HomeMy WebLinkAboutBNB - Merchant Card Processing Agreement RECEIVED
O
L 2200 Montauk Highway
AY 3 2Q P.O Box 3005 BNB M
Bridgehampton,NY 11932
631537 1000
Bank Southold Town Clerk www.bnbbank.com
May 8, 2019
Southold Town Clerk
Po Box 1179
Southold,NY 11971
RE: Merchant#39300981938904
Dear Valued Customer,
BNB Bank and our processing partner TSYS Merchant Solutions have made enhancements to our service
and support model for our merchant services program.
We have partnered with TSYS Merchant Solutions to provide you with their risk monitoring program.
TSYS will be monitoring your merchant account for such things as potential chargebacks and suspicious
transactions. Currently, your BNB Bank Relationship Manager contacts you directly with questions
regarding these types of transactions. This is to inform you that TSYS will now contact you directly and
may request additional information or documentation to be provided.
We have enclosed the updated version of the Merchant Agreement.Please be advised that your merchant
account is now governed by Merchant Agreement vl8.0119.An electronic version is also available at the
following link:
https://www.tsys.com/Assets/TSYS/downloads/merchant/does/Merchant Card Processing Agreement v
18.0119.pdf
BNB Bank will continue to provide you with our dedicated service through our Relationship
Managers and Service Team. Any questions or concerns that you may have regarding your merchant
account,please contact us at 631-537-1000 ext. 3052. Thank you for choosing BNB Bank as your
merchant services provider. We value your business.
Sincerely,
Maria L. Cawley
Treasury Management Sales & Service Director
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'MERCHANT CARD PROCESSING AGREEMENT Merchant agrees to participate in the Bank's Card processing program by honoring Cards in
While all terms in the Merchant Agreement are important, here is a summary of some accordance with this Merchant Agreement, and to submit Transaction Receipts, Credit
sections on which we occasionally receive questions These are common clauses in merchant Transaction Receipts and other electronic data to Bank for the Card Program services
processing agreements throughout our industry. provided by Bank
• The introductory paragraphs explain that the Merchant Agreement consists of other With respect to Visa Transactions:
documents in addition to this Merchant Processing Agreement Merchant Bank is responsible for providing settlement funds directly to Merchant, and
• We can amend your Merchant Agreement by providing you with 15 days'notice or, Processor shall not have access to or hold settlement funds
under certain circumstances,with less than 15 days'notice(see section t0) With respect to MasterCard Transactions
• Unless confirmed otherwise on your application, the initial term of this Merchant a) For purposes of the Merchant Agreement and performance of the Merchant Agreement
Agreement is three years If you terminate early without cause,you may be required to by Processor,(1)Processor is the exclusive agent of Merchant Bank;(ii)Merchant Bank is
pay an early termination fee(see section 11). at all times and entirely responsible for,and in control of,Processor's performance;and(iii)
• The proceeds you receive from transactions are provisional credits.We can charge or Merchant Bank must approve,in advance,any fee to or obligation of the Merchant ansing
debit your settlement account to recover these provisional credits We can also debit your from or related to performance of the Merchant Agreement
Settlement Account to recover other amounts that you may owe us(see Section 12) b) The Merchant Agreement is not effective and may not be modified in any respect
• If you dispute any charge or funding,you must notify us within 30 days of the date of without the express written consent of Merchant Bank.
the statement(see section 12 5). c) Processor may not have access,directly or indirectly,to any account for funds or funds
due to a Merchant and/or funds withheld from a Merchant for Chargebacks ansing from,or
In some circumstances,we may require you to establish a reserve account with us so we related to,performance of the Merchant Agreement. Merchant Bank may not assign or
can mitigate asks Section 13 explains how that reserve account will be funded and how otherwise transfer an obligation to pay or reimburse a Merchant ansing from,or related to,
we may use money in that account performance of the Merchant Agreement to Processor.
• Our processing fees are set out in detail in the Merchant Application. We may change d) Processor may not subcontract,sublicense,assign,license,franchise,or in any manner
these fees,but will notify you before doing so(see Section 16). extend or transfer to any third party,any right or obligation of Processor set forth in the
• This agreement contains an arbitration clause(see Section 20.2). Merchant Agreement
• This agreement is a complete and final agreement between us It supersedes any 1. MERCHANT'S APPLICATION AND INFORMATION. By completing the
previous negotiations co may have had on the services and products (Section sed Merchant Application,Merchant applies for the Card Program services covered by the
Merchant Application and the Merchant Agreement. In their sole and absolute discretion,
This Merchant Card Processing Agreement ("MPA") is for merchant card payment Processor and/or Merchant Bank may accept or refect Merchant's Merchant Application.
processing services among the merchant ("Merchant") that signed the Application for Merchant may present Transactions to Bank only for the activities and in the volumes
Merchant Card Processing("Merchant Application"),Merchant Bank,and Processor The described on the Merchant Application,including the percentage of Mail/Phone Order and
Merchant Application and the MPA are part of the"Merchant Agreement"as defined below Electronic Commerce Transactions The earlier date of the presentation of the first
Processor and Merchant Bank are hereinafter collectively referred to as the"Bank".Subject Transaction,including any test Transaction,by Merchant to Bank or the date Bank approves
to the requirements of the Operating Rules,Processor and Merchant Bank reserve the right the Merchant Application signifies the effective date of the Merchant Agreement. By either
to allocate Bank's duties and obligations amongst themselves as they agree appropriate in Merchant's signature on the Merchant Application or Merchant's processing a Transaction
their sole discretion,and Merchant Bank or Processor may jointly or individually assert or (including a test Transaction)with Bank,Merchant affirmatively accepts and agrees to be
exercise any rights or remedies provided to Bank hereunder For clarity, any rights, bound by the Merchant Agreement.
remedies,benefits,limitations of liability and disclaimers of,or other provisions applicable
to,`Bank"apply to Merchant Bank and Processor individually If Merchant wishes to 2. MERCHANT'S GENERAL DUTIES.
address any act or omission by,or make or bring any claim or action against,Bank relating 21 General. Merchant will comply with the Merchant Agreement(including the
to thls,Merchant Agreement,it shall first discuss such issue with Processor prior to making terms of the Operating Guide)for submitting and processing Transactions with Bank Bank
orbringing any claim or action against Merchant Bank(in which case Processor shall address is responsible to Merchant for processing Transactions under the Operating•Rules for the
the issue as agreed with Merchant-Bank). Card Program services to which Merchant subscribes,which may vary among Card types.
If elected by Merchant on the Merchant Application, Processor will settle American 2.2 Merchant's Responsibility for Acts of Others. Merchant,and not Bank, is
Express®Card and Discover®Network transactions in accordance with the terms set forth responsible for any advice from,acts of,as well as omissions,acts of fraud or acts of
in the Merchant Application and in doing so,Processor does not represent or indicate in any misconduct by, Merchant's employees, processors, consultants, advisors, contractors,
way that Merchant Bank sponsors Processor into the American Express Network and Merchant Servicers,Agents,officers and directors Merchant,and not Bank,is responsible
Discover Network. Merchant Bank does not sponsor Processor into the American Express for the use,unauthorized use or misuse of Merchant's equipment, POS Equipment, or
Network and Discover Network,is not providing or agreeing to provide Merchant any software.
services hereunder with respect to American Express Card and Discover Network Card 2 3 Electronic and Paperless Notices and Disclosures. Merchant consents to
transactions,does not determine or approve or agree upon any fees,charges,pricing,or any receiving electronically rather than in paper form all written notices,disclosures and other
other terns and conditions,relating to American Express Card and Discover Network Card documents ("Documents") which are to be provided by Bank to Merchant under the
transactions,and has no responsibility or liability to Merchant for American Express Card Merchant Agreement Bank will notify Merchant that a Document is available at Processor's
and Discover Network Card transactions. Nor does Merchant Bank provide or agree to web site with a link to that specific page of the web site containing the Document Merchant
provide Merchant any services hereunder or have any.responsibility or liability to Merchant agrees that such notification may be sent to Merchant at the e-mail address provided as part
with respect to any PIN-based debit or stored value or electromc benefit transfer transactions of the Merchant Application
(except only to the extent,if any,required under Visa's or MasterCard's Operating Rules or By Merchant affirmatively checking the box to consent to receive paperless delivery of IRS
mandatory provisions of applicable law),or any PayPal transactions,JCB,Carte Blanche,or Notices on the Merchant Application,Merchant acknowledges that it has reviewed and
other Card type transactions(other than Visa and MasterCard Credit and non-PIN based received the Consent to Paperless Delivery of IRS Notices, located at
debit/stored value/electronic benefit transactions,including any such transactions made http//www tsys com/documents.html and that Merchant consents and agrees to receive IRS
with Diner's International Cards which also carry the MasterCard Mark and are processed notifications by paperless delivery
as MasterCard transactions),any CrossCheck or other Check Services transactions,merchant Merchant understands and acknowledges that access to the Internet and e-mail are required
gift or loyalty card transactions,or any other services specified in the Merchant Application for Merchant to access Documents electronically or by paperless delivery and Merchant
as covered in whole or in part by this Agreement but as not being provided by Merchant confirms that Merchant has such access Merchant understands that there are costs related to
Bank. No reference to Bank or Merchant Bank herein shall be deemed to create any accessing Documents electronically or by paperless delivery and Merchant agrees that
obligations or liability of Merchant Bank with respect to American Express Card or Merchant is responsible for these related access costs.
American Express Network transactions and Discover Network Cards or Discover Network
Card transactions,or to any of the other types of Cards,transactions or services referred to At any time,and without giving Merchant advance notice,Merchant Bank and/or Processor
above or in the Merchant Application as not being provided by Merchant Bank may elect not to send a Document electronically or by paperless delivery,to which case a
paper copy of the Document will be sent to Merchant at Merchant's last known address,as
The appendices, addenda(including but not limited to the ACH Addendum, and Petro provided by Merchant,or such Document shall otherwise be provided as provided for herein.
Addendum if applicable),schedules,Operating Guide, Fee Schedule and ACH Terms and 3. PROCEDURES FOR CARD TRANSACTIONS.
Conditions that accompany this MPA,as amended from time to time as provided herein,are Honoring Cards.
