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PAYMENT SERVICES SCHEDULE

To the extent specified in the Subscription Agreement entered into by and between Factor Systems, LLC  d/b/a Billtrust, with a place of business at 1009 Lenox Drive, Suite 101, Lawrenceville, NJ 08648 (the “Company“) and you (“Customer,” “Merchant,” or “you”) (the “Subscription Agreement”) or on any Order Form submitted by you and accepted by the Company under the Subscription Agreement, this Payment Schedule, including all appendices attached hereto, the Application, any such Order Form, and the Merchant Services Agreement for Customers attached hereto (collectively, this “Payment Schedule”) is incorporated into and made a part of the Subscription Agreement (the Subscription Agreement and this Payment Schedule, collectively, this “Agreement”).  The effective date of this Payment Schedule shall be the date Company approves Customer for participation in the Services (“Effective Date”).  Capitalized terms not otherwise defined herein shall have the meaning specified in Appendix I hereto. In the event of any conflict between this Payment Schedule and the Subscription Agreement, this Payment Schedule shall control.

1.  Merchant Services Agreement.  Company is a party to an agreement with an Acquirer or a Bank, which provide payment processing services to Company on behalf of Customer (the “Merchant Services Agreement”).  Customer hereby acknowledges that it is entering into and is bound by the attached Merchant Services Agreement.

2.  Operating Account.  Customer shall establish an Operating Account at a financial institution of Customer’s choice prior to processing any payments and shall maintain such account and authorize Company to debit therefrom throughout the term of this Payment Schedule and for 90 days thereafter with sufficient funds to satisfy all of its obligations hereunder.  Any changes proposed to the Operating Account shall be submitted in writing to Company at least six (6) days prior to the next debit date and must be approved in writing by Company.  Company may debit the Operating Account in any amounts owed hereunder by Customer for Fees or any other obligations owed to Company pursuant to this Payment Schedule.

3.  Compliance.  Customer will comply in all respects with the Rules. Customer represents and warrants that it is, and will remain compliant with the Payment Card Industry Data Security Standard (“PCI-DSS”) during the Term of this Agreement. Customer agrees to provide Company with a current copy of its PCI AOC (Attestation of Compliance or appropriate PCI Self SAQ (Self-Assessment Questionnaire) the earlier of (a) ninety (90) days from go live, or (b) ninety (90) days from Customer’s first payment of the Services.  In the event of any conflict between this Agreement and any Rules, the Rules shall control. 

4.  Application.  You represent and warrant that all of the information that you provided in the Application is true, complete and correct in all respects and that you will promptly notify Company in writing of any change to any such information.

5.  Security Interest and Lien. Customer hereby grants a security interest and right of setoff and recoupment in and to all amounts held in the Operating Account or any substitute account now and in the future to secure all amounts due in accordance with this Payment Schedule. Customer shall provide such documentation as required by Company in connection with the security interest. Such security interest shall survive the termination of this Payment Schedule until all amounts due under this Payment Schedule are determined and paid in full. Customer shall cooperate with Company in perfecting such security interest.

6.  Establishment of Reserve Account. We may temporarily suspend payouts to you and/or designate an amount of funds that you must maintain in your Operating Account or in a separate reserve account (“Reserve Account”) to secure the performance of your obligations to us.  We may require a Reserve Account to be maintained throughout the term of this Payment Schedule and for a period of 180 days thereafter, for any reason, in whatever amounts we determine from time to time to cover potential losses to Company.  If at any time you do not have sufficient funds in your Reserve Account as determined by us in our discretion, we may fund the Reserve Account from any funding source associated the Services, including any funds (a) deposited by you, (B) due to you, or (c) available in your Operating Account.  You authorize us to make any withdrawals on debits from the Reserve Account or your Operating Account, without prior notice to you, to fund the Reserve Account or collect amounts that you owe us.  You may not make withdrawals from the Reserve Account without our written consent.

7.  Auditing and Credit Investigation. Customer authorizes Company or its agents to investigate the background and personal credit history of any of the principals and employees associated with Customer’s business from time to time and to obtain a business report on Merchant’s business from Dunn & Bradstreet or any company providing a similar service. Company may terminate this Payment Schedule if the information received in any investigation is unsatisfactory as determined in Company’ sole discretion. Company may also audit from time to time Customer’s compliance with the terms of this Payment Schedule. Customer shall provide all information requested by Company necessary to complete the audit. Upon Company’ request, Customer shall provide all of its books and records, including financial statements for Customer and personal financial statements for all guarantors. Customer authorizes Company to make on-site visits to any and all of the Customer’s locations with regard to all information necessary or pertinent to the Services.

8.  Term and Termination.  This Payment Schedule shall become effective on the Effective Date and shall remain in effect until expiration or termination thereof pursuant to the Subscription Agreement; provided that Company and/or the Associations may terminate your use of the Services and/or this Payment Schedule, or may suspend the Services, or may terminate or suspend certain Customer locations or Services, at any time for any reason.  Customer’s obligations with respect to any Transaction shall be deemed incurred and existing on the posted transaction date of the Transaction.  If this Payment Schedule is terminated and Customer requests assistance from Company with moving to a new processor, Customer agrees to pay Company for its then-Fees associated with such deconversion services as provided by Company; provided, however, in no event shall Company be obligated to provide deconversion services to Customer.

