Payment Resources/Online Registration 06Merchant Application OFFICE:
REP: Sharon Mahonev
�A
..�►t�>�.�lc and Agreement MID: SIC:
3 San Joaquin Plaza, Suite 100
UM
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Legal Name: City of La Quinta, CA
Phone #: (760) 777-7000
Fax #
DBA (Doing Cityof La Quinta, CA
Statement Mailing address: P.O. Box 1504
Business As :
Location/Site 78-495 Calle Tampico
c'� La Quinta
State: CA Zip: 92253
Address:
city: La Quinta State:
CA zip: 92253
Federal Tax ID Number:
Contact Person: Tustin Larson
Number of 1
Email:
Locations:tlarson@la-quinta.org
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1 Name ring
(P )IV/A
Title:
Equity/Ownership:
of Birth:
Title:
City:
Type of Ownership: IMERCHANTTYPE VISA/MasterCard Sales Profile
[Sole Proprietor Partnership []Corporation [E]Other Retail Outlet Credit Cards 0 %
Swiped'
Number of Years in Business: U Length of Current Ownership: L� []Restaurant/Food *Must Total 100%
Other currently/previously �J []Mail/Telephone Order Only Credit Cards 100
owned businesses Keyed"
Prior Bankruptcy? []Yes QNo Date Discharged: []Home Business, Trade Fairs
Do you currently accept VISA/MasterCard? []yes (If yes, you must submit 3 most current ❑Outside Sales/Service, Other, Etc
r o statements) �''yy
Do you wish to accept: EBT cards? Boos EBT#: DebiVATM cards Loos (a Pinrpad) ✓[]Intemet
Seasonal Business? []Yes Q✓,NoJ If yes, list months: LL✓✓�� []Lodging Merchant Receives Imprint
On Ke ed Transactions: MYes ✓ No
Has this business or any associated principal been terminated as a VISA/MasterCard Merchant? []Yes []No
Methods of Marketing: []Newspaper/Magazines Qlntemet []Television/Radio [aDirect Mail, Brochure & Catalogs []Telemarketing Sales
Detailed Description of
Products/Services Sold.
Do you currently process with ACH? Dyes [Do Average ACH item:
Percentage of monthly volume for:
Telephone Orders: 0 Mail and/or Fax Orders: 0 Internet Orders: 100
Annual ACH Volume:
If Internet related, list web address below: (www or http)
www.la-quinta.org
L]Gift/Loyalty Card nAVS Required []Check Guarantee .
Company:
.....__....._..�..............._._ .__.....__._...,... ......__....... ......._.._A.._ -_— ....... __......� _...______.__.._ .....�.... �.__��._...._.
[]New American Express Account []Existing AMEX Merchant Account #
New Discover Account Existing Discover Merchant Account #
[] New Diners Club Account I [] Existing Diners Club Merchant Account #
New Existing Account #
(External Gateway (not supplied by PRI): []
Sponsor Bank: KevBank National Assoc.
[] PRI Skipjack
Page 1 of 12 REV 10/19/05
Merchant: City of La Quinta, CA
Application/Setup Fee: $I Waived I Monthly Statement Fee: $15.00 I Monthly Minimum Fee: $120.00
Visa/MasterCard Qualified Discount Ratel 2.15 % I Authorization/transaction Fee: $I .25 I Batch Closure Fee: $ .20
Mid -qualified transactions will be assessed 1.13% above the qualified discount rate (excluding approved 20% Plus Keyed Merchants). Non -qualified transactions will be assessed
1.80% above the qualified discount rate. Corporate Cards and Corporate Purchase Cards will be assessed 1.80% above the qualified discount rate. Maintenance fee of $5.00 per
month applies to all accounts. Address Verification Service adds $.15 to Authorization Fee.
Debit Access Fee: $ N/A Debit Per Item Fee: $ N/A Monthly Wireless Service Fee: $15.00 Activation Fee: $ Wa1Ved
OTHER FEES: Chargeback fee $35.00 ea. Investigation Fee $25.00 Be item or 10% monthly of amt. Investigated
Request for Copy (retrieval) $15.00 ea, ACH Returned item Fee $25.00 ea.
Voice Authorization $1.50 ea, Checking Account Change $25.00 ea.
Average Ticket Size: $ Monthly $ Last 3 Month Average for
(for VISA/MasterCard Visa/MasterCard I$ VISA/MasterCard Is
Each applicant certifies that the above average ticket size and monthly sales volume is accurate and acknowledges that any significant variance from this information could result
in delayed or withheld settlement of funds and/or assessment of additional fees.
Authorization & batch Closure for American Express, Discover, Diners and/or JCB $0.30 per item.
There is a $15.00 fee to add AmEx, Discover, Diners, JCB Processing and Debit Card to your merchant account after initial set-up.
Item Fee: $ N/A and N/A % each item Returned item Fee: $ N/A each rejected or corrected item Monthly Minimum: $ N/A
Overdraft Fee: $25,00 each occurrence Inquiry Fee: $5,00 Monthly Fee: $ N/A
TRANSACTION CENTRALTM
z
Initial Setup Fee: $ Gateway Per Transaction Fee: $
Monthly Fee: $ 10.00
Additional Features:
QShoplink
Setup Fee: $
Monthly Fee: $
[3Webconnect
Setup Fee: $
Monthly Fee: $
QMulti-User
Setup Fee: $
Monthly Fee: $
QRecurring Billing
Setup Fee: $
Monthly Fee: $
(—]Payment Central
Setup Fee: $
Monthly Fee: $
[ other
Setup Fee: $
Monthly Fee: $
Notes: TRANSLINK
❑ e-Merchant View TM (online reporting)
Monthly Fee: $ 10.00 / user
The undersigned unconditionagy, guarantees to Bank and PRI the performance of this Agreement by Merchant, including paying of all sums due and owing and any anorneys rest and corm assoraarea vegi er mrcemem or me corms mmem. oa , or
PRI shall not be required to that proceed against Merchant or enforce any other remedy before proceeding against the undersigned. This is a continuing guaranty and shall not be discharged or affected by the bankruptcy of the undersigned, shall bind
the successors, administrators, representatives and assigns and may be or for the benefit of any successor of Bank or PRI. The term of this guaranty shall be for the duration of the BankCard Merchant Agreement and for any period thereafter during
which env rights of offset or chameback of transaction of the undersigned remain valid under the applicable Card Association regulations.
Guarantor: Co -Guarantor:
Date: ! /X Date:
T O 1ZE1 I -SIGNS
By signing below, Merchant (1) represents that the information provided by Merchants in this Bank Card Merchant agreement is true, complete and not misleading; (if) acknowledges that Merchant has read and understands the Terms and Conditions
and Operating Procedures attached hereto and kfcorporated herein by this reference and agrees to be bound by their terms; and fill) authorizes Bank or PRI and their agents to credit and debitthe Merchants Account in accordance with this
Agreement and represents and warrants to Bank and PRI that the party signing this agreement is authorized to do so and to act on behalf of the Merchant in the performance thereof.
INVESTIGATIVE CONSUMER REPORT: An investigative or Consumer Report will be made In naction with this application. Undersigned authorizes Bank and PRI or any credit bureau or any credit reporting agency employed by PRI a any
gents of PRI to investigate the refa�3 or other statement. or data ob d h hent, or any of the undersigned principals.
Merchant C / / �yf ��/ L
rti.....,.rrua•...e. etr...�F...e,• X ! >RL Tiffe: LAW /N / �r S /L. Data: ! �7 / 0 CV
indicated officer identified above has the authorization to execute the Merchant Processing Agreement with Bank and PRI on behalf of the here within named corporation.
:retary of the Board: X Date: /
BANK USE ONLY
Page 2 of 12 REV 10n9/05
r
Merchant: City of La Quinta, CA
Bank Name:
� IG//�LL5 ����) DfV� Contact://L/W 6n!Phone:
Bank Routing Bank AccountL��cffZ—
Hmh—y' d00?Number:
The Merchant: 6tlOwns []Leases the business premises Landlord Name: fv O f Q�11 �TW Landlord Telephone* / 40 777 7/so
Merchant Location: ❑Retail Store Front ❑OfficelWarehouse ❑Residential ❑✓ Internet ❑Other
Does the amount of inventory and merchandise on shelves appear consistent with type of business? ❑Yes []No
I here erti at I have In ct the business premises of the merchant at this address and this survey Is correct to the best of my knowledge. //
Inspected by: M t j1lA ►tv#� Title: r!%UVt ce— -P) i% YVr C� Date: 6120 l ZOap
qTY
TOTAL
SPECIFICATIONS
DIAL OUT CODES
Terminal ❑ Model:
$
Printer ❑ Model:
$
[]Retail (80% Swiped) ❑Purchase Card
❑None
Pin Pad ❑ Model:
$
❑Retail W/ Tip [-]Lodging
❑"8"
Check Reader ❑ Model:
$
❑4 Digit Verification ❑AVS
❑.9"
Card Reader ❑ Model:
$
[]Restaurant (w/ tip program) ❑Invoice #
[]Other
P.C. Software ❑ Type:
$
❑MOTO (AVS Required) ❑Server ID
❑Auto Close Time
Number of Imprinter PlatesEj ❑Ship Welcome Kit Only
Equipment is: ❑ Reprogram ❑Provided by PRI
Ship to: ❑Merchant []Office
Call merchantfor ❑download [-]training Contact:
Phone Number.
:. �,1 -1 ,k.. PAYf; V1ENT`.INF,,QRMA TIE
❑ Please charge my Credit Card
❑ Please ship to the following address
Card #: Expiation:
CW2 #:_
Street:
City: State: Zip:
Shipping location phone number:
Please debit my checking account ,(/} 1pf+� (�
Zl 004 4 "Account#: 41Sf 4�� t o L
Routing #:
Comments:
Merchant Documentation Requirements:
❑ Signed Merchant Application and Agreement including Signed Resolution and Signed Personal Guaranty by principals
❑ Photos of location or brochures, business cards or other identifying business information on the Merchant. For an Internet Business,
a printout of the Merchant's web page
❑ Copy of voided Check
❑ All Web Site URLs, Passwords and Domain Names
❑ Financial statements for Merchants processing over $50,000 in monthly Merchant sales volume
❑ 3 months of merchant statements from previous processing
❑ Photocopy of driver's license
❑ Additional setup form (ECShop, Gift/Loyalty Card, American Express, Discover)
Page 3 of 12 REV 10/19/05
MERCHANT AGREEMENT
ADDITIONAL TERMS AND CONDITIONS
In these Additional Terms and Conditions, "Agreement" means the Merchant Bank
Card Application and Agreement and these Additional Terms and Conditions. "You,"
"your' and "Merchant" means any party who signs this Agreement as the Merchant.
