R2007-145 2007-10-08
RESOLUTION NO. R2007 -145
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A CONTRACT FOR CREDIT CARD PAYMENT SERVICES.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for credit card payment services, a copy of which
is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby
authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a contract for credit card payment services.
PASSED, APPROVED and ADOPTED this the 8th day of October, A.D., 2007.
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MAYOR
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APPROVED AS TO FORM:
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DARRIN M. COKER
CITY ATTORNEY
R2007 -145
File No" 07-0074
une - \pn n ere ange ae e e ue
MasterCard Cards Other Cards Debit Cards World Cards World Elite Enhanced
Merit 3 1.58 % + $ 0.10 1.05 % + $ 0.15 1.73 % + $ 0.10 2.20 % + $ 0.10 1.;'3 % + $ 0.10
Key Entered 1.89%+$0.10 1.64 % + $ 0.16 2.05 % + $ 0.10 2.50 % + $ 0.10 2.04 % + $ 0.10
Merit 1 1.89 % + $ 0.10 1.64 % + $ 0.16 2.05 % + $ 0.10 2.50 % + $ 0.10 2.04 % + $ 0.10
Standard 2.95 % + $ 0.10 1.90 % + $ 0.25 2.95 % + $ 0.10 3.25 % + $ 0.10 2.115 % + $ 0.10
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2007 A '120081 t
h
RtShd
MasterCard Municipal Other Cards Debit Cards World Cards World Elite Enhanced
'ubllc Sec/Emerglng Market 1.55%+$0.10 0.80 % + $ 0.25 1.55 % + $ 0.10 1.55 % + $ 0.10 Ui5 %+ $ 0.10
Utility 0.00 % + $ 0.75 0.00 % + $ 0.75 0.00 % + $ 0.75 0.00 % + $ 0.75 O.CIO % + $ 0.75
Services Industries 1.15 % + $ 0.05 1.15 % + $ 0.05 1.15 % + $ 0.05 1.15 % + $ 0.05 1.15 % + $ 0.05
MasterCard T & E Other Cards Debit Cards World Cards World Elite I:nhanced
Restaurant ...-- 1.19%+$0.10 1.73 % + $ 0.10 1.73 % + $ 0.10 . - - - .
Convenience Purchases 1.90 % + $ 0.00 -.._- 2.00 % + $ 0.00 2.00 % + $ 0.00 1.90 % + $ 0.00
Small Ticket - - - - - 1.55 % + $ 0.04 - - - -- - - - - - ----.
World T&E - - - - - .---- 2.30 % + $ 0.10 2.75 % + $ 0.10 - - - - -
T.I.P.S. Hotel 1.58%+$0.10 1.36 % + $ 0.15 ----- - - - - - 1.90 % + $ 0.10
T.I.P.S. Car Rental 1.58 % + $ 0.10 1.36 % + $ 0.15 ----- ----- 1.90 % + $ 0.10
MasterCard Commercial Corporate Business World/Ellte
Face To Face 2.05 % + $ 0.00 2.20 % + $ 0.00
Data Rate III 1.75 % + $ 0.00 1.90 % + $ 0.00 MC International Corporate Business World/Ellte
Data Rate II 2.05 % + $ 0.00 2.20 % + $ 0.00 Electronic 1.37 % + $ 0.00 - - - --
Data Rate I 2.65 % + $ 0.10 2.80 % + $ 0.10 Standard 2.10 % + $ 0.10 - - - --
Standard 2.70%+$0.10 2.85 % + $ 0.10 Corp P-Card Data II 1.55 % + $ 0.00 1.55 % + $ 0.00
T&EI 2.35 % + $ 0.00 2.50 % + $ 0.00 Corp P-Card Data I 2.15 % + $ 0.00 2.15 % + $ 0.00
T&E II 2.20 %+ $0.10 2.35 % + $ 0.10 Corporate 2.15 % + $ 0.00 2.15 % + $ 0.00
T&EIII 2.15%+$0.10 ' 2.30 % + $ 0.10
~astercard Transactions are subject to the Dues & Assessments Fee of 0.0950%
. Visa Cards Other Cards Debit Cards Rewards Miscellaneous Fee!;
CPS Retail 1.54 % + $ 0.10 1.03 % + $ 0.15 1.65 % + $ 0.10 Setuo Fee $ 0.00
CPS Keyed 1.85 % + $ 0.10 1.60 % + $ 0.15 1.90 % + $ 0.10 Monthly Service Fee $ 7.50
CPS Card Not Present 1.85 % + $ 0.10 1.60 % + $ 0.15 1.90 % + $ 0.10 Monthly Minimum $ 10.00
E.I.R.F. 2.30 % + $ 0.10 1.75 % + $ 0.20 1.90 % + $ 0.10 Interchange Rate MARKUP % 0.20
Standard 2.70 % + $ 0.10 1.90 % + $ 0.25 1.90 % + $ 0.10 Interchange Per Item MARKUP $ 0.05
Preferred eCommerce 1.80 % + $ 0.10 1.55 % + $ 0.15 1.90 % + $ 0.10 PCI NON-Comoliance Fee % 0.00
Basic eCommerce 1.85 % + $ 0.10 1.60 % + $ 0.15 1.90 % + $ 0.10 Local AuthlDed $ 0.10
Wats AuthlDecl $ 0.15
! Visa Municipal Other Cards Debit Cards Rewards T&E Local Auth/Ded $ 0.20
CPS Retail 2 I 1.43 % + $ 0.05 I 0.80 % + $ 0.25 I 1.90 % + $ 0.10 T&E Wats AuthlDecl $ 0.25
;PS Retail 2 Select Markets I 1.43 % + $ 0.05 I 0.80 % + $ 0.25 1.90 % + $ 0.10 Voice Auth $ 0.95
Utility Fee Program 0.00 % + $ 0.75 I 0.00 % + $ 0.75 1.90 % + $ 0.10 Debit Auth/Ded $ 0.00
Debit Caoture $ 0.00
Visa T & E Other Cards Debit Cards , Internet Gatewav $ 0.00
Restaurant 1.54 % + $ 0.10 1.19%+$0.10 C") Internet Per Item $ 0.00
Express Payment 2.00 % + $ 0.02 1.95 % + $ 0.02 Charaebacks $ 15.00
Small Ticket 1.65 % + $ 0.04 1.55 % + $ 0.04 ACH Reiects $ 30.00
Hotel Card Present 1.58 % + $ 0.10 1.36 % + $ 0.15 Manuallmorinter $ 35.00
Hotel Card Not Present 1.58 % + $ 0.10 1.36 % + $ 0.15 MID Reportina Fee $ 8.00 ea
Car Rental Card Present 1.58 %+ $0.10 1.36%+$0.15
:ar Rental Card Not Present 1.58 % + $ 0.10 1.36 % + $ 0.15 Early Termination Fee See SE'ction 11
Visa Commercial Purchaslna Business Corp 1* Signature Preferred (") There are NO Per Item fees for the first__ Transaction(s),
Level III 1.80 % + $ 0.10 ----- ----- per calendar month!
Level II 2.00 % + $ 0.10 2.00 % + $ 0.10 2.00 % + $ 0.10 Interchange Plus FormliJla
Business 2 Business 2.10%+$0.10 2.10%+$0.10 2.10 % + $ 0.10 Me 1 Visa Rate Formula
Card Not Present 2.40 % + $ 0.10 2.25 % + $ 0.10 *2.20%+$0.10 Interchange Rate + Rate Markup = Morchant Rate
Retail 2.20 %+ $0.10 2.20 % + $ 0.10 *2.20 %+ $0.10 example {Merit 3 Other Cards} 1.58 + 0.50 = 2.08%
Electronic 2.45 % + $ 0.10 2.40 % + $ 0.10 *2.20%+$0.10 Per Item Formula
Standard 2.70%+$0.10 2.70 % + $ 0.10 *2.70%+$0.10 Interchange Per ~em + Per Item Markup = Merchant Per Item
/Isa Transactions are subject to the Dues & Assessments Fee of 0.0925%
lOt agrees to pay actual Interchange Rates detailed above, plus Dues and Assessments, plus all applicable fees in the Miscellaneous Fees section.
he parties hereto agree to abide by the terms and conditions contained In the Merchant Processing Agreement to which this signature page Is attached and Merchant agre
Ignlng this document that Merchant has received a copy of the Merchant Processing Agreement and Operating Procedures Guide.