9.  Third Party Assessments.  Notwithstanding any other provision of this Payment Schedule, Customer shall be responsible for all fees, fines, assessments, penalties, loss allocations, costs of funds for advance settlements or delayed activities, and other amounts imposed or assessed to Customer, Company, Acquirer, or Bank in connection with this Payment Schedule by third parties such as, but not limited to, Associations and third-party service providers (including telecommunication companies) to the extent that such amounts are not the direct result of the gross negligence or willful misconduct of Acquirer, Bank or Company as applicable.

10. Foreign Network Fee.  In the event Customer discontinues using Company’s contracted payment processor, Customer shall pay Company a monthly Foreign Network Fee for use of Customer’s selected alternate payment processor.

11. Information Filings and Backup Withholding. Company or its designee will provide information reporting to the Internal Revenue Services and applicable state treasurers for all reportable payment transactions of Customer as defined in IRC § 6050W. If necessary, Company or its designee will conduct backup withholding on the revenue generated by such reportable payment transactions.

12. Limitation.  IN NO CASE SHALL CUSTOMER BE ENTITLED TO RECOVER DAMAGES FROM COMPANY OR BANK THAT EXCEED THE FEES RETAINED BY COMPANY FROM THIS PAYMENT SCHEDULE DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.

13. Bankruptcy.  This Payment Schedule constitutes an extension of financial accommodations by Company to Customer within the meaning of Section 365 of the Bankruptcy Code. The right of Customer to receive any amounts from Company hereunder is subject and subordinate to Chargebacks, Return Entries, recoupment, lien, set-off and security interest rights of Company regardless of whether they are liquidated, unliquidated, fixed, contingent, matured, or un-matured.

14. Fees and Charges. Pass-through charges from third parties, including, but not limited to, Payment Card Processing assessments and interchange or ACH related Fees, may be changed by such third parties from time to time. Company will provide Customer with as much notice as is reasonably possible in the event of any such changes in pass-through charges. From time to time, Company may change all non-pass through rates, Fees and charges set forth in the Payment Schedule or Order Form. Company will provide a minimum of 30 days written notice to Customer of all amendments to non-pass through rates, Fees, and charges. Notice may be given on the Customer Statement.

15. Return Entry Resulting From Debit Block.  Customer will ensure that debits from its Operating Account for Fee Collection are not blocked.   If a Return Entry results from such a debit block, Customer will pay a debit block administration Fee as provided on the Order Form.

16. Non-Sufficient Funds (NSF).  In the event an ACH Transaction is rejected as a result of Customer not having sufficient funds (NSF) in Customer’s Account, (i) Company may attempt to process the charge again within thirty (30) days and Customer agrees to pay a NSF Fee as identified in the Order Form for each processing attempt.

17. Early Termination Fee. If, prior to the date on which the then-current term of this Agreement is scheduled to expire, the Customer, for any reason, discontinues receiving the Services from Company (except as may be specifically permitted by this Agreement), then Company will suffer a substantial injury that is difficult or impossible to accurately estimate.  In an effort to liquidate in advance the sum that should represent that damages which would actually be sustained  by Company as a result of such termination, the parties have agreed that Customer shall be liable to Company for liquidated damages in an amount equal to the average monthly revenue payable to Company as a result of this Agreement for the last three calendar months, or such shorter period if this Agreement has not been in effect for 12 months, multiplied by the number of months remaining during the then-current term of this Agreement.   All such amounts shall be due and payable by Customer within 30 days’ notice.

18. Minimum Processing Volume. Beginning ninety (90) days after the date of the first processed transaction, Customer agrees to maintain a minimum processing volume as provided on the Order From (or the monthly pro-rata share of that amount for any period less than one calendar year), which shall not include American Express Volume.  In the event Customer fails to meet this Annual Minimum Processing Commitment during any year of the term, Billtrust shall have the right to calculate and charge the customer the difference between the actual processing fees collected and the processing fees anticipated based on the Annual Minimum Processing Commitment.

19. Amendment by Company. Company may amend or modify this Payment Schedule and any such amendment or modification will be effective and binding on Customer upon notice. Customer’s continued use of Services after the effective date of any such amendment or modification shall signify Customer’s acceptance of, and agreement to, abide by the terms and conditions contained in any such amendment or modification.

APPENDIX I TO TERMS OF SERVICE

DEFINITIONS

ACH” means the Automated Clearing House.

ACH Network” means the funds transfer system (network) governed by the Rules providing for the inter-financial institution clearing of electronic entries for participating financial institutions.

ACH Transaction” means the acceptance of a check, whether in electronic or paper form, or routing and account information associated with Payor’s bank account for payment for goods sold and/or leased or services provided to Payor by Merchant and receipt of payment by Merchant via the ACH Network.

ACH Processing” means the acceptance of an ACH or EFT transaction for payment of goods sold or services provided to bank account holders by Customer and receipt of payment by Customer via the ACH Network, whether the transaction is approved, declined, or processed as a NOC or other exception.

Account” means a demand deposit account or other deposit account Company or Customer has with a financial institution that is permitted to be linked to a Service.

Acquirer” shall mean Vantiv, LLC, or other acquirer contracted with Company, which is the entity contracted by Company to submit sales drafts and transaction information to the Associations on behalf of Company and to receive and pay to Company settlement funding for such sales transactions.

Address Verification” means a service that allows Customer to verify Cardholder’s billing address with Issuer.

Application” means the document by which Customer applies to participate in Transactions using our products and services.

