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12.3 You are obligated to reimburse us (and authorize us to debit your Settlement
<br />Account) for (a) all refunds, credits, Chargebacks and adjustments relating to
<br />transactions that you submit for processing; and (b) any fees, fines, assessments,
<br />obligations or other charges a Card Organization imposes on us in relation to your
<br />acts or omissions or the acts or omissions of your agents or those acting on your
<br />behalf.
<br />12.4 Refunds, Credits, returns and Chargebacks shall be treated as independent
<br />transactions with a Transaction Rate as determined by the Card Organization.
<br />12.5 You shall establish a fair policy for the exchange and returns of goods, consistent
<br />with the Card Organization Rules and Applicable Law and clearly provide them to,
<br />or otherwise make them available to the Cardholder prior to a Transaction. You shall
<br />give proper credit to Cardholders for all such returns or other adjustments, and shall
<br />issue credit vouchers therefor. Upon the receipt of any such credit voucher, we shall
<br />charge your Account for the total amount shown thereon. You shall effect all credit
<br />adjustments by credit vouchers and shall not make cash refunds for any
<br />Transactions.
<br />13. YOUR REPRESENTATIONS AND WARRANTIES
<br />13.1 By submitting a transaction to us, you represent and warrant that the transaction:
<br />a) is genuine and arises from a genuine sale or service that you directly sold or
<br />provided as described on your Application. (The submission of Authorization
<br />requests and/or Card transaction by you for Card sales or cash advances
<br />transacted by another business is considered laundering or factoring and is
<br />prohibited);
<br />b) represents the correct amount of the goods or services purchased by the
<br />Cardholder from your business as identified on your Application;
<br />c) is not subject to any dispute, set-off or counterclaim;
<br />d) to your knowledge is not the result of fraud and has been authorized by the
<br />Cardholder;
<br />e) does not violate the law of any applicable jurisdiction, including the jurisdiction
<br />where you are located, where the Cardholder is located, or where we are located;
<br />f) except for any delayed delivery or advance deposit Card transactions expressly
<br />authorized under this Agreement, included your simultaneous delivery of the
<br />goods or services to the Cardholder; and
<br />g) complies with this Agreement and Card Organization Rules.
<br />13.2 You further represent and warrant, as of the date of this Agreement and at the time
<br />of submission of each transaction, that:
<br />a) you are validly existing, duly licensed or qualified to do business, in good
<br />standing and free to enter into this Agreement;
<br />b) the execution, delivery and performance by you of this Agreement does not: (i)
<br />violate, or result in the breach of, any provision of your organizational
<br />documents; (ii) conflict with, or result in the breach of, require consent under, or
<br />constitute a default under, any contract by which you are bound, or (iii) violate
<br />any Applicable Law or Card Organization Rules applicable to you;
<br />c) that the person signing this Agreement, the Application and any other document
<br />provided to us on behalf of Merchant is an Authorized Representative;
<br />b) you have not changed the nature of your business or practices in a way not
<br />previously disclosed to us;
<br />c) each statement made on the Application or other information provided to us in
<br />support of this Agreement is true, accurate and complete and you have
<br />maintained and updated this information to keep it true, accurate, current and
<br />complete;
<br />d) you have not filed a bankruptcy petition not previously disclosed to us;
<br />e) you will not process any credit transactions that do not correspond to a previous
<br />transaction on the original sales draft;
<br />1) you will not at any time during the term of this Agreement or until all amounts
<br />have been paid in full under this Agreement, grant or pledge any security interest
<br />or lien of any type in any Reserve Account, Settlement Account or in any of the
<br />transaction proceeds to any Person without our consent; and
<br />g) where you provide FNS, SNAP or WIC Benefits (as described in the Your
<br />Payments Acceptance Guide), you are an FNS authorized merchant and are not
<br />disqualified or withdrawn from redeeming food stamp coupons or otherwise
<br />disqualified or withdrawn by FNS; and
<br />h) you have and will comply with this Agreement and all Applicable Laws and Card
<br />Organization Rules in connection with your performance of your obligations
<br />under this Agreement.
<br />I4. NO WARRANTIES, LIMITATIONS ON LIABILITY;
<br />EXCLUSION OF CONSEQUENTIAL DAMAGES
<br />14.1 THIS AGREEMENT IS A SERVICE AGREEMENT. USE OF THE SERVICES,
<br />SOFTWARE OR ANY EQUIPMENT (INCLUDING ANY SERVICES, PRODUCTS
<br />SOFTWARE OR EQUIPMENT PROVIDED BY OR THROUGH PROCESSOR OR A
<br />THIRD PARTY) IS AT YOUR OWN RISK AND TO THE MAXIMUM EXTENT
<br />PERMITTED BY APPLICABLE LAW THE SERVICES, PRODUCTS, EQUIPMENT
<br />AND ANY SOFTWARE IS PROVIDED "AS IS" AND WE DISCLAIM ALL
<br />REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU
<br />OR ANY OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING
<br />QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
<br />PURPOSE OR THAT SERVICES, EQUIPMENT OR ANY SOFTWARE WILL
<br />OPERATE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES,
<br />PRODUCTS, EQUIPMENT OR SOFTWARE ARE SECURE, FREE OF VIRUSES OR
<br />OTHER HARMFUL COMPONENTS, OR DO NOT INFRINGE THE RIGHTS OF
<br />ANY PERSON.
