Terms and Conditions (US)
Effective July 25, 2023Download
Table of Contents
TERMS AND CONDITIONS
THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THE ACCOMPANIED MERCHANT APPLICATION DOCUMENT (“Merchant Application” or “Application”), AND THE TERMS AND CONDITIONS HEREIN, TOGETHER WITH THE MERCHANT APPLICATION, COLLECTIVELY CONSTITUTE THE MERCHANT PROCESSING AGREEMENT (“Merchant Agreement” or “Agreement” or “MPA”).
This Merchant Processing Agreement (the “Agreement”) is among Zift (“ISO”), and Merchant, whose personal name, address, business organization name and type of business are set forth on the Merchant Application, and to the extent required by applicable law and the Rules, the bank identified on the Member Bank Disclosure Page included with the Application (“Bank”) for the limited purposes described expressly set forth herein below, and Bank is not otherwise a part of (nor liable for) any of ISO’s obligations hereunder. For purposes of this Agreement and solely for convenience purposes, Bank and ISO may be collectively referred to hereinafter as the “Service Provider”, but if Bank is not required to be a party to this Agreement by the Rules, or if the obligations referenced herein are ISO’s obligations, the reference to Service Provider shall not broaden or expand Bank’s limited obligations hereunder. Subject to the requirements of applicable Rules, ISO and Bank may allocate their respective duties and obligations between themselves as they deem appropriate at their sole discretion, and ISO or Bank may jointly or individually assert or exercise the rights or remedies provided to the Service Provider hereunder. This Agreement contains the terms and conditions under which Service Provider and/or other third parties will provide services to the Merchant and includes the Application signed by Merchant and all other documents and disclosures provided to Merchant that are related to the provision of payment processing services by Service Providers to Merchant. To the extent ISO or any third party fails to perform any of its or their duties hereunder, Bank has the right, but not the obligation, to perform the services for Merchant.
Merchant desires to accept Credit Cards, Debit Cards and/or Other Cards, as indicated on the Merchant Application, validly issued by members under license of Discover® Network (“Discover Network”), MasterCard® International, Inc. (“MasterCard”), and Visa® U.S.A., Inc. (“Visa”) and the Debit Networks (“Debit Networks”). Bank and Processor desired to provide Card Processing services to Merchant. Therefore Bank, Processor and Merchant agree as follows:
ARTICLE I – DEFINITIONS
1.1 “Account” means a bank account maintained by Merchant as set forth in Article III, Section 3.01 for the crediting of collected funds and the debiting of fees and charges pursuant to the terms of this Agreement.
1.2 “ACH” means the Automated Clearing House paperless entry system operated by the Federal Reserve.
1.3 “Agreement” means these Terms & Conditions, the Merchant Application, the ACH Authorization, the schedule of fees and any supplementary documents indicated herein, as amended from time to time.
1.4 “Authorization” means a computerized function or a direct phone call to a designated number to examine individual Transactions to obtain credit approval from the Card Issuer.
1.5 “AVS” (Address Verification System) allows verification of the cardholder’s Zip code and billing address while requesting authorizations for transactions or during a request for address verification only.
1.6 “Card” means (i) a valid card in the form issued under license from Visa U.S.A., Inc., Visa International, Inc., or MasterCard International, Inc. (“Bank Card” or “Bankcard”) or (ii) any other valid card accepted by Merchant by agreement with Bank, such as those issued by, or under license of, Discover Financial Services, Inc. or (iii) any valid card issued under license of a regional or national Debit Network.
1.7 “Card Association” means Visa, MasterCard, Discover or any other Company that regulates and manages their respective brands of Cards that are accepted by Merchant by agreement with Bank.
1.8 “Cardholder” means the person whose name is embossed upon the face of the Card presented to Merchant
1.9 “Card Issuer” means the Financial Institution or Company which has provided a Card to a Cardholder.
1.10 “Chargeback” means the procedure by which, and the value of, a Sales Draft (or disputed portion thereof) is returned to Bank by a Card Issuer.
1.11 “Credit Card” means a plastic card that allows payments to be offset against a special-purpose account associated with a revolving line of credit and requiring some form of installment–based payment.
1.12 “Credit Voucher” means a document executed by a Merchant evidencing any refund or price adjustment credited to a Cardholder account.
1.13 “Debit Card” means a plastic card linked to a checking or savings account.
1.14 “Debit Network” means a network upon which transactions linked to checking or savings accounts are routed.
1.15 "Effective Date" means the date your account is approved and activated for processing.
1.16 “Discover” means Discover Network or Discover Financial Services.
1.17 “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 printing a Sales Draft.
1.18 “MasterCard” means MasterCard International, Inc. or MasterCard Worldwide, Inc.
1.19 “MCC” means Merchant Category Code and indicates the Merchant’s category classification by Visa and MasterCard describing specifically the type of business the Merchant operates.
1.20 “NACHA” means the National Automated Clearing House Association.
1.21 “NACHA Rules” means the rules and regulations of NACHA, as amended from time to time.
1.22 “Retrieval” means a Card Issuer’s or Cardholder’s request of the Transaction receipt.
1.23 “Rules” means the rules and regulations of any Card Association or Debit Network, as amended from time to time.
1.24 “Sales Draft” means the paper form, approved in advance by Processor, whether such form is electronically or manually imprinted, evidencing a sale Transaction.
1.25 “Transaction” means any sale of goods and services, or credit for such, from Merchant for which the customer makes payment through the use of any Card and which is presented to Bank for collection.
1.26 “Visa” means Visa U.S.A., Inc. or Visa International, Inc.
1.27 “Voice Authorization” means a direct phone call to a designated number to obtain credit approval on a Transaction.
ARTICLE II - CARD ACCEPTANCE
2.1 HONORING CARDS
- Without Discrimination. Merchant will accept without discrimination, all valid Cards as indicated by Merchant on the Merchant Application when properly presented by Cardholders for payment for goods or services within the Merchant’s Category (MCC) of acceptance. Merchant may not discriminate between payment Cards within a payment Card network on the basis of the Issuer that issued the presented payment Card.
- Acceptance. Merchant will elect on the Merchant Application to accept (full acceptance) or not accept (limited acceptance) credit and/or debit cards for payment. A full acceptance Merchant will accept all valid Cards unless Merchant provides 30 days written notice to Processor and Bank requesting limited acceptance and stating Merchant’s election of Card types. Limited acceptance is not applicable to non-US issued Cards.
- Advertised Price. Merchant agrees to accept Cards for payment of goods or services without charging any amount over the advertised price as a condition of Card acceptance, unless local law requires Merchant be permitted to engage in such practice.
- Minimums and Maximums. (a) Merchant shall not establish minimum or maximum transaction dollar value for Signature-Debit or PIN-Debit Card sales as a condition for accepting such Debit Cards. (b) Merchant may set a minimum transaction dollar value for the acceptance of a Credit Card, only to the extent that: (i) such minimum dollar value does not exceed $10; and (ii) such minimum dollar value is the same for all Issuers or payment card networks. (c) If Merchant is a federal agency or institution of higher education, Merchant may set a maximum dollar value for the acceptance of Credit Cards, to the extent that such maximum dollar value is the same for all Issuers or payment card networks.
- Surcharges. If Merchant chooses to impose a surcharge on Card payments, Merchant may do so only after meeting specific considerations, limitations and requirements as defined by the Card Associations. Requirements and limitations include: (i) Merchant may only impose a surcharge if permitted by, and compliant with, state and local law; (ii) Merchant shall notify Bank, Processor and Card Associations no less than 30 days in advance of imposing any surcharge; (iii) Merchant shall publicly disclose its surcharge practices to customers at the store entry point and point of sale; and (iv) Any surcharge imposed by Merchant shall not exceed 4% of the underlying transaction amount. For information on, and further links to, surcharge considerations, requirements, limitations and Card Association Surcharge registration pages, visit www.mastercard.us/merchants/support/surcharge-rules.html and www.visa.com/merchantsurcharging.
- Discounts. Merchant may offer a discount or in-kind incentive as an inducement for a Cardholder to use a means of payment that the Merchant prefers, provided that the discount: (i) is clearly disclosed as a discount from the standard price; (ii) is non-discriminatory, by providing the same discount for all Cards accepted; (iii) does not differentiate on the basis of the Issuer or the Card Association; and (iv) is in accordance with the law and the Rules.
- Disputes with Cardholder. (a) All disputes between Merchant and any Cardholder relating to any Card Transaction will be settled between Merchant and the Cardholder. The Bank and the Processor bear no responsibility for such transactions. (b) Merchant must not require a Cardholder, as a condition for honoring a Card, to sign a statement that waives the Cardholder's right to dispute the Transaction with the Card Issuer.
- Cardholder Identification. Merchant will identify the Cardholder and check the expiration date and signature on each Card. Merchant will not honor any Card if: (i) the Card has expired; (ii) the signature on the sales draft does not correspond with the signature on the Card; (iii) the account number embossed on the Card does not match the account number on the Card’s magnetic stripe (as printed in electronic form); (iv) the Card was declined as a result of an Authorization attempt. Merchant may not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address; or a driver license number as a condition for honoring a Card unless permitted by law and the Card Association Rules.
- Non-presentment. Merchant shall not accept a Card as payment (other than for mail order, Internet sale, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the person seeking to use the Card does not present the Card to permit Merchant to examine it and obtain an imprint or otherwise use the physical Card to complete the Transaction.
- Card Recovery. Merchant will use reasonable, best efforts and peaceful means to recover any Card if: (i) Merchant is advised by Processor, Bank, the issuer of the Card or the designated voice authorization center to retain it; or (ii) if Merchant has reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder. NOTE: The obligation of Merchant imposed by this section to retain or recover a Card does not authorize a breach of the peace or any injury to persons or property and Merchant will hold Bank and Processor harmless 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 a Card.
- Location. Merchant may honor Cards only at location(s) approved by Processor. Additional locations may be added, subject to Processor's approval. Either Merchant or Processor may delete location(s) by providing notice as provided in this Agreement.
- Required on all Transactions. Merchant will obtain prior Authorization for the total amount of a transaction via electronic terminal, gateway or other compliant and certified device before completing any transaction, and Merchant will not process any transaction that has not been authorized. Merchant will follow all instructions received during the Authorization process. Upon receipt of an Authorization approval Merchant may consummate only the transaction authorized and must note on the Sales Draft the Authorization number. Where Authorization is obtained, Merchant will be deemed to warrant the true and matching identity of the customer as the Cardholder.
- No Guarantees. Authorizations are not a guarantee of acceptance or payment of the Sales Draft. Authorizations do not waive any provisions of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired or otherwise invalid Card.
- Unreadable Magnetic Stripes. When presenting Card transactions for Authorization electronically, and Merchant’s terminal is unable to read the magnetic stripe on the card, Merchant must obtain a Phone Authorization (either via Voice or Automated Response Service, both carry additional fees) and Merchant must obtain an imprint of the Card and also obtain the Cardholder’s signature on the imprinted Sales Draft before presenting the Sales Draft to Bank and Processor for processing. Failure to perform these additional actions may result in the assessment of transaction surcharges or a rejected transaction.
- Fees. Unless otherwise approved in writing by Bank, Merchant agrees to pay $0.75 for each Voice Authorization and $1.00 for each Voice Authorization for AVS.
2.3 PRESENTMENT OF SALES DRAFTS
- Sales Draft Administration. Unless the Sales Draft is electronically generated from a swiped transaction or is the result of an Internet, mail, phone or preauthorized sales order, Merchant must use a Sales Draft or other form approved by Processor to document each Card transaction. Each Sales Draft will be legibly imprinted with: (i) Merchant’s name, location and account number; (ii) the information embossed on the Card presented by the Cardholder (either electronically or manually, and truncated if electronic); (iii) the date of the transaction; (iv) a brief description of the goods or services involved; (v) the transaction authorization number; (vi) the total amount of the sale including any applicable taxes, or credit transaction; and (vii) adjacent to the signature line, a notation that all sales are final, if applicable.
- Signatures. Sales Drafts must be signed by the Cardholder unless the Card transaction is a valid mail/telephone/Internet order Card transaction, or PIN-based Debit Card transaction, which fully complies with the requirements set forth in this Agreement. Merchant may not require the Cardholder to sign the Sales Draft before Merchant enters the final transaction amount in the Sales Draft.
- Delivery and Retention of Sales Drafts. Merchant will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at the time of the transaction. In addition to any records routinely furnished to Processor under this Agreement, Merchant shall preserve a paper or microfilm copy of all actual paper Sales Drafts and Credit Vouchers and if a mail, phone order or preauthorized order is involved, the Cardholder’s signed Authorization for the Transaction for at least eighteen (18) months (or longer if required by law or Rules) after the date Merchant presents the Transaction and Merchant must preserve records in accordance with Article III, Section 3.04 of the Agreement.
- Electronic Transmission. If Merchant utilizes electronic authorization and/or data capture equipment and/or services; Merchant will enter the data related to a Sales or Return transaction into a computer terminal or magnetic stripe reading terminal and transmit daily transactions to the Bank or Processor no later than the close of business on the date the transactions are completed (unless otherwise permitted by the Rules). Failure to do so may result in the assessment of transaction penalties.
- Compliance. If Merchant provides or uses their own electronic terminal, gateway or similar transaction device to capture transactions and generate Sales Drafts, such devices must meet Processor, Bank, Card Associations, PCI Security Standards Council (pursuant to Article III, Section 3.04 of this Agreement) and Government requirements for processing transactions.
- Inspection. If Processor or Bank request a copy of a Sales Draft, credit voucher or other transaction evidence, Merchant will provide it within 24 hours following the request.
- Multiple Transaction Records. Merchant shall not prepare more than one Sales Draft for a single sale or for a single item and shall include all items or goods and services purchased in a single Transaction in the total amount on a single Sales Draft except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payments; or (iii) for delayed or amended charges governed by the Rules for travel and entertainment merchants and transactions.
- Forms. Merchant shall only use forms or modes of transmission of Sales Drafts and Credit Vouchers as provided or approved by Processor. Merchant shall not use forms provided by Processor other than in connection with Card Transactions without Processor or Bank's prior written consent.
- Endorsement. The presentment of Sales Drafts to Bank and Processor for collection and payment is Merchant’s agreement to sell and assign 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 Bank of such Sales Drafts. Merchant hereby authorizes Bank to supply such endorsement on Merchant’s behalf. Merchant agrees that this Agreement is a contract of financial accommodation within the meaning of Bankruptcy Code (11 U.S.C. § 365) as amended from time to time. Merchant acknowledges that its obligation to Bank for all amounts owed under this Agreement arise out of the same transaction as Bank’s obligation to deposit funds to the Account.
2.4 DEPOSIT OF SALES DRAFTS AND FUNDS DUE MERCHANT
- Presentment and Acceptance. Bank or Processor shall accept from Merchant all valid Sales Drafts presented by Merchant under the terms of this Agreement and shall present the same to the appropriate Card issuers for collection against Cardholder accounts. All presentment and assignment of Sales Drafts, collection therefore and re-assignment or rejection of such Sales Drafts are subject to this Agreement and the Rules. Bank shall be the only entity that will provisionally credit the value of collected Sales Drafts to Merchant’s Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks, fees, fines and penalties, late submission charges and items for which Bank did not receive final payment. Bank may refuse to accept or withhold payment of any Sales Draft without notice until the expiration of any chargeback period, or revoke its prior acceptance of a Sales Draft, in the following circumstances: (i) Bank reasonably suspects that the Sales Draft was not made in compliance with this Agreement, Rules or applicable law; (ii) the Cardholder disputes its liability to Bank for any reason, including but not limited to Cardholder chargeback rights enumerated in the Rules; (iii) the transaction giving rise to the Sales Draft was not directly between Merchant and Cardholder; (iv) the transaction is outside the parameters indicated on the Merchant Application; (v) if Bank or Processor determine, in their sole and reasonable discretion, that a transaction or batch of transactions poses a risk of loss; (vi) Bank or Processor may impose a cap on the volume and/or ticket amount of Sales Drafts that Bank and Processor will process for Merchant, as indicated on Merchant Application or imposed otherwise by Bank and Processor. This limit may be modified by Bank or Processor upon written notice to Merchant. If Merchant exceeds the limit established by this Agreement, Bank or Processor may suspend processing, charge over limit fees, hold deposits over the cap, and/or return all Sales Drafts evidencing funds over the cap to Merchant or terminate this Agreement. Merchant will pay Bank, as appropriate, any amount previously credited to Merchant for a Sales Draft not accepted or later revoked by Bank. Merchant agrees that Bank has no liability for any delay in funding and that neither Bank nor Processor is not responsible for any losses Merchant may incur, including but not limited to NSF fees, due to delayed deposit of funds.
- Returns and Adjustments: Credit Vouchers. Merchant agrees that it will conduct business in regards to returns as follows: (a) Merchant’s policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted in accordance with the Rules. Merchant agrees to disclose 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, charges, or other noncredit terms). (b) Disclosures must be made on all copies of Sales Drafts in letters approximately 1/4” high in close proximity to the space provided for the Cardholder’s signature on the Sales Draft and issued at the time of sale. (c) If Merchant does not make these disclosures and Cardholder requests a refund, a full refund in the form of a credit to the Cardholder’s Card account must be given. Merchant shall not refund cash to a Cardholder who originally paid for the item by Card. (d) Credits must be made to the same Card account number on which the original sale Transaction was processed. (e) If Merchant accepts any goods for return, any services are terminated or canceled in conjunction with each such transaction. Merchant shall have sufficient funds in its account available to Bank to cover the amount of the transaction and any related fees. (f) Merchant warrants that any Credit Voucher 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. (g) Under no circumstance will Bank be responsible for processing credits or adjustments related to Sales Drafts not originally processed by Processor and Bank.
- Chargebacks. Merchant and Guarantor(s) are fully liable for all transactions returned for whatever reason, otherwise known as “Chargebacks.” Merchant will pay upon presentation the value of all Chargebacks. Authorization is granted by Merchant to Bank to offset from incoming transactions and to debit the Designated Account, the Reserve Account or any other account held at Bank or at any other financial institution the amount of all Chargebacks. Merchant will fully cooperate in complying with the Rules regarding chargebacks. Merchant agrees that: (a) failure to pay a Chargeback upon such presentation shall be considered a material breach of this Agreement and Merchant, in addition to any other remedies which may be exercised by Bank or Processor, shall be charged a late fee of (i) the maximum allowed by law; or (ii) one and one half percent (1.5%) per month or portion thereof on all unpaid Chargebacks, whichever is greater; (b) Merchant agrees to accept for Chargeback any sale for which the Cardholder disputes the validity of the sale according to the Rules, or Bank or Processor determines that Merchant has in any way failed to comply with the Rules or Bank or Processor procedures, including but not limited to the following: (i) Sales Draft is illegible, not signed by the Cardholder or has not been or cannot be presented to Bank within the required time frame(s); (ii) Sales Draft does not contain the Imprint of a valid unexpired Card; an Authorization has not been obtained and/or a valid Authorization number has not been correctly and legibly recorded on the Sales Draft; Sales Draft is a duplicate of a prior Transaction or is the result of two or more Transactions generated on one Card for a single sale; (v) Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased; (vi) price of goods or services on the Sales Draft differs from the amount which Merchant presents for payment; (vii) Transaction results from an Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the Transaction or the Transaction has been made on an expired or non-existing account number; (viii) Bank or Processor reasonably believes, within their sole discretion, that Merchant has violated any provision of this Agreement; (ix) Bank or Processor reasonably determines that the transaction record is fraudulent or that the Transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation, negligence, fraud, or dishonesty on the part of Merchant or Merchant’s agents or employees; (a) for whatever reason pertaining to not complying with the Rules. (b) Notwithstanding any authorization or request from a Cardholder Merchant shall not initiate a sale Transaction in an attempt to collect a Chargeback. (c) Guarantors are personally liable for all Chargebacks. In the event Merchant sells its business and a new owner incurs Chargebacks, the original Merchant and all Guarantors will be held personally liable for the Chargebacks and any other liabilities of the new owner(s). (d) In the event the Account is closed or is otherwise unavailable to Bank for ACH debit, Merchant and/or Guarantors consent to Bank locating additional deposit accounts or assets by using any means available. In this event Merchant and/or Guarantors waive all rights to their privacy in favor of Bank until such time as all unpaid chargebacks and fees owed to Bank have been paid in full. (e) Merchant agrees to pay Chargeback fees as indicated on the Merchant Application for Chargebacks received by Bank regardless of outcome of a Merchant dispute of such Chargeback. (f) Merchant has the right to follow procedures outlined by the Rules to dispute a Chargeback, but such Merchant dispute procedure does not guarantee to relieve Merchant from the responsibilities in respect to Chargebacks outlined in this Section.
- Excessive Activity. Merchant’s presentation to Bank and Processor of Excessive Activity will be a breach of this Agreement and cause for immediate termination of this Agreement. “Excessive Activity” means, during any monthly period for any one of Merchant’s terminal identification numbers or merchant identification numbers: (i) the dollar amount and/or number of chargebacks and/or retrieval requests in excess of 1% of the average monthly dollar amount and or number of Card transactions; (ii) sales activity that exceeds by 25% of the dollar volume indicated on the Application; or (iii) the dollar amount of returns equals 3% of the average monthly dollar amount of your Card transactions. Merchant authorizes, upon the occurrence of Excessive Activity, Bank or Processor to take any action deemed necessary including but not limited to, suspension or termination of processing privileges or creation or maintenance of a Reserve Account in accordance with this Agreement.
- Fees. Unless otherwise approved in writing by Processor, Merchant agrees to pay $15 for each Retrieval request.
2.5 OTHER TYPES OF TRANSACTIONS
- Recurring Transactions. For recurring transactions, Merchant must be approved by Processor to accept recurring transactions and obtain a written request from the Cardholder for the goods and services to be charged to the Cardholders account, the frequency of the recurring charge, and the duration of time during which such charges may be made. Merchant will not complete any recurring transaction after receiving: (i) a cancellation notice from the Cardholder; (ii) notice from Bank or Processor, or (iii) a response that the Card is not to be honored. Merchant must print legibly on the Sales Draft the words “Recurring Transaction”.
- Multiple Sales Drafts. (a) Merchant will include a description and total amount of goods and services purchased in a single transaction on a single Sales Draft or Transaction record, unless (i) partial payment is entered on the Sales Draft or transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in a Card transaction completed in accordance with this Agreement and the Rules. (b) Merchant shall not submit duplicate Transactions. Merchant shall be debited for any duplicate Transactions and shall be liable for any Chargebacks resulting from duplicate Transactions.
- Mail Orders “MO”, Telephone Orders “TO” and Internet Orders “IO.” (a) Unless Merchant has been implicitly approved by Processor to accept mail orders, telephone orders, or Internet orders, Merchant warrants that it is a walk-in trade business, located in a retail business place conducting face-to-face Transactions. If Merchant is found to be submitting Card Transactions for mail orders, telephone orders, or Internet orders without Processor approval, this Agreement may be terminated and the value of all Sales Drafts collected from the first day of processing may be charged back to Merchant and all funds thereof may be held pursuant to Article IV of this Agreement. (b) If Merchant is authorized by Processor to accept payment by mail order, telephone order, or Internet order, the Sales Draft may be completed without the Cardholder’s signature or an imprint, but in such case Merchant shall create a Sales Draft containing Cardholder account number, expiration date, transaction date, an authorization number, the sale amount and the letters “MO”, “TO”, or “IO” as appropriate. In addition, the Merchant’s business name, city and state must be included. Receiving an Authorization shall not relieve the Merchant of liability for Chargeback on any MO, TO or IO Transaction. (c) For Approved MO, TO, and IO Merchants, performing AVS (Address Verification System) is required. AVS is not a guarantee for payment, and the use of AVS will not waive any provision of this Agreement or otherwise validate a fraudulent transaction. (d) In the event the Merchant is approved to conduct MO, TO, or IO Transactions, Merchant is cautioned to apply fraud protection measures (as described on the Visa and MasterCard web sites) and Merchant understand that there is a higher risk of customer disputes and/or fraud associated with these types of Transactions. (e) If Merchant’s Retail/Mail Order/Telephone Order, Internet mix changes from the percentages represented to Processor in the Merchant Application, Processor may cease accepting mail/telephone order transactions, or limit its acceptance of such transactions, or increase their fees, or terminate this Agreement, or impose a Reserve Account, unless prior written approval has been obtained from Processor . (g) Merchant may not deposit a MO, TO, or IO Sales Draft before the product is shipped.
- Lodging and Vehicle Rental Transactions. (a) Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder’s intended length of stay or rental and the Cardholder must be informed of the dollar amount Merchant intends to pre-authorize. Additional Authorization(s) 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 Draft amount for any lodging or vehicle rental Transaction shall include only that portion of the sale, including any applicable taxes, evidencing a bona fide rental of personal property by Merchant to the Cardholder and shall 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. (c) It is the responsibility of the Merchant to comply with the Rules inherent to the Lodging and Vehicle Rental MCCs in order to qualify for special Interchange pricing incentives for Lodging and Vehicle Rental merchants. Card Association Rules may be obtained and each Card Association’s respective web site.
- Future Delivery. (a) Merchant will not present for processing, whether by electronic means or otherwise, any Sales Draft, or other memorandum, to Bank or Processor representing a payment, partial payment or deposit for goods or services to be delivered in the future, without the prior written consent of Bank or Processor. Such consent will be subject to Bank and Processor's final approval. (b) The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future without prior consent will be deemed a breach of this Agreement and cause for immediate termination in addition to any other remedies available under the law or Rules. (c) If Bank and Processor have given such consent, Merchant represents and warrant to Bank and Processor that Merchant will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services. Merchant will maintain sufficient working capital to provide for the delivery of goods or services at the agreed upon future date, independent of any credit or proceeds resulting from sales drafts or other memoranda taken in connection with future delivery transactions. (d) If Merchant has obtained prior written consent, Merchant will complete such Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one Sales Draft when making a deposit with a Card and a second Sales Draft when paying the balance. Merchant will note upon the Sales Draft the words “deposit” or “balance” as appropriate. Merchant will not deposit the Sales Draft labeled “balance” until the goods have been delivered to Cardholder or Merchant has fully performed the services.
2.6 DEBIT CARD PROCESSING
If Merchant indicated on Merchant Application to become a sponsored participant in the Debit Networks in order to accept Debit Network transaction, Merchant is bound under the terms and conditions set forth in this Section (in addition to the other sections of this Agreement), as follows:
- Debit Networks. “Debit Networks” refers to those regional and national Debit Card networks accepted by Bank, including but not limited to the following organizations and their successors: Star, NYCE, Pulse, Interlink, AFFN, Alaska, Jeanie, Accel, Maestro and Money Station. This Section (2.06) pertains only to transactions authorized, captured and settled through such Debit Network.
- Participation. Merchant agrees to become a participant in each Debit Network Bank and Processor are able to facilitate.
- Compliance. Merchant agrees to comply with all Debit Network rules, regulations, procedures, fees, assessments, penalties, and other membership duties, obligations, and costs of each such Debit Network, which are applicable to Merchant during the term of this Agreement. Merchant shall complete only those POS transactions that comply in all respects with the Rules and which have been authorized. Merchant shall comply with the Graphics Standards Manual, the Security Manual, all federal, state, and local laws applicable to its participation in the system, including without limitation statutes, regulations, and judicial decisions relating to POS transactions, POS Terminals sharing, consumer credit, consumer protection, electronic funds transfers, antitrust, franchise, and other trade regulation matters, and shall indemnify and hold Bank and Debit Network harmless against any and all liability or expenses related thereto.
- C. Honoring Cards. Merchant shall honor all valid cards when presented for payment of Debit transaction when such transactions can be initiated and completed electronically. If a technical malfunction prevents electronic initiation and completion of a transaction, Merchant is not obligated to complete such Debit transaction. Merchant shall treat transactions by any Debit Network cardholders in the same manner as transactions by any other cardholders as permitted by the Rules and law. Merchant may not require or request the cardholder's signature or any other means of verifying the cardholder's identity.