 “Associations” means MasterCard International Inc., VISA U.S.A. Inc., Discover, and certain similar entities.

Authorization” means an affirmative response by or on behalf of an Issuer, to Customer’s request to affect a Card Transaction, that a Card Transaction is within the Cardholder’s available credit limit and that the Cardholder has not reported the Card lost or stolen.  All Card Transactions require Authorization.

Bank” shall mean ­Fifth Third Bank, or other bank selected by Company, which is the financial institution contracted through Processor that is a member of the Associations and provides Association sponsorship for card transactions submitted by Company for processing.

Business Day” means any day other than: Saturday or Sunday; or a day on which banking institutions in Arizona are authorized by law or executive order to be closed; or a day on which the Federal Reserve Bank is closed.

Card(s)” means a Visa, MasterCard, American Express or Discover Network credit card or debit card.

Card-Not-Present” means transactions that are not Card-Present Transactions.

Card-Present Transaction” means a Card Transaction in which the Card is swiped through a terminal, register or other device, capturing the Card information encoded on the magnetic strip or Chip.

Cardholder” means a person authorized to use a Card.

Chargeback” means a Card Transaction that Company returns to Customer pursuant to this Payment Schedule.

Customer Statement” means a statement of all charges and credits to the Operating Account.

 “CVV/CID” means a service that allows Customer to verify Cardholder’s possession of Card through the identification of unique digits on Card.

 “Effective Entry Date” means the date placed on an ACH Transaction by the Originator of the transaction or the ODFI. The Effective Entry Date is normally the date the transfer is intended to take place; it must be a future date and must be a Business Day. The Effective Entry Date may be, but is not necessarily always, the same date as the settlement of funds.

Electronic Funds Transfer Act” means the law passed by the US congress in 1978, which set out the rights and obligations of consumers and their financial institutions regarding the use of electronic systems to transfer funds.

Entries” means credit, debit or on-us entries consistent with the NACHA Rules and this Agreement and any data for entries or pre-notification entries.

Entry Settlement Limit” means the maximum aggregate amount of In-Process Entries permitted to be outstanding at any time, which amount shall be separately communicated to Customer by Company in writing from time to time.

Fees” means any amounts to be paid by Customer in connection with any Transaction as set forth in the Order Form, Application or otherwise in this Agreement, including but not limited to an amount equal to a specified percentage of the total cash price of each draft, a specified amount per Card Transaction, any processing fees collected from cardholder (convenience fee and or payment plan setup fees) and additional fees such as a monthly terminal fee, monthly statement fee, and installation fees.

File” means a group of ACH entries stored for delivery to an ACH receiving point.

Forced Sale” means a Card Transaction processed without an approved electronic authorization number being obtained for the full amount of the sales Transaction at the time the Transaction is processed.

In-Process Entries” means the aggregate dollar amount of all credit or debit Entries initiated by Company and in process on any date for which settlement has not occurred with respect to credit Entries, or the applicable period for the return of items has not expired with respect to debit Entries.

Issuer” means an Association member that issued a Card to a Cardholder.

IVR” means interactive voice response unit used for an Authorization.

Member Bank” shall collectively refer to Acquirer and Bank.

NACHA” means the National Automated Clearing House Association.

ODFI or Originating Depository Bank” means financial institutions that originate ACH Transactions on behalf of its customers. ODFIs must abide by NACHA Rules.

Operating Account” means the demand deposit account(s) established by Customer at a financial institution(s) for processing Fees, charges and credits under this Payment Schedule.

Order Form” means any form that Customer submits to Company for the purpose of ordering Services.

Originator” means a company, individual, or entity that initiates entries into the ACH Network.

Overlimit Entry” means an Entry the amount of which would cause the aggregate amount of In-Process Entries to exceed the Entry Settlement Limit.

Party” means the Customer or the Company and “Parties” means the Customer and the Company.

Password” means confidential, unique personal numbers, codes, marks, signs, public keys, or other information composed of a string of characters used as a means of authenticating and accessing a Service.

Payment Card Processing” means the acceptance of a Card or information embossed on the Card for payment for goods sold and/or leased or services provided to Cardholders by Customer and receipt of payment from Company whether the transaction is approved, declined, or processed as a Forced Sale.

Payment Schedule” consists of the Application, General Terms, and/or Transaction Services Payment Schedule including all appendices, schedules, exhibits and attachments.

Payor” means a person authorized to use a Card or pay by ACH.

Pre-Authorized Recurring Order Transactions” means Transactions which have been pre-authorized by the Cardholder and for which the goods or services are to be delivered or performed in the future by Customer without having to obtain approval from the Cardholder each time.

Pre-notification Entry” means a non-dollar Entry entered prior to a dollar Entry to verify the accuracy of the routing and account numbers.

 “RDFI” or “Receiving Depository Bank” means a financial institution qualified by NACHA to receive ACH Transactions.

Regulation E” means the regulation published by the “Federal Reserve.”

Return Entry” or “Return Entries” means any item, which cannot be processed and is being returned by the RDFI to the ODFI for correction or re-initiation.

Rules” means the by-laws, operating regulations and/or all other rules, guidelines, policies and procedures of VISA, MasterCard, Discover, American Express and/or other networks (which are available on websites such as http://usa.visa.com/merchants/, http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/), and all other applicable rules, regulations and requirements of Member Bank, Company providers, banks, institutions, organizations, associations, or networks which govern or affect any services provided under this Payment Schedule, and all state and federal laws, rules and regulations which govern or otherwise affect the activities of Customer, including, but not limited to, those of the National Automated Clearing House Association (“NACHA”) and the Federal Trade Commission (“FTC”), as any or all of the foregoing may be amended and in effect from time to time, and the regulations and requirements of Member Bank or Company.

