Last modified: February 11, 2026
MEMBER BANK DISCLOSURE
Member Bank (Acquirer) Information: One or more of the
Member Banks (Acquirers) listed here:
www.finix.com/legal/acquirers
Important Member Bank (Acquirer) Responsibilities:
·
A Visa member is the only entity approved to extend
acceptance of Visa products directly to a merchant.
·
A Visa member must be a principal party to the merchant
agreement.
·
The Visa member is responsible for, and must provide
settlement funds to, the merchant.
·
The Visa member is responsible for all funds held in
reserve that are derived from settlement.
·
The Visa member is responsible for educating merchants
on pertinent Visa Rules with which merchants must
comply.
Important Merchant Responsibilities:
·
Ensure compliance with cardholder data security and
storage requirements.
·
Maintain fraud and disputes below thresholds.
·
Review and understand the terms of the merchant
agreement.
·
Comply with Visa Rules.
The responsibilities listed above do not supersede
terms of the merchant agreement and are provided to
ensure the merchant understands important obligations of
each party and that the applicable Acquirer is the
ultimate authority should the merchant have any
problems.
These
Finix General Terms of Service (“General Terms”) are entered into between Finix Payments, Inc., a Delaware
corporation (“Finix”); one or more Banks; and the merchant (“Merchant”) that submitted an Application.
By accessing or using any of the Services, Merchant
agrees to comply with these General Terms, the
Application, all Services Schedules, the Documentation,
and any other terms and conditions
provided by Finix (which may be provided through
the Finix Dashboard, if applicable)
(collectively, the “Agreement”). Finix and Bank may be collectively referred to as “Processor” and may jointly or individually assert or exercise any
rights or remedies provided hereunder. Each of Finix, Bank,
and Merchant is a “Party,” and are collectively the “Parties.”
By clicking “I Accept” or providing similar acknowledgement
of this Agreement (the date of which shall be the “Effective Date”), or by accessing or using the Services, Merchant agrees
that it has reviewed and understands all disclosures made
available to it, and Merchant agrees to this Agreement and
the Finix Privacy Policy. Each Party agrees that the
electronic signatures and equivalent indications of
acceptance by the Parties executing this Agreement are
intended to authenticate this Agreement on behalf of each
Party, and will have the same force and effect as manual
signatures.
By accepting this Agreement or using any Service,
Merchant consents to the electronic communications
requirements described in Section 14.1 of these
General Terms.
If there is any conflict between these General Terms and
the terms of any Services Schedule or other terms and
conditions provided by Finix in connection with Merchant’s
use of the Services, then unless terms of lower precedence
expressly state to the contrary, the order of precedence is:
(a) the Services Schedules; (b) these General Terms; and (c)
all other terms incorporated by reference into this
Agreement, including any additional terms provided through
the Finix Dashboard. Capitalized terms in the Services
Schedules, any other terms incorporated by reference into
this Agreement, or any notice given under or in connection
with this Agreement, but not defined therein, will have the
meanings ascribed to them in these General Terms.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW
DISPUTES BETWEEN THE PARTIES ARE RESOLVED, WHICH INCLUDE
AN AGREEMENT TO SUBMIT ANY DISPUTE RELATED TO THIS
AGREEMENT OR THE SERVICES TO BINDING INDIVIDUAL
ARBITRATION RATHER THAN PROCEEDING IN COURT. THIS
AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH
MEANS MERCHANT AGREES NOT TO PROCEED WITH ANY DISPUTE AS
PART OF A CLASS ACTION.
1.1.
Use of Services. Merchant will use the Services for business purposes only
and not for any personal, family, or household purposes.
Merchant agrees that it may not submit Transaction
instructions on behalf of third parties. Processor will
provide the Services for Transactions submitted from
Merchant retail locations and e-commerce websites operating
in the United States. Merchant represents and warrants that it is engaged in the
business of providing goods and/or services to its Customers
at location(s) or websites owned or leased and operated by
Merchant (or through a Partner Platform, in the case of
Platform Merchants) within the United States. Merchant
agrees to use the Services (i) to accept Cards and/or ACH as
a means of payment from its Customers for goods and services
sold or charitable donations received by Merchant; (ii) to
make Disbursements to its Merchant Payees, and/or (iii) to
authorize Processor to originate ACH debit and credit
Entries to and from Merchant’s accounts as means of payment
and settlement, in each case in compliance with the
requirements of this Agreement. With respect to all
Transactions, Merchant represents and warrants that: (i)
each Customer has authorized the debiting and/or crediting
of its account; (ii) each Transaction is for an amount the
Customer has agreed to; (iii) each Transaction is in all
other respects properly authorized; (iv) each sales
Transaction occurs in connection with a bona fide purchase
of goods or service from Merchant by a Customer that has
been or will be completed in accordance with Merchant’s
underlying agreement with the Customer and the Rules; and
(v) Merchant does not operate a Prohibited Business.
1.2.
Bank’s Role. Bank is a member of various Card Brands and the Federal
Reserve permitting it to acquire Card Transactions and
initiate ACH Transactions on Merchant’s behalf. Bank sponsors Finix under the Rules and also serves as
the ODFI for ACH Transactions
transmitted through the ACH Network, allowing Finix to
process payment authorizations, transmissions, and
settlement activities for Card Transactions, ACH
Transactions and Disbursements under Bank’s direction. All
funds transfers are performed by Bank based on Finix’s
instructions. Any Settlement Funds or other amounts received
from Merchant in connection with the Services sponsored by
Bank shall be maintained in a pooled custodial account held
by Bank. Finix’s actions in connection with funds transfers
are done on behalf of and as a service provider to Bank and
Merchant. At no point during the payment process or
otherwise does Finix receive, hold or transmit Settlement
Funds or other Merchant funds. As a technology partner,
Finix implements functions on behalf of Bank and provides
ancillary services to Merchant.
Bank’s responsibilities under this Agreement are
limited solely to the sponsorship and settlement of
Card Transactions, ACH Transactions and
Disbursements submitted in accordance with this
Agreement and the Rules,
and Bank will not have any obligation or liability
of any nature in connection with any instructions or
services of any kind provided by Finix or its
affiliates or subcontractors. Except for Bank’s
specific responsibilities described in this Section
1.2, Finix is solely responsible for the
Services.
Bank may be changed by Finix at any time with notice to
Merchant.
1.4.
Sole Proprietors. If Merchant is organized as a sole proprietorship,
Merchant expressly acknowledges and agrees that the sole
proprietor responsible for Merchant’s business may be
held personally liable and responsible to Processor for
all of Merchant’s obligations under this Agreement,
including, without limitation, Merchant’s payment
obligations and obligations to Customers.
1.5.
Merchant Support. Finix (or a Partner Platform, in the case of Platform
Merchants) will provide Merchant with support for
general issues relating to Merchant’s use of the
Services through the Finix Dashboard and the
Documentation.
2.1.
Compliance with Applicable Law and the Rules. Merchant agrees to comply with Applicable Law and the
Rules in connection with this Agreement. With respect to
Recurring Transactions, Merchant will ensure that any such
payments comply with the disclosure and authorization
requirements of Applicable Law, including, but not limited
to, the Electronic Funds Transfer Act and Regulation E,
other applicable federal and state laws, the Rules, and any
other requirements applicable to preauthorized or recurring
payments. Merchant will provide Processor with written
notice not more than five (5) days after Merchant receives
any complaint, inquiry, subpoena, civil investigative
demand, or similar request for information from a Regulatory
Authority or any other a federal, state, or local
government, agency, or entity relating to the Services or
this Agreement.
2.2.
Notice of Changes. Merchant will provide Processor
with immediate notice in writing of (i) a Change of Control
of Merchant; (ii) its intent to change the nature of its
business, including the types of goods and services sold or
the manner in which sales are completed; (iii) a material
change to Merchant’s financial condition (within three
(3) days); (iv) any additional location or new business
for which Merchant wishes to use the Services; (v) a change
in the identity of principals, officers, Beneficial Owners,
or any other individuals previously made known to Processor;
or (vi) a change in the form of business organization.
Merchant will immediately notify Processor of any
bankruptcy, receivership, insolvency, or similar action
initiated by or against Merchant or any of its principals,
and Merchant agrees that Processor may exercise any rights
set forth in this Agreement (including those of set-off) if
Merchant files for bankruptcy, including debiting of the
Reserve Account. Merchant will include Processor in the list
of creditors filed with the bankruptcy court, whether or not
a claim exists at the time of filing. Except in the case of
a change to Merchant’s financial condition, Processor must
receive all such notices seven (7) days prior to the
change and otherwise upon request from Processor. Merchant
is liable to Processor for all losses and expenses incurred
by Processor arising out of or related to Merchant’s failure
to report changes. Processor may immediately terminate this
Agreement upon a change to the information in the
Application, whether Processor independently discovers such
change or whether Merchant notifies Processor of such
change. Failure to provide notice as required in this
Section may be deemed a material breach and will be
sufficient grounds for termination of this Agreement, or, at
Processor’s option, may result in Processor amending the
terms of this Agreement, holding funds, and/or altering the
Settlement Payout Schedule if Processor deems it necessary
to protect against financial loss. If any of the changes
listed above occur, Processor will have the option to amend
the terms of this Agreement or immediately terminate this
Agreement.
2.3.
Merchant Refund Policy. Merchant agrees to maintain a written refund policy that
complies with the Rules and Applicable Law and to disclose
such policy to Processor and all Customers. Merchant will
submit any changes to its refund policy to Processor in
writing at least thirty (30) days before the change and will
not implement any change to which Processor reasonably
objects. If Merchant operates a website through which sales
are processed, Merchant must include its refund policy on
the website in accordance with the Rules and Applicable Law.
Merchant will not make a refund or adjustment in cash
(except when required or permitted by Applicable Law or the
Rules) for any Transaction and will deliver to Processor all
information reflecting such refund or adjustment within
three (3) days of the refund or adjustment. The amount of
any refund must not exceed the amount of the original
Transaction except for any amount which Merchant agrees to
reimburse the Customer for return postage. Merchant will not
accept any payment from a Customer as consideration for
issuing a refund. Merchant is solely responsible for
settling any disputes between Merchant and its Customers.
Processor will have no responsibility in resolving or
settling such disputes.
2.4.
Data Security; Software. Merchant will be solely responsible for the security and
confidentiality of Transactions processed by means of
electronic commerce. Merchant will include any information
or disclosures required by the Rules or Applicable Law on
Merchant’s website or as otherwise specified by Processor.
Merchant will be solely responsible for its use of any fraud
prevention services provided by any third party or web
software vendor selected by Merchant. Processor will not be
responsible for the security of or preventing fraud in
electronic commerce Transactions presented by Merchant or
any third party providing electronic commerce services to
Merchant. Merchant will disclose to Processor and receive
prior approval for all third parties that have access to
Customer Data. Merchant agrees to indemnify, defend, and hold harmless
Processor and its parent companies, subsidiaries, and
Affiliates (including, without limitation, the officers,
directors, employees, attorneys, shareholders,
representatives, and agents of all of the foregoing) against
all losses from fraudulent activity related to electronic
commerce (including Chargebacks). If at any time Merchant
determines or suspects that Customer Data has been
compromised, Merchant must notify Processor immediately and
assist in providing notification to such parties as may be
required by Applicable Law or the Rules, or as Processor
otherwise reasonably deems necessary.
2.5.
Use of Vendors and Service Providers. Merchant must notify Processor of its use of any
third-party vendor or service provider in connection with
receiving or using the Services or to the extent required by
the Networks. All vendors and service providers and software
involved in processing, storing, receiving, or transmitting
of Customer Data must be (i) compliant with all Rules
applicable to service providers; and (ii) registered with
and/or recognized by such Network, as applicable. Merchant
agrees to exercise due diligence to ensure that all vendors
and service providers, and any other agents, business
partners, contractors, or subcontractors with access to
Customer Data maintain compliance with the Rules, Applicable
Law, and this Agreement.
2.6.
Third Party Assessments and Pass-Through Costs. Merchant will be responsible for all amounts imposed,
passed through, or assessed against Finix or Bank in
connection with this Agreement by the Networks, processors,
telecommunication companies, third party service providers,
or any other third party, including but not limited to Card
Brand fees, interchange fees, dues, assessments, and high
risk registration fees (“Pass-Through Costs”). Finix
may increase the Fees automatically and effective
immediately to reflect increases in Pass-Through Costs, and
such increased Fees will be immediately payable by Merchant
when assessed by Finix.
2.7.
Acceptance of Payments.. Merchant may accept Card, ACH, and other payments
approved by Processor only at location(s) approved by
Processor. Additional locations may be added, subject to
Processor’s approval. Processor may delete location(s) by
providing notice as provided in this Agreement. Merchant may
not use any electronic authorization or data capture
terminal or device to process Transactions that has not been
approved in writing by Processor.
3.
USE OF FINIX TECHNOLOGY; MARKS.
3.1.
Access to Finix Dashboard. Finix may provide Merchant with the ability to access an
online, interactive graphical user interface that provides
Merchants with an overview of their Finix accounts and tools
to access and manage use of the Services (the “Finix Dashboard”). Merchants may access the Finix Dashboard directly, or
if a Platform Merchant, through the Partner Platform, as may
be applicable. Merchant is solely responsible for
reconciling information in the Finix Dashboard with its
transaction records and identifying any errors. Merchant
agrees to promptly notify Finix (or Partner Platform if
applicable) of any errors. Finix will investigate and, if
appropriate, attempt to correct reported errors. Merchant’s
failure to report an error within sixty (60) days of it
first appearing in the Finix Dashboard will be deemed a
waiver of any right to amounts that may be owed to Merchant
in connection with such error.
3.2.
License and Restrictions. Subject at all times to Merchant’s full compliance with
this Agreement, Finix hereby grants Merchant a worldwide,
revocable, non-exclusive, non-transferable,
non-sublicensable, and royalty-free license during the Term
to use and access the Finix Technology solely for accessing
and managing Merchant’s use of the Services for commercial
purposes related to Merchant’s business.
Merchant will not (i) use the Finix Technology to
create any service, software, documentation, or other
material that performs substantially the same
functionality as the Finix Technology; (ii) disassemble,
decompile, reverse-engineer or use any other means to
attempt to discover any source code, algorithms or trade
secrets underlying the Finix Technology or any of its
components; (iii) impose (or permit any third party to
impose) any lien, security, or other encumbrance upon
the Finix Technology; (iv) adapt, combine, create
derivative works of or otherwise modify the Finix
Technology; (v) disable, circumvent, or otherwise avoid
or undermine any security device, mechanism, protocol,
or procedure implemented in the Finix Technology; (vi)
use or access the Finix Technology for any unlawful,
fraudulent, deceptive, malicious, or otherwise harmful
or injurious purpose; (vii) remove, obscure, deface, or
alter any proprietary rights notices on any element of
the Finix Technology or Documentation; or (viii) use the
Finix Technology in any manner which could damage,
disable, overburden, or impair the Finix Technology or
interfere with any third party’s authorized use of the
Finix Technology. Merchant will not utilize any
software, hardware, or other tool to scan or monitor the
Finix Technology or Finix’s servers or network
infrastructure for the purpose of measuring or analyzing
uptime, operating systems, virtual environments, or
other installed applications, including without
limitation for stress testing, load testing, or
performance benchmarking.
3.3.
Access Credentials. Merchant is responsible for securing and maintaining the
confidentiality of any login or access credentials to the
Finix Technology, including without limitation those
provided by Finix or Partner Platform to Merchant to allow
Merchant to access or use the Dashboard, and Merchant will
be fully responsible for all activities that occur through
the use of such credentials. Merchant agrees to notify Finix
immediately if Merchant believes the confidentiality of such
credentials has been compromised or if Merchant suspects
unauthorized use of such credentials. Finix and Bank will
not be liable for any loss or damage arising from Merchant’s
failure to comply with this paragraph.
3.4.
Feedback. Merchant may provide
Feedback to Finix from time to
time through the Dashboard or other means of communication
acceptable to Finix. Finix will have full discretion to determine whether or not
to proceed with the development of the requested
enhancements, new features or functionality.
Feedback, even if designated as confidential by
Merchant, will not create any confidentiality obligation
for Finix, notwithstanding anything else in this
Agreement. Merchant will, and hereby does, grant to
Finix a non-exclusive, worldwide, perpetual,
irrevocable, transferable, sublicensable, royalty-free,
fully paid up license to use and exploit the Feedback
for any purpose. Nothing in this Agreement will impair
Finix’s right to develop, acquire, license, market,
promote or distribute products, software or technologies
that perform the same or similar functions as, or
otherwise compete with, any products, software or
technologies that Merchant may develop, produce, market,
or distribute.
3.5.
Rights Reserved.
As between the Parties, Processor retains all right, title,
and interest in and to the Services, and all software,
products, works, and other intellectual property and moral
rights related thereto or created, used, or provided by
Processor for the purposes of this Agreement, including any
copies and derivative works of the foregoing. No rights or
licenses are granted except as expressly and unambiguously
set forth in this Agreement.
