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CM-2017-1288 - 1/10/2017
© ❑ Patmahip } �'�: °r Merrick Bank Merchant Application and Agreement Merchant #: 394750534411 MCC: 7992 MERCHANT NAhfE(DBAwTrW.Name) CORPORATE/LEGAL NANG!(ifDllretsrr) %On' -W : FOREST CREEK GOLF CLUB CITY OF ROUND ROCK Ci1r: LOCATION ADDRESS CORPORATEADDRE•SS (if Diffi-n) D.W.rsink 99 TWIN RIDGE PKWY 221 E MAIN ST EmailA oc- LHADLF_.YQ CITYSbk J ❑ F❑ M❑ A❑ M❑ J❑ J❑ A❑ S OEI N❑ D❑ 'Lip CRY II'TCY-Vor PERSONAL DANKRI MY Stab ZIP ROUND ROCK TX 78664 ROUND ROCK Middk line Last: TX 78664 London Phone London Pox Coryaam Pkone State: -1,F,, (512)388-2874 (512)218-5442 (512) 218-3297 &mail AJJ..: IC (512)218-5442 CONTACTNAh1L- 1:0141AUI IAWL AIJIJRE55 SO -101 COIITACT1116NE FEDERALTAXID+1 WILLIAM WITTMAN JWITTMAN@KEMPERSPORTS.COM (512) 388-2874 74-6017485 DOESTIHS LOCATION CURRENTLY TAKE PAYAENTCN(DS? []No ®Yes(rynplea Feick) I-hICFtCl-OROwNF3tSTWNCIPALS-I:RBEEN7kR).DNnT -1,1-1C-NOPAYhfFNiCARDS FROMANY PAYABENFNLIWORK FOR TIES13USINESS OR ANY OTHER BUSINESSES? F1No ❑ Y. (if- pleascc Phi.) Pd.6plo PI Nam.. ❑ Patmahip ❑ Corpo.atka ❑ LLC Stam: ® Rend ❑ Rc nil ty/fip ❑ MiVIU. O k, ❑ In,e 0 ❑ Rcsbonmt ❑ Fut Foo, ❑N-l,.f"L(Mud Prmide 507.0) Fim: LAURIE hfkwklnit Lao: HADLEY SSN: %On' -W : Tile: CITY MANAGER II-Adl.esr, Ci1r: Shk: ZIP: D.W.rsink Unuo.q,_: (512)218-5400 Du/sbk: EmailA oc- LHADLF_.YQ ROI NDROCKTEXAS.GOV J ❑ F❑ M❑ A❑ M❑ J❑ J❑ A❑ S OEI N❑ D❑ Pmduct m Sm-im ping olrmd: IIAS?,ERCIIANT OR OWNERS/PRINCIPALS EVER FILED BI ISWEfS B.LNKRI II'TCY-Vor PERSONAL DANKRI MY Principle a2 Name: AtowdmrAcceptance•. (Totalstnequal100%) E Hon: •hleahaobproceuingkathan7(W.naip. Iraruacliatr mxt.omplcte d,. klorTD Annsulviicvoiume:s 400,000.00 MadhlyPaymeraCordVoltme:s 33333.00 Fi.t: Middk line Last: SSN: Y.Ounaship: Titk; IlomeAddma: City: State: Zip: DaleofBirdi home Phar: DUN / Sbtc: &mail AJJ..: 00ae/0eliue Debit ❑ Id'niJuallRde Prq+dcimstdp ❑ Patmahip ❑ Corpo.atka ❑ LLC Stam: ® Rend ❑ Rc nil ty/fip ❑ MiVIU. O k, ❑ In,e 0 ❑ Rcsbonmt ❑ Fut Foo, ❑N-l,.f"L(Mud Prmide 507.0) Private ❑Publicly T -W Go-ne ❑Ldpin; ❑QSR ❑CM-Coirce ❑Public Satyr ❑Pcwl.un ❑Utility ❑Board RuNOp-ted NAME EMONEY vERS1DNNmmER: 4.7 ❑ Ga- 22 DOES MERCHANT USEAFInXILIMEN17110115F.TO FULF111. PRODUCT: Manu Srasomi Sika: ❑Yn ❑No irw,pl.as.indimc NRhtnlumcmm0u Lrnpthoftimcinbwina,: Yam PIIONENU?,ME3 : J ❑ F❑ M❑ A❑ M❑ J❑ J❑ A❑ S OEI N❑ D❑ Pmduct m Sm-im ping olrmd: IIAS?,ERCIIANT OR OWNERS/PRINCIPALS EVER FILED BI ISWEfS B.LNKRI II'TCY-Vor PERSONAL DANKRI MY ® No AtowdmrAcceptance•. (Totalstnequal100%) E Hon: •hleahaobproceuingkathan7(W.naip. Iraruacliatr mxt.omplcte d,. klorTD Annsulviicvoiume:s 400,000.00 MadhlyPaymeraCordVoltme:s 33333.00 Cn.EtCxdaSnipcd: 95 s; Moro 0 % Qocai-im(mer) Am d-rTr.a;wl=e:s 33333.00 K�.Entaed: _1_,Y- lnt + 0 % (URL: )nye.TieEna 50.00 Big,Taecs 2000.00 M.ml=t*s URL(s): • (ly poo iding theaboye mfe.ercd idonn.ion, you are auth rir ng Ura to vitiate ACII Debit ad credit tnu action to aid x000m Memkaot Name toappeur on Sbtement, ©DDAName ❑Lepel Nam. Odmc SCIIEDULEA: VISA/hIASTERCARDIDISCOVERO/AAIERICAN EXPRESS DLSCOUNTRATFS&FEES: 0ADIN Vl?rQ- OTHER FEES%- INTERCNANOE (005711 PLUS: Applk.lion Fm $0.00 FCP OFe. DOES MERCItANP USE AN INDEPENDENT SERVICER MAThI'ORFS MAINTAINS ON TRANSMITS [nRD1101.DFR INF0RAIAT(hN: NO ❑Ya(ifya,plo-praid.) NAME EMONEY vERS1DNNmmER: 4.7 515.00 vs BPS DOES MERCHANT USEAFInXILIMEN17110115F.TO FULF111. PRODUCT: SO -10 ® Na ❑Yes (ify.s. pla.e pmyida) NAME PIIONENU?,ME3 : 0.15 y, 50.10 IIAS?,ERCIIANT OR OWNERS/PRINCIPALS EVER FILED BI ISWEfS B.LNKRI II'TCY-Vor PERSONAL DANKRI MY ® No ❑ 1'atifln pl-pmtidc) E Hon: SO. 10 Sbi-I Fm 57.50 Ew-- sdp Fee RANKACCOUYPINFORMATION: ❑CheekitgAmou.A ❑S.1*,A-on1 Baa Nam.: Ataeh voided check for the ap-UAR-ounl where foods am to be deposiud T -it a (ABARobutp): Aceeua d (DDA); Conw: Ph-#: • (ly poo iding theaboye mfe.ercd idonn.ion, you are auth rir ng Ura to vitiate ACII Debit ad credit tnu action to aid x000m - I'- SO.00 SCIIEDULEA: VISA/hIASTERCARDIDISCOVERO/AAIERICAN EXPRESS DLSCOUNTRATFS&FEES: 0ADIN Vl?rQ- OTHER FEES%- INTERCNANOE (005711 PLUS: Applk.lion Fm $0.00 FCP OFe. SO.00 CREDIT. % ?WL.P P11hI,,k,p hfamhk Minimum Fee $0.00 k 515.00 vs BPS 0.15% SO -10 Eqdiuo.tlt-i.Foo $0,00 Amu t PC] Fee 5150.00 AIC BPS 0.15 y, 50.10 PM. -Set Ftt $0,00 SO.00 DISC BPS 0.15 Y, SO. 10 Sbi-I Fm 57.50 Ew-- sdp Fee SO.00 AMEX BPs 0.15 x 50.10 $0.00 DEBfrIPIN: %hU,k.p -.-P - I'- SO.00 00ae/0eliue Debit 0.30 % SO -101 FJ&bmyMmthly Ftt I SO.00 You have the option of accepting MasterCard credit cards. Visa credit cards, American Express credit cards, credit cards issued by Discover, MasterCard signature debit cards (MasterMoney Cards) or Visa signature debit cards (Check Cards), or debit cards issued by Discover. You may elect to accept any or all of these card types for payment. Ifyou do not specifically indicate otherwise, your application will be processed to accept ALL MasterCard, American Express, Discover, and Visa card types. Elected Visa, Discover, American Expres or MasterCard card types NOT to accept: to mspcmron: Based upon your m•im, does Mcmhanl love the appropriate facilities. equipment. im nlory. peam=l hlnrlum: © 0un. ❑ Rent.` Ic^I' and license or pcmut to operate Ueir busiress7 Building Tp:: ❑ Stopping Cntr. ❑ Offine Buimins ❑ 1.1-rial Building ❑ Residence ❑ No ® Yes Ara Zorrd: ® Commetdal ❑ Irdusn.1 ❑ R.sidcn03 Cocun a : Squate Foomg.: ❑ 0-500 ❑ 501 - noo ❑ 2501- 5000 ® 5001 - Imoo+ Ry imiru, •1n% -:or Name: t LOWELLTHOMAS Ingmctnr Dale: sig,ntme: MOIfO QUESTIONNAIRE: COMPLETE THIS SECTION IF PROCESSING LESS THAN 70% CARD PRESENT: What pere-W& ofvlesme to: Businesses C.asamer % Individual Coonan, McNodofMarkchng: ❑ Ne v.ped—gazme Telnisiun/Radio [J Intemet Direct Wd,B.ehureaud/or Catslog Outbound Telemarketing SalesOther: Percenagc aflumducts sold via: Telephone Orders % Mail Fax Orders % Internet Orders % Odner v, Who pnccsms the order! ❑ Merchant FulilMrnt Cnncr [] Other Who enlen credit card intonation tido the processing system? ❑ Merchant Fufdlment Center ❑ Cmssumer Other If credit card payment information taken over the Internet, is payment channel encrypted by SSL or better? No ❑ Yes If Merchant is an a<ommerec Meteham. is a Merchant Certificate utilized? ❑ No Yes ifycs ptemoprovide the following: Merchant Certificate Number Do van own the produMmentory? []No EjYes Mier charge authorization, howlong until product ships? _ Product shipped byMerchant ❑ Other_ Certificate Issuer Exp. Date: Is Certificate []Individual Shared Is the product scared at your business location? [] No ❑ Yca If no, where is it stored? days Who ships the pratuct Delivery receipt requested? E] Yes IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT ❑ No To help the government fight the funding of terrorism and money laundering acthides, Federal law requires all fmaecial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we kill ask for your mime, address, date of birth, and other information that hill allow us to identify you. We will also ask for a copy of you dmcr's license or other identifying documents. MERCHANT APPLICATION AND AGREEMENTACCEPTANCE (Capitalized terms not defined in this Acceptance section have the meanings set forth in the Terms and Conditions section) "By exmuing this Merchant Application on behalf of the merchant described above ("Merchant"), the undersigned indkidtal(s) mpresent(s), s arknt(s), and acknowledges(s) that: (i) All information contained in this Merchant Application ("Application") is true, coned mid complete as of the date of this Application: (ii) If the Merchant is a corporation limited r liability company, or partnership, the individual(s) executing this Application have ilia requisite legal power and authority to complete and submit this Application on behalf of the Merchant and to make mid provide the acknowledgements, authorizations and agreements set forth herein on behalf of the Merchant and individually; (iii) The infomation contained in Ilus Application is provided for the purpose of obtaining, or maintaining, a merchant account for the Merchant with the Sponsor Bank ("BANK") and BANK will rely on the information provided hemin in its approval process and in settling the applicable Discount Rate, Approved A%cmge Ticket, and Approved Monthly Banlcard Volume; (iv) BANK is authorized to imestigate, either through its own agents or tluough credit bureaus/agencies, the credit of the Merchant and each person listed on this Application; (v) BANK will dcunnine all rates, fees and charges and notify Merchant of tle approved fees and by Merchant's subnussion and acceptance of Merchant's first sealed transaction Merchant agrees to pkv such approved fees: (%I) The Merchant Agreement will not lake effect until Merchant las been approved by BANK and a nicachaut number las been issued to merelant; and (vii) The undersigned has received, read, understood, the Merchant Agreement, which is incorporated herein by reference thereto, and agrees on behalf of the nncrelant to be bound by the tams of such Merchant Agreement. The merchant on whose belmlf this Application is being submitted acknowledges that if this Application is being subnniucd to Mcnick Bank as the Sponsor Bank, ETS CORPORATION will may also be a party to this Merchant Agreement. In such ease, Merchant acknowledges that ETS CORPORATION will rely on the mpresentauons and warranties set forth in thus Application Corr Men, in Agrccmcnt a nlessotlterm, a specified or pmlubited 6y Association orapplicabla law, ETS CORPORATION will have all the rights of BANK under this Application and Agreement (.y checking this b I. erchant opts out of remiving Fula couJ- mercial marketing communications fmm American Express MERCHANT: /i i i / �� ` BANK: Principal #I: V/i//^C/, lh J By: Data: Print Name: LAURIE HADLEY b 1C / y �/ / Name aadTitle: Principal #2: Print Name: Data: ETS CORPORATION: Bv: Data: Name and ful, HADI AKKAD - VP CONTINUING PERSONAL GUARANTY PROVISION — PERSONAL GUARANTOR (Capitalized terns not defined in this Guaranty section have the meanings set forth below in the Terms and Conditions section) �By signing below, each individual or entity ("Guarantor") jointly and severally (if them is mom [Lin one Guarantor) and unconditionally guarantees to ETS CORPORATION and BANK the prompt payment and full and complete performance of all obligations of the Merchant identified above under the Merchant Agreement, as amended from time to time. including, without limitation all promises and cmenants of the Merchant, and all amounts payable by the Merchant under the Merchant Agreement, including, without limitation charges, interest, toss and other expenses, such as attorney's fees and court costs. This memo. among other things, that ETS CORPORATION or BANK can demand perfomuance or payment from any Guarantor if the Merchant fails to perform any obligation or pay what the Merchant owes tinder the Agreement. Each Guarantor agrees that his or her liability under this guaranty will net be limited or canceled because: (1) the Merchant Agreement cannot be enforced against the Merchant for any reason. including, without limitation, bankruptcy proceedings; (2) either ETS CORPORATION or BANK agrees to changes or modifications to the