2010-09-08 CC Packet - Laserfiche WebLink

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IERCHANT PROCESSMIS, AGREEIAENTTERLAS AND CONDITIONS THIS IS A MERCHANT PROCESSING AGREEMENT (together with the Application and the Operating Procedures Guide, the "Agreement") entered into as of (he dale set forth on the cover -page hereof (the "Effective Dale ") by and between, Meridian Bank, located at 92 Lanceslcr Avenue, Devon SPA 19333 ( "Member Bank'), RevTrak, Inc , a company with its principal place of business at 10800 Lyndale Ave., Suite 355, Bloomington, MN 55420 USA ('RevTrak') and the U.S. domiciled entity identified on the cover -page hereof ( "Merchant'). 13ACKGROU14D INFORMATION Member Bank is a member of VISA U.S.A. Incorporated (`VISA'), MasterCard IntemaLionat (`MasterCard ') and Discover Financial Services (`Discover') (each a "Card Association'), RevTrak processes financial Transactions for merchants in (heir relationships with banks including, without limitation, the facilitation and processing of bankcard payments by holders of VISA, MasterCard end Discover branded benkcard's as well as AC'H. Member Bank and RevTrak have entered into an agreement whereby RevTrak acts as Member Bank's agent and bankcard processor (Member Bank andfor RevTrak shall hereinafter collectively be referred to as "Processor'), Merchant desires to accept payments from its customers via Card Association branded bankcards for Merchant's goods andlor services and retains Processor to sponsor Mercrumfs acceptance cr such bankcards and provide Merchant with bankcard processing and settlement services. Processor agrees to provide such services in accordance with the terms and conditions set forth herein. Accordingly, the parties to this Agreement, Intending to be legally bound, agree as follows: OPERATIVE PROVISIONS 1. Services; Operating Procedures Guide, Processor agrees to provide to Merchanl, at Merchant's U,S. locations identified in the Application (as defined below), (i) hankcard processing and settlement services for Card Association branded cards; and Ili) ACH Services (collectively, the "Services") in accordance with the terms and conditions of this Agreement and the Processor Operating Procedures Guide, the terms of which are incorporated Into this Agreement by reference and made a part of this Agreement. Processor undertakes to deliver a copy of the Operating Procedures Guide to the Merchant concurrently with Processors execution of thisAgreemenl. 2. Definitions„ Unless otherwise provided, the capitalized terms used in this Agreement have the meanings designated in the Operating Procedures Guide, 3. Card Association Rules and Regulatlorl ALL CARD TRANSACTIONS AND THIS AGREEMENT ARE SUBJECT TO, AND THE PARTIES AGREE TO BE BOUND BY, APPLICABLE CARD ASSOCIATION REGULATIONS, INCLUDING WITHOUT LIMITATION PCI DSS, AND ANY CHANGES TO THEM MADE BY A CARD ASSOCIATION FROM TIME TO TIME, WHETHER OR NOT ALL THE PARTIES HAVE BEEN NOTIFIED OF THOSE CHANGES. PROCESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR iMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION THEY MAY PROVIDE, IF ANY, TO MERCHANT REGARDING THE REGULATIONS FROM TIME TO TIME, AND DISCLAIM ANY AND ALL (LIABILITY FOR LOSSES INCURRED BY MERCHANT THAT IN ANY WAY ARISE OUT OF MERCHANT'S FAILURE TO COMPLY 'WITH THE REGULATIONS. IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE REGULATIONS, THE ASSOCIATION REGULATIONS SHALL GOVERN. 4. Fees. The Fees to be charged by Processor to Merchant for the Services are set forth in the Application. The Discount Rate shall be charged on all new sales (i.e. sale Transactions not including "returns"). Processor may change Fees from time to time upon 30 days prior written notice to Merchant. The Fees set forth in the Fee Schedule do not include, and Merchant hereby agrees today and hold Processor harmless against, all fees, charges, penalties, fines, assessments and additional or increased costs of any nature that may be charged by the Card Associations or other third party, whether charged to directly or indirectly incurred by Processor in connection with maters contemplated by the Agreement, including without limitation, adjustment fees and interchange fees. 6. Card Transactions. In addition to the requirements for Card Transactions set forth in the Operating Procedures Guide and Association Regulations, Merchant agrees that it will not (a) deposit into 'its Bank Account any Sales Draft or Credit Draft for any Card Transaction between a Cardholder and an entity other than Merchant (b) use the Services for any purpose that is illegal; (c) accept cash payments From a Cardholder for Card Transactions that have already been submitted to Processor; or (d) make a cash disbursement to a Cardholder arising out of a Card Transaction or any other use of a Card. 6. Term. This Agreement wit be effective as of the Effective Date and will continue in effect for a term of one (1) month following such date (the "Initial Term "). Following tine tribal Term, This Agreement will automatically renew for additional and successive one (1) month terms (each a "Renewal Term "), unless a party provides written notice to the other parties of its intent not to renew this Agreement at least 30 days prior to the expiration of the then current Term (a `Termination Notice '). The Initial Term, together with all Renewal Terms, if any, shall be referred to herein, collectively, as the 'Term'. If a party provides a Termination Notice to the other parties, this Agreement shall terminate on the expiration of the then current Term. 7. Representation and Warranties. Merchant makes the following representations and warranties which shall be true and correct on the date of this Agreement and at all times thereaten (a) all information contained in Application or any other document or communication delivered to Processor or its representatives in connection therewith or with this Agreement is true and complete in all material respects; (b) Merchant has the power to execute, deliver and perform this Agreement', (c) this Agreement is duly authorized and will not violate any provisions of law, w conflict with any other agreement to which Merchant is subject or by which Merchant's assets are bound; (d) Merchant has all required licenses, If any, to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (a) there Is no action, suit or proceeding at law or in equity pending, or to the knowledge of Merchanl, threatened, by or against or affecting Merchant which ff adversely decided to Merchant would impair the right of Merchant to carry on its business substantially as now conducted or adversely affect its financial