Terms & Conditions

Merchant Processing Agreement

These Terms and Conditions apply to your card processing agreement. For simplicity, we Luqra (“LQ”) refer to ourselves as “we,” “our,” “Processor” or “us” in this document. We refer to you (i.e., the legal entity or sole proprietorship on the Application) as “you” or “your” or “Merchant.” Other parties may also be parties to this Agreement (e.g., Member Bank, Guarantor, etc.). Terms that are capitalized, but not defined, are defined in Section 18 or in the Application.

1. Terms and Exclusivity

  1. Term: This Agreement binds you on the earlier of your execution of this Agreement, submission of your Application, or your submission of a transaction for This Agreement binds us the earlier of (i) the date we issue you a Merchant Identification Number; or (ii) the date we process your first transaction. Unless otherwise stated in the Agreement/Application, the initial term of this Agreement is 36 months (“Initial Term”). At the end of the Initial Term or any subsequent renewal term, the Agreement automatically renews for additional terms of 12 months each, unless either party gives written notice of its intent to terminate or not renew the Agreement at least 90 days before the then-current term expires, provided that if automatic renewal of this Agreement violates any Laws, the renewal term will be 30 days. For clarity, termination of this Agreement does not terminate your equipment lease, which may be subject to different term and termination provisions.
  2. Exclusivity: This Agreement is a “requirements contract.” This means you shall exclusively receive the Services and any similar services from Prior to exercising any right of termination or non­ renewal, you agree that we shall have a right of first refusal before you enter into an agreement with a third party for the Services. Except for term length, you agree that our right includes terms and conditions that are substantially similar to those discussed with the third party.

2. Rules, Regulations and Laws

  1. As part of this Agreement, you agree to comply with, and to cause your employees and agents to comply with: (i) the Laws; (ii) the Rules Summary; (iii) the Operating Regulations and terminal update requirements related to optional Association programs, if applicable (and any related costs); and (iv) the confidentiality and security requirements of (a) USA Patriot Act and any related laws, rules, or regulations; and (b) the Associations and Networks, including the Payment Card Industry Data Security Standard, the Visa Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other Association or Network program or requirement. You accept any responsibility or liability (e.g., data breach liability) resulting from your decision not to participate in optional Association Programs (e.g., the Association EMV program).

3. Acceptance of Cards

  1. You may elect to accept all card types, or only certain Visa and Mastercard card types (“Limited Acceptance”). You are solely responsible for your Limited Acceptance program. This includes: (i) policing card types at the point of sale (“POS”); (ii) paying Association fees and charges for only accepting certain card types; and (iii) paying any costs we incur in connection with your Limited Acceptance. Our obligations are limited to those expressed in the Operating Rules. Should you submit a transaction for processing for a card type you have indicated you do not wish to accept, we may process that transaction, and you agree to pay any applicable fees, charges, and assessments. The card types are (i) Debit Card-U.S. and non-U.S. bank issued Visa or Mastercard Cards that access consumer asset accounts within 14 days of purchase, including stored value, prepaid, EBT, gift, or consumer check Cards (“Debit Cards”); (ii) Other Card-all Visa and Mastercard Cards other than Debit Cards, including business and consumer credit Cards and Cards issued by non-U.S. banks. Your Limited Acceptance program only applies to U.S.-issued cards. The Visa and Mastercard Operating Regulations require merchants accepting any Card product bearing a Visa or Mastercard symbol to continue accepting both debit and credit Card products issued by non-U.S. members.
  2. If we are unable to obtain, or choose not to obtain, authorization from an Association or Other Network, we may “stand-in” for the Association or Other If we stand-in, we will authorize the Card transaction based on our own criteria. Our decision to stand-in does not change your obligation(s) to us.

4. Our Responsibilities

  1. We will provide the Services in accordance with our then­ current systems, standards, and Nothing requires us to provide you with any special programming; any system, program or procedure implementation; or any special hardware or software.
  2. We will provide reports online for each fiscal day’s activity by 10:00 AM ET the next calendar day. Such reports will include an accounting for each currency with supporting detail of transaction activity, daily proceeds, reserves and funds transfers for transaction settlement Reports will be available for download on the online reporting tool for a period ofl4 months from the date of issue. Reports may be upgraded, enhanced, and/or modified by us at any time.
  3. We will initiate payment to you for the amount of each accepted Card transaction only after we receive We have no obligation to deliver payment for any Card transactions that violate the terms of this Agreement or the Operating Regulations regardless of when we become aware of any such violation, and the proceeds from any such transactions, including any proceeds held in the Reserve Account, are not amounts due to you of held for your benefit.
  4. We have the right to honor and rely on the request(s) or instruction(s) of any person we reasonably believe to be your representative or In the event we receive returned mail intended for you, we may, but are not required to, procure a replacement address according to our standard operating procedures.
  5. We are  only  responsible  for  processing  credits  and adjustments for Card transactions that we originally processed. You authorize us to audit all Card transactions and deposits. We have the right to withhold amounts from you if we discover inaccuracies and as otherwise set forth herein.
  6. We may report information about your account, late payments, missed payments, or defaults to credit bureaus.
  7. We may suspend or cease providing any Services to you in response to a Member Bank, Network, or Association request. We will use reasonable efforts to notify you if we suspend or cease any Services.
  8. We are responsible for the security of Cardholder data we store or transmit on your behalf only while it is in our possession and control.