3.6.
Use of Marks. Merchant may not use any brand, logo, or other trademark
of Finix (collectively, “Finix Marks”) in any
Merchant Marketing Materials or other public statement or
distributed material for any purpose without Finix’s prior
written consent. As between the Parties, all goodwill
generated by any use of Finix Marks shall accrue and inure
solely to the benefit of Finix. Merchant shall not: (i)
register or attempt to register any brand, logo, or other
trademark which is substantially similar to Finix Marks;
(ii) contest Finix’s ownership of or the validity of any
Finix Marks; (iii) use Finix Marks in any manner which is
reasonably likely to cause consumer confusion as to the
source of either Party’s goods or services; or (iv) use
Finix Marks in any manner which is disparaging or harmful to
Finix’s brand, products, services, goodwill, or reputation.
Merchant grants Finix permission to use Merchant’s name,
brand, and/or logo in Finix’s customer lists and other
marketing materials.
4.
FEES
4.1.
Fees; Payment Obligation. Merchant agrees to pay the Fees specified in the Finix
Dashboard or as otherwise provided by Finix (or Partner
Platform if applicable), as may be amended by Finix (or
Partner Platform if applicable) from time to time. Finix may
instruct Bank to deduct Fees (including Platform Fees, if
applicable) owed by Merchant from (i) amounts due to
Merchant under this Agreement (including from Settlement
Funds); (ii) the Settlement Account; or (iii) the Reserve
Account. Merchant will pay the amounts due by the next
Business Day if sufficient funds are not available in the
Settlement Account or the Reserve Account or through
deduction from Settlement Funds.
4.2.
Fee Increases. Finix (or Partner Platform if applicable) may increase
any or all parts of the Fees by giving Merchant at least
thirty (30) days advance written notice, except that the
Fees may be immediately increased without notice to reflect
increases to any Pass-Through Costs. Merchant agrees that
the Fees may be based upon Merchant’s estimated Transaction
volume or other information provided by Merchant in the
Application. Finix (or Partner Platform if applicable)
reserves the right to increase Fees (including the rates at
which they are calculated) if there is any material variance
from the information provided by Merchant in the Application
or other information (such as projected volume or average
ticket size) upon which Fees were initially determined.
4.3.
Payments of Amounts Owed;
Invoicing. Merchant agrees to pay amounts owed to Processor,
including for all (i) Fees assessed by Finix and other
charges, penalties, or other amounts owed by Merchant; (ii)
all refunds, and Chargebacks; (iii) all Disbursements, (iv)
Reserve Account amounts; (v) fees, charges, fines,
assessments, penalties, or other liabilities that may be
imposed on Processor from time to time by the Networks in
connection with providing the Services, and all related
costs and expenses incurred by Processor. Chargebacks,
Disbursements or losses from fraudulent activity are the
complete, full, and sole responsibility of Merchant.
Processor may deduct, recoup, or setoff all such Fees and
other amounts Merchant owes under this Agreement from
Merchant’s Settlement Funds or Settlement Account.
Merchant’s obligation to pay is not contingent upon delivery
of an invoice. If Finix issues Merchant an invoice, Merchant
agrees to pay the amounts set forth in such invoice in
accordance with the invoice instructions. If payment is not
received (or if an invoice is not paid in full), Finix may
charge Merchant a late payment fee at the lesser of
one-and-one-half percent (1.5%) per month or the highest
rate allowable by law, in each case compounded monthly to
the extent allowable by Applicable Law. Finix will apply all
payments beginning with the oldest amounts due.
4.4.
Refunds. Fees charged for executing the original Transaction or
any Instant Payout will not be refunded in part or in whole
to Merchant if such Transaction is refunded or made subject
to a Chargeback.
4.5.
Fee Disputes. If Merchant, in
good faith, disputes any portion of an invoice provided by
Finix, Merchant will pay the undisputed portion of the
invoice and submit a Fee Dispute Notice to Finix within
sixty (60) days from the date the invoice at issue is
received by Merchant. Merchant waives the right to dispute
any Fees not disputed within such sixty (60) day period. The
Parties will negotiate in good faith to attempt to resolve
any such disputes within sixty (60) days after Merchant’s
delivery of the applicable Fee Dispute Notice.
5.
TRANSACTION SETTLEMENT; RESERVE ACCOUNT;
CHARGEBACKS.
5.1.
Transaction Settlement.
5.1.1.
Settlement Account Designation. Merchant agrees to designate and maintain a Settlement
Account that accepts ACH transfers with a balance of
available funds sufficient to accommodate Merchant’s
obligations under this Agreement. By designating a
Settlement Account, Merchant represents and warrants that:
(a) Merchant is the legal owner of the Settlement Account or
has obtained all necessary authorizations from the account
holder to designate the account as Merchant’s Settlement
Account; (b) Merchant has full authority to authorize
credits and debits to the Settlement Account; (c) if the
Settlement Account is a personal bank account (such as where
Merchant is a sole proprietor), Merchant knowingly consents
to the use of such personal account for the business
purposes contemplated by this Agreement; and (d) if the
Settlement Account is not in Merchant’s exact legal name,
Merchant has obtained all necessary consents and
authorizations from the account holder to permit the
transactions contemplated by this Agreement. The foregoing
representations and warranties apply to any subsequent
designation or change of Settlement Account. Merchant is
solely responsible for any changes to the Settlement Account
made through Merchant's account credentials or the Finix
Dashboard, including changes made by Merchant's employees,
agents, or any other person who obtains access to Merchant's
account, whether authorized or unauthorized. Processor and
Bank shall be entitled to rely on any Settlement Account
designation or change submitted through Merchant's account
without independent verification, and Processor and Bank
shall have no liability to Merchant or any third party for
remitting Settlement Funds to any Settlement Account so
designated. Merchant agrees to indemnify and hold harmless
Processor and Bank from any claims, losses, or liabilities
arising from Merchant’s designation of a Settlement Account
for which Merchant lacked proper authorization.
5.1.2.
Settlement Payout. When Bank receives Settlement Funds from a Network, Bank
will hold those Settlement Funds on Merchant’s behalf in a
pooled custodial account at Bank. Finix will instruct Bank
to provide provisional credit to Merchant for each valid
Transaction processed for Merchant on a gross or net basis
pursuant to the Settlement Payout Schedule, provided that
Bank has received settlement for the valid Transaction from
the applicable Network. Each Business Day (or as otherwise
set forth in the Settlement Payout Schedule), Bank, upon
instruction by Finix, will remit Settlement Funds from the
pooled account at Bank to Merchant’s designated Settlement
Account less (i) any amounts Processor is authorized to
deduct or withhold under this Agreement, and (ii) any
Disbursements requested by Merchant from Settlement Funds.
Merchant agrees that the transfer of Settlement Funds to the
Settlement Account or the Disbursement of such funds on
behalf of Merchant will discharge Processor of its
settlement obligations to Merchant. Processor is not
obligated to provide provisional credit to Merchant for
Transactions that are not valid, and Processor may suspend
or discontinue any provisional credit in Processor’s sole
and absolute discretion. If there are not sufficient
available funds in the Settlement Account to cover
Merchant’s obligations hereunder, Processor may make
deductions from Settlement Funds without notice.
5.1.3.
Same-Day Settlement. Subject to Processor’s approval in its sole discretion,
Processor shall provide the “Same-Day ACH Services” which
enable Merchant to initiate faster ACH settlement payouts.
Processor reserves the right to impose a cap on the daily
amount of settlement paid, which limitations, if any, shall
be communicated to Merchant by Finix. Merchant agrees that:
(i) Processor may suspend or terminate the Same-Day ACH
Services at any time in its sole discretion; and (ii)
Merchant may suspend or terminate its participation in the
Same-Day ACH Services at any time; provided that in either
case, the applicable settlement payouts will thereafter be
made pursuant to Processor’s standard practices and
schedule, and according to the Fees for standard payout
services. Merchant acknowledges that Same-Day ACH Services
may be subject to the policies and procedures of Processor
and recipient banks with respect to such Same-Day ACH
Services, and that Processor does not warrant or guarantee
the settlement of Transactions on an accelerated timeframe.
For the avoidance of doubt, all other terms which apply to
ACH authorization and settlement generally herein shall
apply to Same-Day ACH Services.
5.1.4.
Instant Payout. If Merchant selects for the Settlement Payout Schedule
any Instant Payout service offered by Processor, Processor
will remit Settlement Funds to the Settlement Account in
accordance with the Settlement Payout Schedule for Instant
Payouts. Processor reserves the right to delay any Instant
Payout and/or suspend Merchant’s use of the Instant Payout
service in Processor’s sole discretion. Instant Payouts may
be subject to transfer and other limitations as determined
by Processor and specified through the Finix Dashboard or
Documentation.
5.2.
Refusal to Process; Suspension of Settlement.
5.2.1.
Processor reserves the right to refuse to process any
Transaction or return for correction any Transaction
presented by Merchant if Processor reasonably believes that
the Transaction (i) may be uncollectible from the Customer;
(ii) violates this Agreement, Applicable Law, or the Rules;
or (iii) may involve Suspicious Activity. Processor will
have no liability for any losses, either direct or indirect,
which Merchant may attribute to any suspension or refusal of
settlement for Transactions.
5.2.2.
If Processor determines, in its sole and reasonable
discretion, that a Transaction may be the result of or may
result in Suspicious Activity, Processor may take such
actions as Processor deems necessary to prevent or mitigate
actual or future risks of harm, including, but not limited
to (i) suspension of processing privileges; (ii) increase of
any Fees that may be charged to Merchant; and/or (iii)
creation or maintenance of a Reserve Account in accordance
with this Agreement.
5.2.3.
Merchant shall ensure that the rate of all Chargebacks does
not exceed the percentage thresholds permitted by the Rules.
In the event Chargebacks exceed such percentage thresholds,
Merchant shall provide a detailed explanation to Processor
regarding such percentage. Processor, in its sole
discretion, may immediately terminate this Agreement or
suspend the Services, in whole or in part, if (a) Merchant
fails to provide such explanation, or (b) if after
investigation of Merchant's explanation, Processor
reasonably determines that Merchant will be unable to reduce
the excessive rate of Chargebacks within a commercially
reasonable period of time.
5.3.
Reserve Account.
5.3.1.
At any time and for any reason (including, without
limitation, notice of termination or actual termination of
this Agreement, unauthorized Transactions, cessation of
business, insolvency, Suspicious Activity, or competing
claims regarding funds generated via Merchant’s processing
activities), Processor may require Merchant to establish one
or more Reserve Accounts for the Services, increase the
funding amount of an existing Reserve Account, or provide
other security to pay amounts due or anticipated under this
Agreement. Merchant acknowledges that Processor may require
additional or separate Reserve Account(s) in connection with
Merchant’s receipt of Services under additional Services Schedules
to this Agreement. Processor may require that such
Reserve Account(s) be funded (whether initially or due
to increased funding requirements) immediately
(including, without limitation, in instances of
unauthorized transactions, suspected or actual fraud, or
termination for cause). Processor may, without prior
notice, establish and fund a new Reserve Account or
increase the funding of an existing Reserve Account by
deducting amounts from Settlement Funds or by charging
the Settlement Account or any other available account of
Merchant; provided that Finix will notify Merchant of
the establishment or increased funding of the Reserve
Account no later than three (3) Business Days after
doing so.
5.3.2.
Except as otherwise agreed upon in writing by the Parties,
funds in the Reserve Account(s) will remain in the Reserve
Account(s) for a minimum of one hundred eighty (180)
calendar days following the date on which this Agreement is
terminated and until such time as Processor is satisfied
that Merchant has no further obligations to Processor under
this Agreement; provided, however, that Merchant will remain
liable to Processor for all liabilities occurring during and
beyond such 180-day period. After the expiration of such
180-day period, Finix will notify Merchant when any funds
remaining in the Reserve Account(s) are eligible to be
released, and Merchant will promptly respond with
instructions for how they should be returned to Merchant.
5.3.3.
Merchant’s failure to fund the Reserve Account (whether
initially or due to increased funding requirements) may
result in immediate suspension of Services or termination of
this Agreement in Processor’s sole discretion. Merchant has
no legal or beneficial interest in the Reserve Account,
which funds are held for the benefit of the Networks and
Processor, until such time as the funds are released to
Merchant. Processor will have sole control of the Reserve
Account if there is any bankruptcy proceeding. If there is a
bankruptcy proceeding, Processor may exercise its rights
under this Agreement to debit the Reserve Account for
amounts due to the Networks or Processor regardless of the
pre-petition or post-petition nature of the amount due
Processor. If there is a bankruptcy proceeding, Merchant
agrees that it will not contest any motion for relief from
the automatic stay, which Processor may file to debit the
Reserve Account; and funds in the Reserve Account will
remain in the Reserve Account following termination for such
timeframe as determined by Processor.
5.4.
Security Interest. Merchant hereby grants Finix a lien and security interest
in all of Merchant’s right, title, and interest in or to any
of the following assets or properties: (i) all Transactions
and Settlement Funds; (ii) any rights to receive credits or
payments under this Agreement; (iii) if a court of law
determines the funds in the Reserve Account(s) are owned by
Merchant, then the Reserve Account(s); and (iv) all deposits
and other property of Merchant that Finix or its Affiliates
possess or maintain (including all proceeds of the
foregoing). Merchant will execute, acknowledge, or deliver
any documents or take any actions Finix may from time to
time request to better assure, preserve, protect, perfect,
maintain, or enforce this security interest. To the extent
permitted by law, Merchant irrevocably authorizes Finix to
file any financing statements (at Merchant’s expense) in any
relevant jurisdiction or any other documents or instruments
related to this security interest. Finix will also be the
beneficiary of any insurance, surety bond, or similar
indemnity or guaranty (whether voluntary or required by law)
of Merchant or for the benefit of Merchant’s Customers, and
Merchant hereby assigns to Finix the rights to make claims
or receive the benefits thereof with respect to Transactions
hereunder. Merchant represents and warrants that (a)
Merchant has good and valid rights and title to the property
described herein; (b) Merchant has full power and authority
to grant Finix the security interest pursuant hereto and to
execute, deliver, and perform its obligations in accordance
with the terms of this Agreement, without the consent or
approval of any other person or entity; (c) no other person
or entity has a security interest or lien in any of the
property described herein; and (d) this security interest is
a first lien security interest and secures Merchant’s
obligations to Finix under this Agreement. Finix will have
all rights of a secured party and Merchant must obtain the
prior written consent of Finix before granting any
subsequent security interest or lien in the property
described herein. Merchant agrees that it is Merchant’s
intent that these accounts and secured property will to the
extent allowed by law not be subject to any preference,
claim, or stay by reason of any bankruptcy or insolvency
law. Merchant agrees to act consistently with the
understanding that said accounts and secured property under
this Agreement are free of all such preferences, claims, or
stays by reason of and as allowed by any such law.
5.5.
Authorization to Deposit and Withdraw from Settlement
and Reserve Accounts. Merchant authorizes Bank, upon instruction of Finix, to
initiate and make deposits and withdrawals to and from the
Settlement Account, the Reserve Account, and any other
account to which Processor has access which may be
transmitted electronically or accessed through ACH, or to
delay or place holds on any amounts in such accounts in
order to pay amounts owed to the Networks or Processor, or
to protect any of Processor’s rights and to obtain, without
any further notice or demand, payment of any amount due to
Processor under this Agreement, including, without
limitation, (i) Fees and other charges, penalties, or other
amounts owed by Merchant; (ii) all refunds and Chargebacks;
(iii) all Disbursements; (iv) Reserve Account amounts; (v)
fees, charges, fines, assessments, penalties, or other
liabilities that may be imposed on Processor from time to
time by the Networks in connection with providing the
Services, and all related costs and expenses incurred by
Processor; and (vi) any funds sent to Merchant in error
(which shall be considered funds owed to Processor).
Merchant agrees that any depository bank may comply with
instructions originated by Processor directing dispositions
of the funds in those accounts without any further consent
required by Merchant unless required by Applicable Law. If
required, Merchant authorizes Processor to enter into any
agreement with any depository institution for this purpose,
including on behalf of Merchant, to effect the security
interest granted to Processor above. Merchant agrees to
enter into any such agreement. Merchant will confirm to any
institution holding any account of Merchant the existence of
this authorization and direct it to comply with Processor’s
directions. Merchant will not change any such confirmation
or direction without Processor’s prior written consent. Any
such confirmation, direction, or authorization will remain
in effect for at least one hundred eighty (180) days after
termination of this Agreement or, in Processor’s discretion,
longer to process trailing activity. Processor reserves the
right to terminate or suspend any or all services under this
Agreement at any time if Merchant fails to maintain
authorizations for Processor to debit and credit the
Settlement Account and Reserve Account as set forth in this
Section. Merchant is solely responsible for providing
Processor with and maintaining accurate contact, payment,
and account information for each Settlement Account,
including any applicable tax information.
6.