H
part of the terns and conditions of this MPA,as are the Merchant Application and the 3. HLimited Acceptance.If appropriately indicated herein,Merchant shall be a
"Mercthanan er hRules, and are hereinafter individually and collectively referred to as the Limited Acceptance Merchant,which means that Merchant has elected to accept only certain
"Merchant Agreement" Visa and MasterCard card types as indicated on the Merchant Application,or via later
Capitalized terms used in this Merchant Agreement which are not defined herein shall notification.The Visa or MasterCard Credit acceptance option on the Merchant Application
have the meaning given to them in the Merchant Application or the Operating Guide, refers to Visa Credit and Business transactions,and is what MasterCard refers to as"Other
which can be found at http://www.tsys.com/documents.html,and which is incorporated Card"transactions.Notwithstanding anything to the contrary in the Application,Merchant
by reference into this Agreement and may be amended from time to time by Bank upon can elect(i)to accept only Visa or MasterCard non-PIN based debit/stored valuetelectronic
notice to Merchant. benefit transactions(sometimes referred to as"signature debit'transactions,whether or not
According to the processing services selected by Merchant on the Merchant Application and, an actual signature is required),or(ii)to accept only Visa or MasterCard Credit transactions,
in accordance with the terms of this Merchant Agreement and applicable Operating Rules, or(iii)to accept all Visa or MasterCard Credit and signature debit transactions,provided,
Page 1 of9 UNIVMERAGMT v18 0119
however,that a Merchant who accepts any Visa or MasterCard Card types must accept all Transactions subtmtted that are not valid Transactions,and may suspend or disnntinue any
valid Visa or MasterCard Card types issued by a non-U.S.issuer Merchant is not required provisional credit in Merchant Bank's and/or Processor's sole and absolute discretion,
to accept Card brands other than Visa or MasterCard in order to accept Visa or MasterCard including for any reason that would justify termination of this Merchant Agreement.Each
Cards (except that transactions using Diner's International Cards which also cavy the provisional credit from Bank to Merchant will be subject to adjustment,including revocation,
MasterCard Mark must be accepted if Merchant accepts MasterCard Card transactions of the upon Bank's further review and verification Provisional credit to Merchant for a
same type) Bank has no obligation other than those expressly provided under the Operating Transaction disputed by a Cardholder for any reason is not final.
Rules and applicable law as they may relate to Limited Acceptance Bank's obligations do (b) Bank may deduct from any payment to Merchant the amount of any Credit
not include policing card types at the point of sale Merchant will be solely responsible for Transaction Receipt processed for Merchant,any Chargeback to Merchant,any amount to
the implementation of its decision for limited acceptance including but not limited to policing be deposited in the Reserve Account and any Processing Fees and amounts sufficient to
the card type(s)of transactions at the point of sale submitted for processing by Bank.Should reimburse Bank for the amount of any Card Association fines or charges due from Merchant
Merchant submit a transaction for processing for a card type it has indicated it does not wish or for any current or future obligation of the Merchant that arises under the Merchant
to accept,Bank may process that transaction and Merchant will pay the applicable fees, Agreement Merchant must immediately pay Bank the amount by which a Credit Transaction
charges,and assessments associated with that transaction. Merchant will comply with any Receipt processed on any day exceeds valid Transactions submitted on that day. Without
applicable laws and Operating Rules-for-the card-type-processed ._ ,_ _ limiting Bank's remedies, Bank may obtain the amount due by deducting it from the
(b) Discover If Merchant has chosen to accept Discover Card Transactions in the Settlement Account,Reserve Account or other accounts of or funds due Merchant
Merchant Application,Merchant must accept Discover Cards at all Merchant establishments, (c) Merchant acknowledges that all payments and credits provided to Merchant
including in payment for purchases of goods and services,for charitable contributions and are provisional and subject to suspension,to Chargebacks and to adjustments in accordance
for Cash Over Transactions(subject to the terms of the Operating Guide),when properly with the Merchant Agreement,including,but not limited to the Operating Rules and the
presented for payment by a Cardholder. Subject to this Section,a Merchant must create a Operating Guide
Transaction Receipt for each Discover Card Transaction and deliver at least one copy of the 3.5 Retrieval Requests. If Merchant deposits Transactions with Bank through
Transaction Receipt to the Cardholder A Merchant may issue a Cash Over (subject to the magnetic tape,electronic transmission,or electronic data capture terminal,upon the request
terms of the Operating Guide)in connection with a Discover Card Transaction Merchant of a Card Association or Bank,Merchant shall respond to all Retrieval Requests within the
must deliver a single Authorization Request for the aggregate total of the goods/services time frames specified in the applicable Operating Rules. If Merchant does not respond or
purchase amount and the Cash Over amount. In addition;the Transaction Receipt must responds late to a Retrieval Request,Merchant may be without recourse as Chargebacks for
include both the purchase amount and the Cash Over amount. "non receipt of requested item"in most cases,cannot be reversed. Bank is not obligated to
(c) PayPaITM If Merchant has chosen to accept PayPal Payment Card provide provisional credit,to Merchant for any Retrieval Request and may suspend or
Transactions in the Merchant Application,Merchant must accept PayPal Payment Cards at discontinue any provisional credit in its sole and absolute discretion.
all Merchant establishments,including in payment for purchases of goods and services and 3 6 Equipment;Supplies;Displays.
for charitable contributions when properly presented for payment by a Cardholder.Subject Important Note.Merchant acknowledges and agrees that Merchant Bank and its affiliates
to this Section, a Merchant must create a Transaction Receipt for each PayPal Card have no duty,obligation or liability whatsoever for:(1)the POS Equipment,herein,(2)any
Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder. actions or omissions of Processor with respect to the POS Equipment;(3)failure of
(d)American Express. If Merchant has chosen to accept American Express®Cards in merchant to perform routine maintenance and updates to the POS Equipment;(4)any
the Merchant Application,Merchant must accept American Express Cards as payment for failure of merchant to adhere to standard security requirements as it relates to the POS
goods and services(other than those goods and services prohibited under Section 7 of the Equipment,or(5)any claims or disputes ansing out of the foregoing.
Operating Guide) sold, or(if applicable) for charitable contributions made, at all of its
establishments, except as expressly permitted by state statute. Merchant is jointly and (a) At Merchant's request,Processor will supply Merchant with point-of sale
severally liable for the obligations of Merchant's establishments under the Merchant equipment,including,but not limited to a terminal,router or other compatible or ancillary
Agreement In the event Merchant's American Express annual charge volume exceeds equipment,hardware or device(collectively"POS Equipment")that Merchant may need to
$1,000,000 in a rolling twelve month period or is greater than $100,000 in any three process and submit Transactions Processor will use good faith efforts-to program or
consecutive months,Merchant will be considered a High CV Merchant by American Express configure the POS Equipment to operate at the Merchant Outlets in compliance with the
and will be required to enter into a direct merchant card acceptance agreement with American Operating Rules; however, Processor makes no representations or warranties that
Express. Upon any conversion to a direct agreement with American Express,Merchant will Processor's programming of the POS Equipment furnished by Processor will operate in
be bound by American Express'then current Card Acceptance Agreement and to any pricing compliance with the Operating Rules. If Processor supplies Merchant with POS Equipment
and fees set by American Express. Merchant has the right to opt-out of acceptance of or other equipment,then.Merchant must return such equipment upon termination of this
American Express Cards at any time without affecting Merchant's rights to accept other card Agreement It is understood by the parties that if Processor has not provided free use
types If Merchant elects to receive messages from American Express regarding products, equipment,Sections 3 6(a)-(d)do not apply
services and resources available to it,as indicated on the Merchant Application,Merchant (b) The individual providing the terminal to Merchant is an employee of
agrees messages maybe sent by American Express to the phone numbers,fax numbers or Processor,unless otherwise identified as an independent sales contractor. Merchant
email addresses provided by Merchant. If a wireless number is provided,Merchant agrees acknowledges and understands that POS Equipment may be supplied to Merchant that is
communications maybe sent via SMS or text in addition to automated calls Merchant may the property of Processor and is being provided to Merchant for free use subject to the
opt out of receiving messages by contacting Processor. following conditions and requirements:
32 Operating Procedures for Transactions. In accepting Cards for the purchase of
Merchant's goods and services, Merchant shall comply with the requirements of the (i) Merchant shall be liable for a$495 fee for non-return of Processor
Merchant Agreement,including but not limited to the Operating Rules and the Operating supplied POS Equipment if Merchant terminates or ceases processing under the terms of this
Guide,as the same are revised from time to time Agreement before the expiration of the initial or renewal term of this Merchant Agreement
3.3 Submission of Valid Transactions. and fails to return the POS Equipment within ten days of termination or of ceasing
(a) ,Merchant will submit to Bank a Transaction only if the Transaction is made processing
or approved by the Cardholder who is issued the Card used for the Transaction Merchant (it) Merchant shall be liable for a$450 fee for non-return of Encryption
will not submit directly or indirectly(i)ariy Transaction that Merchant knows or should Exchange POS Equipment ifapplicable;
have known to be fraudulent or not authorized by the Cardholder;(u)any Transaction that (in) Merchant will be liable for any damages to the POS Equipment from
results from a transaction outside of Merchant's normal course of business,as described on the misuse or negligent use of the POS Equipment;
the Merchant Application;or(iii)any Transaction containing the account of a Card issued (tv) Merchant will be liable for any reasonable monthly fee as determined
to Merchant or any account numbers issued to Merchant's business owners,family members, by Processor for paper or other supplies provided by Processor for use with the POS
principals or employees for Transactions that do not represent a purchase of goods or services Equipment;
from Merchant or a credit transaction related to a purchase of goods or services from (v) Processor, at its absolute and sole discretion, may allow for one
Merchant terminal exchange at no charge,but may charge additional fees for subsequent exchanges;
(b) If at anytime the volume of Transactions substantially exceeds or decreases and,
from the projected annual volume stated on the Application,or if at any time Bank suspects ( The POS Equipment that s the property of Processor is provided"AS-
fraud,money laundering or violations of the Operating Rules,Bank may,in its sole and IS"and that Processor makes no warranty as to this POS Equipment's fitness for any
absolute discretion and in addition to other remedies that the Bank may have: (i)refuse to particular purpose(or any other Warranty)and disclaims any liability resulting from the POS
process the excessive or suspect Transactions;(ii)process the Transactions and retain the Equipment) Merchant's use n the POS Equipment
funds received from processing until such time as the excess or suspect Transactions are by All Processor and third party POS Equipment and services provided or
found to be valid or invalid and processed in accordance with the Operating Rules;(iii) procured by Processor under flus Merchant Agreement are provided to assist but Processor
suspend processing and/or terminate the Agreement;or(iv)amend the Merchant Agreement will, at Merchant's expense, use reasonable commercial efforts to assts[ Merchant r
to protect the interests of Bank enforcing any warranty offered by the third party supplier of such POS Equipment or
services
3 4 Payments to Merchant for Valid Transactions (d) Merchant acknowledges that Processor or a third party is supplying the POS
(a) Bank will provide provisional credit to Merchant for each undisputed and Equipment and that Merchant Bank shall have no responsibility or liability for the POS
valid Transaction which Merchant submits to Bank by crediting Merchant's Settlement Equipment supplied to Merchant.