Merchant Agreement, with or without notice to Guarantor, (3) ETS CORPORATION or BANK releases any oder Guamntor or the Mercleint from any obligation tinder the Merchant Agreement; (a) any law, regulation, or order of any public authority affects the rights of either ETS CORPORATION, Merchant, or BAN: under (lie Merchant Agreement; and/or (5) anything else happens that nay affect the rights of either ETS CORPORATION or BANK against the Merchant or any other Guarantor. Each Guarantor further agrees Ilan: (a) ETS CORPORATION and BANK each may delay enforcing any of its rights under this guaranty without losing such rights and hereby waives any applicable Statute of Linitatiom; (b) ETS CORPORATION and BAN: each can dermad payment from such Guaramor withau first seeking pay an[ from the Men:lant or any other Guarantor or fmm any security held by Ile BANK; and (c) such Guamntor will pay all court costs, attomcy's fees, and collection costs incurred by tither ETS CORPORATION or Ile BANK in connection with the enforcement of We Merchant Agreement or this Gmmnty, whether or not them is a lawsuit, and such additional fees and toss as may be directed by a count If (lie Merchant is a corporation or linu(ad liability company, this Guaranty must be executed by a principal or affiliate of Merchant. Principal #1: Prim Nane: X t:*tJ'tf& H 1F" Data, Principal 42: Print Name: Date: CORPORATE RESOLUTION: (Capiufzed terms not defined In this Resolution section have the meanings set fonh below In the Terms and Conditlons section) 1. . the duty elead. q.lird aM acting of (ac Company'), do lcrcbycatik as follows: Coq.uatc Ssencary•• Off Till. LsFal Corporate NamcofCo. lo-rp—ion Status The following resolutions were, duly adopted by ds board of dircetorshnamging member(s)/general paucrs (circle one) or the Company': WHEREAS the Company desires to emer Gua a Merchant Agr=cnt (the `Mercham Agrcemenl) with Merrick Bank Corporation, a Utah industrial loan corporation ('Bank') and Electronic Transaction Systems Corporation a Virginia corporation ('E'S CORPORATION'), a copy of which hfcrclum Ag—mcot is attached ]..to as Exlibil 'A"; WHEREAS. pursuant to the terms of the Merchant Agreement. Bade and EfS CORPORATION will provide certain credit card finawing and processing for VISA and/tar hfASTERCARD and/or Discover credit card purchases nude by dye Company's customers; WHEREAS. pursuant to tla 'erns of the Mercham Agrmnem (a) the Company may be required to establish a Reserve Account (as defined in dye Merchant Agnammt) and (b) Bank my require the Company to direct certain funds relating to credit card purehaues to such Reserve Account; WHEREAS, pursumu to the tants -rft hferclanl Agreement, Bank may requim the Company to execute innmmafs midencing Bank's security' inmrcst in the Operating Account (as defined in We Merchant Agreement) and Reserve Account: and WHEREAS, pursuant to the terms of the Merchant Agreement, tk Company is required to comply with strict requirements concerning the processing of credit earth Imnsactiom and Ihe sale of tic Compares products. NOW, THEREFORE BE IT RESOLVED, that the Merchant Agrcencnt by and among the Company. Bank and EfS CORPORATION. pursumu to which Bank and ECS CORPORATION will =1 as the Company's exclume pmyidu of VISA and/or MASTERCARD mdlar Disco— credit card financing and processing services, is hereby approved and adopted in the form attached to Nese resolutions, logetkr with such additions. clungesor modifaiiom as nay' be deemed necessary, advisable or appropriate by the oft—(s) executing or "using the same to be completed; and RESOLVED FURTHER, that in co—tion with the Merchant Agnxmonl da appropriate -M-10) of Ne Company islam horeby authotized to establish (a) an Operating Account into wNch fads fmn credit ad sales by the Company will bo directed, and (b) if rccessary, a Reserve Account into which funds from credit card sales by Ik Company may be dvected by Bank in accordant with it. prot'isions of the Merchant Agnxrru m; RESOLVED FURTHER, that the Compare, krcby grants Bank a security interest in the funds held by the Company I. the Operating Account ad Reserve Acetum and the appmp aic otficer(s) of the Company is/am hereby authorized to etecute all documents reasonably required by Bank m perfect such security interests; RESOLVED FURTHER. that Ile appropriate .dice i(s) of the Company is/— kitty autherircd to enter into such additional rtgmemcntf, and take such additional anions ns nay k rcatonabh required by Bank or ECS CORPORATION in c—clion with the Merchant Agree M and RESOLVED FURTHER. flat the Seerctary/mwging member/general partner (eimle arc) of Ik Compay is hereby authorized to deliver to Bank and EfS CORPORATION a Cenificam (i) identifying rhe officers of the Compamt III) verifying the signmurcs of such offcars. and (iii) cenifying a copy of these resolutions. and Bad: arid EIS CORPORATION am hereby authorized to rely on such Ccniftatc until fonmlly adriscd by a Like certifiafe of anydungcs therein and is hereby authorized to rely on any such additional certificates. I Each person listed below (an "Officer) (i) holds Ik office in the Company irdicated opposite his or her rune on the date hereOf. (ii) the sigma m appmring opposite his or her name is The genuine signatum clench such officer, (iii) each such Officer, acting individually, is autboriud to —le and deliver the Merchant Agreement and each of the agreements and documents contemplated by IM Merchant Agseerrcm (collectively, Nc -Tm=clion Documcnti )onbclWfoftk Comps .and(iy)achs hOffccr,aningindicidmlly,isauihodwdtopafomsde Company'sobligadomuMcrdn Tm=ction Do =msonbcMfoftk Company: 7. NAME OFFICER SIGNATURE h IN WITNESS WHEREOF. I have csceutcd this Ceniftnte this daynf io_ Sign: Name: TITLE: Corporate SeercnaO-•`ar Print Offen 7111e TERMS AND CONDITIONS Subject to the requirements of applicable Card Association rules, ETS CORPORATION and Bank may allocate their respective duties and obligations between themselves as they deem appropriate at their sole discretion, and ETS CORPORATION or Bank mayjointly or individually assert or exercise the rights or remedies provided to the Bank hereunder. In consideration of the mutual covenants herein, Bank, ETS CORPORATION and Merchant have agreed as follows ARTICLE 1- DEFINITIONS 1.01 "Account" means a commercial checking account or demand deposit maintained by Merchant asset forth in Section 5.16 for the crediting of collected funds and the debiting of fees and charges under this Agreement. 1.02 `ACIP means the Automated Clearing House paperless entry system controlled by the Federal Reserve Board. 1,03 "Agreement" means these terms and conditions and any supplementary documents indicated herein, and valid schedules and amendments to the foregoing. 1.04 "American Express" means the Cards bearing the Marks of, and Card Network operated by, American Express Travel Related Services Company, Inc or its affiliates. 1.05 "Authorization" means a computerized function or a direct phone call to a designated number to examine individual Transactions to obtain approval from the Card Issuer to charge the Card for the amount of the sale. 1.06 "Bank" has the meaning set forth on the Merchant Application. 1.07 "Card" means (i) a valid credit card in the form issued under license from Visa U.S.A., Inc. Visa International, Inc or MasterCard Intemationel, Ina ("Bank Card") or Discover®; or (ii) any other valid credit card accepted by Merchant by agreement with Bank and ETS CORPORATION. 1.08 "Card Association" means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc. or Discover or any other Card Issuers that provide Cards that are accepted by Merchant by agreement with Bank and ETS CORPORATION. 1.09 "Card Issuer" means the financial institution or company which has provided a Card to a Cardholder. 1.10 "Card Not Present (CNP)" means that an Imprint of the Card is not obtained at the point-of-sale- 1.11 oint-of-sale1.11 "Cardholder" (sometimes referred to as "Card Member" in certain Card Network materials) means the person whose name is embossed upon the face of the Card. 1.12 "Cardholder Information" means any non-public, sensitive information about a Cardholder, including any combination or Cardholder name plus the Cardholders social security number, drivers license or other identification number or credit or debit card number, or other bank account number. 1.13 "Chargeback' means the procedure by which a Sales Draft (or disputed portion thereof) is returned to Bank by a Cud Issuer because such item does not comply with the applicable Card plan's operating regulations. 1.14 "Credit Voucher" means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account 1.15 "Imprint" means (i) an impression on a Sales Draft manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal and electronically capturing Card Data and printing a Sales Draft. 1.16 "Mid or Non -Qualifying Transaction" means any sale Transaction that fails to qualify for lowest interchange rate assigned by the applicable Card Association for the standard card industry code of Merchant and which may be charged fees as set forth in Schedule A. 1.17 "Soles Draft' means the paper form, whether electronically or manually imprinted, evidencing a sale Transaction. 1.18 "Transaction" means any sale of products or services, or credit for such, from a Merchant for which the Cardholder makes payment through the use army Card and which is presented to Bank for collection. 1.19 "Voice Authorization" means a direct phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems. ARTICLE II - CARD ACCEPTANCE 2.01 Hnnorino Cards. (a) Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to applicable Card Association rules requiring Merchant to elect whether it will accept credit only, debit only or both debit and credit Cards. Merchant's election is set forth in the Application. (b) Merchant will not establish minimum or maximum amounts for Card sales as a condition for accepting any Card. (c) Merchant will not require any Cardholder to pay as a surcharge any part of any discount or charge imposed upon bicrchant by this Agreement, whether through any increase in price or otherwise require a Cardholder presenting a Card to pay any charge or price as a condition of sale that is not also required from a customei paying cash. However, Merchant may not, by this term, be prevented from offering discounts to customers for cash purchases. (d) Merchant will not engage in a Card Transaction (other than a mail order, telephone order, ecommerce or preouthorized sale to the extent permitted under this Agreement) if the person seeking to charge the purchase to his or her Card account does not present the Card to permit Merchant to compare the signature on the Card to the signature on the Sales Draft and obtain an Imprint or otherwise use the physical Card to complete the Transaction. 