<br />14.2 IN NO EVENT SHALL WE OR OUR AFFILIATES OR ANY OF OUR OR THEIR
<br />RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCON-
<br />TRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT
<br />LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES,
<br />LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL,
<br />INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH
<br />IS EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER
<br />SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PERSON HAS BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF: THIS
<br />AGREEMENT, THE USE OF THE SERVICES, ANY PROCESSOR PROVIDED
<br />SERVICES, ANY THIRD PARTY SERVICES OR PRODUCTS OR SERVICES SOLD
<br />OR INTRODUCED TO YOU BY US THAT ARE ANCILLARY TO THIS
<br />AGREEMENT.
<br />14.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY
<br />(INCLUDING SECTION 29):
<br />a) WE SHALL, AT OUR OWN EXPENSE, CORRECT ANY TRANSACTION DATA
<br />TO THE EXTENT THAT SUCH ERRORS HAVE BEEN CAUSED BY US OR BY
<br />OUR SYSTEMS.
<br />b) OUR CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CON-
<br />TROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER
<br />(INCLUDING THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT
<br />AND ANY INDEMNITIES), REGARDLESS OF THE FORM OF ACTION OR
<br />LEGAL THEORY, SHALL NOT EXCEED THE TOTAL FEES PAID TO US
<br />UNDER THIS AGREEMENT FOR THE 3 MONTHS PRIOR TO THE TIME THE
<br />LIABILITY AROSE;
<br />c) ANY LIABILITY THAT WE MAY HAVE TO YOU FOR ANY DELAY IN
<br />FUNDING TRANSACTIONS WILL BE LIMITED TO INTEREST COMPUTED
<br />FROM THE DATE THAT YOU SUBMIT THE TRANSACTION TO THE DATE
<br />THAT WE FUND THE TRANSACTION AT THE RATE OF THE FEDERAL
<br />FUNDS AS SET BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW
<br />YORK, LESS ONE PERCENT (1%);
<br />d) OUR LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY
<br />EQUIPMENT OR SOFTWARE SHALL NOT EXCEED THE PURCHASE PRICE
<br />OR PRIOR TWELVE MONTH'S RENT OR FEES, AS APPLICABLE, PAID TO US
<br />FOR THE PARTICULAR EQUIPMENT OR SOFTWARE INVOLVED; AND.
<br />e) WE SHALL HAVE NO LIABILITY FOR ANY PROCESSOR PROVIDED
<br />SERVICES, ANY THIRD PARTY SERVICES OR PRODUCTS OR SERVICES
<br />SOLD OR INTRODUCED TO YOU BY US UNLESS WE SPECIFICALLY AGREE
<br />TO ANY SUCH LIABILITY IN A SEPARATE WRITTEN AGREEMENT.
<br />15. CONFIDENTIALITY
<br />15.1
<br />15.2
<br />15.3
<br />15.4
<br />You shall safeguard all confidential information we supply or otherwise make
<br />accessible to you (including the terms of this Agreement) using a reasonable degree
<br />of care. You shall only use our confidential information for the purposes of this
<br />Agreement and shall not disclose our confidential information to any Person, except
<br />as we may agree in advance and in writing. At our request you shall return to us or
<br />destroy all of our confidential information in your possession or control.
<br />You shall not disclose, use or sell Cardholder Information, except as necessary to
<br />complete a Transaction or to comply with this Agreement,
<br />You agree that breach of the restrictions on use or disclosure of our confidential
<br />information would result in immediate and irreparable harm to us, and money
<br />damages would be inadequate to compensate for that harm. We shall be entitled to
<br />equitable relief, in addition to all other available remedies, to redress any breach.
<br />You may submit comments or ideas about our Services, including about how to
<br />improve our Services. By submitting any idea, you agree that:
<br />a) we expressly disclaim any confidentiality obligations or use restrictions, express or
<br />implied, with respect to any of your ideas;
<br />b) your submission will be non -confidential; and
<br />c) we are free to use and disclose any of your ideas on an unrestricted basis without
<br />notifying or compensating you. You release us from all liability and obligations that
<br />may arise from our receipt, review, use or disclosure of any portion of any idea.
<br />I6. USE OF DATA
<br />16.1 You agree we may use Transaction Data for any lawful purpose including but not
<br />limited to providing additional products and services to you, other merchants, or
<br />third parties. This includes using Cardholder information, dates, transaction details,
<br />and other Transaction Data to provide you with analytics products and services as
<br />well as collecting and using Transaction Data aggregated with other merchants'
<br />transaction data to provide you, other merchants, and third parties with analytic
<br />products and services.
<br />TD2008(ia)
<br />6
<br />August 2017 Manual T&C - CAP # 40233
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