PARTNER PLATFORM ACCOUNTS AND SERVICES.
The following additional provisions apply to Platform
Merchants that access the Services through a Partner
Platform. For the avoidance of doubt, Platform Merchants are
subject to the terms and conditions in this Agreement
generally applicable to Merchants, in addition to those
terms and conditions specifically applicable to Platform
Merchants.
6.1.
Establishment of Partner Platform Accounts.
The Finix Technology allows a Platform Merchant to
access the Services through an integration between a
Partner Platform and Finix. Finix may provide options
for how Platform Merchants sign up for and receive the
Services, including through Partner Platforms, as
described in the Documentation. The Partner Platform is
solely responsible for the selection of the onboarding
mechanism for each Platform Merchant. Platform Merchant
must at all times be a party to an effective Partner
Platform Agreement that addresses the provision of
Services under this Agreement through the Partner
Platform. Finix will not be responsible or liable to
Platform Merchants for any services provided through or
in connection with the Partner Platform outside of the
Services in this Agreement.
6.2.
Use of Services. Platform Merchant agrees that the Partner Platform may
submit Transactions and conduct other activity involving the
Services on behalf of Platform Merchant pursuant to the
terms of the Partner Platform Agreement. Additional terms,
conditions, and limitations for Platform Merchant’s access
to the Services may be set forth in the Partner Platform
Agreement. Platform Merchant agrees to comply at all times
with the Partner Platform Agreement. Platform Merchant
remains liable to Processor as set forth in this Agreement,
regardless of any other provisions set forth in the Partner
Platform Agreement. Platform Merchant agrees that Finix may
rely on any information provided by Partner Platform on
behalf of Platform Merchant, regardless of its accuracy or
completeness.
6.3.
Platform Merchant Fees.
Unless otherwise agreed to by the Parties, the Partner
Platform is responsible for setting the Platform Fees
charged to Platform Merchant for the Services and
disclosing them to Platform Merchant. The Platform Fees
typically include the Fees owed to Finix under this
Agreement plus any additional fees charged by the
Partner Platform. Processor is not responsible for the
Platform Fees. In addition to Finix’s rights under this Agreement, if
requested by the Partner Platform, Bank, upon direction of
Finix, may deduct from Platform Merchant’s Settlement Funds
or Settlement Account any Platform Fees or other amounts
owed to Processor under this Agreement or to Partner
Platform under the Partner Platform Agreement. The Partner
Platform is solely responsible for determining whether or
not Platform Fees are refundable.
6.4.
Communications with Platform Merchants.
Platform Merchant will transmit all Processing Data,
notices, instructions, communications, and other
information required to be sent or communicated to
Processor under this Agreement through the Partner
Platform, or in some cases through the Finix Dashboard,
in accordance with the terms and conditions of the
Partner Platform Agreement. Finix will send to Partner
Platform all notices, communications, and other
information required to be sent by Processor to Platform
Merchant under this Agreement, and Partner Platform will
be solely responsible for communicating that information
to Platform Merchant in accordance with the Partner
Platform Agreement, including, without limitation, all
notices and information from Processor concerning the
Services, Chargebacks, Fee increases, Reserve Accounts, Network requirements, and scheduled or emergency downtime.
Platform Merchant agrees that Partner Platform is solely
liable and responsible for any failure to provide effective
notice to Platform Merchant through the Partner Platform or
the Finix Dashboard. Platform Merchant agrees that Platform
Merchant is solely liable and responsible to Processor if a
Partner Platform fails to transmit any information or
communication to Processor required by Platform Merchant
under this Agreement.
6.5.
Liability; Disclaimer.
Platform Merchant is solely responsible for any use of
or access to the Finix Technology or Services initiated
by Partner Platform on Platform Merchant’s behalf or
using Platform Merchant’s credentials, including the
accuracy and completeness of any information transmitted
by Partner Platform to Processor. Platform Merchant will
indemnify and hold Processor harmless from any losses
incurred by Platform Merchant or any third party based
on unauthorized activity initiated by Partner Platform,
its employees, or its agents. If Platform Merchant experiences any Chargebacks, Platform
Merchant must communicate and cooperate with Partner
Platform to resolve the Chargeback in accordance with the
Rules, this Agreement, and the Partner Platform Agreement.
Processor is not responsible to Platform Merchants for
Partner Platform’s handling of Chargebacks or any services
provided by Partner Platform that are outside the scope of
this Agreement.
Furthermore, Processor is not responsible for and
disclaims all liability for Partner Platform’s and its
Affiliates’, employees’ and agents’ (a) acts or
omissions in providing any of Partner Platform’s
services to Platform Merchants; (b) compliance with
Applicable Law and obligations related to the services
provided by Partner Platform; and (c) providing customer
service, notifications, receipts, handling refunds or
consumer complaints, or taking other actions related to
the services provided by Partner Platform.
7.
TERM AND TERMINATION.
7.1.
Term. The term of this Agreement commences on the Effective
Date and continues until this Agreement is terminated by
Merchant or Processor pursuant to the terms herein (the
“Term”).
7.2.
Termination by Merchant. Merchant may terminate this Agreement at any time by
providing notice to Processor.
7.3.
Termination or Suspension of Services by
Processor.
7.3.1.
Processor may terminate this Agreement or a Services Schedule
with thirty (30) days’ prior notice at any time and for
any reason; provided that, this Agreement will automatically terminate
if Merchant is not approved by Processor (after submitting
an Application) to use or access the Services.
7.3.2.
Processor may terminate this Agreement or suspend or
terminate Merchant’s access to all or part of the Services
or Finix Technology immediately if
(i) Merchant experiences, or Processor reasonably
suspects Merchant could experience, Suspicious Activity;
(ii) Processor reasonably determines that Merchant’s
Transactions or the circumstances surrounding its
Transactions have otherwise become irregular or increase
Finix’s or Bank’s exposure to Chargebacks, reputational,
or other security risks; (iii) there has been a material
or potentially material deterioration of Merchant’s
financial condition; (iv) Merchant becomes subject to
any voluntary or involuntary bankruptcy, insolvency,
reorganization, or liquidation proceeding, a receiver is
appointed for Merchant, or Merchant makes an assignment
for the benefit of creditors, or admits inability to pay
its debts as they become due; (v) Merchant ceases doing
business as a going concern, or there is a Change of
Control; (vi) Merchant is in breach of this Agreement
(including but not limited to the Documentation), the
Rules, or Applicable Law; (vii) Merchant’s name or
its principals’ names are listed on a Network terminated
merchant or risk monitoring program; (viii) directed to
do so by Bank, any Regulatory Authority, or a Network;
(ix) Merchant or Merchant’s principals become subject to
any criminal or civil action, suit, or proceeding or to
any government or regulatory investigation or
enforcement action; or
(x) Merchant fails to process any Transactions for at
least two (2) consecutive calendar months and is not a
seasonal merchant. If Merchant was boarded through a
Partner Platform, this Agreement terminates
automatically when Merchant’s Partner Platform Agreement
terminates. This Agreement will automatically terminate
if Finix’s sponsorship agreement with Bank
terminates.
Any suspension or limitation pursuant to this Section will
be in addition and without prejudice to any remedy available
to Processor at law or in equity if Merchant breaches this
Agreement.
7.4.
Effect of Termination.
7.4.1.
Termination of a Services Schedule
or any individual Services will not automatically effect
a termination of the entire Agreement, any other
Services Schedule, or any Services outside the scope of
the terminated Services Schedule. Any notice of
termination of this Agreement must clearly identify the
terminating Party’s intent to terminate the entire
Agreement.
7.4.2.
Upon termination of this Agreement, Merchant will return
any of Processor’s property, equipment, or forms. Merchant’s
obligations under this Agreement with respect to
Transactions, Chargebacks, the Settlement Account, and
Reserve Accounts will survive termination of this Agreement.
Following termination of this Agreement, Processor reserves
the right to require Merchant to establish and fund new
Reserve Account(s) or deposit additional funds into existing
Reserve Accounts. Processor’s rights and authorizations
under this Agreement to debit and credit Merchant’s
Settlement Account and Reserve Account(s) will also survive
termination of this Agreement.
7.4.3.
Merchant acknowledges that the Networks may maintain
registries containing the names of any business (and its
principals) which have been terminated for certain reasons.
Merchant acknowledges that Processor may be required to
report Merchant (and its principals) to the Networks if this
Agreement is terminated. Merchant agrees and consents to
such reporting if this Agreement is terminated as may be
required by the Rules. Merchant also acknowledges that
Processor may submit a derogatory report on Merchant and its
principals to a consumer and/or business credit reporting
agency. Processor will not be liable to Merchant or its
principals for any damages (including prospective sales or
profits) due to termination of this Agreement or reporting
to the Networks or a credit reporting agency by Processor.
7.4.4.
It is the express agreement of Processor and Merchant that
the acquisition of Transactions hereunder is a financial
accommodation and, if Merchant becomes a debtor in any
bankruptcy or similar proceeding, then (i) such event will
be deemed a default for purposes of this Agreement and
Section 365(B)(1) of the United States Bankruptcy Code or
any applicable successor statutory provision thereto; and
(ii) it is the intent of the Parties that, unless otherwise
agreed by Processor, this Agreement should not be assumed or
enforced by any other person and Processor should be excused
from performance hereunder.
8.
AUDIT AND RISK MANAGEMENT.
8.1.
Processor may monitor Merchant’s business and Transactions
for risk management purposes. Merchant must immediately
remedy any and all issues identified by Processor if
Processor determines, in its sole discretion, that Merchant
is operating in a manner that violates Applicable Law, the
Rules, or this Agreement, or which poses a material risk of
harm to Processor. If Processor identifies any Suspicious
Activity, Processor is authorized to take protective actions
including (i) closing terminals; (ii) blocking Transactions;
(iii) holding funds (including, without limitation, charging
any applicable Fees or increasing Reserve Account
requirements); and (iv) investigating such Suspicious
Activity. Processor may impose caps or limitations on
Merchant’s use of the Services, including Transaction
processing, in Processor’s sole discretion. Processor may
change any such caps or limits from time to time, without
prior notice to Merchant. If Merchant exceeds an established
cap or limit, Processor may suspend the processing of
Transactions beyond such cap or limit. The foregoing
provision does not limit any other rights or remedies of
Processor set forth in this Agreement.
8.2.
Merchant agrees to cooperate in any audit, examination, or
investigation as may be required by Processor, the Networks,
or a Regulatory Authority; and upon request and reasonable
prior notice, permit Processor, the Networks, or a
Regulatory Authority to conduct an on-site inspection of
Merchant’s premises and examine Merchant’s books, records,
practices, and systems, but only to the extent that each
pertains to compliance with this Agreement. Any audit that
is required by Applicable Law or the Rules will be at
Merchant’s sole expense. Except as stated otherwise herein,
all other audits will be at Processor’s expense. Processor
and any other applicable entities will have the right to
retain a third party to perform any audit. Merchant agrees
to implement any changes identified pursuant to an audit
necessary to remediate or prevent any violation of
Applicable Law or the Rules. If Processor, in its
discretion, determines that there is a need for an audit
regarding a potential violation of Applicable Law or the
Rules, Processor may withhold payment of amounts owed to
Merchant without penalty pending completion of the audit. If
it is determined that there has been a violation of
Applicable Law or the Rules relating to this Agreement,
Processor may withhold payment of amounts owed to Merchant
for a reasonable amount of time in an amount equal to the
costs, fees, and expenses incurred by Processor in
investigating and resolving the same and for any damages
incurred by Processor.
9.
CONFIDENTIALITY. Receiving Party will not use or access any Confidential
Information of Disclosing Party for any purpose outside the
scope of this Agreement, or disclose Confidential
Information to any third party except with Disclosing
Party's prior written consent. Receiving Party will protect
the confidentiality of Disclosing Party's Confidential
Information utilizing the same standard of care that it
employs to protect the confidentiality of its own
information of a similar nature (but in no event using less
than reasonable care). Receiving Party will promptly notify Disclosing Party if it
becomes aware of any actual or reasonably suspected breach
of the confidentiality of Disclosing Party's Confidential
Information. If Receiving Party is compelled by law to
disclose Confidential Information of Disclosing Party, it
will provide Disclosing Party with prior notice of such
compelled disclosure (to the extent legally permitted) and
reasonable assistance, at Disclosing Party's cost, if
Disclosing Party exercises efforts to contest the disclosure
or secure a protective order or other confidential treatment
therefor. The Parties acknowledge that any breach or
threatened breach of this Agreement involving an
unauthorized use or disclosure of Confidential Information
may result in irreparable harm for which damages would not
be an adequate remedy, and therefore, in addition to its
rights and remedies otherwise available at law, the
aggrieved Party will be entitled to seek injunctive or other
equitable relief, as appropriate. If a Party seeks any
equitable remedies, such Party will not be precluded or
prevented from seeking remedies at law, nor will such Party
be deemed to have made an election of remedies.
10.
REPRESENTATIONS AND WARRANTIES.
10.1.
Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is duly
organized, validly existing and in good standing as a legal
entity under the laws of its applicable jurisdiction; (ii)
the execution of this Agreement by its representative has
been duly authorized and is effective to bind the Party; and
(iii) the execution and delivery of, and the Party’s
performance under, this Agreement does not and will not
breach any agreement or other legal duty that said Party
owes to any third party.
10.2.
Additional Merchant Representation and Warranties. Merchant
represents and warrants to Processor at the time of
execution and with each Transaction processed hereunder:
10.2.1.
All information contained in the Application or any other
documents delivered to Processor in connection with this
Agreement is true and complete;
10.2.2.
Merchant will not submit any Transactions that are not in
compliance with this Agreement, Applicable Law, and the
Rules;
10.2.3.
Merchant has all licenses, if any, required to conduct its
business and is qualified to do business in every
jurisdiction where it is required to do so;
10.2.4.
There is no action, suit, or proceeding now pending or, to
Merchant’s knowledge, threatened by or against or affecting
Merchant which would substantially impair its right to carry
on its business as now conducted or adversely affect its
financial condition or operations;
10.2.5.
Merchant’s use of the Services does not violate or infringe
upon any third-party rights; and
10.2.6.
Merchant’s business and use of the Services complies with
the Documentation, Applicable Law, and the Rules.
11.
INDEMNIFICATION.
11.1.
By Finix.
Finix will defend, indemnify, and hold harmless Merchant
from and against any third party claims, damages, losses,
liabilities, costs, and expenses (including reasonable
attorneys’ fees) arising from any IP Claims; provided that
Finix will have no obligation to defend, indemnify, or hold
harmless Merchant from and against any IP Claim (i)
resulting from use of the Services or Finix Technology other
than as authorized by this Agreement; (ii) resulting from a
modification to the Finix Technology that was not made by
Finix; (iii) to the extent the IP Claim arises from or is
based on Merchant’s use of the Services or Finix Technology
with other products, services, or data not supplied by Finix
or its Affiliates; (iv) based on Merchant’s use of an old or
outdated version of the Services or Finix Technology
following an Update, if the infringement would have been
avoided had Merchant implemented said Update; (v) if
Merchant is in material breach of this Agreement; or (vi)
based on any Finix modifications made pursuant to
instructions, designs, specifications or any other
information provided by or on behalf of Merchant, if any.
Finix’s obligations to indemnify Merchant for IP Claims is
conditioned on Merchant giving prompt written notice of the
IP Claim to Finix; permitting Finix to retain sole control
of the investigation, defense or settlement of the IP Claim;
and using all reasonable efforts to mitigate any actual or
anticipated claims and providing Finix with cooperation and
assistance as Finix may reasonably request in connection
with the IP Claim.
If, as a result of an IP Claim or an injunction, Merchant
must stop using any portion of the Finix Technology, Finix
may at its expense and option either obtain for Merchant the
right to continue using the Finix Technology; replace the
applicable Finix Technology with a functionally equivalent,
non-infringing Finix Technology; or modify or remove the
applicable portion of the Finix Technology through an Update
so that it is non-infringing.
11.2.
By Merchant. Merchant agrees to indemnify Processor and its
affiliates, officers, directors, employees, and agents
against and to hold them harmless from any and all claims
and demands of any party arising from or based upon any
breach of this Agreement or act or omission of Merchant or
its employees, representatives, agents, or service providers
in connection with or arising out of (i) this Agreement;
(ii) Merchant’s obligations, responsibilities, or duties
pursuant to this Agreement; (iii) any Transactions which
Merchant submits to Processor; (iv) Merchant’s violation of
the Rules or any Applicable Law; or (v) any hacking,
infiltration, or compromise of Merchant’s systems or the
systems of Merchant’s representatives, agents, or service
providers. If Processor is made a party to any litigation,
proceeding, arbitration, bankruptcy proceeding, or other
legal process commenced by any third party, Merchant will
protect and hold Processor harmless from and with respect to
such litigation, proceeding, arbitration, bankruptcy
proceeding, or other legal process and will pay all costs,
expenses, and attorneys’ fees incurred or paid in connection
therewith, together with any judgments rendered.