5. Your Responsibilities

  1. We have the right to charge your Designated Account (as defined in Section 6) without notice, or to require payment from you in any appropriate situation for the amount of any Card transactions. This right includes Card transactions: (i) where merchandise is returned; (ii) where there is no valid authorization response; (iii) where the Cardholder has not given authority (e.g., improperly drawn, accepted, or endorsed transactions); (iv) where the Card transaction record is illegible; (v) where the Cardholder disputes the sale, quality, or delivery of merchandise or performance or quality of services; (vi) where the Card transaction was drawn by, or depository credit given to, you in a way that breaches the Agreement or violates the Laws or Operating Regulations; (vii) where we have not received and retained payment for the Card transaction (even if we have already paid you for the transaction); (viii) where it is alleged that you have failed to comply with the Operating Regulations, Rules Summary, or the Laws; (ix) where an Association or Other Network action (e.g., a Chargeback or compliance case) is pending or has been resolved against you; (x) where we have incurred claims, damages, or losses from any source including Card issuers; or (xi) where the extension of credit for a Card transaction violated the Laws or Operating Regulations. Additionally, you remain fully liable to us for any transaction returned to us for any reason including but not limited to Chargebacks or reversals for debit Card transactions). You agree to review all Chargeback- and reversal-related notices and reports (in any format). Your failure to respond to a Chargeback or reversal within the applicable deadline may forfeit your Chargeback rights. We have no duty to assist you in defending a non-compliance allegation related to a Chargeback.
  2. You represent that any information you have supplied to us is true and accurate and that the name and tax identification number (‘TIN”) on the Application matches the name and TIN that you use to file your tax returns. You agree to update your information with us when it changes. We may need to share your TIN, entity name, processing volume, principal’s social security number, or other information with governmental entities. You agree to cooperate with our requests for information for any reason. We may be required to withhold processing funds or to forward processing funds to the IRS if you supply incorrect information, or the Laws or government agency so requires. You expressly release us from any liability in connection with our withholding of funds or submission of information to a government agency, even if incorrect. You are responsible for any fines or penalties assessed against you or us.
  3. You shall provide us a complete and accurate list of all websites and web addresses (“URLs”) that you use to market or promote your goods and The list of URLs shall be provided for an initial compliance review in connection with your Application and upon our request at any time thereafter. It is your responsibility to update the list of URLs on an ongoing basis and to notify us of any new UR Ls for a compliance review prior to processing any Card transactions through such URLs. You acknowledge and agree to make any changes to the content on such URLs that we deem necessary or appropriate in our sole discretion, including for purposes of compliance with Operating Rules or Laws. Notwithstanding the foregoing, we shall have no liability whatsoever to you or any third party regarding your URLs. You shall not submit any Card transaction flowing from a URL that has not been subject to such compliance review.
  4. You shall not sell, purchase, provide, share, or exchange Cardholder name, address, account number, or other information to any third party (including your Agent) other than us, the Associations, or the Networks, and then only for the purpose of completing a Card transaction.
  5. You agree to balance and reconcile the Designated Account and the Reserve Account (as defined in Section 8) each day. You shall immediately notify us of any missing or improperly deposited funds. Additionally, you agree to review our (or our agents) reports (including those made available online), notices, and invoices. You agree to accept any report, notice invoice, Service deficiency, or billing or payment error if you fail to reject or dispute it in writing within 30 days of the date we made it available to you. We may make our reports, notices and invoices available to you in accordance with our standard processes, which are subject to change. For 60 days following our receipt of your written notice of an error or deficiency, you agree to refrain from making any loss or expense claims against us so that we have time to investigate the situation. If you notify us that a Card transaction batch has not processed, we may, at our option, attempt to re-present the missing Card batches dated during the 90-day-period preceding the date we received your notice. We have no obligation to correct any errors that flow from your failure to comply with the duties and obligations in this paragraph.
  6. You agree to provide us with audited annual financial statements for your business, using generally accepted accounting principles, at any time upon Additionally, you agree to provide any other financial information within 75 days of a request by us.
  7. You shall timely assist us in complying with all Laws and Operating Regulations related to the Services. This obligates you to execute and deliver all instruments, including documents, we deem necessary for you to meet your obligations under the Agreement. Further, you agree to allow our auditors (third-party or internal), and the auditors of any Association or Other Network, to review the documents, records, procedures, systems, controls, equipment, and physical assets related to your transactions upon reasonable notice at any You also agree to assist our auditors as necessary. If an Association, Member Bank, or government agency requires a third-party audit, or if the Operating Regulations or Laws requires a third-party audit, we may retain a third party to perform the audit or require you to immediately retain a specific third-party auditor and provide us with a final audit report. You agree to pay our audit costs or the audit costs of Member Bank, an Association, or Other Network.
  8. In the case of a delayed merchandise delivery, you agree to deliver the Card transaction record to us within two (2) business days of the merchandise delivery (or as we specify in the Rules Summary). You agree to electronically deliver all other Card transactions and credit records to us in a suitable format within two (2) business days of the transaction (unless the Associations or Networks require the records earlier). You also agree to deliver Card transactions and credit records to us at least once every business day. Your delivery constitutes an endorsement of each recorded transaction. You authorize us or our representative to place your endorsement on any Card transaction at any time. We have the right to refuse to acquire any Card transaction. You waive notice of dispute related to any individual Card transaction.
  9. You shall not store Cardholder data, including Track 2 data, in violation of the Laws or the Operating Regulations. Further, you shall not retain or store magnetic stripe data following the authorization of a Card transaction.
  10. You are solely responsible for the quality, accuracy, and adequacy of all transactions and information you supply. Accordingly, you shall implement and maintain adequate audit controls for monitoring the quality and delivery of data. When submitting Card transaction, settlement, and other data and information to us, you agree to follow our communications processes and document formats. You agree to only transmit information and data to us with a secure system.
  11. You may use a third-party agent (“Agent”) to perform some of your obligations under this Agreement, subject to our Agents include your software providers and equipment providers. You shall cause your Agent to complete any Association-required steps or certifications (e.g., registrations, PCI DSS, PA-DSS, audits, etc.). You shall ensure that your Agent complies with all applicable requirements of this Agreement. You expressly assume a11 responsibility for the acts or omissions of your Agent as if they were your acts or omissions. If your Agent qualifies as a service provider under applicable Operating Regulations, you agree, at your expense, to cause the Agent to cooperate with us in our due diligence requests and in performing any steps required for registration and certification. You are responsible for conducting your own due diligence on your Agents, including the fitness of their services for a particular purpose and for determining the compliance of their services with the Operating Regulations and the Laws. You expressly assume all liability for the acts and/or omissions of your Agent even if we introduce or recommend the Agent, or resell the Agent’s services.
  12. You agree that it is important to notify us about changes in your business. Because of this, you agree to provide us 30 days prior written notice of your intent: (i) to change business form or entity type; (ii) to sell stock or assets to another entity; or (iii) to make changes that would affect information on your Application, including but not limited to a change in the types of products or services that you sell or the types of business activities in which you are Additionally, you shall notify us within three days of any judgment, writ, warrant of attachment, execution, or levy against any substantial part (25% or more) of your assets. Should you change or add locations, you agree to follow our standards and procedures. Unless we agree otherwise, you agree that you will only present Card transactions to us that correspond to the activities and volumes described on your Application. Accordingly, we must pre­ approve in writing increases in Card transaction volume over the amount stated on your Application. Changes in monthly volume, the stated average ticket size, or any other information on your Application entitle us to increase fees, delay or withhold settlement, or terminate this Agreement. Your failure to notify us of changes under this Section subjects you to liability for any losses or expenses we incur.
  13. Excessive: Notwithstanding anything in this agreement to the contrary, your presentation to us or Member Bank of Excessive Activity will be a breach of this Agreement and may result in an Excessive Activity Fee and/or immediate termination of this Agreement, in our sole discretion. “Excessive Activity” means, during any monthly period for any one of Merchant’s terminal identification numbers or merchant identification numbers: (i) the dollar amount or number of chargebacks and retrieval requests exceeds 7% of the average monthly dollar amount or number of Card transactions; (ii) sales activity that exceeds by 25% or more the dollar volume indicated on the Merchant Application; or (iii) the dollar amount of returns equals 3% of the average monthly dollar amount of Card transactions. You authorize, upon the occurrence of Excessive Activity, us or Member Bank 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. The “Excessive Activity Fee” shall be equal to up to 1% of the amount constituting Excessive Activity.
  14. Inactivity: Unless you are a seasonal merchant, failing to process any sales transactions for at least two (2) consecutive calendar months is considered an Event of Default and subject to the provisions of Section 7 of this Agreement.
  15. Virtual Private Network (“VPN”)/Secure Socket Layer (“SSL”) Our standard VPN and SSL services establish an internet connection between you and us for processing your transactions. You are responsible for: (i) ensuring that your communication equipment is compatible with our VPN or SSL; (ii) ensuring that each terminal with a connection to the VPN or SSL has an active personal firewall; and ensuring a secure key exchange and key management process (including a process for key revocation when your personnel leave). Our VPN or SSL communication interface relies on the internet. You agree that the internet is not always reliable, and that internet problems and issues may interfere with our ability to process your transactions. Any service levels that appear in other parts of the Agreement do not apply to the VPN or SSL connection or to transactions transmitted using the VPN or SSL connection. We provide VPN and SSL services in accordance with our own standards, which are subject to change without notice. You agree to comply with any VPN and SSL standards we or the Associations or Other Networks establish.
  16. Optional Services: We may offer you products and services through one or more third parties (“Optional Services”). You agree that, as available, the applicable third-party provider (“Provider”) solely supplies and/or supports all Optional Services. We are not a party to your contracts with You are responsible for conducting your own due diligence on any Provider that you use, including the fitness of its services for a particular purpose and for determining the compliance of its services with the Operating Regulations and the Laws, even if we resell the Provider’s services. You bear all of the risks associated with using an Optional Service. Although not an exhaustive list, we are not liable for: (i) exercising control over Provider; (ii) errors related to establishing and maintaining account relationships with Providers; or (iii) ensuring service levels with respect to the Optional Service(s). Our decision to offer any Optional Service shall not limit your duty to: (i) ensure that all account numbers are correct; (ii) notify Providers of changes to your ACH, address, and account information; (iii)pay all fees, fines, damages, losses, or expenses arising in connection with your possession or use of an Optional Service; (iv)perform your own due diligence before using an Optional Service; and/or (v) perform any other proper act related to your use of the Optional You agree to indemnify and hold us harmless for any damage, loss, claim, or liability arising from your possession and/or use of any Optional Service. Each Provider has the right to require you to enter into a separate agreement with it. Whether you and Provider enter into a separate agreement, you agree that: (i) your rights and duties regarding the use of an Optional Service are neither assignable nor delegable without Provider’s prior written consent; (ii) you acquire no property right, intellectual property right, claim, or interest in any of Provider’s systems, equipment, software, processes, programs, or data; and (iii) you shall protect the confidentiality of Provider’s software and documentation.
  17. You agree to pay us all Provider-imposed fees and assessments in connection with your use of the Optional Service(s). Your obligation to pay us shall continue until: (i) you have notified Provider(s) of your intent to cancel the Optional Service(s); (ii) you have provided us with notice that (a) you have notified Provider of your intent to terminate, (b) you have returned all equipment and software to Provider, and (c) you have ceased receiving all Optional Services; and (iii) Provider no longer assesses us for your receipt of the Optional Services or for possession of the equipment or You waive all rights to contest, challenge, or withhold payment for any fees we assess for Optional Services until you have satisfied the conditions in the preceding sentence.
  18. You authorize us to contact your customers or their Card issuing bank(s) to find out information about any Card transaction. You shall not contact a Discover Cardholder unless authorized to do so by the Operating Regulations or required by Law.
  19. Bankruptcy: You agree to execute and deliver to us any documents we request to perfect and confirm the lien, security interest, and setoff rights in this Agreement. You shall immediately notify us of any bankruptcy, receivership, insolvency, or similar action or proceeding initiated by or against you or any of your principals. Further, you shall include us on the list of creditors filed with the Bankruptcy Court, even if no claim exists at the time of filing. This is an executory contract to make a loan or extend other debt financing or financial accommodations to or for your benefit and, as such, cannot be assumed or assigned in the event of your bankruptcy. This is a contract of recoupment and we are not required to file a motion for relief from the automatic stay to realize on any of the Secured Assets. Nevertheless, you agree not to contest a motion for relief from the automatic stay. You must adequately fund the Reserve Account to provide us with adequate protection under Bankruptcy Code§ 362. We have the right to consume and offset against the Reserve Account to cover your obligations under this Agreement, regardless of whether they relate to transactions created before or after your bankruptcy filing. Because this Agreement contemplates the extension of credit for your benefit, you acknowledge that you cannot assign the contract in the event of a bankruptcy. We may immediately terminate the Agreement if you fail to comply with any part of this Section.
  20. Wireless Service Acknowledgement: We are not responsible for verifying your wireless service coverage, or for losses in coverage, or for your failure to maintain coverage. By selecting wireless service, you acknowledge that wireless coverage is not guaranteed and that we have no control over the wireless service providers or the decisions they make. Additionally, you acknowledge that if wireless service is lost in your area, the equipment will not operate with another wireless carrier. We are not liable if wireless coverage is lost in a specific area and the equipment can no longer be used as a wireless terminal.
  21. Virtual Terminal Processor Services and Fees: Our Virtual Terminal Processor Service (the “Virtual Terminal Service(s)”) is an additional service (subject to separate fees and charges). It allows you to effectuate Card transactions within the merchant portal application in accordance with our You represent and warrant that you have implemented and will maintain secure systems for using the VT Services and transmitting information to us. You are responsible for any authorized or unauthorized transactions initiated using your user IDs. You assume all liability for (i) acts or omissions arising out of your use of the VT Services; and (ii) risks associated with using software with internet connectivity.
  22. Equipment: If you enter into a lease or rental agreement for the use of credit card processing equipment, you understand that such agreement is separate and apart from this Agreement and is subject to the terms and conditions of the lease or rental agreement. Neither we nor Member Bank is a party to any such lease and neither is affiliated with the third-party institutions. Such leases are typically non-cancelable 48-month leases. Termination of your Agreement with us does NOT automatically terminate your equipment lease, it only terminates your processing agreement with us. You acknowledge that you have selected the equipment set forth on the Merchant Application based upon your own independent evaluation and you are not relying upon any warranty or representation of any third party, including but not limited to the representations of a sales representative, regarding the Processor is not responsible for and is not able to provide customer service for equipment, such as POS devices, installed by and/or operated by any third party. Merchant should contact the third party for service of this equipment. Merchant shall not allow any third party to install, remove, or modify any terminal equipment or software application of ours or Member Bank without the express written consent of us or Member Bank.

6. Fees and Other Services

  1. You agree to pay fees, cost escalations, assessments, tariffs, penalties, and fines we incur caused by your use of the Services, claims, or other items under this Agreement or the Operating Regulations. We will periodically (daily, monthly, etc.) calculate your fees and charges and debit the bank or deposit account(s) that you designate (“Designated Account(s)”) to collect those amounts. We have the right to determine and change the periodic basis (daily, monthly, etc.) in the previous sentence in our sole discretion, without notice. We have the right to round, assess and calculate interchange and other fees and amounts in accordance with our standard operating procedures. We also have the right to assess some or all of the fees and charges via a separate or combined Services invoice(s). We will charge you for any fines, fees, penalties, loss allocations, assessments, registration expenses, certification expenses, telecommunication expenses, sponsorship fees, and other amounts assessed by Member Bank and/or third parties or incurred as a result of your actions, omissions, or use of the Services, or those we incurred on your behalf under the Operating Regulations, the Rules Summary, and the Laws.
  2. Transaction fees are fees charged on each authorization, Card draft, credit draft, or other transaction type, regardless of the stated total (‘Transaction Fee(s)”). We may charge a Transaction Fee for any transaction activity.
  3. Visa, Mastercard, and Discover Interchange fees, assessments, and other amounts will be either (i) assessed to you separate from and in addition to the Discount Rate, Transaction Fee, and other fees listed in the Application; or (ii) included in the Discount Rate and/or Transaction Fee listed in the Application. For American Express Card transactions, we will assess interchange fees, assessments and other fees in addition to the Authorization Transaction Fee and other fees described on the For American Express Card transactions under Tiered Transaction Pricing, interchange fees and other amounts will be included in the Discount Rate and/or Transaction Fee listed on the Application. For Debit Card transactions under Tiered Transaction Pricing, we will assess interchange fees, sponsorship fees, switch fees, and gateway fees as pass through, and other amounts will be included in the Discount Rate and/or Transaction Fee listed on the Application. Certain fees are available upon request or through the Associations. You are responsible for conducting your own inquiry into the nature and type of applicable fees. The Discount Rate, Transaction Fee and other fees may be based, in whole or in part, on interchange rates, assessments, and other fees that the Associations and Other Networks periodically change.
  4. You acknowledge that in order to receive the best Discount Fee and Transaction Fee on a particular Card transaction, the transaction must first “qualify” and exactly meet certain criteria. Several factors can prevent a Card transaction from qualifying, including that it: (i) was hand entered (i.e., the encoded card information was not read by a POS device); (ii) was voice-authorized; (iii) was not authorized; (iv) was not transmitted for processing within 24 hours; (v) was a Consumer or Commercial Reward transaction, a Visa Signature transaction, or a Mastercard World Elite Card transaction; (vi) was deemed a “Non-Qualifying” transaction by the Operating Regulations (e.g., certain foreign transactions or transactions from business, commercial, purchasing, or government Cards); (vii) was difficult to capture; (viii) was difficult to authorize; (ix) was submitted incorrectly; or (x) was not eligible for the lowest electronic interchange fee for any other reason. Additionally, you might not qualify for the best Transaction Fee or Discount Rate if your average ticket differs from what we used to calculate the Transaction Fee and/or Discount Rate; if you submit more than 5% of your monthly Card drafts without electronic transmission; or if your terminal, software, or communications lines fail to function properly. The Associations change the transaction qualification criteria from time to time. For certain non-qualifying transactions, we assess a surcharge of a certain percent of the transaction amount. In the event that your Card transactions under Tiered Transaction Pricing do not qualify or only partially qualify for the qualified discount rated quoted on the Merchant Price Schedule and/or the Operating Regulations, you agree to pay the Mid-Qualified Discount Rate and/or Transaction Fee, or Non­ Qualified Discount Rate and/or Transaction Fee set forth on the Application. We do not guarantee that your transactions will qualify for any given rate, and we disclaim all responsibility and liability for a transaction’s failure to so qualify. In addition, Card transactions that do not meet the necessary criteria for payment are subject to complete denial and/or Chargeback. 
  5. You shall pay all taxes imposed in connection with the If we pay taxes for you, we can immediately debit your Designated Account or demand payment from you.
  6. Your use of any service not listed on the Application or provided at the commencement of the Agreement obligates you to pay any accompanying fees, charges, and related If you receive these Services you will be deemed to have consented to the fees, charges and expenses. We have no obligation to enhance or customize Services or additional services, but we may choose to do so for a separate fee. You shall take all necessary steps to ensure that you can receive the Services, at your own cost. This includes procuring equipment and software and taking other steps as we direct.
  7. We reserve the right to charge you a reasonable fee if we reasonably believe you are not fully compliant with the Rules Summary, Operating Regulations, the Payment Card Industry (“PCI”) Data Security Standard (“PCI DSS”) and Payment Application Data Security Standard (“PA-DSS”), or any Laws, or if you fail to prove compliance upon our This fee will be in addition to any other amounts payable under the Agreement.
  8. After your initial conversion to us, you agree to pay all direct and indirect costs (including those we, our affiliates, or our agents incur) related to any conversion to or from us as applicable, and/or relating to any programming effort affecting the Services.
  9. If we advance funds to you or delay your obligation to pay funds, we reserve the right to assess you a cost of funds in the manner and amount of our After we approve your Application, we will begin assessing any applicable monthly recurring charges. This Agreement subjects you to an Annual or Semiannual Fee and a Monthly Minimum Fee, unless otherwise noted on the Application. In the event this Agreement expires or terminates for any reason, the Annual or Semiannual Fee, as applicable, will not be prorated or refunded. If applicable, we may assess the ACH Fee listed on the Application for administrative services.

7. Termination or Suspension of Services

  1. Default Event: You are in default under this Agreement (“Event of Default”) if: (i) we believe there has been a material or potentially material deterioration of your financial condition; (ii) you become subject to any voluntary or involuntary bankruptcy, insolvency, reorganization, or liquidation proceeding, a receiver is appointed for you, or you make an assignment for the benefit of creditors, or admit your inability to pay your debts as they become due; (iii) you cease doing business as a going concern, or there is a Change in Control; (iv) you are in breach any of the terms of the Agreement; (v) we reasonably believe fraud may be occurring including, without limitation, splitting tickets or laundering tickets; (vi) your name or your principals’ names are listed on the MATCH (Membership Alert to Control High Risk Merchants) System, Discover Merchant Control, or other security or credit alert systems, or you are identified under an Association risk monitoring program; (vii) we determine that your Card transactions or the circumstances surrounding your Card transactions have become irregular or increase our exposure to Chargebacks, reputational, or other security risks; (viii) we receive instructions from an Association or Other Network to close your account; (ix) you become subject to any criminal or civil action, suit, or proceeding or to any government or regulatory investigation or enforcement action; (x) circumstances exist that could cause harm or loss of goodwill to the Associations or Other Networks; (xi) you no longer meet the eligibility requirements of an Association or Network; (xii) you present Excessive Activity for processing; (xiii) you experience returns greater than 3% in a month or Chargebacks greater than 1% in a month; (xiv) you cease doing the kind of business described in the Application; (xv) you fail to process any sales transactions for at least two (2) consecutive calendar months and are not a seasonal merchant; (xvi) you fail to pay any amount owed under this Agreement to us when due; (xvii) we believe that you have violated or are likely to violate the Operating Regulations, Rules Summary, or the Laws; (xviii) you engage in, or are suspected to have engaged in any of the following acts: (a) illegal business activities; (b) collusive fraudulent transactions with Cardholders; (c) laundering or aggregating illegal and/or brand damaging transactions; (d) establishing your account with us through identity theft; or (e) any other fraudulent act (each such act, an “Improper Transaction”); (xix) you assign this Agreement without our prior consent; or (xx) you solicit or accept mail orders or telephone orders or any transaction in which the Cardholder and Card are not present without prior written authorization from us. We shall determine the existence of an Event of Default and our determination is conclusive unless you contest it in writing within 90 days following our determination. Upon the occurrence of an Event of Default, we may exercise any right or remedy in this Agreement with or without notice, or may decide to pursue no remedy at all in our sole discretion. Our remedies for an Event of Default include: (i) terminating the Agreement; (ii) suspending or ceasing to provide the Services; (iii) collecting the Early Termination Fee, if applicable; (iv) diverting all Card transaction proceeds to a Reserve Account; (v) collecting any amounts you owe us by means of setoff, recoupment, or any other legal means; (vi) recovering fees and costs, including attorneys’ fees associated with the investigation of any suspected fraudulent activity or Event of Default; and/or (vii) damages equal to your average monthly fees for the three (3) calendar months that your revenue was highest during the preceding twelve (12) months (or during the period of the Agreement if it has not been effect for twelve (12) months), multiplied by the number of months then remaining in the term of the Agreement. You agree that any damages assessed by us are fair and reasonable because it is difficult or impossible to estimate our damages following an Event of Default, and that the pricing we extended to you assumed that you would use and pay for the Services during the entire Term. Notwithstanding the foregoing, any Improper Transaction shall result in immediate termination of this Agreement by us. Termination for any reason shall not relieve you of any liability or obligation you owe us. We have a right to assess fees and recover all costs associated with our investigation of suspected fraudulent activity or Event of Default. If you accept transactions in connection with an Event of Default, we have the right to hold settlement funds and to subject them to a per month fraudulent transaction fee equal to 15% of the amount held to offset our losses and anticipated losses. We have no liability to you for any direct or indirect losses you may suffer as a result of our suspension of funds disbursement or failure to pay transactions in connection with an Event of Default.
  2. Early Termination: If you terminate the Agreement prior to the end of the Initial Term, or if we terminate this Agreement due to inactivity as specified in Section 5.N of this Agreement or any other reason set forth in this Agreement, you shall pay us a fee to compensate us for early termination of the Agreement in the amount specified in the Merchant Application (“Early Termination Fee”) for each merchant identification number (“MID”) and Merchant location.
  3. Returning of Equipment/Materials: You shall return our equipment, promotional materials, advertising displays, emblems, Card drafts, credit memoranda, and other forms within 14 days of termination. You agree to immediately pay any amounts you owe for equipment Without limiting the foregoing, if you fail to return equipment loaned to you by us within 21 days of termination of this Agreement or cancelation of your account for any reason, or if you return equipment in any damaged condition not due to normal wear and tear (in our sole discretion), we reserve the right to assess and collect from you the fair market value of the equipment, in our determination.
  4. Remedies: Our rights and remedies under this Agreement and/or at law or in equity are cumulative.
  5. Terminated Merchant File/ Discover Merchant Control: You acknowledge and consent to our obligation to report your business name and the name of your principals to the Associations if we terminate you due to the reasons listed in the Operating Regulations, including for breaching this You agree to refrain from bringing any claims against us for reporting you to the Associations.
  6. No Effect on Lease: Termination of this Agreement for any reason does not automatically terminate your equipment lease, if applicable.
  7. Effect of Termination: Upon termination of this Agreement for any reason at any time, you agree to pay us in addition to any other amounts required by this Agreement (i) any unpaid fees or invoice due; and (ii) any damages, losses, expenses, fees, fines, penalties, Chargeback amounts, and adjustments we incur in connection with the Agreement. You authorize us to debit your Designated Account, to deduct amounts you owe us under this Section from the settlement funds we owe you, or to deduct such amounts from the Reserve Account. You are responsible for any collection fees, legal fees, and other expenses we incur in recovering your delinquent amounts.
  8. MATCH/TME: You acknowledge that we may, in accordance with Association rules, add you, any person who signed the Application, and any Guarantor to Mastercard’s MATCH system, Visa’s Terminated Merchant File, and/or any other similar system or list.

8. Authorization, Setoff, Reserve, and Security Interest

  1. You authorize us, our agents, and third parties to initiate ACH credit/debit entries to or from the Designated Account, the Reserve Account, or any other account you maintain at any financial institution that is a member of an ACH Network, including for amounts you owe us, that we owe you, or for correction of errors, including but not limited to any liabilities or losses owed to us. This authorization applies even if and after you change the Designated Account. It survives the termination of this Agreement, until the later of (i) two (2) years from the Agreement’s expiration; or (ii) the date you have satisfied all of your obligations to us. You shall ensure the Designated Account(s) have funds sufficient to satisfy your contingent and accrued obligations and duties under this Agreement. No attempt to change or alter the bank or deposit account you identify as the Designated Account (an “Account Change”) is effective until we acknowledge the change on our system. Accordingly, you shall not close a previous Designated Account until the new Designated Account receives its third deposit under this Agreement. We are not responsible for checking the accuracy of any Account Change your purported representatives submit in connection with an Account Change. Additionally, we are not responsible for liability associated with any Account Change unless it is due to our gross negligence or willful misconduct. You are solely liable for all fees and charges your financial institution assesses, including overdraft and non-sufficient funds charges. You release and hold us harmless from any financial institution fees or charges, regardless of cause. We are not liable for any delays in receipt of funds or errors in debit and credit entries caused by unaffiliated third parties, including the Associations, Other Networks, a clearing house, or your financial institution. We may audit and verify all Card and credits you accept. You agree that we may debit or credit your Designated Account for any inaccuracies. You also agree to be bound by the National Automated Clearing House Association’s operating rules.
  2. You agree that payment is due the date we originate an ACH debit transaction record to your Designated Fees not paid when due bear interest at the rate permitted by Law. You are responsible for paying all fees, without setoff or deduction. We have a right to setoff amounts you owe us from amounts we owe you or your affiliates.
  3. The closing of your Designated Account does not constitute a mutually agreed upon termination of this Agreement although it may be considered a termination of this Agreement by you.
  4. All funds resulting from transactions are held in a pooled clearing account (“Clearing Account”) with our banking partner. We will settle funds to and from the Clearing Account in the manner described in this Agreement; however, you have no rights to the Clearing Account or to any funds held in the Clearing Account, you are not entitled to draw funds from the Clearing Account, and you will not receive interest from funds maintained in the Clearing Accounts.
  5. In some circumstances based upon your processing history, your potential risk of loss to us or Member Bank as we may determine from time to time, your business type, your time in business, your financial information, your requested average/high ticket, your online reputation, or any combination of these or other similar factors, we may require you to create a reserve of funds (“Reserve Account”) in an amount determined in our sole discretion (“Reserve”). For example, and without limitation, we may require a Reserve if you have violated or are likely to violate this Agreement, or your account with us has an elevated or abnormally high number of Chargebacks or disputes, if we determine you are committing fraud or violating the Laws, or if you become subject to a civil, criminal, regulatory, or administrative investigation or litigation. If we impose a Reserve, we will establish the terms of the Reserve and provide you notice of the amount, timing, and conditions upon which the funds in the Reserve Account will be released to you. Unless otherwise specified by us or Member Bank in writing, the Reserve Account shall be fully funded upon three (3) days’ notice to you, or in instances of fraud or suspected fraud, an Event of Default, Reserve Account funding may be immediate. Reserve Account funding may occur by all or any combination of the following: (i) from settlement amounts, transaction proceeds, or any other amount otherwise payable to you; (ii) debits to any other accounts held by us or Member Bank; and/or (iii) your payment to us of the amount needed to fund a Reserve Account during this Agreement at the Reserve amount. We may change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with your account, including if required to do so by the Member Bank. We have the right to use any Reserve to cover any amounts due or that might become due to us at any time, including any amounts that remain unpaid after we debit (or attempt to debit) your Designated Account. Reserve Account funds may be commingled with other funds and need not be maintained in a separate account designated in your name. Subject to the other terms of this Agreement, we have the right and discretion to retain funds placed into the Reserve Account until the later of: (i) 270 days after the termination of this Agreement; (ii) 180 after the last Card processing activity under this Agreement; or (iii) the conclusion of any pending criminal, civil, administrative, or regulatory investigation or litigation (the later of these three dates shall be the “Refund Request Date”). After the Refund Request Date, you must request in writing to receive the funds in the Reserve Account, and such request must include current information delivery of such funds.
  6. We or Member Bank, without prior notice to you, may deduct from the Reserve Account any obligation of you to us or Member Bank under this Agreement, including all Chargebacks, liabilities, losses, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any fines, penalty amounts and charges due the Card Associations.
  7. You shall not sell, assign, transfer, or encumber any part of your interest in the Reserve Account, or any present or future rights under this Agreement, including your right to receive payments or funds. Neither we nor Member Bank are obligated to honor any purported attempt to sell, assign, transfer, or encumber any interest, rights, payments, or In the event you breach this Section, we have the right to withhold funds payable to you, in addition to any other rights we may have at law or equity. You shall indemnify and hold us harmless from and against any claims, liabilities and damages that any person (including a purported assignee) may assert against us arising out of your purported sale, assignment, transfer, or encumbrance of all or any of your present or future rights under this Agreement.
  8. This Agreement is a security agreement under the Uniform Commercial Code. You grant us a security interest in and lien upon all: (i) funds in the Designated Account; (ii) funds in the Reserve Account; (iii) amounts due you under this Agreement, including rights to receive payments or credits; and (iv) proceeds in any account or from any Card transaction (collectively, the “Secured Assets”), to secure all of your obligations under this For Secured Assets maintained by Member Bank, you authorize Member Bank to comply with our demands regarding the Secured Assets. Our control of the Secured Assets with Member Bank constitutes a perfected interest under Article 9 of the Uniform Commercial Code. We may direct the disposition of the Secured Assets without further consent from you. You represent and warrant that we have the only security interest in the Secured Assets. You agree not to grant a security interest in the Secured Assets to a third party without our prior written consent. Additionally, we have a contractual right of setoff against the Secured Assets. Our right of set-off shall be deemed to have been exercised immediately upon the occurrence of an Event of Default without any action by us or notation in our records, even if we enter the setoff on our books and records at a later time.

9. Ideminification and Limitation of Liability

  1. You shall indemnify and hold us, and our directors, officers, employees, affiliates, and agents harmless from and against all proceedings, claims, demands, losses, liabilities, damages and expenses (including any fines, fees, assessments, audit fees, card replacement costs, or penalties levied against us by an Association, any Card issuer, or any Other Network, and attorneys’ and collection fees and expenses) resulting from or otherwise arising out of: (i) your use of the Services; (ii) any breach of any term or condition of this Agreement; (iii) any misrepresentation by you under this Agreement and Application; (iv) your acts or omissions in connection with the Services under this Agreement, including the acts and omissions of your employees and agents; (v) your processing activities and provision of goods and services to Cardholders; (vi) any violation of the Operating Regulations, the Rules Summary, or the Laws by you; (vii) any guarantees we provide to a third party for your benefit, including lease guarantees; (viii) any infiltration, hack, breach, or violation of the processing system resulting from, arising out of, or in anyway related to your ability to use the Services, including your use of an Agent or any other third-party processor or system, or your ability to connect to the Internet or an external network; (ix) any act or omission of a third party with which you have contracted; (x) any bankruptcy proceeding; (xi) effecting transactions with the use of a lost, stolen, counterfeit, or misused Card; (xii) any action you institute against any Association, Other Network, or Card issuer following a Chargeback or fine; or (xiii) any action we take against the Designated Account, Reserve Account, or any other account you own, pursuant to this Agreement. You shall also defend, indemnify, and hold harmless the institution that maintains your Designated Account for acting in accordance with any instruction from us regarding the Designated Account. This indemnification shall survive the termination of the Agreement.
  2. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. You acknowledge and assume all risks associated with the acceptance of cards. We are not liable for lost profits, lost business, or any incidental, special, consequential, or punitive damages (whether or not arising out of circumstances known or foreseeable by us) you or your customers or any third party suffers in connection with the Services. We are not liable for damages or losses wholly or partially caused by you or your employees or agents. Nor are we liable for any damages or losses you may sustain as a result of our exercise of post-default rights or remedies under this Agreement, provided we had a good-faith, reasonable basis to believe an Event of Default occurred. Our liability related to or arising out of this Agreement shall not exceed the fees paid to us for the particular Services in question for the calendar month preceding the date of our relevant act or omission. The parties acknowledge that the limitations in this Section are integral to the amount of fees we charge for the Services. Except as otherwise described in this Section, your exclusive remedy for any claim against us is termination of the Agreement. We are not in default under this Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of any Services resulting, directly or indirectly, from errors in data you or other parties provide to us, or any event beyond our reasonable control, including the Force Majeure Events defined below.
  3. We are not liable for, nor in default under this Agreement, for any delays, failure to perform, loss of performance, or interruption in service resulting directly or indirectly from a Force Majeure A “Force Majeure Event” includes labor disputes; fire; weather; acts of God; acts of a public enemy; other casualty; pandemic; power outages; funding delays (however caused); governmental orders or regulations; errors in data provided by you or others; international, domestic, and/or economic terrorism; or any other cause, whether similar or dissimilar to those just mentioned, beyond our reasonable control.
  4. Except for actions related to your failure to pay amounts due under the Agreement, no cause of action shall be brought by either party more than one (7) year after it accrued.
  5. You recognize and agree that any limitations of liability set forth in this Agreement are fair and reasonable.

10. Confidentiality

  1. We will be providing you with Confidential Information. “Confidential Information” includes information relating to our methods, techniques, programs, devices and operations and those of Providers, the Associations, and Other Networks. You shall not disclose Confidential Information to any person or entity, other than to your employees and agents who participate directly in the performance of this Agreement and need access to the information. You agree to comply with the confidentiality and security requirements of the Rules Summary, the Laws, and the Operating Regulations. This includes the Visa Cardholder Information Security Program found at https://usa.visa.com/partner-with-us/pci-dss-compliance-information.html; the Mastercard Site Data Protection Program, found at https://www.mastercard.us/en-us/business/overview/safety-and-security/security-recommendations/site-data-protection-PCI.html; and the American Express Data Security Operating Policy, found at https://www.americanexpress.com/us/merchant/us-data-security.html; and any similar Association or Other Network program requirement. You acknowledge receipt of our privacy notice, as applicable (“Privacy Notice”), which is incorporated by reference herein. Notwithstanding anything to the contrary in the Privacy Notice or this Agreement, we have the right to use, disclose, share, and retain any information you provide or that arises out of the Services, during the term and thereafter: (i) with your franchisor or franchisee(s), association(s) you belong to or belonged to at the commencement of this Agreement; (ii) with your affiliates; (iii) in response to subpoenas, warrants, court orders or other legal processes; (iv) in response to requests from law enforcement or government agencies; (v) to comply with Laws; (vi) with our affiliates, business partners and agents; (vii) to Associations and Other Networks and their designees, (viii) to Providers and their designees; (ix) to any other referral source or processor, including the applicable referrer, ISO/MSP, or independent Card office; (x) to perform analytic services for you, us, and/or others, including analyzing, tracking, and comparing transaction and other data to develop and provide insights for those parties as well as for developing, marketing, maintaining, and/or improving our products and services; and/or (xi) to offer or provide the Services under this Agreement. You authorize us to (i) make public the execution of this Agreement, this Agreement, and/or the provision of Services under this Agreement; and (ii) include your name and logo on a list of our customers that maybe shared with the public.
  2. You must secure and prevent the unauthorized access of any systems and media containing account, Cardholder, or transaction information (physical or electronic, including account numbers, Card imprints, and terminal identification numbers). Except for Card drafts you maintain in accordance with this Agreement or the Laws or Operating Regulations, you shall render inoperative and unreadable any media you no longer deem necessary or appropriate to store. You shall notify us of the identity of any third party who will have access to Cardholder data (“Merchant Provider(s)”). You shall also ensure that: (i) Merchant Providers cannot access Cardholder data unless authorized by the Operating Regulations; (ii) Merchant Providers have proper security measures to protect Cardholder data; (iii) you and Merchant Providers comply with the PCI DSS and PA­ DSS, as applicable; and (iv) you have written agreements with Merchant Providers requiring compliance with the terms of this Section. You shall immediately notify us of any suspected or confirmed loss or theft of any transaction information. This includes any loss or theft from a Merchant Provider. You are responsible for demonstrating your and Merchant Providers’ compliance with the PCI DSS and PA-DSS. You agree to provide us reasonable access to your locations and the locations of your Merchant Providers so that we can, at our option, verify whether you and your Merchant Providers can prevent future security violations. In the event of a suspected or confirmed loss or theft of information, you agree, at your expense, to provide any information, whether requested by us, an Association, financial institutions, or a local, state, or federal official in connection with the event. You further agree to cooperate in any ensuing investigation, including any forensic investigation. The information you provide in response to an investigation shall be considered our confidential information. The requirements of this provision apply to Cardholder data regardless of the medium in which the information is contained and regardless of whether you process transactions via internet, mail, phone, face-to-face or any other method.
  3. Our proprietary and confidential online portal service provides reporting detail about your use of the Services (“Portal Services”). We reserve the right to disallow, discontinue, suspend, or change your use of Portal Services at any time without notice including if we determine that you are committing fraud, violating the Laws, or are involved in any civil, criminal, regulatory, or administrative investigation or litigation. You agree to maintain the confidentiality of any Portal Services passwords in your possession. If we provide Portal Services to you, our only obligation is to make the Portal Services available in accordance with our standard operating procedures (e.g., then-current timeframes, standards, scheduling, and procedures, including those for setup, account access, and suspension of Portal Services). You shall provide us with prompt written notice of account or user ID changes, including User IDs that are no longer active or should be deleted. You are solely responsible for any unauthorized access to Portal Services, including unauthorized employee or agent access, or third-party access. We have no liability for third-party interruptions in Portal Services (e.g., internet providers), or errors or inaccuracies in the data reported to you.

11. Continuing Unlimited Guaranty

  1. This Section (“Continuing Unlimited Guaranty”) applies to each person who signs this Agreement as a guarantor (each a “Guarantor”). To induce us to enter the Agreement, each Guarantor jointly and severally guarantees the prompt and full payment of all Obligations (defined below) when due.
  1. “Obligation” means any obligation in the most comprehensive sense of the word. Obligation includes all indebtedness, debts and liabilities (including principal, interest, late charges, collection costs, attorneys’ fees and the like) that Merchant owes us including under this Agreement, whether Merchant created the obligation alone or with others, and whether Merchant is primarily or secondarily responsible. Obligations can be secured or unsecured, absolute or contingent, liquidated or unliquidated, and direct or indirect. Obligations can be evidenced by note, draft, a guaranty agreement, or otherwise. Obligations can exist now or arise in the future. It includes all payment obligations, indemnification obligations, and indebtedness Merchant owes us arising from or related to the transactions or Services under this Agreement.
  2. Guarantor promises to pay any Obligation that Merchant has not promptly paid when due. Guarantor promises to pay irrespective of our actions or inactions regarding the Obligations, or whether we have enforced any security interest created under this Agreement. Guarantor further promises to pay irrespective of the invalidity, insufficiency, or unenforceability of any Obligation. Guarantor’s obligations shall not be affected, modified or impaired by any counterclaim, set-off, deduction or defense based upon any claim the Guarantor may have against you (Merchant) or us, except payment or performance of the Obligations.
  3. Guarantor waives notice of any acceptances of this Continuing Unlimited Guaranty. Guarantor waives presentment, demand, protest, notice of protest, and notice of dishonor or other non-payment of any Obligations. Further, Guarantor waives notice of sale or other disposition of any collateral or security we now hold or later acquire. The duties of Guarantor shall not be released, discharged, or modified by (i) our extending the time for payment (for Merchant or Guarantor); or (ii) our delay or omissions in exercising any rights, taking any actions, or pursuing any remedies against Merchant or Guarantor. Guarantor agrees that we may release or modify any collateral, security, or other guaranties without notice or consent from Guarantor and without modifying Guarantor’s duties to us. This is a guaranty of payment and not of collection. We have no obligation to demand or pursue any rights against Merchant, anyone else (including another Guarantor), or to exhaust any rights or remedies related to any collateral, security, or other guaranties before demanding payment from Guarantor. Guarantor waives all defenses based on suretyship or impairment of collateral. Following a default under this Agreement, we may apply and/or set-off against amounts due to us any deposits, account balances, or other credits of Guarantor in our possession. Guarantor grants us a security interest in the items just described.
  4. The obligations of each Guarantor shall be joint and several with Merchant and any other Guarantor under this Agreement. The property described in any collateral security documents Guarantor provides, whether previously, contemporaneously, or in the future, secures this Continuing Unlimited Guaranty. This Continuing Unlimited Guaranty shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, transferees, and assignees.

12. Dispute Resolution, Governing Law, Jury Waiver, and Class Action Waiver

  1. This Section applies to you, any Guarantor, or any other party who claims an interest in this Agreement.
  1. Dispute Resolution: The parties will attempt to resolve any disputes relating to this Agreement in good faith and in a timely manner by mutual consultation. If a dispute remains unresolved for more than sixty (60) days then such dispute shall be resolved as set forth in Section 12.B of this Agreement. Nothing in this Section 72.A prohibits a party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief at any time.
  2. Governing Law/Jurisdiction: The parties have entered into this Agreement in California. The laws of California govern the interpretation, construction, and enforcement of this Agreement, including the Continuing Unlimited We, you, and each Guarantor agree to bring any legal suit, action, or proceeding arising out of or related to this Agreement, the Services, or pertaining in any way to the relationship between us and you, or us and Guarantor, each an “Applicable Claim,” in state or federal court located in Orange County, California. With respect to any Applicable Claim brought by us, you or Guarantor, you/Guarantor waive any objection to venue, and submit to the personal jurisdiction of the courts located in Orange County, California. You/Guarantor agree that our service of any summons and complaint at the address listed in the Agreement constitutes proper service and subjects you/Guarantor to the personal jurisdiction of the courts located in Orange County, California. Unless the Operating Regulations require otherwise, you shall bring any claim you have against Member Bank against us (subject to the limitations and restrictions of the Agreement), and not against Member Bank.

13. Next Day Funding

  1. If you request and are approved for Next Day Funding, we will generally initiate an ACH of settlement funds due to you to the Designated Account within one business day (i.e., any day Federal Reserve Banks are open for business), provided we receive the complete transaction data by the applicable cutoff time. We have no liability to you if we do not ACH your settlement funds within one business day. If you are not approved for Next Day Funding, we will set you up with Premium ACH for your deposit timeframe. We can change your deposit timeframe from Next Day Funding to Premium ACH notice. We can also, in our sole discretion, delay your settlement payments for up to seven days from the date we received the settlement payment. This does not preclude us from exercising our right to establish a Reserve Account or to suspend payments pursuant to other provision of this Agreement. On the next business day following the expiration of the delay period, we will begin crediting the settlement payments to your Designated Account, less any amounts you owe us. This delay of the settlement payments will be ongoing and will continue as long as we are providing you with processing Services (i.e., it will be a rolling delay). Additionally, we have a right to delay, in our sole discretion, crediting the Designated Account with funds evidenced by submitted Card transactions. You are responsible for verifying the amount of funds actually deposited to and available in your Designated Account on a daily basis. We are not responsible for the availability of funds represented by submitted Card transactions, or for any charges you incur for overdrawing the Designated Account.

14. Security Services

  1. Security Services may individually or collectively mean EMV Support, PCI Program, and point-to­ point encryption (“P2PE”), or such other service as designated by us. You may utilize P2PE products and services on select terminals using services provided wholly or partially by a third party with our support (collectively referred to as “Security Services”). You bear all risk and responsibility for conducting your own due diligence regarding the fitness of Security Services for a particular purpose and for determining compliance with the Rules Summary, the Operating Regulations, and the Laws. Accordingly, your use of Security Services is at your own risk. Our decision to offer Security Services shall not limit your duties and obligations contained in this provision or the Agreement. You acknowledge that the receipt of Security Services may require the use or upgrading of certain terminals and/or equipment or new message specifications (which shall be at your sole expense) and may not be supported on all terminals/equipment. We do not warrant or guaranty that use of the Security Services, in itself, will: (i) result in your compliance with Rules Summary, Operating Regulations, and/or Laws; (ii) prevent any and all unauthorized breaches of your terminals, systems or facilities; or, (iii) be uninterrupted or error-free. You shall not acquire any interest in (ownership, intellectual property or otherwise) any of the third-party provider software used to provide the Security Services. You shall not, and shall have no right to, own, copy, distribute, sub-lease, sub-license, assign or otherwise transfer any portion of such third-party provider software used to provide the Security Services or any materials provided by us or to modify, decompile, or reverse engineer any such software, materials, or the Services.
  1. EMV Support: Europay, Mastercard, and Visa (“EMV”) is a set of global standards for credit, debit and contactless card payments. EMV chip cards help prevent in-store fraud and are nearly impossible to counterfeit. If you have not made the investment in chip-enabled technology, you may be held liable for card-present EMV acceptance requires an EMV enabled standalone terminal or POS system. We are enabled to process in-store EMV transactions to help reduce fraud liability.
  2. EMV Non-Enabled Fee: The EMV Non-Enabled Fee is effective if you do not have EMV enabled equipment and/or software. The EMV Non-Enabled Fee is determined based on the Chargeback liability risk of your MCC as determined by us. Transactions will be evaluated and assessed monthly at the MID level. This fee is based on the gross sales amount of each card present transaction.
  3. Point to Point Encryption: The P2PE Service is a two-part service designed to (i) encrypt (make unreadable) Card data information at the origin of the payment transaction, which is a PCI approved secure cryptographic device (“SCD”) that has licensed P2PE functionality that aligns with the P2PE technologies hosted by us; and (ii) decrypt card data information at the destination of the transaction, which are our data systems. You acknowledge and agree that SCD P2PE functionality is required and may require you to engage an appropriate third-party provider or authorized reseller and said licensed functionality may incur fees in addition to those set forth herein. Card data information protected by the P2PE Service may include Track l or Track 2 data (i.e., Card data obtained through a Card swipe read) or PAN data (i.e., manually entered personal account number Card data) as appropriate to the type of transaction processed on the The SCD functionality supporting the P2PE Service is designed to securely store or generate encryption keys which are used in conjunction with the P2PE functionality to encrypt card data at the moment that the card data is captured by the SCD. The P2PE Service applies only to transactions that were encrypted by the SCD and sent from the terminal to our authorization and settlement systems pursuant to the Agreement. Supported transactions include those associated with credit (signature), debit (signature), and debit (personal identification number, “PIN”). Our provision of P2PE Service to you is subject to the availability of the licensed encryption software from the applicable third-party provider and your compliance with the Agreement.
  4. PCI Program: The Card Organizations have mandated that all merchants must comply with the PCI DSS found at pcisecuritystandards.org (see www.visa.com/cisp for additional information). We have a program to assist merchants with PCI DSS validation (“PCI Program”). Member Bank is not a party to or liable for PCI Program.
  5. Benefits of PCI Program: Upon enrollment of the PCI Program, you are eligible to receive:
    1. Access to an on line PCI Certificate validation system, where you can complete your SAQ;
    2. Access to remote scanning services, which includes monthly vulnerability scanning for up to five (S) of your computer website IP addresses (additional fees apply if you have more than five IPs). This applies to PC/IP merchants only; and
    3. Access to https://123pci.pcicompliance.ws.
  6. PCI Compliance Validation Process:
    1. Validation Requirement: In order to take full advantage of the PCI Program, you must validate your compliance with the PCI DSS on an annual basis or as otherwise required by us or a Card Organization as more fully set forth herein. To validate your compliance with the PCI DSS, you must successfully complete a SAQ and, if applicable, a vulnerability scan as provided below.
    2. Self-Assessment Questionnaire (“SAQ”): A SAQ is a list of questions developed by the PCI Security Standards Council
    3. Vulnerability: A vulnerability scan (“Scan”) is necessary for PC, IP enabled terminal, or integrated ECR merchants. Here are the steps to receive your Scan:
      • Once you have completed your SAQ, the system will guide you to schedule a Scan, if applicable.
      • The Scan will identify vulnerabilities or gaps that may allow unauthorized or malicious users to gain access to your network and potentially compromise cardholder data. The Scan does not require you to install any software, and no denial-of-service attacks will be performed.
      • Upon completion of the Scan, you will receive a link to your full compliance report. A network vulnerability review failure means that the Scan discovered areas of severe vulnerability. The report describes the issues found and provides you with recommendations for scan resources to begin fixing the problems. The tool will guide you to remediate the failed Scan and work toward achieving compliance. Once you have addressed the vulnerabilities, simply schedule a follow-up Scan to ensure your remediation of the problem meets the PCI DSS requirements.
    4. Certificate of Validation: Upon successful completion of the SAQ and Scan, if applicable, your Certificate of Validation will be issued. You can print your Certificate through our online portal or, if you have completed a paper version of the SAQ, your Certificate will be mailed to you.
    5. Re-Validation: You must maintain a current, successfully completed SAQ and timely pass quarterly Scans, if applicable, in order to take full advantage of the PCI Program. An SAQ is no longer current if the Certificate of Validation issued by us to you is more than one (7) year old. You are also required to re-validate by completing a new SAQ and passing Scans, if applicable, when you make a change in your processing environment or if you fail to timely complete a required quarterly Scan.
      • A change in your processing environment requiring re-validation occurs when you transition from one card-processing environment to another such that your SAQ Classification changes, necessitating re-validation under a new SAQ. With respect to a revalidation required due to a change in your processing environment, you must complete the re-validation process within twenty-four (24) hours of such change in order to maintain your validation of compliance with the PCI DSS.
      • With respect to a re-validation required due to your failure to complete a required quarterly Scan, we will deem your failure to complete a Scan within ten (10) days of the end of the preceding quarter to require re-validation under the PCI Compliance Validation Process, in order to maintain your validation of compliance with the PCI DSS.
      • With respect to a re-validation required due to the expiration of the annual SAQ or any other reason for which Re-Validation is required, you will have five (5) days to complete the PCI Compliance Validation Process, in order to maintain your validation of compliance with the PCI DSS. Once you have successfully completed the re-validation of your PCI DSS compliance, we will issue you a new Certificate of Validation for the current validation period.
  7. Costs: We may assess you a non-compliance fee if you do not validate your compliance with PCI DDS.
  8. Security Policy: As part of PCI DSS, the Card Organizations require that you have a security policy that covers the security of credit card information.
  9. Amendment: The Security Services is subject to change from time to time by us. Any changes will be effective fifteen (15) days following the date notice of such change is sent to you, even if it was not received by you.
  10. Further Information: To speak with our customer service representative, please call us at 1-866-849-2445.
  11. Waiver: Limitations on Waiver:  Upon your successful validation of compliance with the PCI DSS under the PCI Program, we agree to waive your liability to us, up to $50,000, for the following fees and costs incurred as a result of a verified compromise of cardholder data that are otherwise your liability under this Agreement: (l) fees and costs associated with a required forensic audit conducted by an approved Qualified Incident Response Assessor (QIRA); (2) fines or assessments levied by a Card Organization as a result of the required forensic audit; and (3) fees and costs associated with the production and distribution of replacement credit cards for compromised card numbers (the “Waiver”).
  1. The Waiver provided under this Section is also subject to the following:
    1. Our agreement to waive your liability to us for the fees and costs described in this Section is only effective upon (l) your continued validation of compliance with the PCI DSS and participation in the PCI Program; and (2) your successful completion of the PCI Compliance Validation Process described in Section 14.F. above; provided, however, that there is no change in your business practices regarding Card acceptance. Your continuing qualification for the PCI Program is premised upon initial validation of your compliance with the PCI DSS and timely re-validation of your compliance with the PCI DSS, including annual completion of a SAQ and passing quarterly vulnerability Scans, if applicable, payment of the PCI Program cost, and otherwise complying with the terms of the PCI Program and the Agreement.
    2. If you are in compliance with the requirements of subsection (i) above, we agree to waive up to $50,000 in fees and costs described in this Section for each unique MID. If you have multiple MIDs that have the same federal tax identification number (or in the case of a sole proprietorship, the same social security number), then the maximum aggregate Waiver amount for those MIDs is limited to $700,000. In addition, if a MID is one of a group of MIDs that are eligible for and receive a multi-merchant discount for the PCI Program fees, the aggregate Waiver for all MIDs in such group is $700,000.
    3. Your validation of compliance with the PCI DSS through the PCI Program is required to be eligible for the Waiver. You will not be eligible for the Waiver if your SAQ is not current, if you have not timely completed the quarterly vulnerability Scans, or if you have otherwise failed to maintain compliance with the PCI DSS through the PCI Program.
    4. The Waiver of up to $50,000 described in this Section is limited to one (1) compromise of Cardholder data incident per PCI Program year. Any subsequent incidents occurring during the same PCI Program year are not eligible for the Waiver, and any costs and fees associated with such incident(s) remain your liability under this Agreement. Chargebacks are not eligible for the Waiver under any circumstances.

15. Representations and Warranties

  1. You represent and warrant that:
  1. Information: Any information you have submitted to us is true, complete and This includes information about your entity type, the nature of your business (e.g., products and services sold, manner of sale, etc.), and the financial condition and ownership and executive structure of your business.
  2. Corporate Power: You and any person signing the Application on your behalf have the power to execute this Agreement and to perform under this Agreement. The person signing the Application may execute any future documents and take any future action on your behalf.
  3. Existence/Organization: You are a person or an entity validly existing and organized in the United States.
  4. No Litigation: You have no knowledge of an actual or threatened action, suit, investigation, or proceeding against you that might impair your financial condition or prevent you from operating your business as you now conduct it. You have never appeared on Mastercard’s MATCH system or Visa’s Terminated Merchant File or any combined terminated merchant file, except as already disclosed in writing.
  5. Transactions: The Card transactions you submit to us: (i) represent the obligations of the authorized Cardholder for merchandise or services actually sold, rented, or rendered (except for any delayed delivery or advance deposit authorized by the Rules) and must not involve any element of credit for any other purpose; (ii) represent bona fide Card/rentals of merchandise and/or services not previously submitted and do not represent a refinancing of any prior obligation; (iii) are not subject to any dispute, setoff, or claim against the price; (iv) are not, to your knowledge or notice, fraudulent, unauthorized by the Cardholder, or subject to any other infirmity or impairment; and (v) do not result from any sale outside your normal course of business, as described in the Application.
  6. Products and Services: The following items are true: (i) you have complete power and authority to sell the products and services you offer and to display the advertisements you use; (ii) your products and services are not illegal, and you will not accept a Card for any illegal transaction; (iii) you will prominently and unequivocally inform each Cardholder of your identity at all points of interaction during the transaction to distinguish you from any other party; (iv) your products, services, and business name do not infringe upon the rights of any other person, including trademark, copyright, confidentiality or patent rights; and (v) you will not sell, market, or display any products or services that would violate any Law or jeopardize our reputation. You shall provide to us information to support the representations regarding your products, goods, and services, including copies of your sales and marketing materials, online advertisements, proof of delivery documents for tangible goods, and proof of services provided for services. All such information shall be provided to us within three (3) business days from and in the form specified in our request.
  7. Debit & EBT Card Processing Services: Availability of Terminals: We will process Debit Card transactions for you if indicated in the Application or an amendment. If you accept EBT Cards, the terms in Addendum A shall apply. We will provide sponsorship services to you (through a third­ party bank), if applicable. You will take all steps necessary to ensure that POS devices and PIN pads will be available for Cardholder use and will function in a reliable manner.
  8. Wireless Operator: You hereby authorize your wireless operator (AT&T, Sprint, T-Mobile, US Cellular, Verizon or any other branded wireless operator) to use your mobile number, name, address, email, network status, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber status details, if available, to allow verification of your identity and to compare information you have provided to us with your wireless operator account profile information for the duration of the business relationship.

16. Special Association Considerations

  1. Rules regarding your participation in the Discover or American Express Card programs are attached as Schedule VI attached hereto.

17. Miscellaneous Terms and Conditions

  1. Headings and Construction: The parties have used the headings in this Agreement for convenience only. No heading shall affect the interpretation of any These Terms and Conditions are subordinate to the Rules Summary, the Operating Regulations, and the Application (unless the Application is blank). Our approval of the Application does not guarantee you a right to receive processing. The parties have chosen the language in this Agreement to express their mutual intent. No rule of strict construction shall operate against any party. This Agreement constitutes the entire agreement between the parties with regard to the Services, and supersedes all prior or other agreements or representations regarding the Services, whether written or oral. All prior understandings have merged into this Agreement.
  2. Other Rights and Acknowledgements: We may change Member Banks at any time without notifying you. Any Member Bank may delegate all or part of its duties to its affiliate at any time, also without notifying you. We are an agent of Member Bank in connection with Visa and Mastercard transactions, and may use an ISO/MSP in connection with this Agreement. The ISO/MSP is an independent contractor and not our agent. Accordingly, ISO has no authority to execute an Agreement on our or Member Bank’s behalf. You owe Member Bank the same obligations you owe us. We may exercise any rights or remedies in this Agreement individually or jointly with Member Bank, and may likewise exchange or allocate the duties and obligations each owes to you.
  3. Attorney’s Fees: You shall pay us for all attorneys’ fees and other costs and expenses we incur or pay in: (i) defending our rights under this  Agreement;  (ii)  enforcing  the  Agreement;  or (iii) collecting any amounts you owe us under the Agreement. In the event of a lawsuit under this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
  4. Survival: Provisions that impose or could impose a continuing obligation on you shall survive the expiration or termination (for any reason) of this Agreement. This includes your liability for Chargebacks and reversals, your duty to indemnify us and Member Bank, and your duties with respect to account maintenance.
  5. Association/Other Network: You may sign an agreement with an Association or Other Network (“Other Merchant Agreement”). Each Other Merchant Agreement is a separate and independent agreement. We have no responsibility for Association’s, Other Networks, or your breach of an Other Merchant Agreement. We do not have to comply with the terms or conditions of an Other Merchant Agreement. We have a right to cease providing Services for any Other Networks or Associations in our sole discretion. You agree to pay all fees, fines, assessments and penalties the Associations or Other Networks impose. We may allocate any such fees, fines, assessments, or penalties imposed on us in any manner and in our sole discretion. You agree that all POS terminals operate with unique keys according to Network requirements.
  6. Routing: You authorize us to decide where to route a Card transaction.
  7. Non-Discrimination: If applicable, we and you shall abide by the requirements of 47 CFR § 60-l.4(a), 60-300.S(a) and 60-747.S(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their color, race, religion, sex, or national origin. Moreover, these regulations, if applicable, require each of us to take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
  8. Title to the Services: You agree that the Services are licensed and not sold. As a result, you only acquire a nontransferable, revocable, non-exclusive right to use the Services. The right exists only during the term of the Agreement, and only for the purpose of accepting and managing payments. We retain all right(s), title, and interest in and to the Services. This includes rights in materials we deliver to you, and any invention, development, product, trade name, trademark, service mark, software program, or derivative from any item just listed. You shall not: (i) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, or distribute any of our material; (ii) permit any third party to use or benefit from the Services through a rental, lease, timesharing, service bureau, or other arrangement; (iii) work around, bypass or circumvent any of the technical limitations of the Services, use any tool to enable disabled functionalities, or decompile, disassemble, or reverse engineer the Services (unless the restriction is prohibited by the Laws); (iv) perform any act that interferes with proper access or use of the Services; or (v) use the Services in any manner not expressly allowed under this Agreement.
  9. Notices: Unless otherwise stated, you shall deliver notices and other communications in writing via certified mail or reputable overnight courier (postage prepaid) to the following address: Luqra, Attention: Legal, 4100 Newport Place Drive, Suite 500; Newport Beach, CA Notices delivered in this manner become effective upon our actual receipt. Our communications to you shall be delivered via email, facsimile (effective upon transmission confirmation), ordinary or certified mail (effective the seventh day after mailing), reputable overnight courier (effective the first day after submission to the courier), or via a report, communication via Portal Service or invoice (effective when made available).
  10. No Obligation to Process: We have no obligation to process any Visa or Mastercard transaction beyond the authority of a U.S. member of Visa and Mastercard or any Discover or American Express transaction outside the United States and other United States territories.
  11. Account Debiting Authorization: In addition to our other collection rights in this Agreement, you expressly authorize us or our affiliate to collect amounts due us or our affiliate by debiting any deposit account you maintain or have on file with us or Member Bank.
  12. Amendments: We may amend this Agreement or change rates at any time. You do not have the same right. We will provide notice of changes in accordance with the notice Section of this Agreement. If you continue to process transactions after, or fail to notify us that you contest a change within seven days of actual or constructive notice, you will be deemed to have accepted that change. We have the right to make Association and Other Network changes and increases in interchange, fees, or assessments without providing you notice. You agree to pay these increased fees and charges throughout the term. We are not bound by any changes, additions, or deletions you make to the Agreement unless they are part of a written amendment that is signed by you and us. Notwithstanding anything in this Agreement to the contrary, we reserve the right to correct minor typographical or other errors that do not affect the material content of this Agreement without recourse.
  13. Assignment: We have a right to assign this Agreement. Unless you obtain our prior written consent, you do not. This means that any assignment, even an assignment by operation of law, is prohibited without our consent. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, transferees, and assignees (if applicable). If you assign this Agreement without our consent, the assignee will be bound by the terms of this Agreement, and we reserve the right to pursue remedies for an Event of Default as set forth in herein. Your sale of the business does not relieve the original owner or original Guarantors of Chargeback or other liabilities, even those occurring after sale.
  14. Independent Contractors: We are not your agent, and we are not in a joint venture, or partnership with you (or vice-versa). We and you are independent contractors.
  15. No Third-Party Beneficiary: Unless expressly stated in these Terms and Conditions, this Agreement is for the benefit of, and may be enforced by, only you and us, and our successors and permitted transferees and assigns. It is not for the benefit of any third-party.
  16. Employee and Agent Actions: You are responsible for the acts or omissions of your employees, independent contractors, and agents related to this Agreement and the use of the Services.
  17. Severability and Non-Waiver: The invalidity or illegality of any part of this Agreement shall not invalidate the rest of the Agreement. The Agreement shall instead be construed as if the invalid or illegal provision were not part of the Agreement. Our delay or failure to exercise any right under this Agreement shall not operate as a waiver or estoppel of that right.
  18. Signature: An original, a copy, facsimile copy, or digital, photographic or electronic copy of your signature serves as the signature for this Agreement. Further, duplicate original records of this Agreement (digital, photographic, or otherwise) have the same force and effect as the original. The parties agree that contracting through electronic means including e-signature or “click to agree” processes is an acceptable form of showing and proving mutual assent to this Agreement.

18. Additional Definitions

  1. The following terms shall have the meaning specific below when used in this Certain other capitalized terms are defined elsewhere in this Agreement in the context of the provision in which they are used.
  2. “ACH” means an electronic funds transfer processed through one of the automated clearing house systems and subject to the Nacha Network Rules.

  3. “Agreement”  means  the  Merchant  Processing  Agreement (including Terms and Conditions), Merchant Application, Rules Summary, Operating Regulations, and any attached addenda, exhibits, schedules, or other documents.

  4. “Application” and  “Merchant Application” mean either the physical/virtual form or the act of making application by providing information via a web page user interface to obtain Service from us.

  5. “Associations” means, collectively, Mastercard, Inc. (“Mastercard”), Visa, Inc. (“Visa”), Discover Financial Services (“Discover”), and American Express Company (“American Express”), each including its applicable affiliates and payment networks, and certain similar entities.

  6. “Card(s)” means Association or Other Network branded cards that enable consumers to purchase goods and services from Merchants.

  7. “Cardholder(s)” means persons authorized to use Association or Network branded cards.
  8. “Change in Control” means the consummation by Merchant of a transaction or series of transactions in which any one or more of the following occurs: (7) any person becomes the beneficial owner, directly or indirectly, of 25% or more of Merchant’s business; (2) the sale, lease, exchange, or other disposition of 25% or more of all of Merchant’s consolidated assets; or (3) a complete liquidation or dissolution or a plan of complete liquidation or dissolution of Merchant.

  9. “Chargeback” means a Transaction for which payment has been refused or reversed in accordance with the Operating Regulations. The term also means, where appropriate, a Card reject or any other credit or return initiated by a Merchant’s customer or Card issuing bank.

  10. “Discount Rate” means a percentage of the total transactions submitted to Member Bank for processing.

  11. “Effective Date” means the later of (i) the date you signed the Application; or (ii) the date we approved the Application.

  12. “ISO/MSP” means an independent  sales organization/member service provider operating under the Operating Regulations.

  13. “Laws” means all applicable state, federal, and local laws, rules, and regulations.

  14. “Member Bank” means a member of Visa, Mastercard and/or Other Networks, as applicable, that provides sponsorship services in connection with this Agreement.

  15. “Operating Regulations” means the Association and Network bylaws, operating regulations, rules, policies and procedures. The Operating Regulations may be changed or updated from time to time without notice.

  16. “Other Networks” or “Networks” means, collectively, all our supported payments networks not defined above as Associations.

  17. “Rules Summary”  means  the  document  containing  a summary of key Operating Regulations governing this Agreement as amended from time to time. In case of a conflict between the Rules Summary and the Operating Regulations, the Operating Regulations control.

  18. “Service” means any services described in this Agreement and/or provided by us.