CHARTER PACIFIC BANK
Member FDIC
MERCHANT BANKCARD SERVICE AND SECURITY AGREEMENT
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
This Merchant BankCard Service and Security Agreement ("Agreement") is made
between Charter Pacific Bank, a California Banking Corporation (referred to as
"Bank") and the merchant identified below (referred to as "Merchant") for the
processing and collection of Visa and/or MasterCard Credit Card transactions
(referred to as "Bank Card Transactions").
This Agreement shall be effective upon execution by Bank and notification to
Merchant of final approval. All references herein to this "Agreement" shall
collectively include all current Schedules, Amendments, Change Notices,
Addendums and Attachments, as well as the associated reference materials, all of
which are incorporated herein by reference and made part of this Agreement as if
fully set forth.
ARTICLE I -- DEFINITIONS
1.1 DEFINITIONS. The Bank and Merchant hereby agree that the
following terms used in this Agreement shall have the
following meanings:
1.2 APPLICATION. The Merchant BankCard Service Application or
other Application form, and any associated documents, to be
completed and submitted by Merchant to Bank. Final approval by
Bank must be completed prior to the establishing of the
Merchant BankCard Service.
1.3 AUTHORIZATION. The verification of a Bank Card Transaction by
the card-issuing bank or approved independent service provider
for each transaction limit.
1.4 AUTHORIZATION CENTER. The card-issuing bank or approved
independent service provider that verifies Bank Card
Transactions.
1.5 BANK CARDS. Designated Visa and MasterCard credit cards issued
by banks to individual cardholders.
1.6 MERCHANT BANKCARD SERVICES. Service provided by Bank to
Merchant for processing all Bank Card Transactions and related
fees, charges and costs.
1.7 BANK CARD TRANSACTIONS. A transaction for a sale, rental or
service, or any credit therein, by and between Merchant and a
bona fide cardholder, evidenced by a sales slip or a credit
slip, which is presented to Bank by Merchant for processing
through the Bank's Interchange System, and may include
transactions where the cardholder's signature is not obtained
or where the slip does not contain a physical card imprint so
long as the transaction has been authorized by the cardholder.
1.8 CHARGEBACKS. Bank Card Transaction returned for debiting to
the Merchant's Bank Account by Bank because of nonconformity
with Federal, State, Local or Interchange System laws, rules
and regulations, because of cardholder dispute or for
violation of any term or condition of this Agreement.
1.9 CREDIT SLIP. Records of returns or credit transactions between
Merchant and individual cardholders that shall be delivered to
the Bank or presented electronically by Merchant to Bank for
processing through the Interchange System for crediting to the
cardholder's account and debiting to the Merchant Bank
Account.
1.10 ELECTRONIC TICKET CAPTURE ("ETC"). The Interchange System by
which the Merchant authorizes and captures each Bank Card
Transaction.
1.11 FACTORING. Presentation by Merchant to Bank of any Bank Card
Transaction that originated from a source other than Merchant.
1.12 FINAL APPROVAL. Notification by Bank that Merchant has
completed to Bank's satisfaction all those steps necessary to
verify that Merchant is financially responsible and that
Merchant conducts, or intends to conduct, a bona fide
operation.
1.13 FLOOR LIMIT. All transactions are subject to a zero dollar
($0.00) floor limit, unless otherwise stated.
1.14 INTERCHANGE SYSTEM. MasterCard and Visa processing systems, of
which Bank is a Member, which facilitates the interchange and
payment of Bank Card Transactions by and between individual
cardholder and merchants who accept MasterCard and Visa Bank
Cards, including the Merchants herein.
1.15 INTERCHANGE SYSTEM/MEMBERS. Financial institutions licensed by
Visa and MasterCard as Members of the Interchange System and
participants in Visa and MasterCard credit card programs,
including Bank herein.
1.16 MERCHANT. The term "Merchant" as used in this Agreement refers
to any person, firm, partnership, organization or corporation
falling within the meanings assigned to the term "Merchant" by
MasterCard and Visa. The term "Merchant" shall refer to the
undersigned Merchant.
1.17 MERCHANT BANK ACCOUNT. A business checking account established
by Merchant at Bank through which Merchant authorizes Bank to
settle all Bank Card Transactions, electronically via the
Automated Clearing House ("ACH"), or for the Merchant to
receive immediate settlement upon direct presentation to Bank
if Merchant maintains a business checking account in good
standing with the Bank.
1.18 MERCHANT IDENTIFICATION PLATE. Metal plate issued to Merchant
by Bank which contains current information for identifying the
Merchant and Merchant's location and which contains a unique
Merchant BankCard Service number (when applicable).
1.19 REFERENCE MATERIALS. All reference materials, including, but
not limited to, respectively the Interchange System rules and
procedures and the Bank rules and procedures provided to
Merchant by Bank which describe in detail, policy and
transactional requirements to be followed by Merchant for the
possessing, collection and settlement of all Bank Card
Transactions, as those rules and procedures may be amended
from time to time in whole or in part.
1.20 RETRIEVAL REQUEST. Request for the original, copy or
electronic rendering of any sales draft, sales slip or credit
slip.
1.21 RETURN AND CORRECTION ("R&C"). Any transaction, whether by
sale or credit, that cannot be processed due to incorrect or
incomplete information or data.
1.22 SALES SLIP. Record of payment of a sale, rental or service
transaction between Merchant and individual cardholders
presented by Merchant to Bank for processing through the
Interchange System for debiting to the cardholder's account
and crediting to the Merchant Bank Account.
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1.23 SPLIT SALE. Preparation of two (2) or more Sales Slips or
processing of two (2) or more electronic sales for a single
transaction on one (1) account.
1.24 SUPPLEMENTAL SERVICES. Additional BankCard Service and
processing enhancements that may be selected by Merchant.
1.25 TRAVEL RELATED SERVICES. MasterCard/Visa Interchange Services
available to a merchant regarding airline, hotel, motel, or
inn; travel related services or a reservation service; engages
in sale of traveler's checks; or engages in the sale of
foreign currency. The initial Travel Related Services in which
Merchant currently participates are set forth below Merchant's
signature herein.
1.26 WARNING BULLETIN. Communication issued periodically by the
Interchange System or participants in the Interchange System
to advise Merchant(s) of Bank Card account numbers which are
not to be accepted by Merchant for various reasons.
ARTICLE II -- APPLICATION AND APPROVAL
2.1 By completion of the Application and the execution of this
Agreement, Merchant applies for establishment of the Merchant
BankCard Service through which all of Merchant's Bank Card
Transactions will be processed. The Merchant BankCard
Transactions will be processed. The Merchant BankCard Service
may be used by Merchant for only those transactions directly
related to the bona fide business activity(ies) indicated on
the Application. Any change in said activity(ies) must be
approved in writing by Bank.
2.2 The Bank may approve or reject Merchant's Application in
Bank's sole discretion. Upon Final Approval, notice shall be
provided to Merchant by Bank by the delivery of the Merchant
Identification Plate or in writing, if not applicable.
Terminal Installation and/or training will be provided by Bank
or its designated agent. Thereafter, this Agreement shall
continue until it is terminated as provided below.
2.3 At any time during the term of this Agreement, Bank may
reinvestigate any prior or current information provided by
Merchant or contained in Merchant's Application, and in so
doing, Bank may require additional information to be provided
by Merchant to Bank. Bank may also request or obtain, without
additional notice to Merchant, credit bureau reports and/or
otherwise verify Merchant's current financial standing and
funding adequacy.
2.4 If Merchant's Application receives Final Approval, Merchant
shall be entitled to all of the benefits of the Merchant
BankCard Service and related Merchant support services.
2.5 If approved, account must begin activity within 30 days after
notification of approval. This allows for an acceptable length
of lead time for advertising to be put in place.
ARTICLE III -- CARD TRANSACTIONS
3.1 HONORING CARDS.
(a) Merchant shall honor without discrimination all valid
cards of the type(s) checked below ("Cards") when
properly presented as payment by customer in
connection with bona fide, legitimate business
transactions. If Merchant does not deal with the
public at large (such as in the case of a private
club), Merchant shall be deemed to have complied with
this non-discrimination rule if it honors all valid
Cards of cardholders who have purchasing privileges
or memberships with Merchant.
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(b) Merchant shall not require, through an increase in
price or otherwise, any cardholder to pay any
surcharge at the time of sale or to pay any part of
any charge imposed on Merchant by Bank (discounts for
payment in cash, however, are permitted).
(c) Merchant shall not establish minimum or maximum
transaction amounts.
3.2 ADVERTISING.
(a) Merchant shall display adequately any advertising or
promotional materials provided or required by Bank to
inform the pubic that Cards will be honored at
Merchant's place of business. Such displays, however,
are not required of private clubs and other Merchants
that do not deal with the general public, vehicle
leasing companies at airport locations,
transportation companies subject to government
regulation, or other Merchants expressly exempted
from this requirement by MasterCard International
Inc. ("MasterCard") and/or Visa U.S.A. Inc. ("Visa"),
as applicable.
(b) Merchant shall not display or use advertising or
promotional materials containing Bank's name or
symbol which might cause a customer to assume that
Merchant honors only Cards issued by Bank.
(c) Merchant shall not refer to MasterCard or Visa in
stating eligibility for its products, services, or
memberships.
(d) Merchant shall have the right to use or display the
proprietary names and symbols associated with Cards
only while this Agreement is in effect, or until
Merchant is notified by Bank or any appropriate
BankCard organization to cease such usage.
(e) Merchant shall comply with all applicable MasterCard
and Visa rules and regulations concerning the use of
service marks and copyrights owned by MasterCard or
Visa.
(f) Merchant shall use the proprietary names and symbols
associated with Cards only to indicate that Cards are
accepted for payment and shall not indicate, directly
or indirectly, that Bank, MasterCard, Visa, or any
BankCard organization endorses Merchant's products or
memberships.
3.3 CARD EXAMINATION.
(a) Merchant shall not engage in a transaction (other
than mail order, telephone order, or pre-authorized
transaction) with a cardholder that fails to present
the Card that is intended to be used to complete the
transaction.
(b) Before honoring any Card, Merchant shall:
(i) check the effective date (if any) and the
expiration date on the Card;
(ii) examine any card security features (such as
holograms) included on the Card; and
(iii) Merchant shall not honor any Card that is
not yet effective or that has expired.
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3.4 AUTHORIZATION.
(a) Before honoring any Card, Merchant shall request
authorization from Bank's designated authorization
center if:
(i) the total amount of the transaction
(including any applicable taxes) exceeds the
floor limit then applicable to the
transaction (for hotel, motel and vehicle
leasing transactions Merchant must estimate
the amount of the transaction based upon the
customer's intended length of stay or rental
and request authorization if the estimated
transaction amount exceeds the applicable
floor limit; upon check-out or return of the
rental vehicle, additional authorization
must be obtained and recorded for charges
actually incurred in excess of the estimated
amount authorized; when multiple airline
tickets are purchased at the same time using
the same account number, Merchant may obtain
authorization for each ticket individually;
when a transaction is completed in partial
payments of a purchase, authorization is
required for the portion of the purchase
effected with the Card, regardless of the
applicable floor limit);
(ii) Merchant desires to make a delayed
presentment of the transaction record;
(iii) the sales slip (as defined in Section 4.1,
below) is not signed or is not Imprinted
with the Card or with the Merchant plate; in
a transaction other than a mail or telephone
order;
(iv) the signature panel on the Card does not
contain the customer's signature, the
customer's signature on the sales slip is
questionable, the Merchant believes the Card
may be counterfeit or stolen, or there are
other unusual or suspicious circumstances.
(b) Except when authorization is required only because
the amount of the transaction exceeds the applicable
floor limit, Merchant must contact Bank's designated
authorization center by telephone and advise the
authorization center of the specific reason for the
authorization request and wait instructions.
(c) If authorization is granted, Merchant shall print the
authorization number legibly in the designated area
on the sales slip.
(d) If authorization is denied, Merchant shall not
complete the transaction and shall follow any
instructions from the authorization center.
(e) Merchant shall be liable to Bank, regardless of any
authorization, if:
(i) Merchant completes a transaction when the
Cardholder is present but does not have his
Card;
(ii) the Cardholder does not sign the sales slip;
or
(iii) the signature on the sale slip does not
match the signature appearing on the Card.
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3.5 RETENTION AND RETRIEVAL OF CARDS.
Merchant shall use its best efforts, by reasonable and
peaceful means, to retain or recover a Card:
(a) while making an authorization request;
(b) if Merchant is advised to retain the Card in response
to an authorization request; or
(c) if Merchant has reasonable grounds to believe that
the Card is counterfeit, fraudulent, or stolen.
The obligation of Merchant to retain or recover a Card imposed
by this section does not authorize a breach of the peace or
any injury to persons or property, and Merchant will hold Bank
harmless form any claim arising from any injury to person or
property or other breach of the peace.
3.6 COMPLETING THE TRANSACTION RECORD.
Except as otherwise provided below, Merchant agrees to do all
of the following when honoring a Card:
(a) include on any conventional sales slip the
transaction date, description of the goods or
services sold, and the price thereof (including any
applicable taxes) in detail sufficient to identify
the transaction;
(b) to imprint legibly on the sales slip the embossed
legends from the Card and from the Merchant imprinter
plate;
(c) to obtain the signature of the customer on the sales
slip, but only after the total transaction amount is
included on the slip;
(d) to compare the signatures on the sales slip and the
signature panel of the Card, and if the Card has a
photograph of the cardholder, to ascertain that the
customer resembles the person depicted in the
photograph, and if either identification is uncertain
or Merchant otherwise questions the validity of the
Card, to contact Bank's authorization center for
instructions;
(e) if Merchant is using a magnetic stripe reading
terminal in connection with a transaction and that
terminal is unable to read the Card's magnetic
stripe, complete and obtain the cardholder's
signature on a conventional sales slip for the
transaction, and obtain an imprint on that slip as
required under Section 3.6(b) above (as an
alternative to completing a conventional sales slip
for a transaction such as this, Merchant may include
an imprint of the Card directly on a blank portion of
the printer slip produced by the electronic
terminal); and
(f) to deliver a true and complete copy of the sales slip
to the customer at the time of delivery of the goods
or performance of the services;
(g) if the transaction is initiated at a
point-of-transaction terminal, include on the printer
receipt:
(i) The cardholder's account number;
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(ii) Merchant's name;
(iii) Merchant's location;
(iv) the amount of the transaction;
(v) the date of the transaction; and
(h) if the transaction occurs at a gasoline station or at
a retail establishment that sells gasoline as a
secondary service, to enter on the sales slip the
number and state (or other jurisdiction) of the motor
vehicle license plate or, if no motor vehicle is
present, the words "No Car" (the license number and
state or the words "No Car" are not required if the
transaction is at an unattended gasoline station
where the pump is activated by a magnetic stripe, or
if the transaction is for goods or automotive
products).
3.7 MULTIPLE TRANSACTION RECORDS; PARTIAL CONSIDERATION.
(a) Merchant must include on one transaction record the
entire amount due for the transaction, except in the
following instances:
(i) the transaction involves purchases made in
separate departments of a multi-department
store;
(ii) the transaction involves delayed or amended
charges for a lodging or vehicle rental
transaction in which:
(A) the cardholder consented to be
liable for such charges;
(B) such charges consist of ancillary or
corrected charges such as room
charges, taxes, or full fees, and
not charges for loss, theft, damage,
or traffic violations; and
(C) Merchant sends the cardholder a copy
of the amended or add-on sales
draft;
(iii) the customer pays a portion of the
transaction amount in cash or by check at
the time of the transaction;
(iv) all or a portion of the goods or services
are to be delivered or performed at a later
date, and the customer signs two separate
sales slips, one of which represents a
deposit and the second of which represents
payment of the balance, and the "balance"
sales slip is completed only upon delivery
of the goods or performance of the services;
in which case Merchant agrees:
(A) to note on the sales slips the word
"deposit" or "balance," as
appropriate;
(B) if the total amount of the two slips
exceeds the applicable floor limit,
to obtain prior authorization and
note the authorization number(s) on
the sales slips; and
(C) not to present the "balance" sales
slip until all the goods are
delivered or all the services are
performed;
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(v) the cardholder is participating in an
advance resort deposit transaction; or
(vi) the cardholder is using the installment
payment option offered in accordance with
Section 3.8.
(b) Merchant agrees not to divide a single transaction
between two or more transaction records to avoid
obtaining an authorization.
3.8 TELEPHONE ORDERS, MAIL ORDERS, PREAUTHORIZED ORDERS, AND
INSTALLMENT ORDERS.
(a) If a Card transaction is made by telephone order
(TO), mail order (MO), or pre-authorized order (PO),
the sale slip may be completed without a customer's
signature or a Card imprint, but Merchant agrees:
(i) to imprint legibly on the sales slip
sufficient information to identify Merchant
and the cardholder, including: Merchant's
name and address, the Card issuer's
Interbank number and bank initials (if any),
the account number, the expiration date and
any effective date on the Card, the
cardholder's name, and any company name; and
(ii) to print legibly on the signature line of
the sales slip the letters "TO," "MO," or
"PO" ("Recurring Transaction" for Visa
transaction), as appropriate.
(iii) for telephone and mail order transactions,
include the expiration date as part of any
authorization inquiry; and
(iv) be liable for the amount of any sales slip
generated in a telephone, mail, or
pre-authorized order transaction that proves
to be uncollectible for any reason
whatsoever.
(b) In any non-imprint transaction, Merchant shall be
deemed to warrant the customer's true identity as an
authorized user of the Card, whether or not
authorization is obtained, unless Merchant obtains
and notes legibly on the sales slip independent
evidence of the customer's true identity.
(c) In connection with a recurring transaction (or
pre-authorized order) pursuant to which goods or
services are delivered to or performed for a
cardholder periodically, Merchant agrees to the
following conditions:
(i) Merchant must obtain a written request from
the cardholder that the recurring
transaction be charged to the cardholder's
account;
(ii) The written request must specify the amount
of the recurring transaction, the frequency
of the recurring charges, and the length of
time for which the pre-authorized order is
to remain in effect;
(iii) Before renewing a pre-authorized order,
Merchant must obtain a subsequent written
request from the cardholder containing the
information listed above;
(iv) Merchant must retain the cardholder's
written authorization for as long as the
pre-authorized order is in effect and must
provide a copy to Bank upon request; and
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(v) Merchant must not deliver goods or perform
services covered by a pre-authorization
order after being advised that the
pre-authorization has been canceled or that
the Card is not to be honored.
(d) Merchant may offer cardholders an installment payment
option for its mail/telephone order merchandise
subject to the following conditions:
(i) Merchant's promotional material must clearly
disclose the installment terms, including
but not limited to:
(A) whether the plan is available only
for selected items or for the total
amount of any order, and
(B) how shipping and handling charges
and applicable taxes will be billed.
The material also must advise
cardholders who are not billed in
the transaction currency of the
Merchant, that the installment
▇▇▇▇▇▇ amounts may vary due to
fluctuations in the conversion
rates.
(ii) No finance charges may be added by the
Merchant. The sum of the installment
transaction may not exceed the total sales
price of the merchandise on a single
transaction basis.
(iii) Authorization is required for each
installment transaction; Merchant's floor
limit is zero.
(iv) Merchant may not deposit the first
installment transaction with Bank until the
merchandise is shipped. Subsequent
installment transactions must be deposited
at intervals of 30 days or more, or on the
anniversary date of the transaction (i.e.,
the same date each month).
3.9 LODGING AND VEHICLE RENTAL TRANSACTIONS. Regardless of the
terms and conditions of any written pre-authorization form,
the sales slip amount for any lodging or vehicle rental
transaction shall include only that portion of the
transaction, including any applicable taxes, evidencing a bona
fide renting of real or personal property by Merchant to a
customer and shall not include any consequential charges.
Nothing herein is intended to restrict Merchant from enforcing
the terms and conditions of its pre-authorization form through
means other than a Card transaction.
3.10 RETURNS AND ADJUSTMENTS; CREDIT SLIPS.
(a) If Merchant maintains a policy of permitting refunds,
exchanges, returns, or adjustments for cash
customers, Merchant shall maintain the same policy
for persons making purchases through use of a Card.
Merchant may restrict its refund or return policy as
to any Card transaction however, if Merchant
discloses its policy at the time of the transaction
by printing an appropriate notice (such as "No
Refunds or Exchange") on all copies of the sales slip
prior to obtaining the customer's signature. The
language regarding Merchant's refund or return policy
must be printed near the space for the cardholder's
signature in letters that are approximately1/4inch in
height.
(b) Except as provided above, if Merchant accepts any
goods for return, permits the termination or
cancellation of any services, or allows any price
adjustment (other than involuntary refunds required
by applicable airline or other tariffs or otherwise
by law), then Merchant shall not make any cash
refund, but shall complete and
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deliver promptly to Bank a credit slip evidencing the
refund or adjustment, and deliver to the cardholder a
true and complete copy of the credit slip at the time
the refund or adjustment is made. Merchant shall
include on the credit slip a brief description of the
goods returned, services terminated or canceled, or
refund or adjustment made, together with the date and
amount of the credit, in sufficient detail to
identify the transaction. Merchant shall imprint or
legibly reproduce on each credit slip the embossed
legends from the Card and from Merchant's imprinter
plate. The amount of the credit slip cannot exceed
the amount of the original transaction as reflected
on the sales slip.
(c) Within ten (10) days of the date of This Agreement,
Merchant shall provide Bank with a written
description of Merchant's refund or return policy.
3.11 CASH PAYMENTS. Merchant shall not receive any payments from a
customer for charges included on any transaction record
resulting from the use of any Card, nor receive any payments
from a cardholder to prepare and present a credit slip for the
purpose of effecting a deposit to the cardholder's account.
3.12 CASH ADVANCES. Unless expressly authorized in writing by Bank,
Merchant agrees not to make any cash advance to a cardholder,
either directly or by deposit to the cardholder's account.
Money orders sent by wire, contributions to charitable and
political organizations, tax payments, insurance premium
payments, alimony and child support payments, and court costs
and fines shall not be considered cash advances or
withdrawals.
3.13 RELEASE OF CARDHOLDER ACCOUNT INFORMATION. Merchant shall not,
without the cardholder's prior written consent, sell,
purchase, provide, or otherwise disclose the cardholder's
account information or other cardholder personal information
to any third party other than Bank, Merchant's agents, and
processing organizations for the purpose of assisting Merchant
in its business, or as required by law.
3.14 COMPLIANCE WITH CARD ASSOCIATION RULES. Merchant shall comply
with and conduct its credit card activities in accordance with
all applicable (i.e., current and future) MasterCard and Visa
rules and regulations. Merchant shall pay, or reimburse Bank
for its payment of any fines or assessments imposed by
MasterCard or Visa that relate to the credit card activities
of Merchant without limiting the generality of the foregoing,
the Merchant specifically agrees to comply and adhere to the
following rules mandated by Visa:
(a) The Merchant may not imply that Visa endorses any of
its goods or services;
(b) The Merchant may not refer to Visa in stating
eligibility to participate in any program or purchase
of any products or services;
(c) The Merchant must include all items, goods, or
services purchased in a single transaction in the
total amount of a single draft;
(d) The Merchant must provide the cardholder with a copy
of the sales draft or transaction record; and
(e) The Merchant may not submit any draft that did not
result from a transaction between the cardholder and
that Merchant.
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ARTICLE IV -- PRESENTMENT, PAYMENT, AND CHARGEBACK
4.1 TRANSMISSION OF DATA. In lieu of depositing paper sales slips
and credit slips with Bank, Merchant may transmit to Bank, in
the form of magnetic tape or electronic data, as specified by
and acceptable to Bank, all data required by this Agreement to
appear on the sales slip or credit slip. The term "sales data"
as used in this Agreement shall mean the data transmitted by
Merchant that is contained in sales slip or the electronic or
magnetic tape record that is the equivalent of such a sales
slip. The term "credit data" as used in this Agreement shall
mean the data transmitted by Merchant that is contained in a
credit slip or the electronic or magnetic tape record that is
the equivalent of such a credit slip. All data transmitted
shall be in a medium, for, and format approved in advance by
Bank and shall be presorted and organized according to Bank's
instructions: All references to "sales slips" and "credit
slips" in this Agreement, unless stated otherwise, shall be
deemed to include, in addition to conventional sales slips and
credit slips, the printed receipts produced in connection with
transactions initiated at magnetic stripe reading terminals
and other point-of-transaction terminals. The term
"transaction record," as used in the Agreement, shall be
deemed to refer to sales slips and credit slips, as
applicable, and the data transmitted pursuant to those slips.
4.2 PRESENTMENT OF TRANSACTION RECORDS TO BANK.
(a) Merchant may designate a third party (that does not
have a direct agreement with Bank) as its agent for
the purpose of delivering transaction data-captured
at the point of sale by such agent.
(b) If Merchant elects to use such a third party as its
agent for the direct delivery of data-captured
transactions, Merchant agrees to the following
conditions (for the purpose of this Section 4.2,
"Merchant" includes any agent designated by Merchant
as permitted under this Section):
(i) Merchant must provide satisfactory notice to
Bank that Merchant chooses to exercise the
option specified above;
(ii) The obligation of Bank to reimburse Merchant
for transactions is limited to the amount
(less the appropriate discount fee)
delivered by Merchant's designated agent;
and
(iii) Merchant is responsible for any failure by
its agent to comply with all applicable
rules and regulations of MasterCard and
Visa.
(c) Merchant shall present all sales data relevant to a
transaction to Bank within the lesser of three (3)
bank business days or five (5) calendar days after
the date of the transaction, except that:
(i) Merchant shall present no sales data until
the goods have been shipped or the services
have been performed and Merchant has
otherwise performed all of its principal
obligations to the customer in connection
with the transaction;
(ii) when Merchant requests and receives
authorization for delayed presentment and
legibly prints on the sales slip the
authorization number and the words "Delayed
Presentment," Merchant may present the sales
data within the period permitted for delayed
presentment (not to exceed thirty (30)
calendar days);
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(iii) if Merchant is obligated by law to retain a
sales slip or return it to a buyer upon
timely cancellation, Merchant may present
the sales data within ten (10) bank business
days after the date of the transaction; and
(iv) when Merchant has multiple locations or
offices and accumulates transaction records
at a central facility, Merchant may present
the transaction records to Bank within seven
(7) bank business days after the date of the
transaction.
(d) Merchant shall deliver all credit data to Bank within
three (3) bank business days after the credit
transaction data, except that if Merchant has
multiple locations as described in subsection (b)(iv)
above, Merchant may deliver the credit data to Bank
within seven (7) bank business days after the
transaction date.
4.3 PROHIBITION AGAINST FACTORING AND OTHER PRACTICES. Merchant
shall not present to Bank, directly or indirectly, any
transaction record that does not result from a transaction
between the cardholder and Merchant, that Merchant knows or
should have known to be fraudulent or not authorized by the
cardholder, that results from a transaction outside Merchant's
normal course of business, or that contains the account number
of a Card account issued to Merchant.
4.4 ACCEPTANCE AND DISCOUNT. Subject to the provisions of any
warranty of Merchant hereunder and of any chargeback rights,
Bank agrees to accept valid transaction records from Merchant
during the term of this Agreement and to pay Merchant the
total amount represented by the transaction records less any
percentage discount agreed to by the parties. Any payment made
by Bank to Merchant in connection with a transaction shall not
become final until the expiration of the period during which
the transaction could be charged back under the
MasterCard/Visa rules.
4.5 RESERVE TO COVER CHARGEBACKS. At the sole option of Bank, Bank
may withhold payment to Merchant of amounts otherwise payable
under Section 4.4 that are reasonably determined by Bank to be
necessary to cover future chargebacks, credits, and other
charges that may result from Merchant's credit card
activities. If Bank determines that the proceeds of Merchant's
future credit card sales are unlikely to cover anticipated
chargebacks and credits (whether because this Agreement has
been terminated or for any other reason), Bank may also
prohibit the withdrawal by Merchant of some or all of
Merchant's funds then held on deposit with Bank.
4.6 ENDORSEMENT. Merchant agrees that Merchant shall be deemed to
have endorsed in Bank's favor any transaction records Merchant
presents to Bank, and Merchant hereby authorizes Bank to
supply such endorsement on Merchant's behalf.
4.7 PROHIBITED PAYMENTS. Merchant agrees that Bank has the sole
right to receive payments on any accepted transaction record
as long as:
(a) Bank has paid Merchant the amount represented by the
transaction record less the discount thereof; and
(b) Bank has not charged such transaction record back to
Merchant. Unless specifically authorized in writing
by Bank, Merchant agrees not to make or attempt to
make any collections or any transaction record.
Merchant agrees to hold in trust for Bank any payment
Merchant receives of all or part of the amount of any
accepted transaction record, and promptly to deliver
the same kind to Bank as soon as received, together
with the cardholder's name and account number and any
correspondence accompanying the payment.
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4.8 CHARGEBACK.
(a) Under any one or more of the following circumstances,
Bank may charge back to Merchant any transaction
record that Bank has accepted, and Merchant shall
repay Bank the amount represented by the transaction
record:
(i) The transaction record or any material
information on a sales slip (such as the
account number, expiration date of the Card,
Merchant description, transaction amount, or
date) is illegible, incomplete, or otherwise
indiscernible, is not endorsed, or is not
delivered to Bank within the required time
limits;
(ii) The sales slip does not contain the imprint
of a Card that was valid, effective, and
unexpired on the transaction record;
(iii) The transaction was one for which prior
credit authorization was required and prior
credit authorization was not obtained, or a
valid authorization number is not correctly
and legibly included on the transaction
record;
(iv) The transaction record is a duplicate of an
item previously paid, or is one of two or
more transaction records generated in a
single transaction in violation of this
Agreement;
(v) The cardholder disputes the execution of the
transaction record, the sale, delivery,
quality, or performance of the goods or
services purchased, or alleges that a credit
adjustment was requested and refused or that
a credit adjustment was issued by Merchant
but not posted to the cardholder's account;
(vi) The price of the goods or services shown on
the transaction record differs from the
amount shown on the copy of the sales slip
or the receipt delivered to the customer at
the time of the transaction.
(vii) Bank reasonably determines that Merchant has
violated any term, condition, covenant,
warranty, or other provision of this
Agreement in connection with the transaction
record or the transaction to which it
relates;
(viii) Bank reasonably determines that the
+transaction record is fraudulent or that
the related transaction is not a bona fide
transaction in Merchant's ordinary course of
business, 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;
(ix) The transaction record arises from a mail or
telephone order transaction which the
cardholder disputes entering into or
authorizing, or which involves an account
number that never existed or that has
expired and has not been renewed; or
(x) In any other situation in which a
transaction has been charged back to Bank in
accordance with the chargeback rules
established by MasterCard and Visa.
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(b) Bank may charge back a transaction in accordance with
Section 4.8(a) above even if an authorization was
obtained in connection with the transaction (this
subsection does not apply in the case of chargebacks
that are based solely on the Merchant's failure to
obtain an authorization).
(c) Each Merchant will be responsible for the
verification of each chargeback item charged to the
account. The Merchant must protest any chargeback
item within 35 days of the date of the original
chargeback (the date of the "ACH" entry). In the
event the chargeback item is not protested within the
35 day time frame, the Merchant agrees to accept the
item regardless of its accuracy or authenticity. The
Merchant agrees to hold Bank harmless from any claim
it may have as a result of the item(s) being returned
if it is not protested within the 35 day time frame.
(d) Bank shall charge a per item handling fee for each
chargeback processed in an amount set forth on a
schedule of charges. Bank may from time to time, in
its sole discretion and without notice, change the
chargeback handling fee. As in the case of certain
electronic transactions, Visa and MasterCard rules
may not allow the reversal of a chargeback and
Merchant agrees to accept all chargebacks issued
pursuant to Visa and MasterCard regulations.
4.9 VOLUME CONSTRAINTS. Bank, in its sole discretion, may
implement and enforce volume constraints on Merchant accounts.
4.10 PROFILING PARAMETERS FOR AUDIOTEXT MERCHANTS.
(a) Each service bureau and Merchant must agree to obtain
all authorizations through the authorization system
the Bank may require.
(b) Each service bureau and Merchant must also agree to
and comply with the parameters and controls Bank has
developed. Should any service bureau or Merchant
intentionally circumvent these rules, or
inadvertently fail to consistently follow these
rules, they will be subject to immediate cancellation
of all processing or Merchant privileges.
(c) Each service bureau and Merchant must comply with the
Profiling Parameters and Authorization Requirements
that presently exist and/or that may be amended from
time to time at the sole discretion of the Bank.
4.11 CUSTOMER SERVICE. Merchant agrees to establish an 800
telephone customer service line for the purposes of complying
with Section 4.9 and Section 4.10 of this Agreement. Merchant
further agrees to provide Bank with a complete list of all 800
telephone numbers which will generate the sales slips that are
transmitted to Bank for settlement. This list of 800 telephone
numbers becomes a part of this Agreement.
ARTICLE V - FEES AND CHARGES - CALCULATION AND COLLECTION
5.1 Merchant shall pay to Bank all applicable fees and charges in
accordance with the current Schedule of Fees described in
Schedule A hereto, in effect at the time the same are
incurred, including but not limited to the following:
(a) A per-item fee, assessed if applicable, and payable
by Merchant to Bank for processing Credit Slips.
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(b) Credit Transaction Fee. Discount Fee. A fee charged
and payable by Merchant to Bank for processing
Merchant's Bank Card Transactions. The Discount Fee
is calculated on the Merchant's dollar volume of
business either for the day or for the months as set
forth by Bank, in Schedule A hereto. A minimum
monthly Discount Fee may be charged irrespective of
business volume.
(c) Imprinter Fee. An annual or monthly fee, which may be
prorated, payable to Bank for Merchant's use of an
imprinter provided by Bank.
(d) Set-Up Fee. A one-time administrative fee charged to
Merchant by Bank (upon Final Approval of the
Application) and upon initiation of any Merchant
BankCard Service, Supplemental Services or
enhancements selected by Merchant.
(e) Chargeback Fee. A per-item fee assessed to Merchant
by Bank.
(f) Excessive Chargebacks. If Merchant's Chargeback
activities become excessive, Merchant shall pay an
additional per-item charge set by Bank for any costs
of processing such excessive chargebacks.
(g) Terminal Rental. A monthly terminal rental fee will
be assessed by Bank, if applicable.
(h) Post Termination Charges. Merchant shall continue to
be liable to Bank for all processing costs and
charges incurred by Bank after termination of this
Agreement, until no further activity originating form
Merchant takes places.
(i) Retrieval Fee. A per-item fee charged to Merchant for
retrieval by Bank of a copy of any Credit Slip, Sales
Slip, draft, or other item requested by Merchant.
5.2 In addition to the Fees and Charges described above and in
Schedule A, Bank may assess, and Merchant shall pay upon
demand, charges for any of the following:
(a) Interchange System Fines and Penalties. It is
understood that the Interchange System may impose
various fines or penalties upon Bank for Bank's
violation of the Interchange System By-Laws or Rules.
To the extent that Merchant is responsible for the
violation,
(b) Merchant shall indemnify and hold Bank harmless for
the fine or penalty, whether the violation occurs or
fines or penalties are imposed during the term of
this Agreement or after its termination, including,
but not limited to any damages, fines, levies,
assessments, costs, fees, interest or other sum.
(c) Legal Fees and Costs. Bank shall pass through to
Merchant and Merchant agrees to pay all of Bank's
legal fees and costs incurred in seeking legal advice
in matters not in the ordinary course of the
Merchant/Bank relationship described in this
Agreement, including but not limited to, contract
disputes, legal procedures, bankruptcy, or other
similar events. Merchant shall reimburse Bank for all
such fees and costs, whether incurred during the term
of this Agreement or after its termination.
5.3 FINES. It is understood that Visa and MasterCard may charge
Merchants a chargeback handling fee or fine when a Merchant
exceeds certain thresholds set by Visa and MasterCard or
violates other rules or regulations that exist or that may be
implemented from time to time. Each Merchant agrees to pay for
and reimburse Bank for any charge or fine within 30 days from
the receipt of any fine or charge levied by Visa or MasterCard
15
on behalf of that Merchant. Merchant's payment and
reimbursement requirement herein provided for is absolute and
unconditional and exists independent from any right of protest
Merchant may have against Visa or MasterCard regarding any
such fines.
5.4 COLLECTION OF FEES AND CHARGES. Bank may collect any and all
of the various Charges and Fees described in paragraphs 5.1,
5.2, and 5.3 above by:
(a) making a withdrawal without further notice or demand
of any kind from the Merchant's Bank Account
identified below; or
(b) invoicing the amount of the Fee or Charges from time
to time; or
(c) taking any lawful collection measures, in court or
otherwise to collect such sums.
ARTICLE VI -- TERMINATION
6.1 TERMINATION BY BANK. The Bank may terminate this Agreement for
any reason, including, but not limited to inactivity of the
Merchant BankCard Service. Termination shall be effective
thirty (30) days after written notice is mailed or dispatched
for delivery to the Merchant at the Merchant's address as
listed below or as Merchant may have notified the Bank in
writing and is listed in the Bank's records. Notice of
termination shall be effective whether or not actually
received by the Merchant.
6.2 In addition to Paragraph 6.1 above, if Merchant breaches any
term or fails to perform any of its obligations under the
Agreement, including, without limitation, the payment when due
of any fees, charges, deposit or taxes, or chooses not to
accept any change to the terms and conditions of this
Agreement made pursuant to Section 7.13, Bank, may, at it sole
option, promptly terminate this Agreement without prior
notice, such termination to be effective immediately. Any
failure by Merchant to comply with the Interchange System
rules and regulations or federal, state or local law
applicable to any aspect of any Bank Card Transaction shall be
an immediate breach of this Agreement and such breach shall
authorize Bank to immediately terminate this Agreement without
prior notice.
6.3 In addition to Paragraph 6.1 and 6.2 above, Bank may terminate
this Agreement effective immediately without prior notice from
Bank if:
(a) Merchant materially misrepresents any data or
information required by Bank in connection with
Merchant's Application or at any other time;
(b) Merchant discontinues the operation or materially
changes the type of business engaged represented by
Merchant to Bank in this Agreement.
(c) all or substantially all of the assets of Merchant's
business are sold, hypothecated, transferred or
pledged;
(d) Merchant becomes insolvent;
(e) there is a substantial or material change in the
form, management, operations or ownership of
Merchant's business;
(f) there is a substantial change in Merchant's current
credit standing; or
(g) for any other reason based on Bank's policy or
business decision. Merchant hereby agrees to notify
Bank immediately upon the occurrence of any of the
events or conditions covered by this Section.
16
6.4 TERMINATION BY MERCHANT. Merchant may terminate this Agreement
in its sole discretion for any reason upon thirty (30) days'
written notice to the Bank.
6.5 DUTIES UPON TERMINATION. Upon termination by either Bank or
Merchant for any reason, the right of Merchant to participate
in Bank Card Transactions under this Agreement shall also
terminate. Merchant shall return to Bank all advertising or
promotional brochures, all unused slips and forms, all
Merchant Identification Plate(s), all Terminals and imprinters
which were supplied by Bank and any other items associated
with the BankCard Services. Merchant agrees to provide Bank
copies or originals of any of its records, including any
required Sales Slips after termination of this Agreement and
said obligation shall survive the termination of this
Agreement, regardless of time.
6.6 Termination by Bank shall not affect Ban's rights under this
Agreement as to Sales Slips presented by Merchant prior to
termination. If Bank exercises its right to terminate this
Agreement, it shall have no duty to pay any Sales Slip from
the time termination is effective. Bank shall also have the
right to return, unpaid, any and all Sales Slips previously
presented by Merchant but not yet irrevocably entered into the
Bank's processing system or the interchange Systems.
6.7 Merchant shall pay to Bank any and all charges, costs, and
fees outstanding at termination, any and all Post-Termination
charges, and any other charges, costs, and fees incurred after
termination.
6.8 Bank may retain any records, including unpaid Sales Slips, for
purposes of investigation and prosecution if the Bank has a
reasonable belief that such unpaid Sales Slips (or other
records) have been prepared or presented in violation of any
law, regulation, or rules, or the terms of this Agreement.
6.9 All funds, deposits, securities and pledges held by or
assigned to Bank shall remain held by Bank so long as any
transactions are subject to Chargeback or for a period of time
Bank deems necessary to prevent loss to Bank by Chargebacks or
otherwise.
6.10 Each Merchant must maintain a chargeback ratio which does not
exceed 1%. Merchant acknowledges the importance of operating
within the allowable chargeback ratio. Chargeback ratios shall
be calculated by dividing the number of chargebacks received
in any month by the number of sales during that month. In the
event a Merchant excess the chargeback percentage, whether the
period of excess is one month or a longer period, Bank
reserves the absolute right to cease processing the account at
any time and without notice.
ARTICLE VII - MISCELLANEOUS
7.1 RESERVE ACCOUNT. To cover potential chargebacks, credit slips,
uncollected discounts and fees the Merchant and Bank agree as
follows:
(a) From each deposit transaction, Bank shall withhold a
percentage as reserves, for a certain number of days
that may be changed from time to time by the Bank at
its sole and absolute discretion according to
Schedule A attached hereto. This amount shall be
deposited into a Reserve Account which shall earn
interest at 0% per annum until such account reaches
$10,000. Thereafter, the account will earn interest
based upon current market value. If the account
closes before interest is credited you will not
receive the accrued interest. Merchant further agrees
to an initial deposit as outlined in Schedule A into
a separate blocked account, known as a Merchant
Reserve Account, prior to the implementation of the
Merchant services account. All Merchant Reserve
Accounts shall be maintained to cover
17
any chargebacks or other loss resulting from
transactions deposited into the Merchant Account(s).
The Merchant Reserve Account shall be maintained at
all times at or greater than the sum required and
shall be immediately replenished when and if
depleted. They may be increased at any time for
proven cause or excessive chargebacks.
(b) Any chargebacks or fees referred to above shall first
be charged to Merchant's general operating account.
If there are not sufficient funds in the operating
account to cover these items within 24 hours after
they are received, Bank shall have the right to
withdraw enough funds from the Reserve Account to
cover any of the chargebacks or fees. However, it is
agreed that Bank shall not be required to withdraw
any funds from the Reserve Account for this purpose
and doing so, shall be in its sole discretion.
(c) Nothing stated here shall limit the general rights
and provisions in this Agreement.
(d) Bank shall have the right to increase the Reserve
Percentage and the amount of funds required to be in
the Reserve Account (as specified in Section 7.1A
above), and/or the number of days that the funds hall
be held in the Reserve Account at any time without
prior notice to the Merchant.
(e) Upon termination of this Agreement, the Merchant
Reserve Account shall be retained for a period not
less than seven (7) months following cessation of
Merchant Services for the Merchant or the conclusion
of the chargeback period, whichever period is
greater, to cover any chargebacks, credit slips,
uncollected discounts and fees that may result after
the date of termination.
7.2 MONTHLY TRANSACTION VOLUME LIMITATION. Customer shall NOT
process more than the monthly sales volume limit as specified
in Schedule A in aggregate approved Merchant drafts during any
calendar month without formal written application and approval
of a higher transaction level by Bank. Drafts in excess of the
sum set forth above may be rejected or held in the Reserve
Account as additional reserves until the chargeback period
related to those sums fully expires, at Bank's option. If the
application is accepted for a higher transaction volume, prior
to any final approval, Customer will be required to increase
the Reserve Account set forth in 7.1 (a) and (e), above, to an
amount the Bank may, in its sole discretion, require.
7.3 IMPRINTERS AND TERMINALS. Merchant shall keep any imprinter(s)
and terminals used to process card transactions in good
working order and shall notify Bank prior to any change of the
imprinted or programmed information.
7.4 FORMS. Merchant shall use only such forms or modes of
transmission for sales data and credit data as are provided or
approved in advance by Bank, and Merchant shall not use forms
or equipment provided by Bank other than in connection with
Card transactions hereunder.
7.5 RECORDS. Merchant shall retain either the original or a
legible microfilm copy of both sides of all sales slips for at
least three (3) years after the date Merchant presents the
transaction data to Bank.
7.6 REQUESTS FOR COPIES. Within five (5) days of receipt of any
request by Bank, Merchant shall provide to Bank either the
actual paper transaction record, if requested by Bank, or a
legible microfilm thereof (in size comparable to the actual
paper transaction records), and any other documentary evidence
available to Merchant and reasonably requested by Bank to meet
its obligations under law (including its obligations under the
18
Fair Credit Billing Act) or otherwise to respond to questions
concerning cardholder accounts.
7.7 COMPLIANCE WITH LAW. Merchant shall comply with all laws
applicable to Merchant, Merchant's business, and any Card
transaction, including without limitation all state and
federal consumer credit and consumer protection statutes and
regulations.
7.8 INDEMNIFICATION. Merchant agrees to hold Bank harmless from,
and indemnify Bank against all claims, losses, damages, and
liabilities, including attorney's fees and other costs of
defense that relate to or result from any alleged violation by
Merchant of any applicable law or regulation or any action of
Merchant in connection with a Card transaction subject to this
Agreement.
7.9 MODIFICATION. This Agreement is subject to such modifications,
changes, and additions as may be required, or deemed by Bank,
in its sole discretion, to be required, by reason of any state
or federal statute, judicial decision, MasterCard or Visa rule
or regulation, actual or potential prejudice to Bank's
relationship with Visa or MasterCard, or the regulation or
ruling of any federal agency having jurisdiction over Bank or
Merchant.
7.10 AMENDMENT. Bank may amend this Agreement at any time by
mailing written notice to Merchant of any amendment at least
ten (10) days prior to the effective date of the amendment,
and the amendment shall become effective on the date specified
unless Bank receives Merchant's notice of termination of this
Agreement before such effective date. Nothing herein shall
prohibit Bank from taking any immediate or other action,
without notice, otherwise provided for in this Agreement.
7.11 LIABILITY. Bank's liability to Merchant with respect to any
Card transaction shall not exceed the amount represented by
the transaction record in connection with that transaction
less any applicable discount, and Bank shall in no event be
liable for any incidental or consequential damages whatsoever.
7.12 RIGHT TO MAKE CHANGES. Because Interchange Systems' rules,
federal, state and local law and the Bank Card market change
frequently and rapidly, it is agreed and understood that the
relationship between Bank and Merchant may change in the
future. Bank, in its sole discretion, may change its policy,
procedures or forms, or any term or condition of this
Agreement or may terminate any service or discontinue its
services entirely upon reasonable notice to Merchant as set
forth in Article 6. Merchant agrees to comply with any such
changes which shall be deemed effective as of that date
indicated on any Change Notice. Should Merchant choose not to
accept a Change prior to its effective date, Merchant shall
give immediate written notice of that fact to Bank at the
address designated herein and Bank may terminate the
Agreement, effective immediately, a set forth in Article 6.
7.13 RIGHT OF SETOFF. Bank has the right of setoff against any
deposit account Merchant maintains with Bank to satisfy any
obligations of Merchant to Bank.
7.14 SECURITY INTEREST IN MERCHANT BANK ACCOUNT, DEPOSIT ACCOUNTS,
AND DEPOSIT ACCOUNT PROCEEDS. To secure Merchant's liability
for potential Chargebacks and any other charges or liability
of Merchant to Bank, Merchant hereby grants to Bank a security
interest in all deposits, regardless of source, made to any
merchant Bank Account and any personal and business deposit
accounts in the name of Merchant or Merchant's principals at
any depository institution, and in the proceeds of any of said
deposits. Bank may enforce its security interest without
notice or demand of any kind, by:
19
(a) making an immediate withdrawal from or freezing any
or all of said deposit accounts; and/or
(b) taking possession of any deposits made to said
accounts, upon Bank's reasonable determination that
any term or condition of this Agreement has been
breached; and/or
(c) taking any other lawful action, by legal action or
otherwise. Bank may also require any other security
or pledge which Bank deems necessary to prevent loss
to Bank. Bank's security interest shall remain after
the termination of this Agreement so long as any Bank
Card Transaction processed by Merchant remains
subject to Chargebacks, and so long as any fee,
charge, or cost mentioned in Article 5 of this
Agreement remains unpaid by Merchant or could be
incurred by Bank. Merchant agrees to execute any and
all documents Bank may reasonably believe necessary
to create, perfect, or preserve the Bank security
interests granted pursuant to this Paragraph.
7.15 FINALITY OF SETTLEMENT. Merchant agrees that payment of Bank
Card Sales Slips by Bank shall not be final, so long as the
Transaction is subject to chargeback or return. Merchant
agrees that Bank may revoke any prior provisional settlement
of a Sales Slip by making an immediate withdrawal without
notice or demand of any kind from the Bank. Merchant waives
all notice of default or nonpayment and consents to all
extensions or compromises given by Bank or the Interchange
System to any cardholders.
7.16 CREDIT AND FINANCIAL INFORMATION. Merchant authorizes Bank to
obtain, from time to time, credit, financial, and other
information regarding Merchant from other persons or entities,
such as credit reporting agencies. Merchant also authorizes
Bank to respond to requests form others for information
regarding Merchant.
7.17 CHANGE IN TRANSMISSION METHOD. The means of transmission
indicated below shall be exclusive means utilized by Merchant
for the transmission of sales data or credit data to Bank.
Merchant shall give Bank at least thirty (30) days' prior
written notice of Merchant's desire to deliver and deposit
actual sales slips and credit slips or otherwise to alter in
any material respect Merchant's medium of transmission of
sales data and credit data to Bank. Following termination,
Merchant shall upon request provide Bank with all original and
microfilm copies required to be retained as of the date of
termination.
7.18 NOTICES. All notices, demands, and other communications
required or permitted hereunder shall be made in writing and
shall be deemed to have been duly given if delivered by hand
or mailed, postage prepaid, certified, registered, or
first-class mail, and addressed to:
Bank: Charter Pacific Bank
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇
Merchant: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notice of change of address shall be effective only when given
in accordance with this Section. All notices complying with
this Section shall be deemed to have been received on the date
of delivery or on the third (3rd) business day after mailing.
20
7.19 SUPPLEMENTARY DOCUMENTS. Reference to "this Agreement"
includes any valid schedules, appendices, and amendments
hereto.
7.20 ENTIRE AGREEMENT. The parties intend that the terms of this
Agreement, including any attached schedules and addenda, shall
be the final expression of their agreement with respect to the
subject matter hereof and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further
intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial,
administrative or other legal proceedings involving this
Agreement.
7.21 WAIVER. No failure to exercise and no delay in exercising any
right, remedy, or power under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, or power provided herein or by law or in equity. The
waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or
condition itself.
7.22 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their
respective successors and assigns. Notwithstanding the
foregoing, Merchant shall not assign, sell, transfer,
delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any right or obligation
under this Agreement without the written consent of Bank. Any
purported assignment, transfer, or delegation in violation of
this Section shall be null and void.
7.23 CHOICE OF LAW. The validity, interpretation, enforceability
and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, Bank and Merchant have caused their duly authorized
representatives to execute this Agreement as of the date set forth below the
signature of each.
Cards subject to this Agreement ("Cards"):
X MasterCard Cards (including any other MasterCard
International, Inc. cards)
X Visa Cards (including any other Visa U.S.A. Inc. & Visa
International Services cards)
X Discover
X American Express
X JCB
X Diners
Mode of Transmission:
______ Tap Trans
______ Electronic Terminal Transmission
21
______ CPU-CPU
______ ETC Plus
X Software: PTC
Bank: Merchant:
CHARTER PACIFIC BANK ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ Signer: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Title: Merchant Services Manager Printed Name
------------------------------
Date: 04/22/99 Signature: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Title: Secretary/Treasurer
-----------------------------------
Date: 04/20/99
-----------------------------------
Merchant Account #(Visa) ------------------
Merchant Account #(MC) ------------------
Merchant DDA # ------------------
Merchant Reserve # ------------------
22