Security Procedures” means, unless Company and Customer agree otherwise, the security requirements and procedure necessary to verify the authenticity of Entries.

Services” means the Card Services as defined in Appendix II, the ACH Processing Services as defined in Appendix III, or both, as applicable.

Settlement Date” means the date, on which settlement occurs, i.e., funds actually change hands as a result of an ACH entry.

Transaction” means a transaction in connection with which payment is made via ACH (an “ACH Processing Transaction”) or via a Card (a “Card Transaction”). “Transaction” also includes credits and voids.

APPENDIX II TO TERMS OF SERVICE

PAYMENT CARD PROCESSING

If included in the Services, Company shall provide the services described in this Appendix II (the “Card Services”).

  1. COMPANY OBLIGATIONS AND REQUIREMENTS.
    • Card Services. Company will provide Customer the Card Services indicated on the Application, as it may be amended.  Company may at any time impose limits on the dollar volume of daily, weekly, or monthly Card Transactions and dollar limits per Card Transaction.  Company may reject attempted Card Transactions for any reason or no reason.  Customer shall use the Card Services only for the goods or services set forth in the Application.  Customer shall immediately notify Company if it has or will probably have annual Card sales volume greater than $1 million for any Association or $2 million total.
    • Electronically Transmitted Transactions. Company will pay Customer by crediting the Operating Accountusing one or more settlement methods at its discretion, including, without limitation, next day funding and 2-3 business days funding.   The payment will equal the sum of Card Transactions processed since the previous credit, net of processed refunds or credits.
    • Provisional Credit. Any credits to the Operating Account are provisional only and subject to revocation and recovery by Company until the Card Transaction is final and no longer subject to chargeback by the Issuer, Cardholder, or Associations.
    • Customer Statement. Company shall make available a Customer Statement on no less than a monthly basis by any reasonable means in Company’s sole discretion. The Customer Statement shall be deemed accurate and affirmed by Customer in all respects except for any items that Customer specifically disputes in written notice provided within twenty (20) days after the Customer Statement became available to Customer.
    • Chargebacks. Company is not in any way responsible for Chargebacks or any related Fees. Company may chargeback to Customer and recover by any means any Card Transactions and any Chargeback Fees charged by Company, as well as any Association fine or assessment, for any reason.
  2. CUSTOMER OBLIGATIONS AND REQUIREMENTS.
    • Adjustments and Returns. Customer will maintain a fair exchange and return policy and make adjustments with respect to goods and services sold or leased to its customers whenever appropriate. If any charges are written off or cancelled, or any price is adjusted on a Card Transaction, Customer will transmit a credit or return Card Transaction. If the credit or return transactions in any day exceeded the amount of sales draft transactions, Company shall charge the Operating Account for the excess. Customer shall make no cash refunds on Card Transactions and shall handle all credit adjustments as provided in this Section. Sales drafts for nonrefundable Card Transaction must be conspicuously marked as a “final sale” and “no returns” on the customer’s copy of the sales draft. All Customers must notify Cardholders in writing of the applicable reservation/no show policy on all advance reservations. The Cardholder must be notified of the exact number of days required for reservation deposit refunds.
    • Customer Complaints. Customer shall respond promptly to inquiries from Cardholders and shall resolve any disputes amicably. Customer will ensure that the Cardholder understands who is responsible for delivery of products (whether physical or digital), provision of services, customer service and all other obligations based on the Card Transaction.  Company may charge Customer reasonable Fees and reimbursement, in addition to any applicable Association Fees or charges, for excessive Cardholder inquiries, refunds, or Chargebacks. Customer will maintain the following information in writing for each claim or defense asserted by a Cardholder:
      • The Cardholder’s name;
      • A unique identifier to reference the transaction in communications with Company;
      • The date and time the Cardholder asserted the claim or defense;
      • The nature of the claim or defense; and
      • Any action that Customer took in an attempt to resolve the dispute.

Upon request, Customer shall furnish Company with this information in writing within ten (10) days.