Account, provided Bank has received settlement for the valid Transaction through the (e) Merchant will use only the forms for Transactions and electronic processing
Interchange procedures specified by the Card Association applicable to the Card used for the formats provided or approved in advance by Bank. Bank may change the forms from time
Transaction(Bank does not provide payment for all Card types for which Authorization to time,and,upon notification,Merchant will comply with any changes. Merchant will use
services are provided). Bank is not obligated to provide provisional credit to Merchant for
Page 2 of9 UNIVMERAGMT v18 0119
Transaction forms or materials provided by Bank only for Transactions which Merchant degree of care to maintain the confidentiality of Confidential Information that it uses for its
submits to Bank. own similar information,but in no event less than a reasonable degree of care.The foregoing
(f) Merchant may not(i)indicate or imply that the Card Associations or Bank obligations shall not apply to any information that(x)is received from any third party source
endorses any Merchant goods or services,(u)refer to a Card Association or Bank in stating that is properly authorized to disclose it without restriction, (y)is or becomes generally
eligibility for Merchant's products,services or membership,or(iii)use any marks,symbols known to the public by publication or some other means other than a breach by Merchant or
or logos owned by any Card Association or Bank for any purpose other than those permitted its employees of any agreement or confidentiality obligations,or(z)is required by law to be
in the Operating Rules or the Operating Guide,provided that any use of Bank's marks, divulged,provided that the request is proper and the disclosure does not exceed that which
symbols or logos shall be in accordance with and subject to any branding guidelines provided is required In the case of(z),Merchant will provide prior notice thereof and cooperate with
by Bank Merchant acknowledges that Merchant Bank and Processor shall remain the sole Bank to limit disclosure Upon Bank's request,and upon termination or expiration of the
and exclusive owners of their respective intellectual property and Confidential Information Merchant Agreement, Merchant shall return or, only if requested by Bank, destroy all
(defined below) Except to the extent expressly provided herein, no rights to Bank's Confidential Information in its possession or control Merchant acknowledges that a breach
intellectual property or Confidential Information are granted hereunder,and all rights therein of this Section 5 may cause Bank irreparable injury and that Bank may have no adequate
are expressly reserved. remedy at law Accordingly,Bank may seek provisional or injunctive relief in addition to
3 7 Europay/MasterCardfVisa("EMV")Chip Card Compliance. Merchant agrees that any other rights or remedies
if Merchant does not use POS Equipment that has been certified EMV chip card compliant 5.2 Transaction Receipts. Merchant will retain in a secure and confidential manner
and enabled or when a lost or stolen clup and PIN card is used at an EMV enabled terminal original or complete and legible copies of each Transaction Receipt, and each Credit
capable of processing chip and signature only,Merchant may be liable for payment of any Transaction Receipt required to be provided to Cardholders,for such period as required by
transactions submitted for chargeback by the applicable EMV chip card issuer(s)due to lost, law or the Operating Rules Merchant shall render all materials containing Cardholder
stolen and never-received-issue fraud claims. Account Numbers unreadable prior to discarding Merchant is responsible for ascertaining
whether applicable law requires copies retained by Merchant to truncate card numbers and
4. MERCHANT'S WARRANTIES. Upon signing the Merchant Application,and each suppress expiration dates,and for complying with all such laws
time Merchant submits a Transaction,Merchant represents and warrants that 53 Storage. Merchant will store Transaction Receipts and Credit Transaction
4 1 Merchant has abided by the Merchant Agreement,and all applicable laws,the Receipts in an area limited to selected and authorized personnel,and when record-retention
Operating Rules and the Operating Guide; requirements have been met,Merchant will destroy the records so that the same are rendered
42 Each statement made on the Merchant Application was true as of the date Merchant unreadable
signed the Merchant Application agreeing to be bound by the Merchant Agreement, 5 4 Merchant Servicers and Agents.Merchant must notify Bank and receive Bank's
4.3 There have been no materially adverse changes in information provided in the approval prior to engaging any Merchant Servicer or Agent in connection with Merchant's
Merchant Application oK in Merchant's financial condition,or management; acceptance of Cards or the submission of Transactions to Bank.Merchant shall provide
44 Merchant does not do business under a trade name or style not previously disclosed Merchant Bank and Processor at least sixty days advance written notice of Merchant's
in writing,and there has been no change in the nature of Merchant's business or the product election to use a Merchant Servicer or Agent. Merchant Bank and/or Processor may
lines that Merchant sells not previously disclosed; individually approve or deny the use of a Merchant Servicer or Agent in their sole and
4.5 The Transaction is genuine and arises from a bona fide sale of merchandise or absolute discretion and at any time.If a Merchant Servicer or Agent is required to certify,
sregister,or act in any fashion pursuant to the Operating Rules or Operating Guide,Merchant
services by Merchant,represents a valid obligation for the amount shown on the Transaction
Receipt and does not involve the use of the Card for any other purpose, shall cause such Merchant Servicer or Agent to cooperate with Merchant Bank in completing
any steps required for registration and/or certification and/or action. Merchant is solely
4.6 Merchant has title to the Transaction and Transaction Receipt,there are no liens or responsible for any and all applicable fees,costs,expenses and liabilities associated with
other encurnbrances on it,and Merchant has the authority to convey the Transaction for such registration and/or certification and/or action. Bank shall in no event be liable to
processing; Merchant or any third party for any actions or inactions of any Merchant Servicer or Agent
47 The Transaction is not subject to any dispute,set-off or counterclaim, used by.Merchant,and Merchant hereby expressly assumes all such liability.
4.8. The Transaction has not been previously presented for,processing unless allowed Merchant will immediately notify Bank if Merchant decides to use electronic authorization
by the Operating Rules or the Operating Guide, or data capture terminals provided by any entity other than Bank or its authorized designee
4.9 Each statement on the Transaction Receipt is true,and Merchant has no knowledge ("Third Party Terminals")to process Transactions,including leasing a terminal from a third
of facts that would impair the validity or collectability of the amount of the Transaction, party If Merchant elects to use Third Party Terminals:(a)the third party providing the
4.10 The person who executes the Merchant Application on behalf of Merchant has the terminals will be Merchant's Merchant Servicer in the delivery of Transactions to Bank;and
full power and authority to execute the Merchant Application and to enter into the Merchant (b)Merchant assumes full responsibility and'liability for any failure of that third party to
Agreement; comply with the Operating Rules,Operating Guide,applicable laws,rules or regulations or
the Merchant Agreement Bank will not be responsible for any losses or additional fees
4.11 The Merchant Agreement is the legal,valid,and binding obligation of Merchant incurred by Merchant as a result of any error by a third party agent or a malfunction in a
enforceable against Merchant in accordance with its terms; Third Party Terminal.
4.12 Merchant shall submit Transactions only in accordance with the information The use of a Merchant Servicer or Agent or software or systems provided by a Merchant
contained in the Merchant Application and the Merchant Agreement, Servicer or Agent that has connectivity to the Internet poses an increased risk,and Merchant
4.13 Merchant has the power and authority to authorize the automatic funds transfer assumes all liability for such increased risks.If Merchant utilizes software or hardware with
provided for in the Merchant Agreement, a connection to the Iritemet such hardware or software interacts in any capacity with the
4.14 The Settlement Account is owned and controlled by Merchant and is a valid provision of services contemplated pursuant to this Merchant Agreement,Merchant is solely
account for processing debit and credit transactions under the Merchant Agreement; liable without limitation for any and all consequences of such interaction
4.15 Merchant is not(i)a Sanctioned Person,(ii)located in or operating under a license 5 5 Security. Merchant agrees and shall ensure that Merchant Servicers and Agents
issued by a Iunsdiction whose government has been identified by the US Department of utilized by Merchant provide the same levels of secunty as those required of Merchant,and
State as a sponsor of mtemational terrorism under 22 U.S.0 2371 or 50 U S C.App.24050, that such Merchant Servicers and Agents transmit data in accordance with-(a)the required
(iii)located in or operating under a license issued by a jurisdiction that has been designated format(s)of the Card Associations;(b)the Operating Rules,and(c)the requirements of
as non-cooperative with international anti-money laundering principles or procedures by an Bank.Merchant must have a written contract between Merchant and its Agent or between
intergovernmental group or organization of which the U.S is a member,or(iv)located in or Merchant and the Merchant Servicer that stipulates adherence to the provisions of such
operating under a license issued by a jurisdiction that has been designated by the U.S information security requirements. Merchant's written contract with any such third party
Secretary of Treasury pursuant to 31 U.S C.5318A as warranting special measures due to must contain provisions obligating the third party to comply with applicable law,with CISP
moneylaundering concerns;and and SDP and DISC and PCIDSS,PA-DSS,PIN and PED security requirements if applicable,
4.16 Merchant will immediately notify Merchant Bank and Processor in writing of any and all other Card Association requirements pertarmng to confidentiality and security and
material changes to any information provided herein including but not limited to a change in integrity of Cardholder and Card transaction data,with all rules prohibiting storage of certain
Merchant's legal entity,location,business type,or the types of goods and services offered Card transaction data,and with all other applicable Operating Rules Merchant will only
for sale by Merchant allow Merchant Servicers or Agents to have access to cardholder data for the purposes that
are authorized by the Operating Rules. Any fees,fines or penalties from noncompliance will
5. CONFIDENTIALITY;DATA SECURITY. be passed to the Merchant Merchants processing less than 1 million annual Visa transactions
5.1 Confidentiality.Merchant will treat as confidential.(r)the terms of the Merchant and using third parties for POS application,terminal installation and integration must engage
Agreement;(it)all information or data,of whatever nature,relating to Bank(including its Payment Card Industry(PCI)Qualified Integrator Reseller(QM)professionals to install,
operations,policies,procedures,accounts and personnel)accessed or used by or disclosed to integrate,and support point-of-sale applications and termunal installation and integration
Merchant in connection with the Merchant Agreement;(in)Processor's IRS W-9 form,and Merchant shall indemnify and hold Merchant Bank and Processor harmless against losses or
(iv)all information or data that is proprietary to a third party(including Bank's customers damages ansmg from the acts or omissions of Merchant Servicers or Agents engaged by
and contractors)and that Bank is obligated to treat as confidential,accessed or used by or Merchant.
disclosed to Merchant in connection with the Merchant Agreement (individually and 5 6 Loss or Theft. Merchant must immediately notify Merchant Bank and Processor
collectively,"Confidential Information") Merchant shall not use or disclose Confidential of any suspected or confirmed loss or theft of materials or records that contain Cardholder
Information without Bank's prior written consent. Merchant may only disclose Confidential Account Numbers or Card Transaction information In the event of a suspected or confirmed
Information to Merchant employees who have a need to know such information in loss or theft Merchant shall provide immediate access to all facilities,systems,procedures,
connection with Merchant's performance hereunder and who are bound to confidentiality equipment, and documents as may be deemed appropriate by Bank or its designated
restrictions no less restrictive than those herein Merchant shall exercise at least the same representatives, regulators or auditors for inspection, audit, and copying as deemed
Page 3 of9 UNIVMERAGMT v18 0119
appropriate by both Merchant Bank and Processor in their individual sole discretion. change in the type or nature of the business carred out by Merchant or otherwis:required to
Merchant shall be responsible for all costs associated with such inspection, audit, and be provided to Bank
copying however such costs may occur 7 3 Other Processors. To the extent permitted by applicable law,Merchant agrees
57 Merchant authorizes Bank to release its name and address to any third party whom that it will not participate in a Card Program with another financial institution or processor
the Bank determines needs to know such information in order for Bank to perforin the Card without Bank's written approval
Program services under this Merchant Agreement and who has requested such information
5 8 Merchant will not (a)provide Cardholder Account Numbers,personal Cardholder 8 CREDIT REPORTS AND OTHER INFORMATION.
information or Transaction information to anyone except Bank,the Card Associations,or 8.1 Reports About Merchant From time to time,Bank may obtain credit and other
Minformation on Merchant owners and officers of Merchant and any and all personal
Merchant's Merchant Servicers or Agents for the purpose of assisting Merchant in
completing Card Transactions,or as specifically required by law;(b) retain or store Card guarantors of Merchant,from others(such as customers and suppliers of Merchant,lenders
Magnetic Stripe,CV V,CVV2,CVC2 or CID data(including Track Data)subsequent to and credit reporting agencies),and furnish information on Merchant's relationship with Bank
Authorization for a Transaction; (c) sell, purchase, provide or exchange Card Account and Bank's experience with Merchant to others seeking the information
Number information to any third party without the Cardholder's consent,or to any entity 8.2 Reports from Merchant Merchant will provide Bank with updated business and
other than Merchant's Merchant Servicers or Agents,Bank,the Card Associations,or in financial information concerning Merchant, including financial statements, tax returns,
response to valid legal process or subpoena;or(d)release any Cardholder information over evidence of required licenses and other information and documents Bank may reasonably
the telephone under any circumstances request from time to time. Merchant shall further provide Bank such information as it may
5.9 Merchant may not in any event, including its failure, including bankruptcy, request for the making of insurance claim,regulatory or other filings related to Merchant's
insolvency, or other suspension of business operations, sell, transfer, or disclose any activity pursuant to this Agreement.All material marked"confidential"which Bank receives
materials that contain Cardholder Account Numbers,personal information or Transaction from Merchant will be used only by Bank or Card Association in performing the Card
Program services under this Merchant Agreement or related services and reporting Bank
information to third parties. In the event that Merchant's business fails or ceases to exist,
Merchant is required to return to Bank all such information or provide proof of destruction and any Card Association,regulator,auditor or any other entity having authority may audit
of this information to Bank Merchant's records relating to this Merchant Agreement. Merchant shall provide all
documentation,information or other inspection rights requested by Bank's regulators or
5-10'Merchant agrees to establish security procedures to protect Cardholder information -auditors or otherwise to enable Bank to meet Requireffients of Law. With6ut limiting the
and comply with the Visa Cardholder Information Security Program(CISP),MasterCard's generality of the foregoing,Merchant understands and agrees that if,at the time of signing
Site Data Protection(SDP)Program,Discover Information Security Compliance(DISC), this}Merchant Agreement Merchant is undergoing a forensic investigation,Merchant must
American Express Data Security Requirements, the Payment Card Industry (PCI) Data notify Bank and fully cooperate with the investigation until it is completed
Security Standards,and applicable laws pertaining to the privacy an&security of personal 8.3 Information Merchant authorizes Bank to release and use information collected
information(including,without limitation,and to the extent applicable,those of non-U S in connection with Bank's provision of services to the Merchant contemplated in the
governmental authorities) Detailed information about PCI DSS can be found at the PCI Merchant Agreement,to third parties that provide services to Bank or Merchant or to any
DSS Council's Website*www.pcisecudtystandards org.The Card Associations or Bank,and third party that requests and has a reason to know such information,including but not limited
the respective representatives, may inspect the premises of Merchant or any Merchant to the Card Associations,and any third party having regulatory control over the parties.
Servicer or Agent engaged by Merchant for compliance with security requirements
Merchant acknowledges that any failure to comply with security requirements may result in 9. ASSIGNMENT;BANKRUPTCY.
the imposition of restrictions on Merchant or the permanent prolubition of Merchant's 9 1 Assignment The Merchant Agreement is binding upon the successors and assigns
participation in Card acceptance programs by the Card Associations. Merchant shall of Bank and Merchant Merchant will not assignor transfer(including by merger,change
indemnify and hold Bank harmless against any losses or damages ansing from Merchant`s of control or operation of law)the Merchant Agreement(in whole or in part)to another
failure to comply with security procedures and any losses or damages ansing from or related person or entity without Bank's prior written consent and any purported assignment made
to Merchant's acts or omissions that result in a breach of data security,including but not without Bank's consent will be void.
limited to Merchant's non-participation in any breach security program Processor may offer. 9 2 Bankruptcy.
5 11 Processor acknowledges that it will maintain compliance with all applicable PCI (a) Merchant will notify Bank immediately if any bankruptcy, insolvency or
DSS requirements similar petition is filed by or against Merchant Merchant acknowledges that this Merchant
5 12 Federal regulations enacted pursuant to the USA PATRIOT Act and other Agreement constitutes an executory contract to extend financial accommodations as defined
in I 1 U S C §365(c)(2)and that the Merchant Agreement cannot be assumed or assigned in
applicable laws require financial institutions with which Processor has relationships to verify
the identity of every person who seeks to open an account with a financial institution As a the event bankruptcy, bankruptcy Merchant and Bank agree that in the event of Merchant's
result of Merchant's status as an account holder with Merchant Bank,Merchant shall provide Agreement. Bank shall be entitled to suspend further performance under this Merchant
documentary verification of Merchant's identity,such as a driver's license or passport for an Agreement.
individual and certified copy of organization documents for an entity in manner acceptable (b) Merchant acknowledges and agrees that in the event of a bankruptcy
to Bank Bank reserves the right to verify Merchant's identity through other non- proceeding,Merchant must establish a Reserve Account or maintain a previously established
documentary methods as Bank deems appropriate in its sole discretion. Bank may retain a and then current Reserve Account in amounts required by Bank and in accordance with any
copy of any document it obtains to verify Merchant's identity with the financial institution. Reserve Account provision specified in this Merchant Agreement Bank will have the right
to setoff against the Reserve Account for any and all obligations which Merchant may owe
6. OPERATING RULES. Bank,without regard as to whether the obligations relate to Transactions initiated or created
6 1 Merchant must comply with the Operating Rules,as the same may be amended before or after the filing of the bankruptcy petition
from time to time.The Operating Rules may change with little or no advance notice to 10.AMENDMENTS;WAIVERS.
Merchant and Merchant will be bound by all such changes If Merchant objects to any
change in the Operating Rules,it must immediately stop accepting new Transactions for 10.1 Amendments.Unless otherwise provided for in this Merchant Agreement,Bank
Cards governed by the change. The Operating Rules will govern in the event that there is may amend this Merchant Agreement at any time by providing Merchant with fifteen days'
any inconsistency between the Merchant Agreement and the Operating Rules However, prior notice by (a)sending Merchant written notice of such amendment,or(b)posting such
nothing in the Merchant Agreement shall be construed to impose on Merchant a requirement amendment to the Processor web site and providing Merchant with electronic notice as
(including a requirement under the Operating Rules)which is prohibited by mandatory provided in Section 2 3 Merchant acknowledges and agrees that notices hereunder,whether
provisions of applicable law(i.e,where the applicability of such provisions of law to the electronic or paper,may be provided to Merchant in the form of messages attached to
Merchant Agreement, and of the law's prohibition to the particular requirement which Merchant's monthly billing statements to the extent permitted by applicable Laws and
otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by Operating Rules The amendment will become effective unless Bank receives Merchant's
agreement),but the requirement hereunder shall be construed to continue in effect and to be notice terminating this Merchant Agreement before the effective date Bank may amend this
imposed on Merchant in all respects and at all times to the fullest extent possible without Merchant Agreement upon less than fifteen days'prior notice if Bank reasonably determines
violating the law's prohibition,with only those particular applications of the requirement immediate modification is required by Requirements ofLaw,Operating Rules or any adverse
which would violate the law's prohibition deemed severed from the provisions hereof change in Merchant's financial condition. Amendments submitted by Merchant will bind
62 Operating Rules of the Debit Networks may differ among them with respect to the Bank only if in writing and approved and signed by Bank's authorized officer(s).
Transactions they allow. Bank, at its discretion, may require that the most restrictive 10 2 Waivers. Bank's failure to enforce this Merchant Agreement will not waive
requirements of one Debit Network apply to all of Merchant's On-line Debit Card Bank's rights under this Merchant Agreement Waivers of any provision of flus Merchant
Transactions,regardless of Card type. Agreement must be in writing and signed by Bank. A waiver in one instance will not apply
to other occasions unless that intent is clear from the signed waiver.
7. MERCHANT'S BUSINESS;OTHER PROCESSORS.
7 1 Compliance With Laws. Merchant will comply with all Requirements of Law 11.TERM;TERMINATION.
and regulations,including but not limited to laws and regulations regarding anti-money 11.1 Term/Renewal. The initial term of this Merchant Agreement shall be for the term
laundering compliance,in completing Transactions,submitting them to Bank,performing its of three years(the"Initial Tenn")commencing on the earlier date of the presentation of the
obligations under the Merchant Agreement,and otherwise conducting its business. first Transaction,including any test Transaction,by Merchant to Bank or the date Bank
7 2 Change in Name or Business. Merchant will give Merchant Bank and Processor approves the Merchant Application By either Merchant's signature on the Merchant
Application or
at least thirty days'prior written notice before any change in Merchant's name or location, Merchant's processing a Transaction with Bank, Merchant confirms
t
any change in ownership or management of Merchant's business, any sale, assignment, acceptance of the Merchant Agreement. At the expiration the Initial Term,this Merchant
y
rental,lease or transfer of ownership of any location that accepts Cards,or any material Agreement will automatically renew for successive one year periods (each a"Renewal
Term"and collectively with the Initial Term the"Tenn")unless a party provides the other
change in information concerning Merchant in the Merchant Application, and material
Page 4 of9 UNIVMERAGMT vt8 0119
parties with notice of its intent not to renew the Merchant Agreement at least ninety days (t) Upon termination,Merchant's rights to complete Transactions and submit
prior to the expiration of the then current term. them to Bank,and to use Transaction form or formats,promotional material and any other
112 Termination. items provided by Bank, will cease. Termination of the Merchant Agreement will not
(a) Termination without Cause Merchant Bank or Processor or Merchant Bank's terminate the rights and obligations of Merchant and Bank relating to acts or omissions
or Processor's designated representative may terminate the Merchant Agreement as to all occurring before termination,including for example,any Processing Fees or other service
Card types or individually specified Card types,without cause,upon thirty days advance fees owed to Bank,any Transactions processed for Merchant by Bank(whether before or
written notice after termination), Merchant's Chargeback and indemnity obligations, and the Security
(b) Termination for Cause by Bank Merchant Bank or Processor or Merchant Interest granted to Bank in the Merchant Agreement.
Bank's or Processor's designated representative may terminate the Merchant Agreement in (g) It is understood that a file for terminated merchants referred to as Member
its sole and absolute discretion,effective immediately,upon written,electronic or oral notice, Alert to Control lhgh-Risk Merchants("MATCH"), formerly known as the Terminated
except as otherwise stated in the Merchant Agreement,to Merchant if Merchant Bank or Merchant File("TMF")is managed and maintained by MasterCard and utilized by the Card
Processor reasonably determines that any of the following conditions exists. Associations and acquiring banks to identify the names of any business(and its principals)
(i) Merchant has violated any provision of the Merchant Agreement that have been terminated for certain reasons, including fraud, depositing excessive
counterfeit paper,excessive unauthorized transactions,excessive chargebacks,depositing
(n) There is a material adverse change in Merchant's financial condition, paper for others(laundering),bankruptcy or breach of a Merchant Agreement Merchant
material change in Merchant's processing activity,processing activity inconsistent with the acknowledges that Merchant Bank or Processor is required to report Merchant to the
Merchant Application,or Merchant Bank or Processor determines in its sole discretion that MATCH(and/or on the Consortium Merchant Negative File(the CMNF)published by
Merchant's processing activity could result in a loss to Bank Discover®Network) if the Merchant Agreement is terminated for any of the foregoing
(iii) A petition in bankruptcy has been filed by or against Merchant, reasons or other reasons as may be modified by the Card Associations Merchant agrees and
Merchant is generally unable to pay its debts as they become due,a receiver,custodian, consents to such reporting in the event of the termination of the Merchant Agreement for any
trustee,liquidator or similar official is appointed for a substantial portion of Merchant's of the foregoing reasons
business,there is a general assignment for the benefit creditors,or the business terminates. (h) Sections 2.3,3,4,5,6,7,8 I,9.1,10 2,11,12,13,14,15,16.3,16 4 17,18,
(tv) Any information which Merchant provided to Bank, including 19,20 and 22 will survive termination of the Merchant Agreement.
Merchant Application Information,was false,incomplete or misleading when received,or
has materially changed since Merchant provided such information 12.SETTLEMENT ACCOUNT.
(v) At any time during the term of the Merchant Agreement,Merchant has 12 1 Settlement Account Required. Merchant must maintain a Settlement Account in
had a monthly ratio of Chargebac(Cs tc Transactions exceeding one percent,or Chargebacks Merchant's name in satisfactory condition at a depository institution under arrangements
are in excess of three percent of any monthly dollar amount of Transactions acceptable to Bank The Settlement Account will be subject to the provisions of Section 14
(vi) There is an overdraft for three days or more in the Settlement Account, of this Merchant Agreement
or overdrafts in the Settlement Account are otherwise excessive 12 2 Minimum Balance. Merchant agrees to maintain a minimum balance of funds in
(vii) Merchant or any of Merchant's officers or employees has been the Settlement Account as Bank may specify to Merchant in writing from time to time
involved in processing Transactions with Bank or other parties ansing from fraudulent or 12 3 Provisional Credits. Subject to the terms and conditions of the Merchant
otherwise unauthorized transactions. Agreement,Bank agrees to provisionally credit Merchant for each Transaction that Bank
accepts from Merchant Merchant agrees that Bank may charge or debit the Settlement
(viii) Merchant is or will be unable or unwilling to perform its obligations
Account for the amount of any Transaction processed under the Merchant Agreement,or any
under the Merchant Agreement or any applicable laws
agreement Bank may have with any Merchant Affiliate,that results in a Chargeback,or for
(ix) Merchant has failed to pay Bank any amount when due any Credit Transaction Receipt or other reimbursement or Processing Fees or other Merchant
(x) Merchant has failed to promptly perform or discharge any obligation obligation to which Bank may be entitled under the Merchant Agreement.
under the Merchant Agreement,the Settlement Account or the Reserve Account 12.4 Audits and Adjustments. Merchant agrees that Bank may audit all Transaction
(xi) Any,of Merchant's representations or warranties made in connection calculations and that Bank shall have the right, without notice, to make withdrawals,
with the Merchant Agreement was not true or accurate when given. deposits,or other adjustments to or from the Settlement Account for any deficiencies or
(xii) -Merchant has defaulted'on any agreement it has with Bank. overages
(xiii) 'Bank is served with legal demand,order or process seeking to attach 125 Errors and Disputes.Bank shall be entitled to presume that any amounts the Bank
or garnish any of the provisional credits ansing out of or relating to the Merchant Agreement, pays to or debits from Merchant are correct unless Merchant disputes these by sending Bank
Merchant's funds or property in Bank's possession, written notice within thirty days of the date of the applicable statement containing any
(xiv) The Operating Rules are amended in any way so that the continued disputed payments or debits.
existence of the MerchantAgreement would cause Bank to be in breach of such Operating 12 6 POS Equipment. If Merchant chooses to rent or lease POS Equipment from
Rules. Processor or utilizes software provided by Processor for use in processing Transactions,
(xv) Any Guaranty supporting Merchant's obligations is revoked, Merchant agrees to pay Processor:(a)a pre-determined monthly rental fee,(b)any initial
withdrawn or terminated or altered in any way upfront costs as required,and(c)all applicable taxes for such POS Equipment or software
utilization
(xvi) Any governmental entity Initiates proceedings against Merchant,or 12.7 Settlement Account Closure If the Settlement Account Is closed,Bank or its
Bank reasonably believes that a governmental entity may do so. designated representative may terminate the Merchant Agreement,effective immediately,
(xvii) If any circumstances anse regarding Merchant or its business that upon written or oral notice(with written confirmation in the event of oral notice)unless
create harm or loss of goodwill to Bank or any Card Association. Merchant opens another Settlement Account acceptable to Bank Merchant may change the
(c) Teraunation for Cause by Merchant. Merchant may terminate the Merchant Settlement Account upon prior written approval by Bank, which approval will not be
Agreement in the event of a material breach of the terms of the Merchant Agreement by unreasonably withheld.
Bank,provided Merchant gives Bank written notice of any alleged breach and such breach 12 8 ACH Authorization. Merchant authorizes Bank or Its agents or designated
remains uncured for a period of thirty days following receipt of written notice by the Bank. representatives to initiate debit and credit entries and adjustments to the Settlement Account
(d) Damages for Early Termination. or the Reserve Account(described in Section 13 of the MPA)through the ACH settlement
(i) Bank and Merchant acknowledge and agree that in addition to all other process for amounts due under the Merchant Agreement. This authorization will remain in
remedies available to Bank under the Merchant Agreement or as otherwise available in law full force and effect until termination of the Merchant Agreement and the full and final
or equity,if the Merchant Agreement is terminated prior to the expiration of the applicable payment of all obligations of Merchant due under the Merchant Agreement. Merchant
Term of the Merchant Agreement for any reason other than for a material,uncured breach acknowledges and agrees that Bank will not be liable for any delays in receipt of funds,any
by Bank,Merchant agrees to pay Bank damages(the"-Damages")determined by adding an failure by Merchant to receive funds,or errors in debit or credit entries caused by Merchant,
account closure fee as follows: (1) $250 for Merchants with less than twelve months or third parties,including but not limited to any Card Association or any financial institution
remaining from the date of termination to the end of the then current Term,or,(2)$500 for
Merchants with more than twelve months remaining,or such portion of the foregoing as may 13.ADDITIONAL COLLATERAL SECURITY;RESERVE ACCOUNT.
be permitted by applicable law. As a condition for providing Card Program services,Merchant may be required to
(n) Merchant agrees that such Damages shall also be due to Bank if provide additional collateral security for Merchant's obligations hereunder,which additional
Merchant discontinues submitting Transactions for processing during the Term for a period collateral security shall be of a kind,and in amounts,satisfactory to Bank in Bank's sole
of ninety(90)consecutive days,and is not designated on the Merchant Application,or by discretion,and which shall be in addition to all other collateral provided for in Section 14
notice to Bank,as a seasonal merchant or as otherwise agreed to by Bank hereof Such additional collateral security may include,for example,(a)suspension of all of
(iii) Merchant acknowledges and agrees that the Damages are not a penalty or any portion of any provisional credit(s)ansmg or relating to the Merchant Agreement;(b)
Merchant funds or property that Bank has possession or control;(c)a letter of credit,if issued
but rather are a reasonable computation of the financial harm caused by the termination of in an amount and on terms acceptable to Bank by a letter of credit issuing bank acceptable
the Merchant Agreement by Merchant. to Bank,or(d)the pledge to Bank of a certificate of deposit owned by Merchant in amount
(e) Merchant Bank's or Processor's rights of termination under the Merchant satisfactory to Bank and provided all agreements(including agreements of third parties)in
Agreement are cumulative.A specific right of termination shall not limit any other right of form and substance satisfactory to Bank and all filings and/or other actions necessary in order
Bank to terminate the Merchant Agreement expressed elsewhere in the Merchant Agreement to perfect in Bank a continuing first priority security interest therein on terms acceptable to
Notice of termination may be given orally or in writing,if given orally,shall be confirmed Bank,are entered into,made and/or taken as the case may be Bank may require that all or
in writing,except as otherwise stated in the Merchant Agreement any part of the additional collateral be deposited in a Reserve Account,set forth in this
Page 5of9 UNIVMERAGMTv180119
Section 13,at anytime when (i)the Merchant Agreement,or the provision of Card Program I funds to satisfy any and all Processing Fees,Chargebacks, Credit Transactir;n Receipts,
services hereunder,shall have terminated for any reason or any party hereto shall have given Damages,and any and all additional fees,and sums sufficient to reimburse Bank for the
notice of termination thereof,or(it)there shall have occurred an event which entitles Bank amount of any fines, penalty amounts and charges due the Card Associations or other
to terminate the Merchant Agreement or the provision of Card Program services hereunder obligations or liabilities ansmg under the terms ofthe Merchant Agreement Ifno funds have
or which,with the giving of notice and/or the passage of time would entitle Bank to terminate been deposited into the Reserve Account before termination,Bank,at Bank's option,may
the Merchant Agreement or the provision of Card Program services hereunder,and Merchant notify Merchant to deposit funds into the Reserve Account upon termination ofthe Merchant
has not provided alternative additional collateral security of a kind, and in amounts, Agreement All provisions which apply to a pre-termination Reserve Account will apply
satisfactory to Bank as set forth above in this Section,or(Ili)neither(i)nor(u)above in this after termination,including replenishment of deficiencies The funds will be held by Bank
Section is applicable,but Bank has determined that additional collateral security is required, oc its designated agent for a period of not less than one hundred eighty days from the date of
either(a)immediately without demand to Merchant in order to mitigate any risk,loss or the last Transaction,including,but not limited to a chargeback transaction,processed under
damage to Bank,cardholder/consumer or Card Association or(b)Bank has requested that the Merchant Agreement,plus the period of any warranty,guarantee,and/or return policy on
Merchant provide same,and Merchant has failed to provide alternative additional collateral goods and/or services sold Bank will return the balance in the Reserve Account to Merchant
security of a kind,and in amounts satisfactory to Bank as set forth above in this Section. after Bank `reasonably determines that the risk of Chargebacks, Processing Fees or
Any additional collateral deposited in the Reserve Account shall be subject to the terms and Merchant's liabilities or obligations under the Merchant Agreement has ended and after
conditions of Section 14 and all other terns and conditions of the Merchant Agreement deducting all amounts that Merchant owes to Bank under the Merchant Agreement or any
relating to the"Reserve Account" Whenever Bank requires that additional collateral other agreement.
security be deposited in a Reserve Account,the following provisions of this Section 13 shall
apply: 14.SECURITY INTEREST.