- Authorizations. Bank and Processor will provide a transaction authorization service, which will enable the Merchant to offer its Cardholders a method of payment using PIN-Debit Cards. Merchant will be permitted to accept certain PIN-Debit Cards and access Bank's contracted data center facilities to perform authorization requests.
- Funds. Bank will facilitate the transfer of funds received from the Debit Networks as a result of Merchant's transaction activity. Funds will be transferred to Merchant's Designated Account using the Automated Clearing House (ACH) of the Federal Reserve Bank, on a two-three (2-3) day delayed basis contingent upon receipt of funds by the Bank and method of Merchant statement reconciliation.
- Access. Upon receipt of written instructions from any Debit Network to which Bank is providing access hereunder, Bank may immediately cease to provide to Merchant and its Cardholders, access to such Debit Network. Bank shall use reasonable efforts to promptly notify Merchant of such interruption in network access. Merchant shall indemnify and hold Bank and Processor harmless from any claims, liabilities, or losses, including costs and attorney's fees, resulting from Bank's and Processor's compliance with the written instructions of any Debit Network.
- No Discrimination. Merchant shall treat transactions by any Debit Network Cardholders in the same manner as transactions by any other cardholders, unless otherwise stipulated under law and the Rules.
- Equipment. (a) Merchant shall, at its own expense, obtain and install POS Terminals, together with PIN-Pads and other facilities necessary to support the Debit Network transactions at Merchant location(s). Merchant shall provide Processor and the Debit Network with a list of all Merchant locations currently with compliant POS Terminals capable of accepting cards and shall provide a list as applicable. All POS Terminals shall accept cards. Merchant at all times shall maintain and operate the POS Terminals in accordance with the Operating Rules. (b) Merchant shall take all reasonable steps necessary to ensure that all POS Terminals and PIN-Pads operated at Merchant locations shall: (i) be available for use by cardholders of all provided Debit Networks for POS transactions; and (ii) function with a minimum of error and in a reliable manner and meet all applicable standards contained in the Technical Specifications and the Security Manual for Debit Network. (c) Merchant shall have at, or in proximity to, any POS Terminal where a card is accepted, an operating Track 2 magnetic stripe reader and PIN-Pad that meets the standards contained in Article III, Section 3.04. The requirements of this paragraph shall not apply to POS transactions not involving the transfer of funds such as balance inquiries. Merchant shall be responsible for connecting the POS terminals at each Merchant location.
- Receipts. At the time of any POS transaction involving a transfer of funds, Merchant shall make available to each cardholder a written receipt that complies fully with all applicable state and federal laws and regulation, including, but not limited to, Regulation E (12 C.F.R. § 205), and includes, but is not limited to, the following information: (i) the amount of the POS transaction; (ii) the transaction date; (iii) the type of POS transaction and, if more than one type of account may be accessed at the POS Terminal by the cardholder, the type of account (checking, savings, etc.) and, if more than one account of the same type may be accessed at the POS Terminal by the cardholder the specific account accessed must be uniquely identified; (iv) a number or code that uniquely identifies the cardholder initiating the POS transaction, or the cardholder's account, or the card used to initiate the POS transaction; (v) location of the POS terminal at which the POS transaction was initiated; (vi) the name of the Merchant providing the goods, services or money to the cardholder; and the trace number.
- Dispute Resolution. Merchant will attempt to settle in good faith any dispute with 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. 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 clearly and conspicuously marked (including on the Cardholder’s copy) as “final sale” or “no return” and must comply with the Rules. 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 other 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 applicable Debit Network deems appropriate. Audits will meet Debit Network standards, and the results will be made available to the Debit Network.
- Personal Identification Numbers. (a) For each PIN-based Debit Card sale, Cardholder must enter a Personal Identification Number (“PIN”) through a PIN-pad located at the point of sale. (b) PIN-pad(s) must be situated to permit Cardholders to input PINs without a chance of revealing it to another individual, including Merchant or its employee(s). (c) Merchant will instruct employees not to ask any Cardholder to disclose a PIN and in the event Merchant or employee(s) nevertheless becomes aware of any Cardholder’s PIN, Merchant or employee(s) will not use such PIN or create or maintain any record of such PIN, and will not disclose such PIN to any other person. (d) Merchant must ensure the PIN message is encrypted, using a compliant encryption method, from the PIN-pad to the POS Terminal, and from the POS Terminal to the Debit Network and back (end-to-end). (e) The PIN encryption method considered compliant is the method mandated by the Card Associations, the Debit Networks and the PCI-SSC. (f) Merchant may only use a PIN entry device certified by Bank and listed as compliant by the PCI-SSC (including PTS and PCI-PED) for submitting PIN-Debit Transactions. Merchant will comply with any other requirements relating to PIN security as required by Bank or by any Debit Network, inclusive of PIN encryption method.
- Inquiries. Balance inquiries may be performed only at cardholder-operated terminals and shall at all times require entry of the cardholder's PIN and use of the magnetic stripe reader.
- Confidentiality. Merchant shall not disclose to third parties, other than; (a) the Debit Network, Processor or Bank or (b) otherwise specifically required by law, any information related to POS transactions (including, but not limited to, cardholder account information) without the prior written consent of the cardholder and the card issuing bank.
- Cashback. (a) Cashback transactions shall be limited to the maximum of $200 per Cardholder on any transaction date. If Merchant allows Cardholders to initiate cashback transactions, Merchant must transmit to the Debit Network for each cashback transaction initiated at Merchant’s location, the following information in its transaction message: (i) the amount of cashback given to the Cardholder pursuant to the POS transaction; and (ii) Whether the POS transactions involved the issuance of scrip to the cardholder. For purposes of cashback reporting required under this paragraph, the full amount debited from Cardholder's account during a Debit transaction initiated at terminal that issues scrip shall be reported as the cashback amount, regardless of the amount used by the Cardholder to purchase goods or services at the Merchant’s location. (b) If Merchant receives, in response to a request for authorization for a cashback transaction involving the purchase of goods and services, a denial code indicating that a cashback transaction has been denied solely because the cashback portion of the Debit transaction would cause the Cardholder to exceed a limit on cash withdrawals imposed on the Cardholder by the Card issuing bank, Merchant shall inform Cardholder that the transaction was denied because it would cause the Cardholder to exceed such limit on cash withdrawals, but that a new Debit transaction in the amount of the purchase alone may be approved.
- Indemnity. Merchant shall be responsible for and shall indemnify and hold Debit Network and Bank harmless against any and all liability or expense relating to the payment of federal, state, and local sales, use, and other taxes (other than such taxes based in whole or in part on income attributed to fees for services), when due or deemed to be due, as well as all other expenses, fees and charges imposed by a government, arising out of or incidental to its participation in the system.
- Insurance. Merchant is responsible for obtaining all insurance that may be required by reasonable prudent business practices.
- Inspection. Merchant agrees that, upon request, it will promptly provide to Debit Network, Processor or Bank any information reasonably requested by it to aid in determining whether Merchant is in compliance with the Operating Rules and the Graphics Standards Manual, the Security Manual and this agreement between Merchant, Processor and Bank, or Debit Network.
- Reimbursements. Merchant shall promptly reimburse within three (3) business days of the event giving rise to any loss for the amount of all losses resulting from any of the following actions, including without limitation reasonable attorney’s fees and court costs, in the event that Merchant or any of its agents or employees or any of the operators of its POS Terminals at Merchant locations or the employees or agents of any such operators: (i) knowingly permits anyone other than the Cardholder, or a person expressly authorized by the cardholder, to use the Card and to initiate any POS transaction; (ii) permits the amount debited in a POS transaction by use of a Card to exceed the actual amount of goods or services and cashback, if any, provided to such Cardholder at the time in respect to such transaction; (iii) circumvents the limit imposed by a Merchant on POS transactions by dual submissions for the same POS transaction; (iv) otherwise permits the use of any Card in any manner in violation of the Operating rules or the Security Manual; (v) completes any declined POS transactions; or (vi) otherwise participates in any fraud resulting in loss.
- Records. Merchant shall retain records for each POS transaction for at least seven (7) years or for such longer period as is required by applicable federal or state law or regulation and/or in accordance with Network Operating Rules and in a accordance with Article III, Section 3.04 of the Agreement.
- Investigation. Merchant is responsible for investigation of any complaints regarding POS transactions in accordance with the requirements of the Operating Rules.
- Security. Debit Networks, Bank, Processor or their designated agent, on behalf of itself or others, shall have the right to inspect Merchant security systems and procedures from time to time after reasonable notice to Merchant.
2.7 PROHIBITED AND HIGH RISK TRANSACTIONS
IMPORTANT: FAILURE TO COMPLY IN FULL WITH THIS SECTION OF THE AGREEMENT MAY RESULT IN THE TERMINATION OF THIS AGREEMENT, AND MERCHANT ACCOUNT PRIVILEGES AND MERCHANT MAY BE ADDED TO THE CONSOLIDATED TERMINATED MERCHANT FILE (MATCH).
- Fraud Transactions. Merchant will not, under any circumstances, present for processing of Sale or Credit, directly or indirectly, any Transaction or any Transaction Merchant knows or should know to be fraudulent or not authorized by the Cardholder. Merchant must not request or use a Card Account Number for any purpose other than as payment for goods and services.
- Factoring. Merchant will not, under any circumstances, present for processing of Sale or Credit, directly or indirectly, any Transaction not originated as a result of a bona-fide Card transaction directly between Merchant and Cardholder. Merchant will not present any Sales Drafts on behalf of another company, person, source or entity.
- Lawful Purposes. Merchant will not, under any circumstance, engage in any Transaction, or use Card Acceptance and Transaction capabilities for selling goods and/or providing services prohibited by local, hyper-local, state, federal, international and other applicable laws included, but not limited to, the USA PATRIOT Act, Bank Secrecy Act, Consumer Protection Laws and the U.S. Tax Code. Merchant will not submit any Transactions prohibited by the Rules. Perpetrators of fraud or fraudulent Transactions will be referred to state and/or federal law enforcement agencies.
- Cash Payments. Merchant will not, under any circumstances accept cash, checks or other negotiable items from any Cardholder and forward a Credit Transaction, as a purported payment or deposit to an account maintained by the Cardholder.
- Cash Advances. Merchant will not submit, deposit or process any transaction for the purpose of obtaining or providing a cash advance. Merchant will not submit any transaction that involves a Card owned or controlled by Merchant for the purpose of obtaining a cash advance or deposit of funds into Merchant’s own Designated Account. Merchant agrees that any such deposit or transaction shall be grounds for immediate termination.
- Refinancing Existing Debt. Merchant will not accept a Card to collect or refinance an existing debt that: (i) has been deemed uncollectible by the Merchant providing the associated goods or services; (ii) represents any other pre-existing indebtedness by Cardholder, including collection of delinquent accounts on behalf of other parties; (iii) represents the collection of a dishonored check. Further, Merchant must not accept Cardholder payments for previous Card charges.
- Merchant Category. Merchant may not accept Card payments for products and/or services delivered to Cardholder that are not directly applicable to the Merchant Category Code (MCC) entered on the Merchant Application, for which Merchant was approved. Should Merchant’s MCC change after execution of this Agreement, Merchant shall not submit, deposit or process any Transactions until receiving Bank’s written approval of MCC change. Merchant understands that accepting payments for goods and/or services not directly relating to the approved MCC will result in termination of this Agreement.
- Card Association Rules. Merchant shall comply with the Card Association Rules, as amended from time to time. Merchant is required to review the latest versions of Card Association Rules, as applicable to Merchant’s obligations under this Agreement, available online at each Card Association’s respective web site. Cooperation. Merchant will fully cooperate with Processor, Bank and each Card Association in the event that Bank, Processor or any Card Association determines that there is a substantial risk of fraud arising from Merchant’s access to Card processing networks. Merchant will take whatever action(s) Bank, Processor or Card Associations reasonably deem necessary in order to protect Bank, Processor, Card Associations, its members and Cardholders. Neither the Bank, Processor, nor the Card Associations and any of their respective personnel will have any liability to Merchant for any action taken in good faith.
- Prohibited Transactions. Merchant will not submit any telemarketing (inbound or outbound) sales Transactions or any other Transactions that Bank or Card Associations deem to be High Risk unless Merchant obtains Bank’s prior written consent. Such consent will be subject to Bank’s final approval and may be revoked by Bank without prior notice. Consent can only be obtained from Bank and cannot be granted by Bank’s agents, affiliates, ISOs, MSPs or other non-Bank entities. Merchant may be subject to Card Association registration and reporting requirements. If Merchant processes any such Transactions without Bank’s prior approval, Merchant may be terminated immediately and Bank may suspend funds and/or require Merchant to establish a Reserve Account.
ARTICLE III – MUTUAL OBLIGATIONS
3.1 DESIGNATED ACCOUNT
- Establishment and Authority. Merchant will establish and maintain a demand deposit account at an ACH receiving depository institution approved by Processor (“Designated Account”). Merchant will maintain sufficient funds in the Designated Account to satisfy all obligations to Bank and Processor, including fees, contemplated by this Agreement. Merchant irrevocably authorizes Bank to debit the Designated Account for chargebacks, fees and any other penalties or amounts owed under this Agreement. This authority will remain in effect for at least two (2) years after termination of this Agreement whether or not Merchant has notified Processor and Bank of a change to the Designated Account. Merchant must obtain prior written consent from Bank or processor to change the Designated Account. If Merchant does not obtain that consent, Processor and Bank may immediately terminate the Agreement and may take other action necessary, as determined by them within their sole discretion.
- Deposit. Bank will initiate a deposit in an amount represented on Sales Drafts to the Designated Account subject to Article IV of this Agreement upon receipt of funds from Visa, MasterCard, Discover or a Debit Network. Typically, the deposit will be initiated three (3) business days following Bank’s receipt of the Sales Draft, except for mail order/telephone order and electronic commerce transactions, which may be initiated five (5) business days following receipt of the Sales Draft. “Business Day” means Monday through Friday, excluding holidays observed by the Federal Reserve Bank of New York. Bank will be the only entity to deposit Sales Drafts to the Account subject to Article II, Section 2.04 of this Agreement. Merchant authorizes Bank to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant conditional credit for any entry. Bank, in its sole discretion, may grant Merchant provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by Bank and subject to all chargebacks.
- Asserted Errors. Merchant must promptly examine all statements relating to the Designated Account, and immediately notify Bank and Processor in writing of any asserted errors. Merchant’s written notice must include: (i) Merchant name and account number; (ii) the dollar amount of the asserted error, (iii) a description of the asserted error; and (iv) an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by Bank and Processor within 30 calendar days after Merchant receives the periodic statement containing the asserted error. Merchant’s failure to notify Bank and Processor of any error within thirty (30) days constitutes a waiver of any claim relating to that error. Merchant may not make any claim against Bank and Processor relating to any asserted error for 60 calendar days immediately following Bank’s and Processor's receipt of Merchant’s written notice. During that 60 day period, Bank and Processor will be entitled to investigate the asserted error.
- Indemnity. Merchant will indemnify and hold Processor and Bank harmless for any action they take against the Designated Account, the Reserve Account, or any other account pursuant to this Agreement.
- ACH Authorization. Merchant authorizes Bank to initiate debit/credit entries to the Designated Account, the Reserve Account, or any other account maintained by Merchant at any institution, all in accordance with this Agreement. This authorization will remain in effect beyond termination of this Agreement. In the event Merchant changes the Designated Account, this authorization will apply to the new account.
- Fees. Unless otherwise approved in writing by Bank or Processor, Merchant agrees to pay $15 for each debit or credit rejected or returned from the Designated Account and $20 for each DDA change submitted to Bank during the term of this Agreement.
3.2 MERCHANT OBLIGATIONS
- Notification of Business Changes. Merchant shall provide Bank and Processor with immediate notice if Merchant intents to: (i) transfer, sell or liquidate any substantial part of its total assets and/or equity; (ii) change the basic nature of its business affecting Merchant’s MCC; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant’s business; or (v) modify Merchant’s monthly processing volume and/or average ticket size as approved by Bank and Processor, collectively known as Business Changes. Notice to Bank and Processor should be made to in accordance with Article VII, Section 7.02. Failure or neglect to provide notice of Business Changes may be grounds for termination of this Agreement. In event of Business Changes, Bank and Processor may in their sole discretion act to terminate this Agreement or, if deemed acceptable by Bank and Processor, Bank and Processor may opt to initiate a new Agreement with Merchant. In the event Bank or Processor suffer a monetary loss caused by neglect to comply with this Section, Bank and Processor have the right to recover such losses by means of exercising its Security Interests per Article IV, Section 4.01 of the Agreement.
- Financial Condition. (a) Merchant will notify Bank and Processor, within one business day, in event of bankruptcy, receivership, insolvency, or similar condition or action initiated by or against Merchant or any of its principals; hereafter collectively referred to as a “Financial Condition Change.” (b) Merchant will include Bank and Processor each as a creditor in Merchant’s bankruptcy proceedings if Merchant has funds due to Bank and Processor for any reason including fees, chargebacks or ACH rejects. (c) In event of Financial Condition Change, or if Merchant is aware of future or imminent Financial Condition Change, Merchant will cease all Card acceptance at once and will no longer accept and submit Card Transactions until Processor has given Merchant permission to do so after receiving notice of Financial Condition Change. (d) In the event of Financial Condition Change, Merchant will not sell, transfer, or disclose any Cardholder information, inclusive of Card account numbers or personal information to agent, vendors or any other parties.
- Separate Notification. Separate notification regarding changes to account information, including those to Account, must be made to outside services used by Merchant including but not limited to American Express and any leasing company.
- Equipment. In the event where Merchant enters into a Lease agreement to obtain POS equipment from Processor: (a) Merchant is required to verify the terms of the Lease agreement by way of a telephone conference call between Merchant, Processor, and the leasing company. For each Lease agreement Merchant will have a scheduled appointment date and time to complete this verification. If Merchant does not verify Lease on the scheduled appointment date and time, a Processor representative will make two (2) additional attempts to contact Merchant and complete the verification. If the Lease cannot be successfully verified after these additional attempts, an ACH debit will be made to the Merchant’s Account to recover cost of equipment, shipping and handling. Merchant may contact Processor to reschedule the appointment prior to the initial appointment date and time. The rescheduled appointment cannot be set more than five (5) business days from the original appointment date. (c) Merchant cannot return equipment after 30 days from receipt. Merchant agrees that any and all equipment returns are assessed a twenty percent (20%) restocking fee.
- Request for Copy. Within three (3) calendar days of receipt of any written or verbal request by Bank or Processor, Merchant shall provide either the actual paper Sales Draft or a 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 Processor to meet Bank’s obligations under law (including its obligations under the Fair Credit Billing Act, 15 U.S.C. § 1601 et seq.) or otherwise to respond to questions concerning Cardholder accounts. Unless otherwise approved by Processor, Merchant will be assessed a $15 fee for each request for copy.
3.3 CREDIT INQUIRIES FINANCIAL EXAMINATION AND INSPECTIONS.
- Credit Inquiries. Merchant authorizes Processor to make credit inquiries considered necessary in order to review the acceptance and continuation of this Agreement. This authority is granted to Processor at any time during which Merchant owes any obligation to Bank or Processor and may survive the term of the Agreement. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, principal owners or officers. If requested to do so by Processor, Merchant shall provide written consent of any individual for which an inquiry has been or is to be made if such individual did not execute this Agreement.
- OFAC. Merchant, its principal owner(s) and guarantor(s) acknowledge that Bank and Processor are required by federal law (Section 326, USA PATRIOT Act of 2001) to inquire with the Office of Foreign Asset Control (OFAC) of the U.S. Treasury Department if Merchant, its principal owner(s), proprietor(s), officer(s) or Guarantor(s) are present on any lists maintained by OFAC prior to accepting Merchant.
- Inspections. Merchant agrees to permit Bank and Processor to occasionally 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(s) (where necessary) to conduct its business. However, nothing in this paragraph shall be interpreted as a waiver of Merchant’s obligation to comply in all respects with the terms of this Agreement.
- Audits and Reviews. Merchant authorizes Bank and Processor to audit Merchant’s records, systems, processes or procedures to confirm compliance with this Agreement, as amended from time to time. Merchants processing dollar volumes in excess of $100,000 per month will cooperate with Bank and Processor in performing annual financial reviews by presenting up-to-date financial statements, tax returns and bank statements in order to assure Bank and Processor that Merchant maintains a favorable capital position, liquidity, stability, business practices and general financial condition to fulfill the responsibilities tied to high volume Card processing.
3.4 SAFEGUARDING PAYMENT CARD INFORMATION
- Release of Payment Card Information. Merchant will not, under any circumstance, disclose, copy, distribute, release, make public or transmit payment card information including account number, expiration date, CVV2/CVC2 or other Card security codes, or any data element relating to the payment card to any third party, person, company, recipient or entity other than Bank or Processor.
- Storing Card Data. If Merchant is inclined to retain paper or electronic Sales Drafts or Credit Vouchers, Merchant may only do so if (i) Sales Drafts or Credit Vouchers contain only Cardholder account information permitted to be retained by Merchant as mandated by the Rules; (ii) any type of electronic storage is maintained in strict accordance with the PCI-DSS on a PA-DSS certified system; (iii) Sales Drafts or Credit Vouchers which no longer bear an importance are properly destroyed in a manner which renders the data unreadable and unrecoverable.
- Prohibited Data Storage. Neither Merchant nor any type of software system used by Merchant, shall store, save or retain, in whole or in part, either electronically, on paper or any other type of media, payment card magnetic stripe information, track data, or Card security codes (e.g. CVV, CVC, CID, CVV2 or CVC2) appearing or stored on the payment Card.
- Payment Applications. Merchant may be using special services, hardware or software provided by a third party (“Third Party Payment System”) to assist Merchant in processing transactions, including authorizations, batch settlement or accounting functions. In the event Merchant uses a Third Party Payment System including, but not limited to, a POS terminal, POS system, POS software, payment software, payment gateway, virtual terminal, cardholder activated terminal or automated fuel dispenser, Merchant is responsible for assuring third party system is PA-DSS certified and complies with the PABP (Payment Application Best Practices) as set forth by the Payment Card Industry Security Standards Council (PCI-SSC) and the Card Associations. Merchant must ensure that any software or system updates of Third Party Payment System(s) satisfies all security standards required under the Rules (including PABP, PA-DSS and PCI-DSS). All electronic commerce Merchants must provide Cardholders with a secure and encrypted transaction method, utilizing a valid Secure Sockets Layer (SSL) certificate or 3D Secure. Bank and Processor have no responsibility for any transaction until that point in time Bank or Processor receives data about the transaction. Merchant must notify Bank and Processor of its use of any Third Party Payment System that will have access to and/or stores Cardholder or Payment Card information.
- Electronic Terminals. If Merchant provides its own Point-of-Sale electronic terminal or similar device (“POS Terminal”), such POS Terminals must comply with, and meet all requirements set forth by, Bank and Processor, and directives set forth by the PCI-SSC as amended from time to time, in order to submit Transactions. Information regarding a sales or credit Transaction transmitted with a POS Terminal will be transmitted by Merchant to Bank or Processor in the format Bank or Processor from time to time specifies or is required under the Rules. If Bank or Processor requests a copy of a Sales Draft, credit voucher or other Transaction evidence, Merchant will provide it within three (3) business days following the request. The means of transmission indicated in the Merchant Application shall be the exclusive means utilized by Merchant until Merchant has provided Processor with at least thirty (30) days prior written notice of Merchant’s intention to change the means of such delivery or otherwise to alter in any material respect Merchant’s medium of transmission of data to Bank or Processor.
- PCI-DSS Compliance. Merchant shall be in full compliance with rules, regulations, guidelines and procedures adopted by any Card Association or Payment Network relating to the privacy and security of Cardholder and Card transaction data, including without limitation the most up-to-date version of the Payment Card Industry Data Security Standard (PCI-DSS), as amended from time to time by the Payment Card Industry Security Standards Council. Detailed information pertaining to aforementioned requirements may be found at https://www.pcisecuritystandards.org. Additional information regarding security requirements may be found on the Card Association’s respective web sites.
- Merchant Responsibility. (a) MERCHANT SHALL BE LIABLE FOR ALL FINES, CHARGES AND PENALTIES THAT MAY BE ASSESSED BY ANY CARD ASSOCIATION OR PAYMENT NETWORK AS A RESULT OF TRANSACTIONS MADE BY MERCHANT OR MERCHANT’S NONCOMPLIANCE WITH THE PRECEDING REQUIREMENTS. (b) Merchant acknowledges that it may be prohibited from participating in payment network programs if it is determined that Merchant is non-compliant. (c) Merchant acknowledges that Processor may cause Merchant to subject to an audit to verify Merchant’s compliance with the foregoing security requirements. (d) Merchant must notify Processor within twenty-four (24) hours after becoming aware of: (i) any suspected or actual data security breach; or (ii) any noncompliance by Merchant with the security requirements set forth herein. (e) Merchant shall, at its own expense: (i) perform or cause to be performed an independent investigation of any data security breach of Card or Transaction data by an authorized assessor acceptable to Processor; (ii) take all such remedial actions recommended by such investigation, Bank, Processor or Card Association; and (iii) cooperate with Bank and Processor in the investigation and resolution of any security breach.
- Truncation. Merchant must comply and adhere to the security provisions set forth in the Fair and Accurate Credit Transactions Act of 2003 (FACTA) which mandate that card receipts given to the Cardholder may not contain: (i) more than the last five digits of the credit card account number; and (ii) that the Card receipt may not contain the expiration date.
- Passwords. In the event where Merchant receives a password from Bank or Processor to access a transaction system or gateway, Merchant shall: (i) keep password confidential; (ii) not allow any other entity or individual to use password or gain access to Bank’s systems; (iii) be liable for all action taken by any user of the password; and (iv) promptly notify Bank and Processor if Merchant believes the confidentiality of Bank’s system or Merchant’s information has been compromised by use of such password.
3.5 FEES AND OTHER AMOUNTS OWED BANK
- Fees and Taxes. Merchant will pay Bank and Processor fees for services, forms and equipment in accordance with the fees and rates set forth on the Application. Such fees will be calculated and debited from the Designated Account once each business day or month for the previous business day or month’s activity, or will be deducted from funds due Merchant attributable to Sales Drafts presented to Bank. Processor reserves the right to adjust the fees set forth on the Application, including adding fees for additional services utilized by Merchant, provided that Processor must approve, and notify Merchant in advance of, any fee to or obligation of Merchant arising from or related to performance of this Agreement. Merchant is obligated to pay all taxes, and other charges imposed by any governmental authority on the services provided under this Agreement. Bank may not assign or otherwise transfer an obligation to pay or reimburse Merchant arising from, or related to, performance of this Agreement.
- Other Amounts Owed. Merchant will immediately pay Processor and Bank any amount incurred by Processor or Bank attributable to this Agreement including but not limited to chargebacks, fines imposed by Card Associations non-sufficient funds fees, and ACH debits that overdraw the Designated Account, Reserve Account or are otherwise dishonored. Merchant authorizes Bank to debit via ACH the Designated Account, Reserve Account, or any other account Merchant has at Bank or at any other affiliate or subsidiary of Bank or other financial institution for any amount Merchant owes Bank or Processor under this Agreement or under any other contract, note, guaranty, instrument or dealing of any kind now existing or later entered into between Merchant and Bank or Processor, whether Merchant obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event Bank demand funds due or such ACH does not fully reimburse Processor and Bank for the amount owed, Merchant will immediately pay Bank such amount. Merchant acknowledges and agrees that Bank will impose an 18% per annum interest rate charged to Merchant on the balance of any overdue funds due to Bank or Processor, or the greatest amount allowed by law, whichever is greater.
- Pass-Through Fees. Each card organization (Visa, MasterCard and Discover Network) assess fees to merchants in connection with transactions that are outside the control of Bank and Processor, such as, dues & assessments, fixed acquirer network fees, international/cross-border transaction fees, network access and data usage charges. Pass-through fees are charged at cost to Merchant.