12.
LIMITATIONS.
12.1.
Limitation of Liability. Finix will not accept responsibility or liability for
errors, acts, or failures to act by others, including, but
not limited to, agents, third-party suppliers of software,
equipment, or services; or banks, communication common
carriers, data processors, or clearinghouses through which
Transactions may be passed, originated, and/or authorized.
In any event, Finix’s cumulative liability to Merchant under
this Agreement, any of the Services Schedules, and any other
term incorporated by reference into this Agreement, whether
arising in contract, tort (including, without limitation,
negligence and strict liability), or otherwise, will not
exceed the lesser of $10,000 or an amount equal to the
aggregate of monthly net Fees (excluding Pass-Through Costs)
paid by Merchant in the one (1) month period prior to the
month that the incident giving rise to liability occurred.
In no case will Merchant be entitled to recover damages from
Bank.
12.2.
Limitation of Damages. IN NO EVENT WILL PROCESSOR BE LIABLE TO MERCHANT OR
MERCHANT’S AFFILIATES FOR SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION
OR LOSS OF USE, DATA, BUSINESS, OR PROFITS, WHETHER OR NOT
SUCH LOSS OR DAMAGES WERE FORESEEABLE OR PROCESSOR WAS
ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER
ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
12.3.
Disclaimer. PROCESSOR PROVIDES THE SERVICES AND FINIX TECHNOLOGY “AS
IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY STATED AS A
“WARRANTY” IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT
PERMITTED BY LAW, PROCESSOR DOES NOT MAKE ANY, AND PROCESSOR
SPECIFICALLY DISCLAIMS, ALL WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROCESSOR
DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES OR FINIX
TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE.
13.
TAXES. Merchant agrees to pay all taxes and other charges imposed
by any Regulatory Authority on the services provided under
this Agreement. Section 6050W of the Internal Revenue Code requires certain
payment providers and third-party payment networks to report
payment settlement amounts to the
IRS for each
Merchant processing through Processor. Merchant will verify
its identity by providing Processor with a tax
identification number, such as a Social Security Number or
Employer Identification Number. If Merchant fails to provide
this information, Processor will place a restriction on the
provision of Services to Merchant and may restrict the
receipt of funds into Merchant’s Settlement Account, or
withhold a percentage of Settlement Funds in order to
satisfy the backup withholding requirements of the IRS.
Finix may charge Merchant additional fees for associated
administrative costs.
To the extent required under the Internal Revenue Code,
Finix will provide Merchant Form 1099 reporting for the
Transactions processed through this Agreement. If required
under the Internal Revenue Code, Finix may perform backup
withholding by deducting and withholding income tax from
reportable Transactions if (i) Merchant fails to provide its
tax identification number; or (ii) if the IRS notifies
Processor that the tax identification number (when matched
with the name) provided by Merchant is incorrect.
Accordingly, to avoid backup withholding, Merchant must
provide Processor with the correct name and tax
identification number that it uses when filing its tax
return that reflects the Transactions under this Agreement.
Processor will not be liable for any damages arising out of
or relating to this Section 13 which resulted from
Merchant providing incorrect information.
14.
GENERAL PROVISIONS.
14.1.
Electronic Communications. Merchant consents to (a) receive communications
electronically; and (b) the use of electronic signatures.
Merchant agrees that communications between Merchant and
Processor that are received, sent, or signed electronically
will have the same legal effect as a signed physical
document. Merchant agrees that the Services are subject to
the federal Electronic Signatures in Global and National
Commerce Act, and that this law will apply to validate
Merchant’s ability to engage electronically in transactions
related to the Services.
14.2.
Updates and Modifications to Services. From time to time, Finix may release Updates through the
Finix Dashboard or any other means that Finix may choose.
Such Updates will become part of the Services or Finix
Technology, as applicable, and subject to this Agreement.
Finix will have no obligation under this Agreement or
otherwise to provide any such Updates. If an Update will
cause a material adverse change to, depreciation of, or
removal of functionality from the Services or Finix
Technology used by Merchant, Finix will use commercially
reasonable efforts to give Merchant prior notice of the
Update. Merchant agrees to fully install all Updates
released within thirty (30) days of Finix making an Update
available to Merchant. Merchant understands that Finix may,
in its sole discretion, cease supporting old versions or
releases of the Services or Finix Technology at any time
after an Update.
14.3.
Subcontracting. Processor may subcontract its obligations under this
Agreement to third party service providers without notice to
Merchant.
14.4.
Privacy Policy; Use of Processing Data. Finix’s Privacy Policy, which is available through the
Finix Website or the Finix Dashboard, and Bank’s Privacy
Policy, found at
www.finix.com/legal/acquirers,
explains how and for what purposes Processor collects,
uses, retains, discloses and safeguards Processing Data
that you provide to Processor. Merchant acknowledges
that Processor and its Affiliates will receive and
handle Processing Data in connection with Processor’s
performance under this Agreement. Merchant further
acknowledges, agrees, and consents to the right of
Processor and its Affiliates to receive, access,
process, transmit, store, and create derivative works of
the Processing Data: (i) as reasonably required for
Processor to perform its respective obligations
hereunder; (ii) to monitor and report fraud or other
unlawful or suspicious activities by Customers or any
third party; (iii) to develop and improve Processor’s
products and services; (iv) as required to comply with
court order, government investigation, industry
self-regulatory guidelines, contractual requirements
with financial partners, or other legal requirements and
operations of Applicable Law or the Rules; and (v) in
furtherance of its other business operations and
commercial purposes. Merchant permits Processor and its
Affiliates to share Processing Data with the Networks,
between Bank and Finix, and their respective Affiliates,
with Partner Platform, as applicable, and Apple
Processing LLC (only if Merchant utilizes Tap to Pay on
iPhone), and Merchant consents to the rights of each of
the foregoing to use the same without restriction for
marketing, analysis, transactions or relationship
communication, and any other lawful business purpose.
Separate from and in addition to any other
representation or warranty herein contained, Merchant
represents and warrants that: (a) it possesses all
necessary rights, authorizations, licenses, and consents
to provide Processing Data to Processor and its
Affiliates (and for Processor or its Affiliates to
subsequently use and access such Processing Data) as set
forth herein, including without limitation such
authorizations and consents required by Applicable Law
and the Rules governing data privacy, information
security, and consumer protection; and (b) the
Processing Data does not infringe, misappropriate, or
otherwise violate the personal or proprietary rights of
any third party.
14.5.
Notices.
14.5.1.
Notices to Finix. Except with respect to Platform Merchants, Merchant will
provide Finix with all notices, requests, or other
communications required by it hereunder in electronic form
by delivering them via electronic mail to legal@finixpayments.com
or through the Finix Dashboard. Finix reserves the right to,
from time to time, update or change the electronic mail
address it uses to receive Merchant’s notices, requests, or
other communications by notifying Merchant of the changed
address. Notices sent by Merchant will be deemed to have
been properly given in “writing” when sent through
electronic mail to the correct Finix address or Partner
Platform, as applicable, with proof of delivery.
14.5.2.
Notices to Merchant. Except with respect to Platform Merchants, Finix may
provide Merchant with all notices, requests, or other
communications required by Processor hereunder by: (i)
delivering them through electronic mail to the electronic
mail address listed in Merchant’s Application; (ii) posting
to the Finix Website; (iii) posting or delivering them on or
through the Finix Dashboard; or (iv) delivering them to the
Merchant’s physical address, as listed in Merchant’s
Application, by certified mail or a nationally recognized
overnight delivery service. Finix reserves the right but
assumes no obligation to provide certain notices hereunder
in paper format. To the fullest extent permitted by
Applicable Law, all notices or other communications
regarding the Services may be provided to Merchant
electronically, and Merchant agrees to receive all
communications from Processor in electronic form. All
communications delivered by Finix to Merchant or Partner
Platform, as applicable, in either electronic or paper
format will be considered to be in “writing,” and to have
been received no later than five (5) Business Days after
posting or dissemination, whether or not Merchant has
received or retrieved the communication.
14.6.
Modifications to Agreement. Processor may modify or amend any provision of this
Agreement for any reason and at any time. Except as
expressly stated otherwise in this Agreement, such
modifications and amendments will become effective as of the
date the amended Agreement is posted to the Finix Website or
the Finix Dashboard. Merchant is responsible for regularly
checking the Finix Website or the Finix Dashboard for
updates to this Agreement. If Processor modifies or amends
this Agreement in a way that reduces Merchant’s rights or
increases Merchant’s responsibilities under this Agreement,
Processor will give electronic written notice to Merchant of
the changes. In such cases, the modifications or amendments
will become effective as of the date stated in the notice.
By continuing to use the Services after the effective date
of any modifications or amendments to this Agreement,
Merchant agrees to be bound by the amended Agreement;
provided that if Merchant does not wish to agree to such
modifications or amendments, Merchant may immediately
terminate its use of the Services and this Agreement without
agreeing to the changes by providing Processor with notice
of such prior to the effective date of the applicable
modifications or amendments.
Merchant may not
modify or amend any provision of this Agreement.
14.7.
Dispute Resolution, Jury Waiver, and Class Action
Waiver.
14.7.1.
Scope. Any and all claims, based on whatever the cause, law,
rule, or regulation, whether statutory or common law, and
however characterized, whether existing now, in the past or
in the future, as to which the Parties or any of their
subsidiaries, successors, or Affiliates may be adversarial
Parties, and whether arising out of this Agreement or from
any other cause or action, will be exclusively resolved by
binding arbitration administered by the American Arbitration
Association (“AAA”) pursuant to its Commercial Arbitration Rules (the “AAA Rules”). For purposes of this Section, the term Parties and
Merchant will in both cases include Merchant’s
principals.
14.7.2.
Choice of Law and Place of Arbitration. This Agreement will be governed and construed in
accordance with and pursuant to the law of the State of
California, without giving effect to its principles of
conflict of laws. The place of arbitration will be in San
Francisco, California, and each of the Parties waives any
objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of
any such legal proceeding will be heard and determined only
pursuant to the AAA Rules, and agrees not to bring any legal
proceeding arising out of or relating to this Agreement in
any court or before any other arbitral body. Jurisdictional
and arbitrability disputes, including disputes over the
formation, existence, validity, interpretation, or scope of
this Agreement, or regarding the identity of the proper
Parties, will be submitted to and ruled on by the
arbitrator. The arbitrator has the authority to determine
jurisdiction and arbitrability issues as a preliminary
matter. The arbitrator will be bound by the provisions of
this Agreement and base the award on applicable law and
judicial precedent. Upon rendering a decision, the
arbitrator will state in writing the basis for the decision,
including the findings of fact and conclusions of law upon
which the decision is based.
14.7.3.
Jury Trial Waiver; Class Action Waiver. To the extent permitted by law, the Parties hereby
knowingly, voluntarily, and intentionally waive any rights
either of them may have to a trial by jury in respect of any
litigation based on, arising out of, or in connection with
this Agreement. To the extent permitted by law, Merchant
covenants that any dispute arising out of or in connection
with this Agreement will be conducted only on an individual
basis and not in a class, consolidated, or representative
action, and that Merchant will not be a party to any class
action against Processor. The Parties agree that any such
action, if filed, will be dismissed upon application and
will be referred for arbitration hereunder with costs and
attorneys’ fees to the prevailing Party. ANY ARBITRATION
UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS,
AND NEITHER PARTY MAY PARTICIPATE IN ANY CLASS-WIDE
ARBITRATION WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT, OR OTHERWISE ATTEMPT TO CONSOLIDATE ARBITRATION
CONDUCTED PURSUANT TO THIS PARAGRAPH WITH ANY OTHER
ARBITRATIONS OR SIMILAR PROCEEDINGS. EACH PARTY, AFTER
CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT IN FAVOR OF THE ARBITRATION PROCEDURES SET
FORTH HEREIN. Notwithstanding the foregoing, either Party
may bring a claim for preliminary or temporary injunctive
relief before any court of competent jurisdiction in order
to prevent, remedy, or mitigate irreparable harm caused to
such Party by the present or ongoing breach of Agreement by
the other Party.
14.7.4.
Finality and Fees. The Parties will share the costs, fees, and expenses of
arbitrator and/or arbitration company equally, except that
the Party initiating such arbitration will be responsible
for all filing fees in connection therewith. The
arbitrator’s award, including awards of attorneys’ fees,
costs, and expenses, will bind the Parties, and may be
entered as a judgment in any court of competent
jurisdiction. The Parties hereby agree that any federal or
state court located in San Francisco, California is a court
of competent jurisdiction for this purpose. In addition to
finality of the award or decision, the award or decision
will be eliminated from any process, petition to, or motion
of appeal except as permitted by applicable law. Each Party
hereby waives, and agrees not to assert, by way of motion,
as a defense, or otherwise, in any such suit, action, or
proceeding, any claim that it is not subject personally to
the jurisdiction identified herein, that its property is
exempt or immune from attachment or execution, that the
suit, action, or proceeding is brought in an inconvenient
forum, that the venue of the suit, action, or proceeding is
improper or that this Agreement or the subject matter hereof
may not be enforced. Each Party hereto submits to the
exclusive jurisdiction of the state and federal courts
located in San Francisco, California, for any action to
compel or stay arbitration, for any dispute regarding the
arbitrability of a claim relating to or arising under this
Agreement or to obtain injunctive relief to enforce this
Agreement (jurisdictional, venue, and inconvenient forum
objections to which are hereby waived by all parties
hereto).
14.7.5.
Covenant Not to Sue. The Parties
covenant that under no conditions will any Party or any
Affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any
forum other than before the arbitrator.
14.8.
Entire Agreement: Assignability. This Agreement expresses the entire understanding of the
Parties with respect to its subject matter. This Agreement
will be binding upon Merchant and Processor and their
respective heirs, successors, and assigns. Except as
expressly permitted under the terms of this Agreement,
Merchant may not assign this Agreement or any of its rights,
obligations, or responsibilities under this Agreement
without Processor’s express prior written consent, and any
purported assignment without such consent will be void. If
Merchant nevertheless assigns this Agreement without such
consent of Processor, both Merchant and the assignee will
remain liable, and Merchant will be held personally liable
if such assignee incurs Chargebacks, Retrieval Requests, ACH
rejects, losses, fines or any other liabilities under this
Agreement. This Agreement may be assigned by Processor at
any time.
14.9.
Force Majeure. Processor will be excused from performing any of its
obligations under this Agreement that are prevented or
delayed by any occurrence not within Processor’s control
including, but not limited to, strikes or other labor
matters, destruction of or damage to any building, natural
disasters, accidents, war, riots, emergency conditions,
interruption of transmission or communications facilities,
equipment failure, or any regulation, rule, law, ordinance
or order of any Regulatory Authority.
14.10.
Waiver; Severability. Failure by Processor to enforce one or more of the
provisions of this Agreement will not constitute a waiver of
the right to enforce the same or other provision in the
future. The waiving Party must sign all waivers. If any
provision of this Agreement is illegal or unenforceable, the
invalidity of that provision will not affect any of the
remaining provisions and this Agreement will be construed as
if the illegal provision is not contained in this Agreement.
Merchant is responsible for its employees’ actions while in
its employ. The Parties do not intend to confer any benefits
on any person or entity other than Merchant and Processor.
15.
DEFINITIONS.
“AAA” and “AAA Rules” has the meaning set
forth in Section 14.7.1 of the General Terms.
“ACH” means an
electronic funds transfer processed through the ACH Network
and subject to the N
“ACH Network”
means the Automated Clearing House Network, which is a batch
processing, store-and-forward system that accumulates and
distributes ACH Transactions that are received from an ODFI
and are forwarded to a specified RDFI according to the Nacha
Rules.
“ACH Processing Services” means certain services whereby Processor provides Merchants
with the ability to originate credit and debit Entries in
accordance with the N
“ACH Transaction” means a Transaction consisting of an Entry to the ACH
Network.
“Affiliate”
means, with respect to a Party, any other person that
controls, is under common control with, or is controlled by,
such Party. For purposes of this Agreement, “control” means
possessing, directly or indirectly, the power to direct or
cause the direction of the management, policies or
operations of an entity, whether through ownership of voting
securities, by contract or otherwise.
“Applicable Law” means any and
all applicable federal, state, and local laws, statutes,
regulations, rules, codes, ordinances, court orders, and
regulatory guidance that govern or affect this Agreement or
the subject matter hereof, including, but not limited to,
the Electronic Fund Transfer Act (15 U.S.C. 1693, et seq.),
Regulation E (12 C.F.R. 1005, et seq.), the U.S. economic
sanctions laws and regulations administered by the Office of
Foreign Assets Control (“OFAC”), consumer protection laws, data security, and privacy
protection laws.
“Application” means Merchant’s submission of
a request for Services through the Finix Website, Finix
Dashboard, Finix-provided URL link, or through a Partner
Platform, and includes all information submitted by Merchant
in connection with such request.