2.02 Advertising. (a) Merchant agrees to prominently display the promotional materials provided by Bank and ETS CORPORATION in its place (s) of business. Use of promotional materials and use of any trade name, trademark, service mark or logo type ('Marks') associated with Card(s) will be limited to informing the public that Card(s) will be accepted at Merchant's placc(s) of business. Merchants' use of promotional materials and Marks is subject to the direction of Bank and ETS CORPORATION. (b) Merchant may use promotional materials and Marks only during the term of this Agreement and will immediately cease use and return any inventory to Bank or ETS CORPORATION upon any termination thereof. (c) Merchant will not use any promotional materials or Marks associated with Visa. MasterCard or Discover in any way which suggests or implies that either endorses any goods or services other than Card payment services. 2.03 Card Acceptance. When accepting a Card, Merchant will follow the steps provided by Bank and ETS CORPORATION for accepting Cards and will: (a) Determine in good faith and to the best of its ability that the Card is valid on its face; (b) Obtain Authorization from the Card Issuer to charge the Cardholder's account; (c) Unless the Sales Draft is electronically generated or is the result of a mail, phone or preauthorized order, (i) obtain an Imprint of the Card including embossed data from the merchant imprinter plate; and (ii) obtain the Cardholders signature on the Sales Draft and compare that signature to the signature on the Card; (d) Enter a description of the goods or services sold and the price thereof (including any applicable taxes); (e) Deliver a true and completed copy of the Sales Draft to the Cardholder at the time of delivery of the goods or performance of the services, or, if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale; (f) Offer the Sales Draft to Bank for purchase according to Bank's procedures and the terms of this Agreement; and (g) Make anImprint of the Card, if the Transaction is not based upon a mail, phone or pre -authorized order. 2.07 Authorization. Merchant will obtain an Authorization for all Card sales. If Merchant cannot, for any reason, obtain an electronic Authorization through the use of a terminal, Merchant will request a Voice Authorization from Bank's designated authorization center and will legibly print the authorization number on the Sales Draft Merchant will not obtain or attempt to obtain authorization from Bank's authorization center unless Merchant intends to submit to Bank a Transaction for the authorized amount if Authorization for the Transaction is given. Merchant may not divide a single Transaction between two or more Sales Drafts on a single Card to avoid Authorization limits that may be set by the Card Issuer . Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale and that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback and does not wmranty the Cardholder's identity. Merchant may not attempt to obtain an authorization by successively decreasing the sale amount Bank or ETS CORPORATION may refuse to purchase or process any Sales Draft presented by Merchant: (a) unless a proper authorization or approval code has been recorded on the Sales Draft: (b) if Bank or ETS CORPORATION determines that the Sales Draft is or is likely to become uncollectible from the Cardholder to which the transaction would otherwise be charged; or (c) irBank or ETS CORPORATION has reason to believe that the Sales Draft was prepared in violation of any provision of this Agreement Merchant will use, and may not circumvent, fraud identification tools requested by Bank or ETS CORPORATION, including Address Verification System processing and CV V2 processing, and acknowledges that the use of these tools may prevent Merchant from accepting certain Cards as payment. Merchant acknowledges that its use of fraud identification tools may not prevent fraudulent Card usage, and agrees that any fraudulent Transaction may ultimately result in a Chargeback, for which Merchant retains full liability under this Agreement. 2.05 Retention and Retrieval of Cards. (a) Merchant will use its best efforts, by reasonable and peaceful means. to retain or recover a Card (i) when receiving such instructions when making a request for Authorization or (ii) if Merchant has reasonable grounds to believe the Card is counterfeit, fraudulent or stolen. (b) The obligation of Merchant imposed by this section to retain or recover a Card does not authorize a breach of tee peace or any injury to persons or property, and Merchant will hold Bank and ETS CORPORATION formless from any claim arising from any injury to person or property or other breach of the peace in connection with the retention or recovery of n Card. 2.06 Multiple Transaction Records; Partial Consideration. Merchant will not prepare more than one Sales Draft for a single sale or for a single item but will include all items of goods and services purchased in a single Tm=ction in the total amount on a single Sales Draft except under the following circumstances: (i) For purchases in separate departments of a multiple department store; (ii) For partial payment, installment payment, delayed delivery or an advance deposit; or (iii) For delayed or amended charges governed by rales for travel and entertainment merchants and Transactions . 7 0 Telephone Orders, Mail Orders. eCommerce, Prenuthorrsed Orders and Installment Orders. (a) Unless Merchant has been approved by Bank to accept mail, phone or ecommerce orders. Merchant warrants that it is a walk-in trade business, located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If Bank and ETS CORPORATION determines Merchant has accepted unapproved Card Transactions without Bank's audhorimtion, which are placed by telephone, generated through telephone solicitation, mail order or odder means that does not create a Sales Draft that bears the Card imprint and Cardholder's signature, this Agreement will be immediately terminated and the value of all Sales Drafts collected from the first day of processing maybe charged back to Merchant and all funds therefrom will be held pursuant to Article N. (b) Unless approved by Bank, this Agreement does not contemplate regular acceptance of Cards for sales accepted by telephone, mail or ecommerce nor through prmuthorized orders. Iran occasional Card Transaction is made by mail, phone or preauthorized order, the Sales Draft maybe completed without the Cardholder's signature or an Imprint, but in such case Merchant will create a Sales Slip containing Cardholder data, an Authorization number, the sale amount and the letters "MO%70" or "PO", as appropriate. Receiving an Authorization will not relieve the Merchant of liability for Chargeback on any Transaction for which the Merchant did not obtain an Imprint or the Cardholder's signature. 2.08 Lodeine and Vehicle Rental Tnnsactions. (a) Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder's intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount. (b) Regardless of the terms and conditions of any written preauthorization form, the Sales Drati amount for any lodging or vehicle rental Transaction will include only that portion of the sale, including any applicable razes, evidencing a bona fide rental of real or personal property by Merchant to the Cardholder and will not include any consequential charges. Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Card Transaction. 2.09 Retuns and Adjustments; Credit Vouchers. (a) Merchant's policy for the exchange or return of goods sold and the adjustment for services rendered will be established and posted in accordance with operating regulations of the applicable Card Association's regulations. Merchant agrees to disclose, if applicable, to a Cardholder before a Card sale is made, that if merchandise is returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g.. late delivery, delivery charges, or other non-credit terms). (b) if Merchant does not make these disclosures, a full refund in the form ofa credit to die cardholder's Card account must be given. Disclosures must be made on all copies of Sales Drafts or invoices in letters approximately 1/4" high in close proximity to the space provided for the Cardholders signature or on an invoice issued at the time of the sale or on an invoice being presented for the Cardholder's signature. (c) Any change in Merchant's return or cancellation policy must be submitted in writing to Bank and ETS CORPORATION not less than fourteen (14) days prior to the change. Bank or ETS CORPORATION reserves the rights to refuse to process any Sala Draft made subject to a revised return or cancellation policy of which Bank and ETS CORPORATION have not been notified as required herein. 2.10 Cash Pavanents. Merchant will not receive any payments from a Cardholder for charges included in any Transaction resulting from die use crony Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of erfecting a deposit to the Cardholder's Card account 2.11 Cash Advances; Scrip Purchases. 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 and will not accept any Card ata scrip temhinal. Merchant agrees that either such action will be grounds for immediate termination of this Agreement. 2.12 Dunfirme'r--notions. Merchant will not deposit duplicate Transactions. Nferchant will be debited for any adjustments for duplicate Transactions and will be liable for any Chargebacks which may result therefrom. 2.13 Deposit of Fraudulent Tnnsactions. Merchant will not accept or deposit any fraudulent Transaction and may not under any circumstances present for processing or credit , directly or indirectly, a Transaction which originated with any other merchant or any other source other than Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved under this Agreement. If Merchant deposits any prohibited Transaction, Merchant may be immediately terminated, and Bank may hold funds and/or demand an Escrow pursuant to Sections 4.02 and 5.06; further, Merchant maybe subject to the Visa and MasterCard and Discover reporting requirements under the terms of this Agreement. Merchant understands and agrees that it is responsible for its employees' action, whether negligent or fraudulent, while in its employ. 