14.1 Merchant's Grant of Security Interest.
13.1 Reserve During Term of Merchant Agreement. (a) To secure Merchant's performance of its obligations under this Merchant
(a) Merchant may be required to deposit, or Merchant Bank may deposit by Agreement,and any other agreement with Bank,Merchant grants Bank a security interest in
deducting from any provisional credit or payment due to Merchant or from any funds in the each Transaction and its proceeds,provisional credits,the Settlement Account,the Reserve
Settlement Account or any other deposit account of Merchant,into an account maintained Account and any other deposit account of Merchant with a financial institution,whether now
by Merchant Bank(or at another approved depository-institution)(the"Reserve Account"), existing or established in the future,and in the proceeds of all those accounts,any funds due
initially or at any tune in the future as requested by Bank, sums sufficient to satisfy to Merchant from Bank and any of Merchant's property held by Bank Bank may enforce
Merchant's current and/or future obligations as determined by Bank in its sole and absolute these security interests without notice or demand. The security interests granted under this
discretion Merchant Agreement will continue after the Merchant Agreement terminates,until Merchant
(b) The Reserve Account will be separate from the Settlement Account.Merchant satisfies all its obligations to Bank
shall have no right of withdrawal from the Reserve Account The Reserve Account shall be (b) Furthermore,and with respect to any security interests granted herein,Bank
under the sole control of Merchant Bank,and Processor shall not have access to or hold funds will have all rights afforded under the Uniform Commercial Code,as the same may,from
in the Reserve Account Any and all earnings from deposits of Merchant to the Reserve time to time,be in effect in the State of Colorado,provided,however,in the event that,by
Account shall be the sole property of the Bank reason of mandatory provisions of law,any or all ofthe attachment,perfection or priority of
13.2 Reserve Account Deposits. the security interests granted herein is governed by the Uniform Commercial Code as in
(a) At anytime in Bank's sole and absolute discretion,Bank may(r)designate the effect in a jurisdiction other than the State of Colorado, then Bank will have all rights
minimum balance required to be deposited in the Reserve Account,(ii)require tfiat the afforded under the Uniform Commercial Code as in effect from time to time in such other
amount on deposit in the Reserve Account be increased,(tit)require that Merchant deposit, Jurisdiction for purposes ofthe provisions relating to such attachment,perfection or priority
or Merchant Bank may deposit for Merchant into the Reserve Account a percentage of,or a of the security interests,as well as any other applicable law
fixed amount from each Transaction processed,or(iv)otherwise determine the amount to be 14 2 Perfection of Security Interest. Upon request of Bank,Merchant will execute
deposited in the Reserve Account Bank at its sole and absolute discretion may require that one or more financing statements or other documents to evidence the security interests
each month Merchant deposit, or Merchant Bank may deposit by deducting from any granted to Bank under this Section 14 Merchant shall cooperate with Bank in obtaining any
provisional credit or payment due to Merchant or from any funds in the Settlement Account control agreement or similar agreement with a depository bank necessary to perfect the
or any other deposit account of Merchant sums into the Reserve Account no later than the security interests granted herein. In addition, Merchant agrees that its signature on the
twentieth day of the month. Bank shall notify Merchant as to the amount of the funds to be Merchant Application will be considered Merchant's signature agreeing to any control
deposited each month. agreement as defined in Article 9 ofthe Uniform Commercial Code among Merchant,Bank
(b) Merchant acknowledges and agrees that the Reserve Account may contain and any other financial institution under which Bank,Merchant and any other financial
both funds deposited by Merchant and funds of other merchants ofthe Bank. institution agree to the disposition of funds in the Settlement Account,the Reserve Account
13.3 Deductions from Reserve Account. If funds are not available in the Settlement or any other deposit account without further consent by Merchant.
Account,Bank without prior notice to Merchant may deduct from any provisional credits or 15.CUSTOMER CLAIMS. To the extent that Bank has paid or may pay a Chargeback or
payment due to Merchant that are maintained in the Reserve Account any current or future Credit Transaction Receipt,Merchant will be obligated to reimburse Bank for any sums Bank
obligation of Merchant to Bank under the Merchant Agreement,including all Processing pays If Merchant does not reimburse Bank,Bank will have all ofthe rights and remedies of
Fees,Chargebacks,Credit Transaction Receipts,Damages,and any and all additional fees Cardholders,including the Cardholders'rights under 11 U.S.0 §507(a)(6) Bank may assert
and obligations under the terms ofthe Merchant Agreement,and sums sufficient to reimburse any claim on behalf of a Cardholder individually or on behalf of all Cardholders as a class
Bank for the amount of any fines,penalty amounts and charges due the Card Associations.
13 4 Replenishment of Reserve Account Deficiencies.Whenever the balance in the 16.PROCESSING FEES.
Reserve Account is less than the minimum balance required,or is otherwise deficient, 16.1 Fee Schedule. Merchant will pay Processing Fees in the amount specified in the
Merchant Bank may,without prior notice,deposit the deficiency into the Reserve Account Fee Schedule attached to the Merchant Application or as otherwise provided for in this
by reducing any payment to Merchant required by the Merchant Agreement or deduct the Merchant Agreement or an Addendum thereto Monthly recumng Processing Fees will be
deficiency from the Merchant's or Merchant's Affiliate's Settlement Account or any other assessed upon approval of the Merchant Application.Bank may increase the Processing
deposit account of Merchant or Merchant Affiliate with another depository institution Fees,�including, without limitation, introducing new products or services, by giving
(including accounts of general partners if Merchant is a partnership)and deposit it into the Merchant fifteen days advance written notice effective for Transactions submitted on and
Reserve Account Merchant authorizes deductions from its accounts by ACH entry,sight after the effective date of the change
draft,preauthonzed check,reverse wire,or otherwise as Bank deems appropriate under the 16.2 Card Association Actions. Bank will not be required to provide Merchant with
circumstances.In addition,Merchant will deposit any deficiency into the Reserve Account fifteen days'notice of an increase in Processing Fees in the event that any Card Association,
within one Business Day after receiving Bank's oral or written request.Without limiting or any other entity having such authority increases the Processing Fees and the effective date
Bank's remedies,Merchant's failure to deposit any deficiency on time will permit Bank, for implementation of the increase in the Processing Fees is less than fifteen days. In such
without advance notice,to suspend or cease processing additional Transaction Receipts and cases, Bank shall make reasonable efforts including, but not hunted to, written
Credit Transaction Receipts Bank will give Merchant written notice of any suspension or correspondence, notification on statements, website notification, email, fax and direct
cessation ofprocessing contact via the telephone or otherwise, to provide reasonable notification to Merchant.
13.5 Additions to Reserve Account. If Bank has reason to believe that Merchant may However,failure to provide advance notice ofthe increase in Processing Fees will not affect
be liable to customers or to Bank for Chargebacks exceeding the balance in the Reserve Merchant's obligation to pay the increased Processing Fees The increase(s)in Processing
Account,Merchant Bank may:(a)immediately place in the Reserve Account provisional Fees shall be effective on the date specified by Bank
credits or payments due to Merchant and/or stop processing transactions for Merchant until 16 3 Government and Regulatory Actions. Bank will not be required to provide
such time as the extent of Merchant's obligations to Bank, or Merchant's liability for Merchant with fifteen days'notice for any increase in Processing Fees resulting from any
Chargebacks,or Merchant's liability to customers are known,and Bank no longer deems fine,charge,fee or cost incurred in connection with any state,federal or other regulatory
itself insecure,and/or(b)demand from Merchant an amount that in Bank's judgment is action,change in laws or regulations or escheatment of Merchant's funds. Bank shall make
needed to ensure payment of Merchant's obligations and liabilities.Merchant's failure to pay reasonable efforts including,but not'limited to, written correspondence, notification on
any amount will permit Merchant Bank or Processor or its designated representative to statements,website notification,email,fax and direct contact via the telephone or otherwise
terminate the Merchant Agreement immediately without advance notice. to provide reasonable notification to Merchant. However,failure to provide advance notice
13 6 Reserve Account After Merchant Agreement Terminates. Merchant Bank of the increase in Processing Fees as a result of any government or other regulatory actions
may continue to hold or deposit funds in the Reserve Account after termination of the will not affect Merchant's obligation to pay the increased Processing Fees. The increase(s)
Merchant Agreement,regardless of whether termination is by Merchant or Bank. Upon in the Processing Fees shall be effective on the date specified by Bank.
termination of the Merchant Agreement by Merchant or Bank,Bank may retain sufficient
Page 6of9 UNIVMERAGMT v18 0119
16 4 Payment. Processing Fees and other service charges,obligations or liabilities 20 1 Attorney Fees. Merchant and/or Guarantor will be liable for and will indemnify
owed by Merchant to Bank under the Merchant Agreement may be deducted by Merchant and reimburse Bank for all attorneys'fees,including in-house legal fees,and other costs and
Bank from amounts due Merchant,or from the Settlement Account or from the Reserve expenses paid or incurred by Bank in the enforcement of this Merchant Agreement or in
Account Merchant will pay the amounts due by the next Business Day if sufficient funds matters relating to this Merchant Agreement,or arising from any breach by Merchant of this
are not available in the Settlement Account. Merchant Agreement,or any other wrongdoing by Merchant or Guarantor In the event Bank
must engage in any recovery or collection efforts to collect any amounts due from Merchant
17.INDEMNIFICATION;LIMITATION OF LIABILITY;WARRANTY. to Bank,Merchant will reimburse Bank for all fees and expenses incurred in such collection,
17 1 Indemnification. Merchant shall mdemmfy Bank, including their respective plus reasonable administrative fees and expenses
officers,directors,employees,and agents,against and hold them harmless from any and all 20 2 Arbitration Merchant, Bank and any Guarantor will settle any dispute or
claims,demands,settlements,losses,damages,liabilities,costs and expenses of any kind controversy concerning or relating to this Merchant Agreement through binding arbitration
(including reasonable attorney's fees)of any party arising from or based upon any act or before a single arbitrator,held at Denver or Broomfield,Colorado in accordance with the
omission of Merchant, Merchant's employees, Merchant's designated representatives or provisions of the Federal Arbitration Act or any successor statute In interpreting the
agents,Merchant Servicers or Merchant's Agent(s)in connection with or arising out of this Merchant Agreement,which the arbitrator must do, the arbitrator shall be limited from
Merchant Agreement,the duties to be performed by Merchant pursuant to the Merchant revising,altering,or amending any term of the Merchant Agreement without the express
Agreement,any Transactions which Merchant submits to Bank(including Chargebacks),or written consent of the Bank and Merchant. Claims hereunder will be arbitrated on an
Merchant's violation of the Operating Rules,Operating Guide or any Requirements of Law. individual basis and,as such,the arbitrator's authority is limited to claims between the Bank
In the event that Bank is made a party to any litigation,proceeding,arbitration,bankruptcy and Merchant(and any Guarantor) alone. Merchant and Bank expressly agree that the
proceeding,or other legal process(collectively"Actions")commenced by any third parry, arbitrator may not consolidate orloin more than one person's or party's claims,and may not
Merchant shall protect and hold Bank harmless from and with respect to the Actions and otherwise preside over any form ofa consolidated or class proceeding or over claims brought
shall indemnify such party from and against all costs, expenses, and attorney's fees, in a purported representative capacity on behalf of the general public,other merchants or
including in-house legal fees,incurred or paid in connection with the Action,together with other persons or entities similarly situated Furthermore,the arbitrator may award relief
any judgments,settlements,losses,damages or other liabilities.Merchant shall indemnify, (including monetary,injunctive and declaratory relief)only in favor of the individual parry
defend,and hold harmless Bank from and against any hacking,infiltration,or compromise seeking relief and only to the extent necessary to provide relief necessitated by that party's
of Merchant's systems or the systems of Merchant, Merchant Servicers or Merchant's individual claim(s)
Agent(s),designated representatives,or other agents In the event that Bank is required to engage in any recovery or collection efforts to collect
17 2 Limitation of Liability.Bank will not accept responsibility for errors,acts,or any outstanding payment due and owing from Merchant and any Personal Guarantor under
failure to act by others,including but not limited to,Merchant Servicers,Agents,third party the Merchant Agreement and Guaranty and Merchant and/or any Personal Guarantor does
suppliers of software,equipment or services;or,banks,communication common carvers, not unconditionally proceed with arbitration in accordance with this Section 202 within 10
data processors or clearinghouses through which transactions may be passed,originated days after Bank sends a written demand for arbitration,Bank shall be entitled(but not
and/or authorized Bank will not be responsible for any loss,liability or delay caused by obligated)to initiate litigation in any state or federal court located in Denver or Broomfield
fires,earthquakes,war,civil disturbances,power surges or failures,acts ofgovemments,acts County,Colorado to recover any amount due and owing from Merchant to Bank
of terrorism,labor disputes,failures in communication networks;legal constraints or other
events beyond the control of Bank.Bank undertakes no duties to Merchant other than the 21.FINAL AGREEMENT.This Merchant Agreement and all applicable Addenda attached
duties expressly provided for in the Merchant Agreement,and any and all other or additional hereto, is the complete and final agreement between Merchant and Bank for the Card
duties that may be imposed upon'Bank in law or equity are hereby irrevocably waived and Program services covered by this Merchant Agreement and supersedes all prior or
released to the maximum extent permitted by law In any event,to the maximum extent contemporaneous negotiations, stipulations or agreements between them with respect
permitted by applicable law,Bank's cumulative liability to Merchant,whether arising in thereto. In the event of any conflict or inconsistency between this Merchant Agreement and
contract,tort(including,without limitation,negligence and strict liability)or otherwise,shall any other agreement between Processor or any of its affiliates and Merchant Bank or any of
not exceed the lesser of$10,000 or, the amount equal to the aggregate of monthly net its affiliates(but not Merchant),such other agreement shall control with respect to such
Processing Fees paid by Merchant in the three'month period prior to the month that the conflict or inconsistency If any provision of this Merchant Agreement is invalid or
incident giving rise to liability occurred. unenforceable,the other provisions remain effective.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO 22.CONTINUING GUARANTY.
EVENT SHALL BANK BE LLABLE FOR SPECIAL,INCIDENTAL,INDIRECT, 22.1 As a primary inducement to Bank to enter into the Merchant Agreement„and to
CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANk INTERRUPTION approve the Merchant Application of Merchant,the Guarantor(s),individually and severally,
OR LOSS OF USE,DATA,BUSINESS OR PROFITS,WHETHER OR NOT SUCH who signed on the Guarantor signature line(s)on the Merchant Application;agree to be
LOSS OR DAMAGES WERE FORESEEABLE OR BANK WAS ADVISED OF THE bound by all terms and provisions of the Merchant Agreement to the same extent and in the
POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED same manner as Merchant,and unconditionally and irrevocably,personally guarantee the
REMEDY HEREIN FAILS OF ITS ESSENTLALRURPOSE. continuing full and faithful performance and payment by Merchant of each and all of
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BANK Merchant's duties and obligations to Bank under the Merchant Agreement or any other
SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND,EXPRESSED agreement currently in effect or in the future entered into between Merchant onits principals
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF and Bank,as such agreements now exist or are amended from time to time,with or without
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON- notice to Guarantor(s).
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH 22 2 Merchant and Guarantor(s)further agree to be bound by the terms and provisions
RESPECT TO THE SERVICES PROVIDED HEREUNDER.WITHOUT LIMITING ofany Merchant Agreement between Bank and any Merchant Affiliate,regardless ofwhether
THE GENERALITY OF THE FOREGOING,BANK DOES NOT GUARANTEE OR such agreement currently exists or is executed,amended or supplement at some future date
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR- Merchant and Guarantor(s)unconditionally and irrevocably guarantee the full payment and
FREE. performance of each and all duties and obligations owed to Bank by Merchant Affiliate
18.NOTICES. Each notice required by the.Merchant Agreement will be in writing(hard pursuant to ariy Merchant Agreement:The provisions of Section 22 3 apply to the'guarantee
copy or electronic),except as otherwise stated in the Merchant Agreement,and will be by Merchant and Guarantor(s)of the Merchant Affiliate's obligations to Bank under any
effective when delivered,(a)to Merchant Bank at the address designated on the Merchant Merchant Card Processing Agreement.
Application, and the return address on Merchant's Card,processing statements, (b) to 223 Guarantor(s)understands that Bank,without notice to Guarantor(s),may from time
Processor at the address designated on the Merchant Application and(c)to Merchant at to time renew or extend the Merchant Agreement,modify rates,'limits,charges and fees,or
Merchant's address to which Bank mails Merchant's statements or at the electronic marl modify the amount or type of services provided to Merchant all of which may increase the
address provided by Merchant in the Merchant Application,or at such other address as any Guarantor's obligations under this Guaranty.Guarantor(s) further understands that Bank
party may provide by written notice to the other parties. Any address Merchant designates may proceed directly against Guarantor(s)without fust exhausting Bank's remedies against
may also be the address to which Bank marls Merchant's statements Delivery by facsimile Merchant,any other person or entity responsible to Bank or any security held by Bank This
transmission or electronic marl will be considered effective when the sender receives Guaranty is a continuing guaranty and will not be discharged or affected by the release or
electronic confirmation of the transmission. discharge of Merchant or the death of the Guarantor(s) This Guaranty will bind all heirs,
19.COLORADO LAW;JURISDICTION;VENUE. Merchant's offer to enter into this administrators,and representatives of the Guarantor(s)and may be enforced by or for the
Merchant Agreement is made in Broomfield,Colorado,this Merchant Agreement shall be benefit of any successor of Bank.To the fullest extent permissible under applicable law,
performed by Merchant in Broomfield,Colorado and governed by Colorado law,excluding Guarantor(s)waives any and all tights of subrogation,reimbursement or indemnity derived
its conflict of laws rules Merchant and Guarantor agree to bring any claim or action relating from Merchant,all other rights and defenses available to Merchant,and all other rights and
to the Merchant Agreement in binding arbitration as set forth in Section 20.2 below. Any defenses available to Guarantor(s) This Guarahty may not be o'tiiebmse revoked,suspended,
matters not otherwise subject to arbitration(such as,by way.of example only,injunctive withdrawn or terminated without the express written consent of Bank.
relief,action to recover any monetarylosses or damages from unpaid obligations of the 23. PRODUCTS AND SERVICES.
Merchant under the Merchant Agreement,or claims to enforce an arbitration award),shall Important Note. Merchant acknowledges and agrees that Merchant Bank and its affiliates
be brought in the state or federal courts located in Broomfield County,Colorado. All parties have no obligation or liability whatsoever for (1)the Products and Services described
irrevocably and unconditionally submit to the jurisdiction of such courts with respect to any herein, (2) any actions or onussions of Processor with respect to these Products and
such action. In the event that Bank is required to resolve a dispute with Merchant that Services,or(3)any claims or disputes arising out of the foregoing
requires any action under this provision,Merchant hereby agrees and consents to receive 23.1 If Merchant elects to receive any of the ancillary Products and Services listed on
service of process by certified mail. the Merchant Application(including but not limited to the Guardian Suite(and its related
20.ATTORNEY FEES;ARBITRATION. products), Payment Acceptance Applications (WebPASS, Multi-PASS, and/or Hosted
Page 7 of 9 UNfVMERAGMT v18 0119
Payments),and TransLink Insights either in various packages or on a product by product price or,if Merchant returns the equipment under the conditions specified herein,Merchant
basis,Merchant agrees to the following terms applicable to the relevant softvare licenses agrees to pay TMS's then current RENTAL FEE for the length of time Merchant had the use
(collectively, the "Licensed Software") Use of the Licensed Software is hunted to ofthe equipment.
Merchant's internal business purposes Title to and ownership of the Licensed Software 24.4 Merchant agrees to pay the Rental Fee on a per month basis as rental for the
remains with Processor and its suppliers Merchant may not(a)alter or modify the Licensed EQUIPMENT TMS may amend the Rental Fee on thirty(30) days written notice to
Software,(b)reverse engineer,decompile,disassemble,or in any way attempt to derive the Merchant. Submission by Merchant of a Transaction after such notice period shall be
source code for the Licensed Software,or(c)transfer the Licensed Software to any third evidence that Merchant has received the amended Rental Fee and has agreed to such
party or make the Licensed Software available to any third party as part of any time-sharing amended Rental Fee Merchant is supplied with monthly reports by Processor regarding the
or service bureau arrangement Merchant will not export or re-export the Licensed Software equipment. It is Merchant's sole responsibility to report any error or discrepancies detected
without the appropriate United States or foreign government licenses All express and by Merchant in writing to TMS within ninety(90)days following the end of the monthly
implied warranties regarding the Licensed Software by Processor and its suppliers to reporting period. After such period,Merchant will be deemed to have accepted the monthly
Merchant are disclaimed For U.S.Government End Users The Licensed Software is a reports as delivered.
"commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more 24.5 The Parties agree to each of the terms and conditions set forth herein and
specifically is_"commercial computer software"_and_"commercial_computer software acknowledge that such provisions are binding upon each of them,their successors,heirs and
documentation,"as such terms are used in 48 C.F.R.12.212(SEPT 1995). Consistent with assigns.
48 C.F R 12 212 and 48 C.F R 227.7202-1 through 227.7202-4(.TUNE 1995),the Licensed 24.6 Merchant understands that a telephone lack and other equipment may be required
Software is provided to U S Government end users(a)only as a commercial end item,and for its phone system to be compatible with equipment at Merchant's expense
(b)with only those rights as are granted to all other end users pursuant to the terms and 24.7 Upon expiration or termination of the EQUIPMENT AGREEMENT,Merchant
conditions herein The Licensed Software is only offered on terminals capable of supporting agrees to remove the rental equipment from its locations and deliver it to TMS at Merchant's
it cost in the same condition as when the rental equipment was installed,normal wear and tear
23 2 TransLink Insights. Merchant understands and agrees that these products and excepted. The Parties agree that the rental equipment is and will remain personal property
services are offered by Oto Analytics,Inc.d/b/a Womply("Womply"),and not by Merchant of TMS.