“Authorization”
means approval by, or on behalf of, the Issuing Bank or
Network to validate a Transaction for a Merchant. With
respect to Card Transactions, an Authorization indicates
only the availability of the Cardholder’s credit limit at
the time the Authorization is requested and is not a
guarantee that a Transaction is valid.
“Bank” means
one or more banks listed at
www.finix.com/legal/acquirers. For purposes of this Agreement and to the extent multiple
banks are listed, the applicable Bank(s) is/are the one(s)
identified in the Application confirmation or other notice
provided to Merchant.
“Beneficial Owner” means a person who, directly or
indirectly, either (i) exercises substantial control over
Merchant or (ii) owns or controls at least 25% of Merchant’s
voting securities or interests.
“Business Day”
means any day on which Bank
is open for business, other than Saturdays, Sundays, or
banking holidays.
“Card” means
any valid account or evidence of an account issued to a
Cardholder under license from a Card Brand or any
representative or member of a Card Brand that Merchant
accepts as payment from Cardholders for goods, charitable
donations or services. Cards include, but are not limited
to, credit cards, debit cards, or prepaid debit cards in the
form issued under a license from a Card brand.
“Cardholder”
means the person to whom the Card was issued, whose name may
be embossed on the Card, and any authorized user of such
Card.
“Card Brand”
means (i) MasterCard International Inc. (“MasterCard”), Visa U.S.A., Inc. (“Visa”), DFS Services LLC d/b/a Discover Global Network (“Discover”) (including Diners Club International and any card issuer
of payment cards processed and settled through the Discover
network), American Express Travel Related Services Company,
Inc. (“American Express”) each including applicable subsidiaries; and (ii) Debit
Networks supported by Processor.
“Card Transaction” means a Transaction initiated using a Card from a Card
Brand.
“Change of Control”
means (i) an event in which any third party or group acting
together, directly or indirectly, acquires or becomes the
Beneficial Owner of, more than 50% of Merchant’s voting
securities or interests; (ii) Merchant’s merger with one or
more third parties; (iii) Merchant’s sale, lease, transfer
or other disposal of all or substantially all of its assets;
or (iv) entering into of any transaction or arrangement that
would have the same or similar effect as a transaction
referred to in the foregoing; but, does not include an
initial public offering or listing.
“Card Processing Services” means services whereby Processor provides Merchant with
the ability to acquire, authorize, process, and settle Card
transactions undertaken by Cardholders at Merchant’s
location (including ecommerce) in the United States.
“Chargeback”
means a reversal of a Transaction previously presented to
Processor by Merchant pursuant to the Rules (which term may
include “disputes” as defined by the Rules).
“Confidential Information”
means all sensitive, nonpublic, and/or proprietary
information of a Party (“Disclosing Party”) disclosed
to the other Party (“Receiving Party”), whether
orally or in writing, that is designated as confidential or
that reasonably should be understood to be confidential
given the nature of the information and the circumstances of
disclosure, including the terms and conditions of this
Agreement (including pricing and other terms reflected in
the Services Schedules), business and marketing plans,
technology and technical information, product designs, and
business processes. Without limiting the foregoing, all
Documentation, and all Finix Technology are the Confidential
Information of Finix and the existence and terms of this
Agreement are the Confidential Information of each Party;
provided, however, that each Party may confidentially
disclose the terms and conditions of this Agreement to any
actual or potential bona fide investors, acquirers or
lenders who have agreed to be bound by confidentiality
obligations with respect thereto at least as stringent as
those set forth hereunder. Confidential Information will not
include any information that: (i) is or becomes generally
known to the public without breach of any obligation owed to
Disclosing Party; (ii) was rightfully known to Receiving
Party prior to its disclosure by Disclosing Party without
breach of any obligation owed to Disclosing Party; (iii) was
independently developed by Receiving Party without use of or
reference to any Confidential Information; or (iv) is
rightfully received from a third party without breach of any
obligation owed to Disclosing Party. For avoidance of doubt,
Confidential Information does not include Processing Data.
“Customer”
means a person who initiates a Transaction to purchase
goods, services, reservations, or other items from Merchant.
“Customer Data”
means (i) with respect to Card Transactions, information
related to a Cardholder’s Card, which is obtained by
Merchant from the Cardholder’s Card, or directly from the
Cardholder in connection with his or her use of a Card
(e.g., a security code, a PIN number, credit limits, account
balances, or the Cardholder’s zip code when provided as part
of an address verification system). Without limiting the
foregoing, such information may include the Card account
number and expiration date, the Cardholder’s name or date of
birth, PIN data, security code data (such as CVV2 and CVC2),
and any data read, scanned, imprinted, or otherwise obtained
from the Card, whether printed thereon, or magnetically,
electronically, or otherwise stored thereon; (ii) with
respect to ACH Transactions, Protected Information, as
defined by Nacha, including a Customer’s bank account
numbers, and bank routing numbers; and (iii) with respect to
Disbursements the Merchant Payee’s account numbers and
routing numbers.
“CVV2” means
card verification value.
“Debit Networks” means those debit card networks accepted by Processor.
“Disbursement Services” has the meaning set forth in the Disbursement Services
Schedule of this Agreement.
“Disbursement”
means an ACH Transaction or an intrabank transfer in which
Merchant instructs Processor to send funds to a Merchant
Payee from Settlement Funds.
“Disbursement Services” means the services provided by Processor that enable
Merchants to make Disbursements to designated Merchant
Payees from Settlement Funds.
“Documentation”
means the user manuals, training materials, product
descriptions and specifications and other printed
information relating to the Finix Technology provided by
Finix (either directly or through the Finix Website or Finix
Dashboard), as updated from time to time.
“Effective Entry Date” means the date the Originator intends for an Entry to be
settled with the RDFI.
“Entry” or “Entries” has the meaning set forth in the Nacha Rules and will
also mean the data received from Merchant hereunder from
which Processor originates each Entry.
“Fee(s)” means
any and all of the fees, charges, or costs charged to
Merchant as specified in the Application, the Finix Website,
the Finix Dashboard, or elsewhere in this Agreement for any
of the services provided by Processor under this Agreement,
including, but not limited to, the fees, liabilities,
charges, costs, or amounts owed for the Services.
“Fee Dispute Notice” means a written notice sent by Merchant to Finix regarding the
disputed amount of an invoice, which notice will include
documentation supporting the alleged billing error.
“Feedback” means ideas, suggestions, comments,
observations or other input that Merchant provides to Finix
regarding the Services or Finix Technology.
“Finix Dashboard” has the meaning set forth in
Section 3.1 of the General Terms.
“Finix Technology” means the Finix Dashboard,
Finix’s payment processing platform for online e-commerce
transactions, and all Finix technology used by Merchant for
managing Card Transactions, ACH Transactions, and
Disbursements together with all programs, tools,
applications, application programming interfaces
(“APIs”), all Documentation, and all other software
components provided by Finix hereunder in connection with
the Services.
“Finix Website” means https://finix.com/, and all sub-domains therein.
“Instant Payouts” means a Processor service that
offers same-day settlement or similar faster payout services
for the transfer of Settlement Funds to the Settlement
Account.
“IP Claim” means a claim, suit, action, or
proceeding brought against Merchant by a third party that is
based on an allegation that the Finix Technology, or
Merchant’s use thereof, infringes or misappropriates a third
party’s United States (or Berne Convention signatory
country) intellectual property rights.
“Issuing Bank”
means the bank which has issued a Card to a Cardholder.
“Merchant Account Number” or “Merchant Identification Number” or “MID”
means the number assigned and issued by Finix to Merchant,
if and only if Merchant is approved and this Agreement is
accepted by Processor, that numerically identifies Merchant
to Processor for accounting, billing, customer service, and
other related purposes in connection with the Services.
Issuance of the approved Merchant Account Number to Merchant
will evidence the acceptance and approval of Merchant for
the Services under this Agreement.
“Merchant Payee” means a person or entity to which Merchant owes payment
and requests that Processor make a payment to through the
Disbursement Services.
“Nacha”
(formerly known as the National Automated Clearing House
Association) means the organization that governs the ACH
Network.
“Nacha Rules”
means Nacha’s Operating Rules and Guidelines, as amended
from time to time.
“Network” means
the Card Brands, ACH Network, and Nacha, collectively.
“ODFI” means
Originating Depository Financial Institution, as defined in
the Nacha Rules.
“Originator”
means a person or entity that has authorized an ODFI to transmit, for the account of
that person or entity, an Entry to the Receiver’s account at
the RDFI.
“Partner Platform” means an online or software
platform, marketplace or service provider that provides
services to Platform Merchants and provides Platform
Merchants with access to the Services pursuant to this
Agreement.
“Partner Platform Agreement” means the agreement
between the Partner Platform and the Platform Merchant
governing the Partner Platform’s provisions of services to
the Platform Merchant, including those services for
accessing the Services under this Agreement.
“Pass-Through Costs” has the meaning set forth in
Section 2.6 of the General Terms.
“PIN” means a personal identification number.
“PIN Debit Card” means a card validly issued by a
Debit Network requiring the entry of a PIN.
“Platform Fees” means any and all of the fees,
charges, or costs charged to a Platform Merchant by a
Partner Platform, as specified in a Partner Platform
Agreement.
“Platform Merchant” means a Merchant that accesses
the Services through a Partner Platform.
“POS Equipment” means point-of-sale hardware,
terminals, card readers, and related equipment for use in
connection with the Card Processing Services.
“Prohibited Business” means the business types listed as prohibited industries
in the Documentation, as may be updated and communicated to Merchant from
time to time.
“Processing Data” means the data and information
provided to or received by Processor pursuant to this
Agreement, whether directly from Merchant or through a
Partner Platform or other third parties, which Processor
uses in connection with its performance of its rights and
obligations under this Agreement, including, without
limitation, all Customer Data and Merchant information
collected by, or given to, Processor pursuant to the terms
of this Agreement.
“RDFI” means
the Receiving Depository Financial Institution, as defined
in the Nacha Rules.
“Receiver”
means a person who has authorized an Originator to initiate
a credit Entry or debit Entry to the Receiver’s account at
the RDFI.
“Recurring Transaction” means a Card Transaction or ACH Transaction whereby
Merchant periodically charges a Cardholder’s Card or submits
Entries at substantially regular intervals as payment for
recurring goods, charitable donations or services (e.g.,
monthly insurance premiums, yearly subscriptions, annual
membership fees, etc.) which are to be delivered or
performed periodically without further affirmative action by
the Cardholder or Receiver.
“Regulatory Authority” means, as the context requires, any federal, state, or
local government or any agency, board, commission, court,
department, or division thereof, having jurisdiction,
supervisory authority, or enforcement powers over any Party
to this Agreement, but which does not include any Card
Brand. Such Regulatory Authorities include, but are not
limited to, the U.S. Treasury Financial Crimes Enforcement
Network (“FinCEN”), OFAC, U.S. Treasury Department Office of the
Comptroller of Currency (“OCC”), Federal Deposit Insurance Corporation (“FDIC”), Board of Governors of the Federal Reserve System (“Federal Reserve”), Internal Revenue Service (“IRS”), Federal Trade
Commission (“FTC”), Consumer Financial Protection
Bureau (“CFPB”), and State of South Dakota.
“Reserve Account” means an account or accounts established at Bank in the
manner it proscribes and managed by Finix for the deposit of
funds received from Merchant pursuant to this Agreement as
collateral to protect Processor against actual or contingent
liability or losses that might be incurred by Processor
should Merchant be unable or fail to pay Chargebacks,
Disbursements, adjustments, fees, penalties, and other
charges and obligations due to Processor, any Network, or
government agency. All Reserve Accounts will be held in a
pooled custodial account in Bank’s name or as otherwise
determined by the Parties.
“Retrieval Request” means a request for information by a Cardholder or Card
Brand relating to a claim or complaint concerning a
Transaction.
“Rules” means
the written rules and regulations, operating rules, system
manuals, procedures and requirements, releases and
interpretations thereof, and other requirements (whether
contractual or otherwise) imposed or adopted by any Network,
including the PCI Security Standards Council, LLC, American
Express Data Security Requirements (DSR), and the American
Express Data Security Operating Policy (DSOP), and Nacha, as
the same may be amended from time to time.
“Sales Draft”
has the meaning set forth in Section 4 of the Card
Processing Services Schedule.
“Services”
means the collective activities undertaken by Processor to
provide, as applicable, (i) the Card Processing Services;
(ii) the ACH Processing Services; (iii) the Disbursement
Services; and (iv) all other activities necessary for
Processor to perform the functions required by this
Agreement.
“Services Schedules” means terms in this Agreement
that govern particular Services and are set forth in a
separate schedule.
“Settlement Account” means the business checking account(s) or other
acceptable deposit account(s) that Merchant maintains at a
financial institution approved by Processor for credits and
debits related to Transactions, Chargebacks, Fees, and any
fines or Fees assessed by the Networks or other governmental
agency or entity having authority. To the extent Processor
offers Merchant Instant Payouts, the term Settlement Account
includes any associated Card account to which Settlement
Funds may be pushed pursuant to the approved Settlement
Payout Schedule.
“Settlement Funds” means the proceeds of
Transactions received by Processor from Networks and/or
amounts owed to Merchant for Transactions submitted to
Processor through the Services.
“Settlement Payout Schedule” means the schedule(s)
selected by Merchant or Partner Platform and approved by
Finix for settling Transactions to Merchant’s Settlement
Account, and which may include Instant Payouts to the extent
offered by Processor. Processor is not responsible for any
delays impacting a Settlement Payout Schedule (including
Instant Payouts) caused by (i) the unavailability of a
Network, telecommunications provider, or internet service
provider; (ii) incorrect payout information provided to
Processor; (iii) Merchant’s equipment, software, or other
technology; or (iv) a Force Majeure Event.
“Suspicious Activity” means (i) unusual or suspicious activity, including,
without limitation, unauthorized Transactions, suspected or
actual fraud, and/or breach or default of this Agreement, or
(ii) during any monthly period for any one of Merchant’s
MIDs: (a) the dollar amount or number of Chargebacks and
Retrieval Requests exceeds 1% of the average monthly dollar
amount or number of Card Transactions; (b) sales activity
that exceeds by 25% or more the dollar volume indicated on
the Application; (c) the dollar amount of returns equals 3%
of the average monthly dollar amount of Card Transactions
(d) the rate at which ACH debit Entries are being returned
for administrative reasons equals or exceeds 3% during any
sixty (60) day period; (e) the rate at which ACH debit
Entries are being returned on the basis that they were
unauthorized equals or exceeds 0.5% during any sixty (60)
day period; or (f) the rate at which ACH debit Entries are
being returned, regardless of the reason, equals or exceeds
15% during any sixty (60) day period.
“Term” has the meaning set forth in
Section 7.1 of the General Terms.
“Transaction”
means any payment transaction processed under this
Agreement, and includes the Authorization, settlement, and
if applicable, disputes, Chargebacks, refunds and reversals
with respect to any payment transaction. The term
Transaction includes, as applicable, all types of ACH
Transactions, Card Transactions, and Disbursements.
“Update” means any upgrades, patches, enhancements,
or fixes to the Services or Finix Technology that requires
Merchant to take some action to install or implement.
Card Processing Services Schedule
1.
ACCEPTANCE OF CARDS. Merchant agrees to honor all valid Cards it elects to
accept pursuant to the Agreement, without discrimination,
and to submit all sales and credits for Card Transactions to
Processor according to the terms of the Agreement. Merchant
agrees to properly obtain an Authorization code for the
total amount of the Card Transaction and will record the
Authorization code on the Transaction data prior to
completing the Transaction. Processor reserves the right to
refuse to process any Card Transaction presented by Merchant
that does not include a proper Authorization. For in-person
purchases, Merchant will use reasonable and peaceful means
to recover any Card if: (i) Merchant is advised by Processor
or the Issuing Bank to retain it; or (ii) Merchant has
reasonable grounds to believe the Card is counterfeit,
fraudulent, stolen, or not authorized by the Cardholder.
2.
DEBIT NETWORKS. Debit Networks may be added or removed from time to time
by Processor in its sole discretion. Merchant shall display
the logos of the Debit Networks wherever any other Card
Brand marks are displayed. The Debit Network used to process
a Transaction will depend on the availability of the network
at the time of the Transaction, whether a particular Card is
enabled for a particular Network, and the routing
requirements established by the Networks. Processor may use
any Debit Network available to Processor for a given
transaction.
3.
AUTHORIZATION. Merchant will obtain prior Authorization for the total
amount of a Card Transaction via electronic terminal,
gateway, or other compliant and certified device before
completing any Card Transaction, and Merchant will not
process any Card Transaction that has not been authorized by
the Cardholder. Merchant will follow all instructions
received during the Authorization process. Merchant may
complete only the Card Transaction authorized.
Authorizations are not a guarantee of acceptance or payment
of the Sales Draft. Authorizations do not waive any
provisions of this Agreement or otherwise validate a
fraudulent Card Transaction or a Card Transaction involving
the use of an expired or otherwise invalid Card.
4.