2,14 Collection of P—existine Debt. Merchant will not prepare and present to Bank for purchase any Tmasaction representing the refinancing of an exiling obligation ofa Cardholder including , but not limited to, obligations (i) previously owed to Merchant, (ii) rising from the dishonor ofa Cardholders personal check, Chargeback, and/or (iii) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties. 2.15 Dntn Securitv/Personnl Cardholder Informntion. Merchant may not, as a condition ofsale, impose a requirement on Cardholders to provide any personal information as a condition for honoring Cards unless such information is required to provide delivery of goods or services or Merchant has reason to believe the identity of the person presenting the Card may be different than that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise disclose any Cardholder Information to any person other than Bank or ETS CORPORATION or the applicable Card Association, except as expressly authorized in writing by the Cardholder, or as required by law. (a) Safeguards. Merchant will maintain appropriate administrative, technical and physical safeguards for all Cardholder Information. These safeguards will (i) insure the confidentiality of Cardholder Information: (ii) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (iii) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder, and (iv) properly dispose of all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant will maintain all such safeguards applicable to Merchant or Bank or ETS CORPORATION in accordance with applicable federal and state laws, rales, regulations and guidance (b) Compliance wilh Card Association Rides. Merchant represents, warrants and covenants that it is and will remain throughout the term of this Agreement in compliance with Card Association bylaws, operating regulations and ruics related to data security, data integrity and the safeguarding of Cardholder Information including the Payment Card Industry Data Security Standard ("PCI"), Discover Information Security Compliance ("DISC"). MasterCard's Site Data Protection Program ("SDP"), the American Express Data Security Requirements ("DSR"), and Visa's Customer Information Security Program ("CISP"), in effect and as may be amended, supplemented or replaced. Ivlerchant will cause all of its service providers, subcontractors and agents to comply with PCI, SDP, DISC, DSR and CISP requirements at all times. Merchant will report any non-compliance immediately to Bank or ETS CORPORATION. To accomplish the foregoing. Merchant will encrypt all debit, credit or stored value card numbers whether in storage, imnsport or backup and will not store data security codes on its systems, network or software. (c) Annual Certifintion. Merchant will provide an annual unification to Bank or ETS CORPORATION if requested by Bank or ETS CORPORATION (in a form acceptable to Bank or ETS CORPORATION ) certifying compliance with the data security provisions of this Agreement, including compliance with applicable Card Association requirements such as PCI, SDP, DSR and CISP. Merchant will provide annual certifications for Merchant's service providers, subcontractors and agents. (d) Infnrmminn Ilse Limitations Merchant may not sell, disclose, or otherwise make Cardholder Information available, in whole or in pap, in a manner not provided for in this Agreement. without Bank's or ETS CORPORATION's prior written consent. Merchant may, however, disclose Cardholder Information to its service providers, subcontractors and agents who have a need to know such information to provide the Services described in this Agreement, provided that those individuals or entities have assumed confidentiality obligations in accordance with this Agreement, or as may be required by legal process or applicable federal and state laws, rules, regulations and guidance and have entered into a written agreement with Merchant containing Merchant's and such individuals' or entities' agreement to the foregoing data security provisions including compliance with Card Association rules, regulations or bylaws. (e) Response to Unauthoraed Access. Merchant will notify Bank or ETS CORPORATION within 24 hours after it knows of any breach in security resulting in an unauthorized access to Cardholder Information Merchant will provide any assistance that Bank or ETS CORPORATION , die issuing bank of any Cardholder, and their regulators and the Card Associations deem necessary to contain and control the incident to prevent further unauthorized access to or use of Cardholder information. Such assistance may include, but not be limited to, preserving records and other evidence and compiling information to enable Bank or ETS CORPORATION and the issuing bank (s) or the Card Associations to investigate the incident and provide assistance and cooperation to: (a) file suspicious activity reports (as applicable); (b) notify their regulators (as applicable); and (e) notify the affected Cardholder (as required). Unless the unauthorized access was due to Bank's acts or omissions. Merchant will bear the cost of notifying affected Cardholder. (f) Miscellaneous. Merchant may not make a claim against Bank or ETS CORPORATION or hold Bank or ETS CORPORATION liable for die acts or omissions of odier merchants, service providers. Card Associations, financial institutions or others that do not have a written contractual relationship with Bank or ETS CORPORATION or over which Bank or ETS CORPORATION has no control. These provisions supplement, augment and are in addition to obligations of indemnification, audit, confidentiality and other similar provisions contained in this Agreement. This Section and each of its subsections will survive this Agreement's termination. Merchant may not store in any system or in any manner discretionary Card read data including without limitation CW2 data. PIN data, address verification data or any other information prohibited by Card Association Rules. Merchant agrees that Provider may disclose to any Card Network information regarding Merchant and Merchant's Transactions to any Card Network, and that such Card Network may rue such information to perform its responsibilities in connection with its dries as a Card Network, promote the Card Network, perform analytics and create reports, and for any other lawful business purposes. including commercial marketing communications purposes within the parameters of Card Network Card acceptance, and transactional or relationship communications from a Card Network, A Card Network may use the information about Merchant obtained in this Agreement at the time of setup to screen and /or monitor Merchant in connection with the Card Network marketing and administrative purposes. Merchant agrees it may receive messages from a Card Network, including important information about Card Network products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of Merchant. Merchant may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or "text") messages or automated or prerecorded calls. Merchant agrees that it maybe sent fax communications. 2.16 Compliance with Cud Association Rules. Merchant will comply with and conduct its Card activities in accordance with all applicable Card Association rules and regulations. Failure to comply with such rules and regulations may result in Merchant being terminated for cause and listed on various Card Association and industry databases , including the Terrninated Merchant File and the Nfuchant Alen to Control High Risk Merchants file ("MATCH-). Merchant may not: (a) accept Cardholder payments for previous Card charges incurred at the Merchant location; (b) establish a minimum or maximum transaction amount as a condition for honoring a Card; (c) require a Cardholder to complete a postcard or similar device that includes the Cardholder's account number, card expiration date, signature, or any other card account data in plain view when mailed; (d) add any surcharge to transactions; (e) add any tax to transactions, unless applicable law expressly requires that Merchant be permitted to impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately); (f) enter into interchange any transaction receipt fora transaction that was previously charged back to Bank and subsequently returned to Merchant , irrespective of Cardholder approval (Merchant may pursue payment from the Cardholder outside the Card Association system); (g) request or use an account number of any purpose other than as payment for its goods or services; (h) disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant; (i) disburse funds in the form of cash, unless: (i) Membant is a lodging or cruise line merchant disbursing cash to a Cardholder, (ii) Merchant is dispensing funds in the form of travelers cheques, Cards, or foreign currency, or (iii) Merchant is participating in the Card Association cash back service; (j) accept a Card for the purchase or scrip; (k) accept a Card for manual cash disbursement; (1) accept a Card to collect or refinance existing debt that has been deemed uncollectible by the Merchant providing the associated goods or services; or (m) enter into a Transaction that represents collection of a dishonored check. Merchant will pay all Card Association fines, fees, penalties and all other assessments or indebtedness levied by Card Associations to Bank or ETS CORPORATION which are attributable, at the Bank's or ETS CORPORATION'S discretion, to Merchant's Transaction processing or business. (n) accept a Card for an unlawful Internet gambling transaction. Merchant will pay all Card Association fines, fees, penalties and all other assessments or indebtedness levied by Card Associations to Bank or ETS CORPORATION which are attributable, at the Bank's or ETS CORPORATION'S discretion, to Merchant's Transaction processing or business. 2.17 Merchant's Business. Merchant will notify Bank or ETS CORPORATION immediately if it intends to (a) transfer or sell any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change majority ownership or transfer control of its business; (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a parry to this Agreement assumes any interest in Merelant's business; (e) alter in any way Merchant's approved monthly volume, average, or maximum ticket; (f) clangs its return policies or to another fulfillment house different from those identified in Merchant Application; or (g) changes to its Account. Merchant will notify Bank or ETS CORPORATION promptly in writing if it becomes subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Merchant's failure to provide notice as required above maybe deemed a material breach and will be sufficient grounds for termination of Merchant and for Bank's or ETS CORPORATION'S exercise of all its rights and remedies provided by this Agreement. If any change listed above occurs, Bank or ETS CORPORATION may immediately terminate this Agreement. 2.18 hlerchnn Ps Warranties. Merchant represents and covenants that (a) all information contained in the Merchant Application or any other documents delivered to Bank or ETS CORPORATION in connection therewith is ime and complete and properly reflects Merchant's business, financial condition and principal partners, owners or officers; (b) Merchant las power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject; (c) Merchant holds 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; (d) there is no action, suit or proceeding at law or in equity 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; (e) each Sales Draft presented to Bank or ETS CORPORATION for collection is genuine and is not the result of any fraudulent or prohibited Transaction or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement ; (f) each Sales Draft is the result of a bona Ede Card Transaction for the purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Sales Draft ; (g) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Cud Transaction evidenced thereby; (h) Merchant has complied with Bank's or ETS CORPORATION'S procedures for accepting Cards, and the Card Transaction itself does not involve any element of credit for any other purposes other than as set forth in this Agreement and is not subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder under the Card Associations' rules, the Consumer Credit Protection Act (15 USC § 1601) or other relevant state or federal statutes or regulations; and (i) any Credit Voucher which it issues represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted by Bank or ETS CORPORATION . 