IERCHANT: The undersigned hereby authorizes NCMIC Finance Corporation and/or Automated Merchant Systems. Inc. to Investigate the credit of each person listed on tt
:hant Application and Fee Schedule and represents that he/she has the authority to provide such authorization and to execute this Agreement.
ature
10 08 07
Date
Merchant'l$?ea:and
Signature of Officer/Owner
10/0H/07
DatEl
City Manager
Title
Print Name Youna Lorfi na
Bill Eisen
Title Ci tv Secretary Print Name
MERCHANT SIGNATURE AUTHORIZATION
Name of Government Entity: 1~9itY:()f~e1frlaDd~~
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The undersigned certifies and agrees to as follows:
1. The undersigned and any of the persons identified below are duly
authorized to sign this Agreement and bind the governmental entity
indicated above to it. If any official indicated below resigns or is
replaced, that official's successor(s) in office shall be deemed to have
signed this certification and the Agreement.
2. The person listed below are duly authorized to act for and on
behalf of the governmental entity indicated above in any manner relating
to this Agreement.
3. Both AMS and NCMIC may rely on the authority granted in this
certification and the undersigned official represent and warrants that this
certification shall remain in full force and effect until revoked upon written
notice to AMS.
4. The following are the names, titles and genuine signatures of the
persons authorized by this certification:
TITLE PRINT NAME /ISly)JNURE
k:~ ,
City Manaqer Bill Eisen ~
I
I have subscribed my name as the official indicated above as of
Signature:
Print Name: Bi 11 Ei sen
Title: Ci ty Manager
MERCHANT PROCESSING AGREEMENT TERMS AND CONDITIONS
This is a Merchant Processing Agreement ("Agreement") entered into as of the date accepted by Processor (defined below) and is by and among NCMIC Finance Corporation, an Iowa industlial banking
corpcration ("Member Bank"), Automated Merchant Systems, Inc, rAMS") and the govemmental entity (the "Merchant") that signed the attached Merchant Appiication.
BACKGROUND INFORMATION
Member Bank is a member of beth Visa U.S.A. Incorporated ("Visa") and MasterCard Intemational rMasterCard") (each a "Card Assocation"). Member Bank and AMS have entered intc an agreement whereby
AMS acts as Member Bank's sales agent and provides certain services to Merchant through valious third pany service providers ("TPA") (AMS and TPA shall hereinafter collectively be referred to as "Processor").
Merchant desires to accept Debit Cards and/or Other Cards as defined below. and as indicated on the Merchant Application validly issued by Visa and MasterCard. Member Bank and Processor agree to provide
such services in accordance with the terms and conditions set forth below. Accordingly, the parties to this Agreement, intending to be legally bound. agree as follows:
OPERATIVE PROVISIONS
1. Services; Operating Procedures Guide. Member Bank and Processor agree to provide to Merchant, at Merchant's U.S. locations idenmied in the Application (as defined below), bankcard processing
and settlement services (the "Services") in accordance with the terms and conditions of this Agreement and the Operating Procedures Guide, the terms of which are incorporated by refemnce and made a part of
this Agreement. Merchant agrees to use Member Bank to sponsor and process its Visa and MasterCard branded bankcard transactions.
2. Definitions. Unless otherwise provided, the capitalized terms used in this Agreement have the meanings designated in the Operating Procedures Guide. "Debit Carer means all V sa or MasterCard cards
issued by a non-U.S. bank, a Visa or MasterCard card issued by a U.S. bank that accesses a consumer's asset account within 14 days after purchase, including but not limited to storeo value, prepaid, payroll,
EBT, gift, and Visa consumer check cards. and debit cards validly issued by the debit card networks indicated on the Merchant Application such as on~ine (pIN-lJased) cards. "Other Cards" means all cards issued
by a non-U.S. bank and all Visa or MasterCard cards other than Debit Cards, induding but not limited to business and consumer credit cards and business debit cards. The category of card acceptance that you
have indicated on the Merchant Application will collectively be referred to as "Cards".
3. Card Association Regulations. All Card Transactions and this Agreement are subject to, and the parties agree to be bound by, applicable Card Association operating rules and r3gulations ("Association
Regulations"). The Associations Regulations include the Visa Cardholder Infonnation Security Program and MasterCard's Site Data Protection Program, which require annual or quarter1y self-assessments and
web infrastructure scans. Merchant is responsible for demonstrating its own, its agents, and its servicers' compliance with Association Regulations as they may be amended from time to time. Processor is not
responsible for providing copies of the Association Regulations, and makes no representations or vvarranties regarding the accuracy of any summaries of Association Regulations it may provide. Processor is not
liable for any non-compliance or any costs of such non-compliance by Merchant of any Association Regulation. If there is a conflict between this Agreement and the Association Regulations, the Association
Regulations will apply. Merchant will reimburse Processor and Member Bank immediately for any loss, liability, assessment or fine incurred arising out of Merchant's breach of this Section. AMS may not
subcontract, sublicense, assign, license, franchise or in any manner extend or transfer to any third party any right or obligation of AMS. AMS is the exclusive agent of Member Bank, and Member Bank is at all
times entirely responsible for and in control of AMS performance.
4. Fees. The Fees and other charges to be charged by Member Bank and Processor to Merchant for the services provided under this Agreement are set fonh in the Merchant Application and Fee Schedule
(the MApplication"), which is made a part of this Agreement. The Discount Rate shall be charged on all new sales (i.e. sale transactions not including "retums" or credits to cardholders). PrOC'3ssor may change such
Fees from time to time upon 30 days prior written notice to Merchant. The Fees set forth in the Application do not indude, and Merchant hereby agrees to pay, all fees, charges, penalties, fines, assessments and
additional or increased costs of any nature that may be charged by the Card Associations or other third party, whether charged to or directly or indirectly incurred by Processor in connection with matters
contemplated by the Agreement, including without limitation, adjustment fees and interchange fees.
5. Card Transactions. In addition to the requirements for Card Transactions set forth in the Operating Procedures Guide and Association Regulations, Merchant agrees that it wil not (a) deposit into its
Bank Account any Sales Draft or Credit Draft for any Card Transaction between a Cardholder and an entity other than Merchant; (b) accept cash payments from a Cardholder for previous Card Transactions; or (c)
make a cash disbursement to a Cardholder arising out of a Card Transaction or any other use of a Caret
6. Merchant's Bank Account
a. Merchant shall establish, and at all times during the term of the Agreement, maintain an Account with an Institution in order to facilitate payment of amounts due under this Agreement. which
Institution and Account shall be identified in the Application. Merchant authorizes Member Bank to credit and debit the Account via the automated clearing house ("ACH") in accordance with this Agreement. To
secure the extension of credit and Merchant's obligations under this Agreement including, without limitation, Merchant's obligation to pay chargebacks, Merchant grants to Member Bank and AMS a security
interest in its deposited Sales Drafts and all funds maintained in the Account.
b. All credits, charges and debits in connection with Card Transactions and other amounts owing under this Agreement shall be made to the Account, induding without limitation, all Fees, Adjustments
and Chargebacks. Any Fees or other charges not collected by Member Bank or Processor through a debit to the Account. for whatever reason. shall be invoiced to Merchant by Member Bank or Processor and
are due upon Merchant's receipt of such invoice.
c. If a debit or Chargeback to Merchant's Bank Account results in an overdraft, Merchant shall immediately deposit with Institution an amount sufficient to cover such overdraft and any related service
charges or fees.
d. All Items credited and debited to Merchant's Bank Account(s) are subject to review. velification and acceptance by Member Bank and Processor. Member Bank may withhold crediting of questionable
items pending verification, investigation and confinnation
e. If Merchant desires to change its Account, Merchant shall notify Member Bank and Processor in wliting at least ten (10) days plior to the effective date of the change and shall follow Member Bank's
and Processor's procedures for completing the change.