SALES DRAFTS. Merchant will obtain evidence of a Cardholder’s purchase
of goods or services using the form, whether paper or
electronic, required by Processor or the Rules (“Sales
Draft”). Each Sales Draft will be legibly imprinted with:
(i) Merchant’s name, identification number, and city and
state; (ii) the information embossed on the Card presented
by the Cardholder (either electronically or manually); (iii)
the date of the Card Transaction; (iv) a brief description
of the goods or services sold; (v) the authorization number;
(vi) the total amount of the sale (including any applicable
taxes) or credit Transaction; and (vii) adjacent to the
signature line, a notation that all sales are final, if
applicable. Merchant will not prepare more than one Sales
Draft for a single sale or for a single item and shall
include all items or good and services purchased in a single
Transaction in the total amount on a single Sales Draft
except as may be otherwise permitted under the Rules.
Merchant will provide a complete and legible copy of the
Sales Draft or credit voucher to the Cardholder at the time
of the Card Transaction. If Merchant uses an electronic
terminal to print Sales Drafts, the account number must be
truncated so that only the last 4 digits of the account
number appear on the Cardholder copy of the Sales Draft. The
expiration date must be suppressed on receipts provided to
Cardholders. Merchant will retain in a secure and
confidential manner original or complete and legible copies
of each Sales Draft for at least two (2) years or longer if
required by Applicable Law or the Rules. Merchant will
render all materials containing Cardholder account
information unreadable prior to discarding. If Processor
requests a copy of a Sales Draft or other Card Transaction
information, Merchant will provide it within 24 hours
following the request.
5.
RESTRICTIONS.
5.1.
Except where expressly permitted by Applicable Law or the
Rules, Merchant will not (i) set a dollar amount above or
below which Merchant refuses to honor otherwise valid Cards;
(ii) engage in any practice that unfavorably discriminates
against or provides unequal treatment of any Card Brand;
(iii) require the Cardholder to pay the Fees payable by
Merchant under this Agreement; (iv) issue refunds for
Transactions by cash or cash equivalent (e.g., check); (v)
submit a single Transaction in multiple lower value
Transactions; (vi) refuse to honor an otherwise valid Card;
(vii) accept Cardholder payments for previous charges
incurred at the Merchant location; (viii) impose any
surcharge or convenience fee on a Transaction; (ix) accept
Cards for the sale of casino gaming chips, money orders,
opening deposits on financial or other accounts, wire
transfer money orders, the issuance of scrip or the like;
(x) require a Cardholder, as a condition of honoring a Card,
to sign a statement that waives the Cardholder's rights to
dispute the Transaction with the Card Brand; (xi) fail to
disclose to any Cardholder the name and location of
Merchant; (xii) require a Cardholder to complete a postcard
or similar device that includes any of the following in
plain view when mailed: Cardholder account number, Card
expiration date, signature or any other Card account data;
(xiii) disburse funds in the form of travelers cheques, if
the sole purpose is to allow the Cardholder to make a cash
purchase of goods and services from Merchant; (xiv) accept
payments for (a) collecting or refinancing debt that has
been deemed uncollectible by Merchant, (b) previous Card
charges, or (c) Transactions that represent collection of a
dishonored check; (xv) add any tax to Transactions unless
required by Applicable Law; or (xvi) request or use account
numbers for any purpose other than as payment for goods or
services.
5.2.
Merchant will not accept any cash payments from Cardholders
for charges included on a Card Transaction. Merchant will
not make any cash disbursements or cash advances to a
Cardholder as part of a Card Transaction, except as
permitted by Section 10.2. Merchant will not deposit any
Transaction for the purpose of obtaining or providing a cash
advance either on Merchant’s Card or the Card of any other
party. Merchant will not submit (i) any Transaction previously
submitted to Processor; (ii) any Transaction that
Merchant knows or should have known to be fraudulent or
not authorized by the Cardholder; (iii) any Transaction
that results from a transaction outside of Merchant's
normal course of business; (iv) any Transaction that
results from a transaction not involving Merchant or not
originated as the result of an act between Merchant and
a Cardholder; (v) any Transactions that was previously
disputed and subsequently returned to Merchant; or (vi)
any Transaction that is illegal or that Merchant knows
or should have known was illegal.
5.3.
Except where approved by Processor via signed
agreement/amendment between the Parties, Merchant shall not
accept any payments for goods or services more than
twenty-four (24) hours prior to the shipment or provision of
such goods or services. If Merchant is so approved for
future delivery, Merchant agrees to maintain operations,
finances, and capital sufficient to provide for the delivery
of such goods and services at the agreed-upon future date,
without reliance upon any proceeds resulting from
Transactions previously submitted for processing under this
Agreement. Processor reserves the right to refuse to process
any Transaction presented by Merchant if Processor
reasonably believes that the Transaction may be
uncollectible from the Cardholder or was prepared in
violation of any provision of this Agreement, Applicable
Law, or the Rules.
6.
ACCOUNT UPDATER SERVICE. Finix will provide Merchant the account updater services
provided by the Card Brands or similar services (which may
involve use of Network tokens) in connection with processing
Cards. These services enable Issuing Banks or Networks to
supply the most current Cardholder information to U.S.
acquirers and U.S.-acquired merchants. In providing this
service, Finix will obtain, on Merchant’s behalf, applicable
updated Cardholder Data of eligible Cards from participating
Issuing Banks and other third-party sources with respect to
eligible Card Transactions. The account updater services
will be used to support Recurring Transactions and other
account-on-file functions. Merchant acknowledges that the
availability of the account updater service depends on the
Card Brands, Networks, and participating Issuing Banks and
that Finix disclaims, and shall not be responsible for, the
accuracy of any information provided through the account
updater services or the availability of the service with
respect to any Card. For Merchants that begin utilizing the
Services after the date that these General Terms become
effective, Finix shall automatically enroll Merchant in the
account updater services and Merchant agrees to pay the
applicable fee for such services, which shall be set forth
in its agreement with Partner Platform, in an Order Form, or
in the Finix Dashboard. Merchant may discontinue use of the
service at any time by providing notice to Finix or Partner
Platform, as applicable, or disabling the service settings
in the Finix Dashboard. Finix may cease providing the
account updater service to Merchant at any time and for any
reason. If Merchant uses the account updater service,
Merchant will disclose in its agreement with its Customer
all disclosures required under Applicable Law and the Rules,
including disclosure that Customers that do not want their
applicable Cards updated may request that Merchant remove
their Cards from the information being stored by Merchant
and/or terminate their recurring transaction agreements with
Merchant.
7.
PAYMENT MANAGEMENT SERVICE.
7.1.
If made available by Finix, Finix will provide Merchant with
the ability, at Merchant’s election, to utilize payment
management solutions (“Payment Management Service”)
through CyberSource or another similar service provider (“Payment Management Service Provider”). As part of the Payment Management Service, Finix will
submit information to Payment Management Service Provider
for Merchant and register, configure, and manage Merchant’s
use of the Payment Management Service through the Payment
Management Service Provider’s portal. Merchant remains
solely responsible for maintaining complete backup records
of all information relating to orders, inquiries, and
purchases and any information submitted to the Payment
Management Service Provider for the purpose of receiving the
Payment Management Service. Payment Management Service
Provider and its Affiliates have no obligation to attempt to
monitor or regulate the content or provision of any of
Merchant’s products or services. Finix may cease providing
the Payment Management Service to Merchant at any time and
for any reason.
7.2.
Merchant agrees that: (i) Merchant will comply with
applicable data protection laws and obtain Customer consent
prior to transfer of personal information submitted via or
in connection with the Payment Management Service; (ii)
Merchant will comply with any requirements for use of the
Payment Management Service provided by Finix, including any
documentation relating to the installation, configuration,
and use of the Payment Management Service; and (iii)
Merchant’s products and services do not violate any
Applicable Laws and do not infringe on the intellectual
property rights of any third party. Merchant agrees that
Payment Management Service Provider and its Affiliates shall
not be liable to Merchant for any indirect, incidental,
consequential, special or exemplary damage and that any
direct damages shall be limited in the aggregate, under any
legal or equitable theory, to fees received by Payment
Management Service Provider for provision of the Payment
Management Service to Merchant during the six (6) month
period prior to the date that the cause of action arose.
7.3.
Merchant may provide Payment Management Service Provider
with feedback or related information for use in connection
with, or otherwise regarding, Payment Management Service
Provider’s products, programs, systems or the Payment
Management Service, or other information provided to Payment
Management Service Provider for the purpose of enabling or
improving its products, programs, or services. Unless
otherwise expressly agreed, all feedback is and shall be
given entirely voluntarily and no person will have any
obligation to do so. If Merchant provides feedback, Merchant
grants Payment Management Service Provider and its
Affiliates a worldwide, perpetual, non-revocable,
sublicensable, royalty-free right and license to Merchant’s
intellectual property rights in the feedback in any format
and in any manner without any obligation, payment, or
restriction based on Merchant’s intellectual property rights
or otherwise and for any and all purposes necessary for
Payment Management Service Provider and its Affiliates to
enjoy such license. For the avoidance of doubt, this license
includes the rights to use and disclose the feedback in any
manner Payment Management Service Provider or its Affiliates
choose, and to display, perform, copy, have copied, make,
have made, incorporate, have incorporated, use, sell, offer
to sell, import, distribute, and otherwise dispose of
Payment Management Service Provider’s or its Affiliates’
programs, products, or services embodying such feedback in
any manner, but without reference to Merchant being the
source of such feedback. Nothing in this Agreement limits
Payment Management Service Provider’s and its Affiliates’
rights to independently use, develop, evaluate, or market
products, whether incorporating feedback or otherwise.
7.4.
Merchant agrees to: (i) participate in creating a case story
and/or testimonial quote about its experience with Payment
Management Service Provider for the purposes of public
advocacy; and/or (ii) grant Payment Management Service
Provider permission to display the Merchant’s trademarks,
logos, service marks or trade names and any other content
provided to Payment Management Service Provider by Merchant
or Finix (collectively, the
“Merchant Content”), alone or in combination with other works, in marketing
materials to be developed and distributed by Payment
Management Service Provider. The marketing materials shall
be owned by Payment Management Service Provider, excluding
the Merchant Content, which shall be owned by the Merchant.
Payment Management Service Provider may also use Merchant
Content in any disclosure required by legal, accounting or
regulatory requirements and internal customer lists, without
prior approval from Merchant. Merchant represents and
warrants: (a) it has all necessary licenses, rights,
consents, authorization, and permissions to grant the rights
and licenses set forth in this paragraph; (b) the Merchant
Content does not violate or infringe upon the intellectual
property rights or other rights of any third party; and (c)
all statements and information provided by or on behalf of
Merchant in any Merchant Content or otherwise pursuant to
its participation in any marketing activities are true and
accurate and can be substantiated upon request from Payment
Management Service Provider. Merchant shall indemnify and
hold harmless Payment Management Service Provider and its
Affiliates for any third-party claim brought against Payment
Management Service Provider or its Affiliates and related
losses (including reasonable legal fees) suffered or
incurred by Payment Management Service Provider or its
Affiliates, to the extent such claim arises from Merchant’s
breach of the foregoing warranties.
8.
DATA SECURITY; SOFTWARE.
8.1.
Merchant will comply at all times with the Payment Card
Industry Data Security Standard (“PCI DSS”) and any other security standards required by the Card
Brands, including any subsequent updates thereto. Merchant
will ensure that its service providers with access to
Customer Data comply, and are able to demonstrate
compliance, with the PCI DSS and Card Brand security
requirements, including any subsequent updates.
8.2.
Merchant will retain in a secure and confidential manner
original, complete, and legible copies of each Transaction
for at least two (2) years or longer if required by law or
the Rules. Merchant will render all materials containing
Customer Data unreadable prior to discarding.
8.3.
Merchant will store Transaction data in an area limited to
selected personnel, and when record-retention requirements
have been met, Merchant will destroy the records so that
Transaction data is rendered unreadable.
8.4.
Merchant will not provide Customer Data to anyone except
Processor, Card Brands, or Merchant's agents that have been
approved by Processor as required under this Agreement and
are properly registered with the Card Brands for the purpose
of assisting Merchant in completing Transactions, or as
specifically required by Applicable Law.
8.5.
Merchant will not retain or store Customer Data, including
but not limited to, Card magnetic stripe, CVV, CVV2, CVC2,
or CID data subsequent to Authorization for a Transaction or
sell, purchase, provide, or exchange Customer Data to any
third party, or to any entity other than Processor, the Card
Brands, or in response to valid legal process or subpoena.
Under the Rules, Merchant does not own the Customer Data,
Card account, Cardholder, personal, or other payment
transaction information generated when a payment transaction
is processed using the Services.
8.6.
Merchant agrees to provide Processor, upon its request,
with such tests, scans, and assessments of Merchant’s
compliance with Rules as may from time to time be required
by Processor or the Card Brands. Additionally, Merchant will
allow Processor or any Card Brand to audit its compliance
with the requirements of this Section related to the
Services provided in this Agreement.
8.7.
Merchant understands that failure to comply with the Rules
or the compromise of any Customer Data may result in
assessments, fines, and/or penalties by the Card Brands, and
Merchant agrees it is liable for and will indemnify and
reimburse Processor immediately for any such assessment,
fine, or penalty imposed on Processor and any related loss,
cost, or expense incurred by Processor. If Processor or any
Card Brand requires a forensic examination of Merchant or
any of Merchant’s service providers, agents, business
partners, contractors, or subcontractors due to a data
breach incident or suspected event, Merchant agrees to
cooperate with such forensic examination until it is
completed, including, without limitation, the engagement of
an examiner acceptable to Processor or the relevant Card
Brand. Notwithstanding the foregoing, the Card Brand may
directly engage, or demand that Processor engage, an
examiner on behalf of Merchant in order to expedite the
investigation of the data breach incident or suspected
event. In either scenario, Merchant agrees to pay for all
costs and expenses related to such forensic examination,
including all of Processor’s reasonable attorneys’ fees and
other costs relating to such forensic examination. Merchant
will take all actions that the Card Brands require in
connection with any investigation and remediation of any
real or suspected data breach incident or event.
9.
EQUIPMENT; SOFTWARE.
9.1.
Merchant agrees to use POS Equipment acceptable to
Processor. All POS Equipment used by Merchant to process
Transactions must be purchased from Finix. Merchant is
prohibited from processing Transactions using any POS
Equipment not purchased from Finix. Any attempt to use POS
Equipment not purchased from Finix to process Transactions
may result in immediate suspension or termination of the
Services, and Merchant will be solely responsible for any
losses, fines, penalties, or liabilities incurred by
Processor arising from such unauthorized use. Processor may,
in its sole discretion, grant Merchant prior written
approval to use specific POS Equipment not purchased from
Finix, but any such approval must be obtained before
Merchant uses such equipment to process Transactions. The
terms and conditions governing POS Equipment purchased from
Finix will be set forth in this Agreement and any applicable
Order. Merchant agrees to pay Finix any fees or charges for
POS Equipment as set forth in the Finix Dashboard, an Order,
or as otherwise communicated to Merchant by Finix. Merchant
will allow for the implementation of any system changes
required by Finix.
9.2.
To order POS Equipment, Merchant shall submit an order
through the Finix Dashboard (each, an "Order"). All POS
Equipment is manufactured by third parties and resold by
Finix. Finix is not obligated to accept any Order and may
cancel accepted Orders at any time if unable to fulfill the
Order for any reason, including inventory shortages.
Accepted Orders are binding on Merchant unless cancelled by
Finix. If Finix cancels an Order, Finix will refund any
amounts already paid by Merchant for that Order. By placing
an Order, Merchant represents that the POS Equipment will be
used only in a lawful manner and in compliance with this
Agreement and Applicable Law.
9.3.
If Finix provides an estimated shipping or delivery date,
that date is not guaranteed, and inventory shortages or
events beyond Finix's control could impact the delivery
date. Finix is not liable for late shipment or delivery or
any loss, damage, or penalty Merchant incurs from any delay
in shipment or delivery, even if Merchant has paid an
additional fee for expedited shipping. Despite any contrary
terms in any invoice or purchase order, title and risk of
loss for the POS Equipment passes to Merchant when Finix or
its service provider delivers the POS Equipment to the
shipping carrier.
9.4.
If Merchant incorporates an interface between software
solutions for data transfer or any other means, it will be
Merchant's sole and exclusive responsibility to create,
maintain, and support such interface and Merchant will
defend, indemnify, and hold Processor harmless from and
against any and all demands, claims, losses, liabilities,
damages, costs, and expense of every kind and nature,
including, but not limited to, claims of infringement,
attorneys' fees, court costs, and litigation expenses,
arising from, in connection with, or by virtue of, either
directly or indirectly, the use of any such interface. Any
such interface must be fully compatible with the processing
systems and networks established and used by Finix. Merchant
agrees that Processor is not liable for damages of any type
or kind caused, by virtue of, or in connection with, either
directly or indirectly, the use, malfunction, or failure of
any interface utilized by Merchant to operate or function in
whole or in part and that Processor has no responsibility to
service, maintain, or repair any interface utilized by
Merchant. If Finix elects in its sole and exclusive
discretion to implement any interfaces elected by Merchant
(it being understood that Finix has no such obligation to do
so), if the implementation process requires consulting
assistance from Finix, Merchant will be billed at Finix's
then-current rates, which will be calculated from the time
the consultation assistance began. Further, any consultation
assistance provided by Finix will not negate in any way the
non-liability on the part of Processor with respect to the
utilization by Merchant of any interface.