2.19 Merchnni's Covenants. Merchants covenants that: (a) each Transaction Record presented to Provider for collection is genuine and is not the result of any fraudulent activity, or a Transaction prohibited by a Card Network, or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement; (b) each Transaction Record is the result of a bona fide purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Transaction Record; (c) Merchant will perform all of its obligations to the Cardholder in connection with the Transaction evidenced thereby; (d) Merchant will comply with Providers procedures for accepting Cards, and the Transaction itself will not involve any element of credit for any other purposes other than as set forth in this Agreement, and will not be subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder under the Network Rules, the Consumer Credit Protection Act (15 USC § 1601) or other Law,, and any Credit Voucher which Merchant issues represents a bona fide refund or adjustment on a Transaction by Merchant with respect to which a Transaction Record has been accepted by Provider. 2.20 Third Parties. Merchant may desire to use a third -patty service provider to assist Merchant with its Transactions. Merchant shall not utilize any such third parties unless Merchant has disclosed such use to Provider previously in writing, and unless such third party is fully compliant with all Laws and Network Rules. Any third party used by Merchant must be registered with the Card Network prior to the performance of any contracted services on behalf of Merchant. Further, as between the paries to the Agreement. Merchant will be bound by the acts and omissions of any third -party service provider and Merchant will be responsible for compliance by such third -party service provider with all Laws and Network Rules. Merchant will indemnify and hold harmless Provider from and against any loss, cost, or expense incurred in connection with or by reason of Merchant's use of any third parties, including third -party service providers. Provider is not responsible for any third -party service provider used by Merchant, nor is Provider required to process any Transaction which Provider receives from Merchant or its service providers in any format not approved by Provider. Provider has no responsibility for, and shall have no liability to Merchant in connection with, any hardware, software or services Merchant receives subject to a direct agreement (including any sale, warranty or end-user license agreement) between Merchant and a third party. 2.21 Recmrrse. Merchant acknowledges that ISO performs the services contemplated by this Agreement and ISO is responsible to Merchant for any failure to perform such services in accordance with the terns of this Agreement. While Bank satisfies settlement files pursuant to instructions provided by ISO, Bank is not responsible for independently verifying the accuracy ofsuch settlement files. Accordingly, to the greatest extent permitted by the Network Rules, Merchant's sole recourse for any failure by Provider under this Agreement is against ISO (and not Bank). 2.22 Pre -Authorized Transactions. If Merchant agrees to accept a pre -authorized order, the Cardholder shall execute and deliver to Merchant a written request for such pre -authorization which will be retained by Merchant and made available upon request to Provider. Merchant will not deliver goods or perform services covered by a pre -authorization after receiving specific notification that the pre -authorization is cancelled or that the card covering the pre -authorization is not to be honored. 2.23 Pre -Authorization Health Care Trnnsactions. If Merchant is a "Health Cue Merchant" as indicated on the Merchant Application and accepts a pre -authorized health care Transaction(s) from a Cardholder. Merchant agrees to comply with any requirements in the Network Rules related to such Transactions. 2.24 Recitrrine Transnctions. If Merchant agrees to accept a recurring transaction from a Cardholder for the purchase of goods or services which are delivered or performed periodically (a "Recurring Transaction"), the Cardholder shall complete and deliver to Merchant an order form containing a written request for such goods or services to be charged to the Cardholder's account, the frequency of the recurring charges and the duration of time for which such Cardholder's permission is granted. In the went a Recurring Transaction is renewed, the Cardholder shall complete and deliver to Merchant a subsequent order form for continuation of such goods or services to be charged to the Cardholder's account. A Recurring Transaction may not include partial payments made to Merchant for goods or services purchased in a single Transaction, nor may it be used for periodic payments of goods or services on which Merchant assesses additional finance charges. A copy of the order form must be retained for the duration of the recurring charges and provided in response to Provider's request. In addition, Merchant must record, retain, and promptly produce upon request the "ship to address' and address verification service code (where applicable) for each transaction. Merchant must not complete an initial or subsequent Recurring Transaction afer receiving a cancellation notice from the Cardholder, the Card Issuer, Provider or other parry or a response that the Card is not to be honored. 2.25 Limited Accentnnce. (a) If appropriately indicated on the Merchant Application, Merchant shall be a limited acceptance merchant, which means that Merchant has elected to accept only certain Visa and MasterCard Cud types as indicated on the Merchant Application, or via later notification. The Visa or MasterCard credit acceptance option on the Merchant Application refers to Visa credit and business transactions, and is what MasterCard refers to as "Other Card" transactions. Notwithstanding anything to the contrary in the Merchant Application, Merchant can elect (i) to accept only Visa or MasterCard non -PIN based debii/stored value/electronic benefit transactions (sometimes referred to as "signature debit" transactions, whether or not an actual signature is required), (ii) to accept only Visa or MasterCard Credit transactions, or (iii) to accept all Visa or MasterCard credit and signature debit transactions; provided, however, that a Merchant who accepts any Visa or MasterCard Card types must accept all valid Visa or bfasterCard Card types issued by a non -U.S. issuer. lvferchant is not required to accept Cards of Card Networks other than Visa or MasterCard in order to accept Visa or MasterCard Cards (except that transactions using Diner's International Cards which also tarty the MasterCard Mark must be accepted if Mcrchant accepts MasterCard Card transactions of the same type). Provider has no obligation other than those expressly provided under the Network Rules and applicable law as they may relate to limited acceptance. Provider's obligations do not include policing card types at the point-of-sale. Merchant will be solely responsible for the implementation of is decision for limited acceptance including but not limited to policing the Card Network type(s) of transactions at the point -of --sale submitted for processing by Provider. Should Merchant submit a Transaction for processing for a card type it has indicated it does not wish to accept, Provider may process that Transaction and Merchant will pay the applicable fees, charges, and assessments associated with that Transaction. Merchant will comply with any applicable Laws and Network Rules and other applicable rules and regulations for the Card Network type processed. (b) If Mcrchant has chosen to accept Discover Cards in the Merchant Application, Merchant must accept Discover Cards at all Merchant establishments, including in payment for purchases ofgoods and services, for charitable contributions and for Cash Over Transactions (subject to the terms of the Network Rules and other applicable rules and regulations), when properly presented for payment by a Cudholder. Subject to this section, Merchant must create a Transaction Record for each Discover Card Transaction and deliver at least one copy of the Transaction Record to the Cardholder. A Merchant may issue a Cash Over (subject to the terms of the Network Rules) in connection with a Discover Card Transaction. Merchant must deliver a single Authorization request for the aggregate total of the goods/services purchase amount and the Cash Over amount. In addition, theTrmsaction Record must include both the purchase amount and the Cash Over amount. ARTICLE III - PRESENTMENT, PAYMENT, CIIARGEBACK 3.01 Accentnnce. Bank will accept from Merchant all Sales Drafts deposited by Merchant under the terms of this Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts. Merchant is required to transmit Sales Drafts and Credit Vouchers to Bank or its processing vendor on the same of nest business immediately following the day that such Sales Drafts and Credit Vouchers have been originated. All presentment and assignment of Sales Dmfs, collection therefore and re -assignment or rejection of such Sales Drafts are subject to the terms of this Agreement and regulations of the Card Associations. Bank will only provisionally credit the value of collected Sales Drafts to Merchant's Account and reserves the right to adjust amounts collected to refect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges. Reserve deposits, negative Sales Draft batch deposits and items for which Bank did not receive final payment. 3.02 Endorsement. The presentment of Sales DmRs to Bank for collection and payment is Merchant's agreement to sell and assign all its right. title and interest in each Sales Draft completed in conformity with Bank's acceptance procedures and shall constitute an endorsement by Merchant to Dank of such Sales Drafts. Merchant hereby authorizes Bank to supply such endorsement on Merchant's behalf. 3.03 I'mhihited Payments. Bank will have the sole right to receive payment of any Sales Draft presented by Merchant and paid by Bank unless and until there is a Chargeback . Unless specifically unauthorized in writing by Bank, Merchant will not make or attempt to make any wllections on any Sales Draf . including Chargebacks, and will hold in rust for Bank and will promptly deliver in kind to Bank any payment Merchant receives, in whole or in part, of the amount of any accepted Transaction, together with the Cardholders name and account number and any correspondence accompanying the payment. 