Payment Services Agreement
Payment Services Agreement
BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND US ARE RESOLVED, WHICH INCLUDE AN AGREEMENT TO SUBMIT ANY DISPUTE RELATED TO THE PAYMENT SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THIS AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS YOU AGREE NOT TO PROCEED WITH ANY DISPUTE AS PART OF A CLASS ACTION. SEE SECTION 12 OF THIS AGREEMENT FOR FURTHER INFORMATION.
SaleQuick is a payment facilitator and you are a submerchant or sponsored merchant, as those terms are defined by Mastercard International Incorporated (Mastercard), Visa Inc. (Visa), Discover Financial Services (Discover), American Express Company (American Express), each including applicable subsidiaries, and certain other payment card associations (collectively, Card Brands). This Agreement is consistent with the Card Brands’ requirement that Submerchant enter into a submerchant or sponsored merchant agreement with SaleQuick to receive Payment Services.
This Agreement is effective as of the date you confirm your acceptance by completing the SaleQuick Merchant Account registration process or by using the Payment Services (Effective Date).
This Agreement may subject you to an early termination fee if terminated prior to the end of the initial term. See Section 9.4 of this Agreement for further information.
1.1. ACH means a national automated clearinghouse system and an electronic fund transfer made through an ACH.
1.2. Authorization means an approval or the act of obtaining an approval through a Card Brand for an individual Transaction.
1.3. Brand Marks means the trade name, trademark, service mark, logo, and logo type of each Card Brand.
1.4. Brand Materials means any promotional or instructional materials provided to Submerchant that use or contain any Brand Marks.
1.5. Card means a valid credit, debit, charge, stored value, or payment card issued under license from a Card Brand, including physical, electronic, and virtual devices used to access a Card Brand.
1.6. Cardholder means any person authorized to use a Card or the accounts established in connection with a Card.
1.7. Cardholder Data means all information that a Cardholder provides in the course of completing a Transaction with Submerchant, including Card numbers and expiration dates, account numbers, and other personal Cardholder information.
1.8. Chargeback means any reversal, return, or invalidation of a Transaction (or portion of a Transaction) through a Card Brand.
1.9. Force Majeure Event means any delay or failure of SaleQuick to perform its obligations under this Agreement arising from any cause or causes beyond SaleQuick’s reasonable control, including natural disasters, extreme weather, infrastructure failures, civil unrest, public health events, governmental order, and nonperformance of SaleQuick’s service providers.
1.10. Law means all applicable federal, state, and local laws, statutes, regulations, rules, ordinances, codes, and court orders, and all applicable regulatory orders, directives, and guidance that govern or affect this Agreement or the subject matter hereof.
1.11. Location means each separate location, office, building, or branch operated by Submerchant where or for which Submerchant accepts Card payments, provided that each Location must operate under the same employer identification number or tax identification number as Submerchant.
1.12. Member Bank means a bank that is a member of the Card Brands and provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank is Fifth Third Bank of Cincinnati, Ohio. The Member Bank may be changed at any time without prior notice to Submerchant.
1.13. PCI DSS means the Payment Card Industry (PCI) Data Security Standard published by the PCI Security Standards Council.
1.14. Processor means a payment processor that supports the Payment Services through its contracts with the Card Brands. As of the commencement of this Agreement, Processor is Worldpay by FIS of Jacksonville, Florida. The Processor may be changed at any time without prior notice to Submerchant.
1.15. Regulatory Authority means any federal, state, or local government or any agency, board, commission, court, department, or division thereof, having jurisdiction, supervisory authority, or enforcement powers over any party to this Agreement, but which does not include any Card Brand. Such Regulatory Authorities include the U.S. Treasury Financial Crimes Enforcement Network, U.S. Treasury Office of Foreign Assets Control, Board of Governors of the Federal Reserve System (Federal Reserve), Internal Revenue Service (IRS), and Federal Trade Commission.
1.16. Rules means the bylaws, operating rules, regulations, policies, and procedures of any applicable Card Brand, including the PCI DSS and any manuals, guides, or bulletins, as in effect from time to time.
1.17. SaleQuick Merchant Account. means the SaleQuick account registered to Submerchant that Submerchant uses pursuant to the TOU to access the Payment Services and other services provided by SaleQuick.
1.18. Security Requirements means the security requirements under the USA PATRIOT Act and any similar Law and the security requirements of the Card Brands, including where applicable, the PCI DSS, the Visa Cardholder Information Security Program, the Mastercard Site Data Protection Program, and the Visa and Mastercard Data Security Standards.