10.
ADDITIONAL REQUIREMENTS FOR PIN DEBIT
TRANSACTIONS. The following additional provisions apply to PIN Debit
Card Transactions:
10.1.
Merchant may not complete a PIN Debit Card Transaction
without the Cardholder’s entry of the PIN through the point
of sale or card terminal. Merchant must not require or
request a Cardholder signature for PIN Debit Card
acceptance. Merchant must not require additional
information, other than the PIN, for the completion of the
Transaction unless specifically required by the Rules.
Merchant must not process a Card Transaction to provide a
refund on a PIN Debit Card Transaction. PIN Debit Card
Transactions must be authorized and processed
electronically. Merchant is responsible for any adjustments
to PIN Debit Card transactions that are made in error.
Merchant will instruct employees not to ask any Cardholder
to disclose a PIN. In the event Merchant or employee(s)
becomes aware of any Cardholder’s PIN, Merchant or
employee(s) will not use such PIN or create or maintain any
record of such PIN, and will not disclose such PIN to any
other person.
10.2.
If Merchant offers cashback to Cardholders when they make a
PIN Debit Card purchase, cashback Transactions shall be
limited to the maximum of $200.00 per Cardholder on any
Transaction date. If Merchant allows Cardholders to initiate
cashback Transactions, Merchant must transmit to the Debit
Network in its Transactions message for each cashback
Transaction the amount of cashback given to the Cardholder
pursuant to the point-of-sale Transaction. If Merchant
receives, in response to a request for authorization for a
cashback Transaction involving the purchase of goods and
services, a denial code indicating that a cashback
Transaction has been denied solely because the cashback
portion of the PIN Debit Card Transaction would cause the
Cardholder to exceed a limit on cash withdrawals imposed on
the Cardholder by the Issuing Bank, Merchant shall inform
Cardholder that the Transaction was denied because it would
cause the Cardholder to exceed such limit on cash
withdrawals, but that a new PIN Debit Card Transaction in
the amount of the purchase alone may be approved.
10.3.
Merchant must place PIN-pad(s) where Cardholders can input
PINs without revealing PINs to another individual, including
Merchant or its employee(s). Merchant must ensure the PIN
message is encrypted, using a compliant encryption method,
from the PIN-pad to the point-of-sale terminal, and from the
point-of-sale terminal to the Debit Network and back
(end-to-end). The PIN encryption method considered compliant
is the method mandated by the Networks and the Rules.
Merchant may only use a PIN entry device certified by
Processor and listed as compliant by the Networks and Rules
for submitting PIN Debit Card Transactions. Merchant will
comply with any other requirements relating to PIN security
as required by Processor or any Network. Merchant agrees
that if Merchant does not use a point-of-sale terminal that
has been certified EMV chip card compliant and enabled or
when a lost or stolen chip and PIN card is used at an EMV
enabled terminal capable of processing chip and signature
only, Merchant may be liable for payment of any Transactions
submitted for chargeback by the applicable EMV chip card
issuer(s).
11.
ADVERTISING AND PROMOTION.
11.1.
Merchant will display Card Brand and Processor marks,
advertising, and promotional materials in compliance with
the Rules, this Agreement, and any usage guidance provided
by Processor. Merchant will make no other use of the emblems
or marks of any Card Brand, Bank, or Finix without
Processor’s prior written consent. Merchant will not use the
Card Brand marks other than to display decals, signage,
advertising, and other forms depicting the Card Brand marks
that are provided to Merchant by Processor. Merchant will
not use Card Brand marks in such a way that Cardholders
could believe that the products or services offered by
Merchant are sponsored or guaranteed by the Card Brand.
Merchant recognizes that it has no ownership rights in the
Card Brand or Processor marks and agrees not to assign to
any third party any of the rights to use the Card Brand
marks.
11.2.
Merchant will immediately discontinue use of all Card Brand
and Processor marks, emblems, or names upon the sooner of
(i) direction to do so from Processor or any Card Brand; or
(ii) termination of this Agreement.
12.
CHARGEBACKS.
12.1.
Merchant has full liability and responsibility for all
Chargebacks. If Merchant has a reason to dispute or respond
to a Chargeback, then Merchant must do so by the date
provided on the applicable Chargeback notice. Processor will
not investigate or attempt to obtain a reversal or other
adjustment to any Chargeback if Merchant has not timely
responded to the notice.
12.2.
Each Chargeback is immediately due and payable by Merchant.
Without limiting Processor’s other remedies or Processor’s
security interest described in this Agreement, Processor may
deduct, debit, and withhold the amount of a Chargeback or
anticipated Chargeback from Settlement Funds, the Settlement
Account, Reserve Account, or any amounts owed to Merchant by
Processor under this Agreement. Merchant must immediately
pay any fines or fees imposed by a Card Brand or Processor
relating to Chargebacks.
12.3.
Merchant will store and retain Transaction data in
compliance with the Rules, including any periods set forth
therein. Within seven (7) days (or such shorter time as the
Rules may require) of Processor sending Merchant a Retrieval
Request, Merchant must provide to Processor (i) written
resolution of Merchant’s investigation of such Retrieval
Request; and (ii) legible copies of any supporting
documentation requested or required by the Retrieval
Request. Merchant acknowledges that failure to fulfill a
Retrieval Request timely and in accordance with the Rules
may result in an irreversible Chargeback.
12.4.
To the extent that Processor has paid or may pay a
Chargeback or return, Merchant will be obligated to
reimburse Processor for any sums Processor has paid. If
Merchant does not reimburse Processor, Processor will have
all of the rights and remedies of Cardholders under law and
may assert any claim on behalf of a Cardholder individually
or on behalf of all Cardholders as a class.
13.
AMERICAN EXPRESS TRANSACTIONS.
13.1.
Finix, and not Bank, will provide all Services to Merchant
for its Transactions submitted to American Express. With respect to participation in an American Express
acceptance program, if a conflict between the terms below
and other terms of this Agreement, the terms in this Section
will control. Merchant’s participation in an American
Express acceptance program may be subject to the approval of
American Express. Merchant authorizes Finix to submit American Express
Transactions to, and receive Settlement Funds on such
Transactions from, American Express on behalf of Merchant
into the pooled custodial account at Bank as set forth in
Section 5.1 of the General Terms. Merchant agrees to be
bound by the American Express Merchant Operating Guide:
www.americanexpress.com/merchantopguide, which may be updated from time to time by American
Express. Merchant will ensure that data quality (including
Transaction data and customer information) is processed
promptly, accurately and completely, and complies with the
American Express Technical Specifications. Merchant may opt
out of accepting American Express Cards at any time without
penalty and without directly or indirectly affecting its
rights to accept other payment products.
13.2.
Merchant agrees not to assign to any third party any
American Express Transaction Settlement Funds due to it
under this Agreement, and that all indebtedness arising from
American Express Transactions will be for bona fide sales of
goods and services (or both) at its locations and free of
liens, claims, and encumbrances other than ordinary sales
taxes; provided, however, that Merchant may sell and assign
future Transaction Settlement Funds to Finix, its affiliated
entities, and/or any other cash advance funding source that
partners with Finix or its affiliated entities, without
consent of American Express.
13.3.
Finix may disclose information regarding Merchant and
Merchant’s Transactions to American Express, and American
Express may use such information to (i) perform its
responsibilities in connection with American Express Card
acceptance; (ii) promote American Express; (iii) perform
analytics and create reports; and (iv) for any other lawful
business purposes, including commercial marketing
communications purposes within the parameters of American
Express Card acceptance, and to provide important
transactional or relationship communications from American
Express. American Express may also use such information
about Merchant obtained in connection with this Agreement at
the time of setup to screen and/or monitor Merchant in
connection with American Express marketing and
administrative purposes.
13.4.
Merchant may opt-out of receiving future commercial
marketing communications from American Express by contacting
Finix. Note that Merchant may continue to receive marketing
communications while American Express updates its records to
reflect this choice. Opting out of commercial marketing
communications will not preclude Merchant from receiving
important transactional or relationship messages from
American Express.
13.5.
Merchant acknowledges that it may be converted from
American Express Card OptBlue program to a direct
relationship with American Express if and when its
Transaction volumes exceed the eligibility thresholds for
the OptBlue program. If this occurs, upon such conversion,
(i) Merchant will be bound by American Express’s
then-current Card Acceptance Agreement; and (ii) American
Express will set pricing and other fees payable by
Merchant.
13.6.
Notwithstanding anything in the Agreement to the contrary,
American Express will have third-party beneficiary rights,
but not obligations, to the terms of this Agreement
applicable to American Express Card acceptance to enforce
such terms against Merchant.
13.7.
Merchant’s refund policies for American Express purchases
must be at least as favorable as its refund policy for
purchase on any other Card Brand. Merchant may not bill or
attempt to collect from any Cardholder for any American
Express Transaction unless a Chargeback has been exercised,
Merchant has fully paid for such Chargeback, and it
otherwise has the right to do so.
ACH Processing Services Schedule
This ACH Processing Services Schedule governs Merchant’s
use of the ACH Processing Services provided by Processor
pursuant to the Agreement. For purposes of this ACH
Processing Services Schedule, the term “Receiver” may
include a Customer or Merchant Payee.
The General Terms
continue to apply with respect to the provision of the ACH
Processing Services. In connection with the ACH Processing
Services, Bank will act as the ODFI with respect to Entries
and Merchant authorizes Processor to originate Entries on
behalf of Merchant to Receivers’ accounts. In connection
with the ACH Processing Services, Merchant agrees to comply
with: (i) the Nacha Rules for all Entries; (ii) any
operating rules and procedures established by Processor; and
(iii) Applicable Law. Merchant acknowledges that a copy of
the Nacha Rules is available through Nacha. If there are any
inconsistencies between the ACH Processing Services Schedule
and the Nacha Rules, the Nacha Rules will govern.
Capitalized terms not defined in this ACH Processing
Services Schedule have the meanings in the General
Terms.
1.
PROCESSOR’S AGREEMENT TO PROCESS ENTRIES.
Finix
agrees to use reasonable care to (i) comply with instructions of Merchant; and (ii) process
Entries received from Merchant to conform with the
specifications set forth in the Nacha Rules or as otherwise
required by Processor. Bank agrees to use reasonable care to (i) transmit such
Entries as an ODFI to the ACH Operator (as determined in
Processor’s sole discretion); and (ii) settle such Entries
as provided in the Nacha Rules and this ACH Processing
Services Schedule. Merchant will be solely responsible for
ensuring the validity, accuracy, and completeness of all
information, data, files, and instructions provided or
transmitted to Processor. Processor will be entitled to rely
upon all such information in providing the ACH Processing
Services and will have no liability in connection with such
reliance. Processor will not be required to act on
instructions provided by Merchant if Processor reasonably
doubts an instruction’s contents or Merchant’s compliance
with Applicable Law, the Nacha Rules, or this Agreement.
Merchant will prepare each Entry or file or API transmitting
requested Entries in accordance with the Nacha Rules and any
additional requirements that may be provided by Processor.
All Entries transmitted by Merchant to Processor for
processing must comply with the formatting and other
requirements in the Nacha Rules or as otherwise required by
Processor.
2.
MERCHANT AUTHORIZATION.
Merchant hereby authorizes Processor to initiate debit and
credit Entries to Merchant’s Settlement Account. Merchant’s
authorization will continue in effect for at least one
hundred eighty (180) days after termination of this
Agreement, or for a longer period as is determined necessary
by Processor in the exercise of its sole discretion.
Merchant agrees that Merchant is only authorized to
originate CCD (Corporate Credit or Debit Entry), PPD
(Prearranged Payment and Deposit), and WEB
(Internet-Initiated/Mobile) Entries.
3.
PROCESSING ACH TRANSACTIONS.
Processor will process each Entry in accordance with
Processor’s then-current processing schedule and any
instructions regarding the date an Entry is to be settled
that Merchant furnishes with the Entry (including any
instructions provided for same-day Entries), provided that:
(i) Processor receives the Entry by Processor’s applicable
cutoff time on a Business Day (“Cut-Off Time”); and (ii) the ACH Operator is open for business on such day.
Entries will be deemed received by Processor when the
transmission of the Entry to Processor is completed and
authenticated in compliance with Processor’s policies and
procedures. If Processor receives an Entry after the
applicable Cut-Off Time, the Entry will be treated as having
been received prior to Processor’s applicable Cut-Off Time
the next Business Day on which the ACH is open for business.
Processor, in its sole discretion, may process Entries it
receives from different merchants in any order Processor
determines and may select such means and routes for the
transfer of funds as Processor considers appropriate under
the circumstances. Processor will not be liable to Merchant
for any delays in processing or settlement. Processor will
instruct the ACH Operator to settle with the Receiver’s RDFI
in the amount of such Entry on the Effective Entry Date
contained in such Entry, provided (i) such Entries are
received by Processor’s Cut-Off Time; and (ii) the ACH
Operator is open for business on such Business Day. If
either of these requirements is not met, Processor will use
reasonable efforts to settle with the Receiver’s RDFI no
later than the next Business Day.. In addition to the
applicable Cut-Off Time for same-day Entries, Merchant
agrees to comply with any other instructions or limitations
established by Processor or Nacha for such Entries.
4.
SETTLEMENT. All payments received by Processor on behalf of Merchant
for legitimate and authorized ACH Transactions will be
transmitted to Merchant’s Settlement Account pursuant to the
Settlement Payout Schedule. Chargebacks received after an
ACH Transaction has been settled may be offset and deducted
from Settlement Funds or Chargebacks may be charged back to
Merchant’s Settlement Account or Reserve Account at
Processor’s discretion. Merchant specifically authorizes
Processor to debit Merchant’s Settlement Account or Reserve
Account via ACH for any previously funded ACH Transaction
that is returned, and Merchant warrants to Processor that
Merchant will maintain a sufficient balance to cover return
Entries and to promptly notify Processor of any changes to
Merchant’s Settlement Account. In addition, Processor may
require additional monetary sums for the Reserve Account in
connection with the ACH Processing Services, and Processor
reserves the right to hold additional monies as necessary to
reduce any risk associated with the daily processing of ACH
Transactions, as requested by Merchant. Merchant understands
that due to the nature of ACH Transactions and the
electronic networks, payment to Merchant can be delayed. In
such cases, Merchant agrees to work with Processor to
resolve any issues in crediting or debiting Merchant’s
Settlement Account.
For a credit Entry subject to Article 4A of the Uniform
Commercial Code, credit given by an RDFI to the Receiver for
an Entry is provisional until the RDFI has received final
settlement through a Federal Reserve Bank or otherwise has
received payment as provided for in Section 4A-403(a) of
Article 4A of the Uniform Commercial Code. If the RDFI does
not receive payment for the Entry, the RDFI is entitled to a
refund from the Receiver in the amount of the credit to the
Receiver’s account, and Merchant, as the Originator, will
not be considered to have paid the amount of the credit
Entry to the Receiver.
5.
RETURNS AND CREDITS.
5.1.
Refunds, Returns, Receipts. Merchant will be responsible for making all cash, check,
or ACH refunds to Receivers after an ACH Transaction has
been batched out for settlement. Unless otherwise approved
by Processor, Merchant must initiate a credit receipt for
the same amount as the original ACH entry to effect voids,
which occur the same day as the day of Authorization and
prior to batching out. Prior to Merchant requesting Processor to process a debit
or credit Entry to a Receiver’s account, Merchant shall
secure all authorizations and approvals from its Receivers
and deliver any notifications pertaining to that entry which
are required by the Nacha Rules and/or applicable laws and
regulations. Merchant shall retain such consents and
authorizations for two (2) years from the termination or
revocation of the authorization and provide copies of such
authorizations to Processor upon reasonable request. Each void, debit, and credit Entry will constitute a
separate Transaction for which Fees may apply. If it
becomes necessary for a reversal of a Transaction to be
initiated, Merchant will submit a request to Processor
to initiate such reversal pursuant to Processor’s
requirements. Merchant will give Processor enough
information to create such reversal.
5.2.
Cancellation, Amendment, Reversal. Merchant has no right to cancel, amend, or reverse an
Entry after Processor has received such Entry. If Merchant
requests Processor to cancel, amend, or reverse an Entry,
Processor may, in its sole discretion, attempt to honor such
request, but will have no liability for its failure to do
so. Merchant agrees to reimburse Processor for any expenses,
losses, or damages Processor incurs in effecting or
attempting to effect Merchant’s request.
5.3.