3.04 Charo_ehncks. Merchant will accept for chargeback any sale for which the Cardholder disputes the validity of the sale according to prevailing Card Association regulations , or a Card issuer or Bank or ETS CORPORATION determines that Merchant has in any way failed to comply with Card Association regulations or Bank's or ETS CORPORATION's procedures in accepting a Card and presenting the resulting Sales Draft to Bank for purchase. Section 2.03 notwithstanding, Bank may charge back the amount of a Cud sale for which the Cardholder disputes that authorizing the charge if Merchant failed to obtain the Card Imprint or the Cardholder's signature. Merchant may not initiate a sale Transaction in an attempt to collect a Chusclaack. Merchant will pay the current published fees for each Chargeback as listed on Schedule A. 3.05 Chnreeback Reserve Account. Notvithsending anything to the contrary in this Agreement, Bank or ETS CORPORATION may establish (without notice to Merchant) and Merchant agrees to fund a non-interest bearing chargeback reserve account (the "Reserve Account"), or demand other security or raise any discount, tmnsaction or other fees. This amount maybe established at anytime or for any reason. Specific examples might include: (a) Merchant engages in any charge processing that creates an overcharge to a Cardholder by duplicating charges; (b) any activity designed by Merchant to circumvent a "call center' message when attempting to process a transaction; (c) Merchant breaches this Agreement, violates any representation, covenant or warranty herein, violates any applicable Card Association rule or applicable law; (d) Merchant's application is in any way inaccurate or becomes inaccurate subsequent to Bank's approval of the application; (e) Merchant changes its type of business without Bank's prior written approval; (f) fraud, merchant processes an unauthorized charge, or other action that violates Bank's or ETS CORPORATION's applicable risk management standards or is likely to cause a loss; (g) Merchant has chargebacks exceeding 1% of the total number of transactions completed by merchant in any 30 calendar day period; (h) excessive numbers of requests from consumers or issuing banks to retrieve documentation; (i) Merchani s financial stability is in question or merchant ceases doing business; or 6) Merchant terminates this Agreement. Once the Reserve Account is established, collected funds will be placed in the Reserve Account. Before releasing funds afer this Agreement is terminated, Merchant will pay any equipment cancellation fees and any outstanding charges, losses or amounts, and Chargebacks for which Merchant has provided indemnification under this Agreement. Further, Bank or ETS CORPORATION may require Merchant to deposit additional amounts based upon Merchant's processing history and/or anticipated risk of loss to Bank or ETS CORPORATION into the Reserve Account. Once established, unless Bank or ETS CORPORATION determines otherwise at its sole discretion, the Reserve Amount will remain in place for 180 days and a reasonable period thereafter during which Cardholder disputes may remain valid underapplicable Card Association rules. The provisions of this Agreement relating to account debits and credits apply to the Reserve Account and survive this Agreement's termination until Bank terminate the Reserve Account. Any balance remaining after chargeback rights have expired and all of Bank's or ETS CORPORATION's other expenses , losses and damages have been paid will be disbursed to Merchant. ARTICLE IV - TERNIINATION AND EFFECT 0FTERMINATION 4.01 Term. This Agreement will be effective once Bank and ETS Corporation accepts it and will continue until party has provided written notice of cancellation/termination given no less than thirty (30) days prior to termination orsemiees. 4.02 Termination. (a) Without Cause. Bank or ETS CORPORATION may terminate this Agreement, without cause, upon 30 days advance written notice to Merchant- (b) erchant(b) For Cause. Bank or ETS CORPORATION may terminate this Agreement in its sole disaction, effective immediately, upon written or verbal notice, or by closing Merchant's point-of-sale terminal, if Bank or ETS CORPORATION reasonably determines that any of the following conditions exist: (i) Merchant has violated any provision of this Agreement; (ii) there is a material adverse change in Merchant's financial condition; (iii) if any rase or proceeding is commenced by or against Merchant under any federal or sate law dealing with insolvency, bankruptcy, receivership or other debt relief; (iv) any information which Merchant provided to Bank or ETS CORPORATION, including Application information, was false, incomplete or misleading when received; (v) at any time during the term of this Agreement. Merchant has had a monthly ratio of Chargebacks to total transactions exceeding Card Association requirements or 1%. or Chargebacks exceed 3% of any monthly dollar amount of total transactions; (vi) an overdraft in the settlement account exists for more than three days; (vii) Merchant or any of Merchant's officers or employees has been involved in processing transactions arising from fraudulent or otherwise unauthorized transactions ; (viii) Merchant is or will be unable or unwilling to perform its obligations under this Agreement or applicable law; (ix) Merchant has failed to timely pay Bank or ETS CORPORATION any amount due; (x) Merchant has failed to promptly perform or discharge any obligation under its settlement account or the Reserve Account; (xi) any of Merchant's representations or warranties =de in connection with this Agreement was not true or accurate when given; (xii) Merchant has defaulted on any agreement it has with the Bank or ETS CORPORATION; (xiii) Bank or ETS CORPORATION is served with legal process seeking to attach or garnish any of Merchant's funds or property in Bank's or ETS CORPORATION's possession. and Merchant does not satisfy or appeal the legal process within 15 days of such service; (xiv) any Card Association rules are amended in any way so that the continued existence of this Agreement would cause Bank or ETS CORPORATION to be in breach of those rules; (xv) any guaranty supporting Merchant's obligations is revoked, withdmwri, terminated or altered in any way; (xvi) if any circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Association; (xvii) termination is necessary to prevent loss to Bank or ETS CORPORATION or Card Issuers; (xviii) Merchant's type of business indicated on the Application or as conducted by Merchant could endanger the Bank's or ETS CORPORATION's safety or soundness ; (xix) Merchant's owner, officer. guarantor, or corporate entity has a separate relationship with the Bank or ETS CORPORATION and that relationship is terminated, (xx) Merchant appears on any Card Association's security reporting; or (xxi) Bank's or ETS CORPORATION's security for repayment becomes impaired. 4.03 Effect of Banknmtev. Any account or security held by Bank or ETS CORPORATION will not be subject to any preference, claim or stay by reason of bankmptcy or similar law. The parties expressly agree that the acquisition of Card Transactions hereunder is a financial accommodation and if Merchant becomes a debtor in any bankruptcy or similar proceeding , this Agreement may not be assumed or enforced by any other person and Bank or ETS CORPORATION will be excused from performance hereunder, 4.04 Effect orTerminntion. When termination becomes effective, the panies'rights and obligations existing under this Agreement survive. If this Agreement is terminated, regardless of muse, Bank or ETS CORPORATION may withhold and discontinue the disbursement for all Cards and other Merchant Transactions in the process of being collected and deposited . If Merchant is terminated for muse. Merchant acknowledges that Bank or ETS CORPORATION may be required to report Merchant's business name and the names and other identification of its principals to the MATCH file maintained by Visa. Discover, and MasterCard. Merchant expressly agrees and consents to such reporting it Merchant is lerminated for any reason requiring listing on the MATCH file. Merchant waives and will hold harmless Bank or ETS CORPORATION from any claims that Merchant may raise as a result of Bank's or ETS CORPORATION's MATCH file reporting. Merchant will also immediately cease requesting Authorizations. If Merchant obtains any Authorization after termination, the fact that any Authorization was requested or obtained will not reinstate this Agreement. Further, Merchant will return all Bank or ETS CORPORATION property, forms, or equipment. All obligations for Transaction prior to termination (including payment for Chargebacks and Bank's or ETS CORPORATION's expenses relating to Chargebacks) survive termination. Bank or ETS CORPORATION is not liable to Merchant for damages (including prospective sales or profits) due to termination. Following termination, Merchant will upon request provide Bank or ETS CORPORATION with all original and electronic copies of Sales Drafts and Credit Vouchers that have been retained by Merchant u of the date of termination . Upon termination, any amounts due to Bank or ETS CORPORATION will accelerate and be immediately due and payable, without any notice, declaration or other act whatsoever by Bank or ETS CORPORATION. The parties agree that if this Agreement is terminated before completion of the initial term of this Agreement for any reason other than a material uncured brach by Bank or ETS CORPORATION , Merchant will pay Bank or ETS CORPORATION damages determined by (a) computing the number of months remaining from the date of termination to the end of the then current term, and (b) multiplying that number by the average monthly processing fees and adding Bank's or EIS CORPORATION's costs and attorneys' fees. Merchant agrees that these damages are not a penalty but ate a rmsonable computation of the financial hum caused by the termination of this Agreement. Bank's or ETS CORPORATION's rights ortermination arc non -cumulative. ARTICLE V- MISCELLANEOUS 5.01 Account 1llonitorine. Merchant acknowledges that ETS CORPORATION and/or Bank will monitor Merchant's daily deposit activity. Merchant agrees that Bank may upon reasonable grounds suspend the disbursement of Merchant's funds for any reasonable period of time required to investigate suspicious or unusual deposit activity. ETS CORPORATION and/or Bank will make good faith efforts to notify Merchant promptly. ETS CORPORATION and/or Bank will not be liability for any losses, either director indirect, which Merchant may attribute to any suspension of funds disbursement. 5.02 Forms. Merchant will use only such forms or modes of transmission of Sales Drafts and Credit Vouchers as are provided or approved in advance by Bank or ETS CORPORATION. and Merchant will not use such forms other than in connection with Card Transactions. 5.03 Indemnification. Merchant will defend, indemnify and hold Bank and ETS CORPORATION and its officers, directors, members, shareholders, partners, employees, agent. subconuactorsand representatives harmless from and against any and all fines, penalties, claims, damages, expenses, liabilities or fees of any nature whatsoever, including attorneys' fees and cost ("Damages'), asserted against or incurred by Bank and ETS CORPORATION arising out of, relating to or resulting from, either directly or indirectly: (a) a breach of the security of the system safeguarding Cardholder Information resulting in unauthorized access to Cardholder Information; (b) a brach of any repraenation, warranty or term of this Agreement, including, but not limited to, the data security provisions by Merchant or any service provider, subcontractor or agent of Merchant; (c) the negligence, gross negligence or willful misconduct of Merchant in the performance of it obligations under this Agreement, including, but not limited to, the data security provisions; (d) any violation of applimble federal and state laws, rules, regulations and guidance and Card Association rules by Merchant; and (e) all third parry claims arising from the foregoing. Notwithstanding the preceding, Merchant is not liable to Bank or ETS CORPORATION if Damages are mused by, related to or arise out of Bank's or ETS CORPORATION's negligence, gross negligence or willful misconduct or Bank's or ETS CORPORATION's breach of this Agreement. Merchant will promptly reimburse Bank or ETS CORPORATION for any assessment, fines, fees or penalties imposed by the Card Association in connection with this Agreement, including the data security provisions, and authorizes Bank or ETS CORPORATION to deduct any such sums from amount to be cleared and settled with Merchant. 