7. Display of Service Marks, Advertising and Promotional Materials
a. Merchant shall prominently display at each Authorized Location any service mar1<.s, identification logos and any other promotional materials (collectively, the "Service Mar1<.s") the Card Associations
fumish to Merchant to alen Cardholders that Cards will be honored at Merchant's Autholized Locations. This recuirement shall not apply to plivate clubs or other merchants that do not serve the general publiC or
other dass of merchants exempted by a Card Association. The Service Marks for each Card Association must be at least the dimension of and as prominent as any other card program mar1<. or logo displayed.
b. Merchant may use the Service Marks oniy to indicate that Cards are accepted by Merchant for payment. Merchant shall not state, imply or use the Service Marks to indicate that Processor or any
Card Association endorses, sponsors, produces, offers, sells or is affiliated with any of Merchant's goods or services.
c. Merchant shall not refer to Processor or any Card or Card Association in stating eligibility for Merchant's merchandise, services or membership.
d. Merchant's use of the Service Mar1<.s of any Card Association shall be governed by the Card Association's Regulations and Merchant shall not use any Service Mar1<.s in a direct mail solicitation
without plior wlillen approval of the applicable Card Association.
e. Merchant's right to use or display the Service Mar1<.s shall continue so long as this Agreement remains in effect, unless Processor directs that such use or display shall cease. Merchant ackno'WIedges
that the Service Marks are the propeny of the applicable Card Assocation and Merchant shall not inflinge upon the Service Marks.
f. If Merchant has recuested signage for the purpose of indicating acceptance of Debit Cards, Merchant must display such signage for a minimum of 3 months. All point of sale displays or websites
must include either appropliate Visa<>wned marks to indicate acceptance of Debit and Other Cards or Visa approved signage to indicate acceptance of the limited acceptance category Merchant has selected.
g. If Merchant has requested BIN information. Merchant must only use this BIN information for product identification purposes at the point of sale. and not disdose this proplietar{ and confidential Visa
BIN information to any third party without prior written permission from Visa.
8. Term. This Agreement will be effective as of the date it is accepted by Member Bank and Processor and will continue in effect for a term of three (3) years following such date (thE! "Initial Term"), unless
ear1ier terminated as provided for below. Following the Initial Term, this Agreement will automatically renew for additional one year renevval terms, unless a party provides written notice to the other parties of its
intent not to renew this Agreement at least ninety (90) days prior to the expiration of the then current Term (a "Termination Notice"). If a party provides a Termination Notice to the other partie:;, this Agreement shall
terminate on the expiration of the then current Term.
9. Events of Default An "Event of Default" shall mean the occurrence or existence of one or more of the following events or conditions, whatever the reason for such Event of Default and whether voluntary,
involuntary or effected by operation of law; (a) Merchant fails to pay any obiigation under this Agreement to Member Bank or Processor when due; (b) any representation or warranty made by Merchant under this
Agreement. the Application or any financial statement, certificate, report, exhibit or document required to be furnished by Merchant to Member Bank or Processor pursuant to this AgreemEint shall prove false or
misleading in any material respect as of the time when made, including any omission of material information necessary to make such representation, vvarranty or statement not misleading cr the failure to provide
required information; (c) Merchant shall default in the performance or observance of any covenant, agreement or duty under this Agreement or any Association Regulation; (d) Merchant is no longer allowed by a
Card Association to accept their Cards as payment or Merchant's name appears on a Card Association's terminated merchant file; (e) Member Bank or Processor reasonably condude that allY criminal, fraudulent,
unauthorized or suspicious activity has occurred or is imminent with respect to Merchant's acceptance of bankcards or Merchant's performance under this Agreement; (f) there is an unexplained material change in
Merchant's processed volume, average ticket size or mode of sale; (g) Member Bank or Processor reasonably condude that there exists a risk of an abnormal level of Chargebacks or that Merchant may not fund
Chargebacks, fees or other charges as they occur, (h) Merchant has defaulted on any obligation for berrowed money and the effect thereof may permit the holder of such indebtedness to accelerate the time when
repayment is due; (i) there is an adverse material change in Merchant's business, operations, financial condition, properties, assets or prospects; (j) one or more judgments against Merchcmt, for the payment of
money remain undischarged, unsatisfied or unstayed for a peliod of 45 consecutive days; (k) Merchant's lender lakes possession of Merchant's inventory; (I) a wlit or warrant of attachment, gamishment,
execution. or similar process shall have been issued against Merchant or any of Its assets; (m) a proceeding shall have been instituted with respect to Merchant (1) seeking an order for relief or a declaration
IJnt"iling a finding that Merchant is insolvent or seeking a similar declaration or finding, or seeking dissolution, winding up, charter revocation or forfeiture, liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to Merchant, its assets or its debts under any law relating to bankruptcy, insolvency, relief of debtors or protection of creditors, tennination of le931 entities or any other
similar law now or hereafter in effect, or (2) seeking appointment of a receiver, trustee, custodian, liquidator, assignee, sequestrator or other similar official for Merchant or for all'or any substantial part of its assets;
or (n) Merchant shall become insoivent. shall become generally unable to pay its debts as they become due, shall voluntalily suspend transaction of its business, shall make a general assignment for the benefit of
creditors, shall institute a proceeding described in subsection (m)(1) above, or shall consent to any such order for relief, declaration, finding or relief described therein, shall institute a proceeding described in
subsection (m)(2) above, or shall consent to any such appointment or to the taking of possession by any such official of all or any substantial part of its assets, shall dissolve, windup, revoke or forfeit its charter (or
other constituent documents) or liquidate itself or any substantial part of its assets, or shall take any action in furtherance of any of the foregoing. Merchant shall notify Member Bank anj Processor in writing
immediately upon becoming aware of an Event of Default, or an event which, with the passing of time or the giving of notice, or both, would constitute an Event of Default.
Page 5
10. Remedies Upon Event of Default. Upon the occurrence of any Event of Default. Member Bank and Processor may employ any or all of the following remedies it deems appropriate: (a) terminate this
Agreement immediately upon notice to Merchant; (b) without prior notice to Merchant, refuse to accept or revoke acceptance of any Sales Draft or Credit Draft, or the electronic transmission thereof if applicable,
received by Member Bank or Processor on or at any time after the occurrence of any Event of Default; (e) without prior notice to Merchant, Member Bank may debit Merchant's Bank Account in an amount equal to
any amount then owed to Member Bank or Processor; (d) establish a reasonable reserve using Merchant funds in Member Bank's possession to cover foreseeable Chargebacks, Association fines or assessments,
cardholder credits or Fees; (e) increase the Fees payable by Merchant hereunder corrmensurate with the increased risk; (f) require Merchant to deposit, as cash collateral, such amounts as Member Bank or
,-processor may require to secure Merchant's obligations hereunder; (g) report to one or more credit reporting agencies any outstanding Merchant or guarantor indebtedness to Member Bank or Processor; or (h)
take such other action as may be permitted by law.
11. Termination Fee. Merchant shall owe Processor a termination fee of the greater of either $500 or 30% of the average monthly Fees over the previous 6 month period multiplied by the number of months
remaining in the then-current Term if: (a) Merchant terminates this Agreement prior to the end of any term, (b) Merchant deposits Visa or MasterCard transactions with any third party, or (c) Member Bank or
.Processor terminates this Agreement due to an Event of Default. The parties agree that such amount is reasonable in light of the damage incurred by Processor and Member Bank due to slJch termination.
12. Change In Merchant's Business. Merchant shall provide Member Bank and Processor at least thirty (30) days prior written notice of its intent to change in any way the basic nature of its business,
induding without limitation, a change in the types of merchandise or services sold, or the method of selling such products or services. Upon its receipt of notice of such change, Member Bank and Processor shall
have the right to terminate this Agreement 'Nithout further obligation upon providing to Merchant thirty (30) days prior written notice.
13. Termination by Merchant. Merchant may tellTlinate this Agreement upon 30 days prior written notice to Member Bank and Processor in the event of (a) receipt by Merchant of notice of any increase in
Fees payable to Member Bank and Pnocessor pursuant to Section 4 hereof (exduding pass-through fees payable to a Card Association or other third party, or Fee increases pursuant to Section 10); (b) any
amendment or modification to this Agreement made by Member Bank or Processor pursuant to Section 20 hereof which adversely affects Merchant (excluding amendments or modifications required due to
changes to an Association Regulation or applicable federal, state or local law or regulation); or, (c) upon written notice to Processor prior to the relevant fiscal year, if funds are not appropriated for such fiscal year
by Merchant's governing body to pay the Fees, provided Merchant has undertaken reasonable action to pursue such appropriation. If Merchant terminates this Agreement pursuant to Sect on 13.c, Merchant shall
not enter into an agreement 'Nith any third party for services similar to those provided by Processor under this Agreement during the fiscal year immediately follo'Ning such termination. Merchant's right to
terminate pursuant to this Section 13 shall expire thirty (30) days following Merchant's receipt of notice of any such Fee increase or amendment or modification.
14. Credit Inquiries; Reporting; FInancial Statements. Merchant authorizes Member Bank and Processor to make any credit inquiries they consider necessary to accept or to renew their acceptance of this
Agreement. Merchant also authorizes any person or credit reporting agency to compile information to answer such credit inquiries and to fumish such information to Member Bank and Processor. Merchant agrees
to provide to Processor such financial statements or other information concerning Merchant's business or operations as may be requested by Processor from time to time, in appropriate detail, promptly upon
request by Processor. Upon request by Pnocessor, Merchant shall fumish to Processor, within 120 days after the end of Merchant's fiscal year, an audited financial statement of profit and ;oss for such fiscal year
and an audited balance sheet as of the end of such fiscal year. Processor may, at their discretion, accept unaudited financial statements prepared by a publiC accounting firm.
15. Representation and Warranties. Merchant makes the following representations and warranties which shall be true and correct on the date of this Agreement and at all times thereafter. (a) all infonnation
contained in tv1erchant's Application or any other dOOJment delivered to Member Bank and Processor in connection therewith or 'Nith this Agreement is true and complete in all material respects; (b) Merchant has
the power to execute, deliver and perform this Agreement; (c) this Agreement is duly authorized and will not violate any provisions of law, or conflict 'Nith any other agreement to which M~rchant is subject or by
which Merchant's assets are bound; (d) Merchant has all required licenses, if any, to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (e) there is no action, suit
or proceeding at law or in equity pending, or to the knowledge of Merchant, threatened, by or against or affecting Merchant which if adversely decided to Merchant would impair the right of Merchant to carry on its
business substantially as now conducted or adversely affect its financial condition or operations in any material respect; and (f) Merchant is not now, nor shall it in the future, become en~l3ged in any method of
selling which is now or in the future set forth in the Operating Procedures Guide as an "Unacceptable Selling Method."
16. Hold Harmless. To the extent permitted by law, Merchant agrees to hold harmless Member Bank and Processor, their respective affiliates, directors, officers, employees and agents from all claims,
liabilities, loss, damage, and expenses of any nature (induding fees and expenses of legal counsel and costs of litigation) arising from or in connection with: (a) any dispute or daim made by a Cardholder with
respect to a Card Transaction, including but not limited to, any such dispute concerning the quality, fitness or delivery of merchandise or the performance or quality of services: and (b) thl~ failure of Merchant to
comply with the provisions of this Agreement, Association Regulations or applicable federal, state or local laws and regulations.
17. CHOICE OF LAW; JURISDiCTION; WAIVER. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF IN WHICH MERCHANT IS LOCATED. MERCHANT, MEMBER BANK
AND PROCESSOR: (A) AGREE THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ACT, OMISSION OR EVENT OCCURRING
IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, "RELATED LITIGATION") WILL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY AND
STATE IN WHICH MERCHANT IS LOCATED; (B) SUBMIT TO THE JURISDICTION OF SUCH COURTS; (C) WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE L~YING OF VENUE OF
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT; (D) AGREE TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED
OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO MERCHANT AT THE ADDRESS IN THE APPLICATION AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE VALID AND EFFECTIVE SERVICE
(BUT NOTHING SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND (E) WAIVE THE RIGHT TO THIAL BY JURY IN ANY
RELATED LITIGATION. THE PREVAILING PARTY IN ANY RELATED LITIGATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES, COST AND EXPENSES.
18. L1MITATIDN OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NO CLAIM MAY BE MADE BY MERCHANT AGAINST MEMBER BANK OR PROCESSOR OR ANY OF THEIR
RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OF ANY OF THEM FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PU~ITIVE DAMAGES IN
RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THIS
AGREEMENT UNLESS SUCH CLAIM ARiSES FROM THE NEGLIGENT OR WILFUL MISCONDUCT OF THE MEMBER BANK OR PROCESSOR AND MERCHANT HEREBY WAIVES. RELEASES AND
AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SU;::H CLAIM IS KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR:
19. Debit Card Acceptance. Merchant may accept Debit Cards accepted by AMS. If the Debit Card requires a personal identification number ("PIN") Merchant will comply with the folloNing:
a. Merchant 'Nill attempt to settle in good faith any dispute between Merchant and a Cardholder involving a transaction. Merchant will establish a fair. consistent policy for the Exchange and return of
merchandise and for the adjustment of amounts due on Debit Card sales. Merchant will promptly initiate a refund to the customer (which may be made in cash, by an adjustment draft or 'Nith a check or cashier's
check, as permitted by the Rules) whenever Merchant determines that a Debit Card transaction should be canceled or reversed. .
b. Except as the debit networks may permit, Merchant will not make any cash refunds or payments for returns or adjustments on Debit Card transactions but will instead complEte an adjustment form
provided or approved by Processor. The Debit Card Sales Draft for which no refund or return will be accepted by Merchant must be cleany and conspicuously marked (induding on the Card'olde~s copy) as "final
sale" or "no return" and must comply with the Association Regulations.
c. Merchant will refer Debit Card Cardholders with questions or problems to the institution that issued the Debit Card. Merchant will cooperate with Processor and with each applic'ble debit network and
its other members to resolve any alleged errors relating to transactions. Merchant 'Nill permit and 'Nill pay all expenses of periodic examination and audit of functions related to each ,jebit network, at such
frequency as the applicable Debit Network deems appropriate. Audits will meet debit network standards, and the results will be made available to the debit network. .
d. Merchant may not process a Credit Card transaction in order to provide a refund on a PIN Debit Card transaction. All debit transactions must be authorized and proce:;sed electronically. If
authorization is not available at the time of sale, Merchant must request another form of payment from its customer. Merchant may process the transaction as a Store and Forward or Resubllission, in which case
Merchant assumes the risk that the transaction fails to authorize or otherwise declines.
e. A PIN Debit Card transaction may not be completed without the PIN being entered into the PIN pad oniy by the cardholder. Merchant may not accept the PIN from the cardholdm verbally or in written
fonn.
f. Cardholders must be issued a receipt upon successful completion of a transaction. Any applicable tax must be included in the total transaction amount for which authorization i:; requested. Tax may
not be separately collected in cash.
g. Merchant is responsible for all applicable adjustment fees that may be charged by a Debit Card network. An adjustment is a transaction that is initiated to correct a PIN Debit Cal1j transaction that has
been processed in error.
h. Merchant may not engage in Electronic Benefit Transfers. An Electronic Benefit Transaction is one in which cash is given to a customer without the purchase of goods or ser\lices. Merchant further
agrees that it shall not offer cash back to customers when they make a PIN Debit Card purchase since terminals may require additional programming to begin offering cash back.
I. Merchant is responsible for securing terminals and for instituting appropriate controls to prevent employees or others from submitting refunds and voids that do not reflect bona fide returns or
reimbursements of prior transactions.
20. MISCELLANEOUS PROVISIONS.
a. Merchant shall not subcontract, assign or transfer any interest, obligation or right under this Agreement 'Nithout the prior written consent of Member Bank and Processor. Any dissolution, merger,
consolidation, reorganization or transfer of substantially all assets or a controlling percentage of the corporate stock of Merchant shall constitute an assignment of this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns. Processor may transfer its rights and responsibilities hereunder to another Vise/MasterCard member
institution without Merchant's consent.
b. This Agreement may be modified by Member Bank to comply with any amendments or adrntions to the Association Regulations upon 30 days prior written notice to the Merchant
c. No party shall, by the mere lapse of time, without giving notice or taking other action, be deemed to have waived any of their rights under this Agreement. No waiver of a breach of this Agreement
shall constitute a waiver of any prior or subsequent breach of this Agreement.
d. In order to maintain quality service, telephone communications with Merchant may be monitored and/or recorded without further notice or disdosure.
e. No party shall be liable for any loss or damage due to causes beyond its control, induding earthquake, war. fire, f1ooc, power failure, acts of God or other catastrophes.
f. Each party and each person signing on behalf of a party represents and warrants that it has the full legal capacity and authority to enter into and perform the obligations of this Agreement without any
further approval. Nothing in this Agreement shall be deemed to create a partnership, joint venture or any agency relationship between the parties.
g. This Agreement and the documents referenced herein constitute the entire understanding of the parties with respect to the subject matter of this Agreement, and aU prior agreements, understandings
and representations are terminated and canceled in their entirety.
h. If there is any conflict between a part of this Agreement and any present or future Association Regulation or applicable federal, state or local law or regulation, only the part of lhis Agreement that is
affected shall be modified and that modification shall be limited to the minimum necessary to bring this Agreement 'Nithin the requirements of the Association Regulation, law or regulation.
l. All notices, induding invoices, given in connection with this Agreement, shall be in writing and shall be effective upon actual receipt. Notices shall be delivered to the appropriate party at its address
set forth below on the attached Disdosure Page.
j. Merchant shall be liable for all taxes, except Member Bank and Pnocesso~s income taxes, required to be paid or collected as a result of this Agreement.
k. Ail obligations, warranties and liabilities of Merchant incurred or existing as of the date of termination of this Agreement, induding without limitation, Merchant's obligations with respect to subsequent
Adjustments or Chargebacks based upon Card Transactions incurred prior to termination, shall survive termination and shall continue in fuli force and effect as if the termination had not occurred. The right to
revoke credit as well as hold, retain or set off against amounts due to Merchant, or to debit any Bank Account(s) of Merchant, shall survive the termination of this Agreement and shall continue in full force and
effect as if termination had not occurred.
Page 6
Processing Cost Proposal
9
Inter;chan.*�ePtus ��& Miscellaneous u Fees �... . '>
Application Fee $ 0.00 Merchant Setup Fee $ 0.00
Manual Imprinter Fee $ 35.00* Interchange Fee Markup % .20%
Monthly Service Fee $ 7.50 Interchange Per Item Fee $ 0.05
Visa Dues &Assessments % .0925% MasterCard Dues &Assessments % .0950%
Monthly Minimum $ 10.00 Visa/MC Local Auth/Decl Fee $ 0.10
Voice Auth Fee $ 0.75 Visa/MC Watts Auth/Decl Fee $ 0.15
Internet Gateway Fee $ 0.00 ' T&E Loc Auth/Decl Fee $ 0.20
Internet Per Item Fee $ 0.00 T&E Watts Auth/Decl Fee $ 0.25
Internet Fraud Fee $ 0.00 Chargeback Fee $ 12.00
Web based Reporting Fee $ 8.00* Batch Header Fee $ 0.00
(Per Merchant ID, Per Month)
*Optional Service or Equipment Annual Fee $ 0.00
This does note include the Visa/MasterCard interchange and dues and assessment rates in the
above schedule. This schedule is for merchant processing fees only.
The 2007 interchange tables are included in this proposal on the CD and now available at
www.visa.com and www.mastercard.com, by typing in the words "interchange fees"into their
keywords or search box.
Any other proposed services are outlined on a separate sheet.
PLEASE NOTE: An Analysis of March 2007 statement was not possible given the missing data
elements regarding transaction counts for each card type. It should also be noted that in April
2007 and June 2007 many new interchange categories for commercial cards were introduced
further segmenting some of these interchange categories detailed on the March Statement.
CERTIFICATION
The undersigned affirms that they are duly authorized to execute this contract, that this
company, corporation, firm, partnership or individual has not prepared this bid in collusion with
any other offerer, and that the contents of this bid as to prices, terms or conditions of said bid
have not been communicated by the undersigned nor by any employee or agent to any other
person engaged in this type of business prior to the official opening of this bid.
Vendor: Automated Merchant Systems, Inc.
Federal Tax ID: 59-3099999
Phone: 407-331-5465
Fax: 407-331-7524
Address: 600 Northlake Blvd., Suite 140
City: Altamonte Springs State: FL Zip: 32701,
Email Address: dsloara.automatedmerchant.com
Signature of Company Official Authorizing This Bid
Daniel L. Sloan/ President
Printed Name/Title
Date Signed
MERCHANT PROCESSING AGREEMENT
APPLICATION AND FEE SCHEDULE
A Registered Service Provider of NCMIC Finance Corporation
PRINT CLEARLY
MERCHiNT r 41 1, 0' 1A " PREPARED BY: DATE:
INSTITUTIDN " ,e s SALES REP 1: SALES REP#:
DBA: Business Name(if different from Legal Name): Corporate/Legal Name:
Address(Physical Location): Mailing Address:
City: State: Zip: City: State: Zip:
Email Address: Website Address:
1i/A
Contact Name: Title: Contact Name:(Corporate Office,If Applicable) Title:
Business Phone#: Fax#: Business Phone#: Fax#:
Name and Address to,Appear on Statement: ®DBA Business 0 Legal FED TAX ID#/BUSINESS LICENSE#: State Tax ID:
If Chain,Chain's Store Name and#: BUSINESS LICENSE#:
MERCHANT EXPECTED AVERAGE TICKET
OWNERSHIP TYPE:
0 Government ❑Non-Profit EXPECTED MAX TICKET
❑Sole Proprietorship 0 Partnership ❑LLC MONTHLY MCNISA VOLUME
❑Corporation(State ) ❑ NUMBER OF YEARS IN BUSINESS
(ADDITIONAL Locations Annex Attached) (Initials) NUMBER OF YEARS PRESENT OWNERSHIP
CHAIN MERCHANT ❑YES ® NO
..,.. '.,
1 Principal Name(First): MI: Last: Title: 1 DL#: %Ownership: SSN:
Home Address Date of Birth: City State Zip Home Phone
%Ownership:Alternate(First): MI: Last: Title: 2 DL#: SSN:
S
Home Address Date of Birth: City State Zip Home Phone
THE AGREEMENT IS NOT EFFECTIVE UNTIL SIGNED BELOW:
NCMIC Finance Corporation Automated Merchant Systems, Inc.
1400 University Ave.,Clive,IA 50325
515-313-4561
By: By:
Daniel L.Sloan,President,Automated Merchant Systems,Inc.,pursuant to a 600 South North Lake Blvd.,Suite 140 Date
separate Agency Agreement,the terms and conditions of which have been Altamonte Springs,FL 32701
met 407-331-5465
Rev 05/2007
Page 1
Please Mark all Card Types Accepted and Initial Here: (initials) BANK ACCOUNT INFORMATION
®Debit Cards:V/MC(consumer signature cards/all foreign issued cards/PIN debit cards) Deposit Routing/Transit#: Deposit Account Number(15 digits)
®Other Cards:V/MC(business credit/debit,consumer credit,&all foreign issued cards)
'For Details on how transactions qualify at each level,please refer to your Operating Procedures Guide. Chargeback/RoutingfTransit
Chargeback Account Number(15 digits)
OTHER MERCHANT NUMBERS: AUTH EDC
AMEX 0 0
DISCOVER 0 0 Bank Name: •
JCB ❑ ❑ Contact Acct Type: Business Checking
OTHER 0 ❑ Phone: Fax:
CHECK ID
CHECK SVC Merchant hereby authorizes NCMIC Finance Corporation and Automated Merchant
Systems,Inc.to initiate credit and/or debit entries for amounts originating under the
Merchant Processing Agreement and the provision of related services,software,and
equipment(via ACH or otherwise)including any reversals or adjustments on original
P.O.S. TYPE (#) entries to the Merchant's Bank Account (as defined in the Merchant Processing
PRINTER (#) Agreement). Attach Voided check.
PIN PAD (#) Signature Date
TIPS AUTO CLOSE (#) _ (Officer/Owner)
CURRENT PROCESSOR: POS DEBIT: N
SIC CODE: NETWORK:
Mail/Phone Order Y OR N % ! Internet Y OR N %
IF YES,PLEASE INCLUDE COPY OF CATALOG OR PRICE LIST
Does Merchant have adeauate inventory on hand to sunnort business? Yes IRI
Is Merchant onen for business? Yes IRI No IT
State specifically merchandise tvne or the exact services offered (inventory must be
Merchant Type: ❑Retail Outlet ❑ Restaurant/Food ❑Lodging ❑ Mail/Telephone Order Only ❑Home Business,Trade
❑Outside Sales/Service,Other,etc. ❑ Manual Entry with Imprint ❑ Internet(contact email address required above)
Methods of Marketing:
❑Newspaper/magazines ❑ Internet ❑Television/Radio ❑Direct Mail,Brochure Catalogs ❑Outgoing Telemarketing Sales
BUILDING TYPE: Shopping Ctr. ❑ Office Building ❑ Residence ❑ Separate Building ❑ Website❑ Other ❑
MERCHANT: Owns ❑ Rents ❑
AREA ZONED: Commercial ❑ Industrial ❑ Residential❑
SQUARE FOOTAGE: ❑0-500 ❑501 -2500 ❑2501 -5000 ❑5001-10,000 ❑MORE THAN 10,000
Trade Contact:
Addres Account
Phone: Fax Account#:
•
Trade Contact:
Addres Account
Phone: Fax Account#:
Landlord: Contact:
Addres Rent/Mortgage
Payment Amount:
Phone: Fax Account#:
Page 2
MERCHANT PROCESSING AGREEMENT TERMS AND CONDITIONS
is a Merchant Processing Agreement("Agreement")entered into as of the date accepted by Processor(defined below)and is by and among NCMIC Finance Corporation,an Iowa industrial banking corporation
'Tiber Bank"),Automated Merchant Systems,Inc.CAMS")and the governmental entity(the Merchant")that signed the attached Merchant Application.
BACKGROUND INFORMATION
ber Bank is a member of both Visa U.SA.Incorporated("Visa")and MasterCard International("MasterCard")(each a"Card Association"). Member Bank and AMS have entered into an agreement whereby AMS
as Member Bank's sales agent and provides certain services to Merchant through various third party service providers("TPA")(AMS and TPA shall hereinafter collectively be referred to as"Processor"). Merchant
es to accept Debit Cards and/or Other Cards as defined below,and as indicated on the Merchant Application validly issued by Visa and MasterCard. Member Bank and Processor agree to provide such services in
'dance with the terms and conditions set forth below. Accordingly,the parties to this Agreement,intending to be legally bound,agree as follows:
OPERATIVE PROVISIONS
Services;Operating Procedures Guide. Member Bank and Processor agree to provide to Merchant,at Merchant's U.S.locations identified in the Application(as defined below),bankcard processing and
:ment services(the'Services")in accordance with the terns and conditions of this Agreement and the Operating Procedures Guide,the terms of which are incorporated by reference and made a part of this
ament. Merchant agrees to use Member Bank to sponsor and process its Visa and MasterCard branded bankcard transactions.
Definitions. Unless otherwise provided,the capitalized terms used in this Agreement have the meanings designated in the Operating Procedures Guide. 'Debit Card"means all Visa or MasterCard cards
d by a non-U.S.bank,a Visa or MasterCard card issued by a U.S.bank that accesses a consumer's asset account within 14 days after purchase,including but not limited to stored value,prepaid,payroll,EBT,gift,
/isa consumer check cards,and debit cards validly issued by the debit card networks Indicated on the Merchant Application such as on-line(PIN-based)cards. 'Other Cards°means all cards issued by a non-U.S.
and all Visa or MasterCard cards other than Debit Cards,including but not limited to business and consumer credit cards and business debit cards. The category of card acceptance that you have indicated on the
hant Application will collectively be referred to as°Cards".
•
Card Association Regulations. All Card Transactions and this Agreement are subject to,and the parties agree to be bound by,applicable Card Association operating rules and regulations(°Association
ilations"). The Associations Regulations include the Visa Cardholder Information Security Program and MasterCard's Site Data Protection Program,which require annual or quarterly self-assessments and web
structure scans. Merchant is responsible for demonstrating its own,its agents,and its servicers'compliance with Association Regulations as they may be amended from time to time. Processor is not responsible
oviding copies of the Association Regulations,and makes no representations or warranties regarding the accuracy of any summaries of Association Regulations it may provide. Processor is not liable for any non-
'Hance or any costs of such non-compliance by Merchant of any Association Regulation.If there is a conflict between this Agreement and the Association Regulations,the Association Regulations will apply.
hant will reimburse Processor and Member Bank immediately for any loss,liability,assessment or fine incurred arising out of Merchant's breach of this Section. AMS may not subcontract,sublicense,assign,
re,franchise or in any manner extend or transfer to any third party any right or obligation of AMS. AMS is the exclusive agent of Member Bank,and Member Bank is at all times entirely responsible for and in
of of AMS performance.
Fees. The Fees and other charges to be charged by Member Bank and Processor to Merchant for the services provided under this Agreement are set forth in the Merchant Application and Fee Schedule(the
,ication"),which is made a part of this Agreement.The Discount Rate shall be charged on all new sales(i.e.sale transactions not including°returns"or credits to cardholders).Processor may change such Fees
time to time upon 10 days prior written notice to Merchant.The Fees set forth in the Application do not include,and Merchant hereby agrees to pay,all fees,charges,penalties,fines,assessments and additional or
ased costs of any nature that may be charged by the Card Associations or other third party,whether charged to or directly or indirectly incurred by Processor in connection with matters contemplated by the
ament,including without limitation,adjustment fees and Interchange fees.
Card Transactions. In addition to the requirements for Card Transactions set forth in the Operating Procedures Guide and Association Regulations,Merchant agrees that it will not(a)deposit into its Bank
unt any Sales Draft or Credit Draft for any Card Transaction between a Cardholder and an entity other than Merchant;(b)accept cash payments from a Cardholder for previous Card Transactions;or(c)make a
disbursement to a Cardholder arising out of a Card Transaction or any other use of a Card.
•
Merchant's Bank Account
a. Merchant shall establish,and at all times during the term of the Agreement,maintain an Account with an Institution in order to facilitate payment of amounts due under this Agreement,which Institution and
unt shall be identified in the Application.Merchant authorizes Member Bank to credit and debit the Account via the automated clearing house("ACH")in accordance with this Agreement.To secure the extension of
t and Merchant's obligations under this Agreement Including,without limitation,Merchant's obligation to pay chargebacks,Merchant grants to Member Bank and AMS a security interest in its deposited Sales Drafts
Ill funds maintained in the Account.
b. All credits,charges and debits in connection with Card Transactions and other amounts owing under this Agreement shall be made to the Account,including without limitation,all Fees,Adjustments and
gebacks. Any Fees or other charges not collected by Member Bank or Processor through a debit to the Account,for whatever reason,shall be invoiced to Merchant by Member Bank or Processor and are due
Merchant's receipt of such invoice.
c. If a debit or Chargeback to Merchant's Bank Account results in an overdraft,Merchant shall immediately deposit with Institution an amount sufficient to cover such overdraft and any related service charges
u;.
d. All Items credited and debited to Merchant's Bank Account(s)are subject to review,verification and acceptance by Member Bank and Processor.Member Bank may withhold crediting of questionable items
ing verification,investigation and confirmation
e. If Merchant desires to change its Account,Merchant shall notify Member Bank and Processor in writing at least ten(10)days prior to the effective date of the change and shall follow Member Bank's and
ssor's procedures for completing the change.
Display of Service Marks,Advertising and Promotional Materials
a. Merchant shall prominently display at each Authorized Location-any service marks,identification logos and any other promotional materials(collectively,the°Service Marks')the Card Associations furnish
:rchant to alert Cardholders that Cards will be honored at Merchant's Authorized Locations. This requirement shall not apply to private clubs or other merchants that do not serve the general public or other class of
hants exempted by a Card Association.The Service Marks for each Card Association must be at least the dimension of and as prominent as any other card program mark or logo displayed.
b. Merchant may use the Service Marks only to indicate that Cards are accepted by Merchant for payment.Merchant shall not state,imply or use the Service Marks to indicate that Processor or any Card
ciation endorses,sponsors,produces,offers,sells or is affiliated with any of Merchant's goods or services.
c. Merchant shall not refer to Processor or any Card or Card Association in stating eligibility for Merchant's merchandise,services or membership.
d. Merchant's use of the Service Marks of any Card Association shall be governed by the Card Association's Regulations and Merchant shall not use any Service Marks in a direct mail solicitation without
written approval of the applicable Card Association.
e. Merchant's right to use or display the Service Marks shall continue so long as this Agreement remains in effect,unless Processor directs that such use or display shall cease.Merchant acknowledges that
ervice Marks are the property of the applicable Card Association and Merchant shall not infringe upon the Service Marks.
f. If Merchant has requested signage for the purpose of indicating acceptance of Debit Cards,Merchant must display such signage for a minimum of 3 months. All point of sale displays or websites must
ie either appropriate Visa-owned marks to indicate acceptance of Debit and Other Cards or Visa approved signage to indicate acceptance of the limited acceptance category Merchant has selected.
g. If Merchant has requested BIN information,Merchant must only use this BIN information for product identification purposes at the point of sale,and not disclose this proprietary and confidential Visa BIN
nation to any third party without prior written permission from Visa.
Tenn. This Agreement will be effective as of the date it is accepted by Member Bank and Processor and will continue in effect for a term of three(3)years following such date(the"Initial Term"),unless earlier
nated as provided for below.Following the Initial Term,this Agreement will automatically renew for additional one year renewal terms,unless a party provides written notice to the other parties of its intent not to
v this Agreement at least ninety(90)days prior to the expiration of the then current Term(a"Termination Notice").If a party provides a Termination Notice to the other parties,this Agreement shall terminate on the
ation of the then current Term.
Events of Default. An'Event of Default"shall mean the occurrence or existence of one or more of the following events or conditions,whatever the reason for such Event of Default and whether voluntary,
intary or effected by operation of law:(a)Merchant fails to pay any obligation under this Agreement to Member Bank or Processor when due;(b)any representation or warranty made by Merchant under this
ament,the Application or any financial statement,certificate,report,exhibit or document required to be furnished by Merchant to Member Bank or Processor pursuant to this Agreement shall prove false or
ading in any material respect as of the time when made,including any omission of material information necessary to make such representation,warranty or statement not misleading or the failure to provide
red information;(c)Merchant shall default in the performance or observance of any covenant,agreement or duty under this Agreement or any Association Regulation;(d)Merchant is no longer allowed by a Card
ciation to accept their Cards as payment or Merchant's name appears on a Card Association's terminated merchant file;(e)Member Bank or Processor reasonably conclude that any criminal,fraudulent,
thorized or suspicious activity has occurred or is imminent with respect to Merchant's acceptance of bankcards or Merchant's performance under this Agreement;(f)there is an unexplained material change in
hant's processed volume,average ticket size or mode of sale;(g)Member Bank or Processor reasonably conclude that there exists a risk of an abnormal level of Chargebacks or that Merchant may not fund
gebacks,fees or other charges as they occur;(h)Merchant has defaulted on any obligation for borrowed money and the effect thereof may permit the holder of such indebtedness to accelerate the time when
ntent is due;(i)there is an adverse material change in Merchant's business,operations,financial condition,properties,assets or prospects;(j)one or more judgments against Merchant,for the payment of money
in undischarged,unsatisfied or unstayed for a period of 45 consecutive days;(k)Merchant's lender takes possession of Merchant's inventory;(I)a writ or warrant of attachment,garnishment,execution,or similar
ms shall have been issued against Merchant or any of its assets;(m)a proceeding shall have been instituted with respect to Merchant(1)seeking an order for relief or a declaration entailing a finding that Merchant
solvent or seeking a similar declaration or finding,or seeking dissolution,winding up,charter revocation or forfeiture,liquidation,reorganization,arrangement,adjustment,composition or other similar relief with
rot to Merchant,its assets or its debts under any law relating to bankruptcy,insolvency,relief of debtors or protection of creditors,termination of legal entities or any other similar law now or hereafter in effect,or(2)
ng appointment of a receiver,trustee,custodian,liquidator,assignee,sequestrator or other similar official for Merchant or for all or any substantial part of its assets;or(n)Merchant shall become insolvent,shall
me generally unable to pay its debts as they become due,shall voluntarily suspend transaction of its business,shall make a general assignment for the benefit of creditors,shall institute a prneedin¢desc ibed in
action(m)(1)above,or shall consent to any such order for relief,declaration,finding or relief described therein,shall institute a proceeding described in subsection(m)(2)above,or shall c@rWto any such
intment or to the taking of possession by any such official of all or any substantial part of its assets,shall dissolve,windup,revoke or forfeit its charter(or other constituent documents)or liquidate itself or any
antial part of its assets,or shall take any action in furtherance of any of the foregoing.Merchant shall notify Member Bank and Processor in writing immediately upon becoming aware of an Event of Default,or an
t which,with the passing of time or the giving of notice,or both,would constitute an Event of Default.
•
D. Remedies Upon Event of Default. Upon the occurrence of any Event of Default,Member Bank and Processor may employ any or all of the following remedies it deems
Dpriate:(a)terminate this Agreement immediately upon notice to Merchant;(b)without prior notice to Merchant,refuse to accept or revoke acceptance of any Sales Draft or Credit
t,or the electronic transmission thereof if applicable,received by Member Bank or Processor on or at any time after the occurrence of any Event of Default;(c)without prior notice to
Thant,Member Bank may debit Merchant's Bank Account in an amount equal to any amount then owed to Member Bank or Processor;(d)establish a reasonable reserve using
Thant funds in Member Bank's possession to cover foreseeable Chargebacks,Association fines or assessments,cardholder credits or Fees;(e)increase the Fees payable by
Thant hereunder commensurate with the increased risk;(f)require Merchant to deposit,as cash collateral,such amounts as Member Bank or Processor may require to secure
;hant's obligations hereunder;(g)report to one or more credit reporting agencies any outstanding Merchant or guarantor indebtedness to Member Bank or Processor;or(h)take such
r action as may be permitted by law.
I. Termination Fee. Merchant shall owe Processor a termination fee of the greater of either$500 or 30%of the average monthly Fees over the previous 6 month period multiplied by the number of months
fining in the then-current Term if: (a)Merchant terminates this Agreement prior to the end of any term,(b)Merchant deposits Visa or MasterCard transactions with any third party,or(c)Member Bank or Processor
nates this Agreement due to an Event of Default. The parties agree that such amount is reasonable in light of the damage incurred by Processor and Member Bank due to such termination.
t. Change in Merchant's Business. Merchant shall provide Member Bank and Processor at least thirty(30)days prior written notice of its intent to change in any way the basic nature of its business,including
ut limitation,a change in the types of merchandise or services sold,or the method of selling such products or services.Upon its receipt of notice of such change,Member Bank and Processor shall have the right to
nate this Agreement without further obligation upon providing to Merchant thirty(30)days prior written notice.
3. Termination by Merchant. Merchant may terminate this Agreement upon 30 days prior written notice to Member Bank and Processor in the event of(a)receipt by Merchant of notice of any increase in Fees
ble to Member Bank and Processor pursuant to Section 4 hereof(excluding pass-through fees payable to a Card Association or other third party,or Fee increases pursuant to Section 10);(b)any material
idment or modification to this Agreement made by Member Bank or Processor pursuant to Section 20 hereof which adversely affects Merchant in any material respect(excluding material amendments or
fications required due to changes to an Association Regulation or applicable federal,state or local law or regulation);or,(c)upon written notice to Processor prior to the relevant fiscal year, if funds are not
)priated for such fiscal year by Merchant's governing body to pay the Fees,provided Merchant has undertaken reasonable action to pursue such appropriation. If Merchant terminates this Agreement pursuant to
on 13.c,Merchant shall not enter into an agreement with any third party for services similar to those provided by Processor under this Agreement during the fiscal year immediately following such termination.
hant's right to terminate pursuant to this Section 13 shall expire thirty(30)days following Merchant's receipt of notice of any such Fee increase or material amendment or modification.
S. Credit Inquiries;Reporting;Financial Statements. Merchant authorizes Member Bank and Processor to make any credit inquiries they consider necessary to accept or to renew their acceptance of this
sment.Merchant also authorizes any person or credit reporting agency to compile information to answer such credit inquiries and to furnish such information to Member Bank and Processor.Merchant agrees to
de to Processor such financial statements or other information concerning Merchant's business or operations as may be requested by Processor from time to time,in appropriate detail,promptly upon request by
sssor.Upon request by Processor,Merchant shall furnish to Processor,within 120 days after the end of Merchant's fiscal year,an audited financial statement of profit and loss for such fiscal year and an audited
ice sheet as of the end of such fiscal year.Processor may,at their discretion,accept unaudited financial statements prepared by a public accounting firm.
i. Representation and Warranties. Merchant makes the following representations and warranties which shall be true and correct on the date of this Agreement and at all times thereafter.(a)all information
tined in Merchant's Application or any other document delivered to Member Bank and Processor in connection therewith or with this Agreement is true and complete in all material respects;(b)Merchant has the
r to execute,deliver and perform this Agreement;(c)this Agreement is duly authorized and will not violate any provisions of law,or conflict with any other agreement to which Merchant is subject or by which
hant's assets are bound;(d)Merchant has all required licenses,if any,to conduct its business and is qualified to do business in every jurisdiction where it is required to do so;(e)there is no action,suit or
ceding at law or in equity pending,or to the knowledge of Merchant,threatened,by or against or affecting Merchant which if adversely decided to Merchant would impair the right of Merchant to carry on its business
antially as now conducted or adversely affect its financial condition or operations in any material respect;and(f)Merchant is not now,nor shall it in the future,become engaged in any method of selling which is
]r in the future set forth in the Operating Procedures Guide as an°Unacceptable Selling Method."