ARTICLE IV – SECURITY INTERESTS, RESERVE ACCOUNT, RECOUPMENT AND SET-OFF
4.1 SECURITY INTERESTS
- Security Agreement. This Agreement is a security agreement under the Uniform Commercial Code. Merchant grants to Bank and Processor a security interest in and lien upon: (i) all funds at any time in the Designated Account, regardless of the source of such funds; (ii) all funds at any time in the Reserve Account, regardless of the source of such funds; (iii) present and future Sales Drafts; (iv) Merchant’s electronic terminal, printer, imprinter and imprinter plate; (v) all accounts, regardless of source, wherever found, standing in the name of Merchant and/or Guarantor(s), including any affiliated companies of Merchant and/or Guarantor(s), whether established or designated and maintained pursuant to this Agreement or not; and (vi) any and all amounts which may be due to Merchant under this Agreement including, without limitation, all rights to receive any payments or credits under this Agreement (collectively. the “Secured Assets”). Merchant agrees to provide other collateral or security to Bank and Processor to secure your obligations under this Agreement upon Bank’s or Processor's request. These security interests and liens will secure all Merchant obligations under this Agreement and any other agreements now existing or later entered into between Merchant, Processor and Bank. This security interest may be exercised by Bank or Processor without notice or demand of any kind by making an immediate withdrawal or freezing the Secured Assets.
- Perfection. Upon request of Bank or Processor, Merchant will execute one or more financing statements or other documents to evidence this security interest. Merchant will represent and warrant that no other person or entity has a security interest in the Secured Assets. Further, with respect to such security interests and liens, Bank will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. Merchant will obtain from Bank and Processor written consent prior to granting a security interest of any kind in the Secured Assets to a third party. Merchant agrees that this is a contract of recoupment and Bank and Processor are not required to file a motion for relief from a bankruptcy action automatic stay for Bank and Processor to realize on any of its collateral (including any Reserve Account). Nevertheless Merchant agrees not to contest or object to any motion for relief from the automatic stay filed by Bank and Processor. Merchant authorizes Bank and Processor to appoint Bank and Processor as Merchant’s attorney-in-fact to sign Merchant’s name to any financing statement used for the perfection of any security interest or lien granted hereunder.
- Guaranty. As a primary inducement to Bank and Processor to enter into this Agreement with Merchant, the undersigned Guarantor(s), whether by signing the Merchant Application or by acknowledging consent by electronic means, joint and several, unconditionally and irrevocably, guarantees the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Processor and Bank pursuant to this agreement, as it now exists or is amended from time to time, with or without notice. Guarantor(s) understands further that Bank and Processor` may proceed directly against Guarantor(s) without first exhausting its remedies against any other individual or entity responsible therefore to it or any security held by Bank and Processor or Merchant. This guarantee will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives and assigns of Merchant and may be enforced by or for the benefit of any successor of Bank and Processor. Guarantor(s) understand that the inducement to Bank and Processor to enter into this Agreement is consideration for this Guaranty, and that this Guaranty remains in full force and effect even if Guarantor(s) receives no additional benefit from the Guaranty.
4.2 RESERVE ACCOUNT
- Establishment. Merchant will establish and maintain a non-interest bearing deposit account (“Reserve Account”) at Bank initially or at any time in the future as requested by Bank or Processor, with sums sufficient to satisfy Merchant’s current and future obligations as determined by Bank or Processor. Merchant authorizes Bank to debit the Designated Account or any other account Merchant has at Bank or any other financial institution to establish or maintain funds in the Reserve Account. Bank may deposit into the Reserve Account funds it would otherwise be obligated to pay Merchant, for the purpose of establishing, maintaining or increasing the Reserve Account in accordance with this Section, if Bank or Processor determines such action is reasonably necessary to protect Bank’s interests.
- Use of Reserve Account. Bank may, without notice to Merchant, apply deposits in the Reserve Account against any outstanding amounts Merchant owes under this Agreement or any other agreement between Merchant, Processor and Bank. Further, Bank may exercise its right under this Agreement against the Reserve Account to collect any amounts due to Bank or Processor including, without limitation, rights of set-off and recoupment. Bank’s and Processor's right to outstanding amounts owed it by Merchant pursuant to this Agreement shall in no way be limited to the balance or existence of the Reserve Account. Rights granted to Bank and Processor with respect to the Reserve Account, as well as the security interest under this Agreement, shall survive the termination of this Agreement
- Funds. Funds in the Reserve Account will remain in the Reserve Account until 270 calendar days following the later of termination of this Agreement, or Merchant’s last transmission of Sales Drafts or Credit Voucher to Bank, or Chargeback submitted by Cardholder, provided, however, that Merchant will remain liable to Bank and Processor, for all liabilities occurring beyond such 270-day period. After the expiration of such 270-day period Merchant must provide Bank and Processor with written notification indicating Merchant’s desire of a release of any funds remaining in the Reserve Account in order to receive such funds. Merchant agrees that Merchant will not use these funds in the Reserve Account for any purpose, including but not limited to paying chargebacks, fees, fines or other amounts Merchant owes Bank and Processor under this Agreement. Bank will have sole control of the funds in Reserve Account..
- Assurance. In the event of a Bankruptcy proceeding, Bank and Processor do not consent to assumption of this Agreement. Nevertheless, in the event of a bankruptcy proceeding and the determination by the court that this Agreement is assumable under the Bankruptcy Code (11 U.S.C. § 365), as amended from time to time, Merchant must establish or maintain a Reserve Account in an amount satisfactory to Bank and Processor. Assumption will be made under terms and conditions that are acceptable to Bank and Processor and comply with the applicable federal or state laws governing such assumption.
- Recoupment and Set Off. Bank and Processor have the right of recoupment and set-off. Specifically, Bank may offset or recoup any outstanding/uncollected amounts owed by Merchant from: (i) any amounts Bank would otherwise be obligated to deposit into the Designated Account; (ii) any other amounts Bank may owe Merchant under this Agreement or any other agreement; and (iii) any funds in the Designated Account or Reserve Account. Merchant acknowledges that in the event of a bankruptcy proceeding, in order for Merchant to provide adequate protection under the Bankruptcy Code to Bank, Merchant must create or maintain the Reserve Account as required by Bank, and Bank must have the right to offset against the Reserve Account for any and all obligations which Merchant may owe to Bank and Processor, without regard to whether the obligations relate to Sales Drafts initiated or created before or after the filing of the bankruptcy petition.
- Recoupment of Chargebacks. In the event of Merchant’s default in payment of chargebacks, Merchant and Guarantor(s) agree: (i) that all personal Bank accounts standing in their names shall be subject to this Agreement and ACH debits; (ii) all ACH debits, whether made against Merchant’s Account or a Guarantor’s personal account shall bear a commercial account code designation (CCD) for purposes of electronic collection via the ACH system; and (iii) Merchant and/or Guarantor(s) irrevocably consent to Bank utilizing any means available to locate such deposit accounts until such time when all amounts due have been satisfied. Bank may enforce this security interest as applicable by: (a) making an immediate debit/charge via the ACH system (code CCD) to any deposit account standing in the name or names of Merchant and/or Guarantor(s), without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the ACH system; (b) freezing the Designated Account and Reserve Account, without notice or demand of any kind; (c) taking possession of any or all of Merchant’s Sales Drafts; (d) taking possession of any and/or all of Merchant’s electronic terminals, printers, imprinters, and imprinter plates; (e) by placing a receiver within Merchant’s place of business without notice or bond to intercept and collect all income derived from Merchant’s operations until such time as any indebtedness owed to Bank arising under this Agreement has been satisfied in full; (f) by obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant and/or Guarantor(s)’s personal property upon a showing of a presumption that Merchant has committed an act of fraud or is about to misappropriate funds to which it is not entitled. Merchant shall provide any statement or notice that Bank determines to be necessary in order to preserve and protect this security interest. The granting of this security interest by Merchant and/or Guarantor(s) in no way limits Merchant’s liabilities to Bank or Processor under this Agreement.
- Account Monitoring. (a) Merchant acknowledges that Processor and Bank will monitor Merchant’s daily deposit activity. The deposit activity must remain consistent to the monthly volume and average ticket amount implicitly approved or adjusted by Bank and Processor (“Risk Parameters”). If Merchant should exceed Risk Parameters, Merchant agrees to provide documentation as set forth by Bank and Processor if so required. Merchant agrees that Bank may not deposit total Sales Draft dollar volume in excess of the implicitly approved monthly volume, and that Merchant may be subject to a 5% fee on all funds processed over the approved monthly volume limit. Merchant agrees that Bank or Processor may, at their sole discretion, suspend Merchant’s transaction deposits for any reasonable period of time required to investigate suspicious or unusual transaction activity. Processor shall make a good faith effort to notify Merchant immediately. Merchant agrees to pay $25.00 for each release of funds suspended by Bank. Neither Bank nor Processor shall have any liability for any losses, direct or indirect, which Merchant may attribute to any suspension of funds disbursement. (b) In the event of suspension of transaction deposits by Bank, Merchant agrees to a Security Processing Fee not to exceed 110% of the transaction activity may be assessed. (c) If a batch is suspended by Bank, Merchant acknowledges that the consumer’s product or service must be delivered just as if the Merchant has been paid. Further, if a batch or a transaction is suspended, Merchant acknowledges that fees, including security fees, will be assessed by Bank. (d) At sole discretion of Bank, if Merchant’s type of business is deemed a compliance risk to Bank, Bank may enroll Merchant in third-party risk monitoring service (“Monitoring Service”) at the sole expense of Merchant. Merchant will either be notified in advance of underwriting approval of enrollment in Monitoring Service and related expenses, or notified no less than 30 days in advance if Merchant has an open merchant account with Bank. Refusal of Merchant‘s enrollment in Monitoring Service when mandated by Bank, may be cause for termination of this Agreement.
ARTICLE V – TERM AND TERMINATION EVENTS
5.1 TERM AND TERMINATION
- Term. The Agreement shall take effect on the “Effective Date”, and shall have an initial term of one month (the “Initial Term”), provided, however that if Merchant submits a transaction prior to the Effective Date, Merchant will be bound by all terms of this Agreement. Unless otherwise terminated by any party in accordance with the terms of this Agreement, the Agreement will automatically renew for successive one month terms (each, a “Renewal Term”).
- Termination. The Agreement may be terminated by Bank, Processor or Merchant to be effective at the end of the Initial Term or any Renewal Term. If Merchant wishes to terminate this Agreement it may provide notice of non-renewal to Processor at any point during the Term. Further, this Agreement may be terminated at any time with or without notice and with or without cause by Bank or Processor. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement.
- Debit Termination. Processing under a particular Debit Network may be suspended or terminated (without terminating this entire Agreement) if: (i) the Debit Network determines to suspend or terminate processing; or (ii) automatically, upon termination or expiration of Bank’s or Merchant’s access to such Debit Network whether caused by termination or expiration of Bank’s agreement with such Debit Network or otherwise. In addition, in the event that Bank’s participation in such Debit Network is suspended for any reason, processing through such Debit Network by Merchant will be suspended for the period of time of such suspension and Bank will notify Merchant of that event. Neither Bank, Processor nor any Debit Network will have any liability to Merchant as a result of any such suspension or termination.
- Terminated Merchant File. Merchant acknowledges that MATCH (formerly known as the Combined Terminated Merchant Files or “CTMF”) is a file maintained by MasterCard and accessed by Card Associations and banks containing the business names and the identification of principals of Merchant, which have been terminated for one or more reasons specified in the Rules. Merchant acknowledges that Bank and Processor are required to report the business name of Merchant and the names and identification of its principals to MATCH when Merchant is terminated for such reasons. Merchant consents to such reporting to the Card Associations by Bank and Processor. Further, Merchant waives and will hold harmless Bank and Processor from any claims, which Merchant may raise as a result of such reporting.
- Designated Account. All Merchant obligations regarding accepted Sales Drafts will survive termination. Merchant must maintain in the Designated Account and the Reserve Account enough funds to cover all chargebacks, deposit charges, refunds and fees incurred by Merchant for a reasonable time, but in any event not less than the time specified in this agreement. Merchant authorizes Bank to charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Designated Account or Reserve Account is not adequate, Merchant will pay Bank the amount owed to Bank and Processor upon demand, together with all costs and expenses incurred to collect that amount, including reasonable attorneys’ fees.
- Reason to Terminate: Bank and Processor may terminate this Agreement immediately without prior notice if (i) Bank or Processor reasonably believe that fraudulent Card Transactions or other activity prohibited by this Agreement is occurring at any Merchant location; (ii) Bank or Processor are required to take action to prevent loss to Bank, Processor, or Card Issuers, (iii) in the event of any significant circumstances that do or could create harm or loss of goodwill to any Card Association; (iv) Merchant appears on any Card Association's security or termination reporting, or (v) Merchant Acceptance Criteria of Bank and Processor or laws in respect to Merchant’s business changes.
- Bankruptcy. If any case or proceeding is commenced by or against Merchant under any federal or state law dealing with insolvency, bankruptcy, receivership or other debt relief, this Agreement shall simultaneously therewith automatically terminate, and any amounts due to Bank and Processor shall accelerate and become immediately due and payable, without the necessity of any notice, declaration or other act whatsoever by Bank and Processor.
5.2 ACTION TAKEN UPON TERMINATION
- Discontinuation of Services. In the event of termination for any reason, Merchant expressly authorizes Bank to withhold and discontinue the disbursement for all Cards and other payment transactions of Merchant in the process of being collected and deposited. Upon termination for any reason, Merchant will immediately cease requesting Authorizations and will cease transmitting Sales Drafts to Bank and Processor. In the event Merchant obtains any Authorization after termination, Merchant expressly acknowledges and agrees that the fact that any Authorization was requested or obtained shall not operate to reinstate this Agreement.
- Maintaining Reserves. Collected funds will be placed in a Reserve Account until Merchant pays any equipment and processing cancellation fees and any outstanding charges, losses or amounts for which Merchant is liable under this Agreement. Further, Bank or Processor reserve the right to require Merchant to deposit additional amounts based upon Merchant’s processing history and/or anticipated risk of loss to Bank or Processor into the Reserve Account. The Reserve Account shall be maintained for a minimum of 270 days after the termination date and for a reasonable time thereafter during which Cardholder disputes may remain valid under the Rules. The provisions of this Agreement relating to the debiting and crediting of the Account shall be applied to the Reserve Account and shall survive termination of this Agreement until Bank terminates the Reserve Account. Any remaining balance after Chargeback rights have expired and all other expenses, losses, and damages have been paid will be disbursed to Merchant upon request.
- Records. Following termination, Merchant shall upon request provide Processor with all original and microfilm copies of Sales Drafts and Credit Vouchers to be retained as of the date of termination.
- Return to Processor. All promotional materials, advertising displays, signage, emblems, Sales Draft forms, credit memoranda and other forms supplied to Merchant and not purchased by Merchant or consumed in use will remain the property of Processor and will be immediately returned to Processor upon termination of this Agreement. Merchant is fully liable for all loss, cost, and expense suffered or incurred by Processor arising out of the failure to return or destroy such materials following termination.
ARTICLE VI – INDEMNIFICATION, LIMITATION OF LIABILITY, WARRANTIES
6.1 LIMITATION OF LIABILITY
- Limitation of Liability. Any liability of Bank or Processor under this Agreement whether to Merchant or to any other party, whatever the basis of liability, shall not exceed in the aggregate the difference between: (i) the amount of fees paid by Merchant to Bank during the month in which the transaction out of which the liability arose occurred; and (ii) assessments, Chargebacks, and any offsets authorized under this Agreement against such fees which arose during such month. In the event more than one month was involved, the aggregate amount of Bank’s and Processor's liability shall not exceed the lowest amount determined in accord with the foregoing calculation for any one-month involved. In no event will Bank or Processor, nor its officers, agents, directors, or employees be liable for any indirect, special, or consequential damages including loss profits, revenues and business opportunities. IN NO EVENT SHALL BANK OR PROCESSOR, OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MERCHANT ACKNOWLEDGES AND AGREES THAT PAYMENT OF ANY EARLY TERMINATION FEE AS PROVIDED IN ARTICLE V, SECTION 5.02.C ABOVE SHALL NOT BE PROHIBITED BY THIS SECTION.
- Indemnification. Merchant shall hold harmless and indemnify the Card Associations, Bank, Processor, affiliates, officers, directors, agents, representatives and their employees harmless from: (i) any claim relating to a dispute between Merchant and a Cardholder; (ii) against all claims by third parties arising out of this Agreement; (iii) any Sales Draft paid for by Bank as may be made by anyone by way of defense, dispute, off-set, counterclaim or affirmative action, or for any damages of, or losses that Bank or Processor may incur as a result of Merchant’s breach of this Agreement; and (iv) for all attorney fees and other costs and expenses paid or incurred by Bank and Processor in the enforcement of the Agreement, including but not limited to those resulting from any breach by Merchant of this Agreement and those related to any bankruptcy proceeding.
- Service Agreement. THIS AGREEMENT IS A SERVICE AGREEMENT. BANK AND PROCESSOR DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER INDIVIDUAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY SERVICES OR ANY GOODS PROVIDED BY A THIRD PARTY.
6.2 REPRESENTATIONS AND WARRANTIES
- Performance. Bank and Processor will perform all services in accordance with this Agreement. Bank and Processor make no other warranty, express or implied, regarding the services, and nothing contained in the Agreement will constitute such warranty. Processor and Bank disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. Bank and Processor will not be liable to the other parties for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control and without the fault or negligence of Bank or Processor. Bank and Processor are not liable for the acts or omissions of any third party.
- Terminals not Provided by Processor. Merchant will notify Processor immediately if Merchant decides to use electronic authorization or data capture Terminals or Software provided by any entity other than Processor or its authorized designee (“Third-Party Terminals”) to process transactions. If Merchant elects to use Third-Party Terminal(s), Merchant agrees: (i) the third party providing the terminals or software will be Merchant’s agent in the delivery of the Transactions to Bank and Processor via a data processing system or network; and (ii) to assume full responsibility and liability for any failure of that third party to comply with the Rules of this Agreement and the provisions of Article III, Section 3.04 of the Agreement. Neither Bank nor Processor will be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third party agent or a malfunction in a third party’s software or terminal.
- Warranties of Merchant. Merchant represents and warrants to Bank and Processor at the time of execution and during the term of this Agreement the following: (a) All information contained in the Merchant Application or any other documents delivered to Processor in connection herewith and therewith is true and complete and properly reflects Merchant’s business, financial condition, and principal partners, owners or officers. (b) Merchant is a Corporation, Limited Liability Company, Partnership, Sole Proprietorship or other legitimate and legally organized organization validly existing and organized in the United States. (c) Merchant and individual signing this Agreement have the power and authority 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) Individuals signing this agreement (“Signers”) are duly authorized by the legal entity represented by Signers in the Merchant Application to bind Merchant into this Agreement on behalf of Merchant. (d) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so. (e) Merchant is not engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Merchant Application, unless Merchant obtains the prior written consent of Processor. (f) 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. (g) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby. (h) Merchant has complied with Processor and Bank procedures accepting Cards, and the Card Transaction itself shall not involve any element of credit for any other purposes other than as set forth in this Agreement and shall not be subject to any defense, dispute, offset or counter claim which may be raised by any Cardholder under the rules, the Consumer Credit Protection Act (15 USC § 1601) or other relevant state or federal statutes or regulations. (i) Merchant warrants that any Credit Voucher, which it issues represent a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted. (j) Unless Merchant notifies Processor in writing, either on Merchant Application or otherwise, no other processing relationship exists between Merchant and any other Bankcard processing institution, for this business, or any other business managed or owned by Merchant. (k) All transactions are bona fide. No transaction involves the use of a Card for any purpose other than the purchase of goods or services from Merchant. (l) Merchant and Guarantor(s) acknowledge that all documents submitted in conjunction with this Agreement are being submitted in order to induce a federally insured financial institution to extend them credit and that submission of any false information herein may subject them to criminal prosecution, fine and/or imprisonment. (m) Merchant has supplied its true and correct taxpayer identification number on the Merchant Application.
- Authorization of Agreement. Merchant represents and warrants that the individual signing the Merchant Application and Agreement, physically or by acknowledging consent by electronic means, is duly authorized to bind Merchant to all provisions of this Agreement and that such individual is duly authorized to execute any contract document on behalf of Merchant. Merchant will execute a separate Entity Certification if requested to do so by Processor.
- Signature. Merchant, by its signature, upon its first transmission of Transactions, or first payment of fees, acknowledges receipt, acceptance and comprehension of this Agreement. If Merchant has not entered into this Agreement by executing this Agreement via counter signature or electronic means, Merchant agrees that Merchant’s first transmission of a transaction or first payment of fees to Bank constitutes Merchant’s acceptance of this Agreement.
- Attorneys’ Fees. Merchant will be liable for and will indemnify and reimburse Bank or Processor for all attorneys’ fees and other costs and expenses paid or incurred by Processor and Bank or their agents in the enforcement of this Agreement, or in collecting any amounts due from Merchant or resulting from any breach by Merchant of this Agreement.
ARTICLE VII – MISCELLANEOUS
7.1 USE OF TRADEMARKS AND CONFIDENTIALITY
- Card Signage. Merchants will prominently display Card signage provided by Processor in its place(s) of business and the type of signage displayed will be in accordance with the card brands accepted by Merchant and if Merchant participates in full or limited acceptance.
- Use of Trademarks. (a) Use of trade name, trademark, service mark or logotype (“Marks”) associated with any of the Card Associations and their brands shall be limited to informing the public that Card(s) will be accepted at Merchant’s place(s) of business. Merchant’s use of promotional materials and Marks is subject to the direction of Processor and must fully comply with the Rules. (b) Merchant may use promotional materials and Marks during the term of this Agreement and shall immediately cease their use and return any inventory to Processor upon termination thereof. (c) Merchant shall not use any promotional materials or Marks associated with the Card Associations and Debit Networks in any way that implies that the Card Associations or Debit Networks endorse any goods or services other than their own.
- Confidentiality. Merchant acknowledges that Bank and Processor through the expenditure of a significant amount of time, effort, cost, and research, developed and secured the right to use various computer programs, forms, logos, manuals, and related materials, including without limitation the Operating Rules, which constitute property of great value and trade secrets, and that disclosure to others of such materials may result in loss and/or irreparable damage. Merchant further acknowledges that the system in its entirety constitutes a trade secret which is revealed to Merchant in confidence. Accordingly, Merchant agrees to hold and use any and all such property or information regarding the system in confidence, and not to disclose, reveal, copy, sell, transfer, sub-license, assign, or distribute any part of it, in any form, to any individual, firm, corporation, or other entity, nor permit any of its employees, agents, or representatives to do so, except as permitted by the Operating Rules, or otherwise expressly permitted in writing by the Bank or Processor. The Merchant further agrees that upon termination of this Agreement for any reason, it will immediately return all such property to Processor.
7.2 GENERAL PROVISIONS
- Entire Agreement. This Agreement, including the Merchant Application, the Schedule of Fees, the Rules, and Exhibits to this Agreement expresses the entire understanding of the parties with respect to its subject matter and except as provided herein, all prior or other agreements or representations, written or oral, are superseded. Reference to "this Agreement" also includes all documents incorporated into this Agreement by reference. If copies of this Agreement or any amendments are to be physically signed, this Agreement may be executed and delivered in several counterparts and transmitted electronically or facsimile, a copy of which will constitute an original and all of which taken together will constitute a single agreement.
- Governing Law and Venue. Bank, Processor, Merchant and Guarantor(s) agree that all performances and transactions under this Agreement will be deemed to have occurred in California and that Merchant's entry into and performance of this Agreement will be deemed to be the transaction of business within the State of California. This Agreement will be governed by California law, without regard to its conflicts-of-law principles, and applicable federal law. Bank, Merchant and Guarantor(s) hereby consent to the exclusive jurisdiction and venue for any action relating to the subject matter of this Agreement in Sonoma County, California and/or California Superior Court in Sonoma County, California and/or United States District Court for the Northern District of California. The parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of the State of California or United States federal law.
- Exclusivity. During the Initial and any Renewal Term of this Agreement, Merchant shall not enter into an agreement with any other entity that provides Card processing services similar to those provided by Processor as contemplated by this Agreement without Processor’s written consent.
- Construction. The typographical headings used in this Agreement are inserted for reading convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Any alteration or strikeover in the text of this pre-printed Agreement will have no binding effect, and will not be deemed to amend this Agreement. This Agreement may be executed by facsimile, and facsimile copies of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals.
- Assignability. This Agreement may not be assigned by Merchant directly or by operation of law, without the prior written consent of Processor . If Merchant nevertheless assigns this Agreement without such consent of Processor , Merchant shall remain liable and the Agreement also shall be binding upon the assignee. Original Merchant and Guarantor(s) shall be held personally liable in the event such assignee incurs chargebacks, retrievals, ACH rejects, losses, fines or any other liabilities under this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties’ respective heirs, personal representatives, successors, and assigns. Bank and Processor may assign this Agreement.
- Amendment. This Agreement is subject to amendment in order to conform and comply with any amendments or modifications of the Rules or law. From time to time Processor may amend any provision of this Agreement, including, without limitation, those relating to discount rates or other fees and charges payable by Merchant by mailing written notice to Merchant of the amendment, and the amendment shall become effective and enforceable unless Processor receives Merchant’s notice of termination of this Agreement within seven (7) days. Amendments due to changes in either Card Association’s fees, interchange, assessments, Rules or any law or judicial decision may become effective on such shorter period of time as Processor may specify if necessary to comply with the applicable Rule, law, or decision.
- Notices; Consent to Electronic Communications. By applying for services and confirming that it has read the Merchant Agreement, Merchant is confirming to Processor that it has the means to access the Internet through its own service provider and download or print electronic communications. Merchant agrees to the receipt of electronic communications by email or by the posting of such information by Bank or Processor at one or more of Processor’s sponsored websites, such as www.zift.io. Such communications may pertain to the services delivered by Processor, the use of information Merchant may submit to Processor, changes in laws or Rules impacting the service or other reasons, such as amendment of the Merchant Agreement. In addition, all notices and other communications required or permitted under this Agreement by Processor to Merchant may also be delivered by Processor to Merchant either by email or fax, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under this Agreement by Merchant to Processor shall be delivered by Merchant to Processor by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by fax or e-mail shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section: (a) If to Bank, addressed and transmitted as follows: Westamerica Bank, 3750 Westwind Blvd, Suite 210, Santa Rosa, CA 95403, Fax: (707) 5787055; (b) If to Merchant, at the address provided as the billing address, or the fax number or e-mail address and to the contact listed on the Merchant Application; (c) If to Processor, by Email: firstname.lastname@example.org.
- Force Majeure. Any delay in or failure of performance by Bank or Processor under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond their reasonable control, including, but not limited to, acts of God, power outages, failures of the Internet, failures of banking, ACH or payment networks not under direct control of Bank or Processor.
- Amendments. Bank or Processor may amend this Agreement at any time upon notice to Merchant. With regard to increases in existing fees, or imposition of new fees, Processor will provide Merchant with a thirty (30) day notice to the extent it has received such prior notification of new fees.
- Severability and Waiver. If any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the failure nor delay by Bank or Processor to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by the waiving party.
- Remedies Cumulative. All rights and remedies conferred upon Bank and Processor in this Agreement, at law or in equity, are not intended to be exclusive of one another. Rather, each and every right of Bank and Processor under this Agreement, at law or in equity, will be cumulative and concurrent and in addition to every other right.
- Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable, and binding on the parties.
- Relationship of Parties. The parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other party.
- Employee Actions. Merchant is responsible for its employee’s actions while in its employ.
- Survival. All Sections of this Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, indemnification obligations, confidentiality obligations, warranty disclaimers, limitations of liability, Sections 2.4.C, 2.7, 3.1, 3.4, 3.5, and Articles 4, 5, 6 and 7.1.C.
- Further Assurances. At any time or from time to time, upon the request of Processor, Merchant will execute and deliver further documents as Processor may reasonably request in order to effectuate fully the purposes of this Agreement.
- IRS Withholding Regulations. Pursuant to Section 6050W of the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return for each calendar year reporting all payment card transactions and third party network transactions with payees occurring in that calendar year. Accordingly, Merchant will receive a Form 1099-K reporting its gross transaction amounts for each calendar year. The Merchant’s gross transaction amount refers to the gross dollar amount of the card transactions processed through its merchant account with Bank. In addition, amounts reportable under Section 6050W are subject to backup withholding requirements. Payors will be 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 payor, or (b) if the IRS notifies the payor 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 provide Bank with the correct name and TIN that it uses when filing your tax return that includes the transactions for its business.
ARTICLE VIII - AMERICAN EXPRESS CARD ACCEPTANCE PROGRAM
8.1 TERMS BELOW ARE ADDITIONALLY APPLICABLE TO ONLY THOSE MERCHANTS WITH AMERICAN EXPRESS CARD ACCEPTANCE
- Merchant agrees to comply with, and accept Cards in accordance with, the terms of this Agreement and the American Express Merchant Operating Guide (www.americanexpress.com/merchantopguide), which is incorporated herein by reference and as may be amended from time to time.
- With respect to participation in the Program, in the event of a conflict between the terms below and other terms of this Agreement, the terms below shall control. Any defined terms pertaining to the Program, which are not defined in this Agreement, shall be given the definition provided by America Express.
- General Terms. Merchant authorizes ISO and/or its affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express or Service Provider on behalf of Merchant. ISO may collect and disclose Transaction Data, Merchant Data, and other information about Merchant to American Express; and (ii) American Express to use such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of this Agreement, and important transactional or relationship communications from American Express. American Express may use the information obtained in the merchant application at the time of setup to screen and/or monitor Merchant in connection with Card marketing and administrative purposes.
- Marketing Message Opt-Out. Merchant may opt-out of receiving future commercial marketing communications from American Express by contacting ISO. 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.
- Conversion to American Express Direct Merchant. Merchant acknowledges that it may be converted from the Program to a direct relationship with American Express if and when its Transaction volumes exceed the eligibility thresholds for the Program, becoming a High CV Merchant. If this occurs, upon such conversion, (i) Merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by Merchant.
- American Express as Third Party Beneficiary. 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 the Program to enforce such terms against Merchant.
- American Express Opt-Out. Merchant may opt out of accepting American Express at any time without directly or indirectly affecting its rights to accept Other Payment Products.
- Refund Policies. Merchant’s refund policies for American Express purchases must be at least as favorable as its refund policy for purchase on any Other Payment Products, and the refund policy must be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law. Merchant may not bill or attempt to collect from any Cardmember for any American Express Transaction unless a Chargeback has been exercised, Merchant has fully paid for such Charge, and it otherwise has the right to do so.
- Assignment. Merchant shall not assign to any third party any payments due to it under the Program, and all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future Transaction receivables to Service Provider, its affiliated entities and/or any other cash advance funding source that partners with Service Provider or its affiliated entities, without consent of American Express.
- Termination. Service Provider may immediately terminate Merchant’s right to accept Cards and Merchant’s participation in the Program if (i) Merchant breaches any of the provisions of this Agreement, (ii) Merchant breaches any provision of the American Express Merchant Operating Guide, (iii) for cause or fraudulent or other activity, or (iv) upon request from American Express. Upon termination of this Agreement or upon Merchant’s termination of the Program, Merchant shall cease all use of, and remove American Express Licensed Marks from Merchant’s website and wherever else they are displayed.
- Laws and Regulations. Merchant must comply with all Applicable Laws, rules, and regulations relating to the conduct of Merchant’s business. Merchant much comply with the American Express Data Security Requirements (DSR) and Payment Card Industry Data Security Standard (PCI DSS).
- Data Security. Merchant must ensure data quality and that Transaction Data and customer information is processed promptly, accurately and completely, and complies with the American Express Technical Specifications. Merchant is responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data. Merchant must report all instances of a Data Incident immediately to Service Provider after discovery of the incident.
ARTICLE IX - ACH ACCEPTANCE
9.1 ACH Acceptance. If Merchant submits ACH payments to Processor, Merchant is bound by the terms and conditions of this Section (in addition to the other sections of this Agreement) and the Operating Rules of the National Automated Clearing House Association (“NACHA”) in existence as of the date of this Agreement and as amended from time to time (herein collectively referred to as the “Rules” which are available upon request).
- ACH Transactions. This Agreement is applicable to processing ACH transactions, which may be Prearranged Payment and Deposit (PPD) transactions, Internet- Initiated Entry (WEB), Cash Concentration and Disbursement (CCD), or Telephone- Initiated Entry (TEL) all utilizing the end-customer’s checking account information (“ACH Services”). If the ACH transactions are web-initiated, Merchant is required to provide its own shopping cart or use Processor’s or a third party’s software or shopping cart, which will integrate with Processor’s systems. In all cases where Processor hosts software for Merchant, all requirements imposed by regulatory agencies, law enforcement, Processor, or otherwise, shall have full force and effect.
- Processor’s Roles and Responsibilities. Merchant must utilize a Processor-approved shopping cart, software, and/or approved method of electronic file transmission to use the ACH Services. Processor will accept entries via Merchant’s payment gateway. Processor is only responsible for processing entries that have arrived at its premises in a proper format and on a timely basis. Processor will use information provided by Merchant to originate its entries in the ACH file that is sent to the originating bank (ODFI). Merchant understands and agrees that Processor may reject Merchant’s entries for any reason permitted in this Agreement and/or if acceptance of such entry would cause Processor to potentially violate any federal, state or local law, rule statute, or regulation, including without limitation the NACHA Rules, any Federal Reserve or another regulatory risk control program. At Merchant’s written request, Processor will make reasonable efforts to reverse or delete an entry but will under no circumstance be liable for the failure to comply with the request.
- IMPORTANT: PROCESSOR OFFERS NO GUARANTEE FOR ENTRIES THAT ARE RETURNED UNPAID AND MERCHANT SHALL BE LIABLE FOR 100% OF ALL LOSSES ARISING FROM RETURNED ENTRIES.
- C. Merchant’s Responsibilities. Merchant agrees to process all ACH transactions related to its business exclusively through Processor and give Processor the right of first refusal on any future ACH or electronic check processing contracts with Merchant. Merchant agrees to inform customers that Merchant will honor electronic ACH processing services provided by Processor. In no way shall the Merchant indicate that Processor’s services are an endorsement of the Merchant, its business or its business practices. Processor reserves the right to audit Merchant to ensure compliance with the NACHA Rules and this Agreement.
- D. Merchant’s Representations. Merchant represents and warrants that it will comply with the NACHA Rules, all federal, state, and local laws, rules and regulations as amended from time to time, including those with respect to consumer protection, data security, and processing of ACH transactions. Merchant also represents and warrants that with each transaction presented to Processor by Merchant for authorization: (i) each customer has authorized the debiting/crediting of their checking account or, that each debit or credit is for an amount agreed to by the customer; (ii) Merchant has not submitted ACH transactions drawn from its checking/savings accounts on the Merchant’s payment gateway; (iii) Merchant has not submitted duplicates of any transactions; and (iv) the banking information submitted to Processor for processing has not been altered by Merchant.
- E. Data Retention. Merchant shall retain all records related to ACH transactions, including all sales and credit receipts and authorizations for a period of no less than two years following the date termination or revocation of the authorization.
- F. ACH Debit Restrictions. From time to time, Processor shall establish necessary security and identification procedures for presentment of electronic checks or debits for electronic processing pursuant to the NACHA Rules and applicable law. Merchant agrees to comply with such procedures and to accept such “properly presented” ACH debits for electronic processing. For an ACH debit transaction to be valid, customer must initiate the transaction and complete an ACH authorization agreement.
9.2 Acknowledgement. MERCHANT ACKNOWLEDGES AND UNDERSTANDS THAT IT IS A FEDERAL VIOLATION TO PROCESS DEBIT REQUESTS AGAINST A CONSUMER BANK ACCOUNT WITHOUT ACCOUNT HOLDER’S EXPRESSED AUTHORITY. MERCHANT HEREBY ACKNOWLEDGES RECEIPT OF PROPER NOTICE THAT THE USE OF ANY COUNTERFEIT, FICTITIOUS, LOST, STOLEN, OR FRAUDULENTLY OBTAINED DEBIT INSTRUMENT TO UNLAWFULLY INITIATE A DEBIT TRANSACTION IS PUNISHABLE BY LAW. IT IS SPECIFICALLY UNDERSTOOD BY MERCHANT THAT ANY TRANSACTION EVENT INITIATED AS AN UNAUTHORIZED MANUAL ENTRY OR DEPOSIT BY MERCHANT AFTER MERCHANT HAS RECEIVED APPROVAL FOR ELECTRONIC DEPOSIT OF ACH TRANSACTIONS OR IS INTENDED FOR ELECTRONIC DEPOSIT SHALL BE INTERPRETED AS AN UNLAWFUL DEBIT TRANSACTION PURSUANT TO THIS NOTICE. IN THE EVENT OF SUCH A VIOLATION, MERCHANT AGREES AND WARRANTS TO HOLD PROCESSOR AND ALL OF ITS ASSIGNS AND ASSOCIATES HARMLESS AND REIMBURSE PROCESSOR FOR THE TRANSACTIONS WITHIN 24 HOURS OF SAID OCCURRENCE. IF MERCHANT REFUSES OR IS UNABLE TO REIMBURSE PROCESSOR FOR ANY SUCH OCCURRENCE, IT IS EXPRESSLY STATED AND UNDERSTOOD THAT THE MERCHANT IS IN DIRECT VIOLATION OF THIS AGREEMENT AND FEDERAL LAW, AND PROCESSOR MAY PURSUE ALL LEGAL, CIVIL, AND COLLECTION REMEDIES AS ARE POSSIBLE UNDER LAW AS REMEDY.
Terms and Conditions | v082022 | Zift is a registered ISO/SP of Westamerica Bank, Santa Rosa, CA
Terms and Conditions (Canada)
Effective October 19, 2022Download
Table of Contents
TERMS AND CONDITIONS
THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THE ACCOMPANIED MERCHANT APPLICATION DOCUMENT (“Merchant Application” or “Application”), AND THE TERMS AND CONDITIONS HEREIN, TOGETHER WITH THE MERCHANT APPLICATION, COLLECTIVELY CONSTITUTE THE MERCHANT PROCESSING AGREEMENT (“Merchant Agreement” or “Agreement” or “MPA”) AND APPLY TO YOUR PROCESSING OF BANKCARD TRANSACTIONS.
This Agreement is entered into on the day, month and year indicated on the Merchant Application submitted by Merchant and is by and among Zift ("Processor"), Peoples Trust Company, (hereinafter referred to as “Bank”) and Merchant (hereinafter referred to as “Merchant”) whose personal name, address, business organization name and type of business are set forth on the Merchant Application.
Peoples Trust is a member of the Card Associations and provides sponsorship to Zift in accordance with the applicable Card Association Rules. Peoples Trust’s obligations under this Agreement are to provide sponsorship to Zift and to enable Zift to offer you the Card Acceptance Services in accordance with the Card Association Rules. Beyond those obligations, Peoples Trust will not have any obligation or liability in connection with any services provided by Zift to the Merchant under this Agreement. As between themselves, the rights and obligations of Peoples Trust and Zift are governed by the agreements between them and the Card Association Rules, if applicable. Zift is the provider of the Gateway Services described in this Agreement, which may include the processing, transmitting and storage of Account and Transaction Records. In providing these services, Zift warrants that it is, and shall remain during the duration of this agreement PCIDSS Level 1 Compliant.
In consideration of the mutual promises made and the mutual benefits to be derived from this Agreement, Zift, Peoples Trust and the Merchant agree as follows:
ARTICLE 1: Definitions
1.1 As used in this Agreement, the following words will have the following meanings when capitalized:
- “Application” means the Merchant Application including, without limitation, the PAD Agreement, Pricing Schedule, completed by or on behalf of Merchant.
- “Authorization” means the approval by the Card issuer or Card Association to validate a Transaction.
- “Card” means any valid credit card or debit card, whether represented on a card plastic or mobile device, issued by a member of a Card Association and bearing its respective trade names, trademarks, and/or trade symbols, that Merchant is approved to accept under this Agreement.
- “Card Acceptance Services” means the activities undertaken by the Servicers to authorize, process and settle Transactions submitted by Merchant pursuant to this Agreement.
- “Card Association” means Mastercard, Visa, Interac Association, or any other credit or debit card association or network whose cards are accepted by the Servicers for processing.
- “Card Fees” means the Merchant’s rate and transaction fees determined by Zift, as set out in the Pricing Schedule of the Application.
- “Card Not Present Transaction” means a transaction between a Merchant and a Cardholder using a Card that is not physically presented to the Merchant at the time of the transaction, such as transactions initiated over the Internet, telephone, through mail-order or fax.
- “Card Present Transaction” means a transaction between a Merchant and a Cardholder using a Card that is initiated at a payment terminal at a point-of-sale.
- “Cardholder” means the person whose name is embossed or printed on the face of a Card or other authorized user of a Card.
- “Cardholder Data” means any information about an identifiable Cardholder, including Transaction Records as well as any information used to authenticate a Transaction such as, but not limited to, payment card number, payment card expiration date, Personal Identification Number (PIN), Card Verification Value (CVV), Card Verification Value2 (CVV2), passwords, pass phrases, digital certificates, and biometric authentication mechanisms.
- “Chargeback” occurs when a credit or a payment for a Transaction (or disputed portion thereof) is reversed after an authorization number has been provided.
- “Contactless” means a Card Present Transaction that does not require contact (swipe or PIN entry) with the payment terminal at the point-of-sale.
- “Effective Date” means the date indicated on the merchant application.
- “Fees” means Card Fees and Other Fees.
- “Pricing Schedule” refers to the Pricing section of the Application.
- “Gateway Services” means the payment processing services offered through Zift‘s payment processing technology.
- “Initial Term” has the meaning set out in Article 6 – Term and Termination.
- “Merchant Platform” means Merchant’s online portal for payment submission along with all associated software code, routines, business processes and related intellectual property of Merchant.
- “Other Fees” means any other fees set forth on the Pricing Schedule other than Card Fees that Merchant is obliged to pay, as applicable, for the Services requested from the Servicers in the Application.
- “PCI DSS” means Payment Card Industry Data Security Standards, which are security standards set by the Card Associations and are applicable to you.
- “POS Material” means point of sale marketing material provided to Merchant by the Servicers.
- “Privacy Laws” means the Information Protection and Electronic Documents Act (Canada), as amended or supplemented from time to time, and any other Canadian federal or provincial legislation now in force or that may in the future come into force governing the collection, use, disclosure and protection of personal information in the private sector applicable to a party to this Agreement or to the Services.
- “Renewal Term” has the meaning set out in Article 6 – Term and Termination.
- “Reserve Account” means an account established in accordance with Article 7 of this Agreement.
- “Rules” means the written rules and regulations imposed or adopted by any Card Association, as they may be amended from time to time. The Rules are published on the web sites of the Card Associations.
- “Service Account” means an account established at a financial institution designated by Merchant as the account to be credited for transactions processed by the Merchant and debited by the Servicers for Card Fees, Other Fees, Chargebacks and other amounts assessed by a Card Association and passed through to the Merchant pursuant to the terms of this Agreement.
- “Service Account PAD Agreement” means the Pre-Authorized Debit Agreement relating to debiting of Fees from the Service Account, set out in the Application.
- “Services” means the Card Acceptance Services and the Gateway Services, as applicable.
- “Servicers” means Zift and Peoples Trust.
- “Software” means Zift’s software used to provide the Services, which includes Zift’s proprietary authorization system, payment gateway, and platform, User Documentation, and all copyrights, know-how, trade secrets, trademarks, service marks, trade names, patents, and other proprietary rights in the same.
- “Third Party Gateway Services Provider” has the meaning given in 2.16(A).
- “Threatening Condition” means that a Merchant’s conduct or a Merchant’s products or services are in violation of applicable law, or pose a threat to the Software.
- “Transaction” means any legitimate Card Present Transaction or Card Not Present Transaction between Merchant and a Cardholder in which a Card is used that involves a sale, refund or adjustment in the amount of a sale or refund.
- “Transaction Records” include sales slips and credit slips, which may be paper-based or electronic records that you give the Cardholder showing the amount of the Transaction and whether the Transaction was approved or declined by the Card issuer.
- “User Documentation” means the approval letter, or any other notification you received, regarding the set-up and approval of your Merchant account with additional details regarding the provision of the Services, including instructions on integration with the Software, and any other information Servicers may provide you regarding your Merchant account.
1.2 These definitions shall survive termination of this Agreement.
ARTICLE 2: Card Acceptance Services
2.1 The following provisions apply to both Card Present Transactions and Card Not Present Transactions, unless otherwise specified.
- Merchant shall comply with any authorization procedures, included pre- and post-authorization procedures, set out in this Agreement, in the User Documentation and the Card Association Rules, and as the Servicers may otherwise direct from time to time.
- Merchant acknowledges that Authorization: (i) indicates only the availability of credit at the time of Authorization; (ii) does not warrant that the person presenting the Card is the rightful Cardholder; and (iii) is not an unconditional promise or guarantee by Servicers that any Transaction will not be subject to Chargeback.
2.3 Merchant agrees to accept all valid and unexpired Cards presented by Merchant’s customers for payment, and to honor any Card resented regardless of type of Card or Card Association unless the Card or Card Association is not supported by the Gateway Services.
2.4 Merchant shall process all of its Transactions exclusively through the Servicers hereunder and shall not, directly or indirectly, process any Transactions through any third party.
2.5 Merchant is permitted to provide (i) discounts to customers for cash purchases or (ii) differential discounts to Cardholders among different Card Associations, to the extent permitted by Card Associations.
2.6 Merchant is not permitted to do any of the following:
- charge Cardholders a fee or surcharge for accepting Cards unless permitted by the Card Brand rules;
- require a Transaction minimum value for accepting Cards;
- mislead any Cardholder into believing that his or her Transaction is being processed on one Card when it is actually being processed on another Card;
- use the Services for illegal purposes, or to interfere with or disrupt other users of the Services; or
- use any Card other than for the sole purpose of completing a bona fide Transaction.
2.7 Merchant shall submit Transaction Records to Servicers no later than the next business day immediately following the day that Transactions are originated, in the manner indicated in the User Documentation or as otherwise directed by Servicers.
2.8 Merchant is not permitted to submit a Transaction:
- prior to the term or following termination of this Agreement;
- while Merchant is in breach of this Agreement;
- while the Merchant or any of its affiliates or directors, officers, employees, agents or representatives are listed on the Member Alert To Control High-Risk merchants list of Mastercard (the Match List) in Canada or the United States;
- if Merchant has previously sent the same Transaction to another acquiring bank and that acquiring bank has declined to process the Transaction;
- that has failed address verification;
- that is already subject to a partial refund under this Agreement or otherwise;
- that is known or suspected to be fraudulent or unacceptable by the Servicers regardless of whether Merchant has been given notice of such Transactions by the Servicers or is submitted by any business other than Merchant, as authorized by this Agreement;
- for the purchase of products or services that are illegal in Canada or the United States;
- for a customer who is a shareholder, director, officer, employee, agent or representative of Merchant or any of its affiliates;
- that was made in connection with an e-wallet, virtual cash or other payment aggregation service;
- for a good or service that is being sold for a price other than the posted price.
2.9 In respect of each Transaction, Merchant represents and warrants to the Servicers that:
- it represents a legitimate sale of goods or services by Merchant to a Cardholder in the ordinary course of Merchant’s business;
- it was not previously submitted under this Agreement;
- it represents an obligation of the cardholder for the amount of the Transaction;
- the amount of the Transaction is only for the goods or services sold including applicable taxes;
- the amount charged for the Transaction is not subject to any dispute, setoff or counterclaim;
- Merchant has no reason to believe that the Transaction is fraudulent or not authorized by the Cardholder, or that the enforceability or collectability of the Cardholder’s obligation is or could be impaired in any way; and
- it was made in accordance with, and complies with the terms of, this Agreement, the User Documentation, the Rules and applicable law.
- The Servicers will settle with you by crediting your Service Account with an amount equal to the total of your sales Transactions less your returns and refund Transactions, Chargebacks and applicable Fees. The Servicers’ standard funding schedule is daily, or two days in arrears, following settlement batch close of the Merchant’s terminal. An alternative funding schedule may be imposed at Servicers’ discretion, based on a number of credit and risk considerations. Servicers will give Merchant reasonable advanced notice of any such change in funding schedule. All credits to the Service Account or other payments to Merchant are subject to final audit by the Servicers and the Servicers have a right to debit or credit the Service Account to correct any errors.
- The transfer of settlement funds is normally conducted by electronic funds transfer (EFT) to your Service Account. Due to the nature of EFT, the electronic networks utilized for the movement of funds, and the fact that not all financial institutions belong to the EFT network, payment to Merchant may be delayed. Servicers will not be liable for any delays in transfer of settlement funds or errors in debit and credit entries caused by third parties.
- Servicers reserve the right to divert and hold all settlement funds when Servicers are investigating any breach of this Agreement by Merchant or have reasonable cause to believe that Merchant may have violated a provision of this Agreement, the User Documentation or the Rules, or is engaged in illegal or fraudulent activity, has abnormal transaction activity, or has excessive Chargebacks. Servicers’ reserve the right to withhold settlement funds as set forth in this Section, and as may be set forth elsewhere in this Agreement, which right shall survive termination hereof.
- The Servicers may be required to transfer settlement funds to your Service Account by bank wire transfer for reasons beyond the control of Servicers, in which case Merchant will be assessed a wire transfer fee for each such transfer.
2.11 Merchants Bank Accounts.
- Merchant shall maintain the Service Account and is solely responsible for all fees, costs and expenses incurred in connection with the Service Account. Merchant may not change its Service Account without the prior written consent of the Servicers.
- Merchant authorizes Zift to debit the Service Account in accordance with the Service Account PAD Agreement for the Fees, any Chargebacks, any returns and refunds, erroneous deposits therein and any other amounts assessed by the Card Association that the Servicers are permitted to pass through to you pursuant to this Agreement and any other liabilities of Merchant to Servicers hereunder. Merchant agrees to work with Zift to help resolve any problems in crediting/debiting the Service Account.
- Servicers may elect to invoice you for any Fees or other amounts payable by you under this Agreement rather than debit your Service Account. If you receive an invoice from the Servicers, any amounts due shall be payable within 30 calendar days of the date of such invoice, or on such earlier date as may be specified on the invoice, in the manner specified on the invoice.
- If an invoice remains unpaid 30 days after the due date, or if your payment is dishonored (returned NSF or rejected), the Services may be suspended. Suspension of Services shall not relieve you of your obligation to pay any and all past due Fees. You will also be responsible for any collection or legal costs incurred by Servicers to collect any overdue or dishonored payment. Suspended Services may be resumed upon receipt of full payment of all amounts due plus the reconnection fee.
2.12 Fraud, Collection Risk and Taxes. Merchant will bear all risk (including, without limitation, collection risk in respect of card fraud and any other type of credit fraud or Merchant disputes including Chargebacks) with respect to sales of its products or services and will bear all responsibility and liability for the proper payment of all taxes which may be levied or assessed (including, without limitation, sales taxes) in respect of sales of its products or services. The terms of this Section shall survive termination of this Agreement.
2.13 Merchant Responsibility to Cardholder. Merchant is responsible for ensuring that the Cardholder understands that the Merchant is responsible for the Transaction, including for the performance of the terms and conditions of the Transaction and for providing customer service in relation to the Transaction, including dispute resolution. Merchant must inform Cardholders prominently and unequivocally of the identity of the Merchant at all points of interaction.
2.14 Transaction Records. You shall keep all Transaction Records for two years, even if such time period expires following the termination of this Agreement, or longer if required by applicable law. You shall provide Zift with copies of Transaction Records upon request. The terms set forth in this Section 2.14 shall survive termination of this Agreement.
2.15 Chargebacks & Card Association Compliance.
- The Servicers, Visa, Mastercard, Discover and the issuing banks of the Card Associations all have the right to chargeback any credit or debit Transaction processed through the Services to the extent that such Transaction is presented or processed in violation of the applicable Rules, this Agreement or where the Cardholder disputes the Transaction pursuant to the applicable Rules. Merchant shall be responsible for any such Chargebacks and Zift is authorized to deduct Chargeback amounts from your Service Account in accordance with this Agreement. In the event of an overdraft in your Service Account for any reason, Merchant shall immediately deposit an amount sufficient to cover any overdraft and any related service charges or fees.
- You are ultimately responsible for the Transactions you process. The Card Associations may impose fees, fines or penalties if your Chargeback volume or the number of Transactions you process on fraudulent or counterfeit Cards is excessive. You agree that you are responsible to reimburse the Servicers for the amount of all fees, fines or penalties levied as a result of these Transactions. You will cooperate with the Servicers to determine why your Chargeback volume or the number of Transactions processed on fraudulent or counterfeit Cards is excessive and to implement measures to reduce the volume. The Servicers may terminate access to the Services if the Chargeback volume or the number of Transactions processed on fraudulent or counterfeit Cards is excessive and/or exceeds Card Associations’ accepted levels.
- The parties agree to cooperate in the appeal of any non-compliance notices received from the Card Associations, including any notice claiming breach of the Rules by provision of the Services (“Non-Compliance Claim”). In the event that a Servicer receives a Non-Compliance Claim, the Servicer shall promptly give written notice to the Merchant and the parties shall meet to discuss the Non-Compliance Claim and work together to settle the matter. Notwithstanding the foregoing, the final resolution or disposition of any Non-Compliance Claim as between the Servicers and the Merchant shall be at the sole and absolute discretion of the Servicers.
- The Merchant is responsible for, and shall pay to the Servicers on demand, any fees, fines or penalties imposed upon the Servicers by a Card Association with respect to, or resulting from, the acts or omissions of the Merchant.
2.16 Gateway Services. If Merchant utilizes one or more Gateway Services from Zift, the provisions of Article 4 of this Agreement shall apply to such services. If Merchant does not utilize any Gateway Services from Zift but is authorized to accept and process Card Not Present Transactions through a third party payment gateway, Merchant must inform Servicers of such third party payment gateway, any processing software, shopping cart, Web Site host, or other service provider (collectively “Third Party Gateway Service Providers”). Any third party payment gateway must be approved by Servicers and Merchant is prohibited from transmitting any Cardholder Data to any Third Party Gateway Service Providers (or any third party) without the approval of Servicers. If Merchant accepts Card Not Present Transactions without such approval, Servicers may, in addition to any other rights they may have under this Agreement, establish a Chargeback reserve account to protect them from risk of loss.
2.17 Debit Transactions. In respect of all debit Transactions, Merchant agrees as follows:
- to provide to Zift the information required to complete Zift’s security compliance certification program, as required by the Interac Association; and
- to respond to any tracing request for an Interac debit transaction in accordance with IDP 5 (Interac Operating Regulations - IDP 5- Transaction Settlement, Settlement Agents and Dispute Resolution).
2.18 Visa Debit Transactions. In respect of all Visa debit Transactions, Merchant agrees as follows:
- Any transaction on a Visa debit Card by a Merchant that has elected to not accept Visa debit Cards or where the Cardholder has elected to not carry out a Visa debit Card transaction, shall be deemed an improper use of the Services and shall not be a Transaction for the purposes of this Agreement; and;
- Foreign Visa debit Card Transactions are handled in the same manner as domestic Visa debit Card Transactions whether they be PIN or swipe.
2.19 Additional Terms.
- Additional terms that apply specifically to Card Present Transactions and Card Not Present Transactions are set out in the Attachments to this Agreement as follows:
- Attachment 1 – Additional Terms Applicable to Card Present Transactions
- Attachment 2 – Additional Terms Applicable to Card Not Present Transactions
ARTICLE 3: Intellectual Property
3.1 Zift grants Merchant a non-exclusive, non-transferable, royalty-free, revocable, limited sub-license to use (but not the right to sublicense) the Software for the term of this Agreement for the sole and limited purpose of submitting Transactions to Zift for processing and/or for otherwise accessing the Gateway Services, if applicable. Zift represents and warrants that it has all necessary right, title and interest to provide you this license.
3.2 Merchant acknowledges and agrees that Zift and its licensors are the sole owners of all right, title and interest in and to the Software. Merchant shall not commit any act that might prejudice or adversely affect the validity of such ownership.
3.3 Merchant shall not reverse engineer, decompile, disassemble, translate, modify, decompile or disclose to any third party the Software nor shall it do so to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listing for the Software. Merchant shall have no right to use, market, distribute, sell, sub-license, deliver or otherwise transfer the Software or any part thereof either for or to any third party. Merchant shall not alter any trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Software or any part of any of them, or any of their supporting materials, documentation or packaging. Any future additions, modifications, versions, upgrades or updates of the Software released to Merchant shall be deemed to be part of the Software, shall be licensed to the Merchant under the terms of 3.1, and the Software shall benefit from the restrictions set out herein.
3.4 Merchant shall not directly or indirectly (and shall not knowingly cause or permit anyone to) reproduce or prepare any derivative work based upon the Software or any other proprietary information belonging to Zift. Merchant agrees to secure and protect tangible forms of the Software so as to maintain the rights of Zift and its licensors.
3.5 Zift may, from time to time, release Software updates. If Zift notifies you regarding a Software update, you must integrate such update in the timeframe and manner notified by Zift in order to preserve the timely provision of the Services. The Servicers will not be responsible for any failure of the Services if such failure is a result of the Merchant’s failure to integrate a Software update in accordance with Zift’s notification. Zift shall not have any obligation to provide support or services for any outdated version of the Software.
3.6 Zift shall be entitled to create, distribute and sub-license aggregate statistical and database compilations derived from Merchant data and Cardholder Data, such as demographics, site traffic, viewing and navigation patterns, and transaction characteristics.
3.7 Merchant’s use of the Card Association trademarks must comply with all applicable requirements of the Rules. Merchant’s use or display of such trademarks must terminate upon termination of this Agreement or upon notification by the Card Associations that Merchant must discontinue such use or display. Nothing in this Agreement shall grant any right to Merchant in any name, mark or trademark of any Card Association or the Servicers.
3.8 Merchant agrees that the Servicers may refer to Merchant by trade name and trademark and may describe Merchant’s business in marketing materials, press releases, announcements and web sites. Merchant grants each of Peoples Trust and Zift a limited license to use any Merchant trade names and trademarks solely in connection with the rights granted to Peoples Trust and Zift pursuant to this Section. All goodwill associated with Merchant’s trade name and trademarks will inure solely to Merchant.
3.9 Merchant may display the slogan “Enabled by Zift”, or any other Zift slogans together with the Zift logo, or any other Zift trademark or service mark or logo, on Merchant’s web site or marketing literature only after obtaining Zift’s written approval. All goodwill associated with Zift’s trade name, trademarks, slogans and logos will inure solely to Zift.
ARTICLE 4: Gateway Services
The provisions of this Article 4 – GATEWAY SERVICES apply only if Merchant utilizes one or more Gateway Services provided by Zift.
4.1 Merchant Platform.
- Zift acknowledges and agrees that the Merchant and its licensors are the sole owners of all right, title, and interest in and to the Merchant Platform. Merchant shall not commit any act that might prejudice or adversely affect the validity of such ownership.
- Zift shall not reverse engineer, decompile, disassemble, translate, modify, decompile or disclose to any third party the Merchant Platform nor shall it do so to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listing for the Merchant Platform. Zift shall have no right to use, market, distribute, sell, sub-license, deliver or otherwise transfer the Merchant Platform or any part thereof either for or to any third party. Zift shall not alter any trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Merchant Platform or any part of any of them, or any of their supporting materials, documentation or packaging. Any future additions, modifications, versions, upgrades or updates of the Merchant Platform released to Zift shall be deemed to be part of the Merchant Platform and shall benefit from the restrictions set out herein.
4.2 Right of Use and Support Services. The Gateway Services shall be used by Merchant solely for its internal business and in accordance with all other provisions herein. Upon request, Zift will provide Merchant with the following support in connection with the Gateway Services:
- training on the use of the Gateway Services and answering Merchant’s questions regarding the use of the Gateway Services;
- temporary and/or permanent solutions to any reported and
- documented errors in the Software;
- providing assistance with the set-up and integration of the Merchant Platform with the Software in order to access the Gateway Services (“Integration”);
- Integration testing; and
- facilitating Transaction processing.
4.3 Integration with Merchant Platform. Other than the support services to be provided by Zift as described in 4.2, Merchant is responsible for all technical support for the Merchant Platform and for any Integration related issues. You agree that you will use best efforts to complete the Integration as soon as possible. You will be responsible for all of your own development and implementation costs associated with such Integration. Notwithstanding any other provision of this Agreement, you acknowledge that unless and until you complete the Integration, Zift will not be responsible for providing the Gateway Services.
4.4 Shut Downs. The Gateway Services may be temporarily unavailable from time to time, without prior notice to Merchant, in order for Zift to perform maintenance and/or upgrades. Such periods of unavailability shall not exceed five minutes during business hours without prior notification to you.
4.5 Limitations. Zift may, without notice, suspend Merchant’s access to the Gateway Services if at any time the Card Acceptance Services have been suspended or if Zift reasonably believes that a Threatening Condition exists. The right of the Merchant to use the Gateway Services shall terminate on any termination of this Agreement.
ARTICLE 5: General Provisions Regarding Services; Fees; Amendments
5.1 The Servicers agree to provide the Services in accordance with the terms of this Agreement, the User Documentation, the Rules and applicable law. The parties agree that the Servicers may perform any or all of their obligations and/or responsibilities under this Agreement through one or more affiliates or service providers.
5.2 Prior to activation of the Services, the Servicers shall establish an account in Merchant’s name. Merchant shall be entirely liable for all activities conducted through Merchant’s account.
5.3 In the event where Merchant receives a password from Zift to access Services, Merchant shall:
- keep password confidential;
- not allow any other entity or individual to use password or gain access to the Servicer’s systems;
- be liable for all action taken by any user of the password; and
- promptly notify Servicers if Merchant believes the confidentiality of Bank’s system, Processor’s system, or Merchant’s information has been compromised by use of such password.
5.4 If there is a failure in the Services to conform to the User Documentation, Merchant shall notify the Servicers of the failure. The Servicers will confirm receipt of such notification and Merchant’s sole remedy for the failure shall be that the Servicers will rectify the failure within thirty days of confirming receipt of the Merchant’s notification. If Servicers do not cure the failure within that time period, Merchant may terminate this Agreement upon written notice to the Servicers in accordance with Article 6 – Term and Termination.
5.5 Merchant agrees to fulfill its obligations under this Agreement, and to use the Services, in accordance with the terms of this Agreement, the User Documentation, the Rules as they apply to the Merchant, and applicable law. Merchant acknowledges that it was provided with a copy of any User Documentation. Merchant agrees that the User Documentation shall be disclosed only to its employees as are necessary to facilitate the Services, and that Merchant shall not disclose the User Documentation to third parties without the written consent of the Servicers.
5.6 Merchant is responsible for its employees’ actions while in Merchant’s employ. Merchant agrees to maintain accurate logs of employee shift and provide these logs (with or without employee names) to Servicers, within 24 hours of a request as part of an investigation of a Card fraud incident.
5.7 Merchant is solely responsible for all telephone, computer, hardware and software equipment and services necessary to access and utilize the Services.
5.8 Merchant represents, warrants and covenants, as at the date of this Agreement and at all times during the term of this Agreement, that:
- it does not transmit or store any information, data or material in violation of any applicable international, federal, provincial, state or local regulation or law;
- it is in compliance with all applicable local, provincial, state and federal laws governing the transmission, storage, production, and/or retrieval of electronic information;
- it does and will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information provided pursuant to this Agreement to anyone without first complying with all export control laws and regulations which may be imposed by the United States, Canada and any country or organization of nations within whose jurisdiction Merchant operates or does business; and
- it is a single business entity and is not comprised of more than one business unit which:
- must provide separate financial reports at Merchant’s bank;
- are located at different geographical locations;
- are listed as separate business units in either Merchant’s financial statements or that of Merchant’s parent organization; or
- carry separate financial accountability within the Merchant’s organization or by Merchant’s bank.
- all information contained in the Application or any other documents delivered to Servicers in connection therewith is true and complete and properly reflects Merchant’s business, financial conditions and principal partners, owners and officers;
- 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; and
- 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 or ability to carry on its business as now conducted or adversely affect its financial condition or operations or the entering into of this Agreement.
5.9 Card Not Present Transactions. To the extent that Merchant accepts Card Not Present Transactions, Merchant represents, warrants and covenants, as at the date of this agreement and at all times during the term of this Agreement, that:
- its website complies with all applicable laws; and
- its web pages do not contain, and Merchant does not propagate, distribute, house, process, store or otherwise in any way handle, material that is pornographic, obscene, lewd, lascivious, excessively violent, harassing, harmful, offensive, disparaging or defamatory, or that invades any right of privacy or that infringes upon any intellectual property rights of any person.
5.10 Fees. In exchange for the Services, Merchant promises to pay Servicers the Fees. Merchant understands that it is solely responsible for the full amount levied by a Card Association for any Card Fees listed on the Fee Schedule as “Pass-through” and that the Servicers will not be responsible for any portion of these amounts. The full amount of any such pass-through Card Fees incurred in any month will be set out on the Merchant monthly statement. Merchant shall be liable to pay for the full month’s Card Fees and Other Fees even if the Services are terminated before the end of the month for any reason.
5.11 Fee Changes.
- The Fees for Services are based upon assumptions about the Merchant’s business, anticipated annual volume and average transaction size. These assumptions are based on information provided by the Merchant in the Application. If the actual volume or average transaction size are not as expected, or if you significantly alter your method of doing business, Servicers may adjust your Pricing upon 60 days advance notice.
- Servicers may increase and/or implement new Fees for Services for any other reason by notifying you 60 days prior to the effective date of any such change.
- The Servicers will pass through any increase or decrease in any applicable interchange rate, assessments or other fees charged by a Card Association, or to pass through increases charged by third parties for on-line communications and similar items.
- Following receipt of a notice from Servicers regarding a new or increased Fee, Merchant will have the right to terminate this Agreement without penalty.
- Any notice provided under this Section will be sent to Merchant’s email or business address on record, in accordance with the “Notices” Section below.
- If Merchant does not exercise a termination right following receipt of notice of a new or increased Fee or a decrease in an applicable interchange rate, all such adjustments shall be Merchant’s responsibility to pay.
5.12 Amendments Other Than Fee Changes. The Servicers reserve the right to amend any term of this Agreement, and any aspect of the Services, other than the Fees, upon 30 days advance notice to Merchant. A notice of change as provided in this Section shall be considered to have been given upon electronic posting on Zift’s network, at zift.io, for a period of seven consecutive days. Any such amendments shall take effect on the effective date stated in the notice. Merchant is responsible for checking Zift’s network regularly for any such notifications.
5.13 Data Security.
- Merchant shall ensure that all Cardholder Data is processed and maintained in compliance with this Agreement, PCI DSS procedures and regulations, any other requirements mandated by a Card Associations and any applicable law (“Security Standards”). Merchant shall report any non-compliance immediately to Servicers. The Card Associations may impose different compliance requirements on different types and levels of Merchants. The Card Associations may impose restrictions, fines, or prohibit Merchant from participating in Card Association programs if it is determined Merchant is non-compliant with such requirements. Merchant understands that it must be in compliance with data security regulations for its type or level of Merchant as defined by the Card Associations’ security procedures as well as complying with general Security Standards. The Servicers will use commercially reasonable efforts to provide Merchant with amended operating procedures outlining the various Card Association requirements with regard to data security, but failure to do so shall in no way diminish the obligation of the Merchant to comply with such requirements, nor shall it be a breach of this Agreement.
- Upon the reasonable request of Servicers, Merchant shall provide Servicers with any information the Servicers request for the purpose of verifying that you and/or your third party service providers are complying with all Security Standards. The Servicers may in their sole and absolute discretion, suspend or terminate the Services for any actual or anticipated data security compromise or non-compliance with Security Standards. You will be responsible for any fees, fines or assessments levied by the Card Associations for failing to meet the Security Standards.
- Merchant shall immediately notify Servicers of its knowledge or suspicion of any breach in security resulting in unauthorized access to Cardholder Data. Merchant shall provide any assistance that Servicers, the issuing bank of any Cardholder, their regulators and the Card Associations deem necessary to contain and control the incident and to prevent further unauthorized access to or use of Cardholder Data. Such assistance may include, but not be limited to, preserving records and other evidence, compiling information to enable Servicers and the issuing bank, regulators or the Card Associations to investigate the incident and providing assistance and cooperation to facilitate the ability of the issuing bank to: i. file suspicious activity reports (as applicable); ii. notify their regulators (as applicable); and iii. notify the affected Cardholder (as required). Unless the unauthorized access was due to Servicers’ acts or omissions, Merchant shall bear all costs associated therewith, including but not limited to the cost of notifying the affected Cardholder(s).
- Despite anything else in this Agreement, Merchant agrees to indemnify and hold Servicers harmless from and against all losses, liabilities, damages and expenses (including lawyers’ fees and collection costs) brought by a third party resulting from Merchant’s failure to comply with the Security Standards.
- Merchant obligations pertaining to Security Standards and Cardholder Data contained in this Agreement, including, without limitation the obligations set forth in this Section 5.13, shall survive indefinitely beyond termination of the Merchant Agreement.
5.14 Protection of Cardholder Data.
- Merchant may not retain or store magnetic stripe data after a Transaction has been authorized. If Merchant stores any electronically captured signatures of a Cardholder, Merchant may not reproduce such signature except upon the specific request of the Services. Merchant shall store all media containing Cardholder Data, including Transaction Records, in an area limited to selected personnel, and, prior to discarding any such media destroy the media in a manner that renders the data unreadable and unrecoverable.
5.15 Confidential Information.
- Each party acknowledges and agrees that in entering into and carrying out the terms of this Agreement, the parties may become aware of the confidential and proprietary information of the other parties, including but not limited to, the terms of this Agreement, the Application, the User Documentation, financial information and other information related to each party’s business operations (“Confidential Information”). Each party agrees that it will maintain the confidentiality of such Confidential Information and no party shall disclose any such Confidential Information, will not use Confidential Information of the other party other than in the performance hereof, to any other person or entity (other than to those of its employees, agents, contractors and affiliates to whom disclosure is reasonably necessary in furtherance of the performance of this Agreement and who are bound by confidentiality and non-disclosure obligations consistent with the terms of this Agreement). The obligation not to disclose Confidential Information shall not apply to any information which:
- at the time of disclosure is already in the possession of the receiving party without breach of any obligation of confidentiality;
- is independently developed by the receiving party without reliance on the disclosed Confidential Information;
- is or becomes publicly available through no wrongdoing of the receiving party; or
- becomes available to receiving party on a non-confidential basis from a person, other than the disclosing party, who is not bound by a confidentiality obligation or otherwise restricted from transmitting the information to the receiving party.
- Furthermore, this Section shall not prohibit the receiving party from making legally required disclosures pursuant to subpoena, court order or the order of any other authority having jurisdiction; provided that receiving party shall provide disclosing party with prompt notice, unless prohibited by law or court order, thereof so that disclosing party may see an appropriate protective order or other remedy. If in the absence of a protective order or other remedy or waiver of the terms of this Section, the receiving party determines in its sole discretion that it is required by law, regulation, legal process or regulatory authority to disclose any such Confidential Information, the receiving party may disclose such information upon written notice to disclosing party.
- The terms set forth in this Section 5.15 shall survive termination of this Agreement.
5.16 Provision of Business Records. At all times during the term of this Agreement, upon a Servicer’s request, Merchant shall provide all documentation evidencing Merchant’s financial condition as well as other documentation determined necessary by a Servicer, acting reasonably, to verify the information contained in the Application. All financial statements of Merchant that are provided under this Section shall be prepared in accordance with generally accepted accounting principles. Merchant agrees to provide such documentation within 30 days of the request. In the event Merchant fails to provide the requested documentation, the Servicer who requested the documentation shall be entitled to terminate this Agreement in accordance with Article 6.
5.17 Audit. During the term of this Agreement and for two years following termination of this Agreement, Servicers shall have the right to examine Merchant’s records, books, systems, controls, processes and procedures for the purpose of verifying Merchant’s compliance with the terms and conditions of this Agreement, User Documentation and the Rules. Merchant shall provide to the auditors and personnel of Servicers reasonable access to records and shall cooperate and provide to such auditors, in a timely manner, all such assistance as they may reasonably require in connection with any such audit. Except in the event that Servicers have a reasonable basis to believe that Merchant is in violation of this Agreement, the User Documentation or any Rules, Servicers will provide Merchant at least five days’ written notice prior to the date of an audit, the audit will be conducted during Merchant’s normal business hours, and audits shall occur no more than twice in any calendar year. The provisions in this Section 5.17 shall survive termination of this Agreement.
5.18 Indemnification, Limitation of Liability.
- You agree to indemnify and hold Servicers and their respective officers, directors, members, shareholders, partners, employees, agents, affiliates, subcontractors and representatives harmless from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions, fines or penalties (including legal fees on a solicitor and client basis) claimed by a third party arising from:
- any breach of any representation, warranty or covenant or any misrepresentation by you under this Agreement;
- you or your employees’ or agents’ failure to comply with the terms of this Agreement or any requirements of which you are advised from time to time including the Rules and any other requirements of any Card Association or Card issuer;
- you or your employees’ or agents’ fraud, negligence or willful misconduct in connection with Transactions or otherwise arising from your provision of goods and services to Cardholders;
- Transactions or the settlement of funds from Transactions or your use of our Services;
- any third party indemnifications we are obligated to make as a result of your actions (including indemnification of any Card Association or Card issuer);
- any fine imposed by any Card Association on account of any of your acts or omissions. Your indemnification obligations shall include an obligation to assume all legal, audit and investigation fees incurred by the Servicers in relation to this Agreement on account of your acts or omissions or those of your affiliates; or
- a breach of the security of any system safeguarding Cardholder Data that results in unauthorized access to Cardholder Data. This clause will survive termination of this Agreement.
- Peoples Trust and Zift’s cumulative liability for all losses, claims, suits controversies, breaches or damages for any cause whatsoever (including but not limited to, those arising out of or related to this Agreement, the Application and the User Documentation) and regardless of the form of action or legal theory shall not exceed the lesser of
- $1,000; or
- the amount of Fees received by us pursuant to this Agreement for Services performed in the preceding 12 months, whichever is less. Under no circumstances shall Servicers be liable to Merchant, any Guarantor or any third party for any liquidated, indirect, consequential, special, speculative, lost profits, exemplary or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of this Agreement even if the party at fault has been advised of the possibility of such damages.
- Merchant waives all claims against Servicers for any loss, claim, demand, penalty, action, delay, cost or expense (including legal fees) of any kind unless merchant provides written notice to Servicers of the occurrence that gave rise to the alleged liability within thirty (30) days after Merchant knew or should have known of the occurrence.
- Subject to the limitation of liability set out above, we agree to indemnify and hold you harmless from and against all losses, liabilities, damages and expenses claimed by a third party resulting from our or our employees’ gross negligence or willful misconduct in connection with this Agreement.
- Despite any other term of this Agreement, the Servicers’ liability for any delay in transferring remittance funds to you for any reason will be limited to interest computed from the date that you should have received such funds pursuant to this Agreement.
- THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH MERCHANT. SUBJECT TO APPLICABLE LAW, THIS DISCLAIMER OF WARRANTY EXTENDS TO MERCHANT AND ALL USERS OF MERCHANT’S GOODS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AS WELL AS ANY WARRANTIES THAT THE SERVICES OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANE.
- Sections 5.18 and 5.19 shall survive termination of this Agreement.
ARTICLE 6: Term and Termination
6.1 This Agreement shall take effect on the Effective Date and shall have an initial term of one month (the “Initial Term”). Unless otherwise terminated by any party in accordance with the terms of this Agreement, the Agreement will automatically renew for successive one month terms (each, a “Renewal Term”).
6.2 If Merchant wishes to terminate this Agreement it may provide notice of non-renewal to the Servicers at any point during the Term.
6.3 Servicers may terminate this Agreement at any time and for any reason, during the Initial Term or any Renewal Term.
6.4 Servicers may terminate this Agreement immediately and without notice in the event that:
- Merchant commits a material breach of this Agreement, the User Documentation or the Rules which remains uncured 30 days after Merchant has been notified of the breach in writing by a Servicer, except that no cure period will be permitted for termination based on Merchant fraud or failure to fund the Reserve Account;
- Merchant revokes its consent to debit the Service Account under the PAD Agreement;
- Merchant files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors;
- a receiver, trustee or similar officer is appointed for the business or property of Merchant;
- any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against Merchant and is not stayed, enjoined or discharged within 60 days;
- Merchant adopts a resolution for discontinuance of its business or for its dissolution; or
- Servicers determine that Merchant has created or is likely to create any harm or loss of goodwill to Servicers or the Card Associations.
6.5 Servicers reserve the right to terminate any Merchant account on which no activity has occurred for a period of at least 6 months. Servicers reserve the right to remove and destroy any data stored in any Merchant directory upon termination of Merchant account.
6.6 In the event that Zift reasonably believes that a Threatening Condition exists, Zift will provide Merchant with notice of the Threatening Condition, upon receipt of which Merchant agrees to exercise its best efforts to cure the Threatening Condition. If in Zift’s sole discretion, the Threatening Condition poses an imminent or actual threat to the Software, Merchant agrees to suspend any and all activity on its account until such threat is cured. Notwithstanding the foregoing, Servicers may thereafter deactivate Merchant’s account without notice until the threat is cured if Merchant does not itself suspend activity.
6.7 When this Agreement ends:
- Merchant is still responsible for paying any amounts owed to the Servicers under this Agreement;
- the terms of this Agreement will remain in effect for any Transactions submitted to the Servicers before the termination date;
- without limiting the generality of the previous paragraph, Zift’s right to debit the Service Account will survive termination until such time as all credits and debits permitted by this Agreement and the PAD Agreement and related to Transactions submitted to the Servicers before the termination date has been made;
- your rights to accept Transactions and submit Transactions for processing, your license to use the Software and your right to use any trademarks, all as outlined in this Agreement, will be terminated;
- Servicers may withhold and discontinue the disbursement for all Transactions in the process of being collected and deposited and Servicers may, without notice to Merchant, refuse to accept or revoke acceptance any Transaction Record or credit voucher or the electronic transmission thereof, if applicable, received by Servicers on or any time after the occurrence of any event of default; and
- if applicable, Merchant must return any POS Material in its possession to Zift.
6.8 Within 15 business days of the date of termination of this Agreement, the Servicers will pay you all settlement funds owing to you under this Agreement less a holdback equal to any outstanding, potential or anticipated Chargebacks and Fees and other amounts which may be or become payable pursuant to the terms and conditions of this Agreement after its termination. The holdback will be used to settle any outstanding Chargebacks and Fees and any other adjustments received in the 180 days after termination and the unused portion of the holdback will be paid to you no later than 190 days after termination. If the holdback is insufficient to cover all Chargebacks, Fees and other adjustments received in the 180 days after termination, you agree to pay any deficiency to the Services promptly on demand. All obligations of Merchant for Transactions prior to and after termination (including payment for Chargebacks and Servicers’ expenses relating to Chargebacks) and all rights and obligations set forth in Sections 6.7 and 6.8 shall survive termination.
ARTICLE 7: Reserve Account
7.1 Establishment. A non-interest bearing deposit account (“Reserve Account”) will be established for Merchant at Bank initially or at any time in the future as required by Servicer’s, with sums sufficient to satisfy Merchant’s current and future obligations as determined by Servicer’s. Merchant authorizes Bank to debit the Service Account or any other account Merchant has at Bank or any other financial institution to establish or maintain funds in the Reserve Account. Servicers may deposit into the Reserve Account funds it would otherwise be obligated to pay Merchant, for the purpose of establishing, maintaining or increasing the Reserve Account in accordance with this Section, if Servicer’s determine such action is reasonably necessary to protect Servicer’s interests.
7.2 Use of Reserve Account. Bank may, without notice to Merchant, apply deposits in the Reserve Account against any outstanding amounts Merchant owes under this Agreement or any other agreement between Merchant, Processor and Bank. Further, Servicers may exercise its right under this Agreement against the Reserve Account to collect any amounts due to Bank or Processor including, without limitation, rights of setoff and recoupment. Bank’s and Processor's right to outstanding amounts owed it by Merchant pursuant to this Agreement shall in no way be limited to the balance or existence of the Reserve Account. Rights granted to Bank and Processor with respect to the Reserve Account, as well as the security interest under this Agreement, shall survive the termination of this Agreement.
7.3 Funds. Funds in the Reserve Account will remain in the Reserve Account until 270 calendar days following the later of termination of this Agreement, or Merchant’s last transmission of Sales Drafts or Credit Voucher to Bank, or Chargeback submitted by Cardholder, provided, however, that Merchant will remain liable to Bank and Processor, for all liabilities occurring beyond such 270-day period. After the expiration of such 270-day period Merchant must provide Bank and Processor with written notification indicating Merchant’s desire of a release of any funds remaining in the Reserve Account in order to receive such funds. Merchant agrees that Merchant will not use these funds in the Reserve Account for any purpose, including but not limited to paying chargebacks, fees, fines or other amounts Merchant owes Bank and Processor under this Agreement. Servicer’s will have sole control of the funds in Reserve Account.
7.4 Assurance. In the event of a Bankruptcy proceeding, Bank and Processor do not consent to assumption of this Agreement. Nevertheless, in the event of a bankruptcy proceeding Merchant must establish or maintain a Reserve Account in an amount satisfactory to Bank and Processor. Assumption will be made under terms and conditions that are acceptable to Bank and Processor and comply with the applicable laws governing such assumption.
7.5 Recoupment and Set Off. Bank and Processor have the right of recoupment and set-off. Specifically, Bank or Processor may offset or recoup any outstanding/uncollected amounts owed by Merchant from:
- any other amounts owed to the Merchant under this Agreement or any other agreement; and
- any funds in the Service Account or Reserve Account.
7.6 Merchant acknowledges that in the event of a bankruptcy proceeding, in order for Merchant to provide adequate protection to Bank, Merchant must create or maintain the Reserve Account as required by Bank, and Bank must have the right to offset against the Reserve Account for any and all obligations which Merchant may owe to Bank and Processor, without regard to whether the obligations relate to Sales Drafts initiated or created before or after the filing of the bankruptcy petition.
7.7 Recoupment of Chargebacks. In the event of Merchant’s default in payment of chargebacks, Merchant and Guarantor(s) agree:
- that all personal Bank accounts standing in their names shall be subject to this Agreement and EFT debits;
- Merchant and/or Guarantor(s) irrevocably consent to Bank utilizing any means available to locate such deposit accounts until such time when all amounts due have been satisfied. Bank may enforce this security interest as applicable by:
- making an immediate debit/charge via the EFT system to any deposit account standing in the name or names of Merchant and/or Guarantor(s), without notice or demand of any kind; and/or interrupting the electronic transmission of funds to any account through the EFT system;
- freezing the Merchants Account and Reserve Account, without notice or demand of any kind;
- taking possession of any or all of Merchant’s Sales Drafts;
- taking possession of any and/or all of Merchant’s electronic terminals, printers, imprinters, and imprinter plates;
- by placing a receiver within Merchant’s place of business without notice or bond to intercept and collect all income derived from Merchant’s operations until such time as any indebtedness owed to Bank or Processor arising under this Agreement has been satisfied in full;
- by obtaining either a writ of attachment or a writ of possession without bond pertaining to Merchant and/or Guarantor(s)’s personal property upon a showing of a presumption that Merchant has committed an act of fraud or is about to misappropriate funds to which it is not entitled. Merchant shall provide any statement or notice that Bank determines to be necessary in order to preserve and protect this security interest. The granting of this security interest by Merchant and/or Guarantor(s) in no way limits Merchant’s liabilities to Bank or Processor under this Agreement.
7.8 Account Monitoring
- Merchant acknowledges that Processor and Bank will monitor Merchant’s daily deposit activity. The deposit activity must remain consistent to the monthly volume and average ticket amount implicitly approved or adjusted by Bank and Processor (“Risk Parameters”). If Merchant should exceed Risk Parameters, Merchant agrees to provide documentation as set forth by Bank and Processor if so required. Merchant agrees that Bank or Processor may not deposit total Sales Draft dollar volume in excess of the implicitly approved monthly volume, and that Merchant may be subject to a 5% fee on all funds processed over the approved monthly volume limit. Merchant agrees that Bank or Processor may, at their sole discretion, suspend Merchant’s transaction deposits for any reasonable period of time required to investigate suspicious or unusual transaction activity. Processor shall make a good faith effort to notify Merchant immediately. Merchant agrees to pay $25.00 for each release of funds suspended by Bank. Neither Bank nor Processor shall have any liability for any losses, direct or indirect, which Merchant may attribute to any suspension of funds disbursement.
- In the event of suspension of transaction deposits by Bank or Processor, Merchant agrees that a Security Processing Fee, not to exceed 110% of the transaction activity, may be assessed.
- If a batch is suspended by Bank or Processor, Merchant acknowledges that the consumer’s product or service must be delivered just as if the Merchant has been paid. Further, if a batch or a transaction is suspended, Merchant acknowledges that fees, including security fees, will be assessed by Bank or Processor.
- At sole discretion of Servicers, if Merchant’s type of business is deemed a compliance risk to Bank or Processor, Bank or Processor may enroll Merchant in third-party risk monitoring service (“Monitoring Service”) at the sole expense of Merchant. Merchant will either be notified in advance of underwriting approval of enrollment in Monitoring Service and related expenses, or notified no less than 30 days in advance if Merchant has an open merchant account with Zift. Refusal of Merchant‘s enrollment in Monitoring Service when mandated by Bank or Processor, may be cause for termination of this Agreement.
7.9 To secure Merchant’s obligations to Servicers under this Agreement and any other agreement for the provision of related equipment or related services (the “Obligations”), Servicers reserve the right to require that the Merchant grant to Servicers a first priority lien and security interest in and to and pledges (or hypothecates with delivery) any of Merchant’s funds credited to the Settlement Account or Reserve Account or otherwise pertaining to the Transactions contemplated by this Agreement now or hereafter in the possession of Servicers, whether now or hereafter due or to become due to Merchant from Servicers (the “Pledged Funds”). For the purposes of the laws of Quebec, Merchant expressly consents to the Pledged Funds securing the Obligations and acknowledges that Servicers have obtained control of the Pledged Funds. Any such funds, money or amounts may be commingled with other funds of Servicers, or, in the case of any funds held pursuant to the foregoing paragraphs, with any other funds of other customers of Servicers. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, Servicers are hereby authorized by Merchant at any time and from time to time, without notice or demand to Merchant or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all such funds against and on account of Merchant’s obligations to Servicers under this Agreement and any other agreement with Servicers for any related equipment or related services, whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured.
7.10 If Servicers require Merchant to grant a security interest pursuant to Section 7.9, Merchant agrees to duly execute and deliver to Servicers such instruments and documents as Servicers may reasonably request to perfect and confirm the lien, security interest, right of set off, recoupment and subordination set forth in this Agreement. Upon request by Merchant, Servicers shall provide an accounting in reasonable detail of all amounts set off or recouped pursuant to this Section and the Obligations toward which such amounts were appropriated or applied.
7.11 The provisions in this Article 7 survive termination of this Agreement until Servicers, in their discretion, terminate the Reserve Account.
ARTICLE 8: Miscellaneous
8.1 Code of Conduct, Element 13 Disclosure.
- If you have a complaint regarding Zift’s or Peoples Trust’s compliance with the Code of Conduct (the “Code”), established by the Financial Consumer Agency of Canada (the “FCAC”), for the Credit and Debit Card industries, you may submit a Code complaint to Zift Support at zift.io/contact/support. Please include your name business name and a summary of your complaint and identify one or more of the following elements of Code that your complaint pertains to:
- Element 1: Transparency and Disclosure Element;
- Element 2: Notice of fee increase or new fee Element;
- Element 3: Contract Cancellation;
- Element 4: No Obligation Acceptance;
- Element 5: Payment Method Discount
- Element; 10: Negative Option Acceptance;
- Element 11: Contactless Payments;
- Element 12: Renewal and Cancellation Disclosure;
- Element 13: Complaint Handling Process.
- Per the Code, we will acknowledge receipt of your complaint within 5 days of your Code complaint submission. We will either resolve the complaint within 90 days or provide you information as to why it has not been resolved within such period.
- If your complaint has not been resolved after following the above process, you may contact the Financial Consumer Agency of Canada by calling 1-866-461-3222 or emailing email@example.com. The Code of Conduct for the Credit and Debit Card Industry is available at the FCAC’s website: https://www.canada.ca/en/financial-consumer-agency.html
8.2 Setoff Rights. The Servicers shall have the right, at any time and without notice, to charge back to Merchant, and deduct, withdraw or set-off from payments due Merchant from Card transactions, or from the Settlement Account, the Reserve Account, any other account or amounts due Merchant the full amount of any Transactions designated by the Servicers or a Card Association or which fails to meet the requirements of this Agreement.
8.3 Change in Business. The Merchant agrees to provide the Servicers with immediate written notice of any changes to the Merchant’s business or the manner in which the Merchant carries on business that may reasonably impact the Services provided under this Agreement. For greater certainty, the changes contemplated by this Section include without limitation, a corporate reorganization, a change of control, a refinancing of any debt, volume in excess of your approved annual transaction volume, and/or any change to the core business for which you use the Services.
8.4 Relationship Between the Parties. The parties shall perform all of their duties under this Agreement as independent contractors. Nothing contained herein will be deemed to create any other relationship between the parties. It is agreed that no party will represent itself to be the agent, principal, joint venturer, co-owner, partner, employer or employee of another party. The parties agree that, except as specifically provided in this Agreement, no party grants any other party the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of another party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of another party, or to transfer, release or waive any right, title or interest of such another party.
8.5 Assignment. This Agreement is binding on the parties and their successors and assigns. This Agreement may not be transferred or assigned by Merchant and any attempts by Merchant to assign any of its rights or delegate any of its duties hereunder shall be null and void.
8.6 Authority. Each party warrants and represents that its signatory has been and is on the date of this Agreement duly authorized by all necessary corporate action to execute this Agreement.
8.7 Invalidity of Provisions. Each of the provisions in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction in the Province of Ontario will not affect the validity or enforceability of any other provision hereof.
8.8 Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
8.9 No Waiver. The waiver by any party of a breach of any provision contained in this Agreement shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
8.10 Entire Agreement. This Agreement including Attachments, the Application, the Pricing Schedule and the User Documentation make up the entire agreement between the parties and replace all previous agreements, arrangements and understandings between the Merchant, Peoples Trust and/or Zift concerning its subject matter. Each party agrees that no other party has made any representations, warranties or agreements of any kind, except as expressly set forth in this Agreement.
8.11 Headings. The headings in this Agreement are intended for convenience of reference and shall not affect the interpretation of the Agreement.
8.12 Force Majeure. The Servicers shall not be responsible for any failure to perform their obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of the Acquirer.
8.13 Governing Law. This agreement will be governed by the laws of the province of British Columbia and the federal laws of Canada applicable in the Province of British Columbia. The parties agree that the courts of the province of British Columbia will have exclusive jurisdiction over any matters arising from this Agreement.
8.14 Publicity. No party may issue press releases relating to this Agreement without the other parties’ prior written consent.
8.15 Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
8.16 Notices. All notices or other communications required to be provided under this Agreement will be in writing and will be delivered in person (by commercial courier, return receipt requested) or by electronic means, addressed, in the case of the Merchant, to the business address or email address provided on the Application, or in the case of Zift to firstname.lastname@example.org. You consent to electronic provisions of all disclosures and notices from Zift, including those required by Law.
8.17 Consent to Electronic Disclosures and Notices. You may be asked to sign this agreement with a physical signature, electronic signature, click-to-accept, or clickwrap. You agree that your electronic signature, click-to-accept, or clickwrap acceptance will have the same legal effect as a physical signature.
8.18 Opportunity to Seek Counsel. The Merchant agrees that it had the opportunity to seek and was not prevented nor discouraged by the Servicers from seeking independent legal advice prior to the execution and delivery of this Agreement and that in the event that Merchant did not avail itself of that opportunity prior to the signing of this Agreement, Merchant did so voluntarily without any undue pressure and agrees that Merchant’s failure to obtain independent legal advice shall not be used Merchant as a defense to the enforcement of its obligations under this Agreement.
8.19 Language. APPLICABLE TO THE PROVINCE OF QUEBEC ONLY: It is the express wish of the parties that this Application and any related documents be drawn up and executed in English. Les parties conviennent que la présente authorization et tous les documents s’y rattachant soient rédigés et signés en anglais.
ARTICLE 1: ADDITIONAL TERMS APPLICABLE TO CARD PRESENT TRANSACTIONS
1.1 Definitions used in this Attachment:
1.2 “PED” means a device used to enter, store and act upon a PIN and which enciphers the PIN within the device.
1.3 “POS” Material” means point of sale marketing material provided to Merchant by the Servicers.
1.4 All Card Present Transactions. In respect of all Card Present Transactions, Merchant agrees as follows:
- to provide adequate protection against disclosure of a Cardholder’s PIN during its entry in a Transaction and exercise care and diligence in protecting the confidentiality of Cardholder’s PIN;
- to locate PEDS so as to minimize the possibility of disclosing the PIN of a Cardholder during a Cardholder’s entry of his/her PIN in a Transaction;
- not to ask a Cardholder for his/her PIN at any time;
- not to require or disclose a Cardholder’s PIN in clear text form;
- not to take knowledge or any record of the PIN of any Cardholder;
- not to install or permit to be installed any camera or other device that, by any means, records PINs or any information on a Card;
- to keep the Merchant’s copy of the Transaction Record issued for each Transaction at the Merchant’s retail store location for a least one calendar year from such Transaction. Merchant must present a copy of a requested Transaction Record within 30 days of request date (or any shorter time period as may be required by the applicable Rules);
- Sales receipt will be presented to Card Issuer, and it is at their discretion to reimburse funds;
- to take all reasonable precautions to protect information encoded on a Card while it is being used for a Transaction;
- to respond to and rectify all Cardholders’ inquiries, complaints or disputes about the availability, quality, receipt, price and satisfaction of the purchased goods or services, or the amount of a Transaction;
- to allow a Cardholder to retain a copy of his/her Transaction Record;
- where any PED is not equipped with a built-in card swiping feature, to require that Merchant only permit such PED to be used for debit transactions and to ensure that they are not tampered with in any way;
- to ensure that PEDS assigned to a specific retail location remain at the assigned location and that faulty PEDS are returned to the maintenance service provider for diagnostics and repair once a replacement PED-arrives at the assigned location;
- not to relocate the PEDS from the original location address without requesting the right and receiving Zift’s prior written approval to relocate;
- to provide to Zift, at any time during the regular business hours of operation for all Merchant locations, with access to the PEDS and the terminal to verify the integrity of the software, firmware, hardware and compliance with the terms contained herein;
- to display the POS Material at Merchant’s location in the manner prescribed and not to copy or duplicate such POS Material without Zift’s prior written authorization. Notwithstanding the foregoing, Merchant acknowledges and agrees that the obligation to display the POS Material shall not be interpreted as the granting of any license (including a trade-mark license) to use the Mark of any Card Association;
- to display the POS Material on its store front or alternate visible location and such material shall be displayed no less prominently than any other signage or Mark of any other financial service trademark; and
- to acknowledge that such right to use the POS Material does not convey or confers any right, titles or interest in any Card Association Mark.
1.5 POS Terminal. You are responsible for any use made of your points of sale terminal. You shall immediately inform Zift if your point of sale terminal is not functioning normally. Zift is permitted to presume that all Transactions initiated on your point of sale terminal have been authorized by you and the Cardholder of the Card used for the Transaction. You assume full and exclusive responsibility for any use of the passwords or access codes to your point of sale terminal and to the Software. You undertake to change such passwords from time to time.
ARTICLE 1: ADDITIONAL TERMS APPLICABLE TO CARD NOT PRESENT TRANSACTIONS
1.1 If Merchant accepts Card Not Present Transactions, the following provisions shall be applicable:
- The Transaction Record in respect of any Card Not Present Transaction shall be completed without the Cardholder’s signature but shall include the Cardholder’s name, billing address, Card number, expiration date of the Card, a description of the merchandise or service and the date and amount of all charges.
- Merchant shall process Card Not Present Transactions only
- if such Transactions have been encrypted by Servicers or by a Third Party Gateway Services Provider approved by Servicers and
- Cardholder Data is protected by Merchant as required by the applicable Card Association Rules, PCI DSS, or any other applicable regulations. Encryption is not guarantee of payment to Merchant.
- Merchant acknowledges that Card Not Present Transactions may be authorized and settled through separate BIN/ICA numbers and interchanges than Card Present Transactions and that Servicers may be unable to combine deposits of Card Not Present Transactions and Card Present Transactions.
- Card Not Present Transactions are subjected to a higher incidence of Chargebacks and receiving a transaction authorization and following procedures will not relieve Merchant of liability associated with Chargebacks and/or the fraudulent use of Cardholder Data obtained from Merchant’s website.
- All communications costs related to Card Not Present Transactions are Merchant’s responsibility. Obtaining any license or sub-license of software required to permit Merchant to process Card Not Present Transactions other than the Gateway Services (if Merchant has requested such Services from Zift) shall be Merchant’s responsibility.
- Servicers do not guarantee that obtaining required approvals from Servicers or implementing suggested security measures will cause Merchant’s Card Not Present Transactions to be secure, and Servicers will not be responsible in the event of the infiltration of Merchant’s or any Third Party Gateway Service Provider’s security systems.
- Merchant further acknowledges and agrees that, if Merchant is receiving gateway services from a Third Party Gateway Service Provider, then Servicers are not responsible for the security of Cardholder Data or other information stored on Merchant’s or any Third Party Gateway Service Provider’s computers, systems or website(s) and that Merchant will be solely responsible for any liability, fines, or penalties arising from its use, storage, or dissemination of Cardholder Data.
ELECTRONIC FUNDS TRANSFER
Terms and Conditions
THIS DOCUMENT CONTAINS THE TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THE ACCOMPANIED MERCHANT APPLICATION DOCUMENT (“Merchant Application” or “Application”), AND THE TERMS AND CONDITIONS HEREIN, TOGETHER WITH THE MERCHANT APPLICATION, COLLECTIVELY CONSTITUTE THE MERCHANT PROCESSING AGREEMENT (“Merchant Agreement” or “Agreement” or “MPA”) AND APPLY TO YOUR PROCESSING OF EFT TRANSACTIONS.
This Agreement is entered into on the day, month and year indicated on the Merchant Application submitted by Merchant and is by and among Zift and Merchant (hereinafter referred to as “Merchant”) whose personal name, address, business organization name and type of business are set forth on the Merchant Application.
The parties agree as follows:
ARTICLE 2: DEFINITIONS
2.1 As used in this Agreement, the following words will have the following meanings when capitalized:
- “Account” means an electronic account of Merchant provided by Zift through which Merchant can send and receive information related to the Services.
- “Affiliate” means, with respect to any Person, any corporation, company, partnership or other entity which is directly or indirectly controlled by such Person or is directly or indirectly controlled by a person or entity that is the same as that which controls the Person.
- “Control” means ownership of half or more of the voting interests in an entity.
- “AML Laws” means all Applicable Laws relating to terrorism, money laundering or bribery, government sanctions and know your client requirements, including any rules, regulations, directives, guidelines or orders promulgated, issued or enforced thereunder, whether within Canada or elsewhere and Zift’s policies and procedures, such as they are from time to time.
- “Applicable Laws” means all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, statutory rules, principles of law, published policies and guidelines, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, including general principles of common and civil law, which applies to or is otherwise intended to govern or regulate Merchant or Zift, the Peoples Trust EFT Guidelines and includes, without limitation, the written and published rules, regulations, procedures, policies, bulletins, standards, licensing agreements and operating requirements issued by a card or payment network, Payments Canada Rules, AML Laws, industry guidelines, Zift’s policies and procedures, and Peoples Trust policies and procedures, in each case as applicable to the Merchant, Zift or to Peoples Trust, such as they are from time to time.
- “Application” means the Merchant Application including, without limitation, the PAD Agreement, Pricing Schedule, completed by or on behalf of Merchant.
- “Approved Region” means Canada.
- “Business Day” means a day, other than a Saturday or Sunday, on which banks are open in British Columbia or Ontario, Canada.
- “Designated Account – Service Account” means an account established at a financial institution designated by Merchant as the account to be credited for EFT transactions processed by the Merchant and debited by Zift for Fees, Returns and other amounts assessed by Zift or Peoples Bank and passed through to the Merchant pursuant to the terms of this Agreement.
- “Effective Date” means the date indicated on the merchant application.
- “EFT Authorization” means an authorization from a Merchant Payee, authorizing the carrying out of an EFT Transfer.
- “EFT Banking Information” means the financial institution branch number, financial institution number, the financial institution account number, account holder name corresponding to the designated bank account of the Merchant Payee or Merchant Customer, as applicable, and any other details pertaining to the EFT Transfer, Merchant Payee or Merchant Customer, as applicable, reasonably required by Zift to process an EFT Transfer or comply with Applicable Laws.
- “EFT Transfer” means the electronic transfer of funds from and to accounts through the Payments Canada system pursuant to Merchant instructions (Payments Canada being the association created and administered pursuant to Canadian Payments Act and the Payment Clearing and Settlement Act (Canada)).
- “Fees” means the fees payable by Merchant in consideration of the Services, as set out in the Pricing Schedule of the Application.
- “Functional Guide” means a guide setting out certain specifications, parameters and rules with respect to the Services which may be amended by Zift from time to time.
- “Threatening Condition” means that a Merchant’s conduct or a Merchant’s products or services are in violation of applicable law, or pose a threat to the Software.
- “Government Authorization” means any approval, consent, license, permit, waiver, registration or other authorization issued, granted, given, or otherwise made available by or under the authority of any Regulator or pursuant to any Applicable Laws.
- “Merchant” means the merchant identified in the Application.
- “Merchant Customer” means a Person who enters into a Merchant Customer PAD and who also has a commercial relationship with Merchant that gives rise to a desire for EFT Transfers.
- “Merchant Customer PAD” means the agreements and authorizations required by Applicable Laws and the terms hereof and in forms acceptable to Zift, to debit a Merchant Customer’s account via an EFT Transfer.
- “Merchant Payee” means a Person that has a commercial or employment relationship with Merchant to whom the Merchant distributes payments, such as a supplier, an employee, or a customer of the Merchant via EFT Transfer.
- “Minimum Fees” has the meaning set out in the Pricing Schedule of the Application.
- “PAD” means the pre-authorized debit agreement of the Merchant permitting Zift to debit its Service Account for Fees and other amounts owing hereunder, set out in the Pricing Schedule of the Application.
- “Payments Canada Rules” means the Payments Canada / Payments Canada rules, including but not limited to Rule H1 and those posed here https://www.payments.ca/about-us/our-systems-and-rules/retail-system/rules-and-standards and the by laws, rules, regulations, board directions, policy instruments, guidelines, best practices and requirements of the Payments Canada.
- “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
- “Platform” means systems that allow Zift to process EFT Transfer transactions and provide the Services under this Agreement.
- “Prime Rate” means an annual rate of interest equal to the annual rate of interest announced from time to time by the Bank of Montreal as the reference rate then in effect for determining interest rates on Canadian dollar commercial loans in Canada and designated as the prime rate of such bank.
- “Regulatory Authority” means any federal, provincial, territorial, regional, municipal or local governmental authority, having regulatory or supervisory authority over Zift, Peoples Trust, Merchant or the Services, including any administrative, judicial, regulatory, or self-regulatory, taxation, financial, monetary, or investigative authority, agency or body, including any, including the Payments Canada, the Financial Consumer Agency of Canada, the Financial Transactions and Reports Analysis Centre of Canada and the Office of the Superintendent of Financial Institutions.
- “Representatives” means, in a respect of a party, its and its Affiliates’ directors, officers, employees, consultants, counsel, auditors, representatives, advisors or agents, authorized to communicate with the other party under this Agreement or otherwise.
- “Security” means (i) cash deposit; (ii) letter of credit; (iii) guarantee; or (iii) other form of security for the obligations of Merchant under this Agreement in a form and quantum acceptable to Zift.
- “Software” means Zift’s software used to provide the Services, which includes Zift’s proprietary authorization system, payment gateway, and platform, User Documentation, and all copyrights, know-how, trade secrets, trademarks, service marks, trade names, patents, and other proprietary rights in the same.
- “Specifications” means the specifications or guidelines relating to the Services provided by Zift or in the Functional Guide.
- “Term” has the meaning attributed to it in Article 11.
- “Third Party Servicer” means a third party that is acceptable to Zift and has been retained under a written agreement by either Party to assist in the supply, procurement or delivery of the Services.
- “Trademarks” means any service marks, trademarks or trade names owned or used under license by Merchant or Zift, including the names and other distinctive marks or logos which identify Merchant or Zift.
ARTICLE 3: SERVICES
3.1 Services. During the Term, Zift will provide Merchant services to enable Merchant Customer to effect EFT Transfers (“Services”).
3.2 Service Selection. Merchant may use the Services selected for itself or enable Merchant Customer to send and receive EFT Transfers, in each case, all in accordance with Schedule A and this Agreement.
3.3 Eligibility. In order for Merchant to access and use the Services, Merchant must:
- provide Merchant Information as set out in Section 6 of this Agreement;
- accept the terms of this Agreement;
- be located and domiciled in an Approved Region;
- sell only products and/or services that have been approved by Zift as part of the Application;
- not submit a transaction that is known or suspected to be fraudulent or unacceptable by the Servicers regardless of whether Merchant has been given notice of such Transactions by the Zift or is submitted by any business other than Merchant, as authorized by this Agreement; and
- not submit a transaction for the purchase of products or services that are illegal in Canada or the United States;
- neither directly or indirectly, either separately or as part of any other services provided by Merchant, resell the Services in whole or in part nor directly or indirectly enable any third party (except for Merchant Customers) to use the Services.
3.4 Account Access. Following acceptance of this Agreement by a Merchant, Zift may grant Merchant a unique digital Account to access the Services and a record of EFT Transfers.
- Merchant may access the Account using a security credential that is a password created by Merchant, a token provided by Peoples Trust or any other security or authentication method provided by Zift (“Security Credentials”).
- Merchant will be responsible for safeguarding its Security Credentials and shall not disclose or allow access to its Security Credentials to anyone not intended to use or access the Account.
- Merchant hereby authorizes Zift to process any EFT Transfers from anyone using Merchant’s Account and shall be responsible for all EFT Transfers in the Account. Zift will have no obligation to verify the identity of anyone accessing or using Merchant’s Security Credentials and Zift is not liable for any losses incurred by Merchant as a result of unauthorized use or access of Merchant’s Account using Merchant’s Security Credentials.
- Merchant shall immediately notify Zift if Merchant suspects any unauthorized use or access of the Account or Security Credentials or otherwise suspects any security breaches or attempted security breaches in the Services. Merchant shall take any actions reasonably requested by Zift or otherwise necessary to stop or remedy any such breach to prevent such breach from re-occurring.
3.5 Zift’s Connectivity. Merchant, at its election and if applicable, may use:
- Zift’s application programming interface (the “Zift API”);
- Zift’s secured file transfer protocol (the “Zift SFTP“); or
- or any combination of (A) and (B) in connection with the Services and subject to the terms set forth in this Section. “Zift Connectivity Tool” as used in this Agreement means Zift API or Zift SFTP or any combination of those tools.
- Zift grants to Merchant a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license, to use and access the Zift Connectivity Tool during the Term for the purpose of accessing and using the Services.
- Merchant shall only use the Zift Connectivity Tool for its internal business purposes in connection with the Services. Merchant must not use the Zift Connectivity Tool to attempt to gain restricted access to any of Zift’s systems or in violation of any Applicable Laws. Merchant must not rent, lease, or sell the Zift Connectivity Tool.
- Zift (or its licensors) owns all right, title and interest (including all intellectual property rights) in and to the Zift Connectivity Tool and any and all modifications and derivative works thereof. Zift does not grant the Merchant any right, title or interest under this Agreement in any intellectual property owned or licensed by Zift, including the Zift Connectivity Tool and any Zift Trademarks. There are no implied licenses in this Agreement.
- Use of the Zift Connectivity Tool may be subject to monthly maintenance fees payable to Zift as set forth in the Pricing Schedule on the Application.
ARTICLE 4: DATA SECURITY, RECORDS, INSPECTIONS & AUDITS.
4.1 Records. Each party shall keep accurate records and accounts in accordance with standard business practices, generally accepted accounting principles and in particular any requirements of the Payments Canada Rules. Each party shall archive their records and accounts for at least a seven-year period after the calendar year in which the transactions to which the records or accounts related.
4.2 Inspections & Audits.
- Zift shall have the right, at any time upon written demand made by Zift or a Regulatory Authority to the Merchant, to inspect, during normal business hours, those computer facilities and operations of the Merchant which are involved in or connected to any part of the Services or otherwise pertaining to Merchant’s obligations under this Agreement.
- Zift and a Regulatory Authority shall upon reasonable notice have the right to audit Merchant’s books, records, procedures and accounts (in electronic format and otherwise) in connection with the Services during Merchant’s regular business hours. Zift may engage qualified third-party consultants for the purpose of any such inspection. Merchant shall have the right, as a condition of such inspection, to require any such consultants to sign such form of confidentiality agreement as the Merchant may reasonably require. The cost of any such inspection shall be the sole responsibility of Zift unless such an audit reveals a breach of this Agreement by Merchant or is instigated by a breach of this Agreement by Merchant or otherwise on account of wrongdoing by Merchant or one of its third party service providers, then Merchant shall be liable for the costs of the audit. Any such consultant engaged by Zift to perform an audit will be required to create reports which are accessible only to Zift.
- Data Protection. Each party shall treat personal information disclosed hereunder as strictly confidential, and shall take all required technical and organizational measures to protect such personal information. Each party shall take reasonable precautions, consistent with current electronic data interchange standards, to maintain secure web sites and prevent the interruption or corruption of data transmitted between them or the introduction of viruses, worms, timebombs, cancelbots, or similar programming routines designed to corrupt, interfere with or intercept any system or data of the other party. Neither party represents, warrants, covenants or guarantees that the transfer of data between the parties (and their customers) cannot be received, intercepted or corrupted by other persons or machines. Each party shall implement and employ appropriate encryption tools for use in the transmission of sensitive data over open networks. Such implementation and use by each party shall be at such party's expense.
- Platform Protection. Merchant shall not take any action or employ any technique, device, software or routine that will result in interference with the operation of the Platform, related web sites, or take any action that imposes unreasonable or disproportionately large load on the Platform. In the event that Zift reasonably believes that software, technology or other technical components in use by Merchant will materially adversely affect Zift's operations, the Merchant will work in good faith with Zift to remedy such problem at the Merchant’s own expense.
- Security Breaches. Merchant will maintain a reasonable personal information security breach response program in compliance with Applicable Laws to respond to a Security Breach. A “Security Breach” means suspected or actual loss or theft of, or unauthorized access to or use or disclosure of personal information collected or processed by Merchant, or its third party service providers, subcontractors or agents in connection with provision of the Services. Without limiting the foregoing, the response program shall at minimum include the following elements: containment of the Security Breach; evaluation of risks associated with the Security Breach; and prevention of future Security Breach.
- Notification. Merchant shall promptly notify (no less than 24 hours) Zift of any actual, probable or reasonably suspected Security Breach, or any breach to its networks, systems or premises, or of any third-party legal process relating to any Security Breach, including any legal process initiated by any governmental entity (foreign or domestic).
ARTICLE 5: FEES.
5.1 Fees. In consideration of the Services, Merchant shall pay Zift the fees (plus all applicable taxes) as set out on the Pricing Schedule of the Application of this Agreement (“Fees”). Merchant shall pay any applicable additional Fees. All Fees are expressed exclusive of sales tax, deductions and withholdings.
5.2 Payment of Fees.
- Merchant authorizes Zift to debit the Service Account in accordance with the Service Account PAD Agreement for the Fees, any EFT returns, and refunds, erroneous deposits therein and any other amounts assessed by Zift that Zift is permitted to pass through to you pursuant to this Agreement and any other liabilities of Merchant to Zift hereunder. Merchant agrees to work with Zift to help resolve any problems in crediting/debiting the Service Account.
- Zift may elect to invoice you for any Fees or other amounts payable by you under this Agreement rather than debit your Service Account. If you receive an invoice from Zift, any amounts due shall be payable within 30 calendar days of the date of such invoice, or on such earlier date as may be specified on the invoice, in the manner specified on the invoice.
5.3 If an invoice remains unpaid 30 days after the due date, or if your payment is dishonored (returned NSF or rejected), the Services may be suspended. Suspension of Services shall not relieve you of your obligation to pay any and all past due Fees. You will also be responsible for any collection or legal costs incurred by Servicers to collect any overdue or dishonored payment. Suspended Services may be resumed upon receipt of full payment of all amounts due plus the reconnection fee.
5.4 Fee Adjustments. Zift may amend Fees by notifying the Merchant in writing (email communication shall suffice), such amendments to take effect thirty (30) days following the date of such notice or shorter if amendment in Fees are to reflect increases in costs to Zift for the Services.
5.5 Prefund Account. Merchant shall only initiate EFT Transfers processed by Zift from dedicated, prefunded accounts with Peoples, and on condition that the EFT Transfer and associated fees shall not ever be permitted to cause the Service Account to go into overdraft. Merchant irrevocably authorizes Zift to debit the Service Account amounts as are necessary to satisfy Merchant’s obligations to Zift hereunder, and grants Zift an irrevocable power of attorney (coupled with an interest) to direct the payment of such amounts directly to the bank account of Zift.
ARTICLE 6: KEY MERCHANT OBLIGATIONS.
6.1 Merchant Information. As a condition to Zift providing the Services, Merchant will provide all information as requested in the Application and or otherwise reasonably requested by Zift (“Merchant Information”). Merchant represents and warrants that all information provided to Zift under this Agreement, including but not limited to, information requested in the Application:
- is and shall be true, complete and accurate; and
- is and shall be collected and delivered in accordance with all requirements of Applicable Laws including the requirements of laws in respect of protection of privacy and personal information. Zift is under no obligation to verify the details of any information provided by the Merchant to Zift and Zift shall be entitled to rely upon such information and to assume that such information provided by the Merchant is true, complete and accurate. Merchant will immediately notify Zift of any error or change in Merchant Information.
6.2 Merchant Anti-Money Laundering Requirements. Merchant shall develop, institute and maintain an anti-money laundering and anti-terrorist financing program (“Merchant AML Program”) that complies with AML Laws and meets the requirements set out Zift’s policies on anti-money laundering and “know your client” (which may be amended by Zift from time to time). Upon request Merchant will provide Zift with proof, satisfactory to Zift, that the Merchant AML Program is in place. Merchant will ensure that its Representatives and any third party authorized to act on Merchant’s behalf comply with the Merchant AML Program including through annual training on AML Law and Merchant AML Program. Merchant shall maintain records with respect to each Merchant Customer and their respective EFT-Transfers.
6.3 Services Specifications. Merchant shall use the Services in conformity with the Specifications. Merchant will ensure its equipment, software, practices and procedures associated with use of the Platform, and EFT Transfers comply with Applicable Laws and the requirements, specifications and quality standards prescribed by Zift.
6.4 Merchant Customer Set Up. Prior to Merchant using the Services to initiate EFT Transfers, Merchant shall obtain the Merchant Customer information as specified in this Agreement or otherwise required by Zift. Merchant is responsible for obtaining consents or authorizations in compliance with Applicable Laws to enable Merchant to initiate EFT Transfers. In addition, Merchant must disclose that information collected by, and provided to, Zift in connection with the Services may be used and disclosed to other Persons, including other financial institutions, to the extent necessary in connection with the Services.
6.5 Solicitation and Contracts.
- Merchant shall provide Zift, upon request, with copies of its marketing materials and service agreements used in conjunction with the Services. Zift may at its discretion, review such material and require that Merchant make changes thereto. Zift is, however, under no obligation to review such material and failure by Zift to reject any such material shall not be construed as a legal opinion on the material or an indication that it is in compliance with the terms of this Agreement or Applicable Laws. Merchant is exclusively responsible for compliance of its marketing materials and agreements with this Agreement and Applicable Laws.
- Merchant shall not state or imply that Zift endorses any products or services of the Merchant, nor shall the Merchant make any representation or warranties concerning Zift or Zift's products and services other than those authorized in writing by Zift. Merchant shall not use any promotional materials regarding the Merchant’s use of Services without Zift's prior written approval, which shall not be unreasonably withheld or unduly delayed.
- All use of Zift’s Trademarks by Merchant must be approved in writing by Zift and in accordance with the branding guidelines as provided and amended from to time by Zift.
6.6 Data Security and Fraud.
- Merchant will use reasonable efforts to (i) scan its related systems for any code or device which is designed or intended to impair the operation of any computer or database or prevent or hinder access to, or the operation of, any program or data, using detection software generally accepted in the industry; (ii) secure its computing environments according to generally accepted industry standards to ensure that the Services and Zift’s technology systems cannot be accessed by any unauthorized person or malicious software; and (iii) remedy any security breach of which it becomes aware.
- Merchant shall be solely responsible for any security breach and fraud (i) by Merchant’s Representatives or Merchant’s Third Party Servicers; (ii) occurring or originating on Merchant’s technology network or systems; (iii) any failure by Merchant to implement an effective internal data security policy and protocols; and (iv) any other losses or costs Zift or its Third Party Servicers may suffer as a result of the use of the Services where Zift relies on communications apparently received from the Merchant.
- Merchant shall cooperate with Zift to investigate any suspected unlawful, fraudulent or improper activity related to the Services. Merchant shall immediately notify Zift if the Merchant has any reason to believe that the security of Zift’s web site or any security processes relating to the Services have been compromised in any way. Merchant shall immediately notify Zift of any confirmed or suspected fraudulent transactions.
6.7 Other Merchant Covenants.
- Merchant shall obtain, upgrade and replace from time to time the hardware, software and communication links necessary to comply with the requirements specified by Zift from time to time for the Merchant’s use of the Services and access to the Account.
- Merchant shall not request any EFT Transfers in excess of the Transaction Limits established by Zift.
- Merchant will comply with all Applicable Laws.
- Merchant shall not use the Services for any purpose that is unlawful, fraudulent, misrepresentative, or related in any manner, directly or indirectly, to unlawful activities. Merchant shall be responsible and liable to Zift for any unlawful activities by Merchant Customer.
6.8 EFT Transfers. All EFT Transfers initiated by the Merchant are not confidential. Zift may monitor, review, retain and/or disclose any information as necessary to satisfy any Applicable Laws, financial institution rule/request, network rule/request or request/inquiry. Any initial, large or unusual transactions occurring using the Services, including transactions involving multiple disbursements or multiple banks, may be subject to reporting to source and/or destination financial institutions. Merchant agrees that Zift may access the Merchant’s information for the reasons as stated above or to respond to service, operational or technical issues.
6.9 Zift Records to Govern. Merchant agrees that Zift’s records shall, in the absence of manifest error, be conclusive evidence of the information received by Zift from the Merchant and the transactions between Zift and the Merchant.
ARTICLE 7: FINANCIAL STATEMENTS AND SECURITY.
7.1 Financial Statements. Merchant shall provide to Zift its financial statements upon request.
7.2 Security. Merchant acknowledges that Zift, at its discretion, may require a security in the form of a (i) cash security deposit; (ii) letter of credit; (iii) guarantee; or (iv) other form of security for the obligations of Merchant under this Agreement in a form and amount acceptable to Zift (“Security”). The amount of Security may be varied by Zift (in its absolute discretion) from time to time. If Merchant fails to provide Security in the amount or terms requested by Zift, then Zift may suspend Services or refuse any further Services for the Merchant. Merchant shall provide the Security in the amount and form as agreed by Zift within 30 days from the date Zift has made the requirement known to the Merchant. Merchant acknowledges that Merchant shall have no right to any interest earned from a Security in the form of a cash deposit. Any interest so earned shall accrue to the benefit of Zift.
7.3 No Guarantee as to Payments. Merchant acknowledges that Zift, in providing the Services is not guaranteeing or underwriting the payments made to Merchant Payees or from Merchant Customers.
ARTICLE 8: CONFIDENTIAL INFORMATION.
8.1 Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein.
8.2 Each party agrees to treat the disclosing party's Confidential Information with the same degree of care and security as the receiving party treats its most confidential information and in no event with a less than reasonable degree of care and security. Each party may disclose the disclosing party's Confidential Information to its Representatives who require such knowledge to perform services under this Agreement, provided such Representatives have agreed to protect the disclosing party's Confidential Information in a writing that contains confidentiality terms at least as restrictive as the confidentiality terms herein. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of this Agreement.
8.3 “Confidential Information” means the terms of this Agreement, EFT Transfer transaction information, Specifications, the Functional Guide, Merchant Information, all information, whether or not identified as confidential at the time of disclosure, relating to a Party’s or its affiliates’ businesses, operations, assets, technology, liabilities, plans, customers, prospects, properties or affairs, whether provided by the disclosing party, at any time before or after the date of this Agreement, including notes, analyses, reports, compilations, forecasts, data, studies, interpretations, or any other written or electronic materials or information communicated orally, which contain or otherwise reflect the disclosing party’s Confidential Information. For greater certainty, Confidential Information includes intellectual property rights of, and personal information provided by, the disclosing party. Confidential Information does not include any information that:
- is or becomes generally available to the public other than as a result of disclosure directly or indirectly by the receiving party or its Representatives;
- is or becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party unless the receiving party knows after reasonable inquiry that such source is prohibited from disclosing the information to the receiving party by a contractual, fiduciary or other legal obligation to the disclosing party; or
- the receiving party can show was independently acquired or developed by the receiving party without use of any Confidential Information; except that personal information is not subject to these exclusions and will be considered Confidential Information.
ARTICLE 9: REPRESENTATIONS AND WARRANTIES.
9.1 Merchant makes the following representations and warranties to Zift (which representations are provided as a material inducement for Zift entering into this Agreement and completing the transactions contemplated by this Agreement and are intended to be relied upon by Zift):
- Merchant is a corporation duly incorporated, organized, validly existing and in good standing under the laws of the jurisdiction of incorporation of the Merchant, is authorized to carry on business in the jurisdiction(s) where Merchant carries on business and has all necessary corporate power to carry on the Merchant’s business as such business is now being conducted;
- Merchant has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement and this Agreement constitutes valid and binding obligations of the Merchant enforceable against the Merchant in accordance with their terms;
- the signature, delivery and performance of this Agreement will not conflict with, violate or result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under (i) any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which Merchant is a party or by which it or any of its properties are bound; or (ii) any Applicable Laws;
- holds all licenses, registrations, permits and other authorizations required by the Applicable Laws to perform its obligations under this Agreement;
- Merchant has not or has never (i) voluntarily or involuntary (and such involuntary petition or proceeding is not dismissed within 60 days) commences (or is the subject of, as the case may be) any proceeding or filing any petition seeking relief under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other federal, provincial or foreign bankruptcy, insolvency, liquidation or similar law; (ii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets; (iii) makes a general assignment for the benefit of creditors; (iv) commences the winding up or liquidation of its business or affairs; or (v) takes corporate action for the purpose of effecting any of the foregoing; and
- neither Merchant, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by any Regulatory Authority.
9.2 Merchant acknowledges that Zift has entered into this Agreement in full reliance on these representations and warranties. Any investigations made at any time by or on behalf of Zift shall not diminish in any respect whatsoever Zift’s right to rely on the representations and warranties of this Agreement.
9.3 Additional Representations, Warranties and Covenants. Merchant also represents, covenants and warrants that:
- Merchant will comply with all Applicable Laws in performing its obligations under this Agreement;
- Merchant does not and will not conduct business in, or with individuals or entities located in, countries in contravention of Applicable Laws;
- to the best of its knowledge, no Regulatory Authority or other Person has ever conducted any type of investigation related to any activity in contravention of Applicable Laws relating to anti-money laundering or anti-terrorist financing with regard to accounts or financial transactions of the Customer, or any accounts or financial transactions under the control of the Merchant;
- all information provided to Zift from time to time under in this Agreement is and will continue to be true, complete, and accurate in all respects.
- Zift makes no representations or warranties of any kind, express or implied, to Merchant, Merchant Payees and Merchant Customers, or any other third party and Zift disclaims all warranties including any warranty or condition of marketability, fitness for a particular purpose, suitability, or non-infringement of the Services (including Zift Connectivity Tools, the Platform and any other materials provided by Zift) under this Agreement. The Services, including Zift Connectivity Tools and the Platform, are provided on an “as is” and “as available” basis. ZIft does not guarantee that the Services, Zift Connectivity Tools, the Platform, website or gateway page will always be error-free or will always function without disruptions, delays or imperfections.
- Merchant assumes all liability and risk arising from Merchant’s acceptance or creation of EFT Transfer transactions through the Platform and payment network or otherwise, including any liability or risk that an EFT Transfer transaction was improperly sent or unauthorized, that Merchant may be required to return the EFT Transfer transaction or associated funds for any reason, that the EFT-Transfer transaction was illegal, or that Merchant may legally be required to turn the EFT Transfer transaction or any associated funds over to another Person for any reason.
- Zift shall not be liable for any act or omission of any third party including any of Third Party Servicers or any other users of the services under this Agreement, or for any circumstance beyond the reasonable control of Zift.
- Merchant Liability for Merchant Payees and Merchant Customers. Zift is not a party to any transaction between the Merchant and a Merchant Payee or a Merchant Customer (as applicable). Merchant is exclusively responsible for the quality, safety or legality of the products or services offered by Merchant or by a Merchant Payee. In the event that a dispute arises between the Merchant and a Merchant Payee or a Merchant Customer (as applicable), Merchant shall be solely responsible for and hereby releases Zift from any and all losses, claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such activities. No agreement or arrangement entered into between Merchant and a Merchant Payee or a Merchant Customer (as the case may be) shall have the effect of amending or altering the obligations of the Merchant to Peoples Trust under this Agreement (whether or not ZIft is aware of the arrangement).
ARTICLE 10: Indemnification and Limitation of Liability.
10.1 Merchant shall indemnify and save harmless ZIft, each affiliate of Zift, each third party servicer provider and each of their respective directors, officers, employees and agents (the “Indemnitees”) from and against all liabilities, losses, claims, damages, penalties, actions, suits, demands, levies, costs, expenses and disbursements including any and all reasonable legal and advisor fees and disbursements of whatever kind or nature (referred to herein as a “Claims”) which may at any time be suffered by, imposed on, incurred by or asserted against any of the Indemnitees, howsoever arising, from:
- Merchant’s violation of Applicable Laws;
- Merchant’s negligence, willful misconduct or fraud;
- Merchant’s breach of the terms of this Agreement, including any warranties and representations set out in this Agreement;
- any actions taken by Zift in reliance upon instructions or information communicated by the Merchant, including Merchant Information;
- any actions by any of the Merchant Payee or Merchant Customers or any in respect of any matter associated with the Merchant’s relationship Merchant Customers or Merchant Payees as applicable;
- any security breach of Zift systems by Merchant, its Representatives, or its Third Party Servicers or originating from Merchant’s technology systems;
- any claim by Merchant Customers or Merchant Payees that EFT Transfers transactions are unauthorized or wrongfully transferred and such disputed transfer was carried out by Zift as a result of instructions or information provided by the Merchant;
- insufficient funds in a prefunded account to satisfy any EFT Credit Transactions and associated fees;
- reversal of any EFT Debit Transactions that Peoples Trust would be required under Payments Canada Rules to return the funds collected or any reversal of EFT Transfer requested by Merchant itself or on behalf of Merchant Customer; and
- any errors or omissions (including information submitted in an unacceptable format) made by Merchant or its Representatives in connection with Merchant submitting information to the Platform or instructions to Zift for effecting EFT Transfers.
10.2 Limitation of Liability.
- In no event, whether as a result of (i) breach of contract, warranty or representation, (ii) tort, (iii) alleged negligence, (iii) liability without fault or strict liability, or (iv) any other liability, shall Zift be liable for incidental, consequential, indirect, special, or punitive damages and for greater certainty shall not be liable for claims for delay or inability to use services, loss of use of data, loss of goodwill, loss of profits or revenue, failure to realize expected savings, cost of capital, cost of substituted assets, cost of substituted services, down time costs, or labor costs even if such damages are foreseeable or Zift have been advised of the possibility of such damages.
- Zift’s liability to Merchant in connection with this Agreement will not, in the aggregate, exceed an amount equal to the lesser of: (i) an amount equal to the total of all Fees payable by the Merchant to Zift pursuant to this Agreement for the four months prior to the event giving rise to the cause of action; or (ii) $25,000.
- Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may be limited by law in the Merchant’s jurisdiction to the extent that such laws apply to these terms. Subject to the foregoing, the limitations of liability set forth in this Section shall prevail over any conflicting or inconsistent provisions contained in this Agreement (or contained in any other communications between Zift and the Merchant, including electronic, email and web based communications) except to the extent such conflicting or inconsistent provisions further restrict or reduce Zift’s liability.
ARTICLE 11: EXCLUSIVITY.
11.1 Exclusivity. During the Term, Zift shall be the exclusive provider of the electronic fund transfer services to Merchant and its Affiliates. Merchant shall not directly or indirectly establish a relationship with any third party service provider to supply Merchant or its affiliates any similar competitive services in Canada.
ARTICLE 12: TERM.
12.1 This Agreement shall take effect on the Effective Date and shall have an initial term of one month (the “Initial Term”). Unless otherwise terminated by any party in accordance with the terms of this Agreement, the Agreement will automatically renew for successive one month terms (each, a “Renewal Term”).
12.2 If Merchant wishes to terminate this Agreement it may provide notice of non-renewal to Zift at any point during the Term.
12.3 Zift may terminate this Agreement at any time and for any reason, during the Initial Term or any Renewal Term.
12.4 Zift may terminate this Agreement immediately and without notice in the event that:
- Merchant commits a material breach of this Agreement, the User Documentation or the Rules which remains uncured 30 days after Merchant has been notified of the breach in writing by Zift, except that no cure period will be permitted for termination based on Merchant fraud or failure to fund the Reserve Account;
- Merchant revokes its consent to debit the Service Account under the PAD Agreement;
- Merchant files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors;
- a receiver, trustee or similar officer is appointed for the business or property of Merchant;
- any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against Merchant and is not stayed, enjoined or discharged within 60 days;
- Merchant adopts a resolution for discontinuance of its business or for its dissolution; or
- ZIft determine that Merchant has created or is likely to create any harm or loss of goodwill to Zift or any of Zift’s Affiliates.
12.5 Zift reserve the right to terminate any Merchant account on which no activity has occurred for a period of at least 6 months. Zift reserve the right to remove and destroy any data stored in any Merchant directory upon termination of Merchant account.
12.6 In the event that Zift reasonably believes that a Threatening Condition exists, Zift will provide Merchant with notice of the Threatening Condition, upon receipt of which Merchant agrees to exercise its best efforts to cure the Threatening Condition. If in Zift’s sole discretion, the Threatening Condition poses an imminent or actual threat to the Software, Merchant agrees to suspend any and all activity on its account until such threat is cured. Notwithstanding the foregoing, Zift may thereafter deactivate Merchant’s account without notice until the threat is cured if Merchant does not itself suspend activity.
12.7 When this Agreement ends:
- Merchant is still responsible for paying any amounts owed to Zift under this Agreement;
- the terms of this Agreement will remain in effect for any Transactions submitted to the Servicers before the termination date;
- without limiting the generality of the previous paragraph, Zift’s right to debit the Service Account will survive termination until such time as all credits and debits permitted by this Agreement and the PAD Agreement and related to Transactions submitted to the Servicers before the termination date has been made;
- your rights to accept Transactions and submit Transactions for processing, your license to use the Software and your right to use any trademarks, all as outlined in this Agreement, will be terminated;
- Zift may withhold and discontinue the disbursement for all Transactions in the process of being collected and deposited and Zift may, without notice to Merchant, refuse to accept or revoke acceptance any Transaction Record or credit voucher or the electronic transmission thereof, if applicable, received by Zift on or any time after the occurrence of any event of default; and
- if applicable, Merchant must return any POS Material in its possession to Zift.
12.8 Within 15 business days of the date of termination of this Agreement, Zift will pay you all settlement funds owing to you under this Agreement less a holdback equal to any outstanding, potential or anticipated Returns and Fees and other amounts which may be or become payable pursuant to the terms and conditions of this Agreement after its termination. The holdback will be used to settle any outstanding Returns and Fees and any other adjustments received in the 180 days after termination and the unused portion of the holdback will be paid to you no later than 190 days after termination. If the holdback is insufficient to cover all Returns, Fees and other adjustments received in the 180 days after termination, you agree to pay any deficiency to Zift promptly on demand. All obligations of Merchant for Transactions prior to and after termination (including payment for Returns and Servicers’ expenses relating to Returns) and all rights and obligations set forth in Sections 11.7 and 11.8 shall survive termination.
ARTICLE 13: MISCELLANEOUS.
13.1 No Interest. Zift will not pay interest and no interest will accrue on any amounts held in the Merchant’s Peoples Trust bank accounts or as security or any amounts debited, credited, transferred, processed, held, frozen or otherwise handled by Peoples Trust or Zift in connection with any services.
13.2 Assignment. Merchant shall neither assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under them, nor purport to do any of the same, nor sub-contract the whole or any part of its rights or obligations under this Agreement without the prior written consent of Zift. Zift may assign any of Zift's rights and obligations under this Agreement upon providing written notice to the Merchant.
13.3 Subcontracting Zift may delegate or subcontract the performance of the Services, in whole or in part and without the consent of the Merchant, to any of its Affiliates or any other third party.
13.4 Set-Off Rights. Zift may set-off against any amounts owed to Merchant any amounts owed to Zift under this Agreement or any other agreement with Zift or any of its Affiliates.
13.5 Cross Default. A breach by the Merchant of a representation, warranty, covenant or term of any agreement to which the Merchant and Zift are parties shall constitute a breach hereunder.
13.6 Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
13.7 Entire Agreement. This Agreement contains the entire agreement between the parties with regard to its subject matter to the exclusion of all other terms and conditions and prior or collateral agreements, negotiations, notices of intention and representations.
13.8 Amendment. Except as expressly stated otherwise, this Agreement shall not be varied in its terms or amended other than by an instrument in writing signed by a duly authorized representative of each party.
13.9 Waiver. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right it may have.
13.10 Further Assurances. Each party shall from time to time execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
13.11 Notices. All notices or other communications required to be provided under this Agreement will be in writing and will be delivered in person (by commercial courier, return receipt requested) or by electronic means, addressed, in the case of the Merchant, to the business address or email address provided on the Application, or in the case of Zift to email@example.com. You consent to electronic provisions of all disclosures and notices from Zift, including those required by Law.
13.12 Consent to Electronic Disclosures and Notices. You may be asked to sign this agreement with a physical signature, electronic signature, click-to-accept, or clickwrap. You agree that your electronic signature, click-to-accept, or clickwrap acceptance will have the same legal effect as a physical signature.
13.13 Choice of Law; Jurisdiction. This agreement will be governed by the laws of the province of British Columbia and the federal laws of Canada applicable in the Province of British Columbia. The parties agree that the courts of the province of British Columbia will have exclusive jurisdiction over any matters arising from this Agreement.
13.14 Force Majeure. shall not be responsible for any failure to perform their obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of Zift.
13.15 Language. APPLICABLE TO THE PROVINCE OF QUEBEC ONLY: It is the express wish of the parties that this Application and any related documents be drawn up and executed in English. Les parties conviennent que la présente authorization et tous les documents s’y rattachant soient rédigés et signés en anglais.
13.16 Headings. Headings in this Agreement are for ease of reference only and do not affect its interpretation.
13.17 Interpretation. All pronouns used in this Agreement shall be deemed to refer to the corresponding masculine, feminine and neutered forms. The words “such as”, “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. All nouns used in the Agreement shall be deemed to refer to both their singular and plural forms. The words “herein”, “hereof”, “hereto”, “hereunder” and similar terms shall refer to this Agreement, unless the context otherwise requires. The references to Schedules, Sections, or Subsections are references to the Schedules, Sections or Subsections of this Agreement. Unless indicated otherwise, all dollar references are to Canadian currency. This Agreement shall be deemed to be drafted equally by the Parties; therefore, this Agreement shall not be subject to any rule of construction or interpretation that requires the Agreement to be construed against the drafter.
ARTICLE 14: EFT Transfer Terms and Conditions
14.1 Definitions. As used in this Agreement:
- “EFT Credit Transaction” means an EFT Transfer initiated by the Merchant that is a credit transaction involving the transfer of funds from the Designated Account.
- “EFT Debit Transaction” means an EFT Transfer initiated by the Merchant that is a debit transaction involving the transfer of funds from a third-party bank account, including pre-authorized debit transactions.
- “Priority Request” means an EFT Transfer to be carried out by Peoples Trust on the same Business Day.
- “Transaction Limits” means those limits on EFT Transfers as established by Zift and based on the information provided in the Application and may be amended by way of written notice provided via e-mail at the sole discretion of Zift from time to time.
14.2 EFT Credit Services. Provided that the Merchant provides to Zift the necessary EFT Banking Information and evidence of the necessary EFT Authorization from the Merchant Payee (if required) and instructions to Zift, Zift shall carry out the EFT Credit Transaction with funds already advanced to Zift for such purpose or by debit from the Merchant’s account the amount of such EFT Credit Transaction (plus any applicable Fees and charges to which Zift is entitled) before the end of the next following Business Day. Zift may, in its sole discretion, indicate that Priority Request EFT Transfers are available. Where Zift has indicated that Priority Request EFT Transfers are available, they shall be provided pursuant to the terms hereof.
14.3 EFT Debit Services.
- Provided that Merchant provides to Zift the necessary EFT Banking Information, and evidence of the necessary Merchant Customer PAD from the Merchant Customer (where required by Applicable Laws) and instructions to Zift, Zift shall carry out an EFT Debit Transaction from such Merchant Customer's account on the same Business Day received if Zift receives and accepts a Priority Request, or in any other case, before the end of the next following Business Day.
- Merchant shall provide its form Merchant Customer PAD for use in connection with EFT Debit Transactions to Zift upon Zift’s written request for such document to review. If Zift is not satisfied with the form of Merchant Customer PAD then in use by the Merchant, the Merchant agrees to amend the form of such Merchant Customer PAD to conform to Zift’s requirements and to ensure all Merchant Customers duly execute a new Merchant Customer PAD so amended before requesting further EFT Debit Transactions. No review or approval by Zift of its Merchant Customer PAD shall be construed as a legal opinion thereon or a representation that it complies with Applicable Laws; the responsibility of such compliance resting solely with the Merchant.
- Merchant shall not submit any EFT Debit Transaction for which it does not have a valid and enforceable Merchant Customer PAD.