5.04 Records. In addition to any records merchant routinely famished to Bank or ETS CORPORATION pursuant to this Agreement, Merchant will preserve a copy of the actual paper Sales Drafts and Credit Vouchers and any written authorization of the Cardholder for at least two (2) ymrs after the date Merchant present the Transaction to Bank. 5.05 Requests for Conies. Immediately upon receipt of any request by Bank or ETS CORPORATION, Merchant will provide either the actual paper Sales Draft ora legible copy thereof (in size comparable to the actual Sales Draft) and any other documentary evidence available to Merchant and reasonably requested by Bank or ETS CORPOWNTION to meet Bank's and ETS CORPORATION's obligations under law (including its obligations under the Fair Credit Billing Act) or otherwise to respond to questions concerning Cardholder account. 5.06 Compliance with Law. Merchant will comply with all lases applimble to Merchant, Merchant's business and any Card Transaction, including without limitation all state and federal consumer credit and consumer protection statutes and regulations. 5.07 Fees and Charges. Merchant will pay to Bank or ETS CORPORATION the fees and charges set forth on Schedule A including any additional charges applied to transactions that fail to meet Card Association requirement for the lowest interchange levels. Merchant's Account will be debited through ACH or withheld from daily payment to Merchant for such amount and for any other fees, charges or adjustments incurred by Merchant and associated with processing services. Bank or ETS CORPORATION may change fees, including adding fees for additional services utilized by Merchant. upon 30 days written notice to Merchant 5.08 Security Interest. To secure payment of Merchant's obligations under this Agreement. Merchant grants to Bank and ETS CORPORATION a security interest in all now existing or hereafter acquired: (a) Transactions, Sales Drafts, Credit Vouchers and other items submitted to Bank and ETS CORPORATION for processing by or for Merchant; (b) amounts receivable and payment rights relating to or arising from this Agreement, including 211 amounts due Merchant (including any rights to receive credits or payments hereunder); (e) accounts (including without limitation all deposit amounts) maintained with the Bank or ETS CORPORATION or any institution other than Bank or EIS CORPORATION, including the Reserve Account, in the name of or for the benefit of, Merchant or any guarantor of Merchant's obligations under this Agreement; (d) deposits, regardless of source, to Merchant's or any guarantor's amounts with Bank or ETS CORPORATION or any institution other than Bank or ETS CORPORATION, including the Reserve Account; (e) all deposits and all other property and funds deposited by Merchant or withheld by Bank or ETS CORPORATION, including funds and property withheld as the result of security monitoring; and (f) proceeds of the foregoing. if Bank or ETS CORPORATION reasonably determines that Merchant has breached any obligation under this Agreement, or that proceeds of Merchant's future card sales are unlikely to cover anticipated Chargebacks, credits, fees and adjustments, as reasonably determined by Bank or ETS CORPORATION (whether because this Agreement has been terminated or for any other reason). Bank or ETS CORPORATION may setoff or otherwise exercise its security interest without notice or demand by immediately withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under applicable laws, including the Utah Uniform Commercial Code, or in equity. In addition to the collateral pledged above. Bank or ETS CORPORATION may require Merchant to furnish such other and different security as Bank or ETS CORPORATION deems appropriate in its sole discretion to secure Merchant's obligations under this Agreement. Bank or ETS CORPORATION may fully or partially prohibit withdrawal by Merchant of funds from Merchant's deposit accounts maintained with Bank or ETS CORPORATION or financial institutions other than Bank or ETS CORPORATION, pending Bank's or ETS CORPORATION's determination from time to time to exercise its rights as a secured party against such accounts in partial or full payment of blerchani s obligations to Bank or ETS CORPORATION . Merchant will execute any documents and take any actions required to comply with and perfect any security interest under this paragraph, at Merchant's cost. Merchant represents and warrants that no other party has a security interest or lien in any of the collateral pledged above, and Merchant will obtain Bank's or ETS CORPORATION's written consent before it grants a lien or security interest in that pledged collateral to any other person. Merchant shall not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future Transaction reeeiwmbhes to Provider, its affiliated entities and/or any other cash advance funding source that partners with Provider or its affiliated entities, without consent from any Card Network. Notwithstanding the foregoing, Provider prohibits Merchant from selling or assigning future Transaction receivables to any third party without Provider's prior written consent. 5.09 Aindirications to Aereement. This Agreement is subject to amendment to conform with Card Association regulations, as amended from time to time. From time to time Bank and ETS CORPORATION may amend any provision or provisions of this Agreement, including, without limitation, those relating to the discount rate or to other fees and charges payable by Merchant by mailing written notice to Merchant of the amendment at least thirty (30) days prior to the effective date of the amendments, and the amendment will become effective unless Bank or ETS CORPORATION receives Merchant's notice of termination of this Agreement before such effective date. Amendments required due to changes in either Card Association's rules and regulations or any law or judicial decision may become effective on such shorter period of time as Bank may specify if necessary to comply with the applicable rule . regulation, law or decision. 5.10 yy'arranty Disclaimer. ETS CORPORATION MAKES NO WARRANTIES REGARDING THE USE, OPERATION OR PERFORMANCE OR NON-PERFORMANCE OF SOFTWARE AND SYSTEMS UTILIZED FOR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, AND ETS CORPORATION E,\'PRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE 5.11 Limitation of Linhilitv. Bank's and ETS CORPORATION's liability with respect to any Card Transaction may not exceed the amount of the Sala Draft in connection with that Transaction less any applicable foes and charges. Bank and ETS CORPORATION is not liable for any incidental or consequential damages whatsoever. Merchant waives all claims against Bank and ETS CORPORATION for any loss, claim, demand, penalty, action, delay, cost or expense ( including reasonable attomcys' fees) of any kind unless Merchant provides written notice to ETS CORPORATION or Bank of the occurrence that gave rise to the alleged liability within 30 days after Merchant knew or should have known of the occurrence. Merchant will indemnify and hold Bank and ETS CORPORATION harmless from any claim relating to any Sales Draft paid for by Bank as may be made by anyone by sway of defense , dispute, offset, counterclaim or affirmative action, or for any damages of or losses that Bank or ETS CORPORATION may incur as a result of Merchant's breach of this Agreement. Further, Merchant will reimburse Bank or ETS CORPORATION for all expenses and costs, including attomcys' fees, with regard thereto. 5.12 Waiver. Failure by Bank or ETS CORPORATION 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. 5.13 Written Notims. All written notices and other written communications required or permitted under this Agreement will be deemed delivered immediately when hand -delivered or sent via facsimile and the sender obtains a fax confirmation receipt, and upon mailing when sent first class mail, postage prepaid, addressed as follows: (a) ETS CORPORATION, 20135 Lakeview Center Plaza, 4111 Floor Ashburn, VA 20147 (b) Bank: Merrick Bank Corporation, 10705 South Jordan Gateway, Suite 200, South Jordan, UT84095, Attn: SVP ofMcmhant Services, Facsimile: (516)576-8741; (c) If to Merchant: At the facsimile number or address provided as the billing address and to the contact listed on the Merchant Application. 5.14 Clhoice of Lnw; Jurisdiction. Any claim or cause of action arising out of this Agreement against Merrick Bank must be initiated and maintained exclusively in the state or federal courts located in Salt Lake County, Utah. Any claim or cause of action arising out of this Agreement against ETS Corporation must be initiated and maintained exclusively in the state or federal courts located in Loudoun County, Virginia. 5.15 Entire Aereement; Assienability. This Agreement expresses the entire understanding of the parties with respect to the subject matter hereof and except as provided herein , maybe modified only in writing executed by Bank and ETS CORPORATION and Merchant. This Agreement may not be assigned, directly or by operation of law, without Bank's and ETS CORPORATION's prior written consent This Agreement will be binding upon and inure to the benefit of the parties'respective heirs, personal representatives, successors and assigns. 5.16 Deposit Account. Merchant will at all times maintain an Account at a bank that is a member of the Federal Reserve ACH system and will provide Bank and ETS CORPORATION with proper authorization to debit the Account. All credits for collected funds and debits for fees, payments and Chargebacks and other amounts for which Merchant is liable under the terms of this Agreement will be made to the Account. Merchant may not close or change the Account without written notice to Bank and ETS CORPORATION. Merchant will be solely liable for all fees and costs associated with the Account and for all overdrafts. Merchant hereby grants to Bank and ETS CORPORATION a security interest in the Account to the extent of any and all fees, payments and Chargebacks and other amounts due which may arise under this Agreement, and Merchant will execute any document and obtain any consents or waivers from the bank at which the Account is maintained as requested by Bank and ETS CORPORATION to protect its security interests therein. 