3. Hold Harmless. Merchant agrees to hold harmless Member Bank and Processor,their respective affiliates,directors,officers,employees and agents from all claims,liabilities,loss,damage,and expenses of
nature(including fees and expenses of legal counsel and costs of litigation)arising from or in connection with:(a)any dispute or claim made by a Cardholder with respect to a Card Transaction,including but not
d to,any such dispute concerning the quality,fitness or delivery of merchandise or the performance or quality of services;and(b)the failure of Merchant to comply with the provisions of this Agreement,Association
nations or applicable federal,state or local laws and regulations.
7. CHOICE OF LAW;JURISDICTION;WAIVER. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF IN WHICH MERCHANT IS LOCATED.MERCHANT,MEMBER BANK AND
CESSOR:(A)AGREE THAT ANY ACTION,SUIT OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ACT,OMISSION OR EVENT OCCURRING IN
NECTION WITH THIS AGREEMENT(COLLECTIVELY,"RELATED LITIGATION')WILL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY AND STATE IN
;H MERCHANT IS LOCATED;(B)SUBMIT TO THE JURISDICTION OF SUCH COURTS;(C)WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY RELATED
IATION BROUGHT IN ANY SUCH COURT;(D)AGREE TO SERVICE OF ANY SUMMONS,COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S.
POSTAGE PREPAID,TO MERCHANT AT THE ADDRESS IN THE APPLICATION AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE VALID AND EFFECTIVE SERVICE(BUT NOTHING SHALL
=CT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW);AND(E)WAIVE THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION. THE
JAILING PARTY IN ANY RELATED LITIGATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES,COST AND EXPENSES.
3. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW,NO CLAIM MAY BE MADE BY MERCHANT AGAINST MEMBER BANK OR PROCESSOR OR ANY OF THEIR RESPECTIVE
LIATES,DIRECTORS,OFFICERS,EMPLOYEES OR AGENTS OF ANY OF THEM FOR ANY SPECIAL,INCIDENTAL,INDIRECT,CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM
ING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT,COURSE OF CONDUCT,ACT,OMISSION OR EVENT OCCURRING IN CONNECTION THIS AGREEMENT UNLESS SUCH CLAIM
ES FROM THE NEGLIGENT OR WILFUL MISCONDUCT OF THE MEMBER BANK OR PROCESSOR AND MERCHANT HEREBY WAIVES,RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM
ANY SUCH DAMAGES,WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
3. Debit Card Acceptance. Merchant may accept Debit Cards accepted by AMS. If the Debit Card requires a personal identification number('PIN")Merchant will comply with the following:
a. Merchant will attempt to settle in good faith any dispute between Merchant and a Cardholder involving a transaction. Merchant will establish a fair,consistent policy for the exchange and return of
handise and for the adjustment of amounts due on Debit Card sales. Merchant will promptly initiate a refund to the customer(which may be made in cash,by an adjustment draft or with a check or cashier's check,
emitted by the Rules)whenever Merchant determines that a Debit Card transaction should be canceled or reversed.
b. Except as the debit networks may permit,Merchant will not make any cash refunds or payments for returns or adjustments on Debit Card transactions but will instead complete an adjustment form provided
proved by Processor. The Debit Card Sales Draft for which no refund or return will be accepted by Merchant must be clearly and conspicuously marked(including on the Cardholder's copy)as°final sale"or"no
i"and must comply with the Association Regulations.
c. Merchant will refer Debit Card Cardholders with questions or problems to the institution that issued the Debit Card. Merchant will cooperate with Processor and with each applicable debit network and its
members to resolve any alleged errors relating to transactions. Merchant will permit and will pay all expenses of periodic examination and audit of functions related to each debit network,at such frequency as the
able Debit Network deems appropriate.Audits will meet debit network standards,and the results will be made available to the debit network.
d. Merchant may not process a Credit Card transaction in order to provide a refund on a PIN Debit Card transaction. All debit transactions must be authorized and processed electronically. If authorization is
vailable at the time of sale,Merchant must request another form of payment from its customer. Merchant may process the transaction as a Store and Forward or Resubmission,in which case Merchant assumes
sk that the transaction fails to authorize or otherwise declines.
e. A PIN Debit Card transaction may not be completed without the PIN being entered into the PIN pad only by the cardholder.Merchant may not accept the PIN from the cardholder verbally or in written form.
f. Cardholders must be issued a receipt upon successful completion of a transaction.Any applicable tax must be included in the total transaction amount for which authorization is requested. Tax may not be
rately collected in cash.
g. Merchant is responsible for all applicable adjustment fees that may be charged by a Debit Card network.An adjustment is a transaction that is initiated to correct a PIN Debit Card transaction that has been
ssed in error.
h. Merchant may not engage in Electronic Benefit Transfers.An Electronic Benefit Transaction is one in which cash is given to a customer without the purchase of goods or services.Merchant further agrees
t shall not offer cash back to customers when they make a PIN Debit Card purchase since terminals may require additional programming to begin offering cash back.
I. Merchant is responsible for securing terminals and for instituting appropriate controls to prevent employees or others from submitting refunds and voids that do not reflect bona fide returns or
wrsements of prior transactions.
). MISCELLANEOUS PROVISIONS.
a. Merchant shall not subcontract;assign or transfer any interest,obligation or right under this Agreement without the prior written consent of Member Bank and Processor.Any dissolution,merger,
alidation,reorganization or transfer of substantially all assets or a controlling percentage of the corporate stock of Merchant shall constitute an assignment of this Agreement.Subject to the foregoing,this
anent shall be binding upon and inure to the benefit of the parties and their successors or assigns. Processor may transfer its rights and responsibilities hereunder to another Visa/MasterCard member institution
ut Merchant's consent.
b. This Agreement may be modified by Member Bank to comply with any amendments or additions to the Association Regulations upon 30 days prior written notice to the Merchant.
c. No party shall,by the mere lapse of time,without giving notice or taking other action,be deemed to have waived any of their rights under this Agreement.No waiver of a breach of this Agreement shall
itute a waiver of any prior or subsequent breach of this Agreement.
d. In order to maintain quality service,telephone communications with Merchant may be monitored and/or recorded without further notice or disclosure.
e. No party shall be liable for any loss or damage due to causes beyond its control,including earthquake,war,fire,flood,power failure,acts of God or other catastrophes.
f. Each party and each person signing on behalf of a party represents and warrants that it has the full legal capacity and authority to enter into and perform the obligations of this Agreement without any
Sr approval. Nothing in this Agreement shall be deemed to create a partnership,joint venture or any agency relationship between the parties.
g. This Agreement and the documents referenced herein constitute the entire understanding of the parties with respect to the subject matter of this Agreement,and all prior agreements,understandings and
sentations are terminated and canceled in their entirety.
h. If there is any conflict between a part of this Agreement and any present or future Association Regulation or applicable federal,state or local law or regulation,only the part of this Agreement that is affected
be modified and that modification shall be limited to the minimum necessary to bring this Agreement within the requirements of the Association Regulation,law or regulation.
i. All notices,including invoices,given in connection with this Agreement,shall be in writing and shall be effective upon actual receipt.Notices shall be delivered to the appropriate party at its address set forth
von the attached Disclosure Page.
j. Merchant shall be liable for all taxes,except Member Bank and Processor's income taxes,required to be paid or collected as a result of this Agreement.
k. All obligations,warranties and liabilities of Merchant incurred or existing as of the date of termination of this Agreement,including without limitation,Merchant's obligations with respect to subsequent
,tments or Chargebacks based upon Card Transactions incurred prior to termination,shall survive termination and shall continue in full force and effect as if the termination had not occurred.The right to revoke
t as well as hold,retain or set off against amounts due to Merchant,or to debit any Bank Account(s)of Merchant,shall survive the termination of this Agreement and shall continue in full force and effect as if
nation had not occurred.
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