Bank or Processor Processor,Merchant Bank,and their affiliates are in no way responsible 24.8 Merchant hereby assumes the entire risk of loss,damage or destruction of the
for the actions,inactions,performance or nonperformance of Womply,or for disputes or equipment fronrany cause whatsoever,until the delivery of the rental equipment to TMS If
resolving disputes of any kind arising from the products and services provided by Womply the rental equipment is damaged,lost,or not returned to TMS,Merchant shall,at the option
Merchant understands and agrees that Merchant's access to the products and services of TMS, repair the rental equipment at Merchant's expense or pay TMS the current
hereunder are subject to Womply's acceptance of Merchant as a customer,and Merchant's replacement cost of the rental equipment
agreement to Womply's End User License Agreement Merchant hereby authorizes 24.9 Merchant hereby grants to TMS the right,during normal business hours,to enter
Processor and/or Womply to contact Merchant via phone,email,facsimile,or mail in regards any location under Merchant's control for the purpose of inspecting,repairing,or replacing
to the products and services hereunder rental equipment
24.TMS EQUIPMENT AGREEMENT. 24.10 Merchant shall and does hereby agree to indemnify and hold TMS,its agents,
Important Note Merchant agrees Merchant Bank is not a party to the TMS Equipment employees,successors and assigns harmless from any and all liability, damages or loss
Agreement and has no responsibility under it Merchant acknowledges and agrees that (including attorney fees and costs)arising out ofthe ownership,selection,possession,leasing
Merchant Bank and its affiliates have no obligation or liability whatsoeverfor-(1)products or renting, operation (regardless of where, how and by whom operated), control, use,
or services provided under the TMS Equipment Agreement,or(2)any actions or omissions condition(including,but not limited to,latent and other defects,whether or not discoverable
of TSYS Merchant Solutions,LLC("TMS')with respect to the TMS Equipment Agreement by TMS)maintenance,delivery and return of the equipment This indemnification and the
Merchant agrees that any claims or disputes arising out of the foregoing will be resolved obligations contained herein shall survive termination or expiration of EQUIPMENT
without involving Merchant Bank and that Merchant Bank is entitled to rely on Merchant's AGREEMENT.
agreements in this Section 24 24.11 Merchant shall keep rental equipment insured against all risks for not less than
THIS TMS Equipment Agreement("EQUIPMENT AGREEMENT"),by and between replacement costs of rental equipment,naming TMS as an additional insured as its interest
TMS,and"Merchant,"the name ofwhich is set forth in the Agreement,as defined herein, may appear.
shall become effective as of the date Merchant Application("Effective Date's 24.12 If this EQUIPMENT AGREEMENT is terminated,TMS shall have the right to
WHEREAS,TMS and Merchant shall hereinafter be referred to as the"Parties",and enter Merchant's locations for the purpose of recovering rental equipment
WHEREAS Merchant desires to purchase or rent equipment from TMS in order to accept 24.13 Neither Merchant nor any third party is authonzed to make any alterations,repairs
and process specified credit card transactions. or changes including programming changes to rental equipment Any personal property
NOW THEREFORE,in consideration of the mutual promises made herein,and other attached to rental equipment shall become part of the equipment. TMS will provide
valuable consideration,receipt and sufficiency of which are hereby acknowledged,the maintenance service to rental equipment during the term of the EQUIPMENT
Parties do hereby agree as follows• AGREEMENT. Merchant shall not allow any other person or entity to maintain or tamper
24 1 TMS agrees to sell or rent to Merchant and Merchant agrees to buy or rent from with rental equipment without the express written consent of TMS
TMS the equipment described in the Merchant Application or as added from time to time via 24.14 Merchant's nghts and remedies hereunder are exclusive and in lieu of all other
Merchant's request through Processor's customer service center TMS owns all nght,title rights and remedies TMS shall not otherwise be liable for any error,omission,delay,loss
and interest in all EQUIPMENT rented or sold to MERCHANT hereunder,provided that of data or records or disclosure of confidential information which may occur as a result of,
such right, title and interest will transfer to MERCHANT in the event MERCHANT or in any way be connected with,any use ofequipment or services provided by TMS pursuant
purchases the EQUIPMENT. The individual sales representative selling or renting the to this or any other agreement. In any event,TMS's liability to Merchant,whether arising
EQUIPMENT to MERCHANT is an employee of TMS.Merchant's payment for equipment in contract,tort(including,without lunrtation,negligence and strict liability)or otherwise,
or delivery of the equipment to Merchant will constitute Merchant's acceptance of the shall not exceed the lesser of the direct loss to Merchant or an amount equal to the aggregate
applicable following terms and conditions Payment for equipment and any related fees shall of monthly RENTAL FEES paid to TMS by Merchant in the six-month period prior to the
be due and payable on the Effective Date of this EQUIPMENT AGREEMENT if purchasing incident giving rise to liability. IN NO EVENT SHALL TMS BE LIABLE FOR SPECIAL,
equipment,monthly if renting,or upon an otherwise agreed upon date or payment schedule INCIDENTAL,INDIRECT,CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR
Merchant agrees to pay the fee(s)set out in the Agreement and as added from time to time. ANY INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS,
Merchant is responsible for all sales,use,excise and other taxes,including penalties and WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR TMS
interest,that may result from this transaction. The fees set forth in the Merchant Application WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF
related to this EQUIPMENT AGREEMENT are exclusive of any and all applicable taxes or WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
assessments,whether designated as sales taxes,use taxes,ad valorem taxes,GST/HST taxes, TMS is not responsible for any loss or damages whatsoever sustained by Merchant arising
VAT taxes or by some other name or designation,and including any interest or penalties as a result of any acts of God,strikes,flood,weather,shortages of parts or supplies or other
thereon,which may be levied or assessed by any governmental or taxing jurisdiction in events beyond its reasonable control.
connection with the performance of services or provision of matenals to Merchant by TMS. 24.15 TMS,NOT BEING THE MANUFACTURER OF THE EQUIPMENT,MAKES
In the event of the payment of or for any such tax,assessment or expense by TMS,Merchant NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH
shall in tum pay TMS for such items Merchant hereby authorizes TMS to debit payment RESPECT TO THE EQUIPMENT INCLUDING BUT NOT LIMITED TO- THE
from the Merchant's designated account established under the Agreement for items ordered MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY
herein if payment does not accompany order. PARTICULAR PURPOSE;THE DESIGN OR CONDITION OF THE EQUIPMENT;THE
242 Upon payment by Merchant to TMS of the entire purchase amount required herein, QUALITY OR CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP OF THE
TMS shall sell,transfer and assign the purchased equipment to Merchant for Merchant's use EQUIPMENT, COMPLIANCE OF THE EQUIPMENT WITH REQUIREMENTS OF
and benefit. All risks or expenses of loss,damage,or repair to the equipment shall be bome ANY LAW,RULE,SPECIFICATION OF CONTRACT PERTAINING THERETO,THE
by Merchant upon such transfer of title ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
24.3 If Merchant is renting equipment,Merchant agrees to pay Processor a monthly COPYRIGHT;THE ABSENCE OF LATENT OR OTHER DEFECTS,WHETHER OR
rental fee("Rental Fee") for the equipment until such time said equipment is returned to NOT DISCOVERABLE;THE ABSENCE OF ANY OBLIGATION BASED ON STRICT
TMS,which will be debited monthly from the Merchant's Settlement Account established LIABILITY IN TORT. UPON SALE OF THE EQUIPMENT TO MERCHANT,TMS
under the Agreement or billed separately to merchant if the Merchant's Settlement Account HEREBY ASSIGNS,TO THE EXTENT POSSIBLE,ALL WARRANTIES AND RIGHTS
no longer exists.MERCHANT may return the EQUIPMENT to TMS at any time during the OF TMS WITH RESPECT TO THE EQUIPMENT PROVIDED BY THE
AGREEMENT, at which time MERCHANT will no longer be responsible for future MANUFACTURER OF THE EQUIPMENT. TMS DOES NOT MAKE ANY EXPRESS
payments of the RENTAL FEE. If Merchant is purchasing the equipment via multiple OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH
payments and terminates the EQUIPMENT AGREEMENT prior to completing the monthly RESPECT TO THE MANUFACTURER'S WARRANTY.
purchase payments,then Merchant agrees to immediately pay the remainder of the purchase
Page 8of9 UNIVMERAGMTv180119
24.16 Except as expressly provided herein,Merchant may not assign its rights or delegate
its responsibilities regarding rental equipment under this EQUIPMENT AGREEMENT
without the prior written consent of TMS,which will not be unreasonably withheld
24 17 The Parties acknowledge and agree that this EQUIPMENT AGREEMENT was,
and shall be deemed to have been,made and delivered in Broomfield County,Colorado The
laws of the State of Colorado,without giving effect to its conflicts of law principles,shall
govern all matters(whether in contract,statute,tort or however characterized)arising out of
or relating to this EQUIPMENT AGREEMENT,including,without limitation,the validity,
interpretation, construction, performance and enforcement of the EQUIPMENT
AGREEMENT. The Parties agree that,in the event of any dispute regarding,arising out of
or relating to this EQUIPMENT AGREEMENT,the courts of the State of Colorado shall
have and be vested with personal jurisdiction over the Parties The Parties further agree that
any and all actions, claims, suits or proceedings arising out of or relating (directly or
indirectly)to this EQUIPMENT AGREEMENT shall be filed and litigated only in courts
located in Broomfield County,Colorado,and such courts shall have exclusive jurisdiction
over any action,claims,suit or proceeding arising out of or relating(directly or indirectly)
to this EQUIPMENT AGREEMENT If Merchant brings legal action against TMS for any
reason,Merchant shall commence the action within one(1)year of the date the error or the
incident giving rise to such action occurred.
24 18 No delay or failure by either Party to exercise any right under EQUIPMENT
AGREEMENT,and no partial or single exercise of that right,shall constitute a waiver of
fact or any other right,unless expressly provided herein
24 19 Neither Party shall be responsible for the costs incurred by the other for negotiating
or implementing this EQUIPMENT AGREEMENT and Merchant shall be responsible for
installation of the equipment
24.20 The obligations of all Parties hereto incurred prior to the effective date of
termination of EQUIPMENT AGREEMENT shall survive such ternmiation
24.21 In the event that any portion of EQUIPMENT AGREEMENT shall be held invalid
or unenforceable for any reason,it is agreed that any invalidity or unenforceability shall not
affect the remainder of the same and the remaining provisions shall remain in full force and
effect,and any court of competent jurisdiction may so modify any objectionable provision
of the same so as to render it valid,reasonable and enforceable
24 22 This EQUIPMENT AGREEMENT may only be amended or modified by a
subsequent written agreement by and between the Parties hereto.
24.23 Merchant hereby represents that the entering mto of this EQUIPMENT
AGREEMENT has been duly authorized by Merchant and that this EQUIPMENT
AGREEMENT constitutes a legal, valid and binding obligation of Merchant, and is
enforceable against Merchant in accordance with its terms.
24 24 This EQUIPMENT AGREEMENT constitutes the entire understandings of the
Parties as to the subject matter contained herein and supersedes all prior contracts,
agreements and negotiations whether oral or wntten.
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R � E
M AY 1 3 2019
Southold 'down Clerk