  • Record Retention.  Customer shall retain all original sales drafts or legible microfilm or electronic copies of all sales drafts and Transaction records for at least three years.
    • Warranties.
      • Each Card Transaction is genuine and arises from a bona fide transaction by the Cardholder directly with you;
      • Each Card Transaction represents a valid and enforceable obligation for the amount shown on the sales draft and does not involve the use of a Card for any other purpose;
      • Each Card Transaction represents an obligation of the Cardholder for the amount thereof;
      • No Card Transaction is subject to any dispute, set off or counterclaim;
      • Cardholder will not be required, as a condition to initiating a Card Transaction, to waive rights to dispute such Card Transaction; 
      • Each Card Transaction amount is only for merchandise or services (including taxes, but without any surcharge) sold, leased, or rented to a Cardholder by you and, except for any delayed delivery or advance deposit transactions authorized by this Payment Schedule, that merchandise or service was actually delivered to or performed for the Cardholder when that Card Transaction was submitted for processing;
      • No sales draft has any alternation not authorized by the Cardholder.
  1. COMPLIANCE.
    • Use of Marks. Merchant will display prominently at its place of business, where payments are accepted for card present transactions, Card emblems and other promotional material and literature provided by Company. Subject to the prior written consent of Company and upon such conditions as are imposed by Company, Customer may use Card service marks or design marks in its advertisement and promotional materials.
    • Payment Card Industry Security Requirements. Customer will comply with the standards set forth by the Payment Card Industry (“PCI”) Security Standards Council, as amended by the PCI from time to time.  Information regarding such standards can be obtained at www.visa.com/cisp and www.pcisecuritystandards.org. Customer represents and warrants that it is, and will remain compliant with the Payment Card Industry Data Security Standard (“PCI-DSS”) during the Term of this Agreement. Customer agrees to provide Company with a current copy of its PCI AOC (Attestation of Compliance or appropriate PCI Self SAQ (Self-Assessment Questionnaire) the earlier of (a) ninety (90) days from go live, or (b) ninety (90) days from Customer’s first payment of the Services. 
    • Security Breaches.  You will immediately notify us of any suspected, alleged, or confirmed compromised data (“Compromised Data Event”), regardless of the source, including any from any of your TPSP’s. We may engage a forensic vendor approved by an Association. You must cooperate with the forensic vendor so that it may immediately conduct an examination of your equipment, systems, and your TPSPs’ procedures and records and issue a written report of its findings. Upon your discovery of any suspected or actual Compromised Data Event, you will not alter or destroy any related records. You will maintain complete and accurate documentation regarding any modifications made to the records. You will share with us information related to your or any Associations’ investigation related to any actual or suspected Compromised Data Event (including, but not limited to, forensic reports and systems audits), and we may share that information with Associations.  Upon notice to you, we or our third party service providers, or the respective representatives of each may conduct remote electronic scans of your systems to confirm compliance with the requirements of the Associations and Applicable Laws. You must promptly cooperate with any such parties to facilitate the scans.
    • Customer is responsible for the security of Cardholder data.
    • Customer and each payment card brand have ownership of Cardholder data and may use such data ONLY for assisting these parties in the completion of Payment Card Processing Transactions, supporting a loyalty program, providing fraud control services, or for other uses specifically required by law.
    • In the event this Payment Schedule is terminated by either of the Parties, each Party agrees to continue to treat account holder data as confidential. 
    • Customer must immediately notify Visa USA Risk Management, through its Acquirer, of the use of a TPSP, and ensure the Customer TPSP implements and maintains all of the security requirements, as specified in the Rules.
    • Web Site Requirements for E-Commerce Customers. A web site operated by the Customer that accepts Card Transactions must contain all of the following information:
      • Complete description of the services offered;
      • Return merchandise and refund policy, which includes the communication of the return policy during the order process and the requirement that the cardholder must be allowed to select a “click to accept” option or other affirmative button to acknowledge the policy;
      • Terms and conditions must be displayed on the same screen view as the Company screen used to present the total purchase amount or within the sequence of web pages the cardholder accesses during the purchase process;
      • Customer service contact including e-mail address or telephone number;
      • Transaction currency;
      • Export or legal restrictions;
      • Delivery policy;
      • Consumer data privacy policy;
      • The security method offered for transmission of payment data such as Secure Sockets Layer or 3-D Secure; and
      • Address of the Customer outlet’s permanent establishment, including the Customer outlet country.

The above information must be provided either (i) on the same screen view as the Company screen used to present the total purchase amount or (ii) within the sequence of web pages the Cardholder accesses during the purchase process.

  • Third Party Service Providers.  Customer will not use any suppliers and/or third party service providers (“TPSP’s”) unless they comply with PCI and/or the Payment Application Data Security Standard (“PA-DSS”), depending on the type of TPSP, as required by the Rules.  Customer shall cause its TPSP to complete any steps or certifications required by any Association (e.g., registrations, PA-DSS, PCI, audits, etc.) and to cooperate with Acquirer in completing any such steps or certifications (if applicable), and in performing any necessary due diligence on such TPSP.  Customer shall be solely responsible and liable for any and all applicable Fees, costs, expenses and liabilities associated with such steps, registrations and certifications.  Neither Acquirer, nor Bank, nor Company shall in any event be liable to Customer or any third party for any actions or inactions of any TPSP used by Customer, even if Acquirer, Bank or Company introduced or recommended such TPSP.
  1. TERMINATION.

Company may terminate this Payment Schedule, or any or all of the Services provided hereunder, immediately in any of the following circumstances:

  • Chargebacks in excess of Association monitoring guidelines;
    • Customer’s percentage of error Card Transactions or retrieval requests is excessive in the opinion of Company; or
    • Customer appears on the Association Terminated Merchant File.
  1. INDEMNIFICATION AND LIABILITY.
    • Indemnification. In addition to any other indemnification obligations under this Agreement, Merchant shall indemnify and hold Company and Member Bank harmless from all losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees and costs arising out of any of the following:
      • Card-Not-Present Transactions;
      • Unauthorized Payment Card Processing Transactions;
      • Prohibited Payment Card Processing Transactions;
      • Authorizations; or
      • Accuracy and completeness of Customer data and Transactions.
    • Limitation of Liability. In addition to any other limitations of liability in this Agreement, Company and Member Bank shall not be liable to Merchant or Merchant’s customers or any other person for any loss or liability resulting from the denial of credit to any person or Merchant’s retention of any Card or any attempt to do so.
  1. AUDITS.  At any reasonable time (during normal business hours) upon reasonable notice to you, you shall allow auditors, including the auditors of any Association or any third party designated by Company Member Bank, or the applicable Association, to review the files held and the procedures followed by you at any or all of your offices or places of business.  You agree that the cost of such audit shall be borne by you.  You shall assist such auditors as may be necessary for them to complete their audit.  In the event that a third-party audit is required by an Association, Member Bank or regulatory agency, and/or required by the Rules or applicable law, Company may, at its option, and at Customer’s sole expense, either retain a third party to perform the audit, or require that Customer directly retain a specific third party auditor.  If Company requires that Customer directly retain the auditor, Customer shall promptly arrange for such audit to be performed, and will provide Company, Member Bank, and the Associations with a copy of any final audit report.
  1. COLLECTION AND USE OF CARD TRANSACTION INFORMATION.
    • Documenting Card Transactions. Merchant shall submit the following information to Company in connection with Transaction processing:
      • The DBA name of Merchant, name of Merchant and Merchant’s address;
      • Merchant customer service telephone number;
      • Merchant Internet address;
      • Merchant Number assigned by Member Bank;
      • The Card account number, validation date and/or expiration date of the Card, if one appears on the Card;
      • Name, address and telephone number of Cardholder; and
      • Such additional information as may be required by Company or Member Bank and/or the Associations, from time to time.

Merchant shall not submit a Card Transaction (electronically or otherwise) until Merchant has performed its obligations to the Cardholder in connection with the Card Transaction or obtained Cardholder’s consent for a Pre-Authorized Recurring Order Transaction. Merchant must not transmit a Card Transaction that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder. Merchant is responsible for its employees’ actions. Merchant may transmit a Card Transaction that effects a prepayment for services or full prepayment of custom-ordered merchandise if Merchant advises Cardholder of the immediate billing at the time of the Card Transaction and within time limits established by the Associations.

  • Authorization for Payment Card Processing Transactions. Merchant shall obtain Authorization for Payment Card Processing Transactions as follows:
    • Electronically Transmitted Transaction. Customer shall submit each Card Transaction for Authorization to Company’s designated authorization center, which shall respond with the Issuer’s authorization or rejection of the Card Transaction and shall capture and process for Customer the information relating to the Card Transaction.
    • Card-Present Transactions. If a terminal or software application is inoperable at the time of an Authorization request for a Card-Present Transaction, the Card Transaction may be manually authorized by entering it as a Forced Sale, provided the approval number is also entered, and Customer shall be subject to an additional IVR authorization Fee as outlined in the Application.
    • Card-Not-Present Transactions. The following additional requirements apply to Card-Not-Present Transactions:
      • All Card-Not-Present Transactions are at Customer’s risk. As to each Card-Not-Present Transaction, Customer warrants to Company that the person whose name is submitted as Cardholder either made or authorized another to make the purchase;
      • All Card-Not-Present Transactions must be electronically authorized;
      • Customer may accept a Pre-Authorized Recurring Order Transaction only if the Cardholder executes and delivers to Customer a written request therefor, which shall be maintained by Customer and made available upon request to Company. All annual billings must be reaffirmed at least once a year. Customer shall not deliver goods or perform services covered by a Pre-Authorized Recurring Order Transaction after receiving notification from the Cardholder that the pre-authorization is cancelled or from Company that the Card covering the Pre-Authorized Recurring Order Transaction is not to be honored; and
      • Customer shall verify Cardholder’s address through the Association network and only accept as approved those Card Transactions receiving at least a partial match or system unavailable response.
    • Prohibited Card Transactions. Customer shall not do any of the following with respect to any Card Transaction:
      • Establish a minimum below the amount allowed by the Associations; provided, however, you may establish a minimum transaction amount as a condition for honoring Cards, provided that the minimum transaction amount does not differentiate between Associations and/or issuers and the minimum transaction amount does not exceed $10.00 (or any higher amount established by applicable law or the Rules). 
      • Establish a maximum sale amount as a condition for honoring Cards; provided, however, you may establish a maximum sale amount as a condition for honoring Cards if you are a department, agency or instrumentality of the U.S. Government, you are a corporation owned or controlled by the U.S. Government, or your primary business is reflected by one of the following MCCs: 8220 (Colleges, Universities, Professional Schools and Junior Colleges), 8244 (Schools, Business and Secretarial), or 8249 (Schools, Trade and Vocational), provided that the maximum transaction amount does not differentiate between Associations and/or issuers.
      • Use Merchant’s own Card, or one to which Merchant has access, to process a Card Transaction for the purpose of obtaining credit for Merchant’s own benefit;
      • Initiate a Card Transaction credit without a balance in the Operating Account equal to or greater than the credit;
      • Disburse funds in the form of cash.
      • Accept a Card to collect or refinance an existing debt;
      • Issue a Card Transaction credit for return goods or services acquired in a cash transaction;
      • Make any cash refund to a Cardholder who has made a purchase with a Card. All Card Transaction credits will be issued to the same Card account number as the sale;
    • Disclosure and Storage of Card Transaction Information.
      • A Merchant must not disclose a Card account number, personal information, or other Card Transaction information to third Parties other than to Company or its third party service providers or Member Bank for the sole purpose of:
        • Assisting the Merchant in completing the transaction; or
        • As specifically required by law.
      • A Merchant must store all material containing Card account numbers or imprints (such as transaction receipts, car rental agreements and carbons) in an area limited to selected personnel and render all data unreadable prior to discarding. A Merchant must not do any of the following:
        • Retain or store full contents of any track on the magnetic stripe subsequent to a Card Transaction;
        • Retain or store CVV/CID data subsequent to Authorization of a Card Transaction; and
        • Request the CVV/CID data on any paper form.
        • Sell or disclose cardholder account numbers, personal information, or other Card Transaction information.
    • Use and Disclosure of BIN Information. A Merchant that receives BIN information from Company or Member Bank must not use such information for any reason other than to identify Visa debit category products at the point of sale, unless authorized by Visa.
  1. AMENDMENTS TO CARDS AND/OR CARD SERVICES.

Company or Member Bank may amend or delete Cards or Card Services listed in the Application by notifying Merchant in writing. All provisions of this Payment Schedule shall apply to Cards or Card Services added to this Payment Schedule. Company shall notify Merchant of the Fees to be charged for processing the additional Cards and Card Services. Acceptance by Merchant of a new approved Card as payment for a Card Transaction or continued use of Payment Card Processing Service after Company or Member Bank has sent Merchant notice of an amendment shall constitute Merchant’s agreement to the amendment and the Fees or charges related to these additions.

APPENDIX III TO TERMS OF SERVICE

ACH PROCESSING

If included in the Services, Company shall provide the services described in this Appendix III (“ACH Processing Services”).

  1. TYPES OF ENTRIES.

Financial institution that maintains Accounts (“Financial Institution”) will transmit debit and/or credit Entries initiated by Company on behalf of Customers to the ACH Network as provided in the Rules and this Payment Schedule.

  1. NOTIFICATION TO COMPANY.

Customer shall provide to Company any notices received by it relating to its compliance or alleged failure to comply with the Rules or otherwise relating to misuse or alleged misuse of the ACH system no later than two business days after Customer’s receipt of such notice, and in any event as soon as possible, by email or telephone call. On request of Company, Merchant shall provide information with regard to specific Entries to Company as soon as possible, but in no event more than 48 hours after Company’ request.

  1. TERMINATION.

Company may terminate this Payment Schedule immediately in the following circumstances:

  • Customer’s total unauthorized returns or summary of losses suffered or incurred in connection with failed or reversed transactions are excessive in the opinion of Company;
    • Customer is in violation of the Rules;
  1. WARRANTIES.

Customer certifies to Company that it is in compliance with all warranties it is deemed by the Rules to make with respect to Entries originated by Customer.

  1. INDEMNIFICATION AND LIABILITY.
    • Indemnification. In addition any other indemnification under this Agreement, Merchant shall indemnify and hold Company and Financial Institution harmless from any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees and costs arising out of any of the following:
      • Reversed Entry or File of Entries for erroneous or duplicate transactions where Customer has failed to perform its obligations herein;
      • Any information provided by Customer on which Company relied in determining to grant, extend or continue services was inaccurate;
      • Any completed, failed or misdirected Entry;
      • Use or alleged misuse of the ACH system and/or fines assessed against Company or Financial Institution in connection therewith;
      • Customer’s failure to pay any reversed or failed Entries that are returned to Customer or that pursuant to the applicable Rules or Federal Reserve requirements, should have been returned to Customer; and
      • Any error or mistake by Customer or any TPSP included by Customer in processing Entries.
    • Limitation of Liability. In addition to the limitations on liability elsewhere in this Agreement, Company and Financial Institution shall not be liable to Customer or Customer’s customers or any other person for any delay by an ACH operator or Receiving Depository Bank in processing any credit or debit Entry, nor shall either Company or Financial Institution be held liable for the failure of a third party to process, credit, or debit any such Entry or for other acts of omissions.
  1. AUTHORIZATIONS.
    • Authorization Agreement. All debits to Payor accounts must be authorized by the Payor in writing. An authorization agreement must be readily identifiable as either an ACH credit or ACH debit authorization and must clearly and conspicuously state the terms of the authorization.
    • Retention of Authorizations. Customer must retain the signed or authenticated authorization for a period of two (2) full calendar years following the termination or revocation of the authorization. Customer must promptly present a copy of the Payor’s authorization to Company upon Company’ request.
    • Termination of Authorization. Customer agrees that it will not initiate an Entry after the termination or revocation of a consumer’s authorization.
  1. NAME AND ACCOUNT NUMBER INCONSISTENCY. Customer acknowledges that if the receiver’s name and account number used in an Entry do not match, payment of the Entry may be made on the basis of the account number.
  1. PRE-NOTIFICATION ENTRIES. If Customer originates a non-dollar Prenotification Entry to verify the accuracy of routing and account numbers, Customer will not initiate live dollar Entries until at least six (6) banking days following the settlement date of the Prenotification Entry. If Company provides notice that a Prenotification Entry was rejected or returned, Customer shall research the problem and make any necessary corrections before transmitting another Entry.
  1. PROVISIONAL CREDIT. If Originating Depository Bank does not receive final settlement, it is entitled to a refund from the credited Party and the originator of the Entry shall not be deemed to have paid the Party.
  1. TRANSMISSION OF ENTRIES.
    • Transmission of Entries. Customer authorizes Company and Financial Institution to transmit all Entries and to credit or debit such Entries to the specified accounts.
    • Form and Format of Entries. Company shall notify Customer whether Entries shall be in the form of balanced (including any offsets) or unbalanced files (excluding offsets).
      • Credit Entries. Financial Institution may require that Merchant pay the amount of each credit Entry in immediately available funds at the time of transmittal or at any time prior to settlement.
      • Debit Entries. Financial Institution shall on the applicable Settlement Date credit the account with the amount of each debit Entry. If any Entry is returned by a Receiving Depository Bank after such credit, Merchant shall, upon demand, repay Financial Institution the amount of the Return Entry.
      • Entry Settlement. Customer shall provide Financial Institution, if so directed, immediately available funds not later than 8:00 a.m. local time on each Settlement Date sufficient to pay all Entries initiated by Customer and hereby instructs Financial Institution to make deposits, withdrawals and transfers to and from the Operating Account in connection with the ACH Processing Services. Company and Financial Institution may require sufficient funds to be in the Operating Account before any Entry is processed by Company or Financial Institution.
    • Security of Transmission. Customer shall comply with any procedures or safeguards required by Company or Financial Institution in carrying out its security obligations.
  1. EXPOSURE LIMITS.