14.4 Merchant Customer Set-up. Before the Merchant can use the Services to instruct an EFT Transfer to a particular Merchant Payee or from a particular Merchant Customer, the Merchant Customer must:
- acquire the necessary EFT Banking Information in the form required by Zift as well as any changes thereto;
- in the case of an EFT Credit Transaction, ensure that the source account holds non-refutable funds in an amount no less than the amount of such EFT Credit Transaction at the time the EFT Credit Transaction is processed;
- in the case of an EFT Debit Transaction, cause the Merchant Customer to complete and execute a Merchant Customer PAD as well as any amendments that Zift may require thereto;
- in the case of an EFT Debit Transaction, keep each executed Merchant Customer PAD in a place of safekeeping for so long as the Merchant instructs the carrying out of EFT Debit Transactions to the account of a Merchant Customer and for seven (7) years after the last EFT Debit Transaction is carried out;
- provide the necessary notice, if any, to the Merchant Payee or Merchant Customer, as applicable, for each EFT Transfer that the Merchant communicates to Zift for processing;
- obtain the necessary authorization, if any, from the Merchant Payee or Merchant Customer, as applicable, for each EFT Transfer that the Merchant communicates to Zift for processing; and
- hold copies of such other information from the Merchant Payee or Merchant Customer, as applicable, as may be required by Zift or Applicable Laws in connection with the EFT Banking Information including but not limited to identifying information concerning the Merchant Customer and its beneficial owners.
14.5 Merchant Customer EFT Transfer Authorizations. After compliance with the foregoing in connection with a particular Merchant Payee or Merchant Customer, before the Merchant can instruct that an EFT Transfer be carried out for that Merchant Payee or Merchant Customer, the Merchant must:
- Obtain an executed, valid and enforceable Merchant Customer PAD;
- deliver such information and documents as may be required by Zift in respect of the Merchant Customer;
- where, given the nature of the EFT Transfer, authorization from the Merchant Payee or Merchant Customer is not required for a proposed EFT Transfer but some form of notice by Zift to the Merchant Payee or Merchant Customer is required (e.g. 10 days’ notice of the amount to be paid), provide the necessary notice, if any, (as agent for Zift) to the Merchant Payee or Merchant Customer; and
- forward copies of any of the foregoing by the method requested by Zift in a format prescribed by Zift (e.g. email, ftp, fax etc.). Zift may, at its discretion, provide templates of Merchant Customer PAD agreements provided that Zift offers no legal opinion as to their validity or enforceability and Zift shall not be liable for any failure or losses occurring on account of such templates.
14.6 Accuracy. Merchant acknowledges that the critical importance to Zift that (i) the required EFT Banking Information is completed accurately, checked carefully by Merchant personnel for completeness and delivered to ZIft on a timely basis; (ii) for each EFT Credit Transaction, the necessary EFT Authorization is obtained from the Merchant Payee (or required notification provided to merchant Payee); and (iii) for each EFT Debit Transaction, the necessary EFT end user agreement (duly completed, as applicable) is obtained from the Merchant Customer. Merchant shall indemnify and save harmless each of the Indemnitees from and against all Claims which may at any time be suffered by, imposed on, incurred by or asserted against an Indemnitee, howsoever arising, arising from any failure of the Merchant to assure that the Merchant EFT Banking Information is accurate and delivered to Zift on a timely basis or from a failure to accurately obtain and enter authorizations from Merchant Payees or Merchant Customers, as applicable, or provide notices to Merchant Payees or Merchant Customers, as applicable, including any losses that may be suffered by Zift as a result of any claims made by Merchant Payees or Merchant Customers that would not be sustainable against Zift if the Merchant had complied with such requirements.
14.7 Completion of EFT Transfer. Within 30 Business Days after Zift receives confirmation from Third Party Servicer that the EFT Transfer has been successfully completed, Zift shall notify the Merchant of the completion of the transfer (or post the notification in a database accessible to the Merchant). In the case of any transactions which Zift determines are suspicious Zift shall be entitled to hold the funds indefinitely until such time as Zift receives evidence satisfactory to Zift that the transaction is properly authorized and legal.
14.8 Reversal of EFT Transfer.
- Merchant acknowledges that the Payments Canada Rules are such that EFT Transfers may be required to be reversed from time-to-time at the request of a Merchant Payee or a Merchant Customer. Such reversals may occur automatically under Payments Canada Rules (i.e. through the Payments Canada clearance system) if the reversal request is made within a relatively short period of time (i.e. typically 30 to 90 days). Reversals may also be required to be made under Applicable Laws outside of the Payments Canada clearance system or where required by Zift, at its discretion.
- Under Payments Canada Rules, Zift is the party from whom these reversals will be obtained, Merchant shall therefore, without limitation, indemnify Zift for any and all amounts that are reversed together with any associated fees and costs.
- Merchant acknowledges that whenever a reversal is requested, Zift may determine not to pursue any dispute resolution procedures or appeal procedures (if any are available) and may elect to return the funds to the Merchant Payee or Merchant Customer, as applicable, as requested by the Merchant Payee or Merchant Customer, as applicable. Zift shall not be required to inquire into the rightfulness of the request made by the Merchant, the Merchant Payee or the Merchant Customer, as applicable.
- If Zift returns funds to a Merchant Payee or Merchant Customer (whether such return occurs automatically under Payments Canada Rules or with the consent of Zift or otherwise), the Merchant shall immediately reimburse Zift for the returned funds.
- Merchant acknowledges that if the Merchant makes a request to Zift to reverse an EFT Transfer, it may not be possible for Zift to reverse an EFT Transfer or otherwise return any amounts to the Merchant in respect of a request to reverse an EFT Transfer. Zift makes no assurances that any requested EFT Transfer reversal will be successfully completed in a timely manner or at all and Peoples Trust shall have no liability in connection with any request by the Merchant to reverse an EFT Transfer. Merchant shall not make any representations to Merchant Customers that are inconsistent with the terms of this Agreement.
- Within 5 Business Days after Zift receives confirmation from the Third Party Servicer that a previous EFT Transfer has been reversed, Zift shall notify the Merchant of the reversal (or post the notification in a database accessible to the Merchant).
14.10 Complaints. Within 5 Business Days after Zift receives any notice or complaint from a Merchant Payee concerning any EFT Transfer to the Merchant Payee’s account, Zift shall provide the Merchant with a copy of the notice or complaint (or post the notice or complaint in a database accessible to the Merchant), subject to applicable Fees.
14.11 Platform Communications.
- The term "electronic communication" means any communication of instructions by internet (web based, email based, or otherwise) or telephone.
- Zift will consider any electronic communication apparently received from the Merchant or in the Merchant’s name to be duly authorized by the Merchant. Merchant authorizes Zift to rely and act on any such communication.
- For mutual protection, Zift may record any and all telephone calls that relate to the use of or include instructions relating to the Platform or the Services.
- Merchant agrees that Zift’s records regarding any electronic communication will be admissible in any legal, administrative or other proceedings as if such records were original written documents. Zift’s records will be conclusive proof of the information contained in such electronic communications
14.12 Reserve Account. Pursuant to Section 6.2 of the Agreement, Zift may require Merchant to provide a cash security deposit in an amount required by Zift. The security deposit will be held by Zift in a separate bank account (such account being a “Reserve Account”) and any interest that may be earned on the Reserve Account while it is held by Zift shall accrue solely to Zift. The Reserve Account shall be held by Zift in trust for Zift as the primary beneficiary and the Merchant as a contingent beneficiary (in the event that circumstances arise where a portion of such funds may be returnable to the Merchant). Zift may draw on the Reserve Account: (i) in the event of insufficient funds in the Service Account to satisfy the value of an EFT Credit Transaction (together with any applicable fees and charges to which Peoples Trust is entitled); or (ii) to satisfy any outstanding amounts payable to Zift under this Agreement.
14.13 Limitations on Services.
- Merchant acknowledges that the financial institutions receiving an EFT Credit Transaction from Zift are not obligated to accept payment and further, that Third Party Servicers are not obligated to send any payment received from another financial institution and therefore, the successful completion of any particular requested EFT Credit Transaction is at the discretion of the Merchant Payee financial institution and of the Third Party Servicer. Peoples Trust will not be required to process any EFT Credit Transaction in excess of the non-refutable amounts held in the Merchant’s account.
- Merchant acknowledges that the financial institutions receiving an EFT Debit Transaction request from Zift are not obligated to make payment and further, that the Third Party Servicers are not obligated to accept any EFT Debit Transaction received from another financial institution and therefore, the successful completion of any particular requested EFT Debit Transaction is at the discretion of the Merchant Customer financial institution and of the Third Party Servicer.
- Zift does not warrant that any particular requested EFT Transfer will be successfully completed in a timely manner or at all.
- EFT Transfers are subject to the Transaction Limits.
- Zift has the right to suspend or withhold EFT Credit Services until it is in receipt of the funds remittance in the EFT Credit Services and related Fees.
Canada Code of Conduct
Effective July 7, 2023Download
Table of Contents
Code of Conduct
Zift supports the Canada Code of Conduct for the Credit and Debit Card Industry.
The purpose of the Code is to demonstrate the industry’s commitment to:
- Ensuring that merchants are fully aware of the costs associated with accepting credit and debit card payments, thereby allowing merchants to reasonably forecast their monthly costs related to accepting such payments.
- Providing merchants with increased pricing flexibility to encourage consumers to choose the lowest-cost payment option.
- Allowing merchants to freely choose which payment options they will accept.
The Code applies to credit and debit card networks (referred to herein as payment card networks) and their participants (e.g. card issuers and acquirers).
The payment card networks that choose to adopt the Code will abide by the policies outlined below and ensure compliance by their participants (e.g. issuers, acquirers, and their downstream participants). The Code will be incorporated, in its entirety, into the payment card networks’ contracts, governing rules and regulations. The Code will apply within 90 days of being adopted by the payment card networks and their participants.
Enhancements to the Code announced on April 13, 2015 will apply within 9 months of being adopted by the payment card networks and their participants and will apply to all new merchant-acquirer agreements and all new or reissued premium cards after that 9-month period, with the following exceptions:
- Element 1: Acquirers will have up to an additional 9 months, for a total of 18 months from the date of adoption, to implement the changes to Element 1. These changes will be applied to all new and renewed merchant-acquirer agreements;
- Elements 2 and 3: The measures to facilitate the pass-through of interchange rate reductions to merchants will enter into force immediately for all merchant-acquirer agreements, upon adoption of the Code;
- Element 4: The extension of this principle to contactless payments will enter into force immediately for all merchant-acquirer agreements, upon adoption of the Code;
- Element 11: This element, which pertains to acceptance of contactless payments, will enter into force immediately for all merchant-acquirer agreements, upon adoption of the Code;
- Element 12: The principle that merchants can provide notice of non-renewal at any point during the contract period up to 90 days prior to contract expiry will enter into force immediately for all merchant-acquirer agreements, upon adoption of the Code. Acquirers will have 9 months from the date of adopting the Code to implement the changes addressing fixed-term contracts; these changes will be applicable to all merchant-acquirer agreements; and
- Element 13: The complaints handling process will enter into force for all merchant-acquirer agreements, within 60 days of adopting the Code.
To assist entities in adhering to elements of the Code, the following definitions are provided for clarification:
Contactless payment: a payment card-based and/or mobile device enabled payment transaction that is initiated at the payment terminal at a point-of-sale and that does not require contact with the payment terminal at the point-of-sale.
Mobile device: a portable electronic device that may be used by a consumer to facilitate the storage and/or transmission of data electronically for enabling a contactless payment.
Mobile wallet: a graphic user interface (software application) that presents one or more payment applets to a consumer for the purposes of enabling a contactless payment.
Payment applet: a software application on a mobile device, or within a mobile wallet, that enables a contactless payment by linking a single payment credential (e.g. credit or debit) through a specific payment card network.
Payment credential: the data that is required to complete a contactless payment (e.g. identifying information for the specific payment network, issuer and cardholder) that is stored securely and accessed by a payment applet or token associated with a payment applet.
This Code is overseen by the Financial Consumer Agency of Canada, which is responsible for monitoring the compliance of signatories.
Requirements for Payment Card Networks
By adopting the Code, payment card networks agree to provide any requested information regarding actions taken by themselves or participants to the Financial Consumer Agency of Canada, for the purpose of monitoring compliance with the Code. In addition, payment card networks agree to pay for the fees associated with monitoring compliance with the Code, as determined by the Financial Consumer Agency of Canada.
Payment card networks will regularly review, no less than every three years, market conduct practices of all merchant focused agents, registered by acquirers with the payment card networks, in the context of the Code. The payment card networks will report the results of these reviews to the Financial Consumer Agency of Canada.
Details on each of the 13 policy elements can be found on the Code of Conduct for the Credit and Debit Card Industry in Canada page.
Complaint Handling Process
In Canada, merchants have additional rights according to the Canada Code of Conduct. If a merchant believes that Zift's conduct may be contrary to any of the Merchant-Acquirer Policy Elements outlined in The Code of Conduct; the Merchant can file a complaint by contacting us through any of the following channels:
- Calling support at 877-456-1382.
- Sending an email to firstname.lastname@example.org.
- Or by completing the form at zift.io/support
In any communication with the Zift support team regarding a Code of Conduct complaint please be prepared to provide the following information:
- a summary of your concerns,
- details, such as the name of the person you were dealing with, the date the concern occurred, or the date you spoke to our representative,
- copies of any supporting documentation.
Following receipt of your complaint we will:
- Acknowledge receipt within five business days.
- Provide our final decision within 90 days of receiving the complaint, along with:
- A summary of the complaint;
- The final result of the investigation; and,
- Explanation of the final decision;
- If we cannot provide a response within 90 days, you will be informed of the delay, the reason for the delay, and the expected response time.
If you believe that our conduct is contrary to the Code and feel your concerns regarding our products or services have not been adequately addressed, you may report the issue to your acquirer, Peoples Trust Company to file a Code of Conduct Complaint. Peoples Trust Company complaint handling procedure is outlined here.
Effective November 9, 2023Download
Summary of changes
This update includes and incorporates all the changes requested by Peoples Trust Company for sponsorship in Canada and to be compliant with Canadian privacy regulation.
Table of Contents
Zift is a payment technology company with an emphasis on integrated payments. Our technology powers software platforms with the ability to seamlessly extend payments to their users.
DETAILS ABOUT HOW, WHY AND WHEN WE PROCESS YOUR DATA
When you Visit Our Website
As you explore our website, we want you to know how we process certain information to enhance your experience. When you visit, we collect data such as your IP address, Google Analytics ID, internet browser, device type, location, and details about your interactions with our website and application. This includes the pages you visit, how you found us, the duration of your stay, and your language preferences.
We use this data for various purposes, including ensuring the smooth functioning of our website, debugging, delivering content, mitigating DDOS attacks, and enhancing overall user experience. Our goal is to continually improve our website and perform statistical analyses to optimize your interaction with our platform. Additionally, with your prior consent, we may use this information to provide personalized offers tailored to your needs.
Understanding how you navigate our website, the pages you visit, and the content you explore helps us determine how best to serve you. For instance, if you show interest in our products and services, we might identify you as a potential merchant or partner. With your consent, we may reach out with offers suited to your preferences, always mindful of the laws in your home jurisdiction.
To make accurate assessments, we may also use tracking cookies, which track your website usage and other sites you visit. This allows us to tailor content, including advertisements, to your interests. Rest assured, we only place these tracking/targeting cookies with your explicit consent. More information about these tracking cookies is available in our Cookies Policy.
Data Retention - How Long We Keep Your Information
Your privacy matters, and we only retain your data for as long as needed for the purposes mentioned above. For instance, information about your website visits is held until your session ends. However, data collected for analytical and marketing purposes is kept for a duration of 1 year after collection.
Your trust is important to us, and we want you to feel secure and informed as you engage with our website.
If You Have A Zift Merchant Account or Apply For One
When you sign up for a merchant account, or have a merchant account through an agreement with us, we collect essential information to establish, maintain, and perform our relationship with you. This includes details like your name, date of birth, address, ID documentation, tax information, creditworthiness, and payment details. We use this information for underwriting and ongoing risk monitoring, to set up our products and services, offer support, assistance with settings in the Zift Portal, and POS terminal deployment and support. Additionally, we leverage this data for our legitimate interests, managing internal administration, and ensuring compliance with legal obligations such as KYC and AML requirements.
Your interaction with our products and services matters to us. We collect data about your usage, login details, and any questions, queries, comments, or complaints you share to provide ongoing support and optimize our offerings. With your consent, we may process your personal information to determine eligibility for additional ancillary services and extend corresponding offers.
As a payment technology company, compliance is a cornerstone of our operations. We are committed to acting in accordance with applicable laws and regulations, preventing fraud, money laundering, and financing terrorism. During your application and throughout our agreement, we may collect up-to-date information and documents to:
- Verify your identity
- Identify ultimate beneficial owners
- Understand the purpose and intended nature of your business relationship with us
- Monitor behavior and transactions you transmit through your usage of our payment processing services
- Determine whether you act on behalf of yourself or a third party
- We may use third-party identification, screening, and verification services to assist in this process, ensuring the safety and integrity of the financial sector
The safety of your personal information is a priority. We do not employ automated decision-making processes, always keeping your rights in mind. We process your personal information for various purposes, including providing services, improving products, complying with laws, conducting analysis, protecting our platform, and facilitating reporting and training.
Data Retention - How Long We Keep Your Information
For our customers, we retain information related to our business relationship for 7 years after the contract ends or after the rejection of your application. Data collected for legal obligations will be retained for the required duration. In some instances, disclosure to competent authorities and regulators may occur to fulfill our obligations as a payments service provider, particularly in preventing money laundering and terrorist financing. Your trust is integral to our partnership, and we're committed to safeguarding your information with diligence and responsibility. If you have any questions or seek further clarification, please refer to our data retention policy or reach out to us directly.
When Zift Processes Your Transaction
When you make a purchase from one of our registered merchants our role involves requesting authorization from relevant payment schemes like Mastercard, Visa, Discover or American Express, and if approved by your bank, we finalize the payment to the merchant.
In providing these services to our diverse range of customers, including, web shops, professional service providers, and brick-and-mortar stores, we process your personal data. This means we handle your payment and manage associated aspects of financial transactions in the interest of providing you with a secure and efficient payment experience. Additionally, when a merchant needs to charge your card for a recurring payment and your card information has changed, we may seek updated details on our platform to facilitate your payment.
Our commitment extends to fulfilling legal obligations as a payment services provider, including monitoring financial transactions to prevent money laundering and terrorist financing. For this purpose, we may collect encrypted card numbers, expiry dates, bank account details, transaction amounts and currencies, transaction details (date, time, location), and merchant information.
Moreover, we process your information to protect our legal rights, handle legal claims, and meet our legal obligations when required.
Zift also processes your personal information for the following purposes:
- To provide services per the agreements with our merchants.
- To comply with applicable laws and regulations.
- For analysis, statistical insights, strategic planning, and scientific purposes.
- To safeguard our platform, systems, and services from misuse, fraud, financial crimes, or unauthorized activities.
How Long Do We Keep Your Data?
We retain your data only for as long as necessary for the mentioned purposes. The retention period aligns with applicable laws and typically spans 7 years after the conclusion of the relevant transaction.
If any information needs to be retained longer for our legitimate interest in protecting legal rights, we retain it until the relevant claim(s) is settled.
Whom Do We Disclose This Information To?
Depending on your location, payment method, and issuing bank, we may partner with third parties to enhance our payment processing services. Additionally, your information is shared with the merchant you're shopping with. In some cases, we may disclose information to competent authorities or regulators to comply with our regulatory obligations.
Rest assured, your information remains confidential, and we won't disclose it to any third party without your permission, except when necessary for the mentioned purposes, legal claims, or when legally obligated to do so.
When You Reach Out to Zift
At Zift, we welcome your inquiries, support requests, and the opportunity to connect with you. Whether you're filling out an application to become a merchant or partner, signing up for a test account, or simply reaching out with questions or comments through our website, we're here to assist you.
When you contact us via our website or through phone or email, we collect the information you provide, such as your name, company details, contact information, the nature of your inquiry, and any additional information you choose to share. This includes verification to ensure you're not a robot and maintaining a personalized and secure interaction.
The data we gather serves various purposes:
- Answering Your Queries: We use the information to respond promptly to your questions, comments, or complaints, ensuring a thorough and helpful resolution.
- Assessing Applications: If you're applying to become a customer or partner, we use the provided data to assess your application, establishing the foundation for our (future) collaboration.
- Conducting Business: The data is instrumental in the ongoing interaction with you, serving our legitimate interests in managing internal administration, conducting business operations, and providing necessary assistance.
- Improving Services: For our legitimate interest, we leverage the collected data for marketing research, enabling us to enhance our products and services. This empowers us to offer tailored solutions to you and our future customers.
We respect your privacy, and data about your inquiries, comments, or support requests is retained as long as reasonably necessary for the purposes listed above or our data retention obligations.
At Zift, we believe in transparency and want to keep you informed about how we handle your information for various purposes. In certain situations, we may need to process your information beyond the previously outlined contexts.
Protecting Legal Rights: We may process your information to protect our legal rights, especially when addressing legal claims. In certain cases, we have a legal obligation to process your information. This is essential for compliance with relevant laws and regulations, reinforcing our commitment to operating within legal frameworks.
Business Transactions and Company Reorganization: In the dynamic landscape of business, we may find ourselves undergoing company reorganization or engaging in business transactions, such as a sale or bankruptcy. In such cases, your data may be transferred as part of these activities. Rest assured, we approach this with the same commitment to data protection and privacy.
DATA RETENTION AT ZIFT
We retain your data only for as long as it is reasonably necessary to fulfill the purposes outlined above. This ensures that your information is not held longer than required for the intended use.
In certain instances, the retention terms may extend based on applicable laws or to fulfill our business administration requirements. Rest assured, any extension is in strict adherence to legal frameworks governing data retention.
If there's a legitimate interest, such as protecting our legal rights, we retain the necessary information until the relevant claim(s) are satisfactorily settled. This approach ensures that your data is held securely and responsibly, aligning with our commitment to privacy.
The personally identifiable information we collect about you is transmitted security and stored in limited access servers located in the United States. We maintain (directly and through our agents) physical, electronic and procedural security safeguards, including but not limited to PCI Level 1 certification, to protect your personally identifiable information.
We have implemented appropriate and reasonable technical and organizational measures to protect against loss, misuse, unauthorized access, disclosure, alteration, and destruction of your data. These measures are designed by considering the risks associated with the processing and the nature of the Personal Information we handle.
However, it's essential to note that, despite our best efforts, no data transmission or storage system can be guaranteed to be 100% secure. We are dedicated to continually enhancing our security measures to adapt to evolving challenges and technologies.
For Canadian individuals, Partners or Merchants we diligently adhere to applicable Canadian privacy laws and regulations, such as the Personal Information Protection and Electronic Documents Act (PIPEDA). For those engaging with us in Quebec, we also comply with the specific provisions outlined in Quebec Bill C64.
Additionally you may withdraw your consent at anytime for Zift to store your personal date. Recognize that by doing so you may loose your ability to access and/or use our services. In order to withdraw your consent please contact our support team at email@example.com or submit a request from our website.
If you ever have any questions or concerns about the security of your Personal Information, please don't hesitate to reach out to us. Your trust is valuable to us, and we are here to address any inquiries you may have.
INFORMATION TRANSFERS AT ZIFT: ENSURING YOUR DATA SECURITY
At Zift, safeguarding the security and confidentiality of your information is at the core of our commitment. There are instances where we engage service providers to assess your data for account underwriting, risk assessment, and regulatory compliance. We rely on Standard Contractual Clauses with our service providers to ensure the integrity of your data when collaborating with these service providers.
Information Sharing and Disclosure
Zift may share or disclose personally identifiable information about you to other companies or individuals when:
- We have your consent to share the information.
- We utilize third party service providers to provide products, services or functions on our behalf (such as sending emails or processing payments), and require these service providers to agree to maintain the confidentiality of your personally identifiable information and not to use your personally identifiable information for any reason except to carry out the purpose(s) for which we hired them.
- We must comply with applicable laws, regulations, legal or regulatory processes in connection with a sale, merger, transfer, exchange, or other disposition (whether of assets, stock, or otherwise) of all or a portion of the Zift business.
- As part of our acquiring program with our sponsor banks.
In all cases where Zift shares your personal information the data will be transferred via secure file transfer protocols or secure document sharing services.
NOTE: We do not sell your Personal Information to any third party for promotional or marketing purposes.
Aggregate information is information that we (or third party service providers on our behalf) collect about Zift.io web site users on an anonymous basis. We may share aggregate demographic and usage information with our prospective and actual business partners, advertisers and other third parties.
If you have any queries or wish to delve deeper into the specifics of these protective measures, please don't hesitate to reach out. Your trust is paramount to us, and we're here to provide you with any additional information you may need.
Transfer to U.S.
If you are located outside of the United States, please note, that the information you provide to us will be transferred to the United States and will have the same security and safeguards put in place to protect your personal information as described above in our section on Security. While the data protection, privacy, and other laws of the United States might not be as comprehensive as those in your country, we take many steps to protect your privacy.
What You Need to Know:
- Effective Changes: Updates and amendments become effective immediately upon notice. We may notify you through various means, such as posting a revised policy on the Zift website or through other notices.
Your privacy matters, and we want you to feel confident in how we handle your information. If you have any questions or concerns, please reach out to us.
USE OF THE SERVICES BY MINORS
Due to the financial nature of our business, our web site is not designed to appeal to children under the age of 13. Zift does not knowingly solicit any information from children nor do we knowingly market or otherwise target the Zift.io web site or its products or services to children. If you are under the age of 13, please do not attempt to use or register on our web site.
YOUR RIGHTS AT ZIFT
At Zift, we are committed to ensuring your control over your personal data. You hold the following rights, with consideration to applicable exceptions:
- Right to Access: You have the right to request disclosure of the specific pieces of your personal data we have collected, presented in a portable and technically feasible format.
- Right to Know: You may confirm the collection of personal data about you, understanding its categories, sources, and the purposes for which it's processed. For insights into data processed for legitimate interests, feel free to contact us.
- Right to Deletion: You can request the deletion of your collected personal data, which we will endeavor to honor in compliance with applicable laws, though certain data may need retention for legitimate business purposes or legal compliance.
- Right to Opt-Out: You are entitled to opt-out of personal data sales and sharing for cross-context behavioral advertising. This can be done by adjusting your cookie preferences or contacting us.
- Right to Object: You have the right to object to the processing of your personal data, which includes profiling. If, at any point, we have sought your consent to process personal data, you retain the right to withdraw that consent at your discretion.
- Right to Correct: If your personal data is inaccurate or outdated, you have the right to update it or request that we make a correction.
Please be aware that these rights may be subject to limitations under specific laws and technical feasibility. If we process your data as a service provider to a customer, kindly contact that customer directly to exercise your rights.
To enact any of these rights please email us at firstname.lastname@example.org or submit a support request ticket on our website here. Please note that for verification, we may need additional information.
GET IN TOUCH WITH ZIFT - YOUR CONCERNS MATTER
- Data Access or Deletion Requests
- General Inquiries and Complaints
- Third-Party Data Sharing
If you ever have a complaint about how we handle your personal data, you retain the right to escalate the matter. You can address your concerns with the data protection authority in your country of residence or employment or the country in which Zift is located.
Your feedback and questions are highly valued, and we are here to ensure a transparent and respectful interaction.
Effective August 12, 2022Download
Table of Contents
The term ‘Zift’, ‘ZiftPay’, ‘Zift LLC’, ‘us’, or ‘we’ refers to the owner of this website. The term ‘you’ refers to the user or viewer of our website.
The content of the pages of this website is for your general information and use only. It is subject to change without notice.
Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
All trade marks reproduced in this website which are not the property of, or licensed to, the operator are acknowledged on the website.
Unauthorized use of this website may give rise to a claim for damages and/or be a criminal offence.
From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
Your use of this website and any dispute arising out of such use of the website is subject to the laws of Utah County, Utah, United States.