the Cardmember's
signature on the Sales Draft, and must be the same name that appears on
Other Card Features for Cards with a Discover Acceptance Mark
• The front of the Card may display 'Temporary Card, 'Prepaid Card, "Gift
Card,'or "Electronic Use Only'Niust be printed on the front or the back of
the Card.
I�t : Prepaid Gift Cards accepted at a limited, specific list of Merchants may
but are not required to display Discover hologram and, may but are not
required to bear the Discover Acceptance Mark.
Un-embossed Prepaid Cards display a printed Card number. The "Valid Thru'
date and the Cardholder name may or may not be printed on the Card. The
embossed'D'security character Is not present. "Electronic Use Only'Is printed
on the front or the back of an un-embossed Card. Obtain an electronic
Authorization' Response using a POS device for un-embossed Prepaid Cards.
You are required to remain familiar with Discover Card designs and may
reference the document,'Discover Security Features! You may download the
document free of charge from Discover's website at
htt 4Um88 dlsg rnetwork.com/fraudsecurit &aud.html.
American Express Card, Some Cards contain a holographic image on the front
or the back of the plastic to determine authenticity. Not all American Express
Cards have a holographic Image,
• All American Express Card Numbers start with'37'or'34' The Card number
appears embossed on the front of the Card. Embossing must be dear, and
uniform in sizing and spacing. Some Cards also have the Card Number
printed on the back of the Card in the signature panel. These numbers, plus
the last four digits printed on the Sales Draft, must match.
• Pre-printed Card Identification (CID) Numbers must always appear above
the Card Number on either the right or left edge of the Card.
• Only the person whose name appears on an American Express Card is
entitled to use it. Cards are not transferable.
• The signature on the back of the Card must match the Cardmemberls
signature on the Sales Draft, and must be the same name that appears on
the front of the Card. The signature panel must not be taped over,
mutilated, erased or painted over.
• Some Cards also have a three digit Card Security Code (3CSQ number
printed on the signature panel.
• Do not accept a card outside the valid from and to dates.
1.2. Effective/Expiration Dates. At the point of sale, the Card should be
carefully examined for the effective (valid from) (if present) and expiration
(valid thru) dates which are located on the face of the Card. The sale date must
fall on or between these dates. Do not accept a Card prior to the effective date
or after the expiration date. If the Card has expired, you cannot accept it for a
Card sale unless you have verified through your Authorization Center that the
Card is in good standing, otherwise, you are subject to a Chargeback and could
be debited for the transaction.
1.3. Valid Signature. Check the back of the Card. Make sure that the signa-
ture panel has not been disfigured or tampered with in any fashion (an altered
signature panel may appear discolored, glued or painted, or show erasure marks
on the surface).The signature on the back of the Card must compare favorably
with the signature on the Sales Draft. The Sales Draft must be signed by the Card
presenter in the presence of your authorized representative (unless a Card Not
Present Sale) and In the same format as the signature panel on the Card; e.g.,
Harry E. Jones should not be signed H.E. Jones. The signature panels of Visa,
MasterCard and Discover Cards now have a 3-digit number (CVV 2/CVC 2/CID)
printed on the panel known as the Card Validation Code.
Visa. MasterCard and Discover: If the signature panel on the Card is blank, in
addition to requesting an Authorization, you must do all the following:
• Review positive identification bearing the Cardholder's signature (such as a
passport or driver's license that has not expired) to validate the Cardholder's
identity.
• indicate the positive identification, including any serial number and
expiration date, on the Credit Draft or Sales Draft; provided that you must
effect PAN Truncation, and must not Include the expiration date on the copy
of the Sales Draft or Credit Draft that you provide to the Cardholder, or as
required by applicable law, the Sales Draft or Credit Draft you retain.
• Require the Cardholder to sign the signature panel of the Card prior to
completing theTransaction.
1.4. Users Other Than Cardholders. A Cardholder may not authorize
another individual to use his/her Card for purchases. Be sure the signature on
the Card matches with the one on the Sales Draft Furthermore, any Card having
two signatures on the back panel Is invalid and any sale made with this Card
can result in a Chargeback. For Cards bearing a photograph of the Cardholder,
ensure that the Cardholder appears to be the person depicted In the picture
which appears on the Card. If you have any questions, call the Voice
Authorization Center and request to speak to a Code 10 operator.
I.S. Special Terms. if you limit refund/exchange terms or impose other
specific conditions for Card sales, the words `No Exchange, No Refund; etc.
must be dearly printed on the Sales Draft near or above the Cardholder's
signature.The Cardholder's copy, as well as your copy, must deafly show this
Information.
During a liquidation and/or closure of any of your oudets, locations and/or
businesses, you must post signs dearly visible to customers stating that All
Sales Are Final, and stamp the Sales Draft with a notice that "All Sales Are Final'
Generally do not give cash, check or In store credit refunds for Card sales. Visa
allows for the following exclusions: A cash refund to the Cardholder for a small
ticket transaction or no signature required transaction, a cash refund, Credit,
or other appropriate form of Credit to the recipient of a gift purchased as a
Mail/Phone Order transaction, or a cash refund or in-store Credit for a Visa
prepaid card transaction if the Cardholder states that the Visa prepaid card has
been discarded. Notr. A disclosure does not eliminate your liability for a
Chargeback. Consumer protection laws and Card Organization Rules frequently
allow the Cardholder to dispute these Items notwithstanding such disclosures.
1.6. Delayed Delivery or Deposit Balance. In a delayed delivery transaction
where a Cardholder makes a deposit toward the full amount of the sale, you
should execute two separate Sales Drafts (each completed fully as described in
Section 3.11 the first for a deposit and the second for payment of the balance
upon delivery of the merchandise or the performance of the services.
Yisa: For Visa transactions, you must obtain an Authorization if the cumulative
total of both Sales Drafts exceeds the floor limit You must obtain an Authoriza-
tion for each Sales Draft on each transaction date. You must assign the separate
Authorization numbers to each Sales Draft, respectively. You must note on such
Sales Drafts the words delayed delhrery, deposit'orbalance; as appropriate,
and the authorization dates and approval codes.
MasterCard: For MasterCard transactions, you must obtain one Authorization.
You must note an both Sales Drafts the words'delayed delivery,"deposit'or
"balance; as appropriate, and the authorization date and approval code.
Discover: For Discover transactions, you must label one Sales Draft "deposit'
and the other balance,"as appropriate. You must obtain the deposit'
authorization before submitting the sales data for the'deposit'or the balance
to us. If delivery of the merchandise or service purchased will occur more than
ninety (90) calendar days after the'deposlt"authorization, you must obtain a
subsequent authorization for the"balance.'In addition, you must complete
Address Verification at the time of the 'balance' authorization, and you must
obtain proof of delivery upon delivery of the services/merchandise purchased.
You may not submit sales data relating to the'balance'to us for processing
until the merchandise/service purchased has been completely delivered.
American EVres : For American Express Card transactions, you must dearly
disclose your intent and obtain written consent from the Cardmember to
perform a delayed delivery transaction before you request an Authorization.
You must obtain a separate Authorization Approval for each delayed delivery
transaction on their respective charge dates and dearly indicate on each record
that the charge is either for the deposit or for the balance of the transaction.
You must submit the delayed delivery transaction record for the balance of the
purchase only after the items have been shipped, provided of services rendered.
For deposits, submission must be on the date the Cardmember agreed to pay
for the deposit for the purchase. For balances, submission must be on the date
the Items are shipped, provided or services rendered. You must submit and
WFB1405
1.9.5. Even if you elect not to accept Non -PIN Debit Card transactions as
provided above, you may still accept PIN Debit Card transactions 0 you have
signed up for PiN Debit Services. The terms in Section 28 shall apply to such
services.
y 1.10. Deposits of Principals. Owners, partners, officers and employees of
your business establishment, and the guarantors who signed the Application,
are prohibited from submitting Sales Drafts or Credit Drafts transacted on their
own personal Cards, other than transactions arising from bona fide purchases
of goods or services in the ordinarycourse of your business. Such use in violation
of this Section 1.10 Is deemed a cash advance, and cash advances are prohibited.
1.11. Merchants in the Lodging industry.
1.11.1. Generally There are additional rules and requirements that apply
to merchants In the lodging Industry for practices including, but not limited to,
Guaranteed Reservations and charges for no shows, advance deposits, over -
bookings, and priority checkout. If you are a merchant In the lodging Industry,
you must contact us for these additional rules and requirements. Failure to do
so could result In additional charges or termination of this Agreement.
1.11.2. Lodging Service Services Programs. in the event you are a
lodging merchant and wish to participate in Visa's and/or MasterCard's lodging
services programs, please contact your sales representative or relationship
manager for details and the appropriate MasterCard and Visa requirements.
1.11.3. Written Confirmation of Guaranteed Reservations. You must
provide the Cardholder with written confirmation of a guaranteed reservation.
The confirmation must contain:
• Cardholder's name as it appears on the Card, if present
• Card Number, truncated where required by applicable law to you or us and
Card expiration date if present, unless prohibited by applicable law to you
or us.
• Reservation confirmation number.
• Anticipated arrival date and length of stay.
• The cancellation policy in Its entirety, inclusive of the date and time the
cancellation privileges expire.
• Any other pertinent details related to the reserved accommodations.
1.1 IA. Cancellation of Guaranteed Reservations. If a Cardholder
requests a cancellation In accordance with Merchant's cancellation policy and
specified time frames, Merchant must provide the Cardholder with a
cancellation number and Instructions to retain a record of it. If a Cardholder
requests a written confirmation of the cancellation, Merchant must forward this
confirmation within three (3) Business Days of the Cardholder's request. The
cancellation confirmation must contain: Cardholder's reference that charges
were placed on the Card, if applicable, or a guarantee that a'no-show'charge
will not be placed on the Card.
• Cardholder's name as it appears on the Card, if present.
• Card Number, truncated as required by applicable law to you or us.
• Card expiration date, If present, unless prohibited by applicable law to you
or us.
• Reservation cancellation number.
• Date of cancellation.
• The name of the Merchant's employee that processed the cancellation.
• Any other pertinent Information related to the reserved accommodations.
1.12. Customer Activated Terminals and Self -Service Terminals. Prior to
conducting Customer Activated Terminal (CATJ transactions or Self -Service
Terminal transactions, you must contact us for approval and further
instructions, rules and requirements that apply to CAT and Self -Service
Terminal transactions. Failure to do so could resuk in additional charges
or termination of this Agreement.
1.13. Displays and Advertising. You must prominently display appropriate
Visa, MasterCard, Discover, American Express, and, if applicable, other card
Organization decals and program Marks at each of your locations, in catalogs,
on websites and on other promotional materials as required by Card Organi-
zation Rules. You may not Indicate that Visa, MasterCard, Discover, American
Express, or any other Card Organization endorses your goods or services.
Your right to use the program Marks of the Card Organizations terminates upon
the earlier of (i) if and when your right to accept the Cards of the respective Card
Organization terminates (e.g., if your right to accept Discover Cards terminates,
your are no longer permitted to use Discover Program Marks), (11) delivery of
notice by us or the respective Card Organization to you of the termination of
the right to use the program Mark(s) for that Card Organization, or (lii)
termination of the license to use the program marks by the respective Card
Organization to us.
1.13.1. Discover Sublicense to Use Discover Program Marks. You are
prohibited from using the Discover Program Marks, as defined below, other
than as expressly authorized in writing by us "Discover Program Marks' means
the brands, emblems, trademarks and/or logos that Identify Discover Cards,
Including, without limitation, Diners Club Intemational Cards. Additionally, you
shall not use the Discover Program Marks other than as a part of the display of
decals, signage, advertising and other forms depicting the Discover Program
Marks that are provided to you by us or otherwise approved In advance in
writing by us.
You may use the Discover Program Marks only to promote the services covered
by the Discover Program Marks by using them on decals, indoor and outdoor
signs, advertising materials and marketing materials; provided that all such
uses by you must be approved In advance by us fn writing.
You shall not use the Discover Program Marks in such a way that customers
could believe that the products or services offered by you are sponsored or
guaranteed by the owners of the Discover Program Marks. You recognize that
you have no ownership rights in the Discover Program Marks. You shall not
assign to any third party any of the rights to use the Program Marks.
1.13.2. American Express sublicense to Use American Express Marks.
You must not use our Marks in any way that injures or diminishes the goodwill
associated with that Mark, nor (without our prior written consent) indicate that
we endorse your goods or services. You shall only use our Marks as reasonably
necessary to perform your obligations under the Agreement and shall cease
using our Marks upon termination of the Agreement.The guidelines listed
below apply to the Merchant's use of the American Express'Blue Box' logo
• The'Blue Box" logo must appear on all point of purchase materials and signs.
• The space around the "Blue Box' must equal at least 1/3 the size of the box.
• The "Blue Box' logo minimum size is 3/8' and 1/2' Is the preferred size.
• Always spell out American Express.
• A minimum distance of 1-1/2 times the size of the'Blue Box' must be
allowed between the "Blue Box' logo and another Mark.
1.14. Cash Payments by and Cash Disbursements to Cardholders.
You must not accept any direct payments from Cardholders for charges of
merchandise or services which have been Included on a Sales Draft; it is the
right of the Issuer to receive such payments. You may not make any cash
disbursements or cash advances to a Cardholder as part of a Card transaction
unless you are a financial institution with express authorization in writing in
advance by Servicers. For Discover, cash advances In authorized jurisdictions
other than the United States may be conducted in an originating currency
provided that cash advances may be subject to dispute and/or Acquirer fees.
1.15. Discover Cash Over Transactions. Cash Over transactions are not
available for MasterCard or Visa transactions. You may Issue Cash Over in
connection with a Discover Card sale provided that you comply with the
provisions of this Agreement Including the following requirements:
• You must deliver to us a single authorization request for the aggregate total
of the goods/servlces purchase amount and the Cash Over amount of the
Card sale. You may not submit separate authorization requests for the
purchase amount and the Cash Over amount.
• The Sales Draft must include both the purchase amount and the Cash Over
amount, and you may not use separate Sales Drafts for the purchase amount
and Cash Over amount.
No minimum purchase is required for you to offer Cash Over to a Discover
Cardholder, provided that some portion of the total Card sale must be
attributable to the purchase of goods or services.
• The maximum amount of cash that you may Issue as Cash Over is $100.00.
(Cash Over may not be available In certain markets. Contact us for further
Information.)
1.16. Telecommunication Transactions. Telecommunication Card Sales
occur when a telephone service provider is paid directly using a Card for
Individual local or long-distance telephone calls. (Note: Pre -paid telephone
service cards are not and do not give rise to Telecommunication Card Sales).
Prior to conducting Telecommunication transactions you must contact us for
approval and further instructions, rules and requirements. Failure to do so
could result In additional charges or termination of this Agreement.
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Note: For Discover transactions, if you are a merchant operating under
certain merchant category codes approved by Discover, you are not required
to obtain the Cardholder's signature so long as the full track data is trans-
mitted in the authorization request and the sale amount is $25.00 or less.
This Section shall apply only to receipts that include a Card account number
that are electronically printed and shall not apply to transactions in which
the sole means of recording the Card account number is by handwriting or
by an imprint or copy of the Card.
3.2. Mail/Telephone/Internet (Ecommerce) Orders and Other Card Not
Present Sales. You may only engage in mail/ telephone/ Internet orders
provided they do not exceed the percentage of your total payment Card volume
reflected on your Application. Failure to adhere to this requirement may result
in cancellation of your Agreement. Merchants conducting Internet transactions
using MasterCard orvisa Cards must have special codes (an "Electronic
Commerce Indicator") added to their authorization and settlement records.
Discover does not use an Electronic Commerce Indicator. Failure to register as a
merchant conducting Internet transactions can result in fines imposed by the
Card Organizations.
Mail, Telephone, Internet and other Card Not Present transactions have a
substantially higher risk of Chargeback. Since you will not have an imprinted or
magnetically swiped transaction and you will not have the Cardholder's signa-
ture on the Sales Draft as you would in a face-to-face transaction, you will assume
all risk associated with accepting a mail/ telephone/Internet or other Card Not
Present transaction. The following procedures, while they will not eliminate
Chargebacks, are useful In reducing them and should be followed by you:
• Obtain the expiration date of Card.
• On the Sales Draft, clearly print the Cardholder's account number; effective
and expiration dates; date of transaction; description of the goods and
services; amount of the transaction (including shipping, handling, insurance,
etc.); Cardholder's name, billing address and shipping address; authorization
code; and merchant's name and address (city and state required); provided,
that you must effect PAN Truncation, and must not include the expiration
date, on the copy of the Sales Draft or Credit Draft that you provide to the
Cardholder, or as required by applicable law, the Sales Draft or Credit Draft
you retain.
• For mail orders, write "MO"; for telephone orders, write "TO" on the
Cardholder's signature line.
• If feasible, obtain and keep a copy of the Cardholder's signature on file on a
form authorizing you to submit telephone and mail order transactions.
You should utilize the Address Verification Service for all Card Not Present
Transactions (see note below). Address Verification is specifically required
for all Discover Card Not Present Transactions, and if you do not receive a
positive match through AVS, you may not process the Discover Card Not
Present Transaction. if you do not have AVS, contact us immediately.
You should obtain the 3-digit Card Validation Code number and include it
with each authorization request. Discover Card Organization Rules
specifically require that you submit the Card Validation Code with the
authorization request for all Discover Card Not Present Transactions.
• For telephone orders, It is recommended that written verification of the sale
be requested from the Cardholder (sent by mail or fax).
• You may not submit a transaction for processing until after the merchandise
has been shipped or the service has been provided to the customer. (The
Card Organizations will permit the immediate billing of merchandise
manufactured to the customer's specifications [€.e., special/custom orders)
provided the Cardholder has been advised of the billing details.)
• You should provide a copy of the Sales Draft to the Cardholder at the time
of delivery. You must also obtain proof of delivery of the goods or services
to the address designated by the Cardholder (Le., by getting a signature of
the Cardholder or person designated by the Cardholder through the
delivery carrier). If the Cardholder visits one of your locations to receive the
goods or services purchased, obtain an imprint of the card and the Card-
holder's signature.
• Notify the Cardholder of delivery time frames and special handling and/or
of cancellation policies. Merchandise shipping dates must be within seven
(7) days of the date Authorization was obtained. If, after the order has been
taken, additional delays will be incurred (e.g., out of stock), notify the
Cardholder and reauthorize the transaction.
You may not require a Cardholder to complete a postcard or other document
that displays the Cardholder's account number in clear view when mailed.
If you accept orders via the Internet, your web site must include the
following information in a prominent manner:
- Complete description of the goods or services offered
- Description of your merchandise return and Credit/refund policy;
- Customer service contact, including email address and/or telephone
number;
-- Transaction currency (U.S. dollars, unless permission Is otherwise
received from Servicers);
- Any applicable export of legal restrictions;
Delivery policy;
- Consumer data privacy policy;
- A description of the transaction security used on your website; and
- The sale or disclosure of databases containing Cardholder account
numbers, personal information, or other Card transaction information to
third parties is prohibited.
- Address of merchant including country.
- Cancellation policy; and
- Date any free trial period ends.
• You may not accept Card Account Numbers through Electronic Mail over
the Internet.
INet : Address Verification Service ("AVS"), does not guarantee against
Chargebacks, but used properly it assists in reducing the risk of fraud by
confirming whether certain elements of the billing address provided by your
customer match the billing address maintained by the Issuer. AVS also may
help you avoid incurring additional interchange expenses. AVS Is a separate
process from obtaining an Authorization and will provide a separate response.
A transaction may not match addresses when submitted for AVS and still
receive an Authorization. it Is your responsibility to monitor the AVS responses
and use the information provided to avoid high -risk transactions.
3.2.1. Discover Protocol for Internet Transactions. Each Internet
Discover Card transaction accepted by you and submitted to us shall comply
with Discover standards, including, without limitation, Discover standards
governing the formatting, transmission and encryption of data, referred to as
the "designated protocol"You shall accept only those Internet Discover Card
transactions that are encrypted In accordance with the designated protocol.
As of the date of these Operating Procedures, the designated protocol for the
encryption of data Is Secure Socket Layer (SSL). We may, at our discretion, with-
hold Settlement until security standards can be verified. However, the designated
protocol, Including any specifications with respect to data encryption, may
change at any time upon thirty (30) days advance written notice. You shall not
accept any Internet Discover Card transaction unless the transaction Is sent by
means of a browser which supports the designated protocol.
3.3. Customer Service Telephone Numbers for Card types which are
funded by individual non- bank Card Organizations include:
American Express/ESA or Direct 1-800.528- 5200
American Express OnePoint
1-800 451-5817
JCB, International
1-800-364-4522
TeleCheck
1-800-366-1054
Voyager
1-900-997-6591
WEX
1-800-492-0669 (24 hours)
THE FOLLOWING 15IMPORTANT INFORMATION REGARDING THE PROTECTION
OF CARDHOLDER DATA. PLEASE REVIEW CAREFULLY AS FAILURE TO COMPLY
CAN RESULT IN SUBSTANTIAL FINES AND LIABILITIES FOR UNAUTHORIZED
DISCLOSURE AS WELL AS TERMINATION OF THIS AGREEMENT.
4.1. Payment Card Industry Data Security Standards (PCI DSS). Visa,
MasterCard, Discover and 1CB and American Express aligned data security
requirements to create a global standard for the protection of Cardholder data.
The resulting Payment Card industry Data Security Standards (PCI DSS) defines
the requirements with which all entities that store, process, or transmit payment
card data must comply. PCI DSS is the name used to identify those common
data security requirements, The Cardholder Information Security Program (CISP)
is visa USA's data security program, the Site Data Protection (SDP) program is
MasterCard's data security program and Discover Information Security and
Compliance (DISC) is Discover's data security program, and the Data Security
Operating Policy (DSOP) is American Express data security program, each
based on the PCI DSS and industry aligned validation requirements. PCI DSS
WFn1405 Q
needs and standards, (ii) their actions, inactions and compliance with the terms
of this Agreement and the Card Organization Rules and (III) any and all fees,
costs, expenses and other obligations owed to them by you or owed by them
to us or to Card Organizations.
4.8. Noncompliance Fees. If we have not received receipt of your validation
of compliance with your PCI DSS standards within the first 60 days of the date of
the Agreement, you will be charged a monthly Non -Validation of PCI Compliance
fee as set forth in the Application or as otherwise communicated to you, for the
period beginning upon expiration of the 60 day period, until such time as you
are compliant or this Agreement Is terminated, whichever comes first. This
monthly Non -Validation of PCI Compliance fee is in addition to any other fees
for which you are responsible related to your failure to be compliant as related
hereunder.
4.9. Costs. If you or a Merchant Provider (or other Person used by you) are
determined by any Card Organization, regardless of any forensic analysis or
report, to be the likely source of any loss, disclosure, theft or compromise of
Cardholder data or Card transaction information (together, 'Compromised Data
Events') and regardless of your belief that you have compiled with the Card
Organization Rules or any other security precautions and are not responsible for
the Compromised Data Event you must promptly pay us for all related expenses,
claims, assessments, fines, losses, costs, and penalties and Issuer reimbursements
imposed by the Card Organizations against us (together, "Data Compromise
Losses'1. In addition to the foregoing, you must also pay us promptly for all
expenses and claims made by Issuers against us alleging your responsibility for
the Compromised Data Event, apart from any claim procedures administered
by the Card Organizations.
Each authorization request you submit to us must fully comply with the appli-
cable provisions of this Agreement. Submission of an authorization request
that does not fully comply may result in assessment of additional fees to you, a
declined authorization response or a Chargeback to you.
You must obtain an Authorization Approval Codes from us (or a Person as
provided in Seaton SA) for all transactions. A positive authorization response
for MasterCard remains valid for seven in days for electronic processed
transactions. For true paper merchants for MasterCard and Visa transactions the
Authorization remains valid for five (5) days. A positive authorization response
for Discover transactions remains valid for ninety (90) days. Failure to settle
wifn these timeframes, may result in a late presentment Chargeback.
Failure to obtain an Authorization Approval Code for a sales transaction may
result in a Chargeback and/or the termination of your Agreement Authorization
Approval Codes can be obtained through your POS Terminal or a Voice Response
Unit ("U'). Any fees related to Authorizations will be charged for a request for
an Authorization Approval Code, whether or not the transaction Is approved.
Do not attempt to obtain an Authorization Approval Code provided by
someone other than us except as described in Section SA. If a Cardholder or
another service provider provides you with either an authorization number or
with a telephone number for obtaining Authorizations, the Authorization
Approval Code you receive may not be valid. Even If the transaction Is Initially
processed and funded, it may be charged back at a later date. Also, if you
receive a purported Authorization Approval Code from someone other than us,
we will not have the supporting records and will be unable to verify that you
received the authorization If that Is later questioned In a Chargeback.
An Authorization Approval Code only indicates the availability of Credit on an
account at the time the Authorization Is requested. It does not warrant that the
person presenting the Card Is the rightful Cardholder, nor Is It a promise or
guarantee that you will not be subject to a Chargeback.
If you obtain Address Verification, you must review the AVS response separately
from the authorization response and make your own decision about whether
to accept the transaction. A transaction can receive an Authorization Approval
Code from the Card Issuer even if AVS is unavailable or reflects that the address
provided to you does not match the billing address on file at the Issuer. If the
authorized Cardholder disputes such a transaction, you will be responsible for
the resulting Chargeback.
If you receive a Referral response to an attempted Authorization, you may not
submit the transaction without calling for and receiving a voice authorization.
After receiving a Referral response you may not attempt another Authorization
on the same Card through your POS Terminal.
If you fall to obtain an Authorization Approval Code or if you submit a Card
transaction after receiving a decline (even if a subsequent Authorization
attempt results in an Authorization Approval Code), your transaction may result
in a Chargeback and may be assessed fines or fees by the Card Organizations
for which you will be responsible. These currently range from $25 to $150 per
transaction. To avoid these costs and related Chargebacks, always obtain an
Authorization Approval Code directly from your terminal before submitting a
transaction for settlement.
For Cards other than MasterCard, Visa and Discover (e.g. American Express, etc.)
or for check acceptance, you must follow the procedures for authorization and
acceptance for each.
You may not attempt to obtain multiple Authorizations for a single transaction.
If a sale is declined, do not take alternative measures with the same Card to
obtain an approval of the sale from other authorization sources. Instead,
request another form of payment. If you accept and process a transaction that
was declined, or attempt mull -transactions and/or multi -Authorizations, you
are subject to a Chargeback, Card Organization Fines and/or cancellation of
your Agreement.
For MasterCard transactions, automated fuel dispensers must ensure that
completion messages are submitted for MasterCard's Card within 60 minutes of
the Authorization.
5.1. Card Not Present Transactions. You should obtain the 3-digit Card
Validation Code (CVV2, CVC2, CID) and submit this Code with all authorization
requests with respect to transactions where the Card is not present (e.g, tele-
phone, mail or internet sales). However, far recurring transaction Authorizations
you should submit the Card Validation Code with the first authorization request
only, and not with subsequent recurring transaction authorization requests
(See Section 1.n. Note: For each Card Not Present Discover transaction, you
must also verify the name and billing address of the Discover Cardholder using
the Address Verification System (AVS), and If you do not receive a positive match,
do not process the Discover Card Not Present transaction.
5.2. Authorization via Telephone (Other than Terminal/Electronic
Device Users).
• Call your designated voice authorization toll free number and enter the
authorization Information into the VRU using a touch tone phone or hold
for an authorization representative.
• If advised to pick up a Card, use reasonable and peaceful means to do s%
and do not take any action that will alarm or embarrass the Card presenter.
You will bear all responsibility for claims, liabilities, costs and expenses as a
result of any action by you, your employees, vendors or agents, that attempt
to retain a Card without the Issuer's direct request or failure to use reasonable,
lawful means in retaining or attempting to retain the Card. Forward the Card
to: Attn: Rewards Department, P.O. Box 5019, Hagerstown, MD 21740. You
may be paid a reward for the return of the Card.
• On occasion, the Authorization Center will ask you to obtain identification
from the Cardholder before Issuing an approval code. If you are Instructed
to do so, clearly write the appropriate Identification source and numbers in
the space provided on the Sales Draft unless otherwise prohibited by law.
• If the sale is declined, please remember that our operators are only relaying
a message from the Issuer.The fad that a We has been declined should not
be Interpreted as a reflection of the Cardholders credltworthlness.The
Cardholder should be instructed to call the Issuer.
5.3. Authorization via Electronic Devices.
• if you use an electronic terminal to obtain Authorization Approval Code, all
sales should be authorized through this equipment. Authorizations through
other methods will result in additional charges to you.
• If your terminal malfunctions, refer to your Buick Reference Guide, if
necessary, or call the POS Help Desk. The problem will either be corrected
promptly or may require terminal programming or replacement. During the
period in which your terminal Is not functioning, remember to check it
periodically since most terminal problems are temporary in nature and are
quickly corrected.
• If a terminal is moved or If wires are disconnected, causing malfunction, call
the POS Help Desk immediately and follow their instructions. You may be
responsible for any service charges Incurred for reactivation of the terminal.
• Until the terminal becomes operable, you must call your designated voice
authorization toll free number and enter authorization information into the
VRU using a touchtone phone. During this time, each transaction must be
Imprinted using a manual imprinter machine. Failure to obtain an
Authorization Approval Code and to imprint these transactions could result
in a chargeback to your account.
WFBt405 I Il
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6.1. Submission of Sales for Merchants Other Than Your Business.
You may present for payment only valid charges that arise from a transaction
between a bona fide Cardholder and your establishment. If you deposit or
attempt to deposit transactions that arise from sales between Cardholders and
a different business than the one approved by us in our agreement with you,
then the transaction may be charged back, we may suspend or debit funds
associated with all such transactions, and we may immediately terminate your
account and the Agreement.
6.1.1. Factoring. Factoring Is considered merchant fraud and strictly
prohibited. Factoring Is the submission of authorization requests and/or Sales
Drafts by a merchant for Card transactions transacted by another business. If
you submit Sales Drafts on behalf of another Person, you will suffer any losses
associated with the disputes of any such Sales Draft and/or transaction. Also if
any fraud Is involved, you could face criminal prosecution.
6.2. Timeliness. In order to qualify for the lowest interchange Discount Rate,
all Sales and Credit Drafts must be properly completed and submitted daily. If
you have not received payment for submitted Sales Drafts after one (1) week
from your normal payment date, contact Customer Service. Late Submission of
Sales or Credit Drafts may result in increased interchange rates or fees or in a
Chargeback to you.
6.3. Mail/Branch Deposit Procedures. Complete the appropriate summary
form designated for your use. Imprint the completed summary with your
Merchant Identification Card, if applicable, and sign it. Please do not staple or
clip Sales Drafts together or to summary forms. This will distort the Cardholder's
account number and may result in a Summary Adjustment or Chargeback to
you. Mail your deposits daily to us, or, if your Agreement allows deposit at a
local bank branch, you must make daily deposits.
Do not send us the merchant copies (which are for your records); submit only
the Bank hard copies of the transactions. If merchant copies are submitted,
they will be returned to you unprocessed.
6.4. Electronic Merchants: Daily Batching Requirements b Media
Submission. Batches must be transmitted to us by the time indicated on the
Additional Important Information Page in Section 39.2 of the Agreement in
order to be processed on the date of transmission. Additionally, if you deposit
via magnetic tape, electronic transmissions, or Electronic Data Capture terminal
and have contracted to send the actual Sales Drafts and Credit Drafts to us for
imaging and retrieval, the Sales Drafts the Media must be batched daily by
register/terminal following the procedures below. Failure to do so may result In
a processing fee and/or a Chargeback due to our inability to retrieve the Media
as requested by the Issuer.
• A register/terminal Batch header form must be filled out for each Batch
of Media.
• The Batch header must be imprinted with your Merchant Identification
Card, and all areas completed properly (i.e., Batch number, date, amount,
number of items, etc.).
The Batch/deposit total must match to the settled/reconciled amount
displayed on the terminal upon closing the Batch.
Any discrepancies between the actual Media and electronic display must be
reconciled and corrected before storing the Media (for merchants who
contract to hold their Media) or before sending us the copies of the deposit.
Otherwise, transactions may appear to be a new Submission and may be
manually keyed (causing duplicate billing to Cardholders and resulting in
Chargebacks) or we may not be able to retrieve an item when requested by
the Issuer.
It is your responsibility to ensure that the actual Media is batched correctly
and, depending on the terms of your Agreement, either stored at your
location or sent to Processor, (In some cases, the actual Media is sent daily
to your head office, and forwarded to Processor for imaging.)
You must confirm that your equipment has transmitted its Batches to
us at least once daily. Even if your equipment is designed or programmed
to close and submit Batches without your intervention, it is ultimately your
responsibility to confirm that the Batches have been transmitted to us for
processing.
Except as otherwise set forth in this Program Guide, your funds for MasterCard/
Visa/Discover transactions will ordinarily be processed and transferred to your
financial institution within two (2) Business Days from the time a Batch is
received by Processor if your financial institution is the Bank. If your financial
institution is not the Bank, your MasterCard/Visa/ Discover transactions will
ordinarily be processed and transferred to the Federal Reserve within two (2)
Business Days from the time a Batch is received by Processor. The Federal
Reserve will transfer such amounts to your financial institution.
If you have been classified by Discover as having a Discover Direct Strategic
Relationship with Discover, we will not acquire your Discover transactions and
they will be subject to your agreement with Discover.
You acknowledge and agree that if we had not agreed or do not acquire trans-
actions for any Card type (i) we have no liability or responsibility whatsoever for
the settlement of or disputes regarding those transactions and (ii) you will pursue
directly with the related Card Organization all claims and disputes regarding
those transactions. You agree to pay us per Item processing, authorization and
other fees in the Application for any non -acquired transaction services you
receive from us.
8.1. Refunds.
• You must promptly complete and submit a Credit Draft for the total amount
of the Credit which must include the following information.
— The account number and expiration date;
— The Cardholder's name;
— Your name, city, state and Merchant Account Number;
— A description of the goods or services;
— The transaction date of the Credit;
— The total amount of the Credit; and
— For Discover transactions, the approved currency used and the signature
of your authorized representative or employee.
You cannot process a Credit transaction that does not correspond to a
refund on a previous transaction on the original Sales Draft.
• Full refunds must be for the exact dollar amount of the original transaction
including tax, handling charges, etc. (You must identify the shipping and
handling charges incurred.) The refund amount may not be for more than
the original Card sale amount.
• All dollar amounts and other handwritten Information must be clearly
written. (Stray marks on the Credit Draft will render it unscannable /Illegible.)
• Do not circle or underline any information on the Credit Draft.
• Imprint the Credit Draft with the same Card used by the Cardholder to make
the original purchase when applicable. You should not credit an account
that differs from the account used for the original transaction.
Never give cash or check Credit refunds for Card sales.
• Have the Cardholder sign the Credit Draft, give the Cardholder the appro-
priate copy, and deposit the Credit Draft Immediately. Failure to process a
credit within five (5) calendar days may result in a Chargeback.
Authorization is not required for Credits.
You cannot intentionally submit a sale and an offsetting Credit at a later
date solely for the purpose of debiting and crediting your own or a
customer's account.
• You are responsible for paying all refunds submitted to us on your merchant
account. We assume no responsibility for verifying any Credits or refunds.
Do not process a Credit transaction once a Chargeback is received. Credits
issued after a Chargeback has been received may not be recoverable and
the merchant would be financially responsible for the Credit as well as
the Chargeback.
• YOU ARE RESPONSIBLE TO SECURE YOUR TERMINALS AND TO INSTITUTE
APPROPRIATE CONTROLS TO PREVENT EMPLOYEES OR OTHERS FROM
SUBMITTING CREDITS THAT DO NOT REFLECT BONA FIDE RETURNS OR
REIMBURSEMENTS OF PRIOR TRANSACTIONS.
8.2. Exchanges.
• No additional paperwork is necessary for an even exchange. Just follow your
standard company policy.
For an uneven exchange, complete a Credit Draft (follow the procedures out-
lined in Section 8.1.) for the total amount of only the merchandise returned.
The Cardholder's account will be credited for that amount. Then, complete a
new Sales Draft for the total amount of any new merchandise purchased.
WFB1405 13
MasterCard and Visa Card Organization Rules require that a merchant make a
good faith attempt and be willing and able to resolve any disputes directly with
the Cardholder. Discover rules and regulations, however, prohibit you and/or us
from contacting the Cardholder directly regarding dispute(s) or any other
matter, except as required for acceptance of Discover transactions, and require
you and/or us to submit any responses to dispute notices directly to Discover.
Due to Card organization Rules, you may not re -bill a Cardholder after a
Chargeback is received for that transaction, even with Cardholder
authorization.
We strongly recommend that you include a detailed rebuttal letter along with
all pertinent documents when responding to a transaction request or a Charge -
back notification (e,g., rental agreement, imprinted portion of the invoice or
Sales Draft; the portion signed by the Cardholder; and the area where the
authorization codes, with amounts and dates, are located).
Due to the short time frames and the supporting documentation necessary to
successfully (and permanently) reverse a Chargeback in your favor, we strongly
recommend the following:
• Avoid Chargebacks by adhering to the guidelines and procedures outlined
In these Operating Procedures.
• If you do receive a Chargeback, Investigate, and if you dispute the Charge -
back, submit the appropriate documentation within the required time frame.
• Whenever possible, contact the Cardholder directly to resolve the dispute,
unless the dispute relates to a Discover Cardholder, in which case direct
contact with the Discover Cardholder regarding the dispute is prohibited by
Discover Card Organization Rules.
• If you have any questions, call Customer Service.
10.1 A. Chargeback Reason:. The following section outlines the most
common types of Chargebacks. This list Is not exhaustive. for ease of
understanding, we have combined like Chargebacks Into six groupings. We
have included recommendations on how to reduce the risk of Chargebacks
within each group. These are recommendations only, and do not guarantee
that you will be able to prevent Chargebacks.
1. AutheNzadon issues: Proper Authorization procedures were not followed
and valid Authorization was not obtained.
The follgwi0,gscenarios could cause an Authorization RdMed
Chargeback to o%ur.
• Authorization not obtained.
Authorization was declined,
Transaction processed with an expired card and Authorization was not
obtained.
• Transaction was processed with an invalid account number and
Authorization was not obtained.
Card Recovery Bulletin (CRB) or Exception File was not checked
(transactions below floor limit).
• Obtain valid Authorization on the day of the transaction.
• Card Present Transactions -Authorization must be obtained on the
transaction date for the amount settled.
• Card Not Present Transactions -Authorization must be obtained on the
transaction date for the amount settled. However, If merchandise is being
shipped, Authorization must be obtained within seven calendar days of the
transaction ship date.
• If a declined response is received, then request another form of payment
from the Cardholder.
• If a Referral response Is received, then follow proper voice procedures to
obtain a valid Authorization and obtain an Imprint of the card
• "Pick-up'response indicates that the issuer is requesting for the card to he
retained and returned back to them. The Credit Card should not be
accepted for payment. Additionally, you can choose to retain the Credit
Card and return it to the Acquirer for a reward.
• Merchants should not exceed any predetermined thresholds for specific
terminal types as specified by each Card Organization.
2. Cancellations and Returns: Credit was not processed properly or the
Cardholder has cancelled and/or returned items.
The following;senarios could cause a Cancellation and Return Related
Charaeback to occur
• Cardholder received damaged or defective merchandise.
• Cardholder continued to be billed for cancelled recurring transaction.
• Credit transaction was not processed.
To reduce your risk of receiving a Cancellation and Return Related
ChaMtback:
• Issue Credit to the Cardholder for the same account as the purchase in a
timely manner.
• Do not Issue Credit to the Cardholder in the form of cash, check or Instore/
merchandise Credit as we may not be able to recoup your funds in the
event the transaction Is charged back.
• Ensure customers are fully aware ofthe conditions for retuning transactions.
Cancel recurring billings as soon as notification Is received from the Card-
holder or as a Chargeback, and Issue a Credit as needed to the Cardholder
In a timely manner.
• Pre -notify the Cardholder of billings within 10 days (Domestic) and 15
(International) prior to billing, allowing the Cardholder time to cancel the
transaction.
• Provide proper disclosure of your refund policy for retumed/cancelled
merchandise, or services to the Cardholder at the time of transaction.
• Card present, Cardholder signed the Sales Draft containing disclosure.
• If applicable, the words'NO EXCHANGE, NO REFUND; etc must be dearly
printed in 1/4' Inch lettering on the Sales Draft near or above the
Cardholder signature.
• Ecommerce, provide disclosure on website on same page as check out
showing Cardholder must dick to accept prior to completion.
• Card Not Present, provide cancellation policy at the time of the transaction.
• Provide cancellation numbers to Cardholder's when lodging services are
cancelled.
• Ensure delivery of the merchandise or services ordered to the Cardholder.
3. Fraud: Transactions that the Cardholder or authorized user claims are
unauthorized; the account number is no longer in use or Is fictitious, or the
merchant was identified as'high risk'.
The following scenarios could cause a Fraud Related Chargeback
W :
• Muhiple transactions were completed with a single card without the
Cardholder's permission.
• Counterfeit card was utilized and proper acceptance procedures were not
followed.
• Authorization was obtained; however, full track data was not transmitted.
• Cardholder states that they did not authorize orpartidpate in the transaction.
Note: Visa Fraud Chargebacks: Chargeback representment rights do not
exist tf you failed to fulfill a retrieval request and/or provide a sales slip that
contains all required data elements.To preserve Chargeback representment
rights, respond to all retrieval requests with a dear legible copy of the
transaction document that contains all required data elements within the
required timeframe that is specified by the retrieval request
TQ reduce your risk of receiving a Fraud Related CharstbadG
Card Present Transactions:
Obtain an Authorization for all transactions.
• If you are utilizing an electronic device to capture Card Information, swipe
all Card transactions through your electronic authorization device to capture
Cardholder information and ensure the displayed Cardholder number
matches the number on the Card.
• If you are unable to swipe the Card or if a Referral response is received,
imprint the card using a valid Imprinting device that will capture the
embossed Card and merchant information. Do not alter the Imprint on the
draft in any way. Manually entering the information Into the terminal does
not protect you from this type of Chargeback. All pertinent information
relating to the transaction must be written on the manually imprinted draft
(transaction date, dollar amount, authorization code and merchandise
description) along with the Cardholder signature.
WF81405 Is
activities. Such debits shall not be subject to any limitations of time specified
elsewhere In the Agreement, Including, without limitation the following, which
we may add to or delete from this list as changes occur in the Card Organization
Rules or our Operating Procedures pursuant to Section 15:
Card Organization fees, charges, fines, penalties, registration fees, or other
• assessments Including any fees levied against us or any amount for which
you are obligated to Indemnify us.
• Currency conversion was incorrectly calculated. Nq-tIii: For Discover
transactions, you are not permitted to convert from your local Discover
approved currency Into another currency, nor may you Quote the price
of a transaction in U.S. Dollars If completed in another approved
currency.
• Discount Rate not previously charged.
• Reversal of deposit posted to your account in error.
• Debit for Summary Adjustment not previously posted.
• Reversal of Credit for deposit previously posted,
• Debit for Chargeback never posted to your account.
• Debit for EDC Batch error fee.
Card Organization Merchant Chargeback/fraud monitoring fees - excessive
Chargeback handling fee.
• Failure of transaction to meet Member Controller Authorization Service
('MCAS') - Cardholder account number on exception file.
• Original transaction currency (foreign) not provided.
• Travel Voucher exceeds maximum value.
• Debit and/or fee for Investigation and/or Chargeback costs related to our
termination of this Agreement, or for costs related to our collection
activities in an amount no less than $100.00.
• Costs arising from replacement or damage to equipment rented.
• Payment of current or past due amounts for any equipment purchase, rental
or lease,
• incorrect merchant descriptor (name and/or city, state) submitted.
• Incorrect transaction date submitted.
• Shipping and handling interchange fees.
• Costs or expenses associated with responding to any subpoena,
garnishment, levy or other legal process associated with your account.
10.3. Summary (Deposit) Adjustments /Electronic Rejects. Occasionally,
it is necessary to adjust the dollar amount of your summaries/ Submissions
(deposits) and Credit or debit your Settlement Account or settlement funds
accordingly. The following Is a list of the most frequent reasons for Summary
(Deposit) Adjustments/Electronfc Rejects:
• Your summary reflected an arithmetic error.
• Submitted sales not included In your Agreement (e.g, American Express).
• The dollar amount is unreadable/illegible.
• The Cardholder's account number Is unreadable/illegible.
• Duplicate Sales Draft submitted.
Card number is Incorrect/incomplete.
• Summary indicated Credits, but no Credits were submitted.
10.4. Disputing Other Debits and Summary Adjustments. In order to
quickly resolve disputed debits and Summary Adjustments, it Is extremely
Important that the Items listed in this section be faxed or sent to the address
listed on the notification.
If the Summary Adjustment Is for an unreadable or Incorrect Cardholder
account number, resubmit the corrected Sales Draft with your next deposit.
Also, if the transaction Is over thirty (30) calendar days old, you must
reauthorize and obtain a valid Authorization Approval Code.
A clear and legible copy of the Sales Draft containing the following should be
obtained from your files:
. Date of sale/Credit;
Cardholder's account number, name and signature;
• Total amount of the sale and description of goods and services; and
• Date and Authorization Approval Code.
Include a dated cover letter detailing the reasons for requesting a review of the
debit or Summary Adjustment and documentation to support your dispute.
(You should retain a copy of the correspondence and all documentation for
your files.) If the inquiry is related to prior correspondence, be sure to include
the control number we previously used.
Immediately fax or mail the Sales Draft or Credit Drafts to the fax number or
address provided on your notification letter.
If you have any questions, please call the Customer Service number provided
on the last page of this Program Guide. If a Customer Service Representative
informs you that additional documentation Is required in order to fully review
the Item, please immediately submit your rebuttal and transaction
documentation to the fax number or address listed on the debit notification.
11.1. Change of Settlement Account Number. If you change the Settlement
Account in which you receive the proceeds of your transactions, you must call
Customer Service or your Relationship Manager immediately. If you accept
payment types other than Visa, MasterCard and Discover (such as the American
Express Card, and TeleChed( Services), you are also responsible for contacting
the Card Organizations or companies governing those Cards to notify them of
this change.
11.2. Change In Your Legal Name or Structure, You must call Customer
Service or your Relationship Manager and request a new Agreement.
11.3. Change in Company DBA Name, Address or Telephone/ Facsfmlle
Number. To change your company or location DBA name, address (or e-mail
address), or telephone/facsimlle number, you must send the request In writing
to the address on your statement.
11 A. Other Change(s) In Merchant Profile. You must immediately notify us
of any change to the information on file with us In your merchant profile,
f ncluding: (I) any new lines or types of business; (i) change in ownership; 011)
the opening, closing or liquidation of business or any location; (iv) change in
Card processing method (i.e., paper Sales Drafts to POS Device); (v) voluntary or
Involuntary party to a bankruptcy case; (vi) entry Into a loan or other agreement
with a third party that seeks to affect this Merchant Agreement; and/or (vii)
change from a business that exclusively conducts card -present retail sales to
one that accepts Card sales by mail, telephone or Internet transactions. We
retain the right to terminate this Agreement if you fall to notify us of any
change to the information In your merchant profile.
11.S. Charges for Changes to Account Maintenance. You maybe charged
for any changes referenced in this Section or any other changes requested by
you or otherwise necessary related to account maintenance.
12. Card Or'ganization Monitoring
MasterCard, Visa and Discover and American Express have established guide-
lines, merchant monitoring programs and reports to track merchant activity
such as, but not limited to excessive Credits, reported fraud and Chargebacks,
and increased deposit activity. In the event you exceed the guidelines or
engage in practices that could circumvent such monitoring programs or
submit suspicious transactions as Identified by a Card Organization or any
related program or reports, you may be subject to: (i) operating procedure
requirement modifications; (H) incremental Chargebacks and/or Increased fees;
(ill) settlement delay or withholding; (Iv) termination of your Agreement; or (v)
audit and imposition of fines.
Placing Orders.
• To order additional supplies, call Customer Service when you have two
months' Inventory left. We will ship you an adequate amount of supplies.
The amount of supplies (based on usage) on hand should not exceed a
three to six-month supply.
• In an EMERGENCY, please contact Customer Service using the number
provided on the last page of this Program Guide-Ifsupplies are sent via an
express delivery service, the delivery charges will be debited to your account.
You are responsible for unauthorized use of sales/credit and summary Media.
We recommended that you store all supplies in a safe location.
• You may be charged for supplies and applicable shipping and handling
charges.
WFB14a5 17
18.9. To the extent the Automated Clearing House (ACH) settlement process
Is used to effect debits or credits to your Settlement Account, you agree to be
bound by the terms of the operating rules of the National Automated Clearing
House Association, as In effect from time to time.You hereby authorize us to
Initiate credit and debit entries and adjustments to your account through the
ACH network and/or through direct instructions to the financial Institution
s where your Settlement Account Is maintained for amounts due under this
Agreement and under any agreements with us or our respective Affiliates for
any related services, as well as for any credit entries In error. You hereby author-
Ize the financial institution where your Settlement Account is maintained to
effect all such debits and credits to your account.This authority will remain in
full force and effect until we have given written notice to the financial Institution
where your Settlement Account is maintained that all monies due under this
Agreement and under any other agreements with us or our respective Affiliates
for any related services have been paid in full.
18.9. You agree to pay any fines imposed onus by any Card Organization
resulting from Chargebacks and any other fees or fines imposed by a Card
Organization with respect to your ads or omissions. You are responsible for any
fines or fees imposed on us as a result of acts or omissions by your agents or
third parties.
18.10. If your Chargeback percentage for any line of business exceeds the
estimated industry Chargeback Percentage, you shall, in addition to the
chargeback fees and any applicable Chargeback handling fees or fines, pay us
an excessive Chargeback fee for all Chargebacks occurring in such month In
such line(s) of business. Each estimated industry Chargeback Percentage is
subject to change from time to time by us in order to reflect changes in the
Industry Chargeback Percentages reported by Visa„ MasterCard, American
Express or Discover. Your Chargeback Percentage will be calculated as the
larger of (a) the total Visa, MasterCard, American Express and Discover
Chargeback Items in any line of business In any calendar month divided by the
number of Asa, MasterCard, American Express and Discover transactions In
that line of business submitted that month, or (b) the total dollar amount of
Visa, MasterCard, American Express and Discover Chargebacks in any line of
business received in any calendar month divided by the total dollar amount of
yourVlsa, MasterCard, American Express and Discover transactions In that line
of business submitted in that month.
18.11. You must promptly and carefully review statements or reports provided
or made available to you (physically, electronically or otherwise) reflecting Card
transaction activity, including, actNity In the Settlement Account and Reserve
Account, whether provided by us or othe►s. if you believe any adjustments
should be made with respect to your Settlement Account, you must notify us in
writing within sixty (60) days after any debit or credit Is, or should have been
effected or such shorter period as provided In the terms and conditions that
govern such account. If you notify us after such time period, we may, In our dis-
cretion, assist you, at your expense, In investigating whether any adjustments
are appropriate and whether any amounts are due to or from other parties, but
we shall not have any obligation to Investigate or effect any such adjustments.
Any voluntary efforts by us to assist you in investigating such matters shall not
create any obligation to continue such investigation or any future Investigation.
19.12. If you do not pay us all fees and any other amounts due under this
Agreement within thirty (30) days of the date of our merchant statement or
other statement setting forth the amount due, then we may, in our sole
discretion, charge you interest, for such time that the amount and all accrued
interest remain outstanding at the lesser of (i) the per annum rate equal to
Bank's then current prime rate plus two percent (2%), based on a 360 day year,
or (ill the maximum rate permitted by applicable law.
19.1. You shall be responsible for reimbursing us for all transactions you submit
that are charged back, See the Operating Procedures for additional information
regarding Chargebacks and Chargeback procedures.
19.2. You shall reimburse us for any Chargebacks, return items, or other losses
resulting from your failure to produce a Card transaction record requested by
us within the applicable time Ilmits.
20.1. Without limiting any other warranties hereunder, you represent warrant
to and covenant with us, and with the submission of each sales Draft reaffirm,
the following representatiorm warranties and/or covenants;
20.1.1. each Card transaction is genuine and arises from a bona fide
transaction permissible under the Card Organization Rules by the Cardholder
directly with you, represents a valid obligation for the amount shown on the
Sales Draft, preauthorize order, or Credit Draft, and does not Involve the use of
a Card for any other purpose;
20.11. each Card transaction represents an obligation of the related
Cardholder for the amount of the Card transaction;
20.1.3. the amount charged for the Card transaction is not subject to any
dispute, setoff or counterclaim;
20.1.4. each Card transaction amount is only for respective merchandise or
services (Including taxes, but without any surcharge) sold, leased or rented or
other payments to you and, except for any delayed delivery or advance deposit
Card transactions expressly authorized by this Agreement, the merchandise or
service was actually delivered to or performed for the person entering into the
Card transaction simultaneously upon your accepting and submitting the Card
transaction for processing;
20.1 S. with respect to each Card transaction, you have no knowledge or
notice of any fact, circumstances or defense which would Indicate that such
Card transaction Is fraudulent or not authorized by the related Cardholder or
which would otherwise Impair the validity or collectibility of the Cardholder's
obligation arising from such Card transaction or relieve the Cardholder from
liability with respect thereto;
20.1.6. each Card transaction Is made In accordance with these General
Terms, Card Organization Rules and the Operating Procedures; and
20.1.7. each Sales Draft is free of any alternation not authorized by the
related Cardholder;
20.1.9. you have completed one Card transaction per sale; or one Card
transaction per shipment of goods for which the Cardholder has agreed to
partial shipments;
20.1.9. you are validly existing, In good standing and free to enter into this
Agreement;
20.1.10. each statement made on the Application or other information
provided to us in support of this Agreement Is true and correct;
20.1.11. you are not doing business under a name or style not previously
disclosed to us;
20.1.12. you have not changed the nature of your business, Card accept-
ance practices, delivery methods, return policies, or types of products or services
sold requiring a different merchant category code under Card Organization
Rules, in a way not previous disclosed to us;
20.1.13. you will use the Services only for your own proper business
purposes and will not resell, directly or indirectly, any part of the Services to
any Person;
20.1.14. you have not flied a bankruptcy petition not previously disclosed
to us;
20.1.1 S. you own and control the Settlement Account, and no third party
security Interest or lien of any type exists regarding the Settlement Account or
any Card transaction.
20.1.10. you will not at any time during the term of this Agreement, or until
all amounts due under this Agreement have been paid in full, grant or pledge
any security interest or lien In the Reserve Account, Settlement Account or
transaction proceeds to any Person without our consent;
20.1.17. the Card transaction is not a payment for a product or service that
violates federal, state or local law in anyjurisdiction that may be applicable.
20.2. THIS AGREEMENT IS A SERVICE AGREEMENT. WE DISCLAIM ALL
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED; MADE TO YOU OR
ANY OTHER PERSON, INCLUDING WiTHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHERWISE OF ANY SERVICES
OR ANY GOODS PROVIDED INCIDENTALTO THE SERVICES PROVIDED UNDER
THIS AGREEMENT, INCLUDING WTiHOLIT LIMITATION, ANY SERVICES OR ANY
GOODS PROVIDED BY A THIRD PARTY.
20.3. IN NO EVENT SHALL EITHER PARTY, OR THEIR AFFILIATES OR ANY OF
OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT,
STRICT LIABILITY OR OTHER LEGALTHEORY FOR LOST PROFITS, LOST
REVENUES, LOST BUSINESS OPPORTUNff1ES, EXEMPLARY, PUNiTIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OFTHE PARTIES, REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR
ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CLIENT ACKNOWLEDGES AND AGREES THAT PAYMENT OF ANY EARLY
WF81405 19
22.3. Upon notice to you, another Visa and MasterCard member maybe
substituted for Bank under whose sponsorship this Agreement is performed
with respect to Visa and MasterCard transactions. Upon substitution, such other
Visa and MasterCard member shall be responsible for all obligations required of
Bank for Visa and MasterCard transactions, Including without limitation, full
responsibility for its Card program and such other obligations as may be
expressly required by applicable Card Organization Rules. Subject to Card
Organization Rules, we may assign or transfer this Agreement and our rights
and obligations hereunder and/or may delegate our duties hereunder, in whole
or in part, to any third party, whether In connection with a change in sponsor-
ship, as set forth in the preceding paragraph, or otherwise, without notice to
you or your consent.
22.4. Except asset forth elsewhere In this Section and as provided in the
following sentence, this Agreement shall be binding upon successors and
assigns and shall inure to the benefit of the parties and their respective permit-
ted successors and assigns. No assignee for the benefit of creditors, custodian,
receiver, trustee In bankruptcy, debtor in possession, or other person charged
with taking custody of a party's assets or business, shall have any right to
continue, assume or assign this Agreement,
23.1. This Agreement shall become effective upon the date this Agreement is
approved by our Credit Department.
23.2. The initial term of this Agreement shall commence and shall continue in
force for three years after it becomes effective. Thereafter, it shall renew for
successive one year terms unless and until you provide written notice at least
ninety (90) days prior to the end of the then current term or we provide you
with notice in accordance with the Agreement.
23.3. Notwithstanding the above or any other provisions of this Agreement,
we may terminate this Agreement at any time and for any reason by providing
20 days'advance notice to you. We may terminate this Agreement immediately
or with shorter notice upon Event of Default as provided under Section 23,4 of
this Agreement You may terminate this Agreement without penalty in the
event of a material breach of this Agreement by SerAcers. In the event we
provide notice to you of any new fees or increases in existing fees for Services,
pursuant to Section 18.6. you mayterminate this Agreement without further
cause or penalty by notifying us that you are terminating this Agreement prior
to the effective date of such new fees or Increases, However, maintaining your
merchant account or your continued use of the Services after the effective date
of any such fee changes shall be deemed your acceptance of such fee changes
for the Services, throughout the term of this Agreement.
23A. If any of the following events shall occur (each an 'Event of Defaultl:
23.4.1. a material adverse change in your business, financial condition or
business prospects; or
23A.2. any assignment or transfer of voting control of you or your parent; or
23A.3. a sale of all or a substantial portion of your assets; or
23AA. Irregular Card sales by you, excessive Chargebacks, noncompliance
with any applicable data security standards, as determined by Servlcers, or any
Card organization, or any other Person, or an actual or suspected data security
breach, nonconformance with any applicable data security standards, as
determined by Servicers, any Card Card Organization, or any other entity, or an
actual or suspected data security breach, or any other circumstances which, in
our sole discretion, may increase our exposure for your Chargebacks or other-
wise present a financial or security risk to us; or
23A.5. any of your representations, warranties or covenants in this
Agreement are breached in any respect; or
23.4.6. you default In any material respect in the performance or observance
of any term, covenant, condition or agreement contained in this Agreement,
including, without limitation, the establishment or maintenance of funds In a
Reserve Account, as detailed in Section 24; or
23A.7. you default in any material respect in the performance or observance
of any term, covenant or condition contained in any agreement with any of our
respective Affiliates;
23A.8. you default In the payment when due, of any material Indebtedness
for borrowed money; or
23.4.9. you file a petition or have a petition filed by another party under
the U.S. bankruptcy code or any other laws relating to bankruptcy, Insolvency
or similar arrangement for adjustment of debts; consent to or fail to contest In a
timely and appropriate manner any petition filed against you in an involuntary
case under such laws; apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of you or of a substantial part of your
property; or make a general assignment for the benefit of creditors; or take any
corporate action for the purpose of authorizing any of the foregoing; or
23.4.10. your independent certified accountants shall refuse to deliver an
unqualified opinion with respect to your annual financial statements and your
consolidated subsidiaries; or
23.4.11. a violation by you of any applicable law or Card Organization Rule
or our reasonable belief that termination of this Agreement or suspension of
Services is necessary to comply with any law including without limitation the
rules and regulations promulgated by the Office of Foreign Assets Control of
the US. Department of the Treasury or your breach, as determined byServicers,
of Section 37.2 ("Compliance with Laws); then, upon the occurrence of (1) an
Event of Default specified In subsections 23.4.4, 23.4.9 or 23A,11, we may
consider this Agreement to be terminated Immediately, without notice, and all
amounts payable hereunder shall be immediately due and payable In full
without demand or other notice of any kind, all of which are expressly waived
by you, and (2) any other Event of Default this Agreement may be terminated
by us giving not less than 10 days' notice to you, and upon such notice all
amounts payable hereunder shall be due and payable on demand.
23.5. Neither the expiration nor termination of this Agreement shall
terminate the obligations and rights of the parties pursuant to provisions of
this Agreement which by their terms are intended to survive or be perpetual or
Irrevocable. Such provisions shall survive the expiration or termination of this
Agreement. All obligations by you to pay or reimburse us for any obligations
associated with transactions you have submitted to us will to survive termination
of this Agreement until finally and Irrevocably paid In full and settled.
23.6. If any Event of Default occurs and regardless of whether such Event of
Default has been cured, we may, in our We discretion, exercise all of our rights
and remedies under applicable law and this Agreement, Including, without
limitation, exercising our rights under Section 24.
23.7. in the event you file for protection under the U.S. bankruptcy code or
any other laws relating to bankruptcy, Insolvency, assignment for the benefit of
creditors or similar laws, and you continue to use our Services, it Is your
responsibility to open new accounts to distinguish pre and post filing
obligations. You acknowledge that as long as you utilize the accounts you
established prior to such filing, we will not be able to systematically segregate
your post -filling transactions or prevent set-off of the pre-existing obligations.
In that event, you will be responsible for submitting an accounting supporting
any adjustments that you may claim,
23.8. The Card Organizations often maintain lists of merchants who have had
their merchant agreements or Card Acceptance rights terminated for cause. if
this Agreement is terminated for cause, you acknowledge that we may be
required to report your business name and the names and other information
regarding its principals to the Card Organizations for inclusion on such list(s).
You expressly agree and consent to such reporting If you are terminated as a
result of the occurrence of an Event of Default or for any reason specified as
cause by Visa, MasterCard or Discover. Furthermore, you agree to waive and
hold us harmless from and against any and all claims which you may have as a
result of such reporting.
23.9. After termination of this Agreement for any reason whatsoever, you
shall continue to bear total responsibility for all Chargebacks, fees, credits and
adjustments resulting from Card transactions processed pursuant to this
Agreement and all other amounts then due or which thereafter may become
due under this Agreement
24.1. You expressly authorize us to establish a Reserve Account to help
mitigate our risk exposure under this Agreement The decision to establish a
Reserve Account (and the amount thereof) Iles exclusively with us, and you
understand that you are obligated to fund such account pursuant to the terms
and conditions set forth in this Section 24.The amount of such Reserve Account
shall be set by us, in our sole discretion, based upon your processing history
(where applicable) and the potential risk of loss to us as we may determine from
time to time.
241. The Reserve Account shall be fully funded upon three (3) days'notice to
you, or In Instances of fraud or suspected fraud an Event of Default Reserve
Account funding may be immediate. Such Reserve Account may be funded by
all or any combination of the following: (i) one or more debits to your Settle-
ment Account or any other accounts held by Bank or any of its Affiliates; at any
financial institution maintained in the name of Client, any of its principals, or
WFB1405
provide you with its own agreement that governs those transactions, unless
American Express OnePoiht Services are provided to you In Section 2.0 of third
Party Agreements. You understand and agree that we are not responsible and
assume absolutely no liability with regard to any such transactions, Including
but not limited to the funding and settlement of American Express trans-
actions, and that American Express will charge additional fees for the services
they provide.
27.3. If you accept 1CB Cards, you agree to be bound by 1CB and/or
Discover provisions of this Agreement. You also acknowledge and agree that
JCB transactions will be processed under and wiil be subject to Discover Card
Organization Rules.
27.4. If you accept Voyager and/or WEX Cards, you agree to be bound by
the WEX and/or Voyager rules. You also agree to be bound by all other
provisions of this Agreement which are applicable to WEX and/or Voyager.
27.5. If you execute a separate WEX Merdtant Agreement, (WEX Non Full
Service Program), you understand that we will provide such agreement to WEX,
but that neither we nor WEX shall have any obligation whatsoever to you with
respect to processing WEX Cards unless and until WEX executes your WEX
Merchant Agreement. If WEX executes your WEX Merchant Agreement and you
accept WEX Cards, you understand that WEX transactions are processed,
authorized and funded by WEX. You understand that WEX Is solely responsible
for all agreements that govern WEX transactions and that we are not responsible
and assume absolutely no liability with regard to any such agreements or WEX
transactions, including but not limited to the funding and settlement of WEX
transactions. You understand that WEX will charge additional fees for the
services that it provides.
27A. N you elect to participate in the WEX Full Service program, the
following terms and conditions shall apply.
a. You shall provide, at your own expense, all equipment necessary to permit
the electronic acceptance of the WEX Cards, including the operation and
maintenance of the equipment, telecommunication link, and provision of
all networking services;
b. All authorization request data for WEX Card sales must include WEX
Cardholder account number, vehicle number, Card expiration date, driver
Identification number; and the amount of the transaction, date and time of
10 the transaction, quantity of goods sold, unit price, and product code (the
"Authorization Request Data). All manual WEX Card sales (i.e., sales
facilitated by a card imprinter) must include an Authorization number or
other approval code from WEX along with the aforementioned
Authorization Request Data;
c. You shall not submit a WEX Card sale for processing when a WEX Card Is not
presented at the time of the WEX Card sale;
d. You shall complete a WEX Card sale only upon the receipt of an Authoriza-
tion approval message and not accept a WEX Card when an expired Card/
decline message is received;
e. You shall not submit a WEX Card sale for processing until the goods have
been delivered or services performed;
f. You shall not accept a WEX Card where the WEX Card appears to be Invalid
or expired or there is reasonable belief that the WEX Card is counterfeit
or stolen;
g. You shall provide a copy of the receipt for a WEX Card sales, upon the
request of the Card holder, to the extent permitted by applicable law, which
shall not Include the full account number or driver identification number;
h. You shall require the Cardholder to sign a receipt when a WEX Card sale is
not completed by an island Card reader;
I, You shall take all commercially reasonable efforts to protect manual WEX
Card sales data from fraud or misuse;
J. You shall not divide the price of goods and services purchased In a single
WEX Card sale among two or more sales receipts or permit a WEX Card sale
when only partial payment Is made by use of the WEX Card and the balance
Is made with another bank Card;
k. You shall maintain a record of all WEX Card sales, including the Authorization
Request Data, for a period of one year and produce such records upon the
reasonable request of WEX;
I. You shall notify Bank of any errors contained within a settlement report
within forty five (45) days of receipt of such report. Processor will not accept
reprocessing requests for WEX transactions older than 90 days;
m. You shall allow WEX to audit records, upon reasonable advance notice,
related to the WEX Full Service; and
n. You shall retransmit WEX Card sales data when reasonably requested to
do so.
Client acknowledges and agrees that its sole remedies with respect to the WEX
Full Acquiring services shall be against Bank for the WEX Full Acquiring Services
and not WEX, except to the extent that WEX knows of any fraud related to the
WEX Cards and fails to provide notice of such fraud or WEX commits fraud in
respect to the WEX Full Acquiring Services.
27.7. If you accept Voyager Cards:
• In addition to the information stated in Section 1 (MasterCard, Visa and
Discover Acceptance) of the Operating Procedures, you should check Fleet
Cards for any printed restrictions at the point of sale.
In addition to the information provided under Section 1,5 (Special Terms) of
the Operating Procedures, you shall establish a fair polky for the exchange
and return of merchandise. You shall promptly submit Credits to us for any
returns that are to be credited to a Voyager Card holder's account. Unless
required by law, you shall not give any cash refunds to any Voyager Card
holder in connection with a sale.
• In addition to the Information required under Section 3.1 (Information
Required) of the Operating Procedures, the following information must be
contained on the single page document constituting the Sales Draft for
Voyager transactions:
- Time of transaction.
- Type of fuel sold.
- As permitted by the applicable POS device„ odometer reading.
- For all cashier -assisted Sales Drafts and Credit Drafts processed manually
using a card Imprinter if required, the identification number from the
source credentials provided by Cardholder to validate Cardholder's
identity (e.g., Driver's License number).
• If an increase in the number of Voyager transaction authorization calls from
you not due to our or Voyager system outages in excess of 15%for a given
month as compared to the previous month occurs, we may, In our discretion,
deduct telephone charges, not to exceed S.25 (25 cents) per call, for the
increased calls, from your settlement of yourVoyager transactions.
• in addition to the information provided under Section 7 (Settlement) of the
Operating Procedures, settlement of Voyager transactions will generally
occur by the fourth banking day after we process the applicable card
transactions. We shall reimburse you for the dollar amount of sales
submitted for a given day by you, reduced by the amount of Chargebada,
tax exemptions, discounts, Credits, and the fees set forth in the Application,
Neither we nor Voyager shall be required to reimburse you for sales
submitted more than sixty (60) days from the date of purchase.
• For daily transmission of sales data, you shall maintain true and complete
records In connection with the information required to be provided under
this paragraph for a period of not less than thirty-six (36) months from the
date of the generation of the data. You may store records on electronic
media. You are responsible for the expense of retaining sales data records
and Sales Drafts.
• in addition to the scenario Identified in Section 10.1A of the Operating
Guide that could cause an authorization related Chargeback to occur, with
respect to Voyager transactions, Chargebacks shall be made in accordance
with any other Voyager rules. Notwithstanding termination or expiration of
this paragraph or the Agreement, you shall remain liable for all outstanding
Chargebacks on Voyager transactions.
• In addition to the Information provided under Section 20 (Representations;
Warranties; Covenants; Limitations of tlability; Exclusion of Consequential
Damages) of the GeneralTerms, in no event shall our cumulative liability to
you for losses, claims, suits, controversies, breaches or damages for any
cause whatsoever in connection with Voyager transactions exceed the
lesser of $ 1Q,000,00 or the VoyagerTransactlon Fees paid by you to us for
the two months prior to the action giving arise to the claim.
• Notwithstanding anything in this Agreement to the contrary, our obligation
to provide services to you relating to any Fleet Card will terminate
automatically without penalty to us or the related Card Organization upon
the earlier of (1) the termination or expiration of our agreement with such
Card Organization, (i 1) at least twenty (20) days prior written notice by us to
you; piO your failure to comply with material terms relating to such Fleet
Card transactions, or (Iv) written notice, If an Card Organization discontinues
its Card.
wF614o5 23
You will provide EBT benefits to EBT customers, in accordance with the
procedures set forth in the EBT Rules, in the amount authorized through your
Authorized Terminal upon presentation by an EBT customer of an EBT Card and
such EBT customer's entry of a valid PIN. if the Authorized Terminal falls to print
EBT benefit issuance Information as approved and validated as a legitimate
transaction, you will comply with the procedures set forth In the EBT Rules for
authorization of EBT benefits in such instance. You are solely responsible for
your provision of EBT benefits other than in accordance with authorizations
timely received from EBT service provider. You will not resubmit any EBT Card
transaction except as specifically permitted by the EBT Rules and procedures
applicable to such EBT Card transaction. You must provide a receipt for each
EBT transaction to the applicable EBT customer.
You will not accept any EBT Card for any purpose other than providing EBT
Benefits, including without limitation accepting an EBT Card as security for
repayment of any EBT customer obligation to you. In the event of any violation
of this provision, you will be obligated to reimburse the state or us for any EBT
benefits unlawfully received by either you or an EBT customer to the extent per-
mitted by law. Cash should never be dispensed for FNS, SNAP and WIC Benefits.
You authorize us to initiate EBT Card transactions and to receive settlement for
such transactions on your behalf.
29.2. Manual EBT Vouchers. in accordance with the procedures set forth In
this Section 29 and the EBT Rules, you will manually accept EBT Cards during
periods of time when your Authorized Terminal Is not working or the EBT system
In not available; you will manually provide EBT benefits in the amount authorized
through the applicable EBT service providerto the EBT customers at no cost to
the EBT customers upon presentation by an EBT customer of his/her EBT Card.
All manual voucher authorizations must be cleared on your POS terminal for
payment of voucher to be made to you. In addition to ary procedures set forth
in the EBT Rules, the following limitations will apply to manual issuance of FS
Benefits by Merchant -
I. An authorization number for the amount of the purchase must be received
by you from the applicable EBT service provider while the respective EBT
customer is present and before you provide such EBT customer with any
FNS, SNAP and WIC Benefits, or Cash Benefits, as applicable. You must not
attempt to voice authorize a manual EBT transaction If the EBT customer Is
not present to sign the voucher.
The EBT customer must sign the voucher. A copy of the voucher should be
given to the EBT customer at the time of authorization and you should retain
one copy for your records.
11, Specified EBT customer, clerk and sales information, including the telephone
authorization number, must be entered properly and legibly on the manual
sales draft.
Ill. All manual voucher authorizations must be cleared on your Authorized
Terminal before payment of voucher will be made to you. Vouchers must be
cleared within 10 Business Days after the date of applicable voice authoriza-
tion. Vouchers cannot be cleared by any manner except by your Authorized
Terminal therefore you should never mail vouchers requesting payment. If a
voucher expires before it has been cleared by your Authorized Terminal for
payment, no further action can be taken to obtain payment for the voucher.
iv. In the event that, due to EBT host failure, EBT benefit availability for an EBT
customer cannot be determined at the time you request authorization, the
maximum authorized manual transaction and benefit encumbrance will be
$40.W or such other state specific floor limit as set forth In the most current
version of the applicable EBT Rules.
v. Except as specifically provided in the applicable EBT Rules, you will not be
reimbursed and will be solely responsible far a manual transaction when
you fail to obtain an authorization number from the applicable EBT service
provider as set forth in this Section 29 or otherwise fall to process the
manual transaction in accordance with the EBT Rules.
vi. If you have not received an authorization number in accordance with
paragraph 29.1 above, you may not"re-submit'a manual sales draft for
payment for the transaction.
29.3. Acceptance of EBT Cash Benefits. If you agree to accept EBT Cards
and to provide Cash Benefits, you agree to maintain adequate cash on hand to
Issue EBT service provider authorized Cash Benefits and will issue such Cash
Benefits to EBT customers in the same manner and to the same extent cash Is
provided to your other customers. You may not require, and may not In your
advertising suggest, that any EBT customers must purchase goods or services
from you as a condition to receiving Cash Benefits, unless such condition
applies to other customers as well. You may not designate and direct EBT
customers to special checkout lanes restricted to use by EBT customers unless
you also designate and direct other customers to special checkout lanes for
Debit Cards or Credit Cards and/or other payment methods such as checks
other than cash.
29A. Interoperability. If you accept Cards and provide EBT benefits (FNS,
SNAP and WIC Benefits and/or Cash Benefits), you must do so for EBT customers
from all states.
29.5. Required Licenses. If you provide FNS, SNAP and WIC Benefits under
this Agreement, you represent and warrant to us that you are a FNS authorized
merchant and are not currently disqualified or withdrawn from redeeming food
stamp coupons or otherwise disqualified or withdrawn by FNS. You agree to
secure and maintain at your own expense all necessary licenses, permits,
franchises, or other authorities required to lawfully effect the Issuance and
distribution of EBT benefits under this Agreement, including without limitation,
any applicable franchise tax certificate and non -governmental contractor's
certificate, and covenant that you will not accept EBT Cards or provide EBT
benefits at any time during which you are not In compliance with the
requirements of any EBT Rules.
29.6. Term and Termination. If you are disqualified or withdrawn from the
Food Stamp Program, your authority to issue benefits will be terminated
concurrendy therewith. Such disqualification or withdrawal will be deemed a
breach of this Agreement with respect to your authority to issue Cash Benefits
and, in the event of such disqualification; we have the right to Immediately
terminate the provision of service under this Section 29 or the Agreement In its
entirety. With respect to the Issuance of Cash Benefits only, your authority to
issue Cash Benefits may be suspended or terminated immediately at the sole
discretion of us, the state or Its EBT service provider, effective upon delivery of a
notice of suspension or termination specifying the reasons for such suspension
or termination If there shall be (i) any suspension, Injunction, cessation, or
termination of the EBT service provider's authorityto provide EBT services to
the state; Ua failure by you, upon not less than thirty (30) days prior written
notice, to cure any breach by you of the provisions of these terms and
conditions, Including without limitation, your failure to support the Issuance of
EBT benefits during your normal business hours consistent with your normal
business practicesr your failure to comply with EBT Issuance procedures, your
Impermissible acceptance of an EBT Card, or your disqualification or withdrawal
from the Food Stamp Program; or (110 based on a state's or its EBT service
provider's investigation of the relevant facts, evidence that you or any of your
agents or employees are committing, participating in, or have knowledge of
fraud or theft In connection with the dispensing of EBT benefits, if you fail to
cure any breach as set forth above, you may appeal such suspension of
termination to the applicable state for determination In its sole discretion.
in the event that your authority to accept benefits is suspended or terminated
by a state or Its EBT service provider, and you successfully appeal such
suspension or termination to the state or its EBT service provider, we shall be
under no obligation to reinstate the services previously provided under this
Section 29 or the Agreement, as applicable.
The provision of services under this Section 29 shall terminate automatically If
our Agreement or our service provider's agreement with any applicable state's
EBT service provider terminates for any reason.
You will give prompt notice to us if you plan to stop accepting EBT Cards and
providing EBT benefits or of you are unable to comply with the terms of this
Section 29.
29.7. Confidentlaifty of EBT System Information. All Information related to
EBT customers and/or the issuance of EBT benefits shall be considered
confidential information.
Individually identifiable Information relating to an EBT customer or applicant
for EBT benefits will be held confidential and will not be disclosed by you or
your directors, officers, employees or agents, without prior written approval of
the applicable state.
You will: (a) implement appropriate measures designed to. (1) ensure the
security and confidentiality of all non-public personal information or materials
regarding customers ("NPPI'); (2) protect against any anticipated threats or
hazards to the security or integrity of NPPI; (3) protect against unauthorized
access to or use of NPPI that could result In substantial harm or inconvenience
to any customer and (4) ensure the proper disposal of NPPI; and (b) take appro-
priate actions to address incidents of unauthorized access to NPPI, Including
notification to us as soon as possible.
The use of information obtained by you In the performance of your duties under
this Section 29 will be limited to purposes directly connected with such duties,
29.9. EBT Service Marks. You will adequately display any applicable state's
service marks or other licensed marks, including the Quest Marks, and other
WFB1405 25
Wireless Equipment for the purposes set forth in this Agreement. Nothing in
this Agreement confers any title or ownership of any such Wireless Software to
you or shall be construed as a sale of any rights in any such Wireless Software to
you. You agree to accept, agree to and be bound by all applicable terms and
conditions of use and other license terms applicable to such Wireless Software.
You shall not reverse engineer, disassemble or decompile the Wireless Software.
You shall not give any Person access to the Wireless Software without our prior
written con sent. Your obligations under this Section 30.2 shall survive the
termination of this Agreement. You acknowledge that the only right you obtain
to the Wireless Software is the right to use the Wireless Software in accordance
with the terms in this Section.
30.3. Limitation on Liability. We shall have no liability for any warranties by
any party with respect to uninterrupted Wireless Services, as set forth in Section
30.10, or for any Person's unauthorized access to Client's data transmitted
through either the Wireless Equipment or Wireless Services (including the
Wireless software), or Wireless Networks, regardless of the form of action
(whether in contract, tort (including negligence), strict liability or otherwise).
The foregoing notwithstanding, for any other liability arising out of or in any
way connected with these Wireless Services Terms, including liability resulting
solely from loss or damage caused by partial or total failure, delay or nonper-
formance of the Wireless Services or relating to or arising from your use of or
inability to use the Wireless Services, Processor's, Banks, and Wireless Vendor(s)'
liability shall be limited to your direct damages, if any, and, in any event, shall
not exceed the lesser of the amount paid by you for the particular Wireless
Services during any period of failure, delay, or nonperformance of the Wireless
Services or $S0,000.00. In no event shall Servicers, Wireless Vendor(s) or our
respective Affiliates be liable for any indirect incidental, special consequential
or punitive damages, The remedies available to you under these Wireless
Services Terms will be your sole and exclusive remedies.
30.4. Indemnification. In addition to any other indemnifications as set forth
In this Agreement, you will indemnify and hold Servicers, Wireless Vendor( s)
and us and our respective officers, directors, employees, and Affiliates harmless
from and against any and all losses, claims, liabilities, damages, costs or
expenses arising from or related to:
a. the purchase, delivery, acceptance, rejection, ownership, possession, use
condition, liens against, or return of the Wireless Equipment or the Wireless
Equipment (including the Wireless Software), as applicable;
b. your negligent acts or omissions;
c. any breach by you of any of your obligations under this Section 30; or
d. any Person's unauthorized access to Client's data and/or unauthorized
financial activity occurring on your Merchant Account Number hereunder,
except to the extent any losses, liabilities, damages or expenses result from
our gross negligence or willful misconduct.
30.5. Confidentiality. All information or materials which could reasonably
be considered confidential or competitively sensitive that you access from or
relate to either Wireless Vendor(s) or Servicers related to the subject matter of
these Wireless Services Terms will be considered confidential information. You
will safeguard our confidential Information with at least the same degree of
care and security that you use for your confidential information, but not less
than reasonable care.
30.6. Termination, In addition to any other provision In this Agreement, the
Wireless Services being provided under this Section 30 may terminate:
a. Immediately upon termination of the agreement between us for our
Affiliates) and Wireless Vendor(s), provided that we will notify you promptly
upon our notice or knowledge of termination of such agreement, provided
further that if Wireless Vendors) loses its authority to operate less than all of
the Wireless Services or if the suspension of any authority or non -renewal of
any license relates to less than all of the Wireless Services, then these
Wireless Services Terms will terminate only as to the portion of the Wireless
Services affected by such loss of authority, suspension or non -renewal; or
b. Immediately if either we or our Affiliates or Wireless Vendors) are prevented
from providing the Wireless Services by any law, regulation, requirement,
ruling or notice issued In any form whatsoever by judicial or governmental
authority (including without limitation the FCC).
30.7. Effect of Termination. Upon termination of these Wireless Services
Terms for any reason, you will immediately pay to us all fees due and owing to
us hereunder. if these Wireless Services Terms terminate due to a termination of
the agreement between us or our Affiliates and Wireless Vendor(s), then we may,
in our sole discretion, continue to provide the Wireless Services through Wireless
Vendor(s) to you for a period of time to be determined as long as you continue
to make timely payment of fees due under these Wireless Services Terms.
30.9. Third Party Beneficiaries. Wireless Vendor(s) are third party benefic-
iaries of these Wireless Services Terms and may enforce its provisions as if a
party hereto.
30.9. Other Applicable Provisions. You also agree to be bound by all other
terms and conditions of this Agreement.
30.10. Disclaimer. Wireless Services use radio transmissions, so Wireless
Services can't be provided unless your Wireless Equipment is in the range of
one of the available wireless Networks'transmission sites and there is sufficient
network capacity available at that moment. There are places, particularly in
remote areas, with no service at all. Weather, topography, buildings, your
Wireless Equipment, and other conditions that we do not control may also
cause failed transmissions or other problems. PROCESSOR, BANK, AND
WIRELESS VENDOR(S) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES
RELATING TO WIRELESS SERVICES. WE CANNOT PROMISE UNINTERRUPTED OR
ERROR FREE WIRELESS SERVICE AND DO NOT AUTHORIZE ANYONE TO MAKE
ANY WARRANTIES ON OUR BEHALF.
This Section 31 governs any equipment that is rented to you on a month to
month basis or that is sold to you by Processor under the Merchant Processing
Application, subsequent purchase or rental agreements and/or other docu-
mentation provided in connection with the purchase or rental of Equipment
("Equipment Documents). if the Equipment Documents reflect that your
equipment is leased, then the provisions of your lease are governed by Section
3.0 of Part II (Third Party Agreements). Equipment rented to or purchased by
you under the Equipment Documents is referred to in this Section 31 as the
"Equipment' THE EQUIPMENT IS BEING SOLD OR RENTED TO YOU FOR USE IN
YOUR BUSINESS AND IS NOT BEING SOLD OR RENTED TO YOU FOR HOUSEHOLD
OR PERSONAL USE. Sales and rentals of equipment are made by Processor. The
Services provided, Equipment, Equipment Documents and other matters
contemplated under this Section 31 are subject to the rest of the Agreement as,
applicable except to the extent the terms of this Section 31 directly conflict
with any other provision of the Agreement, in which case the terms of this
Section 31 will control; provided, however, that Bank is not a party to this
Agreement insofar as it relates to sales and rental of Equipment and Bank Is not
liable to you in any way with respect to such services. For purposes of this
section the words "we, "our, and 'us'refer only to Processor and not to Bank.
Warranties, if any, for the Equipment or any related Software originate from the
applicable third parry provider or manufacturer ("Vendor). Materials or
documents, if any, setting forth warranty terms, conditions, exceptions,
exclusions and disclaimers will be contained within the packaging shipped
from the Vendor.
We or third parties designated by us will only provide help desk support for
Equipment purchased or rented from us under the Equipment Documents., and
we will not provide any such support or related services for any other products
or equipment.
YOU ACKNOWLEDGE THAT THE EQUIPMENT AND/OR SOFTWARE YOU
PURCHASED OR RENT FROM US MAY NOT BE COMPATIBLE WITH ANY OTHER
PROCESSOR'S SYSTEMS. WE DO NOT HAVE ANY OBLIGATION TO MAKE SUCH
SOFTWARE AND/OR EQUIPMENT COMPATIBLE WiTH ANY OTHER PROCESSING
SYSTEMS. IN THE EVENTTHAT YOU ELECT TO USE ANOTHER PROCESSING
SERVICE PROVIDER UPON THE TERMINATION OF THIS AGREEMENT, YOU
ACKNOWLEDGE THAT YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR
SOFTWARE RENTED OR PURCHASED UNDER THIS AGREEMENT
31.1. Purchased Equipment; Supplies. We will sell to you, and you will buy
from us the Equipment identified in the Equipment Documents throughout the
term of this Agreement as being purchased by you (individually and collectively
the "Purchased Equipment), free and clear of all liens and encumbrances
(subject to Section 31.7), except that any"Software'(as defined In Section 31.8)
will not be sold to you outright but instead will be provided to you pursuant to,
and subject to the conditions of Section 31.8 of this Agreement. You shall pay
the purchase price specified for the Purchased Equipment and the related
software license(s), including all applicable tax and shipping and handling
charges, prior to the effective date of this Agreement or at our option, such
amounts will be collected by us by debits or deductions pursuant to Section
31.5. We will provide you supplies as requested by you from time to time. You
shall pay the purchase price for such supplies, plus shipping and handling
charges, Including all applicable tax, prior to delivery of the supplies or upon
invoice, as specified by us, or at our option, such amounts will be collected by
us by debits or deductions pursuant to Section 31.5. (Maintenance and repair
of merchant -owned equipment is your responsibility). Should your terminal
WF61405 27
In order to return equipment, you should:
Call Customer Service for the address of the location to send the
equipment.
• The following information must be included within the shipping box:
1. Company name, complete address and phone number,
2. Name of person to contact if there are any quest.
3. Your Merchant Account Number.
4. Serial number of the terminal (found on the underside of the
terminal).
• Please maintain proof of delivery documents for your records, and the
serial number from the bottom of the terminal.
Rental fees maybe continued until equipment is returned.
Payment acquisition and processing equipment and software sourced from
Servicers or from a third party, is subject to obsolescence due to factors such as
inability to accommodate required security and functional updates or due to
model discontinuation by the manufacturer and unavailability of spare parts.
Client acknowledges and understands that obsolete point of sale equipment
will need to be replaced by non -obsolete and compliant point of sale equip-
ment in the event of equipment failure, or as requested by Servicers to bring
the Client into compliance with card network mandates and regulations. Client
will be responsible for any costs associated with upgrading to non -obsolete
and compliant equipment.
31.7. Security Interest; Financing Statements. You hereby grant to us a
security interest in (a) all Purchased Equipment and the related Software to
secure payment of the purchase price, and (b) all Rental Equipment and the
related Software to secure payment of the monthly payments therefore and
authorize us to file financing statements with respect to the Equipment and the
Software in accordance with the Uniform Commercial Code, signed only by us
or signed by us as your attorney -in -fad.
31.8. Software License. Anything in this Agreement to the contrary not-
withstanding, we or certain parties retain all ownership and copyright interest
in and to all software, computer programs, related documentation, technology,
know-how and processes embodied in or provided in connection with the
Equipment (collectively"Software"), and you shall have only a nonexclusive,
non -transferable, revocable license to use the Software in your operation of the
Equipment for purposes set forth in this Agreement. Nothing in this Agreement
confers any title or ownership of any such Software to you or shall be construed
as a sale of any rights in any such Software to you. You agree to accept, agree to
and be bound by ail applicable terms and conditions of use and other license
terms applicable to such Software. You shall not reverse engineer, disassemble
or decompile the Software. You shall not give any third party access to the
Software without our prior written consent. Your obligations under this Section
31.8 shall survive the termination of this Equipment Agreement.
31.9. Limitation on Liability. Notwithstanding any provision of this
Agreement to the contrary and in addition to the limitations and disclaimers
set forth In Section 20 of this Agreement (including without limitation the
disclaimers In Section 20.2 of this Agreement), our liability arising out of or In
any way connected with the Equipment or related software shall not exceed
the purchase price or prior twelve month's rent, as applicable, paid to us for the
particular Equipment Involved.
31.10. indemnification. You shall Indemnify and hold us harmless from and
against any and all losses, liabilities, damages and expenses, resulting from (a)
the purchase, delivery, installation, acceptance, rejection, ownership, leasing,
possession, use, operation, condition, liens against, or return of the Equipment,
or (b) any breach by you of any of your obligations hereunder, except to the
extent any losses, liabilities, damages or expenses result from our gross
negligence or willful misconduct.
In addition to your other obligations hereunder, You acknowledge and agree
that the 'use' and "operation" of the Equipment for which you will indemnify
and hold us harm less shall include, but not be limited to, You loading additional
software onto Equipment or using such software, or using Equipment or
Software to access the Internet.
31.11. Default; Remedies.
a. If any debit of your Settlement Account initiated by us for rent and/or other
charges due hereunder is rejected when due, or if you otherwise fail to pay
us any amounts due hereunder when due, or if you default In any material
respect in the performance or observance of any obligation or provision in
this Section 31, or if any other default occurs under this Agreement, any
such event shall be a default hereunder.
b. Upon the occurrence of any Event of Default, we may at our option,
effective immediately without notice, either: (i) terminate the period of
rental and our future obligations under this Section 31, repossess the
Equipment and proceed in any lawful manner against you for collection of
all charges that have accrued and are due and payable, in which case this
Section 31 shall terminate as soon as your obligations to us are satisfied, or
(ii) accelerate and declare immediately due and payable all monthly rental
charges for the remainder of the applicable rental period and proceed in
any lawful manner to obtain satisfaction of the same.
Gift Card Services are provided to you by Processor. The Services provided,
transactions processed and other matters contemplated under this Section 32
are subject to the rest of this Agreement, as applicable, except to the extent the
terms of this Section 32 directly conflict with another provision of this Agree-
ment, in which case this the terms of this Section 32 will control; provided,
however, that Bank is not a party to this Agreement insofar as it relates to Gift
Card Services, and Bank is not liable to you in any way with respect to such
services. For the purposes of this section, the words "we,""our,' and "us'refer
only to the Processor and not to the Bank. The terms and conditions set forth in
this Section govern the provision of Gift Card Services.
32.1. Definitions. Capitalized terms used herein shall have the meanings
given to such terms as set forth in this Section 32.1 or as defined in the Glossary
or elsewhere In this Section.
a. "ACH"means the Automated Clearing House system.
b. Affiliated Issuer(s)' means each Client Affiliate and/or franchisee that enters
Into an Affiliated Issuer Agreement, in the form required and provided by
Processor..
c. "Database means the database on which Gift Card Data for each Gift Card
Issued under the Program is maintained.
d. 'Designated Location' means any store or other place of business (including
a direct marketing program or Internet site), located in the U.S.A., and at or
through which Client issues Gift Cards and/or processes transactions using
Gift Cards issued under the Program. Designated Locations include any help
desk or IVR through which transactions are processed under the Program.
e. "Enhanced Features' means the additional program functionality offered to
Client pursuant to the Enhanced Features set-up form.
f. 'Gift Card' means an encoded device that accesses Gift Card Data
maintained in the Database.
g. "Gift Card Data" means the current value and record of transactions
corresponding to each Gift Card issued under the Program.
h. "Gift Card Equipment' means any POS Terminal, software or other similar
telecommunications equipment that has been programmed and certified
to Processor's specifications In order to transmit Gift Card Data and process
online transactions under the Program.
i. "Gift Card Holder' means any person in possession of or that uses a Gift Card.
j. "Gift Card Number" means the identifying number of a Gift Card.
k. "Gift Card Production Company"means a company selected and retained
by Processor to produce Gift Cards and provide related products or services
for the Program.
I. "IVR"means an automated Interactive Voice Response system accessed via a
toll -free telephone number.
m. "POSTerminal'means an electronic Point -Of -Sale terminal placed in a
Designated Location which is connected to Processor's system via
telephone lines and is designed to swipe Gift Cards.
n. "Program' means Client's program pursuant to which Client Issues Gift Cards
to Gift Card Holders and Processor provides the Services to enable such Gift
Card Holders to use such Gift Cards to purchase goods and services at
Designated Locations.
o. "5ervices'means the services provided by Processor in connection with the
Program as further described in this Section.
32.2. Services. Processor agrees to provide the Services set forth below in
connection with the Program.
a. Processor will arrange for the production of all Gift Cards and all other
services related thereto by the Gift Card Production Company for the
Program in accordance with the specifications and fees set forth on the Gift
Card Set -Up Form (the"Gift Card Set -Up Form), which is incorporated by
reference herein.
wF914o5 29
32A. Fees and Payment. In addition to all other rights we have under the
Agreement, Client shall pay Processor the fees set forth on the Gift Card Set -Up
Form. Client shall also be responsible for the payment of any taxes Imposed by
any applicable governmental authority in connection with any products or
services covered by this Section (other than those taxes based solely on the net
Income of Processor). All fees for the Services shall be paid via an ACH transfer
of funds from a bank account designated by Client. To authorize the ACH
transfers, Client agrees to execute the ACH Authorization on the Gift Card Set -Up
Form. In the event that fees cannot be collected from Client as set forth above,
Processor reserves and may exercise all other rights to tolled any fees due.
32.5. Termination.
The provision of Gift Card Services may be terminated at any time: (1) by
either party in the event that the other materially breaches any term or
condition of this Section and fails to cure such breach within thirty (30) days
of written notice of such breach from the non -breaching party; (11) by
Processor if Client falls to pay any amount due within ten (10) Business Days
after written notice to Client of its failure to pay such amount; (iii) by
Processor upon written notice to Client in the event that Client's operation
of the Program results in a violation of law or regulation (by talent, an
Affiliated Issuer or Processor); (Iv) by Client if Processor increases Its rates
under Section 32.4(c) above and Client provides thirty (30) days written
notice of termination within thirty (30) days of receiving notice of said
Increase, or (v) by either party upon written notice to the other after the
filing by the other of any petition in bankruptcy or for reorganization or
debt consolidation under the federal bankruptcy laws or under any
comparable law, or upon the other party's making of an assignment of Its
assets for the benefit of creditors, or upon the application of the other party
for the appointment of a receiver or trustee of its assets.
b. If (1) the Gift Card Services are terminated for any reason other than Proces-
sor's material breach prior to the expiration of the initial term, or 01) Client
suspends or terminates the Program prior to the expiration of the initial
term except as provided for in Section 32.5(a) (iy). Nothing in this subsection
shall prohibit or limit Processor's right to recover damages or any other
amounts due and owing Processor In the event that the Gift Card Services
are terminated by Processor due to a breach by Client or shall be deemed to
waive or otherwise limit Client's obligations pursuant to Section 32.6(a).
c If requested by Client, Processor may, in its sole and absolute discretion,
continue to provide the Services for all previously issued and unexpired (if
applicable) Gift Cards for up to twelve 02) months following the termination
of the Gift Card Services; provided, however, that Processor shall not activate
any new Gift Cards after the effective date of termination. Processors obli-
gation to provide continuing Services after termination Is contingent upon
Client's agreement to pay for such Services and to conduct its operations in
accordance with the terms of this Section, and Processor may require
advance payment for some portion or all of the estimated cost of such
Services to be provided after termination.
d. Termination of the Gift Card Services shall not affect Client's obligation
(Including any obligation incurred by an Affiliated Issuer) to pay for services
rendered or obligations due or owing under this Section priorto termination.
e. The provisions of Sections 323 (f), (g), (h), (I), (k) and (1), and Sections 32A
323(b), 325(c), 32.5(d), 32.6 and 32.7 hereof shall survive any termination of
this Agreement.
32.6. Indemnifleation.
a. Client shall indemnify and hold harmless Servicers, their directors, officers,
employees, agents and their respective Affiliates from and against any and
all third party claims, losses, liabilities, damages and expenses, Including
reasonable attomeys' fee% (collectively'Claims) to the extent that any such
Claim Is caused by or arises out of: (1) any failure of Client or an Affiliated
Issuer to comply with any law or regulation applicable to the Program; III)
any dispute between Client and any Affiliated Issuer, or Client and any Gift
Card Holder, or an Affiliated Issuer and any Gift Card Holder, Including,
without limitation, any dispute regarding the goods or services purchased
using a Gift Card or the payment of any amounts owed or alleged to be
owed by one or more such persons to any other such persons; (ill) any
instructions or procedures that Client may provide to Processor In
connection with the Program and Processor's compliance therewith; (iv) any
actual or alleged loss or theft of, alteration or damage to, or fraudulent,
improper or unauthorized use of any Gift Card, Gift Card Number or PIN; (v)
use or operation of Gift Card Equipment by Client or an Affiliated issuer; and
(vi) any Claim or action against Servicers for actual or alleged infringement
of any patent copyright, trademark, trade secret or other proprietary right
of any person arising in connection with the production of Gift Cards or
related products for Client using artwork, designs, specifications or
concepts provided by Client.
b. Processor shall indemnify and hold harmless Client and Its directors, officers,
employees, agents and Affiliates issuers from and against any and all third
party Claims to the extent that any such Claim is caused by or arises out of.
(I) any failure of Processor to comply with any law or regulation applicable
to the Program; or (ii) any error in the Database, unless the error is caused
by incorrect Information submitted by Client or is otherwise made in
accordance with Client's Instructions.
32.7. Patents, Copyrights, Intellectual Property, etc Client shall have no
Interest whatsoever, including copyright Interests, franchise interests, license
interests, patent rights, property rights or other Interest in the Services
provided hereunder. These provisions are not to be construed as granting to
Client any patent rights or patent license In any patent, which may be obtained
in respect of the Services. Artwork created by Processor on behalf of Client
remains the property of Processor. Client retains ownership of any artwork
supplied to Processor.
32.8. Limitation of Liability; Disclaimer of Warranties. NOTVdTHSTANDING
ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, SERViCERS'CUMULA-
TIVE AGGREGATE LIABILITY FOR ANY LOSSES, CLAIMS, SUITS, CONTROVERSIES,
BREACHES, OR DAMAGES ARISING OUT OF RELATED TO THIS SECTION FOR ANY
CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY,
SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY CLIENT
AND, IN ANY EVENT, SHALL NOT EXCEED THE LESSER OF (1) THE AMOUNT OF
FEES PAID TO PROCESSOR BY CLIENT UNDER THIS SECTION DURING THE
TWELVE (12) MONTHS PRIOR TOTHE DATE THATTHE LIABILITY ARISES, OR (II)
TWENTYTHOUSAND DOLLARS ($20,000).
If you utilize theTransArmor Service, the following additional terms and
conditions of this Section 33 shall apply.
The TransArmor Service Is provided to you by Processor and not Bank. Bank Is
not a party to this Agreement Insofar as it applies to theTransArmor Service,
and Bank is not liable to you in any way with respect to such services. For the
purposes of this section, the wards'we, "our'and'us"refer only to the
Processor and not the Bank.
TheTransArmor Service provided, transactions processed and other matters
contemplated under this Section 33 are subject to the rest of this Agreement,
as applicable, except to the extent the terms of this Section 33 directly conflict
with another provision of this Agreement, In which case the terms of this
Section 33 will control.
33.1. Definitions. Capitalized terms used herein shall have the meanings
given to such terms as set forth in this Section 33or as defined elsewhere In this
Agreement.
33.2. Grant of License. Processor grants to you a non -transferable,
non -assignable, non-exclusive, revocable sub -license during the term of this
Section 33 to use the TransArmor Service and the TransArmor Service Marks
(as Identified in the TransArmor Rules and Procedures) in the United States in
accordance with this Section 33, Including without limitation the TransArmor
Rules and Procedures. Any rights with respect to theTransArmor Service not
expressly granted by Processor in this Section 33 are deemed withheld.
33.3. Services. The TransArmor Service applies only to Card transactions sent
from you to us for authorization and settlement pursuant to the Agreement,
and specifically excludes electronic check and closed -loop gift card transactions.
Processor will provide an encryption key to you to be used to encrypt (make
unreadable) Card data during transport of the authorization request from your
point of sale to Processor's systems. During the period when the transaction is
being transmitted to Processor for authorization processing, all historical
transaction data, including Card number and full magnetic stripe data (track
data and expiration date), will be encrypted. Processor will then generate or
retrieve a unique, randomly generated token assigned to the Card number that
will be returned to you in the authorization response (the "Token').
33A. Responsibilities of Client. You are responsible to comply with the
following regarding your use of theTransArmor Service.
a. You are required to comply with the Card Organization Rules, including
taking all steps required to comply with the Payment Card Industry Data
Security Standards (PCI DSS). You must ensure that all third parties and
software use by you in connection with your payment processing are
compliant with PCI DSS. Use of the TransArmor Service will not, on its own,
WFB1405 31
34.3. Transaction Data. Your transaction data will be processed by the Fraud
Services. As part of this processing, the transaction data may be retained for
statistical analysis, and elements of data from fraudulent transactions may be
captured, retained and shared with others to help improve the Fraud Services
and prevent further fraud. In no event will the source of any such retained data
J be disclosed to a third party. You hereby agree to the transmission and use of
�+ the data in this manner.
34.4. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, EXCEPT AS MAYBE EXPRESSLY PROVIDED HEREIN,
THE FRAUD SERVICES ARE PROVIDED TO YOU "AS IS, WITHOUT ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND. INCLUDED IN THIS
DISCLAIMER ARE BOTH EXPRESS AND IMPLIED WARRANTIES, AND
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THATTHE
FRAUD SERVICES WILL BE COMPLETELY ACCURATE, ERROR -FREE OR WILL
BE AVAILABLE WITHOUT INTERRUPTION.
34.S. Limitation of Liability. The Fraud Services provide a tool for you to
efficiently make better informed decisions whether to acceptor reject tran sac-
tions that maybe fraudulent. There is no assurance that the Fraud Services will
accurately identify every instance of fraud, nor that every transaction that may
appear fraudulent is in fact so. BY YOUR ACCEPTANCE OF THE TERMS OF
THIS PROGRAM GUIDE, AND YOUR USE OF THE FRAUD SERVICES, YOU
AGREE THAT, UNDER ANYTHEORY OF LAW OR EQUITY, WITH RESPECT TO
YOUR USE OF THE FRAUD SERVICES (1) OUR LIABILITY AND THAT OF ANY
FRAUD SERVICES PROVIDER SHALL BE LIMITED TO DIRECT DAMAGES NOT
TO EXCEED TWELVE (12) MONTHS OF FRAUD SER VICES FEES, AND (11) TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR
ANY FRAUD SERVICES PROVIDER SHALL HAVE ANY LIABILITY FOR ANY
SUBSEQUENT CHARGEBACKS OR LOSS OF REVENUE FROM FALSE POSITIVE
FRAUD SCORES OR IN ANY OTHER WAY RELATED TO THE USE OF THE
FRAUD SERVICES.
34.6. Termination. Upon termination of the Fraud Services for any reason,
you agree to pay any remaining fees or expenses related to your use of the
Fraud Services, to cease attempts to access the Fraud Services and to return all
user manuals or other materials received in connection with the Fraud Services.
34.7. Third Party Beneficiaries. The Fraud Services provider(s) is (are) an
intended third party beneficiary of this Section of the Program Guide, and may
enforce the terms of this Section directly against you as if it were a party hereto.
34.8. Your Privacy Policy. Your privacy policy should reflect the fact that you
will subject transactions to fraud screening. You and your privacy legal counsel
should consider your specific circumstances and what disclosures will best fit
your needs and provide your customers with a clear picture of how customer
and transaction data is being used. Example language is set forth below, but is
only a suggestion, which you should not adopt without careful consideration
and advice of counsel.
Any Information you provide to Merchant may be combined with Informa-
tion from other sources and used by Merchant, or a third party retained by
Merchant, to help detect and prevent fraud, misuse of Merchant's website
or other illegal activity. Parts or all of this information may be retained by
us or the third parties involved in fraud detection and used for future
fraud prevention efforts. Information believed to be fraudulent may be
shared with other merchants, banks and law enforcement officials to help
prevent further misuse. Merchant may also use "device Identification'
technology to recognize specific computers or other internet devices each
time they access the website, and associate historical data with that
computer or device as part of its efforts to prevent fraud or other misuse.
The terms and conditions set forth in this Section 35 govern the provision
of Buyer Initiated Payment services and apply only to Card payments that
originate from a business certified Into a Card Organization approved
gateway for Buyer Initiated Payments. These provisions do not apply to
any transactions originating from a terminal or software at your business.
35.1. Description of Buyer Initiated Payments. Buyer Initiated Payments
("BIPI allow invoices that have been electronically entered at the cardholding
buyer's location to be processed by us for settlement to you (the seller of goods
and services In B28 transactions) without you manually re-entering the same
pieces of card and invoice information.
Use of this service only changes the method of payment between you and your
Buyer (your customer). All other processes between you and the Buyer as it
pertains to invoicing, approvals and exceptions will remain as is for each Buyer
paying you through this service.
35.2. Acceptance of Buyer Initiated Payments.
a. There is no hardware, software, or supplies required to accept Buyer
Initiated Payments.
b. All transactions submitted through a 81P account must be Buyer initiated.
You cannot request a terminal or initiate transactions in any way through
the Merchant ID established by these terms, Merchant processing must be
done through a separate Merchant iD.
c. No credits are permitted on SIP accounts. In the event of a dispute
regarding a Buyer Initiated Payment, all refunds, discounts, or other
remedies must be handled between you and your customer, the Buyer,
without the involvement of Servicers.
d, it is your responsibility to ensure that only customers that you authorize to
submit payments on this account do so. We will not disclose the fact that
you are enrolled to receive SIP to other businesses unless you authorize us
to do so.
e. If a business does process a payment on the account without your consent,
you must handle the matter directly with your customer, the Buyer, without
the involvement of Servicers.
f. Servicers are responsible for processing the BIP. Any concessions given by
your customers such as accelerating payment terms or changing early
payment discounts are not administered or enforced by Servicer. Such
agreements are strictly part of the relationships between your business and
those of your buyers and the resolution to issues arising from those
arrangements are to be handled outside of this Agreement.
3S.3. Chargebacks related to Buyer Initiated Payments. In SIP processing,
the Buyer has control over the payment, and is therefore prohibited from
initiating most charge back types. In the event your buyer initiates a charge
back on this Merchant ID, please contact Servicers.
35.4. Limitation on Liabilitylindemnification. NOTWITHSTANDING ANY
PROVISION IN THIS AGREEMENT TO THE CONTRARY, SERVICER'S CUMULATIVE
AGGREGATE LIABILITY FOR ANY LOSSES, CLAIMS, SUITS, CONTROVERSIES,
BREACHES, OR DAMAGES ARISING OUT OF RELATED TO THIS SECTION FOR ANY
CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION OR LEGAL
THEORY, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY
CLIENT AND, IN ANY EVENT, SHALL NOT EXCEED THE LESSER OF (1) THE AMOUNT
OF FEES PAID TO SERViCERS BY CLIENT UNDER THIS SECTION DURING THE
TWELVE (12) MONTHS PRIOR TO THE DATE THAT THE LIABILITY ARISES, OR (II)
TWENTYTHOUSAND DOLLARS ($20,000), WHICHEVER 15 LESS.
35.5. Indemnification. Client shall indemnify and hold harmless Servicers,
its directors, officers, employees, agents and Affiliates from and against any and
all third parry claims, losses, liabilities, damages and expenses, including
reasonable attorneys' fees, (collectively"Claims') to the extent that any such
Claim is caused by or arises out of: (i) any failure of Client to comply with this
Agreement or any law or regulation applicable to BIP; (11) any dispute between
Client and Buyer; or (iii) any instructions or procedures that Client may provide
to Servicers in connection with the Buyer Initiated Payments and Processor's
compliance therewith.
35.6. Processing Specifications. The following details apply to how Servicers
transfers monies between parties.
a. Unless otherwise specified by you on the Application, amounts deposited
into your account will be in the whole amount of the payment from your
customer. After a payment is made by the Buyer, it typically takes one to three
business days for the funds to be deposited into your checking account.
b. Unless otherwise specified by you on the Application, the fees applied to
your transactions will be debited from your Settlement Account on or about
the first business day of the month following when the transactions
occurred. It Is your responsibility to ensure that there are no settings on
your account prohibiting a debit entry. You must ensure there are adequate
funds available in your Settlement Account.
35.7. Authorization. Authorization will occur at the Servicers or relevant
Card Organization.
35.8. Termination. As stated on your Application, there is no early
termination fee associated with BIP accounts. At any time, you are able to
terminate service by calling the customer service number listed on your
statement. It is your responsibility to contact your Buyers to inform them that a
different payment option will be needed on future invoices. We can terminate
BIP services upon 30 days notice to you or Immediately In the event of your
breach of the Agreement.
WFI31405 33
As used in this Program Guide, the following terms mean as follows:
Acquirer: Bank In the case of MasterCard, Visa and certain debit transactions or
Processor in the case of Discover transactions that acquire Card sale transactions
from merchants such as yourself.
Address Verification: A service provided through which the merchant verifies
the Cardholders address, in whole or in part. Primarily used by Mail /Telephone/
Internet order merchants. Address verification is intended to deter fraudulent
transactions. However, it is not a guarantee that a transaction is valid.
Affiliate: A person that, directly or Indirectly, (1) owns or controls a party to this
Agreement or (Ill Is under common ownership or control with a party to this
agreement
Agreement: The Agreements among Client, Processor and Bank contained in
the Application, the Program Guide and the Schedules thereto and documents
incorporated therein, each as amended from time to time, which collectively
constitute the Agreement among the parties,
Application: See Merchant Processing Application.
Authorization: Approval by, or on behalf of, the Card Issuer to validate a
transaction. An authorization indicates only the availability of the Cardholder's
Credit Limit or funds at the time the Authorization Is requested.
Authorization Approval Code: A number issued to a participating merchant
by the Authorization Center which confirms the authorization for a sale or
service.
Authorization Center. A department that electronically communicates a
merchant's request for authorization on Credit Card transactions to the
Cardholder's bank and transmits such authorization to the merchant via
electronic equipment or by voice authorization.
Authorization IEDC Fees: A fee that applies to all Visa, MasterCard and
Discover Card approvals (pre -authorizations, authorizations & authorization
reversals), denials, batch inquiries, and batch entry transactions and includes
any transaction fees and capture fees.
Bank: The bank Identified on the Application signed by you.
Bankruptcy Code: Title 11 of the United States Code, as amended from time
to time.
Batch: A single Submission to us of a group of transactions (sales and credits)
for settlement A Batch usually represents a days worth of transactlons.
Business Day. Monday through Friday, excluding Bank holidays.
Buyer Initiated Payment (SIP): A payment that occurs when a cardholding
business approves an Invoice (or invoices) and submits an electronic payment
Instruction causing funds to be deposited directly into a their supplier's
merchant account.
Card: See either Credit Card or Debit Card.
Cardholder: Means the Person whose name is embossed on a Card (or Debit
Card, as applicable) and any authorized user of such Card.
Card Not Present Sale/Transaction: A Transaction that occurs when the Card
In not present at the point -of -sale, including Intemet, mall -order and telephone -
order Card sales.
Card Organization: Any entity formed to administer and promote Cards,
Including without limitation MasterCard Worldwide ('MasterCard`), Visa U.S.A.,
Inc. ('Vlsa`j, DIPS Services LLC ('Discover') and any applicable debit networks
Card Organization Rules: The rules, regulations, releases, interpretatlons and
other requirements (whether contractual or otherwise) imposed or adopted by
any Card Organization and related authorities, Including without limitation,
those of the PCI Security Standards Council, LLC and the National Automated
Clearing House Association (including, with respect to EBTs, the Quest
Operating Rules),
Card Validation Codes: A three•digitvalue printed in the signature panel of
most Cards and a four -digit value printed In the front of an American Express
Card. Visa's Card Validation Code is known as CVV2; MasterCard's Card
Validation Code Is known as CVC2; Discover's Card Validation Code is known as
a CID. Card Validation Codes are used to deter fraudulent use of an account
number In a non -face-to-face environment, (e,g., mail orders, telephone orders
and Internet orders).
Card Verification Value (CVV)/Card Validation Code (CVC): A unique value
encoded on the Magnetic Stripe of a Card used to validate Card Information
during the Authorization process.
Cash Benefits: An EBT account maintained by an Issuer that represents
pre -funded or day-cf-draw benefits, or both, administered by one or more
government entities, and for which the Issuer has agreed to provide access
under the EBT program. Multiple benefits may be combined in a single cash
benefitaccount.
Cash Over Transaction: Dispensing of cash by a merchant in connection with
a Card sale, other than a PIN Debit Card transaction, for the purchase of goods
or services.
Chargeback: A Card transaction (or disputed portion) that Is returned to us by
the issuer. Client Is responsible for payment to us for all Chargebacks.
Check Warranty A service provided through a merchant's POS equipment
which guarantees payment up to a defined limit, provided the merchant
follows proper steps in accepting the check.
Check Verification: A service provided in which a merchant accesses a national
negative file database through its terminai/register to verify or authorize that a
person has no outstanding bad check complaints at any of the member
merchants. This is not a guarantee of payment to the merchant.
Cllertt: The party identified as'Client"on the Application. The words
"Subscriber," "you," "your" and "Customer'refer to Client. Also, sometimes
referred to as ^Merchant'
Credit: A refund or price adjustment given for a previous purchase transaction.
Credit Card: A device hearing a valid Organization Mark of Visa, MasterCard,
Discover or American Express and authorizing the Cardholder to buy goods or
services on Credit and, to the extent the Schedules so provide, a valid device
authorizing the Cardholder to buy goods or services on Credit and Issued by
any other Card Organizations specified on such Schedules.
Credit Draft: A document evidencing the return of merchandise by a
Cardholder to a Client, or other refund or price adjustment made by the Client
to the Cardholder, whether electronic. paper or some other form, all of which
must conform to Card Organization Rules and applicable law.
Credit Limit: The credit line set by the Issuer for the Cardholder's Credit
Card account
Customer Activated Terminal (CAT): A Magnetic Stripe terminal or chip -
reading device (such as an automatic dispensing machine, Limited Amount
Terminal, or Self -Service) that is not an ATM.
Debit Card: See either PIN Debit Card or Non -PIN Debit Card.
Dial -Up Terminal: An Authorization device which, like a telephone, dials an
Authorization Center for validation of transactions
Discount Rate: A percentage rate and/or amount charged a merchant for
processing its qualifying daily Credit Card and Non -PIN Debit Card transactions,
as set forth in the Application. Transactions that fall to meet applicable
Interchange requirements will be charged additional amounts as set forth in
Section 18.1.
Electronic SenefltT►ansfer (EBT): An Electronic Benefits Transfer system used
to deliver certain government delivered benefits, Including without limitation
Cash Benefits and FNS, SNAP and WIC Benefits, to EBT customers.
Electronic Draft Capture (EDC): A process which allows a merchant's Dial -Up
Terminal to receive Authorization and capture transactions, and electronically
transmit them to the Processor. This eliminates the need to submit paper
for processing.
Factoring: The submission of authorization requests and/or Sales Drafts by a
merchant for Card sales or cash advances transacted by another business.
General Terms: Section of the Program Guide, including any amendments or
modifications.
Gross: When referred to in connection with transaction amounts or fees, refers
to the total amount of Card sales, without set-off for any refunds or Credits.
Imprinter. A manual or electric machine used to physically Imprint the
merchant's name and ID number as well as the Cardholder's name and Card
number on Sales Drafts.
issuer. The financial institution or Card Organization which has Issued a Card
to a Person.
Limited Amount Terminal: A customer Activated Terminal that has data
capture only capability, and accepts payment for items such as parking garage
fees road tolls, motion picture theater entrance, or magnetic stripe telephones.
Magnetic Stripe: A stripe of magnetic Information affixed to the back of a
plastic Credit or Debit Card.The Magnetic Stripe contains essential Cardholder
and account information.
WFB1405 35
'`�'''iVkTtH'9NAEit ADITI�WArMPiRTA,alG
All payments to Client shall be through the Automated Clearing House ('ACH")
and shall normally be electronically transmitted directly to the Settlement
Account you have designated or any successor account designated to receive
provisional funding of Client's Card sales pursuant to the Agreement. Client
agrees that any Settlement Account designated pursuant to the preceding
sentence will be an account primarily used for business purposes. Neither Wells
Fargo Bank, N.A. ('Wells Fargo Banks nor Wells Fargo Merchant Services, L.L.C.
can guarantee the timeframe In which payment may be credited by Clients
financial institution where the Settlement Account Is maintained.
Client hereby authorizes Wells Fargo Bank and its authorized representative,
including Wells Fargo Merchant Services, LLC to access information from the
Settlement Account and to initiate credit and/or debit entries by bankWre or
ACH transfer and to authorize your financial institution to block or to initiate, 0
necessary, reversing entries and adjustments for any original entries made to the
Settlement Account and to authorize your financial institution to provide such
access and to credit and/or debit or to block the same to such account. This
authorization is without respect to the source of any funds in the Setdement
Account, Is irrevocable and coupled with an Interest. This authority extends to
any equipment rental or purchase agreements which may exist with Client as
well as to any fees and assessments and Chargeback amounts of whatever kind
or nature due to Wells Fargo Merchant Services, L.L.C. or Wells Fargo Bank under
terms of this Agreement whether arising during or after termination of the
Agreement. This authority is to remain in full force and effect at all times unless
and until Wells Fargo Merchant Services, LLC and Wells Fargo Bank have con-
sented to Its termination at such time and in such a manner as to afford them a
reasonable opportunity to act on It. in addition, Client shall be charged ten dollars
($10.00) for each ACH which cannot be processed, and all subsequent funding
may be suspended until Client either (1) notifies Wells Fargo Merchant Services,
L.L.C. that ACH's can be processed or (11) a new electronic funding agreement is
signed by Client. Client's Settlement Account must be able to process or accept
electronic transfers via ACH.
Automated Clearing House (ACH). I acknowledge that the funds for MasterCard,
Visa and Discover transactions will be processed and transferred to my Settle-
ment Account within two (2) Business Days from the time a Batch is closed (by
12:00 a.m, PT) and within one (1) Business Day from the time the Batch Is dosed
(by 12:00 a,m. PT) K such account is a Wells Fargo Settlement Account. The ACH
transactions will appear on your statement as'Merchant Bnkcd".
The fees for Services as shown on your pricing disclosure are based on the
assumption that your Credit Card and Non -PIN Debit transactions will qualify at
the Anticipated interchange Levels associated with your account.
Va transaction fails to qualify for your Anticipated Interchange Levels, you will be
billed a Non -Qualified interchange Fee, plus a Non -Qualified Surcharge for each
such non -qualifying transaction (see Section 18.1 and Glossary).
Your Initial fees for Services are stated on your Application and may be adjusted
from time to time to reflect:
a. Any increases or decreases in the interchange and/or assessment portion of
thefees,
b. The appropriate Interchange level as is consistent with the qualifying criteria
of each transaction submitted by Client, and
c. Increases in any applicable sales or telecommunications charges or taxes
levied by any state, federal or local authority related to the delivery of the
services provided by Wells Fargo Merchant Services, L.L.C. when such costs
are Included in the Service or other fixed fees.
In addition to the Debit Card transaction fees set forth on the Application, Client
shall be responsible for the amount of any fees imposed upon a transaction by
the applicable debit network.
A Monthly Minimum Processing Fee will be calculated beginning thirty (30) days
after the date Client's Application is approved, (Refer to your pricing disclosures,)
Authorization Fees are charges that apply each time you communicate directly
with Processor,
Authorization /EDC Fee applies to ail Visa, MasterCard and Discover Card
approvals (pre -authorizations, authorizations and authorization reversals), denials,
batch Inquiries, and batch entry transactions and includes any transaction fees
and capture fees.
An equipment rental fee will be charged each month for each piece of equipment
rented, plus tax as applicable. Client will be charged for actual shipping fees for
equipment and cost of supplies.
The parties further agree and acknowledge that, in addition to any remedies
contained herein or otherwise available under applicable law and, If (a) CLIENT
breaches this Agreement by Improperly terminating it prior to the expiration of
the applicable term of the Agreement, or (b) this Agreement is terminated prior
to the expiration of the applicable term of the Agreement due to an Event of
Default then SERVICERS will suffer a substantial Injury that Is difficult or impos-
sible to accurately estimate. Accordingly, In an effort to liquidate In advance the
sum that should represent such damages, the parties have agreed that the
amount calculated in the manner specified below Is a reasonable pre -estimate of
SERVICERS'probable loss. Such amount shall be paid to SERVICERS within 15 days
after CLIENT's receipt of SERVICERS'calculation of the amount due.
For purposes of the remaining paragraphs in this Section 39.3,"Sales Volume
means the total combined amount of Credit Card, PiN Debit and Non -PIN Debit
(MasterCard, Visa and Discover) payment transactions processed by us minus any
amounts attributable to returned items'.
If Client terminates the Agreement prior to the end of the then current term of
the Agreement, Client shall pay an early termination fee equivalent to one of the
following:
I) If the Clients total Sakes Volume for the past 12 months' Is less than One
Million Dollars ($1,000,000), the early termination fee is Five Hundred Dollars
($500.00) per location; or
ii) If the Clients total Sales Volume for the past 12 months' Is greater than or
equal to One Million Dollars ($1,000,000), the early termination fee Is Five
Hundred Dollars ($500,00) per location plus six (6) times the highest amount
of Revenue In any single calendar month during the current or prior term.
'Revenue Is total fees for Services minus the amount of interchange,
assessments and other pass through fees paid by you and passed through to
payment networks by us. Total fees for Services includes Credit Card and
Non -PIN Debit processing fees, PIN debit, non -bank, chargeback and other
fees listed in the Pricing Terms.
If Client has less than twelve months of Sales Volume, the early termination fee
shall be calculated based on'Annuallzed Sales Volume"In lieu of'Sales Volume.
"Annualized Sales Volume" means the greater of (1) the sum of the monddy Sales
Volume since the account was activated, divided by the number of months the
account has been active, and then multiplied by twelve (12), or (2) the estimated
annual Sales Volume listed in the Agreement. An active account Is defined as an
account having a Sales Volume of fifty dollars ($50) or greater for that month. If
the Client has three months or less of Sales Volume, the "Annualized Sales Volume'
is the estimated annual Sales Volume provided by the Client In the Agreement
Client's obligation with respect to any Monthly Minimum Processing Fee will
end when SERVICERS receive the aforementioned liquidated damages. if Client
terminates this agreement via facsimile, talent must keep a copy of the facsimile
confirmation record This facsimile confirmation record will be required to
substantiate refund of fees that Client deems were incorrectly assessed after the
termination of the Agreement.
PROCESSOR:
important Phone Numbers:
Wells Fargo Merchant Services, L.L.C.:
(see also Sections 3.3 and 5:3)
1307 Walt Whitman Road
Customer Service
Melville, NY 11747
1-800-451-5817 press 1
Attn: Sales Manager
BANK.
MasterCard /Visa /Discover
Authorization Center
Wells Fargo Bank:
1 800-626-4480
1200 Montego Way
Walnut Creek, CA 94598
POS Help Desk
Attn: Merchant Services
1-800-622-M2
If this application for business credit is dented you may obtain a written statement
of the specific reasons for the denial. To obtain the statement, please contact
Credit Initiation,1307 Watt Whitman Road, Melville, NY 11747,1-800.767-2484
ext. 32900, within sixty (60) days from the date you are notified of our decision.
We will send you a written statement of reasons for the denial within thirty (30)
days of receiving your request.
WFB1405 37
This TeleCheck Services Terms and Conditions (the Agreement) Is entered by and between TeleCheck Services, Inc. ("TeleCheck) and Subscriber
("Subscriber) as indicated on the Merchant Processing Application. TeleCheck will provide one of the following services ('TeleCheck Services') as selected
In the Merchant Processing Application: TeleCheck Electronic Check Acceptance' ('ECA''warranty service ('ECA Warranty Service') or Paper Warranty
service ('Paper Warranty Service"). Upon processing Subscribers first check through any of the TeleCheck' services or from the date Subscriber is entered
Into the TeleCheck system as a subscriber, whichever Is earlier (the "Effective Date), the terms and conditions of this Agreement, including payment and
the Minimum Monthly Fee, shall apply from that point forward. Any of the TeleCheck services, Including, without limitation, funds settlement, billing and
customer service, may be performed by one or more of TeleCheck's affiliates.
This TeleCheck Services Terms and Conditions (the'Agreement) is entered
by and between TeleCheck Services, Inc. ("TeieCheck) and Subscriber
('Subscriber") as indicated on the Merchant Processing Application.
TeleCheck will provide one of the following services ('TeleCheck Services)
as selected in the Merchant Processing Application:TeleCheck Electronic
Check Acceptance" ("ECA') warranty service ('ECA Warranty Service') or
Paper Warranty service ("Paper Warranty Service). Upon processing
Subscriber's first check through any of the TeleCheck' services or from the
date Subscriber is entered into the TeleCheck system as a subscriber,
whichever is earlier (the'Effective Date), the terms and conditions of this
Agreement, including payment and the Minimum Monthly Fee, shall apply
from that point forward. Any of theTeleCheck services, Including, without
limitation, funds settlement, billing and customer service, may be
performed by one or more of TeleCheck's affiliates.
1.1. Term, Termination and Amendment This Agreement shall be
effective for an Initial term of 12 months from the Effective Date; provided,
however, that Subscriber may terminate this Agreement if Subscriber gives
and TeleCheck receives written notice of termination within the first 30 days
of the Agreement. Thereafter, this Agreement shall automatically renew for
successive 12 month terms until terminated as provided for herein.
Subscriber may terminate this Agreement at the end of the initial term or
any renewal term upon at least 30 days'phor written notice to TeleCheck.
TeleCheck reserves the right to amend, at its discretion, this Agreement,
14 including, without limitation, any rates, fees, addenda and/or the TeleCheck
Operational Procedures, by providing Subscriber notice and such amend-
ments shall be effective 30 days from the date notice is mailed to Subscriber,
In the event TeleCheck changes the rates, Fees or warranty limits hereunder,
Subscriber may terminate this Agreement upon written notice received by
TeleCheck within such 30 day period. TeleCheck may terminate this Agree-
ment at any time upon notice to Subscriber. Subscriber may terminate this
Agreement at anytime upon written notice if TeleCheck has failed to cure a
material breach of this Agreement within 30 days following written notice
of that breach given by Subscriber.
1.2. Definitions. As used In this Agreement, the following definitions
apply: 'ACH Network"means the Automated Clearing House Network, a
processing and delivery system that provides for the distribution and settle-
ment of electronic credits and debits. "Authorization Receipt" means the
written authorization receipt, In the form approved byTeleCheck, signed by
Consumer far each ECA Warranty Transaction or ECA Verification Transaction,
as appllcable.'Bateh' means a collection of saved transactions transmitted
to TeleCheck for settlement processing. "Claim" means any claim, demand,
directive, suit or other proceeding, notice, damage, expense (including rea-
sonable attomeys fees), assessment, fine or liability of any kind. "Consumer
means a person or entity that authorizes an ltem.'Consumer Authorization
Format" means the required format (including, without limitation, all
verbiage for payment authorization, return item fees, check approvals and
decllnes, etc.), provided byTeleCheck to Subscriber, as amended from time
to time, for processing Consumer payments to Subscriber by an Electronic
Item. "ECA Warranty Transaction" means a transaction processed by
TeleCheck under the ECA Warranty Service as an electronic funds transfer a
remotely created check or a paper check for the contemporaneous purchase
of goods or service by a Consumer at Subscriber's physical location.
"Electronic item Warranty Transaction'means a payment transaction
which is processed as an Electronic Item under the warranty service, for the
purchase of goods or services by a Consumer. "Item" means an outstanding
financial obligation pursuant to a paper check, electronic funds transfer or
remotely created check processed under this Agreement.'NACHA Rules"
means the National Automated Clearing House Association Operating
Rules and Guidelines, as amended from time to time, that govern the ACH
Network. "Paper Warranty Transaction' means a transaction for the
contemporaneous purchase of goods or services pursuant to TeleCheck's
Paper Warranty Service program."Return Item Fee'means any fee or
exemplary damages allowed by law that may be assessed on a Return Item.
"Return items" mean any Items that are dishonored, returned, reversed,
charged back or otherwise unpaid by a Consumers financial institution upon
presentment for payment, regardless of the reason or timing. "Returned
Payment"means any financial obligation pursuant to this Agreement not
paid by Subscriber's financial Institution. 'Subscriber's Account" means
Subscribers financial institution account." TeleCheck Approval Code'
means that TeleCheck has authorized an Item for warranty coverage under
this Agreement'TeleCheck Operational Procedures" means TeleCheck's
published policies and procedures contained In various documents provided
to Subscriber concerning the services, equipment and maintenance pro-
vided pursuant to this Agreement.'TeleCheck Partlee means TeleCheck, its
affiliates, officers, directors, employees, shareholders, agents and attorneys.
'Warranty Maximum' (a) for an Item processed as an ECA Warranty
Transaction or LockBox Warranty Transaction or Electronic Item Warranty
Transaction means the lower of (1) the face amount of the Item, (ii) the
amount set forth on the Merchant Processing Application; or (111) $25,000.00;
(b) for an Item processed as a Paper Warranty Transaction means the lower
of (1) the face amount of the Item; (11) the amount set forth on the Merchant
Processing Application; or (iii) $99,999.99 and (c) for an Item processed as
an Electronic item Warranty Transaction means the lower of fit the face
amount of the Item; (ii) the amount set forth on the Merchant Processing
Application; or (iii)SS000.00
TERMS APPLICABLE ONLY TO
TELECHECK ECA WARRANTY SERVICE
13. ECA Warranty Service.
13.1. Description. TheTeleCheck ECA Warranty Service provides
Subscriber with: (a) coded information to assist Subscriber In deciding
whether or not to accept an Item; (b) processing services; and (c) warranty
services for ECA Warranty Transactions that comply with the warranty
requirements of Section 33, all in accordance with this Agreement.
1.3.2. Processing Services. For each ECA WarrantyTransaction that
TeleCheck Issues aTeleCheck Approval Code that is processed byTeleCheck
as an electronic funds transfer or remotely created check,TeleCheck shall,
via an electronic funds transfer, effect a credit to Subscriber's Account for
the amount of such transaction as part of a batch credit. Such credit shall
typically occur within 2 banking days following Subscriber's regular close-
out of the point of sale terminal and transmission of the saved ECA Warranty
Transactions to TeleCheck for settlement processing, provided that the
Batch is closed and received byTeleCheck by 9:00 p.m. Central Time.
TeleCheck may reduce such credit or Initiate a debit, by the amount of any
necessary adjustments for ECA Warranty Transactions, Including, without
limitation, chargebacks or partial adjustments, to Subscriber's Account
TeleCheck reserves the right to decline to process any transaction as an
ECA Warranty Transaction.
TeleCheck shall not be liable for any delays In receipt of funds or errors in
debit and credit entries caused by third parties, Including, without
limitation, any ACH Network participant or Subsulber's financial institution.
Notwithstanding anything contained herein to the contrary,TeleCheck shall
be entitled without notice to place a hold on or suspend payment of any
amounts now due or hereafter to become due ("Funds Hold) should an
excessive amount of Return Items or other questionable activity occur as
determined by TeleCheck in its discretion, or as otherwise required by law.
In addition to placing a Funds Hold with respect to any payment, TeleCheck
may also freeze all processing activities. In addition to any other remedies
available to TeleCheck under this Agreement, Subscriber agrees that, if
weal a0s 39
Subscriber shall immediately notify TeleCheck upon the happening of any
of the above circumstances. If the Item is charged back or reassigned as
provided herein, (a) TeleCheck may debit Subscriber's Account in the
amount paid byTeleCheck for the Item, (b) TeleCheck may deduct or offset
such item against any amounts to be paid to Subscriber for ECA Warranty
Transactions, or (c) upon request, Subscriber shall remit the amount of the
Item to TeleCheck, TeleCheck may also chargeback to Subscriber any
amount over the Warranty Maximum on any ECA Warranty Transaction
where TeleCheck has not received payment for such transaction within
60 days of the date of the ECA Warranty Transaction. Upon charging back or
reassigning an Item, TeleCheck shall have no further liability to Subscriber
on such Item. Following termination of this Agreement, Subscriber shall
continue to bear total responsibility for any reassignments, chargebacks
and adjustments made under this Section.
1.3.7. Account Reconciliation. Payments processed by TeleCheck will
be reflected on settlement reports made available to Subscriber by
TeleCheck. Subscriber agrees to notifyTeleCheck promptly of any discrep-
ancy between Subscriber's records and the information provided in the
reports, or of any funding failures or errors. In the event any ECA Warranty
Transaction is not funded or otherwise paid by TeleCheck in accordance
with Section 3.2, Subscriber is required to notifyTeleCheck in writing within
30 days from the date of such transaction. If Subscriber fails to notify
TeleCheck within such 30 day period of the discrepancy, funding failure or
error, TeleCheck shall have no liability and Subscriber Is precluded from
asserting any claims, damages or losses arising from such discrepancy,
funding failure or error.
1.3.8. "Goodwill" of a Non -Compliance Item. TeleCheck, In its sole
discretion, may voluntarily elect not to chargeback or reassign to Subscriber
a specific non-compliance Item which fails to comply with the warranty
requirements set forth In Section 3.3. Such discretionary election by
TeleCheck shall not (a) constitute a course of dealing or a waiver of
TeleCheck's right to chargeback or reassign any other Return item, or (b)
relate to any other past or subsequent Return Item, or (c) act as a waiver of
TeleCheck's right to decline to pay any other Return Item.
1.3.9. Reserve Account Establishment and Funding. Subscriber
expressly authorizes TeleCheck to establish a reserve account for ECA
Warranty Transactions. The amount of the reserve account shall be set by
TeleCheck, in Its sole discretion, based upon Subscriber's processing history
and the anticipated risk of loss toTeleCheck. The reserve account shall be
fully funded upon 3 days'notice to Subscriber or in Instances of fraud or
breach of this Agreement, the reserve account may be funded immediately
at TeleCheck's election. The reserve account may be funded by all or any
combination of the following: (a) one or more debits to Subscriber's Account
(and TeleCheck Is hereby authorized to make such debits); (b) one or more
deductions or offsets to any payments otherwise due to Subscriber from
TeleCheck or any of Its affiliates; or (c) Subscriber's delivery to TeleCheck of
a letter of credit issued or established by a financial institution acceptable
to, and in a form satisfactory to,TeleCheck. In the event of termination of
this Agreement by either TeleCheck or Subscriber, an immediate reserve
account may be established without notice In the manner provided above.
Any reserve account will be held by TeleCheck for 10 months after termina-
tion of this Agreement Subscriber's funds may be held In a commingled
reserve account for the reserve funds of TeleCheck's subscribers without
involvement by an independent escrow agent, and shall not accrue interest.
If Subscriber's funds in the reserve account are not sufficient to cover the
delinquent fees, chargebacks or rejected and reassigned warranty Items, or
any other fees and charges due from Subscriber to TeleCheck or Its affiliates,
or if the funds In the reserve account have been released, Subscriber shall
Immediately pay TeleCheck such sums upon request. In the event of a
failure by Subscriber to fund the reserve account, TeleCheck may fund such
reserve account In the manner set forth above.
1.3.10. Fees and Rates. Subscriber shall payTeleCheck the fees and
rates set forth on the Merchant Processing Application and addenda, if any,
or in this Agreement, as changed from time to time byTeleCheck, plus all
applicable taxes.The "Inquiry Rate' is the percentage rate which shall apply
to the face amount of each Item (up to the Warranty Maximum), for which
an authorization inquiry is made to TeleCheck by telephone, electronically
or otherwise, whether or not a TeleCheck Approval Code is issued. The
`Transaction Fee" is the additional per transaction charge for each EGA
Warranty Transaction inquiry, whether or not aTeleCheck Approval Code is
issued. In order to qualify for such rate, (a) TeleCheck must be authorized to
debit all payments and other amounts owed from Subscriber's Account, and
if TeleCheck is unable to process the debit, an additional $10.00 processing
fee will be charged, and (b) Subscriber represents that the Total Monthly
Check/Call Volume as stated in the Merchant Processing Application Is
accurate. Subscriber acknowledges that the fee Is tied to monthly check
and call volume and recognizes that TeleCheck may, In accordance with
Section 1, Increase the fee or institute traditional billing if Subscriber's
monthly check and call volume exceeds TeleCheck's parameters. The
"Monthly Minimum Fee" is the minimum aggregate amount of Inquiry
Rate fees that Subscriber shall pay on a monthly basis. if the total Inquiry
Rate fees for Subscriber's inquiries for any month are less than the Monthly
Minimum Fee, then the Monthly Minimum Fee shall apply. The "Customer
Requested Operator Call Fee" or'Volce Authorization Fee' is an addl-
tional fee per operator or Interactive Voice Response (IVR)-assisted call not
requested byTeleCheck The'December Sisk Surcharge' Is an additional
percentage charge added to the Inquiry Rate for each authorization Inquiry
in December. The "Monthly StatementlProcessing Fee' is a monthly fee
for handling Subscriber's account
The following additional fees may be also be charged by TeleCheck:
The "Funding Report Fee" is a $15.00 monthly fee to receive daily funding
reports or 510.00 monthly fee to receive weekly funding reports. The'POS
Equipment Support Fee' Is a $10.00 monthly fee per terminal for point of
sale support services. The'Chargeback Fee' is a $5.00 handling fee for
each chargeback of an ECA Warranty Transaction. The "Correction Fee' is a
55.00 fee payable on each Item that must be corrected due to Subscriber's
error or at Subscriber's request. The "Recovery Processing Fee' is a $5.00
fee for each Item that fails to meet warranty requirements for which
TeleCheck elects, In its discretion, to reimburse Subscriber as a `Goodwill
Item'for a specific Return Item. A "Terminal Application Update Fee' of
$25.00 per terminal shall be charged for each occasion that a terminal
application update Is made available for additional features, different
information or regulatory compliance. Any additional requests or other
services not included in this Agreement may be subject to additional fees.
Fees for these items may be obtained by contacting TeleCheck. The above
fees are In addition to any fees charged byTeleCheck to Subscriber under
any other agreement.
TERMS APPLICABLE ONLY TO
TELECHECK PAPER WARRANTY SERVICE
1.4. Paper Warranty Service.
1.4.1. Description. The TeleCheck Paper Warranty Service provide
Subscriber with: (a) coded Information to assist Subscriber In deciding
whether or not to accept a check; and (b) warranty services for checks that
meet the warranty requirements of Section 41, all in accordance with this
Agreement.
1.4.2. warranty Requirements. TeleCheck warrants the accuracy of
Its information provided that all requirements set forth in this Section are
strictly met. TeleCheck agrees to purchase from Subscriber one check per
Paper Warranty Transaction for which a TeleCheck Approval Code was
inaccurate; provided, however, that TeleCheck's lability shall be limited by
the Warranty Maximum and warranty requirements, and shall not exceed
the amount of the check. Subscriber's sole and exclusive remedy for breach
of warranty shall be the right to require TeleCheck to purchase such check
subject to the terms and conditions contained In this Agreement Subscriber
represents and warrants with respect to each Paper Warranty Transaction
submitted to TeleCheck for processing under this Agreement that:
a. The check is a first parry check drawn on Consumer's deposit account at
a United States or Canadian financial Institution, completely and properly
filled out, and made payable to Subscriber. The name of the Consumer Is
Imprinted or typed on the check by the check manufacturer. if a P.O. Sox
Is used or an address is not imprinted by the check manufacturer, a
physical address description Is written on the check according to
TeleCheck Operational Procedures;
b. Subscriber made an inquiry to TeleCheck In strict accordance with
TeleCheck Operational Procedures and obtained a single TeleCheck
Approval Code. The transaction was not performed in an attempt to
avoid the warranty requirements or Warranty Maximum (as more fully
described in Section 4A(f)), Including through split sales;
WF81405 41
between Subscriber and TeleCheck or its affiliates, and to credit ail amounts
owing to Subscriber under this Agreement to Subscriber's Account. If there
are insufficient funds in Subscriber's Account to pay amounts owed to
TeleCheck or its affiliates, or if debits to Subscribers account are rejected
due to ACH debit blocks, or if there are any amounts otherwise not paid by
Subscriber when due, including, without limitation, delinquency charges,
chargebacks or rejected and reassigned warranty Items, Subscriber shall
immediately reimburse TeleCheck or its affiliates upon demand, or at
TeleCheck's option, TeleCheck may offset or recoup such amounts against
any amounts due Subscriber under this Agreement or any other agreement
between Subscriber and TeleCheck or its affiliates. A delinquency charge of
1-1 /2% per month or the highest amount permitted by law, whichever Is
lower, shall be added to the outstanding balance of any account over
15 days delinquent. TeleCheck shall have the right to suspend all services
and obligations to Subscriber, including the payment of all warranties due
and all transactions previously authorized, during any period in which
Subscriber's account Is delinquent. Subscriber agrees to pay to TeleCheck a
fee of $25.00 orthe highest amount permitted by law, whichever is lower,
for any Returned Payment Subscriber shall also be responsible for paying
for all of the point of sale supplies related to the TeleCheck services (i.e.,
paper and ink for terminals, rubber stamps, if applicable).
1.6. Security Interest. To secure Subscriber's obligations to TeleCheck
and Its affiliates under this Agreement and any other agreement (including
any check or credit card processing services), Subscriber grants to TeleCheck
a lien and security interest in and to any of Subscriber's funds pertaining to
the transactions contemplated by this Agreement now or hereafter in the
possession of TeleCheck or its affiliates, whether now or hereafter due or to
become due to Subscriber from TeleCheck. Any such funds may be com-
mingled with other funds of TeleCheck, or, in the case of any funds held in a
reserve account, with any other funds of other subscribers of TeleCheck. In
addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, TeleCheck Is hereby authorized
by Subscriber at any time and from time to time, without notice or demand
to Subscriber or to any other person (any such notice and demand being
hereby expressly waived), to set off, recoup and to appropriate and to apply
any and all such funds against and on account of Subscriber's obligations to
TeleCheck and Its affiliates under this Agreement and any other agreement,
lndudin% without limitation, fees for any other services (including any check
or credit card processing services), whether such obligations are liquidated,
unliquidated, fixed, contingent, matured or unmatured. Subscriber agrees
to duly execute and deliver to TeleCheck such instruments and documents
as TeleCheck may reasonably request to perfect and confirm the lien,
security Interest, right of set off, recoupment and subordination set forth in
this Agreement.
1.7. Point of Sale Notices, Return item Fees. Subscriber agrees to
follow procedures and post and provide at TeleCheck's direction any notices
(Including any updates to such notices) which in TeleCheck's opinion may
be required for TeleCheck to process the Item and/or the Return Item Fee,
as an electronic funds transfer, draft or otherwise. Subscriber also agrees to
assess a Return Item Fee on all Return Items, and that TeleCheck shall be
entitled to collect and retain the Return Item Fee from Consumer.
I.S. TeleCheck Approval Code. Subscriber acknowledges that TeleCheck
will use Its intemal and proprietary risk management systems to evaluate
the risk associated with any particular Item and to assist In its decision
whether or not to Issue a TeleCheck Approval Code. The decision to issue a
TeleCheck Approval Code shall be within the discretion of TeleCheck.
1.9. Credit Law Compliance. Subscriber certifies that: (a) Subscriber
has a legitimate business need, In connection with a business transaction
Initiated by Consumer, for the Information provided by TeleCheck under
this Agreement regarding such Consumer; and (b) the information provided
by TeleCheck shall only be used for permissible purposes as defined in the
Fair Credit Reporting Act, and applicable state and federal laws, with the
exception that the Information shall not be used for employment purposes,
and shall not be used by Subscriber for any purpose other than a single
4 business transaction between Consumer and Subscriber occurring on the
date of the Inquiry call to TeleCheck. Neither Subscriber, nor Subscriber's
agents or employees, shall disclose the results of any inquiry made to
TeleCheck except to Consumer about whom such inquiry is made and in no
Gm to anysrther person outside Subscriber's organization. if Subscriber
decides to reject any transaction, in whole or in part, because of information
obtained from TeleCheck, Subscriber agrees to provide Consumer with all
Information required by law and TeleCheck.
1.10. Use of TeleCheck Materials and Marks. Pursuant to authorization
granted to TeleCheck by TeleCheck International, Inc., the owner of the
trademarks referenced in this section, TeleCheck grants to Subscriber, and
Subscriber accepts, a nonexclusive, nonassignable and nontransferable
limited license, uncoupled with any right or Interest, to use the TELECHECK
and the TELECHECK logo service marks, and for those Subscribers who are
receiving ECA Warranty Service or ECA Verification Service, the TELECHECK
ELECTRONIC CHECK ACCEPTANCE and ECA Service marks (collectively,
the "TeleCheck Marks") as follows. Subscriber may use and display decals,
Identification data and other materials provided byTeleCheck during the
term of this Agreement at Subscriber's location solely in connection with
the offering of TeleCheck services as authorized under this Agreement.
Subscriber shall not permit any persons other than its own officers or em-
ployees at Subscriber's locations to use the TeleCheck Subscriber number
assigned by TeleCheck. Subscriber agrees that upon termination of this
Agreement It will, at its own expense, either return or destroy all TeleCheck
materials (including the prompt removal of any TeleCheck decals, electronic
files, logos or other materials or references to TeleCheck that are displayed
to the public, Including those affixed to equipment, doors or windows). The
monthly fees payable by Subscriber will apply for all months or fractions of
a month that any materials or TeleCheck-owned equipment remain In use.
Subscriber shall not create any print, electronic or Internet -based materials
including but not limited to any advertising or promotional materials using
any TeleCheck Marks without the prior written consent of TeleCheck.
Subscriber acknowledges TeleCheck International, Incs ownership of the
TeleCheck Marks and will not contest the validity of the marks or the
ownership thereof. Subscriber further agrees to refrain from performing
any acts that might discredit, disparage, dilute, infringe or negatively affect
the value of the TeleCheck Marks or constitute unfair compethion to
TeleCheck or TeleCheck International, Inc Subscriber agrees promptly to
bring to TeleChedes attention any unauthorized use of theTeleCheck Marks
by third parties of which Subscriber becomes aware. Subscriber shall use the
TeleCheck Marks pursuant to any guidelines provided by TeleCheck, as may
be amended from time to time. The following shall appear at least once on
every piece of advertising or promotional material created by Subscriber
which uses the TeleCheck Marks and has received prior written approval
from TeleCheck'The ("Applicable Mark) trademark Is owned by TeleCheck
Intemational, Inc and is licensed for use by ("Subscriber Name').'
1.11. Use of Information. Subscriber agrees that: (a) any data and other
Information relating to an Item or Consumer obtained by TeleCheck in
connection with any service provided hereunder (Including any electronic
or other image of all or any portion of any check or driver's license or other
identification) shall be owned by TeleCheck, with all right, title, and interest
thereto; (b) TeleCheck may use any credit information provided to a
TeleCheck affiliate forTele-Check's credit review; and (c) TeleCheck may
provide or receive any experiential Information regarding Subscriber or
Subscriber's customers to or from any TeleCheck affiliate.
1.12. TeleCheck Operational Procedures. Subscriber shall strictly follow
all TeleCheck Operational Procedures provided to Subscriber, as may be
amended from time to time by TeleCheck, In Its discretion.
1.13. Equipment.
1.13.1. Genera. Subscriber may purchase point -of -sale equipment or
Subscriber may rent equipment from TeleCheck as Indicated an the
Merchant Processing Application. Title to all rental or loaned equipment,
If any, is retained by TeleCheck. Monthly rental fees will apply to all months
or fractions of a month any equipment remains in use by or In the actual or
constructive possession of Subscriber. Upon termination of this Agreement,
Subscriber, at Subscriber's expense, shall return all rented or loaned
equipment to TeleCheck in good repair, ordinary wear and tear excepted.
TeleCheck will replace or repair terminal equipment rented from TeleCheck
or supported by TeleCheck if Subscriber is paying a POS Equipment Support
Fee upon Subscriber's request; provided, however that a swap fee of $39.95
shall be charged per POS terminal replaced. Subscriber bears the entire risk
of loss, theft or damage of or to equipment, whether or not owned by
Subscriber. If TeleCheck provides replacement equipment to Subscriber via
mail or other delivery service, Subscriber must return replaced equipment
WFD14tl5 43
suspended by NACHA or any Card Organization, or cancelled by an ODFI or
Third Parry Sender (as defined in the NACHA Rules). This Agreement, plus
any addenda attached hereto, constitutes the entire Agreement between
the parties concerning subject matter hereof and supersedes all prior and
contemporaneous understandings, representations and agreements in rela-
tion to its subject matter. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE
TO ATRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM
RELATING TO OR ARISING UNDER THIS AGREEMENT.
1.24. Severability and Interpretation, Third Party Beneficiaries. If any
provision, in whole or in part, of this Agreement is held invalid or unenforce-
able for any reason, the invalidity shall not affect the validity of the remaining
provisions of this Agreement, and the parties shall substitute for the Invalid
provision a valid provision which most closely approximates the Intent and
economic effect of the Invalid provision. Neither this Agreement, nor any
addenda orTeleCheck Operational Procedures, shall be Interpreted in favor
or against any party because such party or Its counsel drafted such docu-
ment No course of dealing, usage, custom of trade or communication
between the parties shall modify or alter any of the rights or obligations of
the parties under this Agreement. This Agreement is solely for the benefit
of TeleCheck (and Its affiliates) and Subscriber and no other person of
entity shall have any right, interest or claim under this Agreement.
1.25. Amendment and Waiver. No modification, amendment or waiver
of any of the terms and conditions of this Agreement shall be binding upon
TeleCheck unless made in writing and approved and signed by TeleCheck.
No waiver of any rights hereunder shall be deemed effective unless in
writing executed by the waiving party. No waiver by any party of a breach
or any provision of this Agreement shall constitute a waiver of any prior or
subsequent breach of the same or any other provision of this Agreement.
The parties agree that no failure or delay In exercising any right hereunder
shall operate as a waiver of any such right. All ofTeleCheck's rights are
cumulative, and no single or partial exercise of any right hereunder shall
preclude further exercise of such right or any other right
116. Damages. Upon Subscriber's breach of this Agreement, including
any unauthorized termination, TeleCheck shall be entitled to recover from
Subscriber liquidated damages In an amount equal to ninety percent (90%)
of the aggregate Monthly Minimum Fees and Monthly Statement/Processing
Fees payable for the unexpired portion of the then current term of this
Agreement. TeleCheck and Subscriber hereby acknowledge and agree that,
after giving due consideration to the costs TeleCheck may incur by reason
of Subscriber's breach of this Agreement, to the possibility that TeleCheck
will not be able to mitigate its damages, and to the expense savings that
TeleCheck may obtain by not having to provide services or maintenance,
the liquidated damages specified herein constitute a realistic pre -estimate
of the loss to TeleCheck In the event of such breach.
1.27. Financial and other Information.
1.27.1. Upon request, you will provide us and our affiliates, quarterly
financial statements within 45 days after the end of each fiscal quarter and
annual audited financial statements within 90 days after the end of each
fiscal year. Such financial statements shall be prepared in accordance with
generally accepted accounting principles. You will also provide such other
financial statements and other information concerning your business and
your compliance with the terms and provisions of this Agreement as we may
reasonably request. You authorize us and our affiliates to obtain from third
parties flnanclal and credit information relating to you in connection with our
determination whether to accept this Agreement and our continuing eval-
uation of your financial and credit status. Upon request, you shall provide,
and/or cause to be provided, to us and our affiliates, or our representatives
or regulators reasonable access to your or your service provider's facilities
and records for the purpose of performing any inspection and/or copying
of books and/or records deemed appropriate. In such event, you shall pay
the costs incurred by us or our affiliates for such inspection, including, but
not limited to, costs incurred or airfare and hotel accommodations.
1.27.2. You will provide us with written notice of any judgment, writ,
warrant, or attachment, execution or levy against any substantial part (25%
or more in value) of your total assets not later than three (3) days after you
become aware of the same.
1.28. Survivability. All representations, warranties, Indemnities, limita-
tions of liability and covenants made herein shall survive the termination of
this Agreement and shall remain enforceable after such termination.
1.29. IRS Reporting. Pursuant to Section 605OW of the Internal Revenue
Code, merchant acquiring entities and third party settlement organizations
are required to file an information return for each calendar year beginning
January 1, 2011 reporting all payment card transactions and third party net-
work transactions with payees occurrIng In that calendar year. Accordingly,
you will receive a Form 1099 reporting your gross transaction amounts for
each calendar year beginning with transactions processed In calendar year
2011. In addition, amounts reportable under Section 605OW are subject to
backup withholding requirements. Payors are required to perform backup
with holding by deducting and withholding Income tax from reportable
transactions if (a) the payee fails to provide the payee's taxpayer identifica-
tion number (TiN) to the payor, or (b) if the IRS notifies the payor that the
TIN (when matched with the name) provided by the payee is Incorrect
Accordingly, to avoid backup withholding, It Is very important that you
provide us with the correct name and TIN that you use when filing your tax
return that includes the transactions for your business.
wFB11a5 45
I. Format. You must create a Charge Record for every Charge and a Credit
Record for every Credit that comply with our requirements, as described
in the Merchant Regulations. You may create multiple Charge Records
for a single purchase placed on different Cards, but you must not create
multiple Charge Records for a single purchase to the same Card, by
dividing the purchase into more than one Charge.
ii. Authorization. You must obtain from and submit to us an Authorization
Approval code for all Charges. Authorization does not guarantee that
we will accept the Charge without exercising Chargeback, nor Is it a
guarantee that the person making the Charge is the Cardmember or
that you will be paid.
Ill. Submitting Charges and Credits. Your Establishments must submit
Charges and Credits in U.S. dollars, You must not Issue a Credit when
there Is no corresponding Charge. You must Issue Credits to the Card
account used to make the original purchase, except as otherwise
expressly specified in the Merchant Regulations.
Iv. Payment for Charges. We will pay you, through our agent, according
to your payment plan in U.S. dollars for the face amount of Charges
submitted from your Establishments less: (I) the Discount, (11) any
amounts you owe us or our Affiliates, (Ill) any amounts for which we
have Chargebacks, and (iv) any Credits you submit Your initial Discount
Is indicated In the Agreement or otherwise provided to you in writing by
us. In addition to your Discount we may charge you additional fees and
assessments, as listed in the Merchant Regulations. We may adjust any
of these amounts and may change any other amount we charge you for
accepting the Card.
v. Chargeback. We and our agent have Chargeback rights, as described in
the Merchant Regulations. We and our agent may Chargeback by
deducting, withholding, recouping from, or offsetting against our
payments to you (or debiting your Account), or we or our agent may
notify you of your obligation to pay us, which you must do promptly
and fully. our or our agent's failure to demand payment does not waive
our Chargeback rights.
Vt. Protecting Cardmember Information. You must protect Cardmember
information, as described in the Merchant Regulations. You have
additional obligations based on your Transaction volume, Including
providing to us documentation validating your compliance with the PCI
DSS performed by Qualified Security Assessors or Approved Scanning
Vendors (or both).
4 2.3'. Protective Attlons
a. Creating a Reserve. Regardless of any contrary provision in the
Agreement, we have the right in our sole discretion to determine that it is
necessary to create a Reserve, we may Immediately establish a Reserve or
terminate the Agreement. We may establish a Reserve by (1) withholding
amounts from payment we otherwise would make to you under the
Agreement or (11) requiring you to deposit funds or other collateral with us.
Any collateral provide pursuant to this Section 2.3 of the General Provisions
Is subject to prior written approval. We may Increase the amount of the
Reserve at any time so long as the amount of the Reserve does not exceed
an amount sufficient, In our reasonable judgment, to satisfy any financial
exposure or risk to us under the Agreement (including Charges submitted
by you for goods or services not yet received by Cardmembers and our costs
of handling Disputed Charges) or to us or our Affiliates under any Agreement
or any Other Agreement or to Cardmembers. Upon the occurrence of an
event described in Section 2.3,b.viil of the General Provisions, and during
any continuation of such event, we may take Immediate action to establish
or increase the amount of any Reserve to an amount proportional to the
risk covered by such event.
b. Trigger Events for Reserve. Some of the events that may cause us to
establish a Reserve include: (1) your ceasing a substantial portion of or
adversely altering your operations; (11) your selling all or substantially all of
your assets or any party acquiring 25%or more of the equity interests issued
by you (other than parties currently owning 25% or more of such Interests),
whether through acquisition of new equity interests, previously outstanding
interests, or otherwise; (ill) your suffering a material adverse change in your
business; (Iv) your becoming Insolvent; (v) our receiving a disproportionate
number or amount of Disputed Charges at your Establishments; NO our
reasonable belief that you will not be able to perform your obligations
under the Agreement, under any Other Agreement, or to Cardmembers; or
NO our reasonable believe that you will not be able to perform your obliga-
tions under the Agreement, any Other Agreement, or to Cardmembers; or
(viii) the establishment of a reserve or other protective action taken by any
Entity with whom you have entered into an arrangement for the acceptance
or processing (or both) of Other Payment Products that (A) results in the
withholding of funds that would otherwise have been payable to you,
(B) requires you to make a direct payment into a reserve account or similar
device, or (C) requires you to provide such Entity with a letter of credit or
other third -party guaranty of payment.
c. Application of Reserve. We may deduct and withhold from, and
recoup and set-off against, the Reserve (1) any amounts you or any of
your Affiliates owe us or any of our Affiliates under the Agreement or
any Other Agreement (11) any costs incurred by us In connection with
the administration of the Reserve, Including attorneys fees, and (111) any
costs Incurred by us as a result of your failure to fulfill any obligations
to us, any of our Affiliates, or to Cardmembers, including Attorney fees
and our cost of handling Disputed Charges.
d. Other Protections. We may take other reasonable actions to protect
our rights and rights of any of our Affiliates, including changing the speed
or method of payment for Charges, exercising Chargeback under any of our
Chargeback programs, or charging you fees for Disputed Charges.
it. Providing information. You must provide to us promptly, upon request,
information about you and your Affiliates finances, creditworthiness, and
operations, including your most recent certified financial statements. You
must notify us Immediately of the occurrence of any event described in
Section 2.3 b. viii of the General Provision.
a. Delivery and Receipt. Unless otherwise explicitly provided for herein,
all notices hereunder must be in writing and sent by hand delivery; or by
U.S. postal service, such as first class mail or third class mail, postage
prepaid; or by expedited mail courier service; or by electronic mail (e-mail);
or by facsimile transmission, to the addresses set out below. Notices are
deemed received and effective as follows: If hand delivered, upon delivery;
if sent by e-mail or facsimile transmission, upon sending; if mailed, upon
the earlier of (1) receipt or (11) three days after being deposited in the mall if
mailed by first class postage or ten days after being deposited In the mail If
mailed by third class postage. If the addressee provided for below rejects or
otherwise refuses to accept the notice, or If the notice cannot be delivered
because of a change in address for which no notice was appropriately given,
then notice Is effective upon the rejection, refusal or Inabiiity to deliver.
b. Our Notice Address. Unless we notify you otherwise, you shall send
notices to us, through our agent, at: American Express Travel Related
Services Comparry, Inc. c/o 1307 Walt Whitman Road, Melville, NY 11747.
c. Your Notice Address. Our agent shall send notice to you at the address,
e-mail address, or facsimile number you indicated on your application to
accept the Card. You must notify our agent immediately of any change In
your notice address.
2.3. Indemnification and Liability
a. Indemnity. You shall Indemnity, defend, and hold harmless us and our
Affiliates, agents, successors, assigns, and third party licensees, from and
against all damages, liabilities, losses, costs, and expenses, including legal
fees, arising or alleged to have arisen from your breach, negligent or
wrongful act or omission, failure to perform under the Agreement, or
failure In the provision of your goods or services.
b. Umitation of Uability. In no event shall we or our Affiliates, agents,
successors, or assigns be liable to you for any incidental, Indirect,
speculative, consequential, special, punitive, or exemplary damages of any
kind (whether based in contract, tort, including negligence, strict liabiliry,
fraud, or otherwise, or statutes, regulations, or any other theory) arising out
of or in connection with the Agreement, even if advised of such potential
damages. Neither you nor we (and our agent) will be responsible to the
other for damages arising from delays or problems caused by telecommu-
nications carriers or the banking system, except that our (and our agent's)
rights to create Reserves and exercise Chargebacks will not be impaired by
such events.
WFB1405 47
otherwise provided in section 7.c. above, if any portion of this Section 7
(other than section 7.c or d) is deemed invalid or unenforceable, it shall not
invalidate the remaining portions of this section 7, the Agreement, or any
predecessor agreement you may have had with us, each of which shall be
enforceable regardless of such invalidity.
It. Costs of Arbitration Proceedings. You will be responsible of paying
your share, if any of the arbitration fees (including filing, administrative,
hearing and/or other fees) provided by the Arbitration Rules, to the extent
such fees do not exceed the amount of the filing fees you would have
incurred if the Claim had been brought in a state or federal court that
would have jurisdiction over the Claim located in the federal judicial district
where your headquarters is located. We will be responsible for paying the
remainder of any arbitration fees. At your written request we will consider
in good faith making a temporary advance of all or part of your share of the
arbitration fees for any Claim you initiate as to which you or we seek
arbitration. You will not be assessed any arbitration fees in excess of your
share if you do not prevail in any arbitration with us.
a. Confidentiality. You must keep confidential and not disclose to any
third party the provisions of the Agreement and any information that you
receive from us that is not publicly available.
b. Proprietary Rights and Permitted Uses. Neither party has any rights
in the other parry's Marks, except as otherwise expressly specified in the
Merchant Regulations, nor shall one party use the other part's Marks
without its prior written consent, except that we may use your name,
address (including your website addresses or URLs), and customer service
telephone numbers in any media at any time.
c. Your Representations and Warranties. You represent and warrant to
us that: (I) you are duly organized, validly existing, and in good standing
under the laws of the jurisdiction in which you are organized; (i[) you are
duly qualified and licensed to do business in all jurisdictions in which you
conduct business; (ill) you have full authority to enter into the Agreement
and all necessary assets and liquidity to perform your obligations and pay
your debts hereunder as they become due; ([v) there is no circumstance
threatened or pending that might have a material adverse effect on your
business or your ability to perform your obligations or pay your debts here-
under; (v) you are authorized to enter into this Agreement on behalf of your
Establishments and Affiliates, including those indicated in this Agreement,
and the Individual who signs this Agreement or otherwise enters Into it has
authority to bind you and them to it; (vi) you are not (1) listed on the U.S.
Department of Treasury, Office of Foreign Assets Control, Specially Desig-
nated Nationals and Blocked Persons List (available at www.treas.gov/ofac),
(2) listed on the V.S. Department of State's Terrorist Exclusion List (available
at www.state.gov), or (3) located in or operating under license issued by a
jurisdiction identified by the U.S. Department of State as a sponsor of
international terrorism, by the U.S. Secretary of the Treasury as warranting
special measures due to money laundering concerns, or as non -cooperative
with international ant[ -money laundering principles or procedures by an
intergovernmental group or organization of which the United States is a
member; (v[l) you have not assigned to any third party any payments due
to you under this Agreement; (viii) all information that you provided in
connection with this Agreement is true, accurate, and complete; and ([x)
you have read this Agreement and kept a copy for your file. If any of your
representations or warranties in this Agreement becomes untrue, inaccurate,
or incomplete at any time, we may immediately terminate this Agreement
in our discretion.
d. Compliance with Laws. You shall comply with all applicable laws,
regulations, and rules.
e. Governing law; Jurisdiction; Venue. The Agreement and all Claims
are governed by and shall be construed and enforced according to the laws
of the State of New York without regard to internal principles of conflicts of
law. Notwithstanding the immediately preceding sentence, the parties
agree that an electronic transmission contemplated hereunder Is being
provided In connection with a transaction affecting interstate commerce
that Is subject to the federal Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. §1700 et seq. (E-Sign Act). The parties intend that
the E-Sign Act apply to the fullest extent possible to validate their ability to
electronically transmit and electronically commit to be bound by the obliga-
tions and form assent described in the Merchant Regulations and releases
of scheduled changes therein.
Subject to section 7, any action by either party hereunder shall be brought
only in the appropriate federal or state court located in the County and
State of New York. Each party consents to the exclusive jurisdiction of such
court and waives any claim of lack of jurisdiction or forum non conveniens.
f. Interpretation. In construing the Agreement, unless the context
requires otherwise: (I) the singular includes the plural and vice versa;
00 the term'or'is not exclusive; (III) the te►m'including"means "including,
but not limited to;'(iv) the term "day"means "calendar day;"(v) any reference
to any agreement (including the Agreement), instrument, contract, policy,
procedure, or other document refers to it as amended, supplemented,
modified, suspended, replaced, restated, or novated from time to time; (v[)
all captions, headings, and similar terms are for reference only; and (v[i)
where specific language is used to illustrate by example or clarify a general
statement such specific language shall not be interpreted to modify, limit,
or restrict the construction of the general statement. To the extent possible,
these General Provisions, the provisions of Schedule A, and the provisions of
the Merchant Regulations shall be interpreted to give each their full effect.
However, if a conflict is deemed to exist between them, then that conflict
shall be resolved in the following order of precedence: Schedule A and any
accompanying exhibits shall control over these General Provisions or the
Merchant Regulations (or both) and the Merchant Regulations shall control
over these General Provisions.
g. Assignment. You shall not assign the Agreement, whether voluntarily
or by operation of law (including by way of sale of assets, merger, or
consolidation), without our prior written consent. Any purported assign-
ment by operation of law is voidable in our sole discretion. We may assign
the Agreement without your consent. Except as otherwise specified herein,
the Agreement binds, and inures to the benefit of the parties and their
respective successors and permitted assigns.
h. Waiver; Cumulative Rights. Either party's failure to exercise any of its
rights under the Agreement, its delay in enforcing any right, or its waiver of
its rights on any occasion, shall not constitute a waiver of such rights on
any other occasion. No course of dealing by either party in exercising any of
its rights shall constitute a waiver thereof, No waiver of any provision of the
Agreement shall be effective unless it is in writing and signed by the party
against whom the waiver is sought to be enforced. All rights and remedies
of the parties are cumulative, not alternative.
1. Savings Clause. Other than as set forth in the last sentence of section
2.7.c of the General Provisions, if any provision of the Agreement is held
by a court of competent jurisdiction to be illegal or unenforceable, that
provision shall be replaced by an enforceable provision most closely
reflecting the parties' intentlons, with the balance of the Agreement
remaining unaffected.
J. Amendments. We reserve the right to change the Agreement at any
time (including by amending any of its provisions, adding new provisions,
or deleting or modifying existing provisions) on at least ten days'prlor notice
to you, provided that we shall change the Merchant Regulations pursuant
to the following provisions. You agree to accept all changes (and further to
abide by the changed provisions in the Merchant Regulations) as a condition
of your agreement to accept the Card. We are not bound by any changes
that you propose in the Agreement, unless we expressly agree in a writing
signed by our authorized representative. An e-mail does not constitute
such a signed writing.
1) Scheduled Changes. The Merchant Regulations are published twice
each year, in April and October. We have the right to, and hereby notify
you that we may, change the provisions of the Merchant Regulations in
scheduled releases (sometimes called 'Notification of Changes"In our
materials) as follows:
• a release of scheduled changes, to be published every April, which
changes shall take effect in the following October (or in a later) edition
of the Merchant Regulations or during the period between two editions
of the Merchant Regulations; and
• a release of scheduled changes, to be published every October, which
changes shall take effect in the following April (or in a later) edition of
the Merchant Regulations or during the period between two editions of
the Merchant Regulations.
• Where a change Is to take effect during the period between two
editions of the Merchant Regulations, we shall also Include the change
in the edition of the Merchant Regulations covering the period during
which the change shall take effect, noting the effective date of the
change therein.
WFB1405 49
you of such fees, such adjustments and charges, and assessments and any
different Discount Rates or Transactions fees that apply to you.
c. Payment Plan. During your participation in the American Express
OnePolnt Program, the terms of your payment plan (e.g., speed of payment,
payment and reconciliation options) with our agent govern settlement
payments to you. Our agent will send payments for Charges from your
Establishments according to your payment plan to your Demand Deposit
Account that you designate to it You must notify your bank that we, through
our agent, will have access to your account for debiting and crediting the
Demand Deposit Account.
You must notify our agent immediately if you know or suspect that Card -
member Information has been accessed or used without authorization or
used other than in accordance with the Agreement. You must promptly
provide to us and our agent all Card Numbers related to the data incident
and audit reports of the data incident, and you must work with us and our
agent to rectify any issues arising from the data incident, as specified in the
Merchant Regulations.
a. Prohibited/High Risk Merchants and Activities. Entities classified in
certain industries or accepting Transactions for certain prohibited activities
do not quality for the American Express OnePoint Program, but may qualify
for our standard American Express Card acceptance program, Please contact
our agent with any questions about those risk evaluation procedures under
the program.
b. Protective Actions. Our agent may take actions to protect our rights or
those of any of our Affiliates on our behalf. For example, the determination
to establish a Reserve may be triggered by events identified by our agent
and may include requiring you to deposit funds or other collateral with us
or our agent, changing the speed of payment for Charges, exercising
immediate Chargeback, and charging you fees for Disputed charges. Our
agent may establish the Reserve; Increase the Reserve from time to time;
make deductions and withhold from, and recoup and offset against the
Reserve any amounts owed under the Agreement; and terminate the
Agreement on our behalf. Our agent will Inform you If a Reserve is
established. You must provide to our agent promptly, upon request,
information about your finances, creditworthiness, and operations,
Including your most recent certified financial statements. You must notify
our Agent immediately of the occurrence of any event described In Section
2.3, b vil of the General Provisions.
During your participation in the American Express OnePoInt Program, our
agent's procedures for Inquiries, Disputed Charges, and Chargebacks govern
the Disputed Charge process, provided that nothing therein waives our
Chargeback rights under the Agreement. Our agent may Chargeback by
deducting, withholding, recouping from, or offsetting against our payments
to you (or debiting your Account), or our agent may notify you of your
obligation to pay us (through our agent), which you must do promptly and
fully. Our or our agent's failure to demand payment does not waive our
Chargeback rights.
WFB1405
3.7. Return or Purchase of Equipment at End of Lease Period. Upon the
completion of your lease term or any extension, you will have the option to (a)
return the Equipment to us, or (b) purchase the Equipment from us for the
lesser of fair market value at the time (as determined In good faith by us) or an
amount equal to ten -percent (10%) of the total lease payments under this
Lease Agreement with respect to each item of Equipment. in the absence of an
affirmative election by you to return or purchase the Equipment, this lease will
continue on a month -to -month basis at the existing monthly lease payment; or
(c) after the final lease payment has been received by FDGL, the Agreement will
revert to a month by month rental at the existing monthly lease payment If
Client does not want to continue to rent the equipment, then Client will be
obligated to provide FDGL with thirty (30) day prior written notice to terminate
and return the equipment to FDGL If we terminate this Lease Agreement
pursuant to Section 3.12 (b) due to a default by you, then you shall immediately
return the Leased Equipment to us no later than the tenth Business Day after
termination, or remit to us the fair market value of the Equipment as
determined in good faith by us. We may collect any amounts due to us under
this Section 3.7 by debiting your Settlement Account, and to the extent we are
unable to obtain full satisfaction in this manner, you agree to pay the amounts
owed to us promptly upon our request.
3.9. Software License. We retain all ownership and copyright Interest in and
to all computer software, related documentation, technology, know-how and
processes embodied in or provided in connection with the leased Equipment
other than those owned or licensed by the manufacturer of the Leased
Equipment (collectively"Softwarel, and you shall have only a nonexdushre
license to use the Software in your operation of the Leased Equipment,
3.9. Limitation on Liability. We are not liable for any loss, damage or
expense of any kind or nature caused directly or Indirectly by the Leased
Equipment, including any damage or Injury to persons or property caused by
the Leased Equipment. We are not liable for the use or maintenance of the
Leased Equipment, its failure to operate, any repairs or service to It or by any
Interruption of service or loss of use of the Leased Equipment or resulting loss
of business. Our liability arising out of or in any way connected with this Lease
Agreement shall not exceed the aggregate lease amount paid to us for the
particular Leased Equipment Involved. In no event shall we be liable for any
Indirect, Incidental, special or consequential damages. The remedies available
to you under this Lease Agreement are your sole and exclusive remedies.
4F 3.10. Warranties.
a. All warranties, express or implied, made to you or any other person are
hereby disdalmed, including without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular purpose, quiet
enjoyment, or non -infringement.
b. You warrant that you will only use the Leased Equipment for commercial
purposes and Mil not use the Leased Equipment for any household or
personal purposes.
3.11. Indemnification. You shall Indemnify and hold us harmless from and
against any and all losses, liabilities, damages and expenses resulting from (a)
the operation, use, condition, liens against, or return of the Leased Equipment
or (b) any breach by you of any of your obligations hereunder, except to the
extent any losses, liabilities, damages or expenses result from our gross
negligence or willful misconduct.
3.12. Default; Remedies.
a. If any debit of your Settlement Account Initiated by us Is rejected when
due, or if you otherwise fail to pay us any amounts due hereunder when
due, or If you default in any material respect in the performance or
observance of any obligation or provision of this Lease Agreement or any
agreement with any of our affiliates or Jolnt ventures, any such event shall
be a default hereunder. Without limiting the foregoln%any default by you
under a processing Agreement with us or with an affiliate or joint venture to
which we are a party will be treated as a default under this Lease
Agreement. Such a default would Include a default resulting from early
termination of the Merchant Agreement.
h Upon the occurrence of any default, we may at our option, effective
immediately without notice, either (i) terminate this lease and our future
obligations under this Lease Agreement, repossess the Leased Equipment
and proceed in any lawful manner against you for collection of all charges
that have accrued and are due and payable, or (II) accelerate and declare
immediately due and payable all monthly lease charges for the remainder
of the applicable lease period together with the fair market value of the
Leased Equipment (as determined by us), not as a penalty but as liquidated
damages for our loss of the bargain. Upon any such termination for default,
we may proceed in any lawful manner to obtain satisfaction of the amounts
owed to us and, if applicable, our recovery of the Leased Equipment,
including entering onto your premises to recover the Leased Equipment. In
any case, you shall also be responsible for our costs of collection, court costs
as well as applicable shipping, repair and refurbishing costs of recovered
Leased Equipment. You agree that we shall be entitled to recover any
amounts due to us under this Lease Agreement by charging your
Settlement Account or any other funds of yours that come Into our
possession or control, or within the possession or control of our affiliates or
joint ventures, or by setting off amounts that you owe to us against any
amounts we may owe to you, in any case without notifying you prior to
doing so. Without limiting the foregoing, you agree that we are entitled to
recover amounts owed to us under this Lease Agreement by obtaining
directly from an affiliate or joint venture to which we are a parry and with
which you have entered Into an Merchant Agreement any funds held or
available as security for payment under the terms of the Merchant
Agreement, Including funds available under the'Reserve Account; Security
Interest' section of the Merchant Agreement, if applicable.
3.13. Assignment. You may not assign or transfer this Lease Agreement, by
operation of law or otherwise, without our prior written consent. For purposes
of this Lease Agreement, any transfer of voting control of you or your parent
shall be considered an assignment or transfer of this Lease Agreement. We may
assign or transfer this Lease Agreement and our rights and obligations
hereunder, in whole or in part, to any third party without the necessity of
obtaining your consent.
3.14. Lease Guaranty. No guarantor shall have any right of subrogation to
any of our rights in the Leased Equipment or this Lease Agreement or against
you, and any such right of subrogation is hereby waived and released. All
indebtedness that exists now or arises after the execution of this Lease
Agreement between you and any guarantor is hereby subordinated to all of
your present and future obligations, and those of your guarantor, to us, and no
payment shall be made or accepted on such indebtedness due to you from a
guarantor until the obligations due to us are paid and satisfied In full.
3.1 S. Governing Law, Venue, Miscellaneous. This Lease Agreement shall be
governed by and will be construed in accordance wkh the laws of the State of
New York (without applying its conflicts of laws principles)_ The exduslve venue
for any actions or claims arising under or related to this Lease Agreement shall
be in the appropriate state of federal court located In Suffolk County, New York.
If any part of this Lease Agreement Is not enforceable, the remaining provisions
will remain valid and enforceable.
3.16. Should your terminal become Inoperable due to manufacturer's defect
in our reasonable determination, we will provide you with a replacement unit
at no cost for the term of your lease so long as you are actively processing with
us. if the leased equipment is obsolete or defective due to operator error, you
can upgrade to a new unit by entering into a new lease contract For such
replacements contact the POS Help Desk.
3.17. Notices. All notices must be in writing, if to you at your address
appearing In the Application and if to us at 4000 Coral Ridge Drive, Coral
Springs, Florida, 3306S. Attn: Lease Department, and shall be deemed to have
been given (I) if sent by mail or courier, upon the earlier of five (5) days after
mailing or when actually received ar, in the case of courier, when delivered, and
(ii) if sent by facsimile machine, when the courier confirmation copy is actually
received. Notice given in any other manner shall be effective when actually
received, if to you at the address appearing on the MPA or by any electronic
means, including but not limited to the entail address you have provided on
the MPA. Notices sent to the Merchant's last known address, as Indicated in our
records, shall constitute effective notice to the Merchant under this Agreement.
Customer Service toll free number 1-877-257-2W4,.
3.18. Entire Agreement. This Lease Agreement constitutes the entire
Agreement between the parties with respect to the Equipment, supersedes
any previous agreements and understandings and can be changed only by a
written agreement signed by all parties. This Lease Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one and the same instrument. Delivery
of an executed counterpart of a signature page of this Lease Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of
this Lease Agreement.
WFB1405 53
WF81405 CONFIRMATION
S
Please read the Merchant Processing Program Guide in its entirety. It describes the terms under which we will provide merchant processing
Services to you.
From time to time you may have questions regarding the contents of your Agreement (which includes your Merchant Processing Application,
the foregoing Program Guide, and the schedules thereto and documents incorporated herein) with Bank and/or Processor. The following
information summarizes portions of your Agreement in order to assist you in answering some of the questions we are most commonly asked.
1. Your fees for certain Services set forth in this Agreement are based
on the interchange rates set by the Card Organization. Any transac-
tions that fail to qualify at your Anticipated Interchange Levels will be
charged an additiona9 fee (See Section 18 of the Merchant Processing
Program Guide).
2. We may debit your bank account from time to time for amounts
owed to us under the Agreement.
3. There are many reasons why a Chargeback may occur. When they
occur we will debit your settlement funds or settlement account. For a
more detailed discussion regarding Chargebacks, see Section 10 of
the Merchant Processing Program Guide.
4. If you dispute any charge or funding, you must notify us within
60 days of the date of the statement where the charge or funding
appears for Card Processing.
5. The Agreement limits our liability to you. For a detailed description
of the limitation of liability, see Section 20 of the Card General Terms.
6. We have assumed certain risks by agreeing to provide you with Card
processing or check services. Accordingly, we may take certain actions
to mitigate our risk, including termination of the Agreement, and/or
hold monies otherwise payable to you (see Card General Terms in
Section 23, Term; Events of Default and Section 24, Reserve Account;
Security Interest), under certain circumstances.
7. By executing this Agreement with us you are authorizing us to
obtain financial and credit information regarding your business and
the signers and guarantors of the Agreement until all your obligations
to us are satisfied.
8. The Agreement contains a provision that in the event you terminate
the Agreement early, you may be responsible for the payment of an
eariy termination fee as set forth in Part I, Section 393 under
"Additional Important Information"
9. If you lease equipment from Processor, it is important that you
review Section 3.0 in Third Party Agreements. Neither Wells Fargo
Bank, N.A, nor Welis Fargo Merchant Services, L.L.C. is a party to this
Agreement. THIS 15 A NON -CANCELABLE LEASE FORTHE FULL
TERM INDICATED.
10. Third Party Services. To the extent you have elected to obtain any
third party services package, please ensure that you review and
understand the terms and conditions contained in Part II (Third Party
Agreements) relevant to such third party services.
11. Card Organization Disclosure
Member Bank Information; Wells Fargo Bank
The Bank's mailing address is Wells Fargo Bank, 1200 Montego Way, Walnut Creek, CA 94598 and its phone number is 1-800-451.5817.
Important Member Bank Responsibilities:
a) The Bank is the only entity approved to extend
acceptance of Card Organization products directly to a
Merchant.
b) The Bank must be a principal (signer) to the Merchant
Agreement.
c) The Bank is responsible for educating Merchants on
pertinent Visa and MasterCard Rules with which
Merchants must comply; but this information may be
provided to you by Processor.
d) The Bank is responsible for and must provide settlement
funds to the Merchant.
Print Client's IRS Legal Filing Name.
City of Lubbock
Important Merchant Responsibilities:
a) Ensure compliance with cardholder data security and storage
requirements.
b) Maintain fraud and chargebacks below Card Organization thresholds.
c) Review and understand the terms of the Merchant Agreement.
d) Comply with Card Organization rules,
e) Retain a signed copy of this Disclosure Page.
f) You may download "Visa Reg u lations" from Visa's website at:
http://usa.visa.com/merchants/operations/op_regulations.html
g) You may download "MasterCard Regulations" from MasterCard's website at:
http://www.mastercard.com/us/merchant/support/rules.html
By its signature below, Client acknowledges that it received (either in person, by facsimile, or by electronic transmission) and read the complete
Program Guide (Version WFB1405) consisting of 55 pages (including this confirmation), which Is incorporated into its Agreement, and agrees to
comply with all terms set forth therein. Upon receipt of a signed original of this Confirmation Page by us, your Application for merchant
processing services will be reviewed. Client understands that its Application is subject to approval by us. Client understands that a copy of the
Program Guide is also available for downloading from the internet at:
CLW
L.
Sigx
Please Print Name of Signer
www.well sfa rgo.tom/downloads/pdf/biz/mere hantlprog ram_guide.pdf
Title
Mai -or
Arms,r•
Rebecca Garza, C)tNScrretan
Date
11-2Y-1a
WFB14as 55