Customer shall comply with the monetary file limits established by Company. Company will not process an Overlimit Entry and may, following its receipt of an Overlimit Entry, suspend all In-Process Entries. Customer acknowledges that suspended Entries will not settle on their scheduled Settlement Date. Customer may submit requests to initiate Entries that would be Overlimit Entries at least two (2) banking days in advance. Company may grant or deny the request in its sole discretion. Further, Company may in its sole discretion limit the nature and amount of the preauthorized debit/credit Entries processed under this Payment Schedule or refuse to process any debit/credit Entries under this Payment Schedule. If any of the foregoing actions are taken by Company with respect to a particular preauthorized debit/credit Entry, Company will notify Customer within two (2) banking days after the decision.

  1. CANCELLATION, REJECTION, RETURN OR CHANGE OF ENTRIES.
    • Cancellation or Amendment of Entries. Customer shall have no right to cancel or amend any Entry/File after receipt by Company.
    • Rejection of Entries. Company has the sole discretion to reject any Entry/File. Company shall notify Customer of such rejection by the Business Day such Entry would otherwise have been transmitted by Company to the ACH Network or, in the case of an on-us Entry, its Effective Entry Date.
    • Return Entries. If sufficient funds are not available in the Operating Account to reimburse Financial Institution for any Return Entry, Customer shall provide such reimbursement in immediately available funds or Financial Institution may take the outstanding funds from any Reserve Account.
    • Notification of Change. Financial Institution will notify Customer of Correction Entries, which are commonly referred to as Notification of Change (“NOC”) Entries, and Customer shall make the submitted changes in compliance with Financial Institution policy. If the NOC is incorrect, Customer shall notify Company, which shall direct Financial Institution to generate a refused NOC and deliver it to Customer as required by Financial Institution policy.
    • Reversals. Customer may initiate a reversing Entry or File of Entries for erroneous or duplicate transactions within five (5) banking days of the original Entry or Entries, but not later than 24 hours of discovery of the error. Customer will notify the account holder of a reversing Entry and the reason for the reversal by the settlement day of the reversal. Notwithstanding the foregoing, reversals may not be initiated in connection with payments received through the bill payments solution.  Customer will provide an exception to any debit blocks allowing Financial Institution to process reversals.  If Financial Institution is unable to recover the full amount of the returned funds it may suspend Services under this Payment Schedule. 
  1. SETTLEMENT. Company shall issue a Customer Statement to Merchant that will reflect Entries credited and debited to the Operating Account. Merchant will notify Company within a reasonable time not to exceed thirty (30) calendar days (except where applicable law provides a sixty (60) calendar day review period) after Merchant receives a periodic statement of any discrepancy between Merchant’s records and the statement, after which the statement will be considered accurate. Customer will cooperate with Company and Financial Institution in any loss recovery efforts.


MERCHANT SERVICES AGREEMENT FOR CUSTOMERS

This MERCHANT SERVICES AGREEMENT FOR CUSTOMERS (“SUBMERCHANTS”) (“Sub-Merchant Agreement”) is made among WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) and Customer or Sub-merchant in connection with the agreement between Sub-merchant and FACTOR SYSTEMS, LLC DBA: Billtrust (“Provider”). Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement.  In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Mastercard International Inc. (“Mastercard”), VISA U.S.A. Inc. (“VISA”), Discover (“Discover”), and certain similar entities (collectively, “Associations), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments.  In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations.  By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1. Certain Sub-merchant Responsibilities.  Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively “Operating Regulations”). Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations.  The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/.  Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the USA PATRIOT Act, the Bank Secrecy Act, the Federal Trade Commission and obligations imposed by the US Treasury’s Office of Foreign Assets Control (OFAC).  For purposes of this Section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.

If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub-merchant must display appropriate signage to indicate the same.  Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.  

Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.

Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve).  Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.

2. Sub-merchant Prohibitions.  Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed; ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (Any tax amount, if allowed, must be included in the transaction amount and not collected separately); iii) request or use an account number for any purpose other than as payment for its goods or services; iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant; v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service; vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval; vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt; viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable; or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.

3. Settlement.  Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant.  After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions.  Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account.  Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.

4. Term and Termination.  This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution.  The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.

Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.

5. Limits of Liability.  Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred.  Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.

EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.   Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement.   In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations.  In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider.  If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then-current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant.  If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub-merchant.

6. Miscellaneous.  This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions.  This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party.  Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure.  If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement.  “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement.  As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263.  The Member Bank is a party to this Agreement.  The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.