condition or operations In any material respect; and (f) Merchant is not now, nor shall it in the future, become engaged in any method of selling which is now or in the future set forth in the Operating Procedures Guide as an 'Unacceptable Selling Method," 8. Indemnity. To the maximum extent allowed by law, Merchant agrees to indemnify, defend and hold harmless Processor, their respective affiliates, directors, officers, employees and agents from all claims, liabilities, loss, damage, and expenses of any nature (including fees and expenses of legal counsel and costs of litigation) arising from or in connection with: (a) any dispute or claim made by a Cardholder with respect to a Card Transaction, including but not limited to, any such dispute concerning the quality, fitness or delivery of merchandise or the performance or quality of services; and (b) the failure of Merchant to comply with the provisions of this Agreement, Association Regulations or applicable federal, state or local laws and regulations. 9.JURISDICTION; WAIVER, MERCHANT HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING FROM OR (RELATING TO THIS AGREEMENT OR ANY STATEMENT COURSE OF CONDUCT, ACT, OMISSION OR EVENT' OCCURRING IN CONNECTION WITH THIS AGREEMENT' (COLLECTIVELY„ 'RELATED LITIGATION") MUST BE BROUGHT IN A. 'STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN PHILADELPHIA, PENNSYLVANIA, GOVERNED IUND'ER, THE LAWS OF SAID STATEa (B) SUBMITS TO THE JURISDICTION OF SUCH COURTS (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF PROCESSOR TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM; (C) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER MERCHANT; (D) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO MERCHANT AT THE ADDRESS DESCRIBED ON THIS APPLICATION AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY t1#W); AND (E) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION. to. LIMITATION OF LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, (i) NO CLAIM MAY BE MADE BY MERCHANT AGAINST PROCESSOR OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OF ANY OF THEM FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT OCCURRING IN CONNECTION WITH THIS AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY); AND (it) THE AGGREGATE LIABILITY OF THE PROCESSOR UNDER THIS AGREEMENT, NOT INCLUDING AMOUNTS TO BE SETTLED TO MERCHANT IN RESPECT OF CARD TRANSACTIONS, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO THE PROCESSOR HEREUNDER DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. MERCHANT HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAW FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR t1. MISCELLANEOUS PROVISIONS. a. Merchant shall not assign, subcontract, license, franchise or in any manner attempt to extend to any third party any right or obligation under this Agreement Processor may assign any or at of its rights or obligations under this Agreement at any time without notice. b The prevailing party in any legal proceedings in an action arising form Phis Agreement shall be entitled to the recovery of its reasonable attorneys fees, costs and expenses. c. This Agreement may be modified by Processor upon 30 days prior written notice to Merchant or bywriten agreement of all the parties hereto. d. No party shall, by the mere Ilapse of time, without giving notice or taking other action, be deemed to have waived any of their rights under this Agreement. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of this Agreement. e. No party shall be liable for any loss or damage due to causes beyond Its control, including earthquake, war, fire, flood, pourer failure, acts of God or other catastrophes. C If the Merchant is or becomes the subject of any insolvency., bankruptcy, receivership, dissolution, reorganization or other similar proceeding, federal or slate, voluntary or involuntary, under any present or future law or act, Merchant consents to the immediate and absolute fifting of any stay as to the enforcement of remedies under this Agreement, including specifically the stay imposed by §362 of the United States Federal Bankruptcy Code, as amended. g. Each party and each person signing on behalf of a party represents and warrants that it has the full legal capacity and authority to enter into and perform the obligations of this Agreement without any further approval, h. This Agreement and the documents referenced herein constitute [be entire understanding of the parties with respect to the subject mailer of this Agreement, and all prior agreements, understandings and representations are terminated and canceled in their entirety, 1. If there is any conflict between a pan of this Agreement and any present or future Association Regulation or applicable federal, slate or local law or regulation, only the pan of this Agreement that is affected shall be modified and that modification shall be limited to the minimum necessary to bring this Agreemanl within the requirements of the Association Regulation, law or regulation. I. All notices, including invoices, given in connection with this Agreement, shall be in writing and deemed received one week after deposit in first class United States mail, postage prepaid, or If given by other means, upon actual receipt. Notices shall be delivered to the appropriate party at its address set forth on this Application. k. Merchant shall be liable for all applicable taxes, except Processor's income taxes, required to be paid or callecled as a result of this Agreement. I. All obligations, warranties and liabilities of Merchant incurred or existing as of the date of termination of this Agreement, including without limitation, Merchant`s obiigations with respect to subsequent Adjustments or Chargebacks based upon Card Transactions incurred prior to termination, shall survive termination and shall continue 1n full force and effect as if the termination had not occurred. The right of Processor to revoke credit as well as hold, retain, or set off against amounts due to Merchant, shall survive the termination of this Agreement and shall continue in full force and effect as if termination had not occurred. m. Nothing in this Agreement shall be deemed to create a partnership, joint venture or any agency relationship between the parties. n. Processor specifically disclaims all warranties of any kind, expressed or implied, including warranties of morchantabildy. This Agreement is a service agreement and the provisions of the Uniform Commercial Code shall not apply to it. o. Each party retains responsibility for the security of the Cardholder or Card Transaction information that it collects, stores or discloses. of 2