Returned Entries. Finix will notify Merchant of the receipt of a returned
Entry no later than two (2) Business Days after the day on
which Processor receives such returned Entry. To the extent
Processor has complied with this ACH Processing Services
Schedule with respect to the original Entry, Processor will
have no obligation to re-transmit a returned Entry to the
ACH Operator. Merchant will not knowingly resubmit debit
Entries returned due to stop payment or a revocation or
termination of the Receiver’s authorization. Merchant agrees
to reimburse Processor for any returned debit Entries on the
same day Merchant receives notice of such returned Entry.
5.4.
Late and Rejected Entries. Any Entries received after the Cut-Off Time will be
processed the following Business Day. Any exceptions that
may be allowed, in Processor’s sole discretion, may be
subject to a late fee assessed by Processor. Finix will
notify Merchant of late or rejected Entries. Processor may
reject any Entry that does not, in Processor’s sole
determination, comply with the requirements of this
Agreement.
5.5.
Inconsistency of Name and Number. Merchant agrees that if an Entry identifies a Receiver by
both name and identifying number, the RDFI may pay the Entry
on the basis of the identifying number, even if the number
identifies a person different from the named Receiver. If an
Entry describes the RDFI by name and identifying number,
Processor, an ACH Operator, or another financial institution
handling the Entry may rely on the identifying number to
identify the RDFI, even if the identifying number refers to
an institution other than the named RDFI.
5.6.
Notice of Changes. Finix will provide Merchant with all information required
by the Nacha Rules with respect to each Notification of
Change
(“NOC”)
Entry or Corrected Notification of Change (“Corrected NOC”) Entry received by Processor relating to Merchant’s Entries. Finix will provide
such information to Merchant within one (1) Business Day of
the Settlement Date of each NOC or Corrected NOC Entry.
Merchant will ensure that changes requested by the NOC or
Corrected NOC are made within six (6) Business Days of
Merchant’s receipt of the NOC information from Processor or
prior to initiating another Entry to the Receiver’s account,
whichever is later.
6.
MERCHANT COMPLIANCE.
6.1.
Merchant will not request Processor to initiate Entries
that violate Applicable Law or Nacha Rules. Merchant is solely responsible for any and all losses
incurred by Merchant or Processor if Merchant initiates
any Transaction prohibited by Applicable Law or Nacha
Rules. Merchant will provide such information and
certifications as Processor may reasonably require from
time to time within two (2) Business Days of a request
(subject to Processor’s right, in its sole discretion,
to provide extensions) so that Processor may determine
Merchant’s compliance with this ACH Processing Services
Schedule, the Nacha Rules, and Applicable Law. Before
Merchant initiates any Entry, Merchant will obtain from
the Receiver such authorization as is required by the
Nacha Rules and Applicable Law. Merchant will not
initiate an Entry after such authorization has been
revoked or the arrangement between Merchant and the
Receiver has terminated. Merchant represents and
warrants with respect to all Entries originated by
Merchant and processed by Processor for Merchant that
(i) each Receiver has authorized the debiting and/or
crediting of its account; (ii) each Entry is for an
amount agreed to by the Receiver; and (iii) each Entry
is in all other respects properly authorized. Merchant
is prohibited from disclosing a Receiver’s account
number or routing number to any third party for use in
initiating a debit Entry that is not part of the
original authorization. Merchant agrees that the ACH
payment instructions it sends to Processor will
constitute authorization for the origination of an Entry
on Receiver’s behalf.
6.2.
Once Processor authorizes an ACH Transaction, Merchant will
ensure that the proof of purchase contains the following
correct information: (i) Merchant’s correct name and
business address; (ii) the date of the Transaction; and
(iii) the total cash price of the sale or ACH transfer
(including all applicable state, federal, or local
surcharges and taxes. Merchant will deliver to the person
presenting the ACH Transaction a true and completed copy of
the proof of purchase with the goods and services purchased.
No ACH Transaction may be altered after Processor authorizes
acceptance of the ACH Entry. Merchant may not resubmit an
ACH Entry electronically or deposit it by any means once
Processor authorizes a Transaction. Failure to comply with
the above requirements may, in addition to other penalties,
be grounds for immediate suspension/termination of services
and indemnification of Processor by Merchant pursuant to
this Agreement.
6.3.
Merchant agrees not to submit any of the following
Transactions to Processor for electronic processing: (i) any
ACH debit drawn on any depository institution that is not
federally insured or part of the ACH Network; (ii) any ACH
debit or credit drawn on the personal checking account of
Merchant or any of its agents or employees; (iii) any
third-party items for electronic processing or ACH debit
made payable where the purpose is for the Receiver to
receive cash or cash back; (iv) any Transaction representing
the financing of an existing obligation whether previously
owed to Merchant, arising from the dishonor of an ACH Entry
or arising from a dispute with Merchant; (v) a Transaction
which represents an attempt to collect a Chargeback; (vi) an
ACH debit Entry for goods or services that are not
concurrently provided to the Receiver, including any ACH
debit given for gift certificate, a layaway (except for the
final payment) or for a similar Transaction, or for goods or
services provided to a third party; (vii) any Entry that is
altered by Merchant in any way; (viii) an ACH Entry on an
account for which Processor previously denied authorization.
Merchant’s submission of any of the above Transactions for
electronic processing may subject Merchant to immediate
suspension or termination, and all funds of Merchant,
including those in Merchant’s Reserve Account or Settlement
Account, may be placed on hold; or (ix) any ACH Entry
initiated on account of a third party other than
Merchant.
7.
SECURITY PROCEDURES.
7.1.
Merchant will comply with the security procedures described
herein and in the Nacha Rules (“Security Procedures”)
with respect to Entries transmitted by Merchant to
Processor. Merchant acknowledges that the purpose of such Security Procedures is
for verification of authenticity and that the Security
Procedures are not designed or intended to detect errors in
the Entries initiated by Merchant and that Merchant bears
the sole responsibility for detecting and preventing such
errors. Processor reserves the right to change, amend,
replace, or cancel any or all Security Procedures, at any
time and from time to time at Processor’s discretion.
Processor may make any change in Security Procedures without
advance notice to Merchant if Processor, in its judgment and
discretion, believes such change to be necessary or
desirable to protect the security of Processor systems and
assets.
7.2.
Merchant acknowledges and agrees that the Security
Procedures, including any code, password, personal
identification number, user identification technology, token,
certificate, or other element, means, or method of
authentication or identification used in connection with a
Security Procedure (“Security Devices”) constitute commercially reasonable security procedures
under Applicable Law for the origination of Entries or the
request for cancellation or amendment of an Entry.
7.3.
Merchant authorizes Processor to follow any and all
instructions entered and Transactions initiated using
applicable Security Procedures. Merchant’s initiation of a
Transaction using applicable Security Procedures constitutes
authorization for Processor to execute such Transaction, and
Merchant agrees and intends that the submission of Entries
and instructions using the Security Procedures will be
considered the same as Merchant’s written signature in
authorizing Processor to execute such Transaction. Merchant
acknowledges and agrees that Merchant will be bound by any
and all Entries initiated through the use of such Security
Procedures, whether authorized or unauthorized, and by any
and all Transactions and activity otherwise initiated by any
person(s) authorized by Merchant to initiate
Transactions (“Authorized User(s)”), to the fullest extent allowed by Applicable Law.
7.4.
Merchant acknowledges and agrees that it is Merchant’s
responsibility to keep all Security Procedures and Security
Devices protected and to provide or make available the same
only to Authorized User(s). Merchant warrants that no
individual will be allowed to initiate transfers of Entries
in the absence of proper supervision and safeguards, and
agrees to take reasonable steps to maintain the
confidentiality of the Security Procedures and any Security
Devices provided by Processor in connection with the
Security Procedures described in the Nacha Rules. Merchant
agrees to instruct each Authorized User not to disclose or
provide any Security Procedures or Security Devices to any
unauthorized person. Merchant agrees to notify Processor
immediately if Merchant believes that any Security
Procedures, information, or instructions have been
compromised, or otherwise become known to or accessed by
persons other than Authorized User(s), or if Merchant
believes that any Entry or activity is unauthorized or in
error. Merchant agrees to notify Processor immediately if
the access of any Authorized Users will change or be
revoked. The occurrence of unauthorized access will not
affect any transfers of Entries made in good faith by
Processor prior to receipt of such notification and within a
reasonable time period to prevent unauthorized
transfers.
7.5.
Merchant is solely responsible for providing for and
maintaining the physical, electronic, and procedural
security of data and systems in Merchant’s possession or
under Merchant’s control. Processor is not responsible for
any computer viruses (including, without limitation,
programs commonly referred to as “malware,” “keystroke
loggers,” and/or “spyware”) resulting from any computer
viruses. Merchant is solely responsible for maintaining and
applying anti-virus software, security patches, firewalls,
and other security measures with respect to Merchant’s
operating systems, and for protecting, securing, and backing
up any data and information stored in or on Merchant’s
operating systems. Processor is not responsible for any
errors or failures resulting from defects in or malfunctions
of any software installed on Merchant’s operating systems or
accessed through an Internet connection. Merchant agrees
that Processor is not responsible for any losses, injuries,
or harm incurred by Merchant as a result of any electronic,
e-mail, or Internet fraud.
7.6.
If there is a breach of any Security Procedure, Merchant
agrees to assist Processor in determining the manner and
source of the breach. Such assistance will include, but will
not be limited to, providing Processor, or Processor’s
agent, access to Merchant’s hard drive, storage media, and
devices, systems, and any other equipment or device that was
used in breach of the Security Procedure. Merchant further
agrees to provide to Processor any analysis of such
equipment, device, or software or any report of such
analysis performed by Merchant, Merchant’s agents, law
enforcement agencies, or any other third party. Failure of
Merchant to assist Processor will be an admission by
Merchant that the breach of the Security Procedure was
caused by a person who obtained access to transmitting
facilities of Merchant or who obtained information
facilitating the breach of the Security Procedure from
Merchant and not from a source controlled by
Processor.
7.7.
Merchant will implement and maintain security policies,
procedures, and systems related to the initiation,
processing, and storage of Entries and resulting Customer
Data. The policies, procedures, and systems will protect the
confidentiality and integrity of Customer Data, will protect
against anticipated threats or hazards to the security or
integrity of Customer Data, will protect against the
unauthorized use of Customer Data, and will include controls
on system access. In addition, Merchant will ensure proper
storage and destruction of authorizations, converted checks,
phone recordings, etc. The definition of Customer Data not
only covers financial information, but also includes
sensitive non-financial information (such as non-financial
account information contained in addenda records for bill
payments) that may be incorporated into the Entry or any
related addenda record.
8.
ADDITIONAL TERMINATION RIGHTS.
In addition to Processor’s termination rights under the
Agreement, Processor may immediately terminate Merchant’s
participation in the ACH Processing Services or suspend
provision of the ACH Processing Services if it determines in
its sole discretion that (i) the number of returned debit
Entries originated is excessive; or (ii) Merchant has
breached the Nacha Rules, Applicable Law, or this Agreement.
Any termination of this ACH Processing Services Schedule
will not affect any of Processor’s rights and Merchant’s
obligations with respect to Entries initiated by Merchant
prior to such termination, or the payment obligations of
Merchant with respect to services performed by Processor
prior to termination, or any other obligations that survive
termination of this Agreement.
Disbursement Services Schedule
This Disbursement Services Schedule governs Merchant’s use
of the Disbursement Services provided by Processor pursuant
to the Agreement. The General Terms continue to apply with
respect to the provision of the Disbursement Services.
Capitalized terms not defined in this Disbursement Services
Schedule have the meanings in the General Terms.
1.
DISBURSEMENT PROCESS.
1.1.
Merchant understands and acknowledges that, unless
Processor offers Merchant Instant Payouts, the Disbursement
Services operate on a good funds model and that Processor
must have received sufficient Settlement Funds from the
Networks in advance of the date on which Merchant instructs
Processor to make a payment to the Merchant Payee. At
Merchant’s request, and if approved by Processor, Processor
will debit such payments from Settlement Funds and Processor
will remit such payments to the Merchant Payee through ACH
or other approved Disbursement methods, on behalf of, and in
accordance with, instructions provided by Merchant.
Merchant will be solely responsible for ensuring the
validity, accuracy, and completeness of all Disbursement
information, data, files, APIs, or other instructions
provided or transmitted to Processor. Processor will be
entitled to rely upon all such information in providing the
Disbursement Services and will have no liability in
connection with such reliance. Processor will not be
required to act on instructions provided by Merchant if (i)
Processor reasonably doubts an instruction’s contents or
Merchant’s compliance with Applicable Law or this Agreement;
(ii) there are multiple or conflicting instructions; or
(iii) complying with the instruction may expose Processor to
financial or reputational risk or liability. If an
instruction contains inconsistent or conflicting
information, including with respect to name and account
number, Merchant agrees that Processor may rely exclusively
on the information provided. Merchant agrees that it will be
solely responsible for conducting identity verification on
each payee prior to submitting a Disbursement instruction to
Processor.
1.2.
All payments made to Merchant Payees will be remitted via
ACH or such other Disbursement methods that Processor may
support, as such methods will be subject to change in
Processor’s sole discretion from time to time. The terms and
conditions set forth in the ACH Processing Services Schedule
to this Agreement will apply with respect to Disbursements
made through ACH in connection with the Disbursement
Services. If Merchant instructs Processor to use Settlement
Funds for a Disbursement, Merchant agrees that such sending
of funds by Processor to the Merchant Payee satisfies
Processor’s obligation to settle such Network funds to
Merchant.
1.3.
For an ACH credit Entry subject to Article 4A of the
Uniform Commercial Code, credit given by an RDFI to the
Receiver for an Entry is provisional until the RDFI has
received final settlement through a Federal Reserve Bank or
otherwise has received payment as provided for in Section
4A-403(a) of Article 4A of the Uniform Commercial Code. If
the RDFI does not receive payment for the Entry, the RDFI is
entitled to a refund from the Receiver in the amount of the
credit to the Receiver’s account, and Merchant, as the
Originator, will not be considered to have paid the amount
of the credit Entry to the Receiver.
1.4.
Processor may implement Cut-Off Times for the submission of
Disbursement instructions, which Cut-Off Times will be
provided to Merchant, and which times will be subject to
change in Processor’s sole discretion from time to time. If
Processor receives a Disbursement instruction after the
Cut-Off Time, Processor will generally initiate the
Disbursement on the next Business Day.
1.5.
Merchant has no right to cancel, amend, or reverse a
Disbursement instruction after Processor has received such
instruction. If Merchant requests Processor to cancel,
amend, or reverse an instruction, Processor may, in its sole
discretion, attempt to honor such request but will have no
liability for its failure to do so. Merchant agrees to
reimburse Processor for any expenses, losses, or damages
Processor incurs in effecting or attempting to effect
Merchant’s request.
1.6.
Merchant agrees that Processor may impose limits on the
Disbursement Services in its sole discretion. Merchant
acknowledges that Disbursements may only be made to accounts
within the United States, unless otherwise approved by
Processor in its sole discretion. Merchant agrees that it
may not submit Disbursement instructions on behalf of third
parties. Merchant will only submit Disbursement instructions
for payments that comply with Applicable Law, the Rules and
this Agreement.
1.7.
Merchant agrees to assist Processor in any investigation or
prosecution of claims for unauthorized Disbursements.
2.
MERCHANT PAYEES.
2.1.
Merchant will provide to Processor any information that
Processor requests for purposes of satisfying Processor’s
internal compliance policies and procedures in connection
with the remittance of funds to the Merchant Payee. Merchant
acknowledges and agrees that Processor may, in its sole
discretion, decline or refuse to provide a payment to a
Merchant Payee at any time pursuant to Processor’s internal
compliance policies and procedures.
2.2.
For any Disbursements through the ACH Networks, Merchant
agrees that it will be the Originator as defined by the
Nacha Rules, and that Merchant will comply with the Nacha
Rules and Applicable Law.
3.
TRANSACTION LIABILITY.
3.1.
Merchant acknowledges that Processor is reliant on Merchant
alone for instructions with respect to payments made to
Merchant Payees in connection with the Disbursement
Services. Processor will not be liable if a Merchant Payee
makes a claim or complaint with regard to Processor’s
actions to the extent that such actions result from
instructions received from Merchant.
3.2.
Merchant hereby assumes all liability for any costs or
losses either Merchant or Merchant Payees incur as a result
of errors or omissions in the data and instructions provided
by Merchant to Processor, including any costs for any errors
or returns.
4.
TAX REPORTING AND WITHHOLDING.
Merchant acknowledges and agrees that Merchant is in the
best position to determine the nature of the payments
delivered to Merchant Payees through the Disbursement
Services and whether any such payments are subject to
reporting or withholding obligations under Internal Revenue
Code Section 6050W or other Applicable Law. Merchant
hereby accepts responsibility for such withholding and
reporting obligations and agrees to furnish to Processor
such documents and certifications related to its withholding
obligations or those of Processor upon request.
See previous version:
December 19, 2024