1.19. Third Party Agent or TPA means any entity engaged by Submerchant to perform contracted services on behalf of Submerchant.
1.20. Transaction means a Card transaction between Submerchant and a Cardholder processed through a Card Brand using the Payment Services that relates to the sale of Submerchant’s goods or services to the Cardholder.
1.21. Transaction Account means the Submerchant-owned bank account that Submerchant designates to receive Transaction Funds for settlement from Processor and Member Bank.
1.22. Transaction Funds means the funds processed through the Card Brands and received by Processor and Member Bank for payments made by Cardholders to Submerchant for Transactions.
2. THE PAYMENT SERVICES
(a) Submerchant is a provider of professional, tradecraft, or hospitality services. The Payment Services allow Submerchant to accept Cards for the payment of fees, costs, supplies, and goods associated with such services.
(b) SaleQuick will provide Submerchant with Payment Services in accordance with the terms of this Agreement.
(c) Submerchant will use the Payment Services for business purposes only and not for any personal, family, or household purposes.
2.2. Underwriting and Required Information.
(a) After Submerchant completes an application for Payment Services, such Payment Services will not be available to Submerchant unless and until SaleQuick, Processor, and Member Bank confirm that Submerchant is eligible under the Rules and Law to use the Payment Services.
(b) Submerchant authorizes SaleQuick to make any investigation of Submerchant’s finances, activities, and operations that SaleQuick reasonably deems necessary to confirm Submerchant’s eligibility for Payment Services. Submerchant agrees to provide SaleQuick with any information required to complete such investigation and authorizes SaleQuick to share such information with Processor and Member Bank as necessary to provide the Payment Services.
(c) Submerchant agrees that all information Submerchant provides to SaleQuick is and will be accurate and complete, and Submerchant agrees to keep such information up-to-date. Upon request, Submerchant will provide (i) the current addresses of all Locations, (ii) a list of all assumed business names used by Submerchant, and (iii) a list of all products and services offered by Submerchant.
(d) Submerchant authorizes SaleQuick to make any background, identity-verification, credit, and transaction-verification inquiries that SaleQuick reasonably deems necessary and authorizes any credit reporting agency to compile information to answer such inquiries and furnish that information to SaleQuick. Submerchant also authorizes SaleQuick to share the results of such inquiries with Processor and Member Bank as necessary to provide the Payment Services. If applicable, for any background, credit, or other check or report on Submerchant’s owners, officers, directors, or other principals, each in their individual capacities, Submerchant agrees to work with SaleQuick to obtain any necessary authorizations from such individuals.
(e) To help the government fight the funding of terrorism and prevent money-laundering, Law may require SaleQuick, Processor, Member Bank, or Card Brands to obtain, verify, and record information that identifies Submerchant, its beneficial owners, officers, and other individuals associated with Submerchant or that have access to the Payment Services. Upon request, Submerchant will provide SaleQuick, Processor, Member Bank, or Card Brands, as applicable, the documentary and other evidence of Submerchant’s identity, those of its beneficial owners, or the identity of any individual to whom Submerchant provides access to the Payment Services, to permit those entities to comply with the Rules and Law. Submerchant agrees that SaleQuick, Processor, Member Bank, and Card Brands may disclose such information as required to comply with their obligations under Law.
(f) Submerchant will provide SaleQuick with written notice, with respect to the Submerchant, of any (i) adverse change in financial condition, (ii) planned or anticipated liquidation or substantial change to the basic nature of its business, (iii) transfer or sale of twenty-five percent (25%) or more in value of its ownership, voting stock, beneficial interest, or total assets, or (iv) levy against twenty-five percent (25%) or more in value of its total assets. Submerchant will provide any such notice not more than three (3) days after Submerchant learns of any such event.
In the event Submerchant rents or purchases any equipment from SaleQuick in connection with the Payment Services, Submerchant agrees to abide by the applicable terms and conditions of the separate agreement with SaleQuick executed for such purpose.
3. CARD ACCEPTANCE
3.1. Submerchant will honor any valid Card properly tendered by a person asserting to be the Cardholder. Submerchant will only accept Cards for Transactions that are bona fide sales of the Submerchant’s goods or services.
3.2. Submerchant will properly disclose to the Cardholder at the time of the Transaction Submerchant’s name, return policy, and any limitations Submerchant may have on accepting returned goods. Submerchant’s refund polices for purchases made with a Card must be at least as favorable as Submerchant’s refund policy for purchases made with any other form of payment.
3.3. Submerchant may set a minimum Transaction amount to accept a Card, provided that such minimum does not differentiate among Card issuers or among Card Brands and that such minimum complies with the Federal Reserve’s limits for Transaction minimums.
3.4. Submerchant is required to obtain an Authorization for each Transaction and include the Authorization when transmitting each Transaction. Authorizations are not a guarantee of acceptance or payment of a Transaction, do not waive any provision of this Agreement, and do not otherwise validate a fraudulent Transaction or a Transaction involving the use of an expired Card. SaleQuick, Processor, or Member Bank may refuse to authorize any transaction.
3.5. All Transactions are subject to audit and verification by SaleQuick, Processor, or Member Bank and may be adjusted for inaccuracies. All credits provided to Submerchant are provisional and subject to Chargebacks and adjustments in accordance with the Rules, irrespective of whether a Transaction is returned or reversed by the Card issuer.
3.6. Submerchant will retain a copy of the sales transmittal for each completed Transaction in accordance with the Rules and Law. Upon request by Processor or Member Bank, Submerchant will provide copies of sales transmittals and other Transaction evidence.
4. COMPLIANCE WITH THE RULES AND LAW
4.1. Submerchant agrees to comply, and to cause its TPAs to comply, with this Agreement, the Rules, and Law, including anti–money-laundering and economic sanctions Law. In the event of any conflict between the terms of this Agreement and the Rules, the Rules will prevail.
4.2. Submerchant agrees to assist SaleQuick, Processor, and Member Bank to monitor Submerchant’s compliance with the Rules and Law. SaleQuick, Processor, or Member Bank, each in its sole discretion, may suspend processing Transactions for a reasonable period of time required to investigate suspicious or unusual activity, and each will have no liability for any Submerchant losses arising from any such suspension. SaleQuick, Processor, or Member Bank, each in its sole discretion, may reverse any Transaction that violates this Agreement, the Rules, or Law, and Submerchant agrees to reimburse SaleQuick, Processor, or Member Bank, as applicable, for any such reversal.
4.3. Prohibited Activities. Submerchant must not:
(a) Submit to a Card Brand any Transaction that the Submerchant knows or should know violates Law in either the Cardholder’s or Submerchant’s jurisdiction;
(b) Submit to a Card Brand any Transaction that the Submerchant knows or should know is fraudulent or not authorized by the Cardholder;
(c) Submit to a Card Brand any Transaction that is not the result of a sale between Submerchant and its customer;
(d) Submit to a Card Brand any Transaction for the sale of any product or service or the results from any method of selling that is different from the products, services, and methods stated in the Submerchant’s application for Payment Services without the prior written consent of SaleQuick;
(e) Submit (or resubmit) to a Card Brand any Transaction that was previously the subject of a Chargeback;
(f) Submit to a Card Brand any Transaction that represents the refinancing of a debt, including an existing obligation to a Card Brand, an existing debt to the Submerchant that has been deemed uncollectable, or repayment for a dishonored check, except as expressly permitted under the Rules;
(g) Add any tax or surcharge to Transactions, unless Law expressly requires or the Rules expressly permit Submerchant to impose such tax or surcharge (any amounts, if allowed, must be included in the transaction amount and not collected separately);
(h) Ask or require a Cardholder to complete a document that, if mailed, would display in plain view any Cardholder Data;
(i) Ask or require a Cardholder to waive any dispute rights;
(j) Request or use a Card account number for any purpose other than as payment for its goods or services; and
(k) Disburse funds to a Cardholder in the form of cash or scrip unless Submerchant is dispensing funds in the form of travelers checks (except if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Submerchant) or as part of a Card Brand’s cash-back service, each as defined by, and in accordance with, the Rules.
4.4. For any recurring Transactions, Submerchant will obtain and retain any consents and provide any notices, as required by the Rules and Law.
4.5. Use of Brand Marks and Other Marks.
(a) The Card Brands are the sole and exclusive owners of their respective Brand Marks, and Submerchant’s use of Brand Marks and Brand Materials must comply with the Rules.
(b) Processor and Member Bank are the sole and exclusive owners of their respective trademarks, marks, and logos, and Submerchant’s use of such marks must comply with Processor’s and Member Bank’s express policies and written instructions.
(c) At any time and without prior notice, Card Brands may require a change in or prohibit Submerchant’s use of Brand Marks and Brand Materials.
(d) Submerchant’s right to use Brand Marks and, if applicable, Processor’s and Member Bank’s marks, will cease upon termination of this Agreement, and Submerchant agrees not to contest the ownership of all such marks for any reason.
4.6. If Submerchant processes or is anticipated to process greater than $1,000,000 in Transactions with a Card Brand in any twelve (12) month period (or such other processing threshold as may be established by a Card Brand, respectively), you are required by the Rules to execute a separate agreement similar in substance to this Agreement that establishes a direct relationship with Member Bank. Accordingly, by executing this Agreement, Submerchant also executes and agrees to be bound by Processor’s Merchant Services Agreement for Sub-Merchants , available at the preceding hyperlink, which satisfies the requirement for such separate agreement.
5. SETTLEMENT AND TRANSACTION DISPUTES
5.1. Transaction Accounts.
(a) Submerchant will establish and maintain one or more deposit accounts to be the designated Transaction Account to receive Transaction Funds. Submerchant may establish a single Transaction Account for all Locations or a separate Transaction Account for each Location (or any combination thereof). Submerchant will provide SaleQuick with complete information regarding the Transaction Account for each Location.
(b) Submerchant authorizes SaleQuick, Processor, and their service providers to initiate ACH credits and debits to each Transaction Account. Such authorization will remain in full force and effect until thirty (30) days after SaleQuick receives written notice from Submerchant of termination of this ACH authorization. SaleQuick and Processor reserve the right to terminate or suspend Payment Services at any time that Submerchant fails to provide an active Transaction Account with an ACH authorization
(c) To ensure proper remittance of Transaction Funds, Submerchant is solely responsible for providing SaleQuick with and maintaining accurate contact, payment, and account information for each Transaction Account, including any applicable tax information.
5.2. Transaction Funds and Remittance.
(a) Processor will remit Transaction Funds, less any amounts SaleQuick and Processor are authorized to deduct or withhold under this Agreement, to Submerchant by ACH to the Transaction Account after such Transactions Funds are received by Processor from the Card Brands.
(b) Submerchant agrees that the deposit of Transaction Funds to the Transaction Account discharges SaleQuick, Processor, and Member Bank of any settlement obligation to Submerchant and that any dispute regarding the receipt or amount of settlement will be between SaleQuick and Submerchant. Submerchant also agrees that SaleQuick, Processor, and Member Bank have no settlement obligation to Submerchant regarding the proceeds from any Transaction that violates this Agreement, the Rules, or Law.
(c) Amounts owed to Submerchant will be calculated based solely on records maintained by SaleQuick. It is Submerchant’s responsibility to promptly and consistently inspect Submerchant’s Transaction and settlement history, and Submerchant must immediately report any possible errors to SaleQuick.
(d) If Submerchant believes Processor or SaleQuick has failed to remit Transaction Funds owed to Submerchant, Submerchant must notify SaleQuick in writing within sixty (60) days of the date of such remittance or from the date when Submerchant purports such remittance would have been due, specifying in reasonable detail the amounts Submerchant believes are owed. Submerchant’s failure to so notify SaleQuick will result in Submerchant’s waiver of any claim relating to such disputed remittance.
5.3. Reserve Account.
(a) SaleQuick may, in its sole discretion or at the direction of Processor or Member Bank, require that Submerchant fund an account at Member Bank, in an amount determined by SaleQuick, as security for Submerchant’s current and future obligations under this Agreement. Submerchant authorizes SaleQuick and Processor to initiate ACH debits to the Transaction Account or withhold amounts that SaleQuick and Processor would otherwise pay to the Transaction Account for the purpose of funding, maintaining, or increasing the balance in the reserve account. SaleQuick may, without notice to Submerchant, apply funds in such reserve account against any amounts owed by Submerchant under this Agreement.
(b) By executing this Agreement, Submerchant grants to SaleQuick a security interest in the funds held in any reserve account established pursuant to this section, and SaleQuick may exercise its rights with respect to such security interest without notice. Submerchant agrees to execute any documents and to perform any other action required to comply with and perfect the security interest.
(c) Submerchant agrees that following termination of this Agreement, any funds remaining in the reserve account will not be returned to Submerchant until 180 days following the later of such termination or Submerchant’s final submission of a Transaction. Submerchant will remain liable for all fees or amounts incurred after any such return of funds.
5.4. Transaction Disputes.
(a) Except for SaleQuick’s limited role in processing payments, SaleQuick is not involved in any underlying sale of goods or services by Submerchant. Submerchant agrees that all disputes between Submerchant and any Cardholder relating to a Transaction will be settled between Submerchant and the Cardholder. SaleQuick bears no responsibility for such disputes.
(b) Card Brand inquiries about Transactions may cause Processor or Member Bank to Chargeback such Transactions. Processor and Member Bank will offset the value of such Chargebacks from the Transaction Funds that will be received for settlement to Submerchant. If Submerchant disagrees with a Chargeback, Submerchant may request a chargeback reversal within the applicable Card Brand’s timeline in the Rules.
(c) Submerchant is subject to each Card Brand’s acceptance guidelines, monitoring programs, activity reporting requirements, and limits, including those relating to excessive credits, disputes, and chargebacks. Excessive Chargebacks may result in violation of the Rules, breach of this Agreement, and suspension of the Payment Services.
(d) SaleQuick, Processor, and Member Bank may revoke, reverse, or offset any credit to Submerchant for a Transaction not made in compliance with this Agreement, the Rules, or Law or where such remittance to Submerchant was made erroneously.
6.1. Fees and Other Amounts Owed. Submerchant agrees to pay to SaleQuick:
(a) All service and processing fees and other charges specified in the Standard Fee Schedule, set forth in this Agreement or in Submerchant’s Sale Quick Merchant Account, as may be amended in accordance with this section;
(b) Any adjustments, fees, penalties, or costs incurred by SaleQuick as a result of any dispute related to Transactions;
(c) Any liabilities or other amounts SaleQuick incurs as a result of fraudulent use of Submerchant’s terminal for Authorizations, unauthorized use of or access to Cardholder Data on Submerchant’s systems, or any other payment transaction alleged to have been processed through the Payment Service; and
(d) Any fees, fines, or penalties imposed by third parties (including Processor, Member Bank, and Card Brands) related to Chargebacks or any returned or cancelled remittance of Transaction Funds.
6.2. Submerchant authorizes and directs SaleQuick and Processor to deduct and set off from Transaction Funds the fees and other amounts Submerchant owes under this Agreement, and Submerchant understands that the Transaction Funds Processor remits to Submerchant will be net of these amounts.
(a) In the event that any set off against Transaction Funds is not sufficient to cover the fees and other amounts owed under this Agreement, Submerchant agrees that SaleQuick or Processor may initiate an ACH debit to any Transaction Account for such amounts.
(b) Submerchant agrees to maintain sufficient funds in the Transaction Accounts to satisfy all obligations to SaleQuick, Processor, and Member Bank contemplated by this Agreement. If the fees and other amounts owed under this Agreement, or an ACH debit for such amounts, cause the balance in a Transaction Account to be less than zero ($0), SaleQuick may charge an overdraft fee and require that Submerchant make a wire transfer to the Transaction Accounts within one (1) banking business day of notice.
6.3. From time to time, Processor, Member Bank, or Card Brands may change the fees each charges for Transactions and related services and processing. SaleQuick will provide Submerchant with thirty (30) days written prior notice of all such changes, and Submerchant’s submission of a Transaction or continued use of the Payment Services after the effective date of such notice will be deemed acceptance of such change.
6.4. SaleQuick may in its sole discretion offer an alternative Fee Schedule to Submerchant in writing. If Submerchant accepts such offer in writing, such alternative Fee Schedule replaces the Standard Fee Schedule in this Agreement, and Submerchant’s obligation to pay such alternative fees is the same as described in this section.
7. AUDITS, DATA, AND SECURITY
7.1. Cooperation. Submerchant agrees to:
(a) Cooperate in any legal audit, examination, or investigation as may be required by SaleQuick, Processor, Member Bank, Card Brands, or any Regulatory Authority; and
(b) Upon request and reasonable prior notice, permit SaleQuick, Processor, or Member Bank (or a duly authorized representative thereof) to conduct an on-site inspection of Submerchant’s premises and examine Submerchant’s books, records, and systems, but only to the extent that each pertains to compliance with this Agreement and the Rules.
7.2. As between SaleQuick and Submerchant, all Cardholder Data will be owned by SaleQuick. SaleQuick hereby grants Submerchant for the term of this Agreement a revocable, unassignable license to use, reproduce, electronically distribute, disclose, and display Cardholder Data solely as necessary to (i) provide Submerchant’s products and services, (ii) comply with the Rules and Law, and (iii) assist law enforcement agencies by responding to requests for the disclosure of information in accordance with Law. For purposes of this section, Cardholder Data does not include magnetic stripe, Track-2, CVV2, CVC2, or CID data.
7.3. Submerchant agrees to implement and maintain secure systems for maintaining, accessing, processing, and transmitting Cardholder Data or Transaction information to SaleQuick, Processor, and Member Bank. Submerchant will ensure all such systems comply with the Security Requirements and will undertake any required self-assessments, audits, and web infrastructure scans. Submerchant agrees to keep secure all media containing Cardholder Data or Transaction information and destroy in a manner that will render the data unreadable all such media that is no longer necessary or appropriate to store. Submerchant agrees to comply with its obligations under Law regarding the confidentiality, use, and disclosure of Cardholder Data.
7.4. If there is actual or suspected unauthorized access of Cardholder Data or Transaction information in the possession of Submerchant or its TPAs, Submerchant must notify SaleQuick immediately, and in all events no later than forty-eight (48) hours after discovery, and cooperate with SaleQuick, Processor, and Member Bank regarding reasonable requests for information regarding the security breach.
7.5. Submerchant will not under any circumstances retain or store magnetic stripe, Track-2, CVV2, CVC2, or CID data after Authorization.
7.6. Submerchant will comply with all Laws, including any and all applicable privacy laws, related to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (both technical and physical), disposal, destruction, disclosure, or transfer of data (including Cardholder Data) on your website, in your systems, or otherwise in your possession or control. Submerchant will maintain industry best practices regarding continuity procedures and systems to ensure security of Cardholder Data and Transaction information in the event of a disruption, disaster, or failure of Submerchant’s data storage system or facility.
7.7. Confidential Information. The confidentiality of this Agreement and of any information or data shared between SaleQuick and Submerchant other than Cardholder Data will be governed by the confidentiality and intellectual property provisions set forth in the TOU.
8. USE OF THIRD PARTY AGENTS
8.1. Submerchant may contract with TPAs to perform any or all of Submerchant’s duties and requirements under this Agreement, except for any duty or requirement that by its nature must be performed by Submerchant.
8.2. Submerchant must provide SaleQuick written prior notice regarding Submerchant’s use of any TPA. Submerchant will be and remain liable for any non-compliance or breach by a TPA of this Agreement, the Rules, or Law.
9. TERM AND TERMINATION
9.1. The term of this Agreement commences on the Effective Date and continues for one (1) year. Unless terminated as permitted herein, the term of this Agreement will be automatically extended for one (1) year at the expiration of each term.
9.2. Either SaleQuick or Submerchant may terminate this Agreement at any time on at least thirty (30) days’ written notice unless otherwise expressly allowed in other provisions of this Agreement. If this Agreement is terminated prior to the end of the first one (1) year term, the early termination fee in Section 9.4 may apply.
9.3. SaleQuick may immediately terminate this Agreement or cease providing the Payment Services, without prior notice, if:
(a) Submerchant fails to pay any amount to SaleQuick when due or fails to maintain a valid Transaction Account;
(b) In SaleQuick’s reasonable opinion, the provision of Payment Services to Submerchant is a violation of the Rules or Law;
(c) In SaleQuick’s reasonable opinion, Submerchant has violated or is likely to violate the Rules or Law;
(d) SaleQuick is required to do so by Processor, Member Bank, any Card Brand, or any Regulatory Authority;
(e) Submerchant is the subject of any bankruptcy or insolvency or makes an assignment for the benefit of its creditors; or
(f) Submerchant does not submit any Transactions or does not otherwise use the Payment Services for thirty (30) days.
(g) SaleQuick’s agreement with Processor or Member Bank terminates;
(h) SaleQuick is deregistered by any Card Brand;
(i) Member Bank ceases to be a member of the Card Brands or to have the required licenses;
9.4. Early Termination Fee. Within the first one (1) year term only, if Submerchant terminates this Agreement for any reason or if SaleQuick terminates this Agreement pursuant to any of section 9.3(a)–(f), Submerchant will be subject to and agrees to pay an early termination fee of three hundred dollars ($300). Such fee will not be prorated and will be due and payable upon termination. After the first one (1) year term, there will be no termination fee.
9.5. If this Agreement is terminated for any reason, Submerchant’s obligations regarding any Transactions accepted for processing will survive termination, and any amounts owed by Submerchant to SaleQuick will become immediately due and payable. Submerchant authorizes SaleQuick to debit such amounts from any Transaction Account, and if the funds in such account are insufficient, Submerchant agrees to immediately pay any remaining amounts owed.
10. REPRESENTATIONS AND WARRANTIES
10.1. Submerchant represents the following:
(a) Submerchant and the authorized signatory executing this Agreement have the full power and authority to execute, deliver, and perform this Agreement;
(b) This Agreement is binding and enforceable against Submerchant, and no provision requiring Submerchant’s performance is in conflict with its obligations under any agreement to which Submerchant is a party; and
(c) Submerchant has never entered into a payment processing agreement with a third party that has been terminated by that third party.
10.2. Submerchant warrants during the term of this Agreement the following:
(a) Submerchant is duly organized, authorized, and in good standing under the laws of the state, region, or country of its organization and is duly authorized to do business in all other states, regions, or countries in which Submerchant operates; and
(b) Submerchant has not been placed in the Mastercard MATCH system, the Combined Terminated Merchant File, or any similar Card Brand system for tracking high risk merchants
11. INDEMNIFICATION AND LIMITATION OF LIABILITY
11.1. Submerchant agrees to indemnify, defend, and hold SaleQuick and its directors, officers, employees, affiliates, and agents harmless from and against any and all proceedings, losses, costs, expenses, claims, demands, damages, and liabilities (including attorneys’ fees and costs, and collections costs) resulting from or otherwise arising out of (i) Submerchant’s use of the Payment Services, (ii) acts or omissions of Submerchant’s directors, officers, employees, affiliates, and agents in connection with the Payment Services, (iii) any infiltration, hack, breach, or access violation of the processing system resulting from or in any way related to Submerchant’s access to the Payment Services, (iv) Submerchant’s breach of this Agreement, and (v) Submerchant’s violation of the Rules or Law. This indemnification will survive the termination of this Agreement.
11.2. Submerchant agrees to provide SaleQuick with written notice of any alleged breach by SaleQuick of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice will be deemed an acceptance by Submerchant and a waiver of any and all rights to dispute such breach.
11.3. SaleQuick’s cumulative liability to Submerchant is limited to direct damages and in all events will not exceed in the aggregate the amount of fees or compensation actually received by SaleQuick for the Transactions processed through the Payment Services during the six (6) month period immediately preceding the event that gives rise to the claim for liability.
11.4. The limitation of liability in Section 11.3 will not apply to claims against SaleQuick for failure to remit Transaction Funds in accordance with Section 6.2, in which case SaleQuick’s liability for such direct claim by Submerchant is limited to the amount of any Transaction Funds that SaleQuick failed to transfer to Submerchant, subject to Section 6.2(d).
12. DISPUTE RESOLUTION
12.1. Arbitration. In the event SaleQuick and Submerchant are unable to resolve any dispute between them arising out of or concerning this Agreement or the Payment Services, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute will be resolved exclusively through final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration is Montgomery County, Texas. The arbitrator’s award is final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party will be entitled to recover its costs and reasonable attorneys’ fees. The entire dispute, including the scope and enforceability of this arbitration provision, will be determined by the arbitrator. This arbitration provision will survive any termination of this Agreement. Notwithstanding the foregoing, SaleQuick may bring a claim for injunctive relief against Submerchant for any violation of this Agreement in any court of competent jurisdiction.
12.2. Choice of law, jurisdiction, and venue. The laws of the State of Texas govern this Agreement in all respects. For any dispute under this Agreement that is determined to be outside the scope of the arbitration provision, the state courts of Texas located in Montgomery County, Texas, and the United States Court for the Southern District of Texas located in Houston, Texas, will have exclusive jurisdiction and will be the exclusive venue.
12.3. No Class Action. To the fullest extent permitted by Law, Submerchant waives any and all rights to any class action litigation or proceeding with respect to any dispute arising under or in connection with this Agreement.
12.4. Severability and Waiver. If any term or provision of this Agreement or any application thereof is determined to be invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision will remain in full effect. A delay or failure to enforce any provision or exercise any right under this Agreement by a SaleQuick or Submerchant will not be construed as a waiver or estoppel of such provision or right and will not affect or curtail such party’s ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by the waiving party.
13. GENERAL PROVISIONS
(a) The words “herein,” “hereof,” “hereunder,” and other words of similar import refer to the Agreement as a whole and not to any particular section or other subdivision.
(b) All variations of the word “include” will be deemed to be followed by the words “without limitation,” unless otherwise specified.
(c) The various headings contained herein are for reference purpose only and do not limit or otherwise affect any of the provisions hereof.
(d) It is the intention of the parties to this Agreement that no provision be construed more strictly with regard to one party than with regard to the other.
13.2. Required and Other Amendments. SaleQuick may at any time amend this Agreement, including any Fee Schedule, upon notice to Submerchant, provided (i) such amendment is required or caused by a change in the Rules or Law, and (ii) such amendment modifies this Agreement only to the extent necessary to comply with such change in the Rules or Law. SaleQuick will use reasonable best efforts to provide such notice at least thirty (30) days prior to implementation of such required amendment. Other amendments will be made only as agreed in writing by the parties to this Agreement.
13.3. Survival. Any right, obligation, or provision under this Agreement that, by its description or nature, should survive termination of this Agreement, will survive the termination of this Agreement, including the terms set forth in Sections 5.2, 5.3, 6.1, 6.2, 7.3, 9.5, 11.1, 11.3, and 12.
13.4. Electronic Signature, Delivery, and Notices.
(a) Submerchant agrees that for all purposes under this Agreement, electronic consent has the same legal effect as a physical signature.
(b) Submerchant consents to electronic delivery of documents and notices under and related to the Payment Services, including by email or through the SaleQuick Merchant Account. Submerchant agrees that such electronic delivery satisfies any requirement that a document or notice be in writing.
(c) Submerchant agrees to provide and keep current the information that SaleQuick needs to communicate with Submerchant electronically, including the email address on file in Submerchant’s SaleQuick Merchant Account. Submerchant agrees that if any notice sent to Submerchant is not received because Submerchant’s contact information on file with SaleQuick is incorrect or out of date, Submerchant will be deemed to have received the notice.
(d) Except as otherwise provided herein, all notices under this Agreement will be in writing and will be delivered by hand, nationally recognized courier (signature required), registered or certified mail (return receipt requested), or email to the receiving party’s address listed below. Notice will be deemed given when delivered by hand to an officer of the party to whom the notice is addressed, on the date of actual receipt when delivered by courier or mail, or within twenty-four (24) of transmittal when delivered by email.
(e) SaleQuick Address for Notices.Milstead Technologies, LLC
2416 North Frazier St.
Conroe, Texas 77303
13.5. Force Majeure. SaleQuick will not be deemed to be in breach of its obligations under this Agreement or liable for any delay, loss, failure, or interruption of performance under this Agreement to the extent resulting from a Force Majeure Event. Upon such an occurrence, performance by SaleQuick will be excused until the cause Force Majeure Event has been removed or resolved and SaleQuick has had a reasonable time to recover and again provide the Payment Services.
13.6. Taxes. To the extent Submerchant is not exempt, SaleQuick, Processor, and Member Bank are required to report to the IRS Submerchant’s annual gross processing volume. SaleQuick or Processor will provide a form 1099-K, as required by Law. SaleQuick or Processor may, on behalf of the IRS, collect from Submerchant federal backup withholding upon Transaction settlement if Submerchant does not supply its legal name or tax identification number or if it fails to respond to a request from SaleQuick to verify the same.
13.7. Independent Contractor. Each SaleQuick and Submerchant is an independent contractor in the performance of its obligations under this Agreement, and neither is an employee or agent of the other party.
14. MEMBER BANK DISCLOSURES
14.1. Member Bank Contact Information. Fifth Third Bank, N.A. • 38 Fountain Square Plaza • Cincinnati, Ohio 45263 • 513.579.5203.
14.2. SaleQuick is an agent of Member Bank for the limited purpose of exercising Member Bank’s authority under the Rules to enter in agreements with merchants.
14.3. Merchant Resources. As of the commencement of this Agreement, Rules may be downloaded at:
(a) Mastercard: http://www.mastercard.com/us/merchant/support/rules.html.
(b) Visa: http://usa.visa.com/merchants/operations/op_regulations.html.
15. STANDARD FEE SCHEDULE
|Card Not Present||2.90%|
|Card Not Present||$0.30|
|Chargeback Fee (per incident)||$25.00|
|Annual Maintenance Fee||$100.00|
|PCI Non-Compliance (per month)||$25.00|
|Gateway Access (per month)||$15.00|