5.17 Credit and Financial Tnnuirics: Additional Locations: Inspections. Bank or ETS CORPORATION may make, at any time, any credit inquires which it may consider necessary to accept or review acceptance of this Agreement or investigate Merchant's deposit or Card acceptance activities subsequent to acceptance of this Agreement. Such inquiries may include, but are not limited to, a credit and/or criminal check ofthe business including its proprietor, partners, principal owners or shareholders or officers. Upon Bank's or and EIS CORPORATION's request. Merchant will provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business ax returns and other financial information as Bank or ETS CORPORATION may consider necessary to perform initial or periodic reviews of Merchant's financial stability and business practices. Merchant may accept Cards only at locations approved by Bank or ETS CORPORATION. Additional locations may be added, subject to Bank's or ETS CORPORATION's approval. Any parry to this Agreement may delete any location by providing notice as provided herein. Merchant will permit Bank or ETS CORPORATION, at any time and from time to time, to inspect locations to confirm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities . equipment, inventory, records and license or permit (where necessary) to conduct its business. However, nothing in this paragraph my be deemed to waive Merchant's obligation to comply in all respects with the terms of this Agreement. Bank or ETS CORPORATION, its internal and external auditors, and its regulators may audit compliance with this Agreement, compliance with federal and state laws, roles, regulations and guidance applicable to the services, Card acceptance and Transaction processing, and data security provisions, including Card Association compliance. Merchant will make available its records maintained and produced under this Agreement, and Merchant's facifitics will be made accessible, upon notice during normal business hours for examination and audit Nothing in this section may be construed to require Merchant to give access to its facilites, personnel or records in a manner that unreasonably interferes with its business operations. Each party will bear its expenses crony audit 5.18 Nlmrketine or Non-Bnnkcard Services. From time to time, Bank may offer to Merchant certain additional products and services which mayor may not be related to the processing of cmdit card Transactions. if such offers are made. Merchant may decline the offers or be deemed to have accepted the offers and be liable for payment therefore. 5.19 Force Ainieure. The parties will be released from liability hereunder if they fail to perform any obligation where the failure occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, communications failure, sabotage, sear, military operation, terrorism, national emergency, mechanical or electronic breakdown, civil commotion or the order, requisition, request or recommendation of any governmental authority, or either party's compliance therewith, or governmental regulation, or priority, or any other similar cause beyond either party's reasonable control. 5.20 No Third Party Benefieinrv. No other person or entity maybe deemed to be a third party beneficiary of this Agreement. 5.21 Severability; Connict with Network Rules. If any provision in this Agreement is for any reason held to be invalid or unenforceable, no other provision shall be effected thereby, and this Agreement shall be corstmed as if the invalid or unenforceable provision had never been apart of it In the event of a conflict between this Agreement and the Network Rules, the Network Rules shall govern and control. 5.22 IRS Renortine Tnfo—tition. Pursuant to Section 605OW ofthe Internal Revenue Code, merchant acquiring entities such as Bank and third -party settlement organimtions are required to file an information return reflecting all payment card transactions and third -party network transactions occurring in a calendar year. This requirement applies to returns for all calendar years after December 31, 2010 and Merchant will receive a farm 1099. K reporting Merchani s gross transaction amounts for each calendar year. In addition, amounts payable under Section 6050 W are subject to backup withholding requirements. Merchant acquirers such as Bank, either itself or through third parties, are required to perform backup withholding by deducting and withholding income tax from reportable transactions if (a) the payee fails to provide the payee's taxpayer identification number (TIN) to the merchant acquirer, or (b) if the IRS notifies the merchant acquirer that the TIN (when matched with the name) provided by the payee is incorrect. Accordingly, to avoid backup withholding, it is very important that Merchant provides Bank with the corect name and TIN that Merchant uses when filing its income tax return that includes the transactions for Merchani s business. In addition to the fees set forth on the Merchant Application, if hferchant fails to comply with the obligations set forth in this section, Provider may charge Merchant additional amounts determined by Provider and may pass through any additional fines, costs or expenses incurred by Provider. 5.23 Confidentinli1v Merchant shall protect all information or other items proprietary to Provider that Merchant obtains knowledge ofor access tons a result of Provider's provision of the services pursuant to this Agreement (collectively, "Provider Confidential Information") from unauthorized disclosure, publication, or dissemination with the same standard oFcare and discretion Merchant uses to protect similar confidential information of Merchant's own, but in no event less than reasonable care. Furthermore, Merchant shall not use, reproduce, distribute, disclose, or otherwise disseminate Provider Confidential Information, except in connection with the performance of MerchanPs obligations under this Agreement. The Provider Confidential Information described in the previous sentence, shall include, but not be limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): scientific, technical, or business information, product makeup lists, ideas, concepts, designs, drawings, techniques, plans, calculations, system designs, formulae, algorithms, programs, software (source and object code), hardware, manuals, test procedures and results, identity and description of computerized records, identity and description of suppliers, customer lists, processes, procedures, trade secrets, "know-how;' marketing techniques and material, marketing and development plans, price lists, pricing policies, and all other Financial information. The obligations of non -disclosure provided hereunder shall continue during the Term and, (i) with respect to Provider Confidential Information that does not constitute a trade secret, for a period of three (3) years thereafter and, (ii) with respect to Provider Confidential Information that rises to the level of a trade secret under applicable taw, for such period of time thermfier as the Provider Confidential Information shall retain its status as a trade secret under applicable law, and no less than three (3) years thereafter. Terms Below Are Additional Terms Applicable Specifically to American Express Card Acceptance (capitalized terms below not defined elsewhere in the Agreement shall have the meanings assigned in the American Express Network Rules). With respect to participation in an American Express acceptance program in the event of a conflict between the terms below and other terms of this Agreement the terms below shall control with respect to American Express transactions only. Merchant shall be bound by American Express Network Rules including the Merchant Operating Guide: «'cow.americanexpress.com/merchantopguide. A5.2.1 Transaction Dim. Merchant authorizes Provider and/or its affiliates to submit American Express Transactions to, and receive settlement on such Transactions from. American Express or Bank on behalf of Merchant. A5.25 Marketing Messnge Ont -Our. Merchant may opt -out of receiving future commercial marketing communications from American Express by contacting Provider. 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. A5.26 Conversion to American Express Direct Merchnni. 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' then -current Card Acceptance Agreement; and (it) American Express will set pricing and other fees payable by Merchant A5.27 Americus Express as Third Party Reneficiarv. Notwithstanding anything in the Agreement to the contrary, American Express shall 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. A5.28 American Express Ont-Oul. Merchant may opt out of accepting American Express at any time without directly or indirectly affecting its rights to accept Cards baring Marks of other Card Networks. A5.29 Refund Policies. Merchant's refund policies for American Express purchases must be at last as favorable as its refund policy for purchase on any other Card Network, and the refund policy must be disclosed to Cardholders at the time of purchase and in compliance with law. 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. A530 Establishment Closing. If Merchant closes any of its Esablishments, Merchant most follow these guidelines: (i) notify ISO immediately; (ii) policies must be conveyed to the Cardholder prior to completion of the Transaction and printed on the copy of a receipt or Transaction record the Cardholder signs: (iii) if not providing refunds or exchanges, post notices indicating that all sales are final (eg., at the front doors, by the ash registers, on the Transaction record and on websites and catalogs); (iv) return and cancellation policies must be clearly disclosed at the time of sale; and (v) for Advance Payment Charges or Delayed Delivery Charges, Merchant must either deliver the goods or services for which Merchant has already charged the Cardholder or issue Credit for any portion of the Transaction for which Merchant has not delivered the goods or services . BANK DISCLOSURE Member Bank Information: Merrick Bank, 135 Crossways Park Dr North, Suite A100 Woodbury, NY 11797 e Phone (800) 267-2256 Important Bank Responsibilities: I. Merrick Bank is the only cnlity approved to c 1,nd acceptance of Visa products directly to a Marchand. 2. Merrick Bank is responsible for educating Merchants on pertinent Visa opemtlng regulations ssith sshichMerch oras most comply 3. Merrick Bank, not EfS CORPORATION most hold, administer and control all reserve foods derivo d from scull—L Merchant Information: Refer to Merchant Application Important Merchant Responsibilities: I. Complying with cardholder dam security and slomge requiremerum 2. Mainminingfraud and chargcbacks below established thresholds. 4. Merrick Bank, not EPS CORPORATION, most hold, administer and control s,tticmen1 funds for the McmbanL 5. Merrick Bank most be a principal (signer) to the Merchant Agreement 3. Rn ies ing and understanding the Merchant Agreement. 4. Complying mith Viss's operating regulations. The responsibilities listed above do not supersede turns of the Merchant Agreement and are pmsided to mare the Merchant understands some important obligations of each party mal that the Visa Member should the Merchant have /army problems. ���/// ��' Principal ql: (/V y� / Principal W2: i( LAURIE HADLEY Print Nan c: Date: � Print Namc: Merrick Bank - is the ultimate authority Date: