Merchant Agreement |
This agreement is between Merchant e-Solutions ("MeS"), a
Delaware corporation, and a business ("Merchant") that has requested
payment processing services through MeS. Merchant understands that submission
of a Merchant Account Application is 1) subject to approval by MeS and, 2)
signifies Merchant's acceptance of the terms of this Merchant Agreement and
Pricing Schedule.
1. Card Acceptance: Merchant agrees to accept payment options in accordance with association, network, and issuer guidelines. Merchant desires to accept the following payment options: [ ] Credit/Business Cards, [ ] Consumer Debit/Prepaid Cards, [ ] Both. If an option is not specified, MeS will assume Merchant desires to accept Both. In the event Merchant desires not to accept Credit/Business Cards or Debit/Prepaid Cards, Merchant is responsible for examining cards and indicating non-acceptance to cardholders as appropriate. If Merchant desires not to accept Credit/Business Cards or Debit/Prepaid Cards but then submits those payment types for transaction processing, the transactions will be subject to appropriate interchange and other normal transaction fees. 2. Payment Processing: Merchant agrees to process payments as instructed in operating cards and guides provided by MeS in conjunction with payment processing solutions. 3. Payment Solutions: Merchant agrees to use the payment processing solution for which the merchant has applied and to notify MeS of any changes, including the addition or deletion of payment options and the addition or deletion of terminals or other equipment. If Merchant uses a payment solution not provided by MeS, Merchant is solely responsible for all risks associated with using such solution. 4. Card Verification: Merchant agrees to follow proper card acceptance procedures:
5. Card Present/Not Present: Merchant understands the card must be present at the time of a transaction in order for the merchant to perform the transaction. Merchant can process transactions in which the card is not present (for example, telephone, mail order, internet sales) only: For Merchants, if the Merchant has notified MeS prior to processing such transactions. For Internet or MOTO Merchants: if the Merchant operates in a Card Not Present environment they must have previously notified MeS of this environment. Failure to use AVS may result in higher transaction fees and may result in cancellation of your merchant account should you experience an increase in fraudulent transactions. Merchant understands that when a card is not present at the time of a transaction, a higher degree of risk exists that can result in higher transaction fees or possible chargebacks. 6. Authorization: Merchant understands that an authorization must be obtained for each transaction, regardless of dollar amount, and included on the sales receipt.
7. Sales Receipts: If the Merchant uses an electronic printer connected to an electronic point-of-sale device, Merchant must obtain the cardholder's signature on the printed sales receipt.
The Internet Merchant must provide customers a sales confirmation through e-mail. Sales confirmation must include the following: 1) Merchant name, 2) Type of transaction, 3) Description of the items purchased and their value, 4) Date of the transaction and date shipped, 5), Truncated Account number of the cardholder, and 6) Authorization number. In all cases, Merchant is responsible for ensuring the legibility and completeness of sales receipts and sales confirmations. 8. Back-Up Procedures: When Merchant is unable to obtain electronic authorization due to malfunctioning equipment, communication interruption or other circumstances, Merchant shall handle authorizations in accordance with back-up procedures outlined in the operating guide. All non-bankcard authorizations shall be handled in accordance with the guidelines of the issuing companies of those cards. 9. Cardholder Signatures: A Merchant is responsible for obtaining the cardholder's signature on each sales receipt and verifying the signature on the sales receipt matches the signature on the card.
10. Returns: Merchant agrees to clearly disclose Merchant's return policy to cardholders and to honor the return policy as disclosed.
11. Settlement: Merchant agrees to balance and submit transactions for settlement each business day. Merchant understands that by not submitting transactions for settlement each business day, a higher degree of risk exists that can result in higher transaction fees and possible chargebacks. 12. Payments: All payments to Merchant for authorized transactions shall be made through the Automated Clearing House (ACH) and to the business checking account designated by Merchant in the Merchant Account Application.
13. Business Checking: Merchant authorizes MeS, in accordance with this agreement, or other obligations owed to MeS, or its agents, to initiate credit and debit entries to Merchant's business checking account, or any other account maintained by Merchant at any financial institution that receives ACH files. This authority shall remain in effect until MeS has received written notification from Merchant of Merchant's termination of this agreement, Merchant has satisfied all payments owed to MeS, and all transactions submitted by Merchant have exceeded dispute and chargeback time limitations. 14. Sales Receipt Storage: Merchant agrees to store and maintain sales receipts for at least 2 years following the date of transaction. At the end of this period, Merchant shall destroy the records, leaving no legible information. 15. Equipment: Merchant must possess appropriate equipment for processing transactions in accordance with their merchant account, i.e. properly installed and programmed terminals, magnetic stripe readers, PIN pads, printers, software providing access to Internet Payment Gateways, etc. 16. MeS-Provided Equipment: Upon Merchant's request, MeS shall provide terminals and related equipment to Merchant for a fee. MeS shall be responsible for the maintenance of MeS provided equipment provided Merchant pays for all maintenance or repairs required as a result of Merchant's negligence or misuse of equipment. Merchant shall notify MeS immediately concerning any noticeable malfunction of or damage to the equipment. Equipment is the sole property of MeS and Merchant has no interest or property rights. 17. Retrieval Request: Merchant agrees to mail or fax copies of sales receipts to MeS within 24 hours of receiving a retrieval request from MeS. Merchant understands that failure to respond to a retrieval request within the time period with a copy of the transaction and proof of delivery to MeS shall constitute a waiver of all rights of Merchant to dispute the chargeback. This may result in higher transaction fees and termination by MeS of Merchant's account. For Merchants the sales draft must be legible, accurate, complete, and signed by the cardholder. For Internet Merchants a facsimile of the e-mail sent to the cardholder must be provided. 18. Chargebacks: Merchant agrees to pay MeS for transactions successfully challenged by cardholders or card issuers in accordance with association guidelines relating to chargebacks and to permit MeS to debit Merchant's designated business checking account or other account as a result of chargebacks.
19. Merchant Warranties: Merchant warrants and agrees to fully comply with all federal, state, and local laws, rules and regulations, as amended periodically, including the Federal Truth-in-Lending Act and Regulation Z.
20. Fraud/Factoring: Merchant shall not accept, deposit, process, or enter into Merchant's terminal, a fraudulent sale, or any sale made by any other merchant. If Merchant does so, MeS can immediately terminate Merchant's account, place payments owed to Merchant on hold for at least 180 days, and add Merchant to the Terminated Merchant File. This action may result in preventing the Merchant from accepting card payments again or establishing another merchant account. 21. Payment Withholding: In the event MeS believes fraud by Merchant has occurred or Merchant fails to provide funds for debits due to chargebacks, credits, or fees, MeS may hold all payments owed to Merchant for submitted transactions until Merchant fulfills financial obligations to MeS.
22. Terminated Merchant File: Merchant understands that MeS can add Merchant to the Terminated Merchant File if Merchant fails to comply with the terms of this Agreement or the provisions of the association rules. 23. Discount/Fees: "Discount" refers to a percentage of the gross transactions processed by Merchant. "Interchange" refers to amounts assessed by the associations for the processing of transactions. "Fees" refers to amounts charged for any other purposes, including per transaction fees, chargeback fees, equipment use fees, or fees for other miscellaneous services.
24. Initial Discount: Merchant understands that initial discount rates assessed by MeS are based on Merchant's projected sales volume, average transaction amount, and card acceptance practices. If Merchant's actual sales volume and average transaction amount are less than Merchant's projected sales volume and average transaction amount, MeS reserves the right to adjust discount rates to reflect Merchant's actual sales volume and average transaction amount without 30 days advanced written notice. 25. Merchant Account Application: Merchant warrants that all information provided in the Merchant Account Application is complete and accurate.
26. Billing: Merchant must notify MeS of any billing error within 60 days of the billing date. 27. Term: The initial term of this Agreement shall be for one year, subject to approval by MeS, and shall renew for each successive one-year term unless either party provides the other with written notice prior to the expiration of the current term. 28. Termination: If Merchant terminates this Agreement before the end of the initial one-year term, MeS may charge merchant a $100 early termination fee. Upon termination of this Agreement, Merchant agrees to pay all amounts owed to MeS by Merchant, including the early termination fee if warranted. MeS can debit amounts owed to MeS by Merchant from Merchant's business checking account. MeS shall have the right to terminate this Agreement at any time without cause. 29. Indemnity: Merchant agrees to indemnify and hold harmless MeS from any claims, damages, costs, fees, and expenses, including reasonable attorneys' fees and expenses arising from:
30. Force Majeure: Both parties will be released from liability if unable to perform as specified due to wars, riots, acts of God, etc. MeS liability to Merchant shall not exceed the amount of the sales draft and MeS shall not be liable for any incidental or consequential damages. MeS accepts no responsibility other than authorization and electronic capture services for non-bankcards. For check authorization, validation, or guarantee service, MeS accepts no responsibility other than programming the electronic equipment to connect Merchant to third-party vendor. 31. Notices: Notices to Merchant will be sent to the same address provided by Merchant for the delivery of billing statements or other communications.
32. Arbitration: Any controversy or claim between or among the parties hereto will be determined by binding arbitration in accordance with the Federal Arbitration Act, applicable state law, and an arbitration administrator determined by MeS. Judgment on any arbitration award may be entered in any court having jurisdiction. Any party to this Agreement may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this Agreement applies in any court having jurisdiction over such action in the state of California. 33. Assignment: Merchant may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written permission of MeS. Any such assignment or delegation does not limit Merchant's obligations, indemnities, or liability to MeS. This Agreement is binding upon the parties hereto and to their respective successors and assigns. 34. Amendment: MeS has the right to amend any of the terms of this Agreement provided MeS provides written notice to Merchant at least 30 calendar days prior to the effective date of the amendment. Continuing to process transactions constitutes Merchant's acceptance of amendments. 35. Attorney's Fees: If a legal or arbitration proceeding is commenced in connection with any dispute under this Agreement, the prevailing party, as determined by the court or arbitrators, will be entitled to recover from the other attorneys' fees, costs, and in-house expenses incurred in connection with such action or proceeding. 36. Governing Law: This Agreement shall be governed by the laws of the State of California and shall, in addition, be subject to the by-laws and operating regulations of the card associations and networks. Merchant shall indemnify and hold MeS harmless for any costs, fees, or expenses, which MeS may incur in enforcing its rights hereunder. 37. Miscellaneous: If any court finds any portion of this Agreement invalid or unenforceable, the remaining provisions shall remain in force. 38. Guarantee: The owners or officers, as indicated in the Merchant Account Application, individually and collectively agree to guarantee to MeS, its agents and successors, the prompt and complete payment of all debts and obligations that result from the establishment of an account under the terms of this Agreement. The guarantee will remain in effect until all said debts and obligations are paid in full, not withstanding the termination or amendment of this Agreement. American Express®, Discover®, Diners Club®, Carte Blanche®, and JCB® require separate approval. Merchant e-Solutions is a registered service provider for Columbus Bank and Trust, Columbus, GA. Debit network sponsorship is through Carrollton Bank, Baltimore, MD. |