|
to your or your providers' facilities and records for the purpose of performing any
<br />inspection and/or copying of books and/or records deemed appropriate. In such
<br />event, you shall pay the costs incurred by us or our Affiliates for such inspection,
<br />including, but not limited to, costs incurred for airfare and hotel accommodations.
<br />32.2. You will provide us with written notice of any judgment, writ, warrant of
<br />attachment, execution or levy against any substantial part (25% or more in value) of
<br />your total assets not later than three (3) days after you become aware of same.
<br />Indemnification
<br />33.1. You agree to indemnify and old us and the Card Organizations harmless from
<br />and against all losses, liabilities, damages and expenses: (a) resulting from the
<br />inaccuracy or untruthfulness of any representation or warranty, breach of any
<br />covenant or agreement or any misrepresentation by you under this Agreement; (b)
<br />arising out of your or your employees' or your agents' negligence or willful
<br />misconduct, in connection with Card transactions or otherwise arising from your
<br />provision of goods and services to Cardholders;(c) arising out of your use of the
<br />Services; or (d) arising out of any third party indemnifications we are obligated to
<br />make as a result of your actions (including indemnification of any Card Organization
<br />or Issuer).
<br />33.2. Subject to the limitations set forth in Section 27.4, we agree to indemnify and
<br />hold you harmless from and against all losses, liabilities, damages and expenses
<br />resulting from any breach of any warranty, covenant or agreement or any
<br />misrepresentation by us under this Agreement or arising out of our or our
<br />employees' gross; negligence or willful misconduct in' connection with this
<br />Agreement; provided that this indemnity obligation shall not apply to Bank with
<br />respect to Non -Bank Services.
<br />A-Am:
<br />34.1. Non -Bank Card transactions are provided to youby Processor and not by
<br />Bank and include transactions made using Discover Network, PayPal, American
<br />Express, Voyager and WEX Card types. The Services provided, transactions
<br />processed and other matters contemplated under this Section 34 are subject to the
<br />rest of this Agreement, as applicable, except to the extent the terms of this Section
<br />34 directly conflict with another provision of this Agreement, in which case the terms
<br />of this Section 34 will control; provided, however, that (i) Bank is not a party to this
<br />Agreement insofar as it relates to Non -Bank Card services, and Bank is not liable to
<br />you in any way with respect to such Services and (ii) you agree to pay Processor
<br />any per item processing, authorization and other fees described in the Application
<br />for any non -acquired transaction services you receive from Processor. For the
<br />purposes of this section, the words "we," "our' and "us" refer only to the Processor
<br />and not to the Bank. You authorize us to share information from your Application
<br />with American Express, Discover Network, PayPal and any other Non -Bank Card
<br />Organization.
<br />34.2. If you accept American Express, you understand that if, based upon your
<br />anticipated Card transaction volume you do not qualify for our full service program
<br />but have otherwise been approved for accepting American Express transactions,
<br />your authorizations will be obtained from and funded by American Express.
<br />American Express will provide you with its own agreement that governs those
<br />transactions. You understand and agree that we are not responsible and assume
<br />absolutely no liability with regard to any such transactions, including but not limited
<br />to the funding and settlement of American Express transactions, and that American
<br />Express will charge additional fees for the services they provide.
<br />34.3. If you accept Discover but do not qualify for our Discover full service
<br />program, Discover will provide you with its own agreement that governs those
<br />transactions. You understand and agree that we are not responsible and assume
<br />absolutely no liability with regard to any such transactions, including but not limited
<br />to the authorization, funding, and settlement of Discover transactions, and that
<br />Discover may charge additional fees for the services they provide.
<br />34.4. If you accept PayPal Cards you understand that the following requirements
<br />apply to PayPal Card transactions in addition to the information required in this
<br />Agreement:
<br />• Only in-store, Card present transactions are eligible for processing under this
<br />Agreement. Card not present/online, cash over, cash advance, quasi cash
<br />transactions, international transactions or manually entered transactions are not 3
<br />eligible for processing. You must contact us or PayPal for information related to
<br />services that are not covered in this Agreement.
<br />• You will provide us with information about the Card transactions you conduct;
<br />including, data related to your Authorization requests, Card transactions, and
<br />transaction dispute responses.
<br />• You will provide us with aggregate and individual information about the Card
<br />transactions you accept; including, the number, type and kind of transactions you
<br />conduct, your disputes, your business operations, your merchant category code
<br />information, and any other information you are required to provide under this
<br />Agreement.
<br />• You will not use, store, retain or otherwise disclose any of PayPal's confidential
<br />information, Cardholder data, magnetic stripe track data, or PayPal Card
<br />transaction data (other than as necessary to complete a transaction).
<br />• You will not use PayPal Cardholder's personal information for marketing and/or
<br />other purposes without explicit consent from the Cardholder.
<br />34.5. If you accept JCB, Diners Club International, UnionPay, BCcard, and
<br />Dinacard, you agree to be bound by the Discover Network provisions of this
<br />Agreement. You also acknowledge and agree that JCB, Diners Club International,
<br />UnionPay, BCcard, and
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />Dinacard transactions will be processed uunderMITHand s bjectR o Discover Network
<br />Card Organization Rules.
<br />34.6. If you accept Voyager and/or WEX Cards, you agree to be bound by the
<br />WEX and/or Voyager rules. You also agree to be bound by all other provisions of
<br />this Agreement which are applicable to WEX and/or Voyager.
<br />34.7. If you execute a separate WEX Merchant Agreement (WEX Non Full
<br />Service Program), you understand that we will provide such agreement to WEX, but
<br />that neither we nor WEX shall have any obligation whatsoever to you with respect to
<br />processing WEX Cards unless and until WEX executes your WEX Merchant
<br />Agreement. If WEX executes your WEX Merchant Agreement and you accept WEX
<br />Cards, you understand that WEX transactions are processed, authorized and
<br />funded by WEX. You understand that WEX is solely responsible for all agreements
<br />that govern WEX transactions and that we are not responsible and assume
<br />absolutely no liability with regard to any such agreements or WEX transactions,
<br />including but not limited to the funding and settlement of WEX transactions. You
<br />understand that WEX will charge additional fees for the services that it provides.
<br />34.8. In addition to the information stated In Part I, Appendix 1 of the Your
<br />Payments Acceptance Guide regarding Voyager Cards, the following terms
<br />apply
<br />. Under Section 27 (Representations; Warranties; Covenants; Limitations of
<br />Liability; Exclusion of Consequential Damages) of the General Terms, in no event
<br />shall our cumulative liability to you for losses, claims, suits, controversies,
<br />breaches or damages for any cause whatsoever in connection with Voyager
<br />transactions exceed the lesser of $10,000.00 or the Voyager transaction fees paid
<br />by you to us for the two months prior to the action giving arise to the claim.
<br />;• Notwithstanding anything in this Agreement to the contrary, our obligation to
<br />provide services to you relating to any Fleet Card will terminate automatically
<br />without penalty to us or the related Card Organization upon the earlier of (i) the
<br />termination or expiration of our agreement with such Card Organization, (ii) at
<br />least twenty (20) days prior written notice by us to you; (iii) your failure to comply
<br />with material terms relating to such Fleet Card transactions, or (iv) written notice, if
<br />a Card Organization discontinues its Card35. Special Provisions •
<br />Debit Card
<br />The special provisions outlined in this Section 35 apply only to those Debit Card
<br />transactions that are processed by a Cardholder entering a PIN unless the
<br />transaction is a network supported PlNless transaction. A PlNless transaction is a
<br />Debit card transaction that a merchant submits to us for settlement/funding
<br />transactions with neither a PIN nor Signature. The Services provided, transactions
<br />processed and other matters contemplated under this Section 35 are subject to the
<br />rest of this Agreement, as applicable, except to the extent the terms of this Section
<br />35 directly conflict with another provision of this Agreement, in which case the terms
<br />of this Section 35 will control
<br />35.1. Debit Card Acceptance. Most, but not all, ATM Cards (Debit Cards) can be
<br />accepted at the point of sale at participating locations. Examine the back of the
<br />Debit Card to determine if the Card participates in a PIN Debit network that you are
<br />authorized to accept. PIN Debit network Mark(s) are usually printed on the back of
<br />the Card. If the Debit Card is valid and issued by a financial institution Issuer
<br />participating in a PIN Debit network, you must comply with the following general
<br />requirements for all participating PIN Debit networks, in addition to the specific
<br />requirements of that PIN Debit network:
<br />• You must honor all valid Debit Cards when presented that bear authorized PIN
<br />Debit network Marks.
<br />. You must treat transactions by Cardholders from all Issuers in the same manner.
<br />• You may not establish a minimum or maximum transaction amount for Debit Card
<br />acceptance.
<br />You may not require additional information, besides the PIN, for the completion of
<br />the transaction unless the circumstances appear suspicious. A signature is not.
<br />required for Debit Card transactions.
<br />You shall not disclose transaction related information to any party other than your
<br />agent, a PIN Debit network, or Issuer and then only for the purpose of settlement
<br />or error resolution.
<br />5.2. Transaction Processing. The following general requirements apply to all
<br />Debit Card transactions:
<br />All Debit Card transactions must be authorized and processed electronically.
<br />There is no Voice Authorization or Imprinter procedure for Debit Card transactions.
<br />You may not complete a Debit Card transaction that has not been authorized. If
<br />you cannot obtain an Authorization at the time of sale, you should request another
<br />form of payment from the Cardholder or process the transaction as a Store and
<br />Forward or Resubmission, in which case you assume the risk that the transaction
<br />fails to authorize or otherwise declines. The Cardholder should be instructed to
<br />contact the Issuer to find out why a transaction has been declined.
<br />The Debit network used to process your debit transaction will depend upon,
<br />among other things, our own business considerations, the availability of the Debit
<br />network at the time of the transaction and whether a particular Debit Card is
<br />enabled for a particular Debit network. The Debit network used to route your
<br />transaction may or may not be the lowest cost network available. We may, in our
<br />sole discretion (i) use any Debit network available to us for a given transaction
<br />(including any of our affiliated PIN Debit networks) and (ii) add and/or remove
<br />Debit networks available to you based on a variety of factors including availability,
<br />features, functionality and our own business considerations.
<br />CardCo2305 25
<br />
|