"PRI" means Payment Resource International, LLC, a Delaware limited liability
company located at 3 San Joaquin Plaza, Suite 100, Newport Beach, CA 92660, and
its assigns. "Agent Bank" or "Sponsor Bank" means KeyBank National Association,
a national bank located at 4910 Tiedeman Road, 2nd Floor, Brooklyn, OH 44144.
These Additional Terms and Conditions are part of your Agreement. You agree to
be bound by these Additional Terms and Conditions when you sign the Agreement.
Definitions and Interpretation
1.1 For purpose of this Agreement, the following terms shall have the meaning set
forth below:
(a) "Agent Bank" means KeyBank National Association, a national bank, of
which PRI is a registered agent of and which PRI designates for the
Bank Card Processing for Merchant pursuant to this Agreement.
(b) "Application Fee" means the then -current fee, if any, for becoming a
member of the Interchange System as charged by PRI.
(c) "Authorization' means the approval (by voice or electronically) of a Bank
Card Transaction by the Issuer or its authorized agent.
(d) "Authorization Center" Means the facility designated by PRI that provides
responses (by void or electronically) to your Authorization requests.
(a) "Bank Card" means a credit card or debit card issued by a member of
either Interchange System and bearing the Interchange System's trade
name, trademark, service mark, and/or symbols.
(I) "Bank Card Transaction" means a Sales Transaction, Credit Transaction,
or Chargeback.
(g) "Cardholder" means the person or Entity whose name is embossed on
the Bank Card or any authorized user of a Bank Card.
(h) "Chargeback" means an item representing a Sales Transaction disputed
by a Cardholder in accordance with applicable Operating Rules, or a
rejected Sales Draft that is returned unpaid for any reason by the Issuer
of the Bank Card.
(i) "Code Ten" is defined in Section 4.5 of these Additional Terms and
Conditions.
Q) "Credit Transaction" means a transaction between you and a Cardholder
through use of a Bank Card for exchange, return of, and/or adjustment on
merchandise or services sold in a Sales Transaction, as evidenced by a
Credit Voucher that you present to PRI for processing through the
Interchange System.
(k) "Credit Voucher" means a paper or electronic record of a Credit
Transaction through use of a Bank Card in a form provided or approved
by PRI.
(1) "Depository Bank" is defined in Section 3.2 of these Additional Terms and
Conditions.
(m) "Discount" means an amount equal to the total amount of a Sales Draft
multiplied by the appropriate Discount Rate.
(n) "Discount Rate" is defined in Section 7.2 of these Additional Terms and
Conditions.
(o) "EDC Merchant" means a Merchant that processes its Bank Card
Transactions through use of an EDC Terminal.
(p) "EDC Terminal" means a Point -Of -Sale Terminal that electronically
captures Bank Card Transaction data.
(q) "Effective Date" means the date on which this Agreement is received and
signed by a duly authorized representative of PRI at its California offices.
(r) "Entity" means a corporation, partnership, sole proprietorship, joint
venture, or other forth of organization.
(s) "Initial Term' is defined in Section 25.1 of these Additional Terms and
Conditions.
(t) "Interchange Rate" means any then -current fee charged by the
Interchange System for each Bank Card Transaction.
(u) "Interchange System' means the MasterCard International, Incorporated
system, or VISA U.S.A. Inc. or VISA International, Inc. system or both, or
their successors and assigns.
(v) "Issuer' means the institution that issued the Bank Card to a Cardholder.
(w) "Item" means a credit or debit processed through an Interchange System
arising from use of a Bank Card.
(x) "Merchant Collateral Account" is defined in Section 3.4 of these
Additional Terms and Conditions.
(y) "Minimum Monthly Fee" means the then -current monthly fee for
maintaining your membership in the Interchange System as charged by
PRI,
(z) "Operating Rules" means all respective bylaws, operating rules and
regulations, procedures, and guidelines promulgated by each
Interchange System, as they may from time to time be amended.
(aa) "Point of Sale Terminal" means the computer terminal or similar device at
your location that provides electronic responses to Authorization
requests, "Preauthorized Order" means a Cardholder's written
authorization to make one or more charges to the Cardholders Bank
Card account on a future date.
(bb) "Program" means the program of Merchant participation in the
Interchange Systems as described in this Agreement.
(cc) "Reserve Account" is defined in Section 3.6 of these Additional Terms and
Conditions.
(dd) "Sales Draft" means a paper or electronic record of a Sales Transaction in
a form provided or approved by PRI.
(ee) "Sales Transaction" means a transaction between you and a Cardholder
for sale or rental of merchandise or the provision of services through use
of a Bank Card as evidenced by a Sales Draft that you present to PRI for
processing through the Interchange System.
(ff) "Settlement Account" means the commercial checking account identified
in Section 3.1 of these Additional Terms and Conditions.
(gg) Each definition in this Agreement includes the singular and the plural, and
the word "including" means "including but not limited to." Reference to
any statute or regulation means such statute or regulation as amended at
the time and includes any successor statute or regulation. Section and
other headings in this Agreement are solely used for convenience and
shall not be considered in its interpretation.
Appointment of Agents
2.1 You hereby appoint PRI as your agent for the purpose of forwarding to Issuers all Sales
Drafts and Credit Vouchers arising from Bank Card Transactions. You shall process all
Bank Card Transactions through PRI.
Settlement and Merchant Collateral Accounts
3.1 You shall establish and maintain a Settlement Account with any bank in the
United States which (a) is a member of the Automated Clearing House system;
(b) will permit PRI or its designated Settling Bank to make electronic deposits to
and withdrawals from the Settlement Account, and (c) is reasonably requested
by PRI or its designated Settling Bank from time to time for the purpose of
obtaining the privilege of using and making debits and credits and information
inquiry to and concerning the Settlement Account.
3.2 You hereby appoint PRI as your agent and attomey-in fact and authorize PRI or
its designated Settling Bank to make any payment to you or to collect any
amount due and owing by you from time to time pursuant to this Agreement by
initiating and transmitting automatic credit and debit entries to the Settlement
Account, to obtain from the bank (the "Depository Bank") at which the
Settlement account is maintained, account and balance information and
statements, and to otherwise deal with the Settlement Account in your name
and stead for purposes of performing PRI's obligations and rights under this
Agreement. This authority shall remain in full force and effect until PRI has
received written notification from you of your termination in such time and in
such a manner as to afford PRI a reasonable opportunity to act on it. In the
event of termination of this Agreement, such revocation of authority shall not be
effective until PRI or its designated Settling Bank issues a certification to the
Depository Bank that you have paid all amounts due under this Agreement.
You agree to hold harmless Depository Bank for any action taken by Depository
Bank at the request of PRI or its designated Settling Bank consistent with the
terms of this Agreement.
3.3 You agree to deposit and maintain in the Settlement Account sufficient funds to
cover all fees, charges, and expenses due PRI and/or Agent Bank, including
those estimated by PRI as likely to arise, and shall maintain such funds in the
Settlement Account until all possible Chargeback rights recognized under the
Operating Rules shall have been exercised or expired for lapse of time, but in
no event for a period less than 120 days following termination of this
Agreement. PRI shall bill you for the amount of any fees, charges, or expenses
that exceed the balance of your Settlement Account. Payment in full for each
invoice shall be due within 15 days of receipt thereof. PRI may, at its option,
impose a late payment charge of two percent per month (or the maximum legal
rate, if less) on the past due balance in the event you fail to pay any fees,
charges, or expenses within 15 days after the same are due.
3.4 You acknowledge that PRI and Agent Bank may monitor your daily account
activity. If PRI or Agent Bank suspects or becomes aware of any abnormal,
irregular, suspicious, or fraudulent Merchant activity, including any change in
your business practices or activity that is inconsistent with the information
contained in or submitted as part of your Merchant Bank Card Application and
Agreement, that is inconsistent with your prior processing activities (such as
level of charges or number of Credit Vouchers), or that depart from ordinary
business practices of other merchants in the same or similar line of business,
PRI and Agent Bank may in their sole discretion, without notice to you, do one
or more of the following:
(a) Deposit any amounts otherwise payable to you by credit to the Settlement
Account pursuant to Section 8 of these Additional Terms and Conditions
in an account (the "Merchant Collateral Account) established in PRI's
name. Neither PRI, its designated Settling Bank, nor Agent Bank shall
have any liability for any losses of damages, whether direct, indirect,
actual, or consequential, suffered by you as a result of such diversion of
funds to the Merchant Collateral Account. You agree to pay with respect
to funds deposited (i) a one-time account opening fee of $25, (ii) a
monthly account maintenance fee of $15, (iii) fees and expenses of
independent auditors, and (iv) reasonable fees and expenses of counsel
to PRI and/or the Agent Bank in connection with inquiries, actions or
proceedings by Merchant through its attorneys.
Page 4 of 12 REV 10n9/05
(b) Freeze or request the Depository Bank to freeze the Settlement Account
so as to preclude any further withdrawals by you.
(c) Withdraw amounts from the Settlement Account by any means, including
wire transfer, and deposit such amounts in the Merchant Collateral
Account.
(d) Impose a monthly investigation fee up to the maximum set forth in your
Merchant Bank Card application and Agreement.
3.5 PRI or its designated Settling Bank shall have sole dominion and control of
funds in any Merchant Collateral Account. All funds that are or may be placed
in a Merchant Collateral Account shall be subject to a security interest in favor
of PRI. PRI or its designated Settling Bank may debit the Merchant Collateral
Account for any and all amounts owed by you under this Agreement. PRI may
retain funds in the Merchant Collateral Account for such time as PRI deems 4.4
necessary.
3.6 PRI may also, in its sole discretion, require Merchant to establish a Reserve
Account for such items as Chargebacks, including for mail and telephone
orders as provided by Section 19.1 of these Additional Terms and Conditions,
subject to terms and conditions to be established by PRI.
Sales Transactions
4.1 Honor All Bank Cards. You shall honor all valid and unexpired Bank Cards
when properly presented as payment from a Cardholder for a Sales
Transaction, provided that the requirements of this Section 4 are satisfied. You
shall maintain a policy that does not discriminate among customers seeking to
make purchases through use of a Bank Card. If you do not deal with the public
at large, you shall be deemed to have complied with this Section 4.1 K you
honor Bank Cards of Cardholders who have purchasing privileges with you. In
all events you shall not:
(a) establish, or post any signs that indicate that you require, any minimum
or maximum amount of purchase as a condition to honoring a Bank
Card;
(b) directly or indirectly impose any surcharge on any Sales Transaction;
(c) collect any applicable tax separately in cash or
(d) require a Cardholder to provide any personal information such as a home
or business telephone number or home or business address, or
additional identification such as a driver's license as a condition to
honoring a Bank Card, unless such information is required under Section
4 or Section 6of these Additional Terms and Conditions or other specific
circumstances cited in the Operating Rules.
4.2 Conditions of a Sales Transaction. You shall not complete any Sales
Transaction unless all of the following conditions are met:
(a) Except in the case of a mail or telephone order, a Bank Card is
presented;
(b) The Sales Transaction date is on or after the "valid from" date and before
the expiration date shown on the Bank Card;
(c) The signature on the Sales Draft is the same as that contained on the
signature panel of the Bank Card (which signature may, but need
not be the name embossed or printed on such Bank Card), or the
Cardholder resembles the person depicted in the picture (if any) on the
Bank Card;
(d) If you are using an EDC Terminal that reads the magnetic stripe on the
Bank Card, the embossed account number on the Bank Card matches
the account number displayed and/or printed from the EDC Terminal;
(a) If the Bank Card contains optional security features, the embossed
account number on the face of the Bank Card matches the account
number indent printed on the signature panel; and
(f) You obtain Authorization for the Sales Transaction.
4.3 Authorization of Sales Transaction. You shall obtain Authorization before
completing each Sales Transaction. The requirement of prior Authorization
includes without limitation each of the following circumstances:
(a) The Sales Transaction is completed in partial payment of a single
purchase;
(b) You will make a delayed presentment of the Sales Draft, which shall be
made in accordance with Section 4.10(b) of these Additional Terms and
Conditions; or
(c) The Sales Transaction (other than a mail or telephone order or a
Preauthorized Order) involves (i) a handwritten Sales Draft that does not
contain the imprint of your Merchant plate and the Bank Card, or (ii) an
unsigned Bank Card, in which case you must also comply with Section
4.4 of these Additional Terms and Conditions. If you fail to obtain
Authorization for any Sales Transaction, you shall in all events be
responsible for such Sales Transaction, and the Discount Rate otherwise
applicable thereto shall be increased by 1.5 percentage points. Except as
otherwise provided in Section 4.10(a) of these Additional Terms and
Conditions, you shall request Authorization for the total amount of the
Sales Transaction. If an expired Bank Card is presented and you are not
an EDC Merchant, you must contact the Authorization Center by
telephone. If the Authorization Center grants Authorization, you shall
type or legibly print the Authorization approval code on the Sales Draft.
An Authorization is effective only for that specific Sales Transaction and
shall not constitute a waiver of any other requirement. An additional
Authorization is not required where a gratuity is added by the Cardholder
N you have obtained Authorization for the Sales Transaction amount, and
the gratuity does not exceed 20 percent of the Sales Transaction amount.
If the gratuity exceeds 20 percent of the Sales Transactions amount, you
must obtain Authorization for the additional amount. You shall type or
legibly print both approval codes on the Sales Draft. You shall in all
events be responsible for the Sales Transaction regardless of any
Authorization if you complete a Bank Card when: the Cardholder is
present and does not have his or her Bank Card; the signature on the
Sales Draft is unauthorized as compared to the signature appearing on
the panel of the Bank Card; or, the signature panel on the Bank Card is
blank and you do not comply with Section 4.4 of these Addition Terms
and Conditions. Authorization of a Sales Transaction shall in no event
limit or preclude PRI from refusing to accept or revoking its receipt of a
Sales Draft as provided in Section 8 of these Additional Terms and
Conditions.
Unsigned Bank Card. If a Bank Card is not signed, before completing the Sales
Transaction, you must;
(a) Obtain Authorization;
(b) Obtain and review positive identification to determine that the user is the
Cardholder;
(c) Unless otherwise prohibited under applicable law, indicate such positive
identification (including any serial number and expiration on the Sales
Draft; and require the Cardholder to sign the signature panel of the Bank
Card. Positive identification must consist of a current, official government
identification document such as a passport, driver's license, or state
identification card that bears the Cardholder's signature. If recording of
information is prohibited under applicable law, you should note the type of
additional identification (but not record the information contained therein)
on the Sales Draft.
4.5 Code Ten. You shall telephone the Authorization Center and state to the
Authorization clerk "This is a Code Ten" under the following circumstances:
(a) You believe there to be a discrepancy in the signature on the Bank Card
and the signature on the Sales Draft or are uncertain whether the person
presenting the Bank Card is the same person depicted on the photograph
(if any) on the Bank Card;
(b) The embossed number displayed and/or printed from your EDC Terminal
does not match the account number embossed on the Bank Card;
(c) The response to a Point -Of -Sale Terminal Authorization request so
directs; or
(d) You suspect that the Bank Card may be counterfeit or stolen, or you have
any other reason to be suspicious of the Sales Transaction. You shall
then await instructions from the Authorization clerk and shall follow those
instructions when given. The instructions given by the Authorization clerk
shall not constitute a waiver of any provision of this Agreement.
4.6 Retention of Bank Cards. You shall use your best efforts, by reasonable and
peaceful means, to retain a Bank Card under the following circumstances;
(a) While making an Authorization request or Code Ten call:
(b) Until the Authorization Center can be contacted regarding a Code 10, as
required by Section 4.5 of these Additional Terms and Conditions, if the
Authorization Center is closed or cannot be reached; and
(c) After completing a telephone call to the Authorization Center, if the
Authorization clerk directs you to do so. You shall return the Bank Card
to the Cardholder after completing a telephone call to the Authorization
Center, unless directed not to do so.
4.7 Mail Order or Telephone Order. If you are authorized to make a Sale
transaction pursuant to a mail or telephone order subject to the provisions of
Section 19 of these Additional Terms and Conditions, you must use equipment
running an address verification service. For each Sales Transaction, you shall
obtain the valid date (if indicated on the Bank Card) and expiration date of the
Bank Card and, when Authorization is required, forward it as part of the
Authorization request. A Sales Draft based on a mail or telephone order may
be completed without Cardholder signature or imprint; provided, however, that
you must maintain shipping documents indicating the address where goods are
shipped and obtain signatures of the individual or Entity receiving the goods
whenever possible. You shall type or legibly print on the signature line on the
Sales Draft the letters "MO" for a mail order and the letters "TO" for a telephone
order. You shall be deemed to represent and warrant to PRI that the person
that placed the mail or telephone order is the Cardholder of the Bank Card.
4.8 Preauthorized Orders. You may accept a Preauthorized Order for a Sales
Transaction only if the Cardholder has signed a written authorization for the
preauthodzed charge. The written authorization must at least specify the Sales
Transaction amount(s) charged to the Cardholder's account, the frequency of
the charges (if applicable), and the duration of time for which such Cardholder's
authorization is granted. If Cardholder authorization is renewed, the Cardholder
must complete and deliver to you a subsequent written authorization for
continuation of such merchandise or services to be charged to Cardholder's
account. You shall retain the written authorization and make it available upon
request to PRI. You shall not deliver merchandise or perform services covered
by a Preauthorized Order after you receive actual notification that the written
authorization has been canceled or that the Bank Card covered by the
Preauthorized Order is not to be honored. For each Preauthorized Order, you
shall type of legibly print the letters "PO" on the signature line of the Sales Draft.
4.9 Multiple Sales Drafts. You shall include all items of merchandise and services
purchased in a single Sales Transaction in the total amount on a sing) Sales
Draft in every case except for:
(a) The balance of the amount due is paid by the Cardholder at the time of
sale in cash, by check, with another credit or debit card or any
Page 5 of 12 REV 10/19/O5
combination thereof. In all such cases, Authorization is required for the
amount of the purchase effected with the Bank Card.
(b) The Cardholder executes two separate Sales Drafts in a delayed delivery
Sales Transaction. In such case, a deposit is made by completion of one
Sales Draft and payment of the balance is tendered by completion of a
second Sales Draft, the latter being conditioned upon delivery of
merchandise or performance of services. Separate Authorization
approval codes shall be obtained for and recorded on each Sales Draft,
which shall also contain the words "delayed deposit," and the words
"deposit" or "balance," as appropriate. You shall not deposit the Sales
Draft labeled "balance" until shipment of the merchandise or performance
of the services.
4.10 Product Changes. Merchant shall submit Bank Card Transactions for
approval by PRI only for the product or products listed in the Merchant Bank
Card Application and Agreement. Merchant shall not submit Bank Card
Transactions for any product, including goods and services, not previously
approved in writing by PRI.
Sales Drafts
5.1 You shall use a Sales Draft in each Sales Transaction. Each Sales Draft shall
be imprinted with the appropriate legends in accordance with Section 6 of
these Additional terms and Conditions. The Bank Card must actually be
presented, even if for some reason the information embossed thereon is
written in by hand (unless the Sales Transaction is transacted by mail or by
telephone in accordance with Section 4.7 and Section 19 of these Additional
Terms and Conditions). The Sales Draft shall also contain:
(a) the date of the Sales Transaction;
(b) the total cash price of the sale (including any applicable state or federal
taxes), or (I) the amount to be charged if a partial payment is made in
cash or by check in accordance with Section 4.10 (a) of these Additional
Terms and Conditions, or (h) the amount to be charged if a partial
payment is made as a deposit or as the balance owing after a deposit
has been made in accordance with Section 4.10(b) of these Additional
Terms and Conditions.
(c) A short description of the merchandise or services;
(d) The words "delayed deposit," "deposit," or "balance" as appropriate and
the Authorization approval code if Authorization for delayed deposit is
given in accordance with Section 4.3(c) and Section 4.10(b) of these
Additional Terms and Conditions;
(e) The letters "MO" (mail order), "TO" (telephone order), or "PO"
(Preauthorized Order), if applicable to the Sales Transaction; and
(f) If you are using an EDC Terminal, the Cardholder's account number and
your name and location code (or city and state).
5.2 The Cardholder shall sign the Sales Draft unless the Sales Transaction is
completed by mail or telephone subject to Section 4.7 and Section 19 of these
Additional Terms and conditions or is a Preauthorized Order. The Cardholder
shall not be required to sign the Sales Draft until the final Sales Transaction
amount is known and indicated in the total column. You shall deliver a true and
completed copy of the Sales Draft to the Cardholder.
5.3 You shall not alter any Sales Draft after it has been signed by the Cardholder.
Im rin
6.1 You shall use a suitable electronic printer or imprinter to print legibly on each
Sales Draft and Credit Voucher the embossed legends from the Bank Card
presented by the Cardholder and your Merchant plate. If either or both legends
are not so printed and you are not within one of the exceptions noted in Section
6.2 of these Additional Terms and Conditions, you must note legibly on the
Sales Draft or Credit Voucher sufficient detail to identify the Cardholder, the
Issuer, and you. Such detail shall include at least the Cardholder's name and
account number; the ICA or BIN number, the valid date (if any), and the
expiration date of the Bank Card; any company name; the name of the trade
style of the Issuer as it appears on the face of the Bank Card; your name and
address; and any other embossed data such as security symbols.
6.2 You are not required to obtain an imprint of either legend if:
(a) you are an EDC Merchant and your EDC Terminal produces Sales Drafts
and Credit Vouchers that contain the information specified in t Operating
Rules; or
(b) The Bank Card Transaction is based on a mail or telephone order subject
to Section 4.7 and Section 19 of these Additional Terms and Conditions
or is a Preauthorized Order subject to Section 4.8 of these Additional
Terms and Conditions.
6.3 Except as otherwise provided in Section 4.10(a) of these Additional Terms and
Conditions, you shall request Authorization for the total amount of the Sales
Transaction. If an expired Bank Card is presented and you are not an EDC
Merchant, you must contact the Authorization Center by telephone. If the
Authorization Center grants Authorization, you shall type or legibly print the
Authorization approval code 6.3. The exception set forth in Section 6.2(a) of
these Additional Terms and Conditions shall not apply if the EDC Terminal or
printer is not functioning or if your EDC Terminal does not read the magnetic
stripe on the Bank Card. In such cases, you must obtain an imprint of both
legends or otherwise comply with Section 6.1 of these Additional Terms and
Conditions.
6.4 Except in the case described in Section 6.2(a) of these Additional Terms and
Conditions, if you complete a Bank Card Transaction without imprinting the
Bank Card, whether or not Authorization is obtained, you shall be deemed to
represent and warrant to PRI the true identity of the customer as the Cardholder
unless you have obtained independent evidence of the Cardholder's true
identity. In any case in which you obtain independent evidence, you must
record the information contained in the independent evidence on the Sales
Draft, unless recording is prohibited under applicable law, in which event you
must note the type of evidence (but not record the information contained
therein) on the Sales Draft.
6.5 You must immediately notify PRI in the event that any information on your
Merchant plate is changed.
Deposit of Sales Drafts
7.1 You shall not deposit a Sales Draft with PRI until you have performed all of your
obligations relating to the Sales Transaction. You shall not, directly or
indirectly, deposit any Sales Draft with PRI that did not originate in a legitimate
Sales Transaction in the ordinary course of your business as described in the
Merchant Bank Card Application and Agreement.
7.2 The amount of the Discount Rate applicable to each Sales Draft, and any
adjustments to the Discount Rate, shall be determined by PRI in its sole
discretion. Without limiting the generality of the preceding sentence, the
otherwise applicable Discount Rate will be increased by 1.5 percentage points
with respect to (i) Sales Transactions in which an Authorization was not
obtained, (ii) except as otherwise required by these Additional Terms and
Conditions with respect to specific Sales Drafts (such as "delayed deposit" or
"balance" transactions), deposits or batch transmissions two (20 or more days
after the date of the included Sales Transactions or Credit Transactions, (iii)
transactions including Bank Cards issued outside the United States, (iv) Sales
Transactions in which use of an address verification service was required by the
Additional Terms and Conditions but Merchant failed to use such service, (v)
any Keyed Bank Card Transaction (except for Merchants approved by PRI or
Agent Bank as a keyed Merchant), and (vi) any Bank Card Transaction
involving a corporate card or corporate purchase card. You shall deposit a
copy of each Sales Draft with PRI not later than the bank business day
following the date of the Sales Transaction, except:
(a) In those cases when goods are shipped or services performed after the
expiration of the otherwise applicable one bank day period, the deposit
shall not be made sooner than the shipment or performance, and shall be
made immediately thereafter;
(b) In those cases in which the Cardholder has agreed in writing to a delayed
presentment, and you request and receive an Authorization for delayed
presentment, deposit shall be made within the period permitted for
delayed presentment; or
(c) In those cases in which you are obligated by law to retain the Sales Draft
or return it to the Cardholder upon timely cancellation, the deposit shall be
made within ten bank business days after the date of the Sales
Transaction.
Receipt of Sales Drafts
8.1 Except as otherwise provided in this Agreement, PRI shall receive and process
all Sales Drafts deposited with it that comply with the terms and conditions of
this Agreement and Operating Rules. PRI or its designated Settling Bank shall
pay you the total face amount of each Sales Draft, less the applicable Discount
and any adjustments determined daily according to information contained in the
Merchant Bank Card Application and Agreement, by credit to the Settlement
Account. All payments, credits, and charges are subject to audit and the final
checking by PRI, and prompt adjustment shall be made for inaccuracies
discovered.
8.2 Notwithstanding any other provision of this Agreement, PRI may refuse to
receive any Sales Draft or revoke its prior receipt if:
(a) The Cardholder disputes liability on any of the following grounds: (i) that
the merchandise, services, or other things of value received by the
Cardholder do not conform to the written characterization appearing on
the Sales Draft or accompanying support documentation, and the
Cardholder has returned or attempted to return the merchandise or other
things of value or has canceled or attempted to cancel the services; (ii)
that the merchandise or other things of value covered by the Sales Draft
that were to be shipped (1) were not received by the Cardholder or (2)
were returned by the Cardholder because they were received broken or
otherwise not suitable for the purpose for which they were sold; (iii) that
the services covered by the Sales Draft were not rendered because you
were unwilling or unable to perform such services; (iv) that the
merchandise, services, or other things of value covered by the Sales Draft
were paid for by another means; (v) that you received notification from
the Cardholder of revocation or nonrenewal of Authorization of
cancellation of account or payment prior to completion of the Sales Draft
evidencing a Preauthorized Order; (vi) that a Credit Voucher or some
other advice with an account number and amount issued by you has not
been processed to the Cardholder's account; or (vii) the Cardholder
asserts a claim or defense against the Issuer under federal or state
statute or regulation or other local law that provides the Cardholder with
additional rights, and all requirements of the federal or state statute or
regulation or the local law are satisfied; or
Page 6 of 12 REV 10/19/05
(b) The Sales Transaction giving rise to the Sales Draft was not made in
compliance with all terms and conditions of this Agreement, the
Operating Rules, or any other applicable laws and regulations of any
governmental authority, including: (i) that you did not provide the Issuer
with a legible reproduction of the Sales Draft, the original Sales Draft, or
a substitute Sales Draft within five bank business days following the date
of the request; (ii) that, in response to a retrieval request, you provided
the Issuer with an illegible or incomplete copy or substitute of the Sales
Draft; (III) that you did not obtain Authorization for the Sales Transaction;
(iv) that you were notified in response to an Authorization request that the
Bank Card was not to be honored or received a negative account number
verification; (v) that the Cardholder account number, Sales Transaction
amount, or your name on the Sales Draft is missing or not sufficiently
legible to allow proper posting; (vi) that the account number on the Sales
Draft does not match any account number on the Issuer's master files;
(vii) that you erroneously received payment for a Sales Transaction
processed by another merchant; (viii) that you did not submit all of the
applicable Sales Drafts within five bank days from the earliest processing
date stamped on your transmittal summary clearing draft; (ix) that the
Sales Draft on its face shows that there was an error in addition and the
amount shown as total is incorrect; (x) that the amount of the Transaction
was increased or reduced (for a credit) without the Cardholder's
permission; (xi) that the account number on the Sales Draft does not
match the account number obtained from the magnetic stripe on the
Bank card; (xii) that the Cardholder's account was incorrectly posted as a
result of (1) using an incorrect Bank Card Transaction code (for example,
a credit was posted as a sale), or (2) processing the imprinted amount
instead of the correct Sales Transaction amount as evidenced by other
information on the Sales Draft; (xiii) that the Cardholder or Issuer
suspects that a Sales Transaction may have been charged more than
once; (xiv) that no signature appears on the Sales Draft, and the
Cardholder states in writing that he or she did not make or authorize the
Sales Transaction; (xv) that, unless you fall within one of the exceptions
set forth in Section 6 of these Additional Terms and Conditions, the Sales
Draft does not contain an electronic print or imprint of the embossed
legends from the Bank Card and your Merchant plate; (xvi) that the
Cardholder states that neither he or she nor anyone authorized by him or
her engaged in the Sales Transaction; (xvii) that the valid date embossed
on the Bank Card had already passed on the Sales Transaction date;
(xix) that the expiration date imprinted on the Sales Draft had already
passed on the Sales Transaction date; (xx) that you did not provide the
Issuer with the amount of the Sales Transaction in the original Sales
Transaction currency; (xxi) the Sales Draft resulted from the fraudulent
use of account numbers or any abnormal, irregular, or fraudulent
Merchant activity, including any activity described in Section 3.4 of these
Additional Terms and Conditions; (xxii) that the Sales Transaction date is
more than 30 days prior to the central site processing date; or (xxiii) that
PRI has any other basis to conclude there is any other violation of this
Agreement, the Operating Rules, or any other applicable laws and
regulations of any governmental authority.
8.3 In the event of a revocation of the prior receipt of the Sales Draft, you shall
pay PRI any amount previously paid to you for such Sales Draft. PRI or its
designated Settling Bank may withdraw this amount from the Settlement
Account.
Credits to Settlement Account as Full Payment
9.1 You agree that receipt of the Sales Draft by PRI and the making of an
appropriate credit to your Settlement Account shall constitute payment to you
for merchandise or services furnished by you to or for the account of the
Cardholder. After an appropriate credit is made, you shall not make any claim
against or receive payment from any person with respect to the same Sales
transaction, unless PRI thereafter revokes its receipt in accordance with
Section 8 of these Additional Terms and Conditions.
Refunds and Adjustments
10.1 You shall establish and maintain a fair policy for the exchange or return of, or
adjustments on merchandise or services sold in Sales Transactions. Provided
that proper disclosure is made at the time of the Sales Transaction, you may:
(a) not accept merchandise in return or exchange and not issue a refund to a
Cardholder, or
(b) only accept merchandise in immediate exchange for similar merchandise
of a price equal to the amount of the original Sales Transaction; or
(c) accept merchandise in return and deliver to Cardholder an in-store credit
for the value of the merchandise that may be used only in your place(s)
of business; or
(d) if permitted by applicable law, stipulate special circumstances agreed to
by the Cardholder (e.g., late delivery, delivery charges, insurance
charges, or other non-credit related charges) as terms of the Sales
Transaction, but under no circumstances shall a surcharge be assessed
for use of a Bank Card.
10.2. Proper disclosure shall be deemed given if the words "No Refund," "Exchange
Only," "In -Store Credit Only" (or similar words), or the special terms, as
applicable, appear legibly, in letters approximately '% inch high and in close
proximity to the space provided for the Cardholder's signature, on all copies of
your Sales Drafts or an invoice presented to the Cardholder for signature. If
you do not make proper disclosure, then you shall give the Cardholder a full
Page 7 of
refund upon return of any merchandise or termination or cancellation of any
services purchased from you.
Credit Vouchers
11.1 You shall not make cash refunds or payments to any person for returns or
adjustments described in Section 10 of these Additional Terms and Conditions;
instead, when a refund or payment is due for any return or adjustment, you
shall issue a Credit Voucher. Each Credit Voucher shall be imprinted with the
appropriate legends in accordance with Section 6 of these Additional Terms
and Conditions. The Bank Card must actually be presented, even if for some
reason the information embossed thereon is written in by hand. The Credit
Voucher shall also contain:
(a) the date it is issued;
(b) the total amount of the refund or adjustment; and
(c) a brief description of the merchandise or services in connection with
which the refund or adjustment is to be made.
11.2 You shall sign and date the Credit Voucher and deliver a true and completed
copy of the Credit Voucher to the Cardholder.
11.3 You shall not issue any Credit Voucher with respect to merchandise or services
paid for in cash that are returned or canceled or to which a fee adjustment is
allowed or without having completed a previous Sales Transaction with the
same Cardholder. You shall not accept payment from a Cardholder for the
purposes of preparing and depositing a Credit Voucher that will result in a
deposit to the Cardholder's account.
Deposit of Credit Vouchers
12.1 If you are an EDC Merchant, you shall electronically deposit a copy of each
Credit Voucher with PRI not later than the close of business on the next bank
business day following the date of the issuance. If you are not an EDC
Merchant, you shall deposit the bank processing copy of each Credit Voucher
not later than the next bank business day following the date of its issuance.
You agree to pay PRI the total amount of each Credit Voucher issued by you
which shall be received by PRI, less any Discount or adjustments determined
according to the information contained in the Merchant Bank Card Application
and Agreement. PRI or its designated Settling Bank shall arrange a credit to
the Bank Card account of the Cardholder named on the Credit Voucher in the
total face amount of such Credit Voucher.
12.2 You warrant and covenant that each Credit Voucher issued by you which is
received by PRI represents a bona fide refund or adjustment on a Sales
Transaction by you with respect to which a Sales Draft has been accepted by
PRI.
Disputes with Authorized Users
13.1 All disputes between you and any Cardholder relating to any Bank Card
Transaction shall be settled between you and the Cardholder. You agree to
indemnify, defend, and hold PRI harmless from all claims and defenses arising
out of any Bank Card Transaction, whether or not the other party ultimately
prevails. You agree to pay all of the expenses, including reasonable attorney
fees, of PRI in seeking to overcome such claims and defenses in the event PRI
chooses to do so.
Application Fee: Minimum Monthly Fees
14.1 You agree to pay PRI any Application Fee that may be in effect at the time of
this Agreement. The amount of this fee, if any, is specified in the Merchant
Bank Card Application and Agreement and is nonrefundable,
14.2 You agree to pay PRI the Minimum Monthly Fee specified in the Merchant Bank
Card Application and Agreement. The amount of all Discounts determined by
PRI in accordance with Sections 7 and 8 of these Additional Terms and
Conditions shall be credited toward the Minimum Monthly Fee. If the Minimum
Monthly Fee exceeds the total amount of Discounts, PRI or its designated
Settling Bank shall debit your Settlement Account the balance due. Any
increase in the monthly fee imposed from time to time by an Interchange
System to maintain your membership therein shall automatically and
contemporaneously increase the Minimum Monthly Fee by a like amount,
without prior notice to you.
14.3 You agree to pay PRI and/or Agent Bank, as applicable, all fees, expenses, and
other charges provided for in this Agreement. You acknowledge that (i) the
amounts of any such expenses and other charges shall automatically and
contemporaneously reflect any increases in charges to PRI from an Interchange
System or third -party vendor without prior notice to you, and (ii) the amounts of
any such fees may be increased at any time and from time to time by PRI
and/or Agent Bank, as applicable, in their respective sole discretion upon fifteen
(15) days prior written notice to you.
Point -Of -Sales Terminals and Printers
15.1 The terms and conditions of this Section 15 shall apply N you are purchasing
Point -Of -Sales Terminals or printers, using Point -Of -Sale Terminals or printers,
or accessing other financial services using Point -Of -Sales Terminals as shown
in this Agreement:
(a) Physical installation and telephone lines shall be your responsibility.
Upon order and confirmation the connection is complete, PRI shall
12 REV 10n9/05
provide the download line necessary to begin using the unit as a Point -
Of -Sale Terminal on PRI's system.
(b) Payments may be deducted from your Settlement Account upon receipt
of each agreement for sale or use of Point -Of -Sale Terminals or printers
or access to services by PRI, and each month thereafter, if monthly
assessments are made. PRI shall bill you for the amount of any charges
that exceed the balance of your Settlement Account. Payment in full for
each invoice shall be due within 15 days of receipt. PRI may, at its
option, impose a late payment charge of two percent per month (or the
maximum legal rate, if less) on the past due balance in the event you fail
to pay any charges within 15 days after they are due.
(c) To the extent allowed by law, PRI shall take reasonable measures to
extend the manufacturers' standard warranties to you.
(d) PRI's obligation to sell or otherwise provide any Point -Of -Sale Terminals
is conditioned upon the availability of the Point -Or -Sale Terminals or
printers from PRI' customary source of supply, in sufficient quantities to
supply your requirements and PRI' other requirements.
(a) You shall pay all applicable sales, use, personal property, and other
taxes applicable to the sale, service, use, or ownership of any Point -Of -
Sale Terminal or printer regardless of whether taxes are invoiced by PRI.
15.2 PRI shall have no liability for any negligent design or manufacture of any Point -
Of -Sale Terminal or printer. PRI's entire liability, if any, and your exdusive
remedy in all situations, shall be to perform repair services on any inoperative
Point -Or -Sale Terminal or printer sold by PRI. PRI shall not be liable for any
damages resulting from any delay in performance or nonperformance caused
by circumstances beyond PRI's control, including, but not limited to, act of God,
fire, flood, war, governmental action, accident, labor trouble or shortage,
inability to obtain a Point -Of -Sale Terminal or printer, parts, service, or
transportation, or other events of similar effect in connection with PRI'
obligation, if any, to sell or otherwise provide any Point -Of -Sale Terminal or
printer; and PRI's obligation, if any, to provide access to other financial
services.
Imprinter Purchase
16.1 If you are not an EDC Merchant, you shall use imprinters acceptable to PRI. If
you are an EDC Merchant, you shall maintain at least one imprinter for back-up
purposes. PRI will arrange for the sale of any reasonable number of imprinters
that you require for your own use under this Agreement. The sale price shall
be determined in accordance with the information contained in the Merchant
Bank Card Application and Agreement and may be debited from your
Settlement Account or paid in advance.
Promotional Materials and Other Forms
17.1 PRI shall make available to you, at Merchant's expense, such promotional
materials as PRI deems appropriate indicating your participation in the
Interchange System. PRI shall also provide you, at Merchant's expense, Sales
Drafts, Credit Vouchers, and any other forms that may be required by PRI.
Display of Materials: Trademarks
18.1 You agree to prominently display promotional materials provided by PRI
regarding your participation in the Interchange System in your place(s) of
business. Use of such promotional materials, and use of any trade name,
trademark, service mark, or logotype associated with Bank Cards, shall be
limited to informing the public that Bank Cards will be accepted at your place(s)
of business. You agree to abide by such directions for the use of promotional
materials as may be provided by PRI from time to time. Any other use of such
promotional materials, or use of any trade name, trademark, service mark, or
logotype associated with Bank Cards is prohibited unless expressly authorized
in writing by PRI.
18.2 You shall continue to use any such promotional materials provided to you so
long as this Agreement is in effect. Upon termination of this Agreement, you
shall immediately discontinue and shall no longer use any promotional
materials provided by PRI, or any trade name, trademark, service mark, or
logotype associated with Bank Cards. All unused promotional materials or any
other materials furnished by PRI shall be returned promptly upon termination of
this Agreement
requests or Chargebacks exceed one percent of your monthly Sales
Transaction volume, PRI may impose a lower cap or require increased reserves
without prior notice.
19.3 PRI's security review procedures may result in any Bank Card Transactions for
mail and telephone orders being held for verification purposes at any time.
19.4 Merchant acknowledges that all mail and telephone order charges are difficult
to defend against Chargeback requests, so Merchant shall take reasonable
precautions to protect against Chargebacks, including:
(a) Delivering merchandise only to the Cardholder's billing address where the
Issuer sends the Interchange System billing;
(b) Using a delivery service that maintains shipping logs and requires
signature by the person receiving merchandise; and
(c) Using address verification service and not processing sales unless all
information matches information from the address verification service.
19.5 Notwithstanding any other provisions in this Agreement, you shall not solicit or
accept Cardholder computer -generated orders for any Bank Card Transaction
without the prior, written consent of PRI and on such terms and conditions as
PRI, in its sole discretion, may require.
Ooerational Rules: Additional Terms
20.1 This Agreement is made subject to the Operating Rules. As part of your
participation in the Program, you agree to be bound by and to fully comply with
the Operating Rules and by all amendments or additions that may be made
from time to time. You agree to indemnify and hold harmless PRI or its
designated Settling Bank, the Interchange System, and their respective
members for any failure by you to comply with the Operational Rules. The
Operational Rules shall control to the extent of any inconsistency with this
Agreement. This Agreement shall be automatically amended to reflect any
change in any applicable Operational Rule.
20.2 You represent and warrant to PRI that all information set forth in this
Agreement, including all of the information provided to PRI as part of your
Merchant Bank Card Application and Agreement, is true and complete. You
covenant and warrant that all additional materials that you may submit to PRI in
the future with respect to the Program shall be true and complete. You
acknowledge that PRI, as part of the approval and retention process, has relied
and will rely on information and materials submitted by you, including for the
purpose of credit analysis, because your credit standing is an integral part of
the economic basis for this Agreement. You agree to promptly notify PRI in
writing of any changes that may occur from time to time regarding any such
information and materials.
Records and Business Practices
21.1 Inspection of Books and Records. Representatives of PRI and the Interchange
System may, during normal business hours, inspect, audit, and make copies of
your books, accounts, records, and files pertaining to any Bank Card
Transaction or the Program. The Interchange System requires you to retain
either the original or a microfilm copy original of all records of each Bank Card
Transaction, including any refunds or credits, for a minimum period of three
years from the processing date. You may be required to retain such records for
a longer period under federal law or state law, or both. You shall retain all
original or microfilm copies of the original Sales Drafts and Credit Vouchers in
chronological order based on the Bank Card Transaction date.
21.2
18.3 You shall not use any promotional materials or any trade name, trademark,
service mark, or logotype associated with Bank Cards in any way that suggests 21.3
or implies that the Interchange System endorses any goods or services other
than Bank Card services. You shall refer to the Interchange System in
describing eligibility for your goods, services, or membership. You shall not use
any trade name, trademark, service mark, or logotype associated with Bank
Cards on any terminal that dispenses scrip.
Mail and Telephone Orders
19.1 You shall not engage in the systematic solicitation of mail and telephone orders
without the prior written authorization of PRI. PRI may require that a Reserve
Account be established before or during commencement of any such
processing, or at any time thereafter, subject to terms and conditions to be
established by PRI.
19.2 If and when PRI authorizes you to engage in the systematic solicitation of mail
and telephone orders, PRI shall establish a maximum monthly sales volume for
the Merchant processing account. Sales Transactions that exceed the monthly
cap are subject to holds by PRI for a period of 90 days. In the event retrieval
Disclosure of Information. You shall not, under any circumstances, disclose
any Cardholder's name, Cardholder's account information, or other personal
information in the form of imprinted Sales Drafts and Credit Vouchers, copies of
imprinted Sales Drafts and Credit Vouchers, mailing lists, tapes, or other media
obtained in connection with any Bank Card Transaction to any person or Entity
other than PRI, except as specifically required by law or the express terms of
this Agreement. You shall store all media containing Cardholder names,
Cardholder account information, and other personal information, as well as
Bank Card imprints (such as Sales Drafts and Credit Vouchers, auto rental
agreements, and carbons) in an area limited to selected personnel and, prior to
discarding any such information, destroy it in a manner that renders the data
unreadable.
Obligations to Cardholders. You shall fulfill completely all of your obligations to
each Cardholder under the terms of any Bank Card Transaction. By presenting
a Sales Draft to PRI, you warrant and covenant that the goods or services sold
have been or will be delivered or performed in accord with these Additional
Terms and Conditions.
21.4 Other Charges and Conditions. In connection with any Sales Transaction, you
shall not, directly or indirectly, require any Cardholder to pay a surcharge, or to
pay any part of any Discount or charge imposed upon you by this Agreement,
through any increase in price or otherwise. You shall not, directly or indirectly,
require any Cardholder to pay any contemporaneous finance charge or any
special charge not also required from a person paying cash. You shall not
extract any special agreement or security from any Cardholder. This Section
21.4 shall not, however, be construed as prohibiting discounts to customers for
payments in cash or for charges (such as bona fide commissions, fees for
special handling or expedited services, postage and handling, and similar
charges that are charged to the Cardholder regardless of the form of payment.
Page 8 of 12 Uv 10/19/05
21.5 Cash Payments and Taxes. You shall not receive any payment from a
Cardholder with respect to charges for merchandise or services that are
included on any Sales Draft. The amount of any applicable federal, state, or
local tax shall be shown separately on the Sales Draft and shall not be
separately collected.
21.6 No Laundering. You shall deposit Sales Drafts that represent bona fide sales
of merchandise or services by you in the ordinary course of your business only.
You shall not deposit any Sales Draft arising from (a) sale of merchandise or
services other than the merchandise or services specified in the Merchant
Bank Card Application and Agreement; or (b) sale of merchandise or services,
either directly or indirectly, by any other source or in connection with any other
business.
21.7 Refinancing of Previously Existing Obligations. You shall not deposit any
Sales Draft that represent the refinancing of an existing obligation of a
Cardholder, including any obligation (a) previously owed to you; (b) arising
from the dishonor of the Cardholder's personal check; or (c) representing the
collection of any other preexisting obligation.
21.8 Re -depositing of Bank Card Transactions. You shall not re -deposit any Sales
Draft that has been previously charged back and not re -presented. This
subsection applies to Bank Card Transactions processed with or without the
Cardholder's permission.
21.9 Fraudulent Transactions. You shall not present any records of Bank Card
Transactions that you know or should know to be fraudulent or not authorized
by the Cardholder. For purposes of this Section 21.9 and any other part of this
Agreement, you shall be responsible and liable for the actions of your
employees.
21.10 Magnetic Stripe EDC Terminal. If you are using an EDC Terminal that reads
the magnetic stripe on a Bank Card, you shall not print or display more
information that than which is normally embossed on the front of the Bank
Card.
21.11 Discriminatory Practices. You shall not engage in acceptance practices or
procedures that discriminate against, or discourage use of, any Bank Card in
favor of any other competing brand that you also accept.
21.12 Script. You shall not deposit any Sales Draft that arises from acceptance of a
Bank Card at terminals that dispense scrip.
21.13 Traveler Cheques. You shall not effect a Sales Transaction representing the
sale of traveler cheques if the sole purpose of the sale is to allow the
Cardholder to make a cash purchase of merchandise or services from you.
Indemnification: Additional Costs
22.1 You shall indemnify and hold PRI or its designated Setding Bank, the
Interchange System, and their respective officers, directors, agents,
successors, and assigns harmless from and against all liability, loss, damage,
claim, action, and expenses (including reasonable attorney fees) based upon
or arising out of (a) any breach by you of any representation, warranty, or
covenant set forth in this Agreement or (b) any failure by you to fully comply
with the terms and conditions of this Agreement and the Operating Rules.
22.2 You shall be liable for and shall reimburse both PRI for any and all costs,
expenses, and charges, including, without limitation, reasonable attorney fees
and administrative costs and fines incurred by PRI in the (a) collection of any
amount owed by you under this Agreement; (b) enforcement of any term of this
Agreement; or (c) processing of Chargebacks.
Limitation of Liability
23.1 IN NO EVENT SHALL PRI OR ITS DESIGNATED SETTLING BANK BE
LIABLE UNDER ANY THEORY FOR ANY LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSE QUENTIAL
DAMAGES WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
LEGAL OR EQUITABLE THEORY.
Disclaimer of Warranties
24.1 PRI SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY. THIS AGREEMENT IS A SERVICE AGREEMENT,
AND THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE SHALL
NOT APPLY TO IT.
Renewal and Termination of Agreement
25.1 The Term of this Agreement shall be three years commencing on the later of
(a) the date of acceptance of this Agreement by a duly authorized
representative of PRI at its California offices; or (b) the date that Merchant
commences processing. Thereafter, this Agreement shall be automatically
renewed for successive like three year terms unless sooner terminated
pursuant to the terms and conditions of this Section 25.1. This Agreement may
be terminated by PRI or Agent Bank for any cause or reason or for no reason
whatsoever by written notice to the other party, and such termination shall
become effective on the later of either 15 days from the date of delivery of the
notice or the termination date specified in the notice. In addition, if you default
in any material respect in the performance of any of your obligations under this
Agreement or take any action that PRI considers to be injurious to Cardholders,
or in the event the Interchange System notifies PRI that you are prohibited from
participating in the Interchange System, PRI may terminate that Agreement
immediately by giving oral or written notice to you, and termination shall
become effective immediately. The rights of PRI to terminate under this Section
25.1 are cumulative, and the existence of a right under one provision is not
exclusive of a right under any other provision.
25.2. In addition to specific obligations otherwise noted in this Agreement, each of the
following obligations shall continue after the effective date of termination:
(a) Your obligation to maintain sufficient funds in the Settlement Account as
required by Section 2 of these Additional Terns and Conditions
(b) Your obligation to deposit all Sales Drafts and Credit Vouchers within the
time periods specked in this Agreement for Bank Card Transactions
(c) Made prior to the Effective date of termination;
(d) Your obligation with respect to Sales Drafts and Credit Vouchers
accepted by PRI as set forth in this Agreement prior to the effective date
of termination;
(a) Your obligation not to use any promotional materials, trademarks, service
marks, and logotypes associated with Bank Cards after the effective date
of termination of this Agreement;
(f) Your obligation to return all unused promotional materials as set forth in
this Agreement;
(g) Your obligation to make your books and records pertaining to Bank Card
Transactions available for inspection for at least three years from the date
of the Bank Card Transaction;
(h) Your obligation not to disclose information pertaining to a Cardholder's
account; and
(i) Your obligation to fulfill completely all of your obligations to Cardholders.
Assignment: Third Party Agents
26.1 Merchant shall not assign, subcontract, license, franchise, or in any manner
attempt to extend to any third party any right or obligation under this
Agreement. PRI may assign this Agreement at any time without notice.
26.2 You may designate a third party, which does not have a direct agreement with
PRI, as your agent for the purpose of delivering data -captured Bank Card
Transactions at the point -of -sale by such agent. If you elect to use a third party
as your agent for direct delivery of data -captured Bank Card Transactions to the
Interchange System for clearing and settlement, you shall:
(a) provide written notice to PRI of your election and obtain the prior, written
consent of PRI;
(b) understand and agree that the obligation of PRI to pay you for a Sales
Draft is limited to the amount (less the applicable Discount and any
adjustment) delivered by the agent to the Interchange System; and
(c) Be solely responsible for any failure by the agent to comply with any term
of this agreement or any Operating Rule, including, but not limited to, any
violation that results in a revocation of a prior receipt of a Sales Draft.
Entire Agreement: Bindina Effect
27.1 This Agreement sets for the entire understanding and agreement between the
parties with respect to the Program and the subject matter hereof and replaces
any Bank Card or similar agreement entered into between the parties.
27.2 This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective successors, and assigns to the extent allowed by this
Agreement. Nothing in this Agreement, express or implied, is intended to
confer or shall be deemed to confer upon any persons or Entities not parties to
this Agreement any rights or remedies by reason of this Agreement, as a third -
party beneficiary or otherwise.
Amendments: Waiver
28.1 Except as otherwise specifically provided in this Agreement, no provision of this
Agreement may be amended, modified, or waived except by a written
agreement signed by PRI or a written notice sent by PRI. This Agreement may
be amended by PRI from time to time upon written notice of the change(s) in
terms or conditions. Any amendment to this Agreement shall be effective when
expressly agreed or the later of the effective date contained in the notice or 15
days after the notice is mailed.
Severability
29.1 The invalidity of any section, paragraph, sentence, or part of this Agreement
shall not affect the validity of any other section, paragraph, sentence, or part of
this Agreement.
Notices
30.1 All notices and other communications required or permitted under this
Agreement shall be in writing and shall be deemed delivered when given by
Page 9 of 12 REV I0i19i05
personal delivery, telefax (confirmed by a mailed copy), or first-class mail,
postage prepaid, addressed as follows:
(a) If to PRI:
Payment Resource International
3 San Joaquin Plaza, Suite 100
Newport Beach, CA 92660
Attn: Vice President
Telephone:(949) 729-1400
Fax: (949) 655-4141;
If to Agent Bank:
KeyBank National Association
4410 Tiedeman Road
2M1d Floor
Brooklyn, OH 44144
Fax: (216) 813-1514
(b) If to you, at the address written on the signature page of this Agreement;
or
(c) To such other address as any party from time to time may be written
notice designate to each other party.
Contact Person
31.1 You should contact the following person regarding any questions you may
have regarding this Agreement:
Customer Service Representative
Payment Resource International
3 San Joaquin Plaza, Suite 100
Newport Beach, CA 92660
Telephone: (888) 835-1777
Fax: (949) 655-4141
Govemina Law: Exclusive Jurisdiction and Venue
32.1 This Agreement is a contract made under, and shall be governed by and
construed in accordance with, the law of the State of California applicable to
contracts made and to be performed entirely within such State and without
giving effect to choice of law principles of such State. Each party agrees that
any legal action or proceeding with respect to this Agreement or the
transactions contemplated hereby shall be brought in any court of the State of
California sitting in Orange County, California, or in any court of the United
States of America sitting in Orange County, California, and each party hereby
submits to and accepts generally and unconditionally the jurisdiction of such
courts with respect to its person and property (and thereby waiving any
sovereign immunity that a party may have with respect to claims under this
Agreement) and irrevocably consents to the service of process in connection
with any such action or proceeding by personal delivery to such party or by
registered or certified mail, postage prepaid, to such party at the address set
forth in Section 30.1 of these Additional Terms and Conditions. Each party
hereby irrevocably waives any objection to venue of any such lawsuit or
proceeding in the above described courts.
Counterparts
33.1 This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and such counterparts shall together
constitute one and the same instrument.
Page 10 of 12 REV 10/19/05
Data Processing and Payment Collection
Agreement (ACH PROCESSING)
This Data Processing and Payment Collection Agreement (this "Agreement") is entered into as of
the date set forth below, by and among the undersigned client ("CLIENT") and Payment Resource
International, LLC (hereinafter "PRI"), a limited liability company organized and existing under the
laws of the State of Delaware with its principal place of business at 3 San Joaquin Plaza, Suite
100, Newport Beach, California 92660.
WHEREAS: PRI is an item processor and provides Automated Clearing House ("ACH") and EFT
services ("Services") for the collection and payment of Payments and Deposits to the accounts of
Consumers and Businesses (collectively, "Customers") and;
WHEREAS: CLIENT wishes to initiate ACH transactions and desires to engage PRI to process
those ACH transactions items initiated by CLIENT.
NOW, THEREFORE, the parties intending to be legally bound do hereby agree as follows:
1. Headings and Cautions. Unless the context otherwise clearly requires, words used in the
singular include the plural, and words used in the plural include the singular. The captions
and headings contained in this Agreement are for the convenience of the parties only and
shall not be construed to limit or otherwise define the scope of this Agreement. This
Agreement shall not be deemed to have originated with either party hereto.
2. Definition of Terms Except as otherwise specifically indicated, the following terms shall
have the following meanings in the Agreement:
a. Banking Day: Any business day, during which PRI is open for business, but
does not include any Saturday or Sunday, or Holiday observed by the Federal
Reserve.
b. Account A deposit account established by Customers at a Federal Reserve
member bank that has the ability to receive Automated Clearing House
("ACH") items from the Federal Reserve for debit and credit to the account.
C. EFT Data: Electronic Funds Transfer ("EFT") Data, is that certain data
collected by CLIENT indicating Rinds to be distributed by credit or debit to
Customers' accounts of Customers authorizing such credit or debit.
d. Collected Funds: Funds collected from the Federal Reserve as a result of the
processing of EFT Data entries.
e. Settlement Date: A date specified by CLIENT, on which date EFT Data Entries
will be available to Customers' banks that receive EFT Data from the Federal
Reserve.
f. Customer. Those consumers or businesses who have given authorization to
CLIENT for CLIENT to initiate credit or debit entries to the accounts of those
CUSTOMERS.
g. Sponsor Bank: The bank designated by PRI which is a Federal Reserve
depository with Agreements between itself, PRI and the Federal Reserve to
electronically transfer funds between member banks of the Federal Reserve
Banking System.
3. Engagement: CLIENT hereby retains and appoints PRI as CLIENT'S exclusive data
processing and collection agent for processing ACH transactions originated by CLIENT for
credit and debit to accounts of Customers, who have agreed to such transactions, in
accordance with the terms and conditions contained herein.
4. Fees: For the services performed herein by PRI, CLIENT agrees to pay the fees as detailed
in the Fee Addendum, which is attached hereto and made a part hereof. CLIENT
understands that some fees may be subject to tax and agrees to pay all applicable tax.
Increases in fees charged by Sponsor Bank will be passed through to CLIENT, without
notice, and the Fees may be changed by PRI at any time upon Thirty (30) days prior written
notice to CLIENT. Client may be assessed an Investigation Fee equal to $25-for each item
investigated andlor 10% of the amount investigated each month for all sums that PRI is
required to investigate as a result of Client's conduct.
5. Term and Termination: The initial tern of this Agreement shall be for a period of three (3)
years beginning on the later of (a) the date of acceptance of this Agreement by PRI; or (b)
commencement of processing (the 'Term"), and shall renew for additional successive three
(3) year terns unless any party hereto provides the other written notice of its intent not to
renew prior to the expiration of the current term. Additionally, PRI shall have the right to
terminate this Agreement at any time without cause. Termination of this Agreement prior to
the expiration of the Term or any renewal Term, shall result in the assessment of an account
termination fee in an amount equal to the greater of (a) the average monthly processing fees
charged to client over the last 6 months (or shorter time if not processing for 6 months)
multiplied by the number of months remaining on the Term; or (b) $295.00; in addition to all
other amounts owed by CLIENT to PRI.
6. Upon Default: Either party shall have the right to terminate this Agreement, effective
immediately, if either party is in default of any obligation under this Agreement and default
continues for 30 days following notice from the other party, or if either party is declared
bankrupt, files a petition under any bankruptcy laws, has a receiver appointed for all or
substantially all of its property, or makes an assignment of all or substantially all of its assets
for its creditors.
7. Upon Termination: All rights and obligations hereunder shall cease except CLIENT'S
obligations (A) to pay the applicable fees for any services performed by PRI prior to the
effective date of termination: B) to pay for any items returned unpaid ("Returned Items")
subsequent to the effective date of termination for which PRI shall hold from the final deposit
to the Settlement Account for sixty (60) days a balance sufficient to cover Returned Items
and any unpaid fees payable to PRI, and C) within ninety (90) days of termination of this
Agreement CLIENT shall return to PRI all materials that are the property of PRI and
provided by PRI to CLIENT, as part of the services contemplated hereunder, including, but
not limited to software, hardware, manuals and instructions.
8. Responsibilities of the Parties In connection with the engagement of PRI by CLIENT, the
parties hereby agree that each shall have the responsibilities set forth hereunder.
9. CLIENT shall be responsible for the following:
a. Settlement Account. CLIENT shall, at all times, maintain an Account
("Settlement Account") at a bank that is a member of the Federal Reserve
ACH System. All credits for collected funds and debits for fees, payments and
Returned Items under the terms of this Agreement shall be made to the
Settlement Account. For the services to be performed by PRI hereunder as set
forth in the Specifications as published from time to time by PRI, CLIENT
authorizes PRI to credit and or debit the Settlement Account, and CLIENT
warrants that it shall, at all times, maintain a sufficient balance in said account
to cover overdraft of the Escrow Account as might result from Returned Items
and service fees, and other charges plus such additional fees charged by PRI
for the performance of services beyond the terms of this Agreement or resulting
from increased expenses incurred by the failure of CLIENT to fumish data as
specified in the Specifications as published from time to time by PRI, upon
demand of PRI. CLIENT may not close or change the Settlement Account
without written notice to PRI. CLIENT will be solely liable for all fees and costs
associated with the Settlement Account and for all overdrafts. CLIENT hereby
grants to PRI a security interest in the Settlement Account as well as any other
account owned by Client to the extent of any and all fees, payments and
Returned Items which may arise under this Agreement, and CLIENT shall
execute any document and obtain any consents or waivers from the bank at
which the Settlement Account is maintained as requested by PRI to protect its
security interest therein.
b. Notice of Intent. CLIENT shall provide PRI with immediate notice of intent to:
1). Transfer or sell any substantial part of its total assets, or liquidate; 2).
Change the basic nature of its business, including selling any products or
services not related to its current business; 3). Change ownership or transfer
control of its business; or 4). Enter into any joint venture, partnership or similar
business arrangement whereby any person or entity not a party to this
Agreement assumes any interest in CLIENT'S business. Failure to provide
notice as required above may be deemed as material breach and shall be
sufficient grounds for immediate termination of the Agreement. In the event any
of the changes listed above should occur, PRI shall have the option to
renegotiate the terns of this Agreement or provide thirty (30) days notice of
termination.
C. Non-Disdosure of Customer Information. CLIENT will not, under any
circumstances, disclose any CUSTOMER'S account number or any information
relating to any CUSTOMER'S account, or any sales information, to any person
other than PRI, except as expressly authorized in writing by CUSTOMER, PRI
as required bylaw.
d. Returned Items. CLIENT is liable for repayment to PRI for all Returned Items.
PRI will comply with ACH Associations' and the Federal Reserve prevailing
regulations in processing any Returned Items which result from CUSTOMER
disputes. However, all disputes which are not or cannot be resolved through
established returned Item procedures shall be settled between CLIENT and the
CUSTOMER, and CLIENT will indemnify PRI and will provide reimbursement
for all expenses, including reasonable attorneys fees, which it may incur as the
result of any CUSTOMER claim which is pursued outside the ACH Association
or federal Reserve rules and regulations.
e. Delivery of EFT Data. CLIENT shall deliver EFT data necessary for ACH
processing in such form and at such times and in accordance with the
Specifications as published from time to time by PRI. CLIENT will cause the
EFT data to be current and accurate at all times. CLIENT warrants to PRI that
all data and entries contained in EFT Data and delivered to PRI by CLIENT will
be in accordance with the Specification as published from time to time by PRI;
will contain true and accurate information; will be authorized by Consumers;
and if a telephone initiated entry, CLIENT warrants that there is an existing
relationship with the CONSUMER or the CONSUMER initiated the telephone
call. CLIENT assumes the responsibility for storage of all CONSUMER
authorizations. Failure to provide PRI with requested CUSTOMER authorization
documentation within five (5) business days after receipt of such request may
be deemed as material breach and shall be sufficient grounds for immediate
termination of the Agreement. CLIENT will maintain documentation for a period
of SIX (6) years past the date of the last transaction to any Account. PRI shall
have no liability to CLIENT. Customer, or third parties in the event Collection
data is inaccurate or incomplete.
f. Timely Delivery. CLIENT shall cause the EFT data to be delivered to PRI in a
timely fashion to permit the electronic processing on the date designated by
CLIENT which is estimated to require the delivery of the EFT Data not less than
(2) banking days prior to the scheduled processing date.
g. Delivery of Payroll Funds CLIENT shall cause payroll funds to be delivered by
wire transfer at least Three (3) Banking Days ("Lead time") prior to the
Settlement Date designated by CLIENT in an amount sufficient to cover payroll
deposits, fees and other charges to PRI ("Payroll amount requirement") in
accordance with the Specifications as published from time to time by PRI,
CLIENT understands and agrees that In the event payroll funds are not
delivered in accordance with the above Lead time, or that the Payroll amount
requirement is insufficient, the Settlement Date will be delayed to allow for
sufficient Lead time and sufficient Payroll amount requirement..
h. Exclusive. CLIENT agrees that PRI shall be its sole provider of ACH services
during the term of this Agreement.
I. Compliance. CLIENT warrants and agrees that CLIENT shall fully comply with
all federal, state, and local laws, rules and regulations, as amended from time
time, including the Federal Truth -in -Lending Act and Regulation E of the Board
of Governors of the Federal Reserve System.
j. Acceptance by PRI This Agreement shall be effective only upon acceptance by
PRI. In the event CLIENT is not accepted for the services as contemplated
herein, any fees paid to PRI shall be non-refundable.
10. PRI shall be responsible for the following:
a. Document Preparation PRI shall consult and assist CLIENT on the form and
content of documents to be filed with Sponsor Bank, PRI and Consumers.
b. Format of EFT Data. PRI shall provide CLIENT with consultation on the format
and specification of EFT data.
C. Escrow Account. PRI shall establish and maintain an account ("Escrow
Account") for deposit of Collected Funds and payment of returned Items and
service fees, and other charges ("Other Fees") incurred by PRI, Sponsor Bank
and the Federal Reserve hereunder. CLIENT understands and agrees that: 1).
PRI shall deposit all Collected Funds to the Escrow Account. 2). PRI shall hold
One Hundred Percent (100%) of Collected Funds ("Hold amount") in the
Escrow Account for a period of THREE (3) Banking Days, or such other time
period that may be established by PRI pursuant to its underwriting of Client
("Hold period"), 3). PRI shall, at the expiration of the Hold period, transfer the
Collected Funds, less a reserve amount ("Reserve amount") established for
Client pursuant to PRI's underwriting of Client, by EFT to the Settlement
Account. Such transfer shall be in such form and at such times and in
accordance with the Specifications as published from time to time by PRI.
Page I 1 of 12 REV I0/19/05
CLIENT further understands and agrees that PRI shall hold any Reserve
amount for a period of Thirty (30) days from the date of collection ("Reserve
Period"). PRI shall release the Reserve amount to the credit of the Escrow
Account at the expiration of the Reserve Period. CLIENT understands and
agrees that the Hold amount, Hold period, Reserve amount and Reserve
Period may be adjusted by PRI, at the sole discretion o1 PRI, to insure
availability and sufficiency of funds to cover Other Fees.
d. Electronic Bulletin Board PRI shall provide an electronic means (electronic
bulletin board service, or other like service) for the purpose of receiving EFT
Data from CLIENT, posting return Items, correction notices and account
statements for CLIENT. CLIENT understands and agrees that ti is CLIENT'S
responsibility to pickup, by electronic means, the statements and return
notifications from the electronic bulletin board service.
11. Force Maieure. Except when prevented from doing so by causes beyond its control,
including, but not limited to Acts of God, strikes, mechanical or electrical breakdown, fire,
flood, war, governmental action, accident, PRI shall process EFT data furnished by CLIENT
and observe the processing schedules set forth in the Specifications as published from time
to time by PRI, and deposit of funds in the Escrow and Settlement Accounts.
12. Materials. CLIENT acknowledges that all materials provided to CLIENT by PRI, in
contemplation of and in fulfillment of this Agreement, are the property of PRI, CLIENT shall
guard against unauthorized duplication that would be a violation of United States copyright
law and international treaty provisions.
13. Use of Independent Sales Organization: CLIENT acknowledges that PRI may use an
independent sales organization/member service provider ("(SO/MSP") operating under
applicable ACH Associations' rules, and the Rules and Regulations of the Federal Reserve
System. ISO/MSP is an independent contractor and not an agent of PRI. ISO/MSP has no
authority to execute the Agreement on PRI'S behalf or to alter the terms hereof without
PRI'S priorwritten approval.
14. Sole Oblioation. PRI's sole obligation to CLIENT hereunder is to perform the services
agreed upon, exercising the same degree of care used in processing items and data for its
own use. PRI shall not be liable for the insolvency, neglect, misconduct, mistake or default
of any other bank, corporation or person. In no event shall PRI be liable for any loss,
destruction, mutilation, damage or theft, resulting from any cause whatsoever, of any data,
entries, or items, except those resulting from the willful
misconduct, gross negligence or fraudulent act of Prior its employees.
15. Record Maintenance. This Agreement, and the performance by PRI of its services
hereunder, shall not relieve CLIENT of any obligation imposed by law or contract, regarding
the maintaining of records or other matters nor from employing. adequate audit, account and
review practices customarily followed by similar businesses.
16. Indemnification. CLIENT agrees to indemnity and to hold PRI, Sponsor Bank and the
Federal Reserve free and harmless from any and all liability, claims, and damages (including
attorneys fees and costs) which PRI, Sponsor Bank and the Federal Reserve may suffer or
incur by reason of providing the services contemplated herein, including but not limited to
any liability incurred by PRI with respect to the warranties and indemnities required to be
made by PRI to Sponsor Bank or the Federal Reserve, its representatives, and other banks
under the ("Operating Rules") of the National Automated Clearing House, except any
liability, claims, or damages caused by PRI's gross negligence, or failure to exercise
reasonable care in performing its services hereunder. This article shall survive termination of
this Agreement
17, Warranty of Application. In accordance with this Agreement, CLIENT has executed and
delivered to PRI a document entitled "Data Processing and Payment Collection Application"
containing, among other things, certain information regarding the nature of CLIENT'S
business. Its form of business organization, and the individual principal owners of CLIENT.
CLIENT represents and warrants to PRI that all information and all statements contained in
such Data Processing and Payment Collection Application are true, correct and complete as
If set forth in this Agreement CLIENT FURTHER AGREES TO NOTIFY PRI IN WRITING
OF ANY AND ALL CHANGES WHICH MAY OCCUR FROM TIME TO TIME REGARDING
ANY INFORMATION CONTAINED IN SUCH DATA PROCESSING AND PAYMENT
COLLECTION APPLICATION, INCLUDING BUT NOT LIMITED TO: THE IDENTITY OF
PRINCIPALS AND/OR OWNERS, THE FORM OF BUSINESS ORGANIZATION (i.e. SOLE
PROPRIETORSHIP, PARTNERSHIP, ETC.), TYPE OF GOODS AND SERVICES
PROVIDED, AND HOW SALES ARE COMPLETED (i.e. BY TELEPHONE, MAIL, OR IN
PERSON AT THE CLIENT'S PLACE OF BUSINESS). Such notice must be received by PRI
within ten (10) business days of such occurrence. CLIENT acknowledges that PRI may from
time to time request updated credit information on CLIENT'S business and CLIENT further
agrees to provide updated financial statements and other information within a reasonable
period of time as PRI may request. CLIENT shall be and remain fully liable to PRI for any
and all losses, costs, claims, and expenses suffered or incurred by PRI, arising out of or
resulting from CLIENT'S failure to report all such changes to PRI in accordance herewith.
18. Notices. Any notice required or allowed to be given under this Agreement shall be
addressed to the other party as follows: For PRI: at its principal place of business as listed
above; For CLIENT: at the address listed on the attached "Data Processing and Payment
Collection Application". Any notice so addressed shall be deemed delivered on the date
received.
19. Invalidity. If any provision in this Agreement is held by a Court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions will nevertheless continue in full
force without being impaired or invalidated in any way.
20. Facsimile. This Agreement may be executed in one or more separate counterparts and
conveyed by facsimile, each of which, when so executed shall be deemed an original and
shall together constitute one and the same instrument which may be sufficiently evidenced
by anyone counterpart, each of which shall be fully effective against the parties executing
fhe same (even if by facsimile) and all parties claiming under or through them.
21. Assignment. PRI shall have the right to assign this Agreement and PRI's rights thereunder to
any corporation or other entity which PRI may hereafter merge or consolidate, or to which
PRI may transfer ail or substantially all of its assets provided such corporation or other entity
assumes all of PRI's obligations thereunder.
22. Limitation of Liability: Any legal action undertaken by CLIENT pursuant to any of the terms
or conditions or the interpretation thereof shall be commenced within six (6) months of said
termination. CLIENT agrees hereby that after a term of six (6) months has expired, no legal
action against PRI may be brought in any court regarding any tern or condition of this
Contract.
23. Entire Agreement: This contract cancels any previous contract written and executed at PRI.
Further, this Agreement constitutes the entire Agreement between parties and each of the
parties hereto acknowledges and agrees that there are no other agreements, either written
or oral, governing their relationships or Fees.
24. Amendment. Except as otherwise provided herein, no provision of this Agreement may be
amended or modified except in writing signed by PRI. Any amendment to this Agreement
shall be effective the later of either the effective date contained in the notice of acceptance or
fifteen (15) days after the notice is mailed, or when expressly agreed.
25. Guarantors. The undersigned owners/officers ("Guarantors"), by their execution of this Data
Processing and Payment Collection Agreement, hereby unconditionally and irrevocably
personally guarantee the full and faithful performance or payment by CLIENT of each and all
of its duties and obligations herein set forth and contained, whether prior or subsequent to
termination or expiration hereof.
26. Attorney's Fees. Should either party pursue an action in court or arbitration against the other
regarding any provision of this Agreement, the prevailing party shall be entitled to all costs
incurred in connection with such action, including a reasonable attorneys fees.
27. Bindina Effect: Governing Law: Jurisdiction and Venue. Any action or proceeding on
the Agreement by or against PRI shall be Initiated and maintained under the
jurisdiction of the State of California with venue In the courts of Orange County, In
which case this Agreement shall be construed and govemed by the laws of the State
of Calffomta.
Sample ACH Authorization:
I authorize [Name of Merchant], "MERCHANT" to initiate Debits and or Credits to my
checking account at the Depository Financial Institution "BANK", as indicated by the Transit Routing
Number that I have supplied on this form, and BANK to pay such Debit or Credit. This authorization
is to remain in full force and effect until MERCHANT or BANK has received written notification from
me of its termination in such time and in such manner as to afford MERCHANT or BANK a
reasonable opportunity to act on it.
Page